Delhi District Court
Cbi vs . 1 Ashok Kumar Aggarwal, on 1 October, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 08/2012
RC AC1 2005A0004
U/s 13 (2) r/w 13 (1) (e) PC Act
& 109 IPC r/w 13 (2) r/w 13 (1) (e) PC Act
(Case UID No.02406R1038842007)
CBI Vs. 1 Ashok Kumar Aggarwal,
Son of late Sh. T.R. Aggarwal,
Flat No. 6, Parmarth Apartments,
Vikas Puri, New Delhi-18.
2 Mamta Aggarwal,
Wife of Ashok Kumar Aggarwal,
Flat No. 6, Parmarth Apartments,
Vikas Puri, New Delhi-18.
i) Date of Institution :23.03.2007
ii) Date on which case was received on
Transfer by this Court :15.02.2012
iii) Date of framing of charge :08.10.2008
iv) Date of conclusion of arguments :25.09.2013
v) Date of Judgment :01.10.2013
Memo of Appearance
Ms. Jyotsna Sharma, learned Public Prosecutor for CBI.
Sh. Anil Kumar, learned Defence Counsel for both the accused.
JUDGMENT
PROSECUTION STORY 1.0 Accused Ashok Kumar Aggarwal has been charge-sheeted for being CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 1 of 88 found in possession of assets disproportionate to his known sources of income. His wife Mamta Aggarwal has also been sent up to face trial for abetting commission of said offence of acquisition of disproportionate assets.
1.1 Accused Ashok Kr. Aggarwal was appointed as Assistant Director (Supply) in the office of DGS&D on 01.03.1977. He got promoted from time to time and became Director (Supplies) on 23.01.2004 and Director (ME) on 01.06.2004.
1.2 Check period has been reckoned from 01.03.1977 to 07.06.2005.
1.3 As per CBI, during his posting and functioning in various capacities in DGS&D, accused Ashok Kr. Aggarwal committed criminal misconduct as he was found in possession of properties and pecuniary resources, in his name as well as in the name of his wife and sons, disproportionate to his known sources of income for which he could not satisfactorily account for.
1.4 As regards, family background of accused Ashok Kr. Aggarwal, his father Sh. T.R. Aggarwal (since deceased) was working in Northern Railways who retired as Accounts Officer on 30.06.1982. He expired on 18.04.1990. Mother of accused Ashok Kr. Aggarwal was also a housewife. Accused Ashok Kr. Aggarwal was having two brothers and two sisters, namely, Sh. B.K. Aggarwal, Sh. Suman Kant, Smt. Parneeta Gupta and Smt. Sarita Gupta. Out of such four brothers and sisters of accused Ashok Kr. Aggarwal, three got married during the lifetime of Sh. T.R. Aggarwal and one Sh. Suman Kant got married after the death of Sh. T.R. Aggarwal.
1.5 Accused Mamta Aggarwal was also found to be a housewife. Accused (s) were having two sons, namely, Nitin Aggarwal & Nikhil Aggarwal. Nitin Aggarwal did his graduation in engineering in the year 2001 and was employed with CMC Ltd. since 2002 and another son Nikhil Aggarwal passed engineering graduation in June 2005.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 2 of 881.6 Case was registered on 29.04.2005 on the basis of complaint of Insp. Surender Malik of CBI.
1.7 As per the investigation, at the beginning of check period i.e. 01.03.1977, accused Ashok Kr. Aggarwal was in possession assets worth Rs. 20,000/- only and at the close of check period, he had one immovable asset i.e. Flat No. D-10, Rose Co- operative Group Housing Society, Rohini besides movable assets worth Rs. 68,74,049.84.
1.8 Following breakup would explain the extent of disproportionate assets:-
(A) Assets at the beginning of check period: Rs. 20,000.00 (B) Assets at the end of check period: Rs. 72,18,919.84 (C) Income during check period: Rs. 34,93,779.18 (D) Expenditure during check period: Rs. 18,42,216.00 Disproportionate Assets= [(B-A) + D]- C = [(72,18,919.84 -20,000.00) + 18,42,216.00] - 34,93,779.18 = [71,98,919.84 + 18,42,216.00] - 34,93,779.18 = 90,41,135.84 - 34,93,779.18 = Rs. 55,47,356.66 Percentage of Disproportion = Disproportionate Assets X 100 = 55,47,356.66X100 Income from known sources 34,93,799.18 = 158.77% 1.9 It would be also not out of place to mention here that during investigation itself, accused Ashok Kr. Aggarwal was given ample opportunity to offer explanation regarding disproportionate assets. HIs reasoning was, however, found not acceptable.
According to him, he had rented out his said Flat No. D-10, Rose CGHS, Rohini, Delhi which fetched rental income of more than Rs. 5 lacs but investigation revealed that CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 3 of 88 alleged tenant had never resided in said flat as tenant. His wife/accused Mamta Aggarwal also claimed during investigation that she was in the business of tailoring i.e. stitching of clothes since her marriage and had earned Rs. 8,25,000/- but her such contentions were also found to be wrong as neither accused Ashok Kr. Aggarwal informed his department about any such activity of his wife nor Mamta Aggarwal herself had filed any Income Tax Return showing that she was having any such income from tailoring.
1.10 Accused Ashok Kr. Aggarwal had also claimed that lot of his investments had been funded by his late father but such fact was also found to be wrong as his father had, in fact, married off his three children during his lifetime and was not in any position to fund such amount.
1.11 According to investigating agency, Mamta Aggarwal was a graduate and she was fully aware about the source of income of her husband and she actively participated in acquisition of disproportionate assets and thereby abetted the offence committed by accused Ashok Kr. Aggarwal. It is in these circumstances that accused Ashok Kr. Aggarwal has been charge-sheeted u/s 13(2) r/w 13 (1) (e) of PC Act 1988 and his wife/accused Mamta Aggarwal u/s 109 r/w 13(2) r/w 13 (1) (e) of PC Act 1988.
COGNIZANCE AND CHARGES 2.0 Charge-sheet was filed in the Court on 23.03.2007 and cognizance was taken vide order dated 13.07.2007.
2.1 Vide order dated 30.09.2008, both the accused were ordered to be charged. Accordingly, accused Ashok Kr. Aggarwal was charged u/s 13(2) r/w 13 (1)
(e) of PC Act 1988 and his wife/accused Mamta Aggarwal was charged u/s 109 IPC r/w Section 13(2) r/w 13 (1) (e) of PC Act 1988.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 4 of 882.2 Charges were framed on 08.10.2008. They both pleaded not guilty and claimed trial. It would be pertinent to mention that at the time of arguments on charge, certain defence contentions were accepted and accused Ashok Kr. Aggarwal was granted benefit of additional income of Rs. 85,551/- (Rs. 1,581/- + Rs. 77970/- + Rs. 6,000/-). It was also held that education expenses relating to Sh. Nitin Aggarwal was Rs. 1,54,345/- instead of Rs. 1,70,345/- and as regards assets as appearing in serial number 28, a benefit of Rs. 1,000/- was given and the worth of acquisition was taken as Rs. 80,000/- instead of Rs. 81,000/-. Reference in this regard be made to para-33 & para-34 of order on charge dated 30.09.2008. If such benefits are passed on to the accused, which should be in any eventuality, the total extent of disproportionate assets would come to Rs. 54,44,805/-. Charge has also been framed accordingly.
WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined 46 witnesses and witnesses can be classified as under:
For proving income PW1 Smt. Jamuna Subramanian, Section Officer, DGS&D. PW2 Sh. Devender Ahuja, alleged Tenant (for disproving alleged rental income) PW3 Sh. R.C. Attri, Section Officer, DGS&D. PW5 Smt. Veena Sharma, official from PNB, Parliament Street Branch. PW22 Sh. S.K. Verma, M/s Excellent Computer Centre. PW24 Sh. A.C. Parmar, Account Assistant M/s CMC Ltd. PW28 Sh. Sushil Kumar Mehta, PRI Sansad Marg Post Office. PW37 Sh. S.K. Bansal, Dy. Director (Vigilance) in DGSM.CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 5 of 88
For proving expenditure PW7 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. PW14 Sh. Daya Ram, UDC, Salwan Public School. PW21 Sh. Navin Chander, Section Officer, DGS&D. PW23 Sh. Mehar Chand, Sr. Assistant, Bhartiya Vidaya, Bhawan's Mehta Vidyalaya. PW27 Sh. Ashwani Sethi, Lecturer, G.G.S. College of Engineering & Technology, Talwandi, Punjab.
PW36 Dr. A.I. Wasif, Principal, DKTE Societies Textile & Engineering Institute, Maharashtra.
Acquisition of Assets PW4 Sh. V.P. Singhal, Honorary Secretary, Parmarth CGHS, Vikas Puri, New Delhi. PW5 Smt. Veena Sharma, PNB Parliament Street Branch. PW8 Smt. Usha Mehta, Asstt. Post Master, Post Office Ramesh Nagar (HO), New Delhi. PW9 Sh. I.K. Arora, Dy. Post Master, GPO, New Delhi. PW10 Sh. Subhash Chander Sharma, Dy. Post Master, Sansad Marg PO, New Delhi. PW11 Sh. Vinay Grover, Triveni Engineering Industries Ltd. PW12 Sh. Ram Avtar Goel, Executive Officer, Jindal Steel & Power Ltd. PW13 Sh. Bir Sen, P.A. Rajouri Garden Post Office, New Delhi. PW15 Sh. Alok Kumar Payal, Accounts Department, HDFC Ltd. PW16 Ms. Archana Pandit, Ballarpur Industries Ltd. Tower-C, MG Road. PW17 Sh. Kishori Prasad, Escorts Finance Ltd. PW18 Sh. S.K. Majumdar, Dy. Manager (Finance), NTPC. PW19 Sh. R.K. Kapoor, Manager, PNB, Parliament Street, New Delhi. PW20 Sh. Dinesh Kr. Jain, Deputy Manager, Bank of India, Mandir Marg Branch. PW25 Sh. Om Dutt Sharma, LDC, Sales Tax Department, ITO, New Delhi. PW26 Sh. Phool Singh, PRI, Seelam Pur Post Office. PW28 Sh. Sushil Kr. Mehta, PRI Sansad Marg Post Office. PW29 Sh. Mukesh Kr. Aggarwal, Asstt. Manager Accounts, J.K. Paper Ltd. New Delhi. PW30 Sh. S.K. Gautam, Spl. Assistant, OBC, Extension Counter, Vikas Puri, New Delhi. PW31 Sh. Sandeep Dam, Branch Manager, UTI Bank. PW32 Sh. V.K. Kaul, SBI Dinesh Pur Branch, District Udham Singh Nagar.CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 6 of 88
PW33 Sh. Parveen Deewan, Manager, Head Office, OBC, Credit Administration Department. PW34 Sh. J.K. Malik, Clerk, Bank of India, Vikas Puri, New Delhi. PW39 Sh. Vipin Kr. Singhal, Assistant Manager, IOB, Preet Vihar Branch, Delhi. PW40 Sh. Lal Saheb Mishra, Clerk, Standard Chartered Bank, ITO, Delhi. PW41 Sh. P.C. Gupta, Corporate Advocate. PW42 Sh. Ram Yash, PRI, GPO, New Delhi.
PW45 Sh. Pardeep Bhatia, Deputy Manager, UTI, Infrastructure Technology Services Ltd.
Search witnesses PW6 Insp. Surinder Bansal, Investigation Officer. PW43 Sh. Arun Kumar Soni, Deputy Manager, SBI Vikas Puri. PW44 Sh. Subhash Chander, Senior Assistant, SBI Vikas Puri.
Sanctioning Authority & Investigating Officer PW38 Sh. M.K. Anand, Director, Department of Commerce Supply Division, Udhyog Bhawan, New Delhi.
PW46 DSP Ram Singh, IO.
STATEMENTS OF ACCUSED AND DEFENCE WITNESSES
4.0 Statements of both the accused u/s 313 Cr.P.C. were recorded. Both of them pleaded innocence.
4.1 Accused Ashok Kr. Aggarwal claimed that he had been falsely implicated. He also filed comprehensive written statement u/s 313 (5) Cr.P.C. and prayed that his such statement u/s 313 (5) Cr.P.C. be also read as part of his statement. Written CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 7 of 88 arguments have also been filed on the same pattern. I would deal with all such contentions at appropriate stage.
4.2 Accused Mamta Aggarwal also pleaded innocence and claimed that she had no knowledge about most of the facts and only her husband could tell about the same. She also filed written statement u/s 313 (5) Cr.P.C.
4.3 Both the accused examined 27 witness in their defence. These are DW1 Sh. Deep Chandra Lohani, Chief Manager, Central Bank of India, Parliament Street, New Delhi, DW2 Sh. Pradeep Mudgal, Senior Manager OBC, Vikas Puri, DW3 Sh. Aman Prakash Gaurav, Postal Assistant, Sansad Marg Head Post Office, DW4 Sh. Ram Yash, PRI, GPO, New Delhi, DW5 Sh. Satya Prakash, PRI, GPO, Delhi, DW6 Sh. S.P.K. Aggarwal, DGM, Central Bank of India, DW7 Sh. Atul Saxena, AAO, Postal Accounts, Delhi, DW8 Sh. S.P. Mamgain, Chief Manager, CPI, PNB, Circle Office North, Delhi, DW9 Insp. Rajesh Singh Solanki, CBI Anti Corruption-I, New Delhi, DW10 Sh. Romesh Kr. Bhatia, DGM, Bank of India, DW11 Sh. Gulshan Kumar, Manager Bank of India, DW12 Ms. Pushpa Kathpalia, Staff Officer, Bank of India, DW13 Sh. Pradeep Bhatia, Deputy Manager, UTI Infrastructure Technology & Services Ltd., DW14 Sh. Laxmi Narain, President, Rose Co-operative Group Housing Society, Rohini, Delhi, DW15 Sh. Vinod Kr. Makhija, Associate Vice President, IFCI Ltd., DW16 Sh. A. Samantaray, DGM, Indian Railway Finance Corporation Ltd., DW17 Sh. Har Singh Bonal, Chief Finance Officer, Haridwar Development Authority, DW18 Sh. S.S. Raghav, PRI, Tilak Nagar Post Office, DW19 Sh. Praveen Sangwan, Manager (Legal), Escorts Ltd., DW20 Ms. Neeru Bhasin, Deputy Director, MIG Housing, DDA, DW21 Sh. Pawan Kr. Gupta (brother of accused Mamta Aggarwal), DW22 Sh. B.K. Aggarwal (brother of accused Ashok Kr. Aggarwal), DW23 Sh. Suman Kant Aggarwal (brother of accused Ashok Kr. Aggarwal), DW24 Smt. Jaspal Kaur, DW25 Ms. Neeru Gupta, DW26 Sh. Sanjay Sharma, Legal Manager, ICICI Bank Ltd. DW27 Ashok Kumar Aggarwal himself also entered into witness box u/s 315 Cr.P.C.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 8 of 88RIVAL CONTENTIONS 5.0 I have heard Ms. Jyotsna Sharma and Sh. Anil Kumar and carefully perused the entire material available on record.
5.1 Ms. Sharma has contended that prosecution has been able to prove its case and it becomes manifest that accused Ashok Aggarwal was found in possession of assets disproportionate to his income and he has not been able to place on record or prove any explanation much less a cogent one. It has also been argued that there is nothing on record which may even remotely suggest that accused Mamta Aggarwal was having any income from alleged tailoring business and both the accused have tried to come up with lame excuse that some of the investments have been funded by parents of accused Ashok Aggarwal in order to somehow wriggle out of the clutches of law. She has contended that accused Mamta Aggarwal, being literate, was fully aware that her husband was a public servant and was having limited income and she knowingly and consciously conspired with him and participated in the acquisition of disproportionate assets and thus the offence of abetment qua her also stands established.
5.2 Sh. Anil Kumar, learned defence counsel has, on the other hand, refuted all the aforesaid contentions. He has submitted a detailed synopsis in order to justify defence story. According to him, for the totally inexplicable reasons, details, which had been submitted by accused Ashok Aggarwal and his wife during investigational stage, were discarded without any thought and also that on most of the places, assets were considered on the basis of its maturity value instead of its face value. He has argued that assets should have been considered on the basis of face value and proportionate benefit of additional income accrued by way of interest should have also been passed on to the accused. It has also been argued by him that parents of Ashok Aggarwal had CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 9 of 88 funded number of investments and such aspect becomes very much evident as few of these were through cheques issued by his parents and such aspect was completely ignored and rebuffed by the investigating agency. It has also been argued by him that accused Ashok Aggarwal had not violated any of the Conduct Rules and merely because some of the investments, which are from his own funds, were not intimated to the department, it cannot be assumed that there was any acquisition which was mystifying or shadowy.
5.3 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
5.4 There are four important aspects of consideration i.e. acquisition of assets, expenditure, income and additional income (as alleged by defence). I would be dealing with these aspects one by one.
INCOME 6.0 As per prosecution, accused had total income of Rs. 34,93,779.18 during the check period. Benefit, under some heads, was passed to him while framing the charges. On the basis of averments appearing in the charge-sheet, order on charge and defence contentions, following chart has been prepared:-
S. Source of Income Amount as per Related witness Income as per No. charges defence 1 Interest from Account No. 15360 in SBI, Vikas 20456.00 PW32 28314.51 Puri.
2 Interest from Account No. 74509 in PNB, 5472.00 PW5 5472.00 Parliament Street.
3 Interest from Account No. 75306 in Parliament 3033.00 PW5 3033.87 Street.
4 Interest from Account No. 1873 in OBC, Vikas 529.00 PW30 784.00 Puri.CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 10 of 88
5 Interest from Account No. 1818 in OBC, Vikas 459.00 PW30 532.00 Puri.
6 Interest from Account No. 914 in OBC, Vikas Puri. 5474.58 PW30 5927.58 7 Interest from Account No. 613448 in Bank of India, 153.00 PW20/DW10 854.17 Mandir Marg.
8 Interest from Account No. 0791010100106337 in 199.00 - 199.00 UTI, Vikas Puri.
9 Interest of SB Account No. 6707823. 5247.00 PW28 5569.93 10 Interest of SB Account No. 6723446. 1038.00 PW28 2687.85 11 Interest from Account No. 52510149312 in 1553.00 PW40 1822.48 Standard Chartered Bank, Parliament Street. 12 Income of various purchases such as NSCs and 76000.00 PW1 94278.00 KVPs as per intimation by the accused.
13 Income from Net Salary. 2579307.00 PW1/3/7 2614626.00 (Initial amount was Rs.25,01,337.00. Further benefit of Rs. 77,970/- was given by the Court as per para-34 of order on charge).
14 Income from GPF final withdrawal. 167000.00 PW3 167000.00 15 Income from House Building Advance 150000.00 PW3 150000.00 16 Income from Car Advance. 72000.00 PW3 72000.00 17 Income from withdrawal of PPF Account No. 70000.00 PW1/PW28 70000.00 10528 of purchase of car.
18 Income from Net Salary/stipend of Nitin Aggarwal 342728.00 PW24 411857.00 received from CMC Ltd.
19 Income from the salary received from Excellent 39900.00 PW22 39900.00 Computer Centre by Nitin Aggarwal.
20 Income from gifts from Mrs. N.B. Goel, Sister-in- 6000.00 PW1 6000.00 law.
21 Payment by father for purchase of NSC. 10000.00 PW1 10000.00 22 Income from the interest of IDBI Bonds No. 4400.00 4400.00 0000109060-61.
23 Income from the interest of ICICI Certificate no. 5400.00 DW26 5460.00 254745 to 48 @ Rs. 5000/- each.
24 Income from the interest of ICICI Certificate no. 5400.00 DW26 6381.00 37980-83 @ Rs. 5000 each.
25 Income by way of receiving interest due to late 1581.00 - 1581.00 delivery of the car by the dealer as per para-33 of order on charge.
26 Benefit of gift of Rs. 6,000/- given by Court as 6000.00 - 6000.00 per para-34 of order on charge.
Total 35,79,329.58 37,14,680.39
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 11 of 88
6.1 I have carefully gone through the testimony of related witnesses. As far
as items mentioned at serial no. 2, 3, 8, 14 to 17, 19 to 22 are concerned, there does not seem to be any dispute whatsoever with respect to such accrual of income. Since, these entries, even otherwise, admitted by the defence, there is no requirement of scrutinizing the evidence of the related witnesses. It would be, however, important to mention that as far as accrual of interest of Rs. 149/- mentioned at serial no. 8 is concerned, prosecution has not examined any witness from the concerned Branch of UTI but fact remains that defence has admitted even such income. Let me now see the remaining disputed heads.
6.2 As regards, interest from saving bank account of SBI, Vikas Puri is concerned, prosecution has examined PW32 Sh. V.K. Kaul. He had handed over various documents to CBI which were seized vide memo Ex. PW32/A. Perusal of deposition of PW32 Sh. V.K. Kaul and the documents proved by him would indicate that account no. 15360 was in the joint names of Ashok Aggarwal and Mamta Aggarwal and one Special Term Deposit was opened by them with the aforesaid branch of State Bank of India. Ex. PW32/D contains the interest related to STDR and Ex. PW32/E relates to accrual of interest with respect to savings account.
6.3 As per the various interest accruals as reflected from record, interest income would be Rs. 28,314.51(Rs.11511.51+ Rs. 16803.00). Therefore, interest income is held as Rs. 28,314.51.
6.4 As regards item no. 4, 5 & 6, reference be made to the testimony of PW30 Sh. S.K. Gautam.
6.5 There are three different accounts with Oriental Bank of Commerce, Vikas Puri. As per PW30 Sh. S.K. Gautam, there was interest income of Rs. 551/- in account CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 12 of 88 no. 1873, of Rs. 5,740.58 from account no. 914 and of Rs. 532/- in account no. 1818.
This was stated by him in his examination-in-chief but in cross-examination with respect to interest of account no. 1873, he contradicted himself and claimed that such interest was Rs. 784/- for the period 09.03.1995 to 07.06.2005 and, therefore, interest qua serial no. 4 has to be held as Rs. 784/-. As regards interest income of account no. 914 (serial no. 6), PW30 Sh. Gautam also admitted in his cross-examination that there was further interest of Rs. 187/- which was credited in the account on 10.07.1995 and thus total interest income in account no. 914 becomes Rs. 5740.58 + 187.00 = Rs. 5,927.58.
6.6 As regards account no. 1818, prosecution's own witness claimed that such interest was Rs. 532/- and, therefore, such interest income is held as Rs. 532/-.
6.7 As regards interest income from account no. 613448 of Bank of India, Mandir Marg is concerned, prosecution has examined PW20 D.K. Jain and defence has also examined DW10 Sh. Romesh Kumar Bhatia. Saving bank account no. 613448 was in the name of accused Mamta Aggarwal and certified copy of statement of account of said account has been proved as Ex. PW30/B2 and according to witness, the total interest credited in said account from 04.08.2002 to 07.06.2005 was Rs. 153.00. However, this witness admitted in his cross-examination that such account was opened in 09.08.1989 and that there was no statement of account showing any entry prior to 04.08.2000 as the same was not available in the bank. He then confessed that he, therefore, could not make any comment whether interest was Rs. 854.17 from 09.08.1989 to 07.06.2005. I have also considered the testimony of DW 10 and documents proved by him. Since, prosecution itself has not come up with the desired detail and has failed to cite any reason as to why such details could not be produced before the court, I give benefit to defence of the amount in question which is, even otherwise, too tiny to have any impact either way.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 13 of 886.8 As regards item no. 9 & 10, reference be made to the testimony of PW28 Sh. Sushil Kumar Mehta. He deposed that interest credited in account no. 6707823 was Rs. 5,387.03 upto 07.06.2005 and in his cross-examination, he categorically admitted that such interest amount did not contain any interest for the period 05.01.1996 to 30.03.2003 and the interest for such period was Rs. 182.90 which was mentioned in Ex. PW28/DD and if both the aforesaid interest entries are aggregated, total interest income would be Rs. 5,569.93.
6.9 Similarly, qua item no. 10, PW28 Sh. Mehta claimed that total interest income upto 07.06.2005 for account no. 6723446 was Rs. 1,037.85 but supplemented that there was additional interest income of Rs. 1,650/- for the period 05.01.1996 to 30.03.1005 as mentioned in Ex. PW28/DC and thus total interest income for serial no. 10 would also come to Rs. 2,687.85.
6.10 As regards item mentioned at item no. 11, reference be made to testimony of PW40 Sh. Lal Sahib Mishra. I have seen statement of account as contained in Ex. PW40/B. During investigation also, relevant documents from Standard Chartered Bank were seized. These are contained in D-28 and the interest income is found to be Rs. 1,822.48. Such account was in the name of Sh. Nitin Aggarwal and it seems to me that during investigation, CBI did not consider two interest entries of 30.09.2002 and 30.09.2003. Be that as it may, in view of the statement placed on record and the deposition of PW40 Sh. Lal Sahib Mishra, total interest income is held as Rs. 1,882.48.
6.11 As regards item no. 12, as per CBI, there was total income of Rs. 76,000/- by way of interest on NSCs and KVPs as per the intimation made to his department by the accused. In this regard, prosecution is relying upon the sole testimony of PW1 Smt. Jamuna Subramanian. However, fact remains that even PW1 Jamuna Subramanian has not been able to throw desired light with respect to such CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 14 of 88 income. I have seen the details prepared by PW1 Smt. Jamuna during investigation. Such details have been proved by her as Ex. PW1/A. When she was cross-examined, she claimed that some of the entries were not correctly mentioned by claiming that there were some typographical errors. There are various purchases of NSCs which were intimated by the accused to his department. Defence has prepared a chart showing as to what was the actual income from such purchases of NSCs. It reads as under:-
INCOME FROM VARIOUS PURCHASES SUCH AS NSC's AND KVP'S Sr No DATE OF DATE OF AMOUNT DATE OF AMOUNT INCOME Page REMARK of INTIMATION INV OF INV MATURITY OF OF No. PW1/A MATURITY INTEREST PW1/B 5 31/10/1981 12/10/1981 4000 12/10/1987 8090 4090 29 12 04/11/1987 12/10/1987 8000 12/10/1993 15208 7208 61 Re-invested 27 26/10/1993 12/10/1993 15000 12/10/1999 30225 15225 89 vide S. No. 32
7 10/08/1982 02/08/1982 10000 02/08/1988 20150 10150 31 13 31/08/1988 02/08/1988 20000 02/08/1994 38020 18020 65 Re-invested 30 05/08/1994 02/08/1994 20000 02/08/2000 40300 20300 91 vide S. No. 33 Re-invested 9 11/09/1984 03/09/1984 6000 03/09/1990 12090 6090 42 vide S. No. 18 Re-invested 10 05/08/1985 02/08/1985 7000 02/08/1991 14105 7105 47 vide S. No. 22 Re-invested 11 23/09/1986 05/09/1986 6000 05/09/1992 12090 6090 51 vide S. No. 23 TOTAL 94278 6.12 I have carefully perused the aforesaid chart and it leaves no doubt in my mind that in fact, total accrual of income qua such NSCs was Rs. 94,278/- and not Rs. 76,000/-. Moreover, prosecution itself is to be blamed as it has not bothered to explain as to how it came to said magical figure of Rs. 76,000/-. Since explanation as contained in aforesaid chart prepared by defence seems quite logical, I accept the same.
6.13 PW3 Sh. R.C. Attri, who was functioning as Section Officer in the office of CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 15 of 88 Directorate General, Supply & Disposal has been examined to prove the salary details and as per Ex. PW3/C1 (part of D-63), salary details are as under:-
S. No. Name of Office Gross Salary & Deductions Net Salary Allowances 1 DGS&D, New Delhi Rs. 28,29,476/- Rs. 8,37,714/- Rs. 19,91,762/- 2 DGS&D, Kolkata Rs. 2,38,000/- Rs. 67,091/- Rs. 1,70,909/- 3 Ministry of Defence, New Delhi Rs. 6,25,072/- Rs. 1,93,275/- Rs. 4,31,797/-
Total Rs. 36,92,548/- Rs. 10,98,080/- Rs. 25,94,468/-
6.14 Defence, however, states that a sum of Rs. 20,158.30 has further not been taken into consideration. It has come up with following details:-
a Mistake in totaling of arrears etc for year 1988-89 at Pg 6, 1989-90 & 90-91 Pg 7 & 2000-01 Pg 9 of Ex. PW3/A. 763.00 b One month advance pay received in July, 77 700.00 c Difference in salary for March, 87 330.00 DA Arrears @ 4 % from July to Dec 86 and @ 8% from Jan 87 to Mar d 87 Rs.1536 and DA Arrears @ 5 % from July 87 to Nov 87 - Rs.825 2361.00 DA Arrears from Dec 78 to April 79 received in May 79 Rs. 132.30, DA Arrears from Sep 80 to Jan 81 received in Feb 81 Rs. 123, DA Arrears e received in April 86 Rs. 60 and DA Arrears from Jan 05 to Mar 05 Rs.
2094/ 2409.30 DA Arrears from Jan 93 to Apr 93 Rs.1260 and Tuition Fees Rs.280 f from Sep 92 to Mar 93 and Tuition Fees Rs.750 received in Aug 99 2290.00 g Transfer Grant & Packing charges paid in Aug'1993 and Dec'1995 8400.00 Interim Relief and DA Arrear from July to Sep 93 Rs.575 received in Oct 93, from July to sep 95 Rs. 1155 received in Oct 95 and tuition h Fees Rs.180 received Nov 94, tuition Fees Rs.195 for Mar.95 to June 95 2105.00 i Honorarium of Rs. 800 for delivering a lecturer at ALTTC, Ghaziabad 800.00 2 TOTAL 0,158.30 6.15 I have considered the aforesaid details given by defence and also evaluated the cross-examination of PW3 Sh. R.C. Attri. Undoubtedly, transfer grant CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 16 of 88 and package charges are given but then these are paid back as reimbursement only.
Reimbursement presupposes corresponding expenditure. Accused has not bothered to calculate expense even of single penny and rather wants the court to believe that he made income by saving i.e. by not incurring such expenditure. It has been claimed by defence that accused Ashok Aggarwal had alone gone on transfer and his family did not move out at all and, therefore, he saved every single penny of such grant. However, no prosecution witness was confronted on such score and no defence evidence was either led to substantiate such story. I, therefore, do not find any merit in such contention being not backed up by any evidence. As regards, payment of honorarium of Rs. 800/- for delivering lecture at Ghaziabad, though the amount seems to be inconsequential and paltry yet defence has not come up with any supporting document and, therefore, I exclude the entries mentioned at serial no. (g) and (i) above. Accordingly, I grant defence further benefit of Rs. 10,958.30 (20158.30 - 8,400.00 - 800.00).
6.16 Thus, total salary income of the accused comes to Rs. 25,94,468.00 + 10,958.30 = Rs. 26,05,426.30.
6.17 As regards item no. 18, as per CBI, Nitin Aggarwal (son of accused) was having total income of Rs. 3,42,728/- during the check period and to drive home such income, prosecution has relied upon the testimony of PW24 Sh. A.C. Parmar. I have carefully perused his examination. In his cross-examination, he himself claimed that there were some discrepancies in the original details sent by him to CBI and he had prepared revised details which were also sent by him to CBI. As per such revised details, Nitin Aggarwal had received net payment of Rs. 3,60,857/-. I have carefully seen the details appearing in Ex. PW24/DA.
6.18 Sh. Anil Kumar, learned defence counsel has claimed that as per revised CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 17 of 88 details, besides said amount of Rs. 3,60,857/-, Sh. Nitin Aggarwal was also paid several payments towards reimbursements of conveyance and lunch/dinner and these were to the tune of Rs. 1,02,629/-. According to Sh. Anil Kumar, all such charges are never actually incurred in full by any employee and any such employee tends to save at least half of the amount under such head and, therefore, further benefit of Rs. 51,000/- be passed onto Sh. Nitin Aggarwal. It is being asserted and conveyed that Nitin Aggarwal saved a sum of Rs. 51,000/- at least and such amount be reckoned as income. However, it only remains a tentative guesswork which is not supported by any sort of evidence. Moreover, Nitin Aggarwal has not been examined by the defence and, therefore, such contention does not hold any water. Thus, his total income is held as Rs. 3,60,857/-.
6.19 As regards item no. 23 & 24, unfortunately, prosecution has not examined any witness. Some of the original tax saving bonds were seized during the investigation. These are D-81 & D-82 and IO has made reference qua these bonds and these bonds have been exhibited as Ex. PW46/K2 & Ex. PW46/K3. However, these do not relate to the interest income with which we are concerned as of now.
6.20 Defence has examined DW26 Sh. Sanjay Sharma, Legal Manager, ICICI Bank. He has proved letter Ex. DW26/A. I have seen details contained therein and details mentioned in serial no. 15 to 17 pertain to item no. 23 and total interest income would come to Rs. 5460/- (Rs. 1870 + 1800 + 1790/-). Details mentioned in serial no. 11 to 14 of Ex. DW26/A pertain to item no. 24 and the interest received by the accused is found to be Rs.6381/- (Rs. 1985 + 2100+ 2100+ 196/-). It is accordingly held so.
6.21 Thus, in final analysis, total income would be as per following chart.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 18 of 88 S. Source of Income Amount as per Income as per Income Proved No. charges (in Rs.) defence (in Rs.) (in Rs.) 1 Interest from Account No. 15360 20456.00 28314.51 28314.51 in SBI, Vikas Puri. 2 Interest from Account No. 74509 5472.00 5472.00 5472.00 in PNB, Parliament Street. 3 Interest from Account No. 75306 3033.00 3033.87 3033.87 in Parliament Street. 4 Interest from Account No. 1873 529.00 784.00 784.00 in OBC, Vikas Puri. 5 Interest from Account No. 1818 459.00 532.00 532.00 in OBC, Vikas Puri. 6 Interest from Account No. 914 in 5474.58 5927.58 5927.58 OBC, Vikas Puri. 7 Interest from Account No. 153.00 854.17 854.17 613448 in Bank of India, Mandir Marg. 8 Interest from Account No. 199.00 199.00 199.00 0791010100106337 in UTI, Vikas Puri. 9 Interest of SB Account No. 5247.00 5569.93 5569.93 6707823. 10 Interest of SB Account No. 1038.00 2687.85 2687.85 6723446. 11 Interest from Account No. 1553.00 1822.48 1822.48 52510149312 in Standard Chartered Bank, Parliament Street. 12 Income of various purchases 76000.00 94278.00 94278.00 such as NSCs and KVPs as per intimation by the accused. 13 Income from Net Salary. 2579307.00 2614626.00 2605426.30 (Initial amount was Rs. 25,01,337.00. Further benefit of Rs. 77,970/- was given by the Court as per para-34 of order on charge). 14 Income from GPF final 167000.00 167000.00 167000.00 withdrawal. 15 Income from House Building 150000.00 150000.00 150000.00 Advance 16 Income from Car Advance. 72000.00 72000.00 72000.00 17 Income from withdrawal of PPF 70000.00 70000.00 70000.00 Account for purchase of car. 18 Income from Net Salary/stipend 342728.00 411857.00 360857.00 CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 19 of 88 of Nitin Aggarwal received from CMC Ltd. 19 Income from the salary received 39900.00 39900.00 39900.00 from Excellent Computer Centre by Nitin Aggarwal. 20 Income from gifts from Mrs. N.B. 6000.00 6000.00 6000.00 Goel, Sister-in-law. 21 Payment by father for purchase 10000.00 10000.00 10000.00 of NSC. 22 Income from the interest of IDBI 4400.00 4400.00 4400.00 Bonds No. 0000109060-61. 23 Income from the interest of ICICI 5400.00 5460.00 5460.00 Certificate no. 254745 to 48 @ Rs. 5000/- each. 24 Income from the interest of ICICI 5400.00 6381.00 6381.00 Certificate no. 37980-83 @ Rs. 5000 each. 25 Income by way of receiving 1581.00 1581 1581 interest due to late delivery of the car by the dealer as per para-33 of order on charge. 26 Benefit of gift of Rs. 6,000/- 6,000.00 6000 6000 given by Court as per para-34 of order on charge. Total 35,79,329.58 37,14680.39 36,54,480.69 EXPENDITURE 7.0 On the basis of the allegations appearing in the charge sheet, order on
charge and the defence contentions, the following chart would depict the description of expenditure:-
S. No. Description of Expenditure Amount Related witness Amount as per As per charges defence 1 Expenses towards education of Nitin 1,54,345/- PW36 1,54,345.00 Aggarwal for BE Electronics from DKTE, Kolhapur.
(Initial amount mentioned in charge-
sheet was Rs. 1,70,345.00 but court granted benefit of Rs. 16,000/- as per para-34 of order on charge).
2 Expenses towards education of Nikhil 79,440.00 PW14 78,440.00 Aggarwal in Salwan Public School, New CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 20 of 88 Delhi.
3 Expenses towards the studies of Nikhil 3,44,000.00 PW27 3,44,000.00 Aggarwal in Guru Govind Singh College of Engineering.
4 Expenditure towards fees paid to Mehta 49,841.00 PW23 48,841.00 Vidyalaya, Bhartiya Vidya Bhawan, New Delhi of Education of Nitin Aggarwal.
5 Payment towards bills of Tel. No. 25553899 36,111.00 PW21 6525.00 by Ashok Kr. Aggarwal.
6 Payment towards bills of Mobile No. 6,350.00 PW7 6350.00 9810808160 by Ashok Aggarwal.
7 Payment towards bills of Mobile No. 6,350.00 PW7 6350.00 9818314750 by Ashok Aggarwal.
8 1/3rd of gross salary as non-verifiable 11,49,779.00 4,50,000.00 expenditure towards household and other miscellaneous expenses.
7.1 Out of these eight heads, there is no dispute with respect to four heads mentioned at serial no.1, 3, 6 and 7. Even otherwise, these expenditures have been duly proved by concerned witnesses.
7.2 I have seen the testimony of PW36 Dr. A. I. Wasif who was posted as Vice Principal in the concerned institute and the fee details are contained in letter Ex.PW36/A (D29) and in Ex.PW36/B (D30).It is pertinent to mention that during course of the arguments on charge, accused was given benefit of Rs.16,000/- and the expenses this head was taken as Rs.1,54,345/- and even the defence has no qualm with respect to such expenses.
7.3 Similarly, there is no dispute regarding the expenses towards the studies of Nikhil Aggarwal to the tune of Rs.3,44,000/-. In this regard, testimony of PW27 Sh. Ashwini Seth be referred to. He also proved letter Ex.PW27/A of the then Principal Dr. Narender Singh which indicates that the total expenditure was Rs.3,44,000/-.
7.4 Similarly, testimony of PW27 also clearly explains expenses regarding CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 21 of 88 item no.6 and item no.7.
7.5 As regards item no.2, as per CBI, there was total expenditure of Rs. 79,440/- towards education of Nikhil Aggarwal in Salwan Public School, New Delhi. However, defence is justified in claiming that there was refund of Rs.1000/- towards refundable security and, therefore, such amount should be deducted as even otherwise PW14 Sh. Daya Ram has admitted that such amount was refunded by way of cheque and letter Ex.PW14/DA has also been proved in this regard. Thus the actual expenses come to Rs.78,440/-.
7.6 Regarding expenditure of Rs.49,841/- qua item no.4, according to defence, a sum of Rs.1000/- was refunded as refundable security. In this regard, my attention has been drawn towards testimony of PW23 Mehar Chand who also admitted so and, therefore, benefit of Rs.1000/- is passed on to accused.
7.7 As regards item no.5, as per CBI, there was total expenditure of Rs. 36,111/- towards the payment on bills of telephone no.25553899.
7.8 As per Sh. Anil Kumar, such expenses were only limited to Rs.6525/- as accused had got reimbursement from his office. I have seen the testimony of PW21 Sh. Naveen Chander and in his cross examination, he categorically claimed that the total amount of telephone bill up to 07.06.2005 was Rs.17,583/- out of which Rs. 11,058/- was reimbursed to accused Ashok Kumar Aggarwal up to 07.06.2005. Thus the actual expenses, in fact, comes to Rs.6525/-. Details of reimbursement are found to be in Ex.PW3/F which is prosecution's own document. Amount of reimbursement is not shown as part of income. Thus, in view of the categoric deposition made by PW21 Sh. Naveen Chander, the telephone expenses come to Rs.6525/-.
7.9 As regards item no.8, prosecution has taken 1/3rd of gross salary as CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 22 of 88 non-verifiable expenditure (towards household and other miscellaneous expenditure) and such amount has been accordingly calculated as Rs.11,49,779/-.
7.10 In such type of disproportionate assets matters, 1/3rd amount of the income is assumed to be spent on household expenditure. This is done in terms of case of Sajjan Singh Vs. State of Punjab AIR 1964SC 464 where it is observed that taking the most liberal view, it was not possible for any reasonable man to say that assets to the extent of Rs. 1, 20,000/- was anything but disproportionate to a net income of Rs. 1, 03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses.
7.11 It would be, however, important to mention that defence has strongly relied upon one circular of CBI itself. Such circular is of 29.11.2001 and has been proved as Ex.PW6/DB. As per such circular No. 21/40/99-PD(Pt.) dated 29.11.2001, instructions have been issued for standardizing procedure for investigation into the assessment of wealth possessed by public servant and it was prescribed that non- variable expenditure such as on kitchen, household, clothing etc should be taken as 1/3rd of gross salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification. It is also mentioned that electricity and water charges are also not to be computed separately when unverifiable expenditure is computed in the above mentioned manner. But the other expenses such as education, telephone, pleasure trip etc should be calculated as per the information or actual bills.
7.12 I have seen the various head of expenditure. In fact, there are only 8 heads of expenditure and under no head, CBI has come up with any expenditure related to kitchen, household, clothing etc. 7.13 Sh. Anil Kumar has contended that as per aforesaid circular, when CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 23 of 88 husband and spouse both have independent sources of income, income of spouse with higher salary would be the basis of computing unverifiable expenditure unless such spouse with higher income is investing or depositing the salary entirely. Accordingly to Sh. Anil Kumar, accused and his family members were purely vegetarian, non smokers, and teetotaler and their living was very simple in nature and, therefore, the expenditure on kitchen, household and clothing could not have been more than Rs.4.50 lacs. However, I do not find any merit in such contention. Keeping in mind the aforesaid judgment of Apex Court, non-verifiable expenditure would be 1/3 rd of the net salary. Though at the same time, while keeping pace with the changing times, CBI would have to come with some realistic formula where actual size of family, style of living, standard of living, the place where such public servant resides etc. are given due weightage while computing such living expenses. I would also like to add here that CBI was not justified in calculating the entire gross salary as base for finding out non-verifiable expenditure. Such expenses are to be deduced by taking 1/3 rd of the net salary not by taking 1/3rd of the gross salary. Since the net salary, as per prosecution's own case, comes to Rs. 26,05,426.30, non-verifiable expenditure would come to Rs.8,68,475.43.
7.14 Thus the expenditure stands proved as under:-
S. No. Description of Expenditure Amount Amount as per Amount proved As per charges defence 1 Expenses towards education of Nitin 154345.00 154345.00 154345.00 Aggarwal for BE Electronics from DKTE, Kolhapur.
2 Expenses towards education of Nikhil 79440.00 78440.00 78440.00 Aggarwal in Salwan Public School, New Delhi.
3 Expenses towards the studies of Nikhil 344000.00 344000.00 344000.00 Aggarwal in Guru Govind Singh College of Engineering.
4 Expenditure towards fees paid to 49841.00 48841.00 48841.00
Mehta Vidyalaya, New Delhi of
Education of Nitin Aggarwal.
5 Payment towards bills of Tel. No. 36111.00 6525.00 6525.00
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 24 of 88
25553899 by Ashok Kr. Aggarwal.
6 Payment towards bills of Mobile No. 6350.00 6350.00 6350.00
9810808160 by Ashok Aggarwal.
7 Payment towards bills of Mobile No. 6350.00 6350.00 6350.00
9818314750 by Ashok Aggarwal.
8 1/3rd of gross salary as non-verifiable 1149779.00 450000.00 868475.43
expenditure towards household and
other miscellaneous expenses.
Total 18,26,216 10,94,851 15,13,326.43
IMMOVABLE ASSETS
8.0 As far as immovable property is concerned, even as per the admitted
case of prosecution, the accused had acquired only one such asset i.e. Flat No. D10, Rose Cooperative Group Housing Society, Rohini, New Delhi. As per CBI, accused Ashok Aggarwal had made payment of Rs.3,34,870/- towards acquisition of such flat and such payment was made by him during the cheque period.
8.1 Defence does not dispute the acquisition but claims that the acquisition cost was Rs.3,19,110/- and in this regard reliance has been placed upon the testimony of PW1 Ms. Jamuna Subramanian as well as on the testimony of DW14 Sh. Laxmi Narayan.
8.2 I have seen testimony of PW1 Ms. Jamuna Subramanian on this score and in her cross examination, she categorically admitted that the acquisition price of such immovable property was Rs.3,34,110/-. DW14 Sh. Laxmi Narayan happens to be the President of said society and he brought the certified copies of the extracts of the relevant registers whereby a sum of Rs.15000/- was refunded to each of the original members of such society on account of excess payment. Accused Ashok Aggarwal also got refund by way of cheque No.704137 on 5.1.2002 and such cheque was duly encashed. The relevant entry has been proved as Ex.DW14/A. In view of aforesaid, such amount of Rs.15,000/- is liable to be deducted and, therefore, the total CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 25 of 88 acquisition cost comes to Rs.3,19,110/-.
ACQUISITION OF MOVABLE ASSETS 9.0 On the basis of averments appearing in charge sheet and the defence contentions, following chart has been prepared depicting acquisition of various movable assets and corresponding additional income as alleged by the defence:-
S. Assets as on 07.06.05 Amount as per Related Amount as per Corresponding No charges witness defence additional income, if any 1 Deposits in PPF account no. 10528, PO, 224850 PW28 203050 Parliament Street in the name of Ashok Aggarwal.
2 Balance in account no. 15360 in SBI 8371.75 PW32 8504.01 Vikas Puri in the name of A.K. Aggarwal.
3 Balance in account no. 74509 in PNB, 3716.00 PW5 3716.79 Parliament Street in the name of Mamta & Resham Aggarwal.
4 Balance in account no. 75306 in PNB, 3265.00 PW5 3265.16 Parliament Street in the name of Ashok Aggarwal.
5 Balance in account no. 6707823 in PO, 1008.70 PW28 1008.70 Parliament Street in the name of Ashok & Mamta Aggarwal.
6 Balance in account no. 6723446 in PO 2388.00 PW28 2388.00 Parliament Street in the name of Mamta & Resham Rani.
7 Balance in account no. 1873 in OBC, 4252.14 PW30 4252.14 Vikas Puri in the name of Nitin & Ashok Aggarwal.
8 Balance in account no. 1818 in OBC, 7503.45 PW30 7503.45 Vikas Puri in the name of Nikhil Aggarwal. 9 Balance in account no. 914 in OBC, Vikas 20178.83 PW30 20178.83 Puri in the name of Ashok Aggarwal.
10 Balance in account no. 613448 in Bank of 1066.29 PW20 1066.29 India, Mandir Marg in the name of Mamta Aggarwal.
11 Balance in account no. 9658.00 PW31 9658.00 0791010100106337 in UTI Bank, Vikas Puri in the name of Nikhil Aggarwal.
12 Balance in account no. 52510149312 in 15354.68 PW40 15354.68 Standard Chartered Bank, Parliament Street in the name of Nitin Aggarwal.
13 Investment in Term Deposit account no. 50000.00 PW28 50000.00 50037823 in PO, Parliament Street in the CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 26 of 88 name of Nitin & Ashok Aggarwal.
14 Investment in Term Deposit account no. 50000.00 PW28 50000.00 50038586 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
15 Investment in Term Deposit account no. 40000.00 PW28 40000.00 50039265 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
16 Investment in Term Deposit account no. 40000.00 PW28 40000.00 50040140 in PO, Parliament Street in the name of Nitin Aggarwal.
17 Investment in Term Deposit account no. 30000.00 PW28 30000.00 50037343 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
18 STDR (Term Deposit) No. 15000.00 PW32 15000.00 01292/015360/03, SBI, Vikas Puri, ND renewed on 05.07.03 with new no.
925775.
19 Investment in CTDR no. 358552/ 4238/95 16202.00 PW33 15000.00 1202.00 dated 23.08.95 in the name of Mamta Aggarwal.
20 Investment in CTDR no. 358553/ 4239/95 16202.00 PW33 15000.00 1202.00 dated 23.08.95 in the name of Mamta Aggarwal.
21 Investment in Fixed Deposit no. 36000.00 PW18 36000.00 04520384 dated 17.07.03 in the name of Mamta Aggarwal with NTPC.
22 Investment in Fixed Deposit no. 30000.00 PW18 30000.00 04520223 dated 22.04.03 in the name of Nitin Aggarwal with NTPC.
23 Investment in the form of 4 Fixed 95000.00 PW12 95000.00 17270.00 Deposits in the name of Ashok Kumar & his family members with Jindal Street & Power Ltd.
24 Investment in the form of 7 Fixed Deposit 153000.00 PW15 153000.00 33314.00 with HDFC.
25 Investment toward FDR No. 46205 with 30000.00 PW29 30000.00 3645.00 J.K. Paper.
26 Investment toward 4 FDRs with Ballarpur 75000.00 PW16 75000.00 23109.00 Industries.
27 Investment toward 9 FDRs with Triveni 181000.00 PW11 181000.00 15818.00 Engg. & Inds. Ltd. Noida, UP.
28 Investment toward 5 FDRs with Escort 80000.00 PW17/PW41 80000.00 53.00 Fin. Ltd.
(As per charge-sheet, total amount was Rs. 81,000/-. Court had given benefit of Rs. 1,000/- as per para-33 of order on charge).
29 Investment toward DBD No. 173328. 10000.00 PW35 10000.00 2022.00 CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 27 of 88 30 Investment toward DBD No. 173329. 12000.00 PW35 12000.00 2426.00 31 Investment toward DBD No. 16929. 15000.00 PW35 15000.00 787.00 32 Investment toward 6 FDR with Escorts 110000.00 PW17/ PW41/ 110000.00 6300.00 Ltd. Corporation. DW19 33 Investment toward CDR Nos. 127555 at 14248.00 PW30 7500.00 6748.00 OBC, Janak Puri. 34 Investment toward CDR Nos. 128392 at 15500.00 PW30 15500.00 OBC, Janak Puri. 35 Investment toward CDR Nos. 128392 at 15000.00 PW30 15000.00 OBC, Janak Puri. 36 Investment toward CDR Nos. 766108 at 10000.00 PW30 10000.00 OBC, Janak Puri. 37 Investment toward CDR Nos. 766136 at 20000.00 PW30 20000.00 OBC, Janak Puri. 38 Investment toward CDR Nos. 766277 at 28000.00 PW30 28000.00 OBC, Janak Puri. 39 Investment toward CDR No. 766279 at 15000.00 PW30 15000.00 OBC, Janakpuri. 40 Investment toward CDR No. 766278 at 12000.00 PW30 12000.00 OBC, Janakpuri. 41 Investment toward CDR No. 766497 at 11433.00 PW30 5000.00 6433.00 OBC, Janakpuri. 42 Investment toward CDR No. 766498 at 27905.00 PW30 15000.00 12905.00 OBC, Janakpuri. 43 Investment toward CDR No. 766975 at 20000.00 PW30 15000.00 6386.00 OBC, Janakpuri. 44 Investment toward CDR No. 377030 at 21386.00 PW30 15000.00 6386.00 OBC, Janakpuri. 45 Investment toward CDR No. 377524 at 4685.00 PW30 2500.00 2185.00 OBC, Janakpuri. 46 Investment toward CDR No. 766784 at 12884.00 PW30 7000.00 5884.00 OBC, Janakpuri. 47 Investment toward CDR No. 584319 at 30000.00 PW30 30000.00 OBC, Janakpuri. 48 Investment toward DBD No. 9215777 in 9144.00 PW20 5000.00 4144.00 Bank of India, Mandir Marg. 49 Investment toward DBD No. 9215778 in 9270.00 PW20 5000.00 4270.00 Bank of India, Mandir Marg. 50 Investment toward DBD No. 3389575 in 10000.00 PW20 10000.00 Bank of India, Mandir Marg. 51 Fixed Deposit no. 427/95 in the name of 15000.00 PW39 15000.00 Mamta Aggarwal from IOB, Preet Vihar Branch, New Delhi. 52 Fixed Deposit No. 518/95 in the name of 15000.00 PW39 15000.00 Mamta Aggarwal from IOB, Preet Vihar CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 28 of 88 Branch, New Delhi. 53 Investment in KVP Regn. No. 6957 dated 10000.00 PW26 10000.00 27.09.00 in the name of Mamta & Kanka Aggarwal from Dilshad Garden Sub Post Office. 54 Investment in KVP Regn. No. 10205 10000.00 PW26 10000.00 dated 28.02.04 in the name of Mamta & Kanka Aggarwal from Dilshad Garden Post office. 55 Investment toward KVPs bearing 36 650000.00 PW13 650000 regn. Nos. in PO Tilak Nagar. 56 Investment toward KVPs bearing 8 Regn. 140000.00 PW8 140000.00 Nos. in PO Janak Puri. 57 Investment toward KVPs bearing 49 1035000.00 PW9/PW42 1035000 Regn. Nos. in GPO, New Delhi. 58 55 KVP purchased from Sansad Marg 830000.00 PW10 850000.00 PO, New Delhi. 59 Investment toward 84 KVPs in Sansad 1090000.00 PW10 1070000.00 Marg, PO. 60 Investment towards KVPs in GPO, 170000.00 PW9/PW42 85000.00 85000.00 Delhi. 61 Investment toward NSCs bearing 4 100000.00 PW13 100000.00 Regn. Nos. in PO Tilak Nagar. 62 Investment toward NSCs bearing 2 Regn. 20000.00 PW8 20000.00 Nos. in PO Janak Puri. 63 Investment toward NSCs (3) 55000.00 PW9/PW42 55000.00 64 7 NSC purchased from Sansad Marg, 100000.00 PW10 80000.00 PO, New Delhi. 65 Investment toward IVP bearing 1 Regn. 10000.00 PW13 10000.00 No. in PO Tilak Nagar. 66 Investment toward IVP from GPO, New 15000.00 PW9/PW42 15000.00 Delhi. (Rs. 10,000 + Rs.5000) 67 1 IVP purchased from Parliament St. PO, 10000.00 PW10 10000.00 New Delhi. 68 Investment toward Vikas Cash Certificate 30422.00 PW34 15000.00 15422.00 No. 1321 in the name of Mamta Aggarwal. 69 IDBI Certificates no. 2240769235 to 40 @ 30,000.00 30000.00 Rs. 5000 each. 70 IDBI Certificates no. 0161174186-88 @ 15000.00 00.00 Rs. 5000 each. 71 ICICI Certificates no. 177514-16 @ Rs. 15000.00 DW26 15000.00 2109.00 5000 each. 72 ICICI Certificates no. 3633322-27 @ Rs. 30000.00 DW26 30000.00 1834.00 5000 each. 73 Investment toward 5 Saving Bonds in 164,000.00 PW19 164000.00 7610.59 CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 29 of 88 PNB, Sansad Marg, New Delhi. 74 UTI Units quantity 3500, 1901, 2500 in 79010.00 PW45 70000.00 56148.75 the name of Mrs. Mamta Aggarwal, Nitin Aggarwal & Ashok Aggarwal; new these units have been converted into ARS bonds on 31.03.04 (Total investment is Rs. 35,000+19010+ 25000) 75 Payment for purchase of Maruti Car 220629 219048.00 DL8CE-0412 76 Cost of scooter Bajaj Chetak Regn. no. 8267.00 DW27 267.00 DIF-9624 77 Cost of scooter Bajaj Chetak regn. no. 22000.00 DW27 21070.00 Dl4SL 3182. 78 Cash found during house search 77650 PW25/PW46 77650.00 79 Cost of household articles found during 243600 PW25/PW46 200750.00 search as per inventory/ observation memo. 9.1 Aforesaid chart would evidently reflect that the acquisition of various
movable assets is not disputed by defence. I, therefore, need not discuss such entries. However, there are various corresponding additional income related to various investments made with post offices which, indeed, require detailed deliberation and, therefore, such alleged additional income would be dealt with separately later. I would be, therefore, confining myself to the items qua which there is a dispute and qualm.
9.2 As regards item no.1, reference be made to testimony of PW28 Sh. Sushil Kumar Mehta. He is from the concerned post office of Parliament Street where accused Ashok Aggarwal was holding his PPF account. As per Ex.PW28/F, which is passbook of PPF account of accused Ashok Aggarwal, the total amount lying deposited as on 29.4.2005 was Rs.4,96,185. During investigation, one chart Ex.PW28/G was prepared which has been proved as well. This chart gives the clear picture with respect to the various deposits made by accused from time to time. These deposits are from 30.3.1988 to 7.6.2005 and the total of such deposits is found to be Rs.2,24,850/-. During the course of arguments, no infirmity towards such head was pointed out and, therefore, such deposit/acquisition of asset is held as Rs.2,24,850/-.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 30 of 889.3 As regards item No.2, though accused(s) want expenditure amount to be enhanced to their detriment, I consider it appropriate to restrict to the figure as mentioned in the charge-sheet.
9.4 As regards item no.19 and 20, it would be important to see the testimony of PW33 Praveen Diwan, official from Oriental Bank of Commerce. He has proved the details regarding cumulative deposits. There are two different deposits. Relevant documents are contained in D36 which have been proved as Ex.PW33/B to PW33/E. 9.5 A careful perusal of related documents would show that these CDRs were not in the exclusive name of Mamta Aggarwal. These are found to be in the joint names of Mamta Aggarwal and Pawan Kumar Gupta. Prosecution has not explained as to who is this Pawan Kumar Gupta? Prosecution has not explained whether any contribution towards such investment had come from Sh. Pawan Kumar Gupta or not. During the course of the arguments, pursuant to the query put by the court, it was apprised by the defence that Pawan Kumar Gupta happens to be the real brother of Mamta Aggarwal who is having his own business of spare parts in Kashmiri Gate. It would be also important to mention that said Pawan Gupta has also entered into witness box as DW21. Defence did not try to extract anything in this regard from him during his examination to indicate that any such part of the invested amount had come from his independent resources. However, prosecution has to stand on its own legs and cannot drive home any advantage out of the weaknesses of defence. Since CDR is in joint names, to be fair to defence, let me assume that asset is shared equally by them and corresponding income, if any is also shared equally by such joint holders.
9.6 Qua these two CDRs in question i.e. CDR No.358552 and 358553, according to defence, the original invested amount was Rs.15,000/- each and after maturity, entire maturity amount of Rs.16,202/- was reinvested. PW33 Praveen Diwan CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 31 of 88 admitted that the investment was from the earlier matured amount of previous CDR. Though he could not satisfactorily apprise the court that the initial invested amount was Rs. 15,000/- each yet keeping in mind the facts placed on record and the CDR ledger sheets, I am inclined to accept that the actual investment was of Rs. 15,000/- each and corresponding benefit of Rs.1202/- has be shifted to the additional income. Dividing same in half, acquisition cost would be Rs. 7500/- each and interest would be Rs. 601/- each.
9.7 As far as item no.23 is concerned, the acquisition of assets is not disputed. Reference be made to the testimony of PW12 Sh. Ram Avtar Goyal and he has also proved the original FDRs as Ex. PW12/C, PW12/D, PW12/E and PW12/F. These are contained in D42.
9.8 However, defence has contended that the rate of interest is mentioned in such deposit receipts and the investigating agency has not considered such interest aspect at all. Reference be also made to letter Ex. PW12/B written by Sh. T.K. Sadhu, Company Secretary to CBI whereby besides the investment details, CBI was also apprised about the interest paid/accrued and if such interest part is calculated then it would come to Rs. 17,660/- (390+5397+5397+6476). Reference be also made to the cross examination of PW12 Ram Avtar Goyal who categorically admitted that the interest was paid through cheques dated 22.9.2003. This means that even the interest amount was paid to Sh. Ashok Aggarwal during the check period itself. Thus accused is entitled to claim a sum of Rs.17,660/- as additional income.
9.9 As regards item no.24, the investment amount of Rs. 1,53,000/- is not disputed but defence only wants that its corresponding interest income of Rs. 33,314/- be considered. In this regard, I have seen the testimony of PW15 Alok Kumar Payal who has, in no uncertain terms, deposed that total interest of Rs. 33,314/- was paid CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 32 of 88 with respect to such FDRs up to 7.6.2005. Benefit of such interest income is passed on to the accused as admittedly such interest income was not considered by the investigating agency and is not reflected in the corresponding chart of income. Even the Ld. Prosecutor has admitted so.
9.10 As regards item no.25, situation remains the same and careful perusal of testimony of PW29 Mukesh Kumar Aggarwal would reflect that holder got total interest of Rs. 3,645/- (1332+2313). As regards item no. 26, again investment of Rs. 75,000/- is not disputed but defence has contended that the interest income of Rs.23,109/- regarding such four FDRs has not been considered. I have seen testimony of PW16 Ms. Archana Pandit and the documents proved by her and she has, in her examination- in-chief itself, deposed that the sum of Rs.23,109/- was paid to the holder towards all such FDRs. Three FDRs Ex.PW16/B2, PW16/B3 and PW16/B4 clearly indicate that the holder was to get interest on maturity. Thus accused is found entitled to the total additional income by way of interest as Rs.23,109/-.
9.11 As regards item no. 27, there are nine FDRs issued by M/s Triveni Engineering & Industries Ltd. All such nine FDRs have been proved as Ex. PW11/C to K. Out of these nine FDRs, six FDRs i.e. Ex. PW11/C, PW11/D, PW11/E, PW11/H, PW11/J and PW11/K are non-cumulative. Amount of deposit is Rs.20,000/-, 20,000/- 35,000/-, 15,000/-, 16,000/- and 15,000/- and the matured amount is also Rs.20,000/-, 20,000/-, 35,000/-, 15,000/-, 16,000/- and 15,000/- and the interest amount was 9.75% per annum. As regards these six FDRs, the interest was regularly paid to the account holder. PW11 Vinay Grover has deposed that as per computer generated print outs, the interest accrued on all such six FDRs was paid to the respective holders. Such computer generated print outs are also part of D48 and have been proved as Ex. PW11/U, PW11/V and PW11/W and the total would come to Rs.15,860/- (3025+3025+6132+825+1359+1425-258). I would, however, add that though the check period is up to 07.06.2005, yet the benefit has still been passed on to the CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 33 of 88 defence with respect to the entire interest accrued and paid up to 30.6.2005 as very insignificant part of interest amount is found spread beyond the check period.
9.12 As regards item no.28, there is no dispute regarding the investment amount of Rs.80,000/-. Instead of benefit of additional income of Rs.1053/-, defence has restricted its claim to Rs. 53 as benefit of Rs. 1000/- has already been given to defence at the time of framing of charge. Such benefit of additional income of Rs. 53 is accordingly passed on to the accused particularly in view of the testimony of PW17 Sh. Kishori Prasad.
9.13 As regards item no. 29, 30 and 31, even the prosecution does not dispute that there was accrual of interest which has not been considered by investigating agency during the investigation. I have seen testimony of PW35 Sh. J.K. Malik and in his cross examination, he has categorically admitted that there was payment of interest of Rs. 2022/-, Rs. 2426/- and Rs. 787 respectively. These payments were admittedly made during the check period and, therefore, the corresponding benefit of additional income is given to accused.
9.14 As regards item no. 32, there is no dispute regarding the acquisition cost of asset. There are six FDRs with M/s Escorts Ltd. and the total investment cost is Rs. 1,10,000/-. However, according to defence, interest accrued and paid during the check period has not been considered by the investigating agency. I have seen the testimony of PW41 Sh. P.C. Gupta who was constituted attorney of M/s Escorts Ltd. Faridabad during the relevant period. He did admit that the interest was paid with respect to such FDRs. These FDRs are Ex. PW41/B1 to B6. As far as FDR Ex. PW41/B5 of Rs. 20,000/- is concerned, the maturity amount was also Rs. 20,000/- but the holder was to get interest @ 10.50 per cent per annum on quarterly basis for three years.
9.15 DW9 Insp. Rajesh Singh Solanki (Presenting Officer in Department CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 34 of 88 proceedings) had sent one letter to M/s Escorts. Such letter has been duly proved by Insp. Solanki himself and I have seen such letter as well as related annexure whereby it was asked from M/s Escorts whether the total interest of Rs. 6,300/- i.e. 12 quarter installments of Rs. 525/- each was paid to the holder by crediting the interest in his account of PNB or not and as per the corresponding reply of M/s Escorts, as contained in letter dated 25.02.2013, it was confirmed by M/s Escorts that the details given in such annexure were correct which directly demonstrates that there was interest accrual of Rs. 6,300/- against said FDR Ex. PW41/B5. During course of the arguments, learned PP also admitted that such interest income has not been considered and, therefore, the corresponding benefit is given to accused.
9.16 As regards item no. 33, reference be made to testimony of PW30 Sh. S.K. Gautam. According to CBI, invested amount was Rs. 14,248/- but according to defence, investment was of Rs. 7,500/- and the maturity amount was Rs. 14,248/-. I do not find such defence contention misplaced. I have seen Ex. PW30/DA and item no.1 mentioned therein clearly traces the backward journey of CDR No.12755. It clearly indicates that initially such CDR was obtained in the name of Mamta Aggarwal and the invested amount was Rs.7500/-. It was issued on 16.2.95 and thereafter it was renewed from time to time on 4.4.95, 19.5.95, 29.5.97, 29.8.99 and then on 29.8.02. Thus the invested amount of Rs.7500/- is held as acquisition cost of asset and the balance amount has to be transposed as corresponding additional interest income which has not been considered by the prosecution.
9.17 As regards item no. 34 to 40, 47, there is no dispute even from the side of defence and, therefore, there is no requirement to refer to the testimony of concerned official i.e. PW30 S.K. Gautam and the documents proved by him.
9.18 Item no.41 to 46 also pertain to the same branch of OBC and defence has disputed the acquisition cost and has come up with the same argument that no CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 35 of 88 benefit of interest has been given and no efforts were made to track previous details.
9.19 I have carefully gone through the entire backward journey of all such CDRs as reflected in Ex. PW30/DA. There is no dispute regarding the authenticity of this document. Such information was obtained by accused Ashok Aggarwal through RTI and when such letter dated 20.7.2011 i.e. Ex. PW30/D was shown to PW30 S.K. Gautam, he admitted the contents thereof. Interestingly, such information was prepared by Mr. Gautam and in his statement u/s 161 Cr.P.C. also, he did refer to such accruals but despite that no benefit was given by CBI. Thus I am inclined to believe the defence contention and the investment amount of item no. 41 to 46 is held as Rs.5,000/-, 15,000/-, 15,000/-, 15,000/-, 2500/- and 7000/- respectively and the remainder of maturity amount, being interest, stands transposed as additional income.
9.20 In item no.43, Rs.1386/- is also to be added further as additional income, and therefore, in item no.43 the additional interest income would be Rs.6386/-.
9.21 I would also like to mention about the accrual of additional income from CDR related to OBC, Vikas Puri. During investigation various such CDRs were collected. Ex. PW30/E indicates that in all, 15 CDRs were collected. Prosecution has taken in account of such 15 CDRs also.
9.22 However, when PW30 was confronted with Ex. PW30/DA, it was found containing details with respect to four other CDRs also which did not perhaps surface during the investigation. Details of these CDRs are found mentioned at serial no. 8 to 11 of Ex. PW30/DA. The investment was made during the check period and all such four CDRs also got matured during the check period and the total interest income from such CDRs is of Rs. 59,129/- (Rs. 7967 + Rs. 9645 + Rs. 20331 + Rs. 21186). It seems that prosecution has not considered such additional interest income. Therefore, CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 36 of 88 accused is granted additional interest income of Rs. 59,129/-. This amount will be merged in item no. 46 in corresponding head of additional income.
9.23 Item no. 48 & 49 relates to investment made in DBD with Bank of India, Mandir Marg Branch. I have seen the testimony of PW20 Sh. Dinesh Kumar Jain and he has categorically admitted that invested amount reflected as Rs. 9,144/- and Rs. 9,270/- were renewed amount. He was specifically suggested that the initial invested amount of such DBD was Rs. 5,000/- and the dates of investment were 18.01.1993 and 08.10.1992 respectively but he pleaded his ignorance. In order to prove and substantiate such fact, defence has examined DW10 Sh. Romesh Kr. Bhatia and DW11 Sh. Gulshan Kumar. I have seen letter Ex. DW11/A dated 19.03.2009 which has been even admitted by the prosecution witness in cross-examination and as per such letter, it becomes apparent that the initial invested amount was Rs. 5,000/- each. Rest of the amount received on maturity is, therefore, to be treated as additional income.
9.24 As regards item no. 68, as per CBI, accused had made investment of Rs. 30,422/- in the shape of VCC i.e. Vikas Cash Certificate with Kashmiri Gate branch of Syndicate Bank. Testimony of PW34 Sh. K.K. Vashist is important for the purposes of proving the acquisition of such asset. Sh. Anil Kumar has contended that again the investigating agency has taken the maturity amount as the investment whereas fact remains that the original investment was of Rs.15,000/- which was way back in 1992.
9.25 I have seen the testimony of PW34 Sh. K.K. Vashist. VCC has been proved as Ex. PW34/B (D32). In his cross examination, Sh. K.K. Vashist admitted letter Ex. PW34/DA. Such letter contains the entire details regarding the journey of such VCC right from original issuance. It was issued originally on 30.01.95 for a sum of Rs. 15,000/- in the name of Mrs. Mamta and Mr. Pawan Kumar Gupta and was renewed from time to time and it was lastly renewed on 31.7.2004 with the principal amount of Rs. 41,277/-. It was to mature on 31.10.2007. This happens to be an admitted CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 37 of 88 document of Syndicate Bank and even the prosecution witness has admitted the correctness of contents recorded therein and he has also identified the signatures of the Sr. Manager on such letter, it becomes amply clear that the actual invested amount against said VCC was Rs. 15,000/- as on 30.1.1995 and admittedly the invested amount had become Rs. 41,277/- at least as on 31.07.2004. Thus the benefit of accrual of interest, which has not been given to the accused by the investigating agency, is proportionately passed on to accused. Again, since asset is in joint names, asset is divided in half and interest accrued is also divided in half.
9.26 As regards item no. 69 & 70, according to CBI, accused had made investment in IDBI and the total investment was of Rs. 45,000/-. Interestingly, no witness from IDBI has graced the witness box. Fact, however, remains that defence has admitted one such investment of Rs. 30,000/- as mentioned in item no. 69. Relevant certificate has been proved by IO as Ex PW46/K1 (D-80). Though no witness has appeared on behalf of IDBI yet in view of the admission of such investment, acquisition cost of asset worth Rs. 30,000/- towards IDBI as mentioned in item no. 69 is held proved. However, as far as investment mentioned against item no. 70 is concerned, there is no document whatsoever and, therefore, such entry does not stand proved.
9.27 As regards item no. 71 & 72, defence does not dispute the acquisition cost at all. This is despite the fact that prosecution has not taken any pain to examine the concerned official from ICICI bank. Certificates are on record but these have been proved by none other than IO as Ex. PW46/K2 (D-81) & Ex. PW46/K3 (D-82). Investment is found to be within the check period.
9.28 However, Sh. Anil Kumar, learned defence counsel has contended that corresponding interest income has not been taken into consideration and in order to prove such additional income, he has made request that testimony of DW26 Sh. Sanjay CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 38 of 88 Sharma be referred to. I have already considered his testimony when the income aspect was being considered.
9.29 Entries at serial no. 18 to 20 in Ex. DW26/A relate to certificate Ex. PW46/K2 (D-81) and entries at serial no. 21 to 23 of Ex. DW26/A relate to certificate Ex. PW46/K3 (D-82) and interest income would be Rs. 2,109 & Rs. 1,834/- respectively. Only that portion of interest has been considered which falls within the check period. It would be also important to mention that as per the defence, there were six different investments in ICICI. Prosecution took into account two such investments under the head of income and two such investments under the head of acquisition of assets. These I have already considered. However, according to defence, there are two more investments which have not been considered by CBI anywhere. These certificates did mature during the check period itself according to defence, and, therefore, corresponding benefit of income earned by way of interest should have also been considered. Reliance is again placed on the testimony of DW26 Sh. Sanjay Sharma and such certificates are found mentioned at serial no. 1 & 2 of Ex. DW26/A and the total interest income is found to be Rs. 7,403/- (Rs. 3,776/- and Rs. 3,627/- respectively). These are clearly borne out from the chart annexed with Ex. DW26/A. Thus against item no. 71, interest income is held as Rs. 2109/- and against item no. 72, interest income is found as Rs. 9237/-(Rs. 1834+ Rs. 7403). Therefore, I grant benefit of such additional income to defence.
9.30 As regards item no.73, defence does not dispute that there was total investment of Rs. 1,64,000/- in five saving bonds in PNB. These bonds have been proved as Ex. PW19/B1 to PW19/B5. These are contained in D58. Three bonds are found to be in the joint names of both the accused. One bond in the joint name of Mamta Aggarwal and Nitin Aggarwal and one last bond is in the name of Mamta Aggarwal and Nikhil Aggarwal. All such bonds are non-cumulative bonds and as per bonds Ex. PW19/B1, B2 and B3, the interest was payable at the rate of 8% per annum CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 39 of 88 on half-yearly basis and with respect to two remaining bonds Ex. PW19/B4 and PW19/B5, the interest was payable at the rate of 6.5% per annum on half-yearly basis. The investments are made during the check period and are of 2004 and PW19 Sh. R. K. Kapoor has admitted in his cross examination that though the half-yearly interest was payable yet he pleaded ignorance about any such remittances. He did admit that generally interest used to be paid by cheques. He was confronted with one letter Mark DY-1 which contains the details regarding the payment of interest but he pleaded his ignorance about such letter.
9.31 In order to prove such additional income, the defence has examined DW8 Sh. S.P. Mamgain who did admit that the information contained in Mark DY-1 (17 pages) was correct and such letter was accordingly exhibited as Ex.DW8/D. He claimed that information contained therein had been furnished on the basis of bank record and was correct.
9.32 According to defence, the interest was received by the accused by way of cheques and such cheques were deposited in the respective bank accounts also. Even if a bare calculation is done on the total invested amount of Rs.76,000/-, invested in August, 2004, the accused would have at least received one half yearly interest at the rate of 8% per annum which comes to Rs.3040/-. With respect to remaining two investments totaling Rs. 88,000/-, the accused would have earned 6.5% of interest for full one year which would have come to Rs.5,720/-. The total comes to Rs. 8,760/-. However, accused has restricted his claim to Rs.7,610.59 and I do not find any impediment in awarding such additional interest to him which even otherwise is found reflected in statement of account of PNB.
9.33 As regards item no. 74, according to CBI, accused had made total investment of Rs. 79,010/- in UTI bonds. According to defence, the total investment was of Rs. 70,000/- and not of Rs. 79,010/-. Reference in this regard be made to CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 40 of 88 testimony of PW45 Pradeep Bhatia. He has proved certificates as Ex. PW45/B1, B2 & B3. According to him, these were initially Units which were acquired in 1998 and were converted into Bonds in 2004. Following table would depict the clear picture:-
Sl. Name of Holder Year of Acquisition of units Worth of Units No. 1 Mamta Aggarwal 1998 (converted into bonds in 2004) Rs. 35,000/- 2 Nitin Aggarwal 1998 (converted into bonds in 2004) Rs. 19,010/- 3 Ashok Aggarwal 1998 (converted into bonds in 2004) Rs. 25,000/-
9.34 I have seen conversion certificate regarding the investment in the name of Nitin Aggarwal and it becomes apparent that initially, there were 10000 units and at the time foreclosure, the total foreclosure value was Rs. 19017.80 and out of these Units, Bond Certificate of Rs. 19,000/- was issued. Thus, the initial investment in the Unit was of Rs. 10,000/-. Therefore, the total acquisition cost is found to be Rs. 70,000/-
(35000+10000+25000) 9.35 As per cross-examination of PW45 Sh. Pradeep Bhatia, the other two certificates in the name of Ashok Aggarwal and Mamta Aggarwal of Rs. 25,000/- and Rs. 35,000/- respectively were non-cumulative and interest rate was 13.25 per cent per annum from 15.12.1998 upto 31.03.2004. Thereafter, the interest rate was 6.60 per cent per annum on all the three Bonds. According to defence, interest for the initial period upto 31.03.2004 @ 13.25 per cent and thereafter @ 6.60 per cent has not been counted anywhere. It has also been argued that the interest earned on certificates in the name of Ashok Aggarwal and Mamta Aggarwal was deposited by cheques in saving bank account no. 914 of OBC, Vikas Puri and stands duly reflected in statement of account. Such statement of account has been proved by PW30 Sh. S.K. Gautam as Ex. PW30/C2 & C3. I have also seen such statements. In fact such statement of account is from 05.08.1993 onwards. There are various deposit entries by way of cheques reflected in such exhaustive statement and it seems that during investigation, CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 41 of 88 no pain was taken by CBI to jot down all such details. These statements were not scrutinized minutely and no effort was made to ascertain the source of the deposit. However, it is admitted by PW45 Sh. Bhatia that the interest was paid at the said rate of 13.25 per cent per annum and thereafter also the interest was paid @ 6.6 per cent per annum. The later part of the interest @ 6.6 per cent per annum comes to Rs. 5,231/- with respect to all the three certificates and on rough estimation, the interest income @ 13.25 per cent for the preceding period from 1998 till 31.03.2004 would be approximately Rs. 42,065/-. The total thereof would come to Rs. 47,296/-. Accused has demanded additional interest income as Rs. 47,318.35. Keeping in mind the insignificant difference, such benefit is passed onto accused.
9.36 As regards item no. 75, since the benefit of Rs. 1581/- has already been given to the accused, the acquisition cost is held as it is i.e. Rs. 2,20,629/-.
9.37 As regards item no.76, the asset is admitted. However, accused wants to assert that he had sold off the previous scooter for Rs.8,000/- and such consideration amount of Rs. 8,000/- has not been considered. I have seen Ex. PW25/A (D4) which is search-cum-observation memo. Though it has been mentioned therein that the accused had acquired a new scooter and had exchanged his old scooter, yet fact remains that there is no document showing that he had received Rs. 8,000/- as sale consideration. He did not intimate his department regarding sale of his previous scooter or regarding purchase of a new scooter. He has not called anyone from transport authority either in order to support his such contention and since the initial asset cost is not disputed, the acquisition cost is held as Rs. 8,267/-.
9.38 As regards item no. 77, according to defence, the acquisition cost of new scooter is Rs. 21,070/- and not Rs. 22,000/-. Prosecution has not placed on record any document but accused has proved the receipt as Ex. DW27/E. The bill has also been proved as Ex. DW27/D and therefore, acquisition cost is held as Rs. 21,070/-.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 42 of 889.39 As regards item no. 79, it has been argued that these should not have been counted at all as expenses towards non-verifiable items have already been taken. I do not find any merit in such contention. Here, we are concerned with assets and not expenditure. These two things are totally different.
9.40 Sh. Anil Kumar has come up with a very unique argument on such issue. He contends that since non-verifiable expenditure to the tune of one-third of salary has already been counted, no assets, acquired on account of household and clothing etc., should be considered as it would amount to double jeopardy. On careful appreciation, such contention is found to be nothing more than specious. Check period is spanning in 28 years and such non-verifiable expenditure is towards the expenses incurred all these years on running house-hold and clothing etc. One must have spent a lot on food and clothing all these years and there cannot be any doubt that these expenses were justifiably presumed as one-third of salary. Now, when the house was searched, the inventory of house-hold articles was, naturally, prepared. It relates to assets, of whatever nature, which were found available in the house. These assets are not be confused with non-verifiable expenditure. These two are as distinct as chalk and cheese.
9.41 Further, as per defence, some of the cost of household articles found during search (D - 4) were shown very high viz-a-viz the actual cost. The details of such items, allegedly valued excessively, are given below:-
S.No Details Amount actual Difference
taken by amount as
CBI per defence
1 One wooden double bed with mattress 11500 5000 6500
2 One TV (BPL) 21" 8000 6000 2000
3 One voltage Stabilizer 2000 0 2000
4 One Computer(Assembled) 35000 18000 17000
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 43 of 88
5 One wooden computer table 2500 1000 1500
6 One desert cooler 4000 2500 1500
7 One Iron folding cot 550 150 400
8 One mini Geyser 550 400 150
9 One burner Gas stove - Bright made 2800 1500 1300
10 Utensils for house use 2500 1500 1000
11 One dining table along with Six chairs 3500 3000 500
12 Inverter 10000 7000 3000
13 Refrigerator (Godrej) 300 Ltr 12000 9000 3000
14 Mobile Sony Ericsson T-310 8000 7000 1000
15 LG 1500 Handset (TOY/Dummy) 2000 0 2000
TOTAL 42850
9.42 PW46 DSP Ram Singh (Investigating Officer) claimed during cross
examination that value was calculated as per mutual discussion with accused Ashok Kumar Aggarwal, independent witnesses and CBI team in-charge. PW25 Om Dutt Sharma, an independent witness has, however, deposed that no one was consulted in his presence. I have seen list Ex PW 25/A. Accused has not led any evidence to show that value was excessive or arbitrary. However, on careful perusal of such list and price mentioned therein and to be fair to the accused, I grant benefit of further 10% to defence. Thus cost of assets is held as Rs. 2,19,240/-.
9.43 It will be worthwhile to mention here that acquisition value of various IVPs, KVPs and NSCs etc as mentioned at item no. 55, 57 to 61 and 64 are concerned, the investment value as such is not disputed but it has been claimed that investment got multiplied from time to time on various occasions and CBI did not give any benefit of interest so earned. It has also been claimed that some such investments were funded by Tilak Raj and Resham Rani, parents of accused Ashok Aggarwal which fact has also been discarded by investigating agency without any rhyme or reason. Let me, however, as of now, consider the assets value of these securities as per their face value. Due CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 44 of 88 consideration would be given when I take up the issue regarding funding by parents etc. under additional income Head.
9.44 During course of oral arguments, defence prayed that though it had no qualm qua assets shown at item numbers 3, 6, 46, 51, 52, 53 and 54 yet since these are also in joint names, proportionate benefit be given. In written synopsis, no such benefit was sought. However, these assets are, indeed, found to be in joint names and in order to have a uniform pattern of appreciation of the evidence, I accede to such request.
9.45 Thus, in view of my foregoing discussion, the chart would read as under:
S. Assets as on 07.06.05 i.e. Amount as Amount as Amount proved Corresponding No close of check period per charges per defence Addl. Income proved on record 1 Deposits in PPF account no. 224850.00 203050.00 224850.00 10528, PO, Parliament Street in the name of Ashok Aggarwal.
2 Balance in account no. 8371.75 8504.01 8371.75 15360 in SBI Vikas Puri in the name of A.K. Aggarwal.
3 Balance in account no. 3716.00 3716.79 1858 74509 in PNB, Parliament Street in the name of Mamta & Resham Aggarwal.
4 Balance in account no. 3265.00 3265.16 3265.00 75306 in PNB, Parliament Street in the name of Ashok Aggarwal.
5 Balance in account no. 1008.70 1008.70 1008.70 6707823 in PO, Parliament Street in the name of Ashok & Mamta Aggarwal.
6 Balance in account no. 2388.00 2388.00 1194 6723446 in PO Parliament Street in the name of Mamta & Resham Rani.
7 Balance in account no. 1873 4252.14 4252.14 4252.14 in OBC, Vikas Puri in the name of Nitin & Ashok Aggarwal.
8 Balance in account no. 1818 7503.45 7503.45 7503.45 in OBC, Vikas Puri in the CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 45 of 88 name of Nikhil Aggarwal.
9 Balance in account no. 914 20178.83 20178.83 20178.83 in OBC, Vikas Puri in the name of Ashok Aggarwal.
10 Balance in account no. 1066.29 1066.29 1066.29 613448 in Bank of India, Mandir Marg in the name of Mamta Aggarwal.
11 Balance in account no. 9658.00 9658.00 9658.00 0791010100106337 in UTI Bank, Vikas Puri in the name of Nikhil Aggarwal.
12 Balance in account no. 15354.68 15354.68 15354.68 52510149312 in Standard Chartered Bank, Parliament Street in the name of Nitin Aggarwal.
13 Investment in Term Deposit 50000.00 50000.00 50000.00 account no. 50037823 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
14 Investment in Term Deposit 50000.00 50000.00 50000.00 account no. 50038586 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
15 Investment in Term Deposit 40000.00 40000.00 40000.00 account no. 50039265 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
16 Investment in Term Deposit 40000.00 40000.00 40000.00 account no. 50040140 in PO, Parliament Street in the name of Nitin Aggarwal.
17 Investment in Term Deposit 30000.00 30000.00 30000.00 account no. 50037343 in PO, Parliament Street in the name of Nitin & Ashok Aggarwal.
18 STDR (Term Deposit) No. 15000.00 15000.00 15000.00
01292/015360/03, SBI,
Vikas Puri, ND renewed on
05.07.03 with new no.
925775.
19 Investment in CTDR no. 16202.00 15000.00 7500 601
358552/ 4238/95 dated
23.08.95 in the name of
Mamta Aggarwal.
20 Investment in CTDR no. 16,202.00 15000.00 7500 601
358553/ 4239/95 dated
23.08.95 in the name of
Mamta Aggarwal.
21 Investment in Fixed Deposit 36000.00 36000.00 36000.00
no. 04520384 dated
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 46 of 88
17.07.03 in the name of
Mamta Aggarwal with NTPC.
22 Investment in Fixed Deposit 30000.00 30000.00 30000.00
no. 04520223 dated
22.04.03 in the name of Nitin
Aggarwal with NTPC.
23 Investment in the form of 4 95000.00 95000.00 95000.00 17660.00
Fixed Deposits in the name
of Ashok Kumar & his family
members with Jindal Street
& Power Ltd.
24 Investment in the form of 7 153000.00 153000.00 153000.00 33314.00
Fixed Deposit with HDFC.
25 Investment toward FDR No. 30000.00 30000.00 30000.00 3645.00
46205 with J.K. Paper.
26 Investment toward 4 FDRs 75000.00 75000.00 75000.00 23109.00
with Ballarpur Industries.
27 Investment toward 9 FDRs 181000.00 181000.00 181000.00 15860.00
with Triveni Engg. & Inds.
Ltd. Noida, UP.
28 Investment toward 5 FDRs 80000.00 80000.00 80000.00 53.00
with Escort Fin. Ltd.
(As per charge-sheet, total
amount was Rs. 81,000/-.
Court had given benefit of
Rs. 1,000/- as per para-33
of order on charge).
29 Investment toward DBD No. 10000.00 10000.00 10000.00 2022.00
173328.
30 Investment toward DBD No. 12000.00 12000.00 12000.00 2426.00
173329.
31 Investment toward DBD No. 15000.00 15000.00 15000.00 787.00
16929.
32 Investment toward 6 FDR 110000.00 110000.00 110000.00 6300.00
with Escorts Ltd.
Corporation.
33 Investment toward CDR 14248.00 7500.00 7500.00 6748.00
Nos. 127555 at OBC, Janak
Puri.
34 Investment toward CDR 15500.00 15500.00 15500.00
Nos. 128392 at OBC, Janak
Puri.
35 Investment toward CDR 15000.00 15000.00 15000.00
Nos. 128392 at OBC, Janak
Puri.
36 Investment toward CDR 10000.00 10000.00 10000.00
Nos. 766108 at OBC, Janak
Puri.
37 Investment in CDR Nos. 20000.00 20000.00 20000.00
766136 at OBC, Janak Puri.
38 Investment toward CDR 28000.00 28000.00 28000.00
Nos. 766277 at OBC, Janak
Puri.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 47 of 88
39 Investment toward CDR No. 15000.00 15000.00 15000.00
766279 at OBC, Janakpuri.
40 Investment toward CDR No. 12000.00 12000.00 12000.00
766278 at OBC, Janakpuri.
41 Investment toward CDR No. 11433.00 5000.00 5000.00 6433.00
766497 at OBC, Janakpuri.
42 Investment toward CDR No. 27905.00 15000.00 15000.00 12905.00
766498 at OBC, Janakpuri.
43 Investment toward CDR No. 20000.00 15000.00 15000.00 6386.00
766975 at OBC, Janakpuri.
44 Investment toward CDR No. 21386.00 15000.00 15000.00 6386.00
377030 at OBC, Janakpuri.
45 Investment toward CDR No. 4685.00 2500.00 2500.00 2185.00
377524 at OBC, Janakpuri.
46 Investment toward CDR No. 12884.00 7000.00 3500.00 62071.00
766784 at OBC, Janakpuri.
47 Investment toward CDR No. 30000.00 30000.00 30000.00
584319 at OBC, Janakpuri.
48 Investment toward DBD No. 9144.00 5000.00 5000.00 4144.00
9215777 in Bank of India,
Mandir Marg.
49 Investment toward DBD No. 9270.00 5000.00 5000.00 4270.00
9215778 in Bank of India,
Mandir Marg.
50 Investment toward DBD No. 10000.00 10000.00 10000.00
3389575 in Bank of India,
Mandir Marg.
51 Fixed Deposit no. 427/95 in 15000.00 15000.00 7500.00
the name of Mamta
Aggarwal from IOB, Preet
Vihar Branch, New Delhi.
52 Fixed Deposit No. 518/95 in 15000.00 15000.00 7500.00
the name of Mamta
Aggarwal from IOB, Preet
Vihar Branch, New Delhi.
53 Investment in KVP Regn. 10000.00 10000.00 5000.00
No. 6957 dated 27.09.00 in
the name of Mamta & Kanka
Aggarwal from Dilshad
Garden Sub Post Office.
54 Investment in KVP Regn. 10000.00 10000.00 5000.00
No. 10205 dated 28.02.04 in
the name of Mamta & Kanka
Aggarwal from Dilshad
Garden Post office.
55 Investment toward KVPs 650000.00 650000.00 650000.00
bearing 36 regn. Nos. in PO
Tilak Nagar.
56 Investment in 8 KVPs in PO 140000.00 140000.00 140000.00
Janak Puri.
57 Investment toward KVPs 1035000.00 1035000.00 1035000.00
bearing 49 Regn. Nos. in
GPO, New Delhi.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 48 of 88
58 55 KVP purchased from 830000.00 850000.00 830000.00
Sansad Marg PO, New
Delhi.
59 Investment toward 84 KVPs 1090000.00 1070000.00 1070000.00
in Sansad Marg, PO.
60 Investment towards KVPs in 170000.00 85000.00 170000
GPO, Delhi.
61 Investment toward NSCs 100000.00 90000.00 100000
bearing 4 Regn. Nos. in PO
Tilak Nagar.
62 Investment toward NSCs 20000.00 20000.00 20000
bearing 2 Regn. Nos. in PO
Janak Puri.
63 Investment toward NSCs (3) 55000.00 55000.00 55000
64 7 NSC purchased from 100000.00 80000.00 100000
Sansad Marg, PO, New
Delhi.
65 Investment toward IVP 10000.00 10000.00 10000
bearing 1 Regn. No. in PO
Tilak Nagar.
66 Investment toward IVP from 15000.00 15000.00 15000
GPO, New Delhi. (Rs.
10,000 + Rs.5000)
67 1 IVP purchased from 10000.00 10000.00 10000
Parliament St. PO, New
Delhi.
68 Investment toward Vikas 30422.00 15000.00 7500 13138
Cash Certificate No. 1321 in
the name of Mamta
Aggarwal.
69 IDBI Certificates no. 30000.00 30000.00 30000.00
2240769235 to 40 @ Rs.
5000 each.
70 IDBI Certificates no. 15000.00 00.00 00.00
0161174186-88 @ Rs. 5000
each.
71 ICICI Certificates no. 15000.00 15000.00 15000.00 2109.00
177514-16 @ Rs. 5000
each.
72 ICICI Certificates no. 30000.00 30000.00 30000.00 9237
3633322-27 @ Rs. 5000
each.
73 Investment toward 5 Saving 164000.00 164000.00 164000.00 7610.59
Bonds in PNB, Sansad
Marg, New Delhi.
74 UTI Units quantity 3500, 79010.00 70000.00 70000.00 56328.35
1901, 2500 in the name of
Mrs. Mamta Aggarwal, Nitin
Aggarwal & Ashok Aggarwal;
new these units have been
converted into ARS bonds
on 31.03.04 (Total
investment is Rs.
35,000+19010+ 25000)
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 49 of 88
75 Payment for purchase of 220629 219048.00 220629.00
Maruti Car DL8CE-0412
76 Cost of scooter Bajaj Chetak 8267.00 267.00 8267.00
Regn. no. DIF-9624
77 Cost of scooter Bajaj Chetak 22000.00 21070.00 21070
regn. no. Dl4SL 3182.
78 Cash found during house 77650 77650.00 77650
search
79 Cost of household articles 243600 200750 219240
found during search as per
inventory/ observation
memo.
Total 68,83,049.84 65,97,231.05 66,87,916.84 Rs. 3,06,328.94
ADDITIONAL INCOME
10.0 According to accused, his father was working in Railways since 1944 and
he retired in 1982 and he had saved money during 38 years of his service and made investments in the name of his children and other family members. According to defence, some payments were even received directly by them and CBI did not, despite clearly told about the same, take into stock any such funding.
10.1 There are following bank accounts which were held by parents of accused Ashok Aggarwal. Investment amount originated from these accounts.
Accounts of Tilak Raj Aggarwal
S. Account Bank/Post Office Names of A/c Date of opening
No. No. Holder
1 18667 Central Bank of Tilak Raj Aggarwal 02/04/1981
India, Parliament (Pension Account)
Street, New Delhi
2 6714700 Post Office, Tilak Raj Aggarwal 28/06/1982
Sansad Marg, New & Resham Rani
Delhi
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 50 of 88
3 822578 GPO, New Delhi Tilak Raj Aggarwal 03/07/1982
& Mamta Aggarwal
4 61461 Punjab National Tilak Raj Aggarwal
Bank, Parliament & Mamta Aggarwal
Street, New Delhi
Accounts of Resham Rani
S. Account Bank/Post Office Names of A/c Holder Date of opening
N No.
o
1 27833 Central Bank of Resham Rani (pension 16/05/1990
India, Parliament A/c)
Street, New Delhi
2 672344 Post Office, Sansad Resham Rani & 16/05/1990
6 Marg, New Delhi Mamta Aggarwal
3 845452 GPO, New Delhi Resham Rani & 16/05/1990
Mamta Aggarwal
4 74509 Punjab National Resham Rani & 16/05/1990
Bank, Parliament Mamta Aggarwal
Street, New Delhi
10.2 Following chart would demonstrate alleged funding by Sh. Tilak Raj
Aggarwal and Mrs. Resham Rani:-
Investment/funding/income through parents
S. Amount in Rs. Type of Transfer Funded by
No.
1 15126.16 Direct Transfer in the name of Ashok Aggarwal. Tilak Raj Aggarwal
(withdrawal from pension account no. 18667 of Central Bank of India, Parliament Street of Tilak Raj) 2 40000.00 Direct Transfer in the name of Mamta Aggarwal. Tilak Raj Aggarwal (withdrawal from pension account no. 18667 of Central Bank of India, Parliament Street of Tilak Raj) 3 1529.60 On account of closure of account no. 822578 of Tilak Raj CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 51 of 88 Aggarwal with Mamta Aggarwal in GPO after the death of Tilak Raj Aggarwal.
4 125000.00 Investment in KVPs/NSCs/IVPs Tilak Raj Aggarwal Rs. 10000.00 became Rs. 80000.00 (PO Sansad Marg).
Rs. 30000.00 became Rs. 234000.00 (GPO) Rs. 20000.00 became Rs. 160000.00 (GPO) Rs. 20000.00 became Rs. 160000.00 (PO Sansad Marg).
Rs. 20000.00 became Rs. 160000.00 (GPO) Rs. 25000.00 became Rs. 133012.50 (FDR, PNB Sansad Marg) (Total Investment of Rs. 1.25 lacs became Rs.
9,34,432.50) 5 108500.00 Transfer from her Pension Account No. 27833 Central Bank Resham Rani of India, Parliament Street.
6 255000.00 Investment from family pension account made in UTI, KVP, Resham Rani HDFC, Escorts Ltd., Ballarpur Industries, Triveni Engineering. (Entries made in the passbook of Resham Rani Ex. PW46/DG1, DG2 & DG3 and some of the related witnesses of said companies have corroborated.
10.3 Apart from this, according to defence, accused(s) had other additional income. In order to appreciate the contentions, I have seen all the related documents pertaining to said accounts of parents of accused Ashok Aggarwal, testimony of related witnesses from concerned departments, testimony of IO, deposition of various defence witnesses, huge heap of information received under RTI by defence in order to assess any sequence of flow of money right from the alleged investment till maturity.
10.4 Most of such investments are of period when IVPs were in vogue and used to earn attractive return and amount invested used to get doubled up in a quick time.
10.5 Let me first consider aforesaid six heads these one by one.
10.6 As regards benefit of Rs.15,126.16 is concerned, accused is relying upon the entries appearing in cheque book of his late father Sh. Tilak Raj Aggarwal. Such CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 52 of 88 cheque book has been proved as Ex. PW46/DF. I have seen page no. 1859 and I am of the view that it would not be possible for me to grant any benefit of entries of Rs. 9000/- and Rs.3000/- appearing in memorandum regarding issuance of cheques. Accused wants to convey that these were bearer cheques and he had withdrawn Rs. 12,000/- through such cheques issued by his father and should be considered his income. During continuance of arguments, accused deviated from his such stance and claimed that these were not bearer cheques but account-payee cheques. However, he could not come with complete clarity and precision qua these two cheques which may persuade me to hold that these cheques were received as gift by him from his father. Similarly, as regards withdrawal of Rs.51/- through bearer cheque, I am unable to grant any benefit to defence for want of connecting inspiring evidence. Merely on the basis of declaration appearing in memorandum, which is prepared by any holder, without any corroborating material, it will not be feasible to accede to the request of accused. However, a sum of Rs.84/- did land in the bank account of accused Ashok Kumar Aggarwal. Such amount was deposited by accused Ashok Kumar Aggarwal in his account No. 16891 of Central Bank of India, Parliament Street, New Delhi. I have also seen Ex. DW1/A and Ex. DW1/B which is statement of account of said account duly certified by the bank and it is noticed that a sum of Rs.84/- was deposited in said account as per internal page 22 of Ex. DW1/B. Benefit of Rs.84/- is accordingly given to accused.
10.7 According to defence, Sh. Tilak Raj Aggarwal had issued two cheques of Rs.20,000/- each in the name of Mamta Aggarwal which she deposited in her PNB Account. Reliance has been placed upon cheque book Ex. PW46/DF and in particular upon counter-foils appearing at page no. 1840 and 1842 where name of Mamta Aggarwal and amount of Rs.20,000/- are found mentioned. In order to support and co- relate such fact, defence examined DW8 Sh. S. P. Mamgain. Information was sought from PNB through RTI which information has been proved as Ex. DW8/A to DW8/D. CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 53 of 88 However, Sh. Mamgain also deposed that as per rules they kept the record only up to the maximum of 8 years and other summoned record being old, was not available. Defence has also relied upon Ex. PW46/DD where these two entries of Rs.20,000/- are, in fact, reflected. These are appearing at page no. 1816 showing transfer of Rs. 20,000/- each to Mamta Aggarwal. DW1 Sh. Lohani, Chief Manager, Central Bank of India, Parliament Street has admitted the correctness of said passbook. Since the entries are of 1985 and since the corresponding record of PNB have been weeded out in the normal course of business, accused could not have shown the probability of such transfer in any other possible manner. I, therefore, grant benefit of Rs.40,000/- to defence.
10.8 As per defence, after the death of Tilak Raj Aggarwal on 18.4.1990, account no.822578 of Tilak Raj Aggarwal and Mamta Aggarwal with GPO, New Delhi was closed on 5.7.1990 and outstanding amount of Rs.1529.60 was received by accused Mamta Aggarwal. Passbook has been proved as Ex. PW42/DJ. However, there is not enough clarity with respect to withdrawal of amount after the closure of account and, therefore, request of defence in this regard is not found acceptable.
10.9 As regards, investment made by Sh. Tilak Raj of Rs. 1.25 lacs, I am of the view that defence has been able to substantiate the same quite noticeably. Flow- charts, as extracted hereunder as Annexure (a) to (f), would reveal investment of Rs. 1.25 lacs.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 54 of 88Annexure (a) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 55 of 88 Annexure -(b) Total Maturity Amount = Rs. 1,20,000/- ( Table continued on next page) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 56 of 88 CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 57 of 88 Annexure-(c) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 58 of 88 Annexure -(d) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 59 of 88 Annexure-(e) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 60 of 88 Annexure-(f) CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 61 of 88 10.10 All the related documents and testimony of witnesses go on to show that there is substantial truth in the version of accused. He is accordingly given benefit of getting Rs. 1.25 lacs from his parents and also further benefit of investment income of Rs. 8, 09,432.50.
10.11 According to defence, Smt. Resham Rani was having a pension account no. 27833 with Central Bank of India and she had funded investment by issuing cheques in the name of accused as well as in the name of Nitin Aggarwal. Such amount has been claimed as Rs. 1,08,500.00. Following chart would show such flow of money from her account to the account of others and in this regard defence has placed on record saving passbook of account of Resham Rani which has been proved as Ex. PW46/DG1.
Amount
Cheque Date of Cheque in favour of Credited in
No. Cheque of Cheque A/c No. Exhibit No.
6401 01/02/1993 Mamta Aggarwal 10000 74509 Ex. PW5/C Pg 6
655005 03/07/2000 Mamta Aggarwal 20000 74509 Ex. PW5/C Pg 20
655007 31/12/1999 Nitin Aggarwal 22000 19490 Ex. PW35/D1
655008 05/10/2000 Mamta Aggarwal 11500 74509 Ex. PW5/C Pg 20
655010 01/09/2001 Mamta Aggarwal 25000 74509 Ex. PW5/C Pg 21
109041 02/05/2005 Ashok Aggarwal 20000 Encashed on 02/05/2005
10.12 It would be pertinent to mention that such passbook was shown to IO
PW46 DSP Sh. Ram Singh and he merely claimed that it was matter of record. I have also seen testimony of DW1 Sh. Deep Chandra Lohani, Chief Manager, Central Bank of India. He was also shown all the passbooks and he categorically deposed that the entries in such passbooks had been entered by the concerned bank official in the normal course of business and should be correct.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 62 of 8810.13 I have also seen Ex. PW5/C which is passbook of account no. 74509 of Mamta Aggarwal and also Ex. PW35/D1 which is passbook of Nitin Aggarwal of account no. 19490 and there are, indeed, corresponding entries. There is no question of falsification of any entry.
10.14 I have also seen Ex. PW46/F which is statement of account pertaining to account of Smt. Resham Rani which indicates issuance of Rs. 20,000/- in the name of Ashok Kumar if read in conjunction with Ex. PW6/A which contains information provided by Central Bank of India under RTI Act. Copy of cheque dated 02.05.2005 issued by Smt. Resham Rani is also on record and is found to be an admitted document. As per bank official DW6 Sh. S.P.K. Aggarwal, the entire information contained in Ex. DW6/A is correct.
10.15 Therefore, it has to be necessarily inferred that a sum of Rs. 1,08,500/- moved out from the account of Smt. Resham Rani which has to be transposed as additional income as all such entries are during the check period.
10.16 Let me now see whether Resham Rani had funded any investment or not. It's again important to note that all such funding is through cheques alone. According to defence, following is the break-up of such funding made from time to time.
Date of Amt of Company / Post Office
SN Cheque No Cheque Cheque Holder Name name
1 6403 31/01/1994 10000 Ashok Kumar Aggarwal UTI MIP 94
2 6407 26/03/1996 15000 Mamta Aggarwal IRFC @ 16.5%
3 6409 01/02/1997 10000 Mamta Aggarwal Escorts Finance Ltd
4 6410 30/05/1997 10000 Ashok Kumar Aggarwal UTI MIP 97 (ii)
5 6411 10/03/1998 15000 Nitin Aggarwal UTI MIP 98
6 655001 29/06/1999 20000 Mamta Aggarwal KVP -PO, Tilak Nagar
7 655002 29/06/1999 20000 Nitin Aggarwal KVP -PO, Tilak Nagar
8 655004 31/07/1999 20000 Nitin Aggarwal KVP -PO, Tilak Nagar
9 655012 01/03/2002 20000 Nitin Aggarwal HDFC LTD
10 655013 31/08/2002 20000 Nitin Aggarwal Escorts Limited
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 63 of 88
11 655014 28/02/2003 20000 Nitin Aggarwal Escorts Limited
12 655015 31/07/2003 20000 Ashok Kumar Aggarwal Escorts Limited
13 655016 03/11/2003 10000 Ashok Kumar Aggarwal Escorts Finance Ltd
14 655017 27/02/2004 15000 Nikhil Aggarwal Ballarpur Ind. Ltd
15 655018 30/06/2004 15000 Nikhil Aggarwal Triveni Engg Ind Ltd
16 655019 03/10/2004 15000 Nikhil Aggarwal Triveni Engg Ind Ltd
TOTAL Investment 255000
10.17 I have seen various documents and testimony of witnesses in order to find
out whether such investment was funded by Smt. Resham Rani or not. All the related entries are found to be there in passbooks Ex. PW46/DG1, PW46/DG2 & PW46/DG3 on relevant dates.
10.18 I have also seen testimony of DW19 Sh. Praveen Sangwan, Manager Legal, Escorts who admitted that investment for Rs. 10,000.00 was made on 31.01.1997. Corresponding entry dated 04.02.1997 is found at page no. 1877 as contained in passbook Ex. PW46/DG2.
10.19 Entries regarding UTI are at pages 1877 & 1878 of passbook Ex. PW46/DG2.
10.20 As regards investment made in KVPs, Post Office Tilak Nagar, I have seen testimony of PW13 Bir Sen and he, in his cross-examination, categorically deposed about application Ex. PW13/E1 to E3 and he claimed that such KVPs were invested through cheques no. 65501, 65502 & 65504. These cheques have been unmistakably issued from the account of Smt. Resham Rani.
10.21 As regards investment made in FDR with HDFC, PW15 Alok Kumar Payal has admitted in his cross-examination that payment for FDR was received vide cheque no. 655012 of Rs. 20,000.00 dated 01.03.2002. I have also seen Mark P-4 which is copy of application form for such FDR.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 64 of 8810.22 PW41 Sh. P.C. Gupta has also admitted regarding receiving cheques no. 655013 to 655015 towards such investment. These cheques are also found mentioned in purchase application(s) Ex. PW41/C also.
10.23 DW16 Archana Pandit deposed that investment of Rs. 15,000.00 was made by depositor vide cheque no. 655017 dated 27.02.2004 drawn on Central Bank of India, Parliament Street, New Delhi. It, visibly, is from the account of Smt. Resham Rani.
10.24 I have seen testimony of PW11 Sh. Vinay Grover of M/s Triveni Engineering Industries Ltd. and application forms particularly Ex. PW11/Q and Ex. PW11/T where cheques no. 655018 & 655019 are found categorically mentioned.
10.25 Thus, it becomes very much evident that all such investments had been made with the help of money of Ms. Resham Rani and, therefore, such amount of Rs. 2,55,000/- has to be reckoned as additional income/gift.
10.26 Now let me see whether accused Ashok had any further additional income as per Main Paragraph 8 of his detailed written synopsis.
10.27 As regards accrual of interest in NSS account No.7210 in the name of A. K. Aggarwal, Sansad Marg, New Delhi, such account No.7210 was opened on 01.02.1981 and was closed on 01.09.2001. CBI in its reply dated 29.08.2008, at the time of arguments on charge, claimed that benefit of interest be passed on to accused if he was able to produce passbook.
10.28 Original passbook has been submitted in the court and has been proved as Ex. PW28/DE. PW28 Sushil Kumar Mehta though has failed to offer any comments CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 65 of 88 without cross checking the official record yet fact remains that even DW3 Sh. Aman Prakash Gaurav, Postal Assistant, Sansad Marg Head Post Office has proved details contained in Ex. DW3/A and as per such details the closing balance in such NSS account was Rs.24,047/-.
10.29 Accused had sought information under RTI and such information was supplied to him. He was given statement of account of said NSS account as well. It contains entries from 1996 onwards only. I have seen the same. Passbook also seems maintained in the normal course of the business and the entries made therein do not seem questionable at all and, therefore, considering information supplied under RTI Act and original Passbook, I am inclined to grant advantage of additional interest income from said NSS account to accused to the tune of Rs.26,747/- as these were not considered during investigation at all.
10.30 SB Account no. 19490 with Bank of India, Vikas Puri, New Delhi was in the name of Nitin Aggarwal and accused Mamta Aggarwal. DW10 Sh. Romesh Kumar Bhatia has admitted the contents of the information given by Bank of India pursuant to RTI application of accused Mamta Aggarwal and admitted that there were 16 entries totaling Rs.669/- towards interest income for the period from 8.8.98 to 5.2.05. Benefit is accordingly passed on to the accused.
10.31 Smt. Resham Rani and Mamta Aggarwal had account no. 845452 with GPO but it seems that CBI has not given any advantage of interest accrued in such account with GPO. Passbook of such account is Ex. PW42/DK which has even been admitted by PW42 Sh. Ram Yash and the aggregate of interest entries appearing therein from 16.5.90 to 7.6.05 comes to Rs.1505.10. However, since this happens to be a joint account, Mamta Aggarwal is granted benefit of half of such interest income. Benefit of Rs.753/- is accordingly given to defence.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 66 of 8810.32 Account no. 822578 was in the joint names of Mamta Aggarwal and her father in law and the passbook of such account with GPO, New Delhi has been proved as Ex. PW42/DJ and has been admitted so by PW42 Sh. Ram Yash and there is total accrual of interest of Rs.9079.60. In the similar manner, half of the benefit is granted which comes to Rs.4540/-.
10.33 Account No 6713198 in the name of Master Nitin Aggarwal was opened 09/03/1981 and closed 01/12/1990 with Post office, Sansad Marg. This becomes apparent from passbook Ex. PW28/DF. Though PW28 Sushil Kumar Mehta could not comment about the authenticity about the entries maintained in such passbook, fact remains that testimony of DW3 Aman Prakash clearly indicate that there existed such account in the name of Nitin Aggarwal and if all the interest entries appearing therein are calculated, the aggregate would be Rs.620.35. I have seen Ex. DW3/A which is the reply of the Sr. Post Master. He mentioned in such reply that such record pertaining to account no.6713198 was not available as same was burnt in fire incident dated. 01.06.2012. Accused cannot be denied benefit on account of such fire incident. I do not find any impediment in believing the entries appearing in passbook Ex. PW28/DF and, therefore, I grant benefit of Rs.620.35 to defence.
10.34 Accused Ashok Aggarwal has claimed that earlier he had worked in Jalandhar City till 1974 and thereafter he was lecturer in REC, Kurukshetra and he had received Rs.8247.54 towards his various dues while he worked in Jalandhar and Kurukshetra. He also claims that he had provided the details to IO and for the reasons best known to IO, despite gathering the information from Kurukshetra and Jalandhar, such information has been hidden and therefore, he seeks benefit. Fact, however, remains that no witness has been cited or examined by the defence on this score and there is no documentary evidence either and, therefore, I am unable to grant any benefit to accused under such head.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 67 of 8810.35 As per accused Ashok Kumar Aggarwal, he had attended one course in "Management of Training" from February, 1990 to April, 1990 at Royal Institute of Public Administration, London and he received a total benefit of Rs.58,279/- after conversion of pound in Indian Currency as per the prevalent rate when one pound was equivalent to Rs.29.50. Though it is apparent that CBI did not investigate this aspect properly and though it is amply clear that accused had in fact attended such training and must have been paid a good stipend also yet fact remains that defence has not been able to properly demonstrate that accused Ashok Aggarwal was able to save anything from such stipend or allowances and, therefore, no benefit under such head can be passed on to the accused.
10.36 As regards two more FDRs of accused Ashok Aggarwal which he had with M/s Escorts Ltd., according to defence, these two FDRs matured during the check period and the amount was duly credited in the accounts of accused Ashok Kumar Aggarwal and the interest earned on such two FDRs has been ignored by CBI.
10.37 There is interest income of Rs.975/- with respect to first FDR having principal investment of Rs.16,000/-. Cheque of interest was received by accused and was credited in his account of SBI Vikas Puri on 11.2.1999 and such fact stands established even as per the deposition of DW9 Sh. Rajesh Solanki, CBI Inspector/Presenting Officer and is found mentioned in Ex. DW9/A and is also reflected in Ex. PW32/E. PW32 V. K. Kaul has also admitted such fact specifically in his deposition dt. 7.2.2011. Entry is also found mentioned at page no.65.
10.38 Second interest income is of Rs.1826/- which becomes apparent from Ex. PW41/DA (page 1785) and statement of account of account no.16891 of Central Bank of India which is part of D7 and the relevant entry is at page 46 and the date of deposit is 4.7.2002. Thus total benefit of Rs.2801 is given to accused.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 68 of 8810.39 As per defence, CBI took into consideration only five FDRs of Escorts Finance Ltd. but there were three more FDRs which matured during the check period and in the similar manner, CBI should have given the benefit of interest earned on such FDRs. According to accused, he earned interest income of Rs.7668/- (903+3301+3464). In order to substantiate such fact, defence has examined DW19 Sh. Pradeep Sangwan. I have seen his testimony and he did mention about accrual of said interest. There are corresponding deposit entries of such interests in the account of accused maintained with PNB, Parliament Street, OBC, Vikas Puri and again with PNB, Parliament Street. Statements Ex. PW5/B (at page 106), Ex. PW30/C2 (at page 213) and Ex. PW5/C (at page 124) be referred to. I accordingly grant benefit of interest income of Rs.7668/- (903+3301+3464) to accused.
10.40 According to CBI, accused had invested in UTI units and the total investment has been found to be of Rs.79,010/-. However, according to accused, these were the investments which were still alive at the time of the end of check period. According to defence, there were 28 more investments in UTI during the check period which got matured during the check period and the corresponding advantage of the interest so earned has not been passed on to the accused. To prove such income, the accused has relied upon testimony of PW45 Sh. Pradeep Bhatia who has also been examined by defence as DW13. Defence has also relied upon the testimony of DW9 Inspector Rajesh Solanki.
10.41 I have seen the testimony of PW45 Pradeep Bhatia and in his cross examination, he was shown two letters. These letters are Ex. PW45/DA and Ex. PW45/DB and he claimed that the information contained therein should be correct being based on record.
10.42 In his deposition, DW13 Sh. Pradeep Bhatia was again shown details contained in Ex. PW45/DA and DB and he did not dispute the authenticity of such CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 69 of 88 details. It will be important to mention that accused Ashok Aggarwal is facing departmental action as well and during such departmental proceedings, the presenting officer inspector Rajesh Solanki had demanded information from UTI vide letter Ex. DW9/E and UTI responded by sending reply dated 10.4.2003 along with some of the applications. In fact, there are seven such applications. I have also seen the details contained in Ex. PW45/DA and PW45/DB which are at pages 1753 to 1756.
10.43 According to accused, various investments made by him in UTI has not been considered by the Investigating Agency and if said information is read in conjunction with his various bank statements, it would become apparent that the interest earned on such investments has not been taken into stock. With the help of the defence as well as with the active assistance of Ld. Public Prosecutor, a chart has been prepared which does indicate that there was total interest income of Rs.2,40,617.93. Such chart is as under.
S Name of i)Folio No., Invested from Maturity Date of pay- Deposited Interest Remarks
No scheme ii)Application, if any, bank with page amount ment in bank with earned
iii)invested amount no. page no.
with date of invest-
ment
1 MIP-96 4 i)4001720007787 OBC 914, 16883.08 17/01/2002 OBC 914, 1883.08 Additional Month-
ii)DW9/E Pg 3 PW30/C2 pg 209 PW30/C3 pg ly interest of Rs.
iii)15000 D-22 219 D-22 8760.09 Ann 7(a)
14/11/1996 (Joint account of
both the accused)
2 MIP-96 4 i)4001720019455 12555.00 17/01/2002 OBC 914, 4555.00
ii)- PW30/C3 pg
iii)8000 219 D-22
3 MIP-97 4 i)4001790152407 OBC 914, 36977.13 06/11/2002 OBC 914, 16977.13
ii)DW9/E Pg 9 PW30/C2 pg 210 PW30/C3 pg
iii)20000 D-22 (Joint ac- 220 D-22
12/06/1997 count of both the
accused)
4 MIP-98 I i)4001830010784 CBI A/c 27833, 27588.27 10/04/2003 BOI 19490, 12588.27
ii)- PW46/DG2 pg PW35/D1 pg
iii)15000 1878 (family pen- 2 Part B of
16/03/1998 sion account of charge
mother) sheet
5 MIP-98 I i)4001830019128 OBC 914 - State- 27588.27 10/04/2003 OBC 914, 12588.27
ii)- ment Missing PW30/C3 pg
iii)15000 (Joint account of 222 D-22
both the accused)
6 MIP-98 I i)4001830028521 OBC 914 - State- 36784.69 10/04/2003 OBC 914, 16784.69
ii)- ment Missing PW30/C3 pg
iii)20000 (Joint account of 222 D-22
both the accused)
7 MIP-98 II i)4001870015164 PNB 74509, 27598.48 11/07/2003 BOI 19490, 12598.48
ii)DW9/E Pg 11 PW5/C pg 123 PW35/D1 pg
iii)15000 D-11 3 Part B of
19/05/1998 (Joint account of charge
Resham Rani and sheet
accused Mamta)
8 MIP-98 II i)4001870012325 PNB 74509, 36797.96 11/07/2003 PNB 74509, 16797.96
ii)- PW5/C pg 123 PW5/C pg
iii)20000 D-11 (Joint ac- 128 D-11
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 70 of 88
02/06/1998 count of Resham
Rani and accused
Mamta)
9 MIP-98 II i)4001870011990 OBC 914, 36797.96 11/07/2003 OBC 914, 16797.96
ii)DW9/E Pg 13 PW30/C2 pg 211 PW30/C3 pg
iii)20000 D-22 (Joint ac- 222 D-22
19/05/1998 count of both the
accused)
10 MIP-98 III i)4001890006061 CBI A/c 16891, 31278.79 09/09/2003 BOI 19490, 14278.79
ii)- PW46/DQ pg PW35/D1 pg
iii)17000 1964 3 Part B of
18/07/1998 (Joint account of charge
accused Ashok sheet
with his brother
B. K. Aggarwal)
11 MIP-98 III i)4001890006062 OBC 914, 33118.43 09/09/2003 OBC 914, 15118.43
ii)- PW30/C2 pg 211 PW30/C3 pg
iii)18000 D-22 (Joint ac- 222 D-22
18/07/1998 count of both the
accused)
12 MIP-98 III i)4001890006360 36798.71 09/09/2003 OBC 914, 16798.71
ii)- PW30/C3 pg
iii)20000 222 D-22
18/07/1998
13 MIP-98 IV i)4001900000240 30000.00 01/12/2003 OBC 914, 0.00 Additional Month-
ii)- PW30/C3 pg ly Interest of Rs.
iii)30000 222 D-22 18,728.80 An 7(b)
14 MIP-98 IV i)4001900009009 PNB 74509, 36798.46 09/12/2003 PNB 75306, 16798.46
ii)DW9/E Pg 15 PW5/C pg 124 PW5/B pg
iii)20000 D-11 (Joint ac- 106 D-11
22/10/1998 count of Resham
Rani and accused
Mamta)
15 MIP-99 II i)4001240019511 OBC 914, 20758.81 02/08/2004 OBC 914, 6758.81
ii)- PW30/C2 pg 214 PW30/C3 pg
iii)14000 D-22 (Joint ac- 225 D-22
02/09/1999 count of both the
accused)
16 MIP-94 i)400-94-15400- CBI A/c 27833, 17110.00 02/03/1998 CBI A/c 7110.00
05050 PW46/DG1 pg 16891,
ii)- 1870 PW46/DQ
iii)10000 pg 1964
29/01/1994
17 MIP-94 i)400941540014659 GPO, ND 845452, 34220.00 02/03/1998 PNB 74509, 14220.00
ii)- PW42/DK pg 1796 PW5/C pg
iii)20000 (Joint account of 122 D-11
29/01/1994 Resham Rani and
accused Mamta
Aggarwal)
18 DIUP93 i)404941510019105 PNB 74509, 20475.00 07/10/1998 PNB 74509, 10475.00
ii)- PW5/C pg 113 PW5/C pg
iii)10000 D-11 (Joint ac- 124 D-11
22/09/1993 count of Resham
Rani and accused
Mamta)
Total investment Total Total amount Total amount Rs
amount= amount Rs. Rs.213129.04 27488.89
Rs.307000 520129.04
10.44 I am considering those investments into consideration as reflected in Ex.
PW45/DA and Ex. PW45/DB though fact remains that as per defence, there are other transactions with UTI viz a viz which also there was accrual of interests. But, these have excluded by the court as court even does not know about their respective folio numbers and, therefore, it will not be possible to connect these remaining credit entries CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 71 of 88 as maturity on account of other UTI investment and, therefore, benefit is restricted to Rs.2,40,617.93.
10.45 According to defence, a sum of Rs. 15,000/- was invested in IFCI Bonds in August 1996 in the name Mamta Aggarwal and Ashok Kumar Aggarwal vide Cheque No. 450055 of A/c No. 914 of Oriental Bank of Commerce, Vikas Puri, New Delhi (debited on 08/08/1996) (Ex.PW30/C2 D-22 Pg 208) for a period Seven years @ 16 % for first four years & 16.25% for next three years and the Interests, so accrued, were paid on half yearly basis on 1st May and 1st November every year and these were credited in A/c No. 914 of Oriental Bank of Commerce, Vikas Puri, New Delhi. Various entries in this regard indicate total interest income of Rs.16,934/-. This stands substantiated by DW15 Sh. D. K. Makhija, Associate Vice President, IFCI and his letter Ex. DW15/A clearly indicates that there was interest income of Rs.16,934/-. CBI has not taken into stock said interest income anywhere. I, therefore, grant benefit of interest income of Rs.16,934/- to defence. According to defence, Mamta Aggarwal had invested Rs. 15,000 in IRFC Bonds in 1996 (Application form No. 8055715) vide Cheque No. 006407 dated 26/03/1996 of A/c No. 27833 of Central Bank of India, New Delhi) for a period five years @ 16.5 % and the interests were paid on half yearly basis i.e. Rs. 1237.50 on 1st Jan and 1st July every year and such amount was credited in A/c No. 74509 with Punjab National Bank, Parliament Street, New Delhi. Such account is of accused Mamta Aggarwal and her mother in law. According to defence, all such entries are reflected in Ex. PW5/C. I have seen such statement which is from 16.05.1990 to 19.07.2005 and in fact such entries are mentioned in such statement. I have seen the corresponding deposition of DW16 Sh. A. Samantaray. He has also proved copy of application, some of the copies of interest warrants and the cumulative reading of his deposition, documents proved by him and the credit entries would reflect that Mamta Aggarwal was beneficiary of interest income to the tune of Rs.12,375/-. Such benefit is accordingly given to defence.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 72 of 8810.46 According to defence, Sh. Tilak Raj Aggarwal paid a sum of Rs. 25,000/- to Ashok Kumar Aggarwal vide two Cheque No. 695466 dated 02/05/1988 for Rs. 15,000/- (debited on 02/05/1988) and Cheque No. 695467 dated 01/07/1988 for Rs. 10,000/- (debited on 01/07/1988) from A/c No. 6714700 (later changed to 6720542) of Sh. Tilak Raj Aggarwal and Smt. Resham Rani with Post Office, Sansad Marg (Ex. PW28/DG) for payment of purchase of a plot in Jwalapur, Haridwar from Sh. J. L. Garg of BHEL, Haridwar in the name of Ashok Kumar Aggarwal and Mamta Aggarwal. It has also been argued that the aforesaid plot/land was acquired by Haridwar Development Authority (HDA).
10.47 I have seen the testimony of DW 17 Sh. Har Singh Bonal who deposed that Special Land Acquisition Officer, Saharanpur paid compensation vide two cheques of Rs. 22,504.02 each in the name of Ashok Kumar Aggarwal and Mrs. Mamta Aggarwal on 19/04/1995 (Ex. DW17/A). DW17 further stated that he could not say whether the cheques were encashed or not. These cheques were deposited in the account No. 914 of OBC, Vikas Puri. Corresponding entries, after minor deductions, are found in Ex. PW30/DB (page 1573).
10.48 Thus the initial amount of Rs.25,000 invested by accused is treated as gift as such amount came to them through the account of parents of accused Ashok Aggarwal and after deducting such sum of Rs.25,000/-, the balance amount of Rs. 22,030/- is treated as additional income.
10.49 As per defence, Ashok Kumar Aggarwal had applied for registration of a MIG Flats under new pattern HUDCO scheme 1979 by depositing Rs. 4,500 in State Bank of India, Parliament Street, New Delhi on 06/09/1979. It has been further claimed that Delhi Development Authority (DDA) allotted MIG Flat in Narela, which was not accepted by the accused and DDA was requested to refund the registration money along with the interest payable as per rules and accordingly DDA refunded an amount CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 73 of 88 of Rs. 10,301/- in favor of Ashok Kumar Aggarwal, Asstt Director, DGS&D, New Delhi vide cheque no. 129444 dated 29/12/1994 and the cheque was deposited in saving bank account no. 3160 (later changed to 15360) with SBI, Vikas Puri on 05/02/1995 (credited on 07/02/1995) Ex PW32/DA. Copy of the counter foil of depositing the cheque in account is Ex. DW 27/B. It has been argued that thereby, DDA paid an interest of Rs. 5,801/- on booking amount of Rs. 4,500 over a period of about 15 years which should be added to the income of the accused.
10.50 Accused examined DW20 Ms. Neeru Bhasin from DDA but she has not been able to throw any light with respect to any such investment claiming that the requisite details had not been furnished. In view of aforesaid, I am not inclined to give any such benefit to defence.
10.51 According to defence, there were other gifts too worth Rs.1,55,000 which were received during the check period. Admittedly except for the oral evidence, the court does not have any benefit of any documentary evidence to substantiate the factum of gift by DW21 Sh. Pawan Kumar Gupta, DW22 Bhupinder Kumar Aggarwal and DW23 Suman Kant Aggarwal and, therefore, I am unable to grant any benefit in this regard to the accused.
10.52 As per Sh. Anil Kumar, Ld. Defence counsel, accused Mamta Aggarwal was doing tailoring work from her residence and earned an income of Rs. 8,25,000/- from stitching of clothes i.e. from period April-1979 to May-2005. He admits that there is no documentary proof for such income. He also admits that no such income was ever intimated by accused Ashok Aggarwal to his department. Admittedly, accused Mamta Aggarwal did not file any ITR for any such period much less that any such income was reflected therein. It has been argued that since the income so earned was not taxable, therefore, no ITRs were filed. However, despite that, accused Ashok Aggarwal should have at least intimated his department about such income being generated by his wife.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 74 of 88Defence has examined DW24 Ms. Jaspal Kaur and DW25 Ms. Neeru Gupta. I have seen their testimony very carefully but their testimony would not be sufficient to hold that Mamta Aggarwal had such income. Moreover, it is not clear as to what precluded Mamta Aggarwal from entering in the witness box. She could have herself also graced the witness box and deposed about her such income and her having any such expertise in tailoring. Nothing of that sort has been done either.
10.53 My attention has been drawn towards the cross examination of IO DSP Ram Singh and in his cross examination dt. 20.4.2013 he did claim that when he had visited the house of accused on 26.4.2006, two lady witnesses were produced before him who claimed that they were regular customers of Mamta Aggarwal and used to get the cloths stitched from her. I lay emphasis on words "produced". He never claimed that when he had gone to the house of accused, these two ladies were already present there as customers. Be that as it may, fact remains that merely on the basis of oral assertion, I cannot hold that there was any such income from stitching. I would also like to mention that DW21 Sh. Pawan Kumar Gupta, brother of Mamta Aggarwal also entered into witness box but even he did not make any whisper to such effect. Moreover, DW22 B. K. Aggarwal and DW23 Suman Kant Aggarwal also did not utter even single word in this regard. Benefit from alleged stitching work is accordingly denied.
10.54 As regards income through sale of gold, again there is no corroborating evidence. No jeweller or gold smith has either been examined. Accused Ashok Aggarwal also did not intimate his department about such sale of gold and, therefore, defence cannot be granted any benefit on this score either.
10.55 According to defence, Late Sh. Tilak Raj Aggarwal had, from time to time, gifted to Mamta Aggarwal and her children another Rs. 2 Lacs approximately from his savings during service period in cash till his death on 18/04/1990 on various occasion CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 75 of 88 including Marriage Anniversaries, Mundane and Birthdays etc. and the amount so received were invested in NSCs / KVPs in her name and her children and further re- invested on maturity which substantially increased to Rs. 5 Lacs approximately over a period of time and hence, Rs. 5,00,000/- should be added to the income of the accused. This argument, being in the realm of mere verbal assertion, is liable to be discarded straightway.
10.56 According to defence, at the time of investment in post office in KVP/NSC/IVP and deposit in PPF, authorized agents of the Post Office used to pay incentive @ 0.75% to the customer to attract deposit in the Post Office and similarly, brokers/agents dealing with the company deposits also used to give incentive @ 1.5% to 3% for making deposit in Company's FDR etc. According to defence, incentive amounting to Rs. 52,532/- approximately was received against various investments and re-investments in Post Offices and company fixed deposits. However, for want of any evidence, no benefit on this score can be given to accused.
10.57 According to defence, various KVPs, NSCs and IVPs got matured during the check period and were reinvested in the same post office i.e. GPO. Investment was made through cheques and these were the cheques which had been issued by GPO itself towards the maturity amount and using the same cheques, fresh investments were made. It has been argued that cheque nos. are mentioned in the applications and none of these cheques pertained to any of the account of accused, their family members or acquaintances and therefore, the income so earned on maturity should have been considered separately as income. On this score, defence has relied upon Ex.PW42/F1 to F12 and PW42/F21 to F26. However, it does not seem possible to agree to defence contention without convincing linking evidence.
10.58 According to defence, Rs. 9,000/- was invested in the name of Ashok Kumar Aggarwal & Mamta Aggarwal in NSC No. 6NS/17DD481458 (Rs.5000) and CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 76 of 88 6NS/26CC191865-88 (Rs.4000) dated 09/04/1997 having Regn No. 124619 with PO, Sansad Marg. Maturity amount of Rs. 18,135/- was due on 09/04/2003. Strong reliance has been placed upon Para 4 at Page 3 of letter dated 04/09/2012 submitted by Sr. Post Master, Sansad Marg which has been admitted as correct as Ex. PW28/DB. Copy of the application form is Ex. PW28/DA. It becomes apparent that the invested amount of Rs.9000 (invested in 1997) became Rs.18,135/-. Therefore, interest of Rs. 9,135/- was earned. Such benefit is accordingly given.
10.59 Accused had made investments with post office Tilak Nagar and information under RTI was sought and the reply given under RTI has been proved as Ex. PW13/DD.
10.60 PW13 Bir Sen deposed that since these have been provided under RTI, these should be correct and as per the office record.
10.61 Following chart would demonstrate the amount invested and the income earned. These are also reflected in Ex. PW13/DB to PW13/DD.
S. Date of Invested DATE OF Maturity
No. TYPE Instrument No. investment Amount MATURITY AMOUNT Exhibit No. Interest income
1 KVP 30CC835476-77 4-Aug-97 20000 4-Feb-03 40000 PW13/DD Page 1 & 2 Rs. 20,000
2 KVP 30CC835478-79 4-Aug-97 20000 4-Feb-03 40000 PW13/DD Page 2 & 3 Rs. 20,000
17-Jan-04
3 KVP 32B3874540 16-Jul-98 10000 20000 PW13/DD Page 11 Rs. 10,000
PW13/DD Page 14 &
4 IVP 64C850241-44 19-Sep-98 10000 19-Mar-04 20000 15 Rs. 10,000
PW13/DD Page 16 &
5 IVP 64C850245-48 19-Sep-98 10000 19-Mar-04 20000 17 Rs. 10,000
PW13/DD Page 21 -
6 IVP 65C672490-97 28-Nov-98 20000 28-May-04 40000 23 Rs. 20,000
Total 90,000 1,80,000 90,000.00
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 77 of 88
10.62 In view of said details, I am inclined to grant benefit of Rs.90,000/- to
accused.
10.63 Similarly, regarding three more investments made in NSCs and KVPs by
accused in Tilak Nagar Post Office, I am inclined to grant benefit of interest income of Rs.28,270/-(9135+9135+10000) in view of applications contained in Ex. PW9/D on internal pages 6,7 and 8.
10.64 Accused has claimed benefit of interest income of Rs.85,000/- with respect to the investment made by them in KVPs/NSCs/IVPs in GPO, Kashmiri Gate, Delhi in 1998 and matured in 2004. In this regard, reliance has been placed upon reply to the RTI application as proved by DW5 Sh. Satya Prakash also. I have seen Ex. PW46/DB and in particular the reply dt. 27.2.09 of Chief Post Master/CPIO Sh. Mohinder Singh and also reply dated 14.7.09 of Sh. R. K. Kadian, CPIO. These are at pages 1804 and 1808 and these do indicate that KVPs/IVPs matured during different dates i.e. 6.1.04, 17.1.04 and 3.2.04 and the total maturity amount was Rs.1,70,000/-. Since the amount doubled, the accused is entitled to have benefit of interest of Rs.85,000/-.
10.65 Accused has claimed that he used to maintain entries in his own hand and these entries would clearly indicate that he earned interest of Rs.1,50,000/- on various IVPs. In this regard, he has relied upon his hand written note contained in Ex. PW25/D1 (part of search list). However, merely on the basis of entries maintained therein, I am not inclined to grant any benefit to defence.
10.66 During the course of arguments, defence requested that due to some oversight it could not point out in written arguments regarding interest income from account of accused Ashok Aggarwal maintained with Central Bank of India, Parliament Street branch. As per Ex. DW1/A, duly proved by Chief Manager of CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 78 of 88 Central Bank of India, there was interest income of Rs.10,587.35 which was duly credited in the savings bank account No.16891 of Ashok Aggarwal and such interest was credited during 21.4.79 to 31.12.04. Accused is held entitled to said income of Rs.10,587.35 in view of Ex. DW1/A. FINAL EQUATION 11.0 Thus, in view of my foregoing discussion, accused is found having total income as under:
Head Income
Income Proved ( as per Chart of Charge-sheet) 3654480.69
Interest Income (Transposed from chart related to assets) 306328.94
Transfer from account of Tilak Raj 84
Transfer in the name of Mamta by Tilak Raj 40000
Investment made by Tilak Raj qua some assets (Taken as gift) 125000 Returns on such investment 809432.5 Funding by Ms. Resham Rani ( Assumed as gift) 108500 Funding by Ms. Resham Rani (Assumed as gift) 255000 Interest income from NSS account 26747 Interest Income from SB A/c 19490 with Bank of India, Vikas Puri 669 Part of interest income from account no. 845452 with GPO 753 Part of interest income from account no. 822578 with GPO 4540 Account No 6713198 with Post office, Sansad Marg 620.35 Interest income from FDRs with M/s Escorts Ltd 2801 Interest income from FDRs of Escorts Finance Ltd. 7668 Investment Returns from UTI 240617.93 Investment Returns from IFCI Bonds 16934 Investment Returns from IRFC Bonds 12375 Investment Returns from Haridwar Development Authori-
ty 22030
Interest from NSC, Sansad Marg 9135
Interest earned from investment with PO Tilak Nagar 90000
Interest earned from investment with PO Tilak Nagar 28270
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 79 of 88
Interest earned from investment with GPO Kashmiri Gate 85000
Interest earned from Central Bank of India, Parliament Street branch 10587.35 TOTAL 5857573.76 11.1 Thus the final equation would read as under:-
(A) Assets at the beginning of check period: Rs. 20,000.00 (B) Assets at the end of check period: Rs.7007026.84 (Including immoveable property) (C) Income during check period: Rs. 5857573.76 (D) Expenditure during check period: Rs. 1513326.43 Disproportionate Assets= [(B-A) + D] - C = [(7007026.84 -20,000.00) + 1513326.43] - 5857573.76 = [6987026 + 1513326.43] - 5857573.76 = 8500352.43 -5857573.76 = Rs. 2642778.67 Percentage of Disproportion = Disproportionate Assets X 100 = 2642778.67X100 Income from known sources 5857573.76 = 45.11 % 11.2 In the case of KRISHNANAND AGNIHOTRI V. STATE OF M.P., AIR 1977 5C 796, it has been held that a margin of 10% of the income of the accused should be given for the purpose of determination of disproportionate assets held by him and even if I apply said principle, accused cannot get rid of this case as further benefit of approximately 6 lacs will not absolve him at all.CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 80 of 88
LEGAL POSITION AND OFFENCE OF ABETMENT 12.0 Possession of disproportionate assets itself constitutes an offence of criminal misconduct and essentially such offence is based on the unstated presumption that such assets must have been acquired by corrupt or illegal means or by abuse of official position. No further proof or mens rea is required to be established.
12.1 Ingredients of the offence under Section 13(1) (e) of the 1988 Act are as under:-
(i) the accused is a public servant;
(ii) the nature and extent of the pecuniary resources of property found in his possession;
(iii) his known sources of income ;
(iv) such resources or properties found in possession of the accused were disproportionate to his known sources of income.
12.2 Once, however, the aforementioned ingredients are established by the prosecution, the burden of proof shifts on the accused to show that the prosecution case was not correct. Accused is required to satisfactorily account for possession by him of assets disproportionate to his income. The extent and nature of burden of proof resting upon the public servant cannot be higher than establishing his case by a preponderance of probability. But, at the same time, as pointed out by Ms. Sharma, while relying on State of MP Vs. Awadh Kishore Gupta 2004(1) SCC 691, legislature has advisedly used the expression "satisfactorily account" and has thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth but also to satisfy the Court that his explanation was worthy of CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 81 of 88 acceptance. Thus such burden has to be discharged in a satisfactory manner as well.
12.3 Investigating agency, in such matters, is free to decide on the check period. But it needs to be kept in mind that in such type of cases, as an exception to the general rule, the burden is substantial and gargantuan on the accused and, therefore, while selecting such period, CBI should concentrate and focus on such segment where there is actually volatile activity or unexplained acquisitive transaction. Undoubtedly, such period should embrace comprehensive picture of conduct of accused in acquiring and expending as well.
12.4 Here, I must hasten to supplement that CBI should have made extra efforts to collect material from concerned authorities to appreciate the defence of accused. On the contrary, accused himself ran madly from pillar to post and moved RTI applications, one after the other, before every possible forum.
12.5 In such type of matters, IO has to be extra patient and should give sufficient opportunity of hearing to accused. His written explanation should be considered thoroughly and such explanation needs to be discussed in detail in the charge-sheet as well and if possible, should be made part of challan so that at least, it can be assessed, in appropriate cases, whether any particular defence has been taken for the first time before the court or had been pleaded before I.O. as well during investigation. Investigating agency should also comprehensively scan the bank statements in order to find out whether there is any unexplained or questionable deposit entry. It is experienced that while calculating assets, IO keeps himself confined to balance as on the last date of check period and never attempts to analyze and pore over the entire entries. It is also agonizing to note that CBI, in such type of matters, leaves arduous task of calculation to the Court and rarely bothers to come up with complete precision as to how any particular figure was deciphered during investigation.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 82 of 8812.6 I hope that CBI, in future, would devote as much time as possible in such type of matters, scrutinize the record properly, track trail of linking investments, apply proper calculations, select check period very judiciously and would also simultaneously issue instructions of preservation of record to the concerned agencies so that, if required court is in a position to appreciate the defence contentions and valuable defence opportunity is not lost because of record being weeded out.
12.7 In P. Nallammal v. State, (1999) 6 SCC 559 at page 566, it has been lucidly held that there was no force in the contention that the offences under Section 13(1)(e) could not be abetted by private or another person.
12.8 According to Ms. Sharma, a housewife is increasingly becoming a safe harbour for ill-gotten properties of her husband or her in-laws who are public servants. She has contended that accused Mamta was not an illiterate lady and she knew that her husband had been investing in various securities in her name as well and that he had no real and legitimate source of income for having invested substantially and, therefore, it has to be necessarily inferred that she was a willing partner to the crime and facilitated commission of offence.
12.9 However, merely because she happens to be wife of public servant, she cannot be hauled up robotically. There has to be something more than that to make her abettor. She cannot be dubbed as accused merely because of such relationship more so when her role is found to be passive or if I may say so detached, dormant and inconsequential with respect to acquisition. Her being signatory to investment- applications would not per se indicate that she was trying to conceal the money or facilitating the commission of offence. If such analogy is accepted than one day, CBI would even make minor children and aged parents of any such public servant stand in dock.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 83 of 8812.10 Abetment" is defined in Section 107 of the Penal Code as under:
Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
12.11 Sec 107 IPC, which speaks of aiding, abetting, conspiracy or intention, requires a significant degree of positive act and mens rea. It cannot be deciphered solely because Mamta is wearing bridal cloak. As per CBI's own case, Mamta was only a house-wife. Thus for want of any real connecting material or convincing circumstance, I won't be convicting her simply because she happens to be the wife of a public servant and some investments are found to be in her name.
12.12 Accused Ashok Aggarwal, I must say, did remarkable job during the course of arguments by partly arguing his case all by himself and in the process efficiently provided the sequence and chain of some of the investments. Sh. Anil Kumar, learned defence counsel also, in an excellent manner, took me thorough each and every entry with consummate ease.
12.13 I must also applaud efforts and pains taken by Ms. Jyotsna Sharma, PP for CBI for quickly studying the entire case, understanding the same and also very swiftly calculating the various computations and figures despite the fact that it happens to be her first DA case. Her co-prosecutor was transferred mid-way but she did not get deterred at all. Her commerce background proved to be a bonus. I place on record my admiration for her splendid job.
12.14 Though accused Ashok cried hoarse, term being used metaphorically as CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 84 of 88 he was in fact very polite, emotional and submissive during arguments, that he was not having any asset disproportionate as it was only the planned savings which resulted in such stock of assets, yet I feel that accused himself is to be blamed for the instant mess. He should not have allowed his parents to invest anything in his name or in the name of his spouse or children. If at all, his parents had so invested, he should have intimated his department about such fact and should have specified the same in his Returns submitted to his department. He was too casual in his approach in this regard at least. He has strongly relied upon his hand-written note which was seized during investigation and has contended that such note makes everything crystal-clear.
However, it is not so. I have tried to minutely scrutinize all the valuable certificates, applications forms, bank-statements etc. and wherever, it was found a bit possible to grant benefit to accused, I passed on the same to him. Merely on the basis of verbal assertions, rough and wild estimation, remote likelihood and guess-work, defence cannot claim any real benefit though over-stretched check-period must have proved a big stumbling block for him as such old record are normally not preserved. Legislation needs to do something in this regard in order to ensure that defence of accused is not impaired by selecting check period in whimsical manner as in such type of matters, most of the times, accused is found 'proving' his case instead of mere 'defending' the one.
12.15 Ms. Sharma scrupulously and meticulously evaluated all statements of accounts and Pass-Books and has asserted that there are various unexplained deposit cash entries in various bank accounts of accused as well as father of accused. She contends that there is a possibility that ill-gotten money had first been deposited by accused in such bank-accounts and then withdrawn and rotated and by such procedure, accused wants to unjustifiably demonstrate that he had received gifts from his parents. This, according to her, can be a modus operandi to consciously conceal his illegal booty and to convert such illegal money into legal. I appreciate her such contention but it has come too late. It was for the IO to have scrutinized all the entries CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 85 of 88 during investigation though, it is indeed perplexing and impenetrable as to how father of accused was able to save such big chunk when he was not getting any lofty salary or pension and when he had also married off his three children. Accused Ashok Aggarwal also came up with false assertion that he had substantial rental income but PW2 Mr. Ahuja flattened his such contention.
12.16 Accused Ashok Aggarwal did not submit regular property returns and did not inform his department about these alleged gifts and heavy investments made in his name and in the name of his wife and children. His year-wise investment is, in fact, on a very large magnitude. Despite all these infirmities on his part, I feel that court has shown him extra generosity and has given him maximum leniency keeping in mind the elongated check-period but still, it becomes evident that assets, available with him and acquired during the check-period, are found to be inconsistent with his known sources of income.
12.17 Defence has also questioned the validity of the sanction as well. It has been argued that concerned witness has given evasive answers and his deposition reveals complete non-application of mind.
12.18 Accused Ashok Aggarwal was a senior-ranked officer and sanction was only conveyed through Sh. M.K. Anand, Director(Vigilance), Department of Commerce. Sanction had been accorded by President of India and Sh. Anand only conveyed accord of sanction by order and in the name of President.
12.19 Sh. M.K. Anand has been examined by prosecution as PW 38. He has also clarified in his deposition that President of India was competent to remove accused Ashok Aggarwal from service. He has proved his conveyance of sanction as Ex.PW38/A. Fact remains that such sanction has been issued in the name of President under Rules of Authentication. Sh. M.K. Anand is found competent official to CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 86 of 88 authenticate the order on behalf of President. I am also mindful of Article 77(2) of Constitution of India whereby any competent official is required to authenticate the order made and executed in the name of President.
12.20 On careful perusal of the entire testimony, I am of the opinion that accused has not been able to show any reason which may persuade me to hold that sanction was invalid.
12.21 Law does not enjoin that sanction should be accorded by mentioning all necessary evidence and detailed facts. Sine-qua-non for grant of sanction is placement of complete material before sanctioning authority against the accused and it should be perceptibly clear from sanction order that sanctioning authority had taken into consideration those materials. There is nothing to show that if any other material had been before such authority, it would have taken any different view or had refused to accord sanction.
12.22 Where it is unmistakably visible that the sanctioning authority before according sanction had looked into the evidence and material and had considered the circumstances and facts of case and only then had granted sanction, the plea that sanction order suffers from vice of non-application of mind would not be a tenable one.
12.23 Needless to mention, such provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty. Even if a draft sanction is sent to such sanctioning authority, it cannot be inferred that there was no application of mind. In the case of DARSHAN LAL VS STATE, CRIMINAL APPEAL NO.73/2001 (DECIDED ON 31.07.2009), our own Hon'ble High Court observed that it would be incorrect to conclude that simply because the sanctioning order was a virtual reproduction of the CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 87 of 88 draft sanction, the same would be deemed to have been passed without any application of mind and that there was no necessary concomitant corollary between the two. Reference be also made to Indu Bhushan Chatterjee Vs. State of West Bengal AIR 1958 SC 1482 and Suresh Kumar Duggal Vs. CBI CRIMINAL APPEAL NO. 100/2003 (DECIDED ON 10.07.2013).
12.24 Defence has placed reliance upon M. Krishna Reddy Vs. State Dy. Supdt. Of Police AIR 1993 SC 313 and Krishnanand Vs. State of MP AIR 1977SC
796. I have seen both said judgments and I feel that keeping in mind the peculiar facts of the present case, defence cannot drive home any advantage out of these authorities. Benefit of margin of 10% has been given as per the settled law and accused cannot claim benefit of margin of 20%.
CONCLUSION 13.0 Thus, in view of my foregoing discussion, accused Mamta Aggarwal is acquitted of all charges.
13.1 It, however, stands proved that accused Ashok Aggarwal was found in possession of assets disproportionate to his known sources of income which is a misconduct punishable under section 13 (1) (e) read with section 13 (2) of Prevention of Corruption Act. Such extent of disproportionate assets is found to be of Rs. 26,42,778.67. Accused Ashok Aggarwal is accordingly held guilty and convicted u/s 13(1) (e) read with sec 13(2) of Prevention of Corruption Act.
ANNOUNCED IN OPEN COURT ON 1ST DAY OF OCTOBER, 2013.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 88 of 88 State vs. Ashok Aggarwal CC No. 08/2012 U/s 13 (2) r/w 13 (1) (e) PC Act Thursday, October 03 2013 Present: Ms. Jyotsna Sharma, Learned PP for CBI.
Convict Ashok Aggarwal with Sh. Anil Kumar, Learned defence counsel 1 Heard arguments on sentence.
2 Ms. Sharma has contended that convict should not be shown any sympathy as he was a very senior official who eventually became Director in DGS&D and despite knowing full well about Conduct Rules, he kept on acquiring movable assets in the shape of KVPs, NSCs etc. in his name or in the names of his family members and did not bother to inform his department about such acquisition. She has, therefore, prayed for maximum sentence and it has also been additionally asserted that Court should confiscate numerous such assets which have been manifestly acquired with the help of ill-gotten money.
3 Sh. Anil Kumar has, on the other hand, prayed for compassionate view. According to him, convict had never indulged in any malpractice or misconduct and remained fully honest and upright during his career and was given various responsible positions even after the registration of instant case. It has been argued that his miser nature and unusual saving-attitude has proved to be his nemesis. It has been also re-emphasized that his parents had funded number of investments and these yielded excellent results and, therefore, money CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 89 of 88 got multiplied in double-quick time. It has also been claimed that his entire career remain unblemished and keeping in mind the overall facts, agony of trial already undergone by him, his clean antecedents, impeccable service record, his poor health and his age, he be let off with minimum sentence.
4 I have given my thoughtful consideration to the rival contentions.
5 Any public servant is required to notify his employer about the assets possessed by him at the time of his joining and same is required to be updated annually. Purpose is that such employer, at least, knows as to whether any property, movable or immovable, has been acquired by such employee and if yes, how? In the present case, it seems that convict never gave any such vital information to his employer.
6 Extent of assets disproportionate is found to be Rs. 26,42,778.67.
7 I am very much mindful of the fact that elongated check-period must have created obstacles before convict as generally, people do not keep such old record and it becomes a herculean task to track the trail of money invested more than 25 years back. Unfortunately, in such type of cases, onus is on accused to satisfactorily explain such acquisition as these facts have to be in his special knowledge only. I would add that wherever, convict could establish any such fact, benefit was passed on to him. I could not accede to his explanation on various other acquisitions for want of complete clarity and corroboration. However, such long check-period would certainly persuade me to be soft on him.
8 Confiscation of property is not, usually, resorted to for want of specific CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 90 of 88 provision under Prevention of Corruption Act. However, Court can still exercise such power relying on provisions contained under Code of Criminal Procedure.
Reference be made to Mirza Iqbal Hussain Vs.
State of Uttar Pradesh, AIR 1983 SC 60.
10 In view of various aggravating and mitigating circumstances on
record and as pleaded before me, I hereby sentence convict Ashok Aggarwal to undergo rigorous imprisonment for a period of two years. He is also burdened with fine of Rs. 50,000/-. In default thereof, convict would undergo simple imprisonment for a further period of six months.
11 Keeping in mind the overall facts and circumstances of the case, it would be in the fitness of the things if KVPs having maturity value of Rs. 20 lacs are confiscated to State. Accordingly, KVPs issued by Parliament Street worth Rs. 17 lacs (maturity value) as contained in Ex. PW10/E1 to E99 and KVPs of Rs. 3.00 lacs (maturity value) issued by Tilak Nagar Post Office as contained in Ex. PW13/D-1 to Ex. PW13/D-15 are hereby confiscated. CBI would take requisite steps for encashing the same after the expiry of period of appeal or as per the outcome of appeal. Such realized amount would be deposited in the Court by CBI without any delay thereafter.
13 Convict be sent to jail under appropriate warrants.
14 A copy of judgment & order on sentence be given to convict free of cost.
15 File be consigned to record Room.
CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 91 of 88Announced in the open Court On this 03rd day of October, 2013.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 08/2012 CBI Vs. Ashok Kr. Aggarwal & Anr. Page 92 of 88