Delhi District Court
Mahesh Chandra vs . State Of U.P. (1993 Cri.L.J. 1151) ; ... on 18 May, 2015
IN THE COURT OF SANJAY GARG-I:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No.03/2010
ID No. 02401R0165462005
Central Bureau of Investigation (CBI)
Versus
B.R. Malhotra
S/o. Late Shri R.P. Malhotra
R/o QD-38, Vishakha Enclave,
Pitam Pura, New Delhi
Worked as A.E., MCD, Delhi
Case arising out of: FIR No. RC-DAI-2000-A-005
Date of FIR : 17.10.2000
Date of Institution : 03.03.2005
Date of conclusion of
Final Arguments : 20.04.2015
Date of Judgment : 24.04.2015
JUDGMENT:
1 This case vide RC No. DAI-2000-A-0059 was registered against the accused on the complaint made by Inspector, CBI, ACB Shri D.K. Singh for having acquired assets disproportionate to his knowns sources of income. Earlier, a case RC DAI-2000-A-0041 was CC No.03/2010 Page1 of 44 registered on 24.08.2000 against the accused and other MCD Officials while working in the capacity of Zonal Engineer /A.E. During course of investigation of that case, search of residential premises of accused QD-38, Vishakha Enclave, Pitampura, Delhi was conducted on 25.08.2000 and during search various incriminating documents showing investments in movable and immovable properties were recovered. On the basis of scrutiny of these documents, Inspector D.K. Singh had made the complaint, on the basis of which this case was registered against the accused U/s. 13(2) r/w 13(1) (e) of PC Act on 17.10.2000.
2.0 Earlier in this case, on 30.08.2003 a Charge Sheet was filed against accused U/s. 13(2) r/w 13(1) (e) of PC Act for acquiring disproportionate assets worth Rs.15,70,895/- to his known sources of income. Special Court discharged the accused vide order dated 23.08.2004 observing that accused had rendered service of 28 years before the beginning of the check period, during this period, accused must have put some money in fixed deposit or other savings, he must have accumulated some assets and the same have not been taken into account. The calculations of his income during the check period do not reveal if his savings matured during check period. The assets of the accused, his wife and children at the beginning of the check period form the foundation on which case U/s. 13(1)(e) of the Prevention of Corruption Act has to be built up. This case appears to have been made without a foundation. The Special Court had given liberty to CBI to file fresh Charge Sheet observing that in case further investigation reveals disproportionate assets to the known sources of income, fresh Charge Sheet may be filed. In compliance of the directions of the Special Judge, CBI, the assets of accused, his wife & CC No.03/2010 Page2 of 44 son were duly considered. All the UTI, MIP, Tata Bonds, investments in Post Office MIS Account adn NSCs jointly held by accused, with his wife and son were removed from assets of accused .
2.1 Investigation revealed that accused was appointed in MCD as J.E. on 01.05.1964 and worked in various Zones. He was promoted as Assistant Engineer on 31.12.1985 and remained posted in various Zones. He got married in 1966, and got a daughter Sheenu Malhotra in February, 1973 and a son Vikas Malhotra in 1974. Investigation further revealed that wife of accused Smt. Usha Malhotra is filing Income Tax Return since long back showing income in property dealing business and his son Vikas Malhotra also started filing Income Tax Returns since at the tender age of 15 years showing income through property dealing business and thereafter was working as partner in M/s. Shivaey Pharmabeutors Company. No immovable asset was found on the name of accused and he was only found holding number of movable assets. The Immovable assets and movable assets in the name of Usha and Vikas Malhotra were separated from the Assets of the accused.
2.2 Investigation further revealed that accused made most of his investments and acquired assets during the period from 01.01.1995 to 25.08.2000 and accordingly this period was taken as check period. Accused did not have a good reputation as a public servant and was compulsorily retired from service by MCD, Disciplinary Authority on 17.01.2002 in view of penalty for charges of unauthorized construction in his jurisdiction. Even a criminal case regarding favour in unauthorized construction vide FIR No. 48/94 of ACB, Delhi Government was found pending against him. As per the CC No.03/2010 Page3 of 44 calculations shown in the Charge Sheet, he was found having disproportionate assets to the tune of Rs.9,18,250/- which is 96.56% of his known source of income.
3.0 As per the Charge Sheet, various calculations made by CBI under different Heads are as follows: -
A: Assets held prior to check period i.e. as on 01.01.1995 Srl. No. Assets Amount
(i) Balance in Punjab National Bank, Ashok Vihar Rs.3662/-
A/c. No. 15440
(ii) Household Articles as per Inventory prepared Rs.1,23,240/-
on search date i.e. 25.08.2000 Total Assets prior to check period Rs.1,26,902/-
It is worthwhile to mention here that the accused has made an expenditure of Rs.1,91,149.50 prior to 01.01.1995 towards payments of the premium of 10 out of 11 LIC Policies held by him (most of which commenced much before the beginning of the check period) and thus same is excluded from expenditure on LIC Policies premium paid during the check period.
Further the maturity amount of Rs.80,405/- of two LIC Policies and amount of Rs.63,750/- towards Survival benefit received against four LIC Policies during check period have been added into income of the accused.
CC No.03/2010 Page4 of 44 B: Assets held at the end of the Check Period i.e. 25.08.2000.
Srl. Assets Amount
Nos.
(i) Balance in Oriental Bank of Rs.1,02,301/-
Commerce, Pitampura, A/c.
No. 3981
(ii) Household Articles as per Rs.2,29,210/-
Inventory on 25.08.2000
(iii) Cash in Brief Case of accused Rs.26,500/-
on 25.08.2000
(iv) PPF Investment Rs.2,45,000/-
(v) Kishan Vikas Patra Rs.1,30,000/-
(vi) National Savings Certificate Rs.1,60,000/-
(vii) Tata Bond/IDBI Bond Rs.20,200/-
Total Rs.9,13,211/-
Assets held jointly with Smt. Usha Malhotra (Wife):
Srl. Assets Amount Nos. (i) National Savings Certificate (As purchased in Rs.10,000/-
cash and not reflected in I.T. Returns of Usha Malhotra in corresponding year fro claiming benefit U/s. 88 of I.T. Act)
(ii) MIS No. 639244 of Post Office R.P. Bagh (As Rs.2,04,000/-
no debit entries of cash withdrawal from Bank A/c/ not reflected in IT Returns of Usha Malhotra /cash given by B.R. Malhotra to Post Office Agent who arranged 3 cheques from his clients Accounts as large amount to be deposited in Post Office through cheque/draft only but cheque was not provided by Usha/B.R.Malhotra show it was ill gotten money of accused) CC No.03/2010 Page5 of 44 Assets held jointly with Shri Vikas Malhotra (Son): -
Srl. Nos. Assets Amount
(i) National Savings Rs.80,000/-
Certificate (As only 50,000
invested in NSC out ot
total NSC worth Rs.
1,30,000/- reflected in the
IT Returns of Vikas
Malhotra
Total assets at the end of check Rs.12,07,211/-
period
C:Income of accused during the Check Period : -
Srl. Assets Amount
Nos.
(i) Net salary including arrears from Rs.6,88,568/-
MCD
(ii) GRF withdrawal for marriage of Rs.1,00,000/-
daughter
(iii) Interest in Bank A/c. No. 15440, PNB Rs.5,638/-
Ashok Vihar
(iv) Interest in Bank A/c. No. 3981, OBC Rs.3,131/-
Pitampura
(v) LIC Policy No. 24521359 & Rs.80,405/-
50288330 matured
(vi) LIC Policy No. 120148822, Rs.63,750/-
110013813, 111770506 &
112007848 Survival Benefit
(vii) Interest on Sri Ram Finance FDR Rs.9,456
Total Income Rs.9,50,948/-
CC No.03/2010 Page6 of 44
D: Expenditure during the Check Period
Srl. Nos. Assets Amount
(i) LIC Policies Premium Paid
during 1.1.1995 to 25.08.2000 : Rs.2,09,741/-
Start Date Policy No. Yearly Premium
Amount
28.03.74 24521359 1173.50
26.02.81 24896442 1456.00
28.02.84 50288330 1774.00
28.11.84 74884392 565.00
28.07.86 110318387 3160.00
01.04.86 110321839 3687.00
28.12.87 110013813 2222.00
28.04.91 120021999 3077.00
28.08.91 120148822 2493.00
28.04.93 111770506 9353.00
28.04.95 112007848 9658.00
(ii) Non Verifiable Kitchen expenses 1/3 of Gross Rs.1,45,145/-
Salary of accused taken only 50% as rest
benefit given towards expenses, if any, made by wife and son of accused and included in expenditure of his wife
(iii) Expenses on daughters marriage (May 1996) Rs.1,60,000/-
(iv) Expenses on Son's marriage (April, 1989) Rs.1,50,000/-
(v) Telephone Bill Expenses of Tel. No. Rs.33,801/- +
7419255 ; Tel No. 7458027 Rs.10,880/-
(vi) Electricity Expenses Rs.9,500/-
(vii) Ganga Ram Hospital Bill Rs.36,928/-
(Viii) Income Tax Paid Rs.19,899/-
(ix) 5110 Nokia Mobile Phone with Connection Rs. 12,995/-
Charges No. 9811101466
Total Expenditure Rs.7,88,889/-
CC No.03/2010 Page7 of 44
4 Vide order on Charge dated 07.01.2009, accused was
charged for commission of offence U/s. 13(2) r/w 13(1) (e) of PC Act, to which accused pleaded not guilty and claimed trial.
Prosecution Evidence 5.0 In total, Prosecution has examined 13 witnesses.
5.1 PW-1 Shri Ram Gopal was working as UDC in MCD and he had prepared salary statement of accused which is Ex.PW-1/A. He also proved Production Memo Ex.PW-1/B bearing signatures of Shri Shailesh Govind. Ex.PW-1/C is the statement of GPF account of the accused, Ex.PW-1/E is Form No. 16 of accused for the assessment year 1999-2000, Ex.PW-1/F to Ex.PW-1/H are Forms No. 16 for the assessment years 2000-01, 2001-02 & 1998-99 respectively.
5.2 PW-2 Inspector D.K. Singh is the complainant in this case. He had conducted search in the house of accused i.e. QD-38, Vishakha Enclave, Pitampura. He proved Search cum Seizure Memo Ex.P-1, an Observation Memo Ex.P-2, Locker Search cum Observation Memo dated 01.09.2000 as Ex.P-3, another Locker Search cum Observation Memo also dated 01.09.2000 as Ex.P-4. He proved his complaint Ex.PW-2/1 on the basis of which FIR Ex.PW-2/2 was registered.
5.3 PW-3 Shri J.C. Sharma was working as Chief Manager, OBC, Pitampura. He submitted statement of account of Saving Bank A/c. No. 3981 of accused in his Branch to CBI which is Ex.PW-3/1.
CC No.03/2010 Page8 of 44
5.4 PW-4 Shri Pawan Mehta was Inspector, Post &
Telegraph, Civil Lines Post Office, Delhi. He proved Statement of Account and Account Opening Form of MIS A/c. No. 639244 as Ex.PW-4/1 & 2.
5.5 PW-5 Smt. Rekha Deepak was working as Assistant in Legal Division of LIC. She proved her statement Ex.PW-5/1 containing details in respect of 17 LIC Policies on the name of accused and his family members. He also proved Status Report given by her on various LIC Policies as Ex.PW-5/2 to 12.
5.6 PW-6 Shri D.P.S. Chawla was posted as Sr. Manager, Vigilance Department, PNB. He proved Statement of Account Ex.PW-6/1 regarding Saving Bank A/c. No. 15440 on the name of the accused.
5.7 PW-7 Shri Ved Prakash Kalra was working as Public Relation Inspector in Civil Lines Post Office. He proved ledger sheets of different accounts admitted by accused as Ex.PW-7/1 to Ex.PW-7/5.
5.8 PW-8 Shri Ishwar Mishra was working as Public Relation Inspector in Malkaganj Post Office, Delhi. He proved four applications meant for purchase of Kisan Vikas Patras as Ex.PW-8/1 to 4. Six applications for purchase of NSCs already admitted by accused as Ex.PW-8/5 to Ex.PW-8/10.
5.9 PW-9 Inspector Alok Kumar had conducted investigation in this case. He proved order of Shri D.C. Jain, the then S.P. , CBI as CC No.03/2010 Page9 of 44 Ex.PW-9/1 vide which investigation was entrusted to him. He had conducted investigation in this case. He proved statement of account of PPF A/c. No. 103562 on the name of accused as Ex.PW-9/2. He proved the three applications received by him moved by accused and his family members for purchase of NSCs as Ex.PW-9/3.
5.10 PW-10 Shri Subhash Chand Jain, his wife Mrs. Vinay Jain was carrying business of Investment Consultant under the name & style of M/s. Vinay Jain. As per him, the Monthly Income Scheme under joint A/c. No. 639244 on the joint name of accused and his wife was opened and accused had brought sum of Rs.2,04,000/- in cash for depositing the sum in the said account. He had deposited this amount in three Savings Bank Accounts in cash and took a cheque of same amount got issued from the said Account Holders on the name of Chief Post Master.
5.11 PW-11 Shri Rajesh Kumar Taak was posted in Ashok Vihar Head Post Office as Public Relation Officer (Postal) in 2003. As per him, during 1995 to 2000, in case of maturing of NSC, maturity amount of Rs.20,000/- used to be paid by way of cheque.
5.12 PW-12 Shri R.C. Sharma in the year 2003 was posted in Postal Department but he did not depose anything in respect of this case.
5.13 PW-13 Shri Ram Kishan also worked in Postal Department. He also deposed same facts as deposed by PW-11.
CC No.03/2010 Page10 of 44
5.14 46 documents were admitted by accused U/s. 294 Cr.P.C.
and his statement was recorded to this effect vide order dated 04.03.2009. These admitted documents are Ex.P-1 to Ex.P-41, Ex.P-42A to Ex.PW-42R, Ex.P-43 (A-1 to A-31), Ex.P-44 (A-1 & A-2), Ex.P-45A & Ex.P-45B, Ex.P-46 A to F Statement of Accused & Defence Evidence 6.0 On the basis of the incriminating evidence against the accused, his statement was recorded U/s. 313 Cr.P.C. wherein he took defence of false implication in this case.
6.1 Accused opted to lead defence evidence and examined 12 witnesses.
6.2 DW-1 Shri Chander Mohan, A.O. (Engineering), MCD identified Rubber Stamp of their Office on document Ex.DW-1/DA.
6.3 DW-2 Shri Rajender Singh, LDC, LIC of India filed Status Report in respect of Policy No. 024896442 as Mark D-2/A. 6.4 DW-3 Shri Satya Prakash, Public Relations Inspector, Office of Chief Post Master, Delhi GPO produced his authorization to appear in Court as Ex.DW-3/A and the reply of Chief Post Master as Ex.DW-3/A-1.
6.5 DW-4 Shri Satish Gupta, Higher Grade Assistant, Branch No. 311, LIC of India, Rajendra Place, New Delhi filed computer generated print out of ledger sheets as Mark D-4/A. CC No.03/2010 Page11 of 44 6.6 DW-5 Shri Ram Yash, Public Relation Officer, Office of Director, GPO proved forwarding letter Ex.DW-5/A and other several connected documents as Ex.DW-5/B (1 to 7) 6.7 DW-6 Shri Shyam Singh Chauhan, Dy. Manager, Punjab National Bank proved the letter Ex.DW-6/A issued by Assistant General Manager. As per which the summoned record stands destroyed as per the RBI Guidelines.
6.8 DW-7 Ms. Nandita Manager (Legal), Delhi Division Office- I, LIC of India deposed that record pertained to Policy No. 24896442 is already lying on record as Mark D-2/A. and Mark D-4/A 6.9 DW-8 Shri Atul Bansal Assistant Manager (Collections), GE Captial Services India produced the record Ex.DW-8/1 to Ex.DW-8/3 in respect of FDRs issued by SRF Finance Ltd. on the name of accused.
6.10 DW-9 Shri Ravi Shanker Arora, Manager, Oriental Bank of Commerce brought authorization letter Ex.DW-9/A in his favour. As per him, the summoned cheques are not in the custody of their Branch and no shadow copies of the cheques used to be retained during those days.
6.11 DW-10 Shri Nirdosh Kumar Sharma, Secretary, DMC, Engineering Department Co-operative Thrift & Credit Society Ltd. deposed that A/c. No. 31 stood in the name of accused, against which a Pass Book Mark D-10/A is issued. He produced photocopy of Meeting Agenda and copy of Register of the Society as Mark CC No.03/2010 Page12 of 44 D-10/B & C. 6.12 DW-11 Shri Suresh Chand Gupta, AO (PR/CR Cell), North MCD, Delhi filed photocopy of the property return during the period 1986 to 1998 filed by accused as Ex.DW-11/A(Colly.) 6.13 DW-12 Shri Arun Kumar Gupta is Chartered Accountant. He deposed that he was engaged by accused as his Chartered Accountant and had looked after his financial affairs from about 10 - 15 years.
Contentions raised by both the parties 7.1 Heard arguments of Shri V.N. Ojha, ld. SPP for CBI and Shri Manish Vashisht and Shri Sameer Vashisht, ld. Counsels for accused. Perused the record.
7.2 Ld. SPP submitted that Prosecution has been able to prove to the hilt that accused was having disproportionate assets to the tune of Rs.9,18,250/- and percentage of disproportion comes out to 96.56%. It has been submitted that 46 documents stand admitted by the accused vide his statement 04.03.2009, which further corroborates the case of the Prosecution. It is stated that a miscalculation had occurred in calculating the salary of accused during check period. Before giving benefit of this amount, 1/3rd needs to be deducted which has to be deducted from the total income on account of non-verifiable expenses. It has been urged that income of the accused earned from the salary before start of check period cannot be added in his income during the check period as the burden CC No.03/2010 Page13 of 44 is upon accused to prove that at the beginning of the check period, he was in possession of particular money or assets. It has been submitted that accused was also involved in other cases pertaining to unauthorized construction under his area and he is not having clean antecedents. Ld. SPP has also filed Written Submissions.
7.3 Ld. SPP has relied upon the following judgments: - Sri Mahesh Chandra Vs. State of U.P. (1993 CRI.L.J. 1151) ; State of Maharashtra Vs. Pollonji Darabshaw Daruwalla [1987 (Supp) SCC 379) ; N. Ramakrishnaiah (Dead) thr. LRs Vs. State of A.P. [2009 CRI. L.J. 1767) ; State of Madhya Pradesh Vs. Awadh Kishore Gupta [2004 CRI.L.J.598] ; P. Nallammal Vs. State [AIR 1999 SC 2556]; Bhaskar Shankar Wagh & etc. Vs. State of Maharashtra [2008 CRI. L.J. (NOC) 941 (BOM.)] ; State, Prosecution Vs. Bharat Chandra Roul[1995 CRI. L.J. 2417].
7.4 Shri Manish Vashisht, ld. Counsel for accused submitted that PW-1 has admitted that accused had earned Rs.8,03,833/- on account of salary before check period and the same should be added to his income. It is stated that even Investigating Officer has admitted during his cross-examination that salary earned by accused before check period was not given due consideration. It has been submitted that even salary of accused during check period has been not calculated by Investigating Officer correctly and there is a gap of Rs.86,633/- and this amount should be added to his income. It has been submitted that wife and son of accused admittedly by Prosecution were filing Income Tax Returns much before the check period, this fact was totally ignored by Investigating Officer and same should be given due consideration while evaluating evidence. It has CC No.03/2010 Page14 of 44 been further submitted that various investments made by the accused during check period in Kisan Vikas Patras, National Saving Certificates and other Bonds have given him interests and returns periodically, during the check period, but Investigating Officer deliberately did not count all this and same should be given due consideration. It has been further submitted that the law is settled that Prosecution is required to prove beyond reasonable doubt but accused is required to establish his defence only by preponderance of probability. The standard of burden of proof is very high on the Prosecution but it is not same as far as accused is concerned and it is much lighter on him in comparison to the Prosecution.
7.5 In support of his submissions, ld. Counsel relied upon following judgments: - M. Krishna Reddy Vs. State Dy. Superintendent of Police, Hyderabad [Crl. Appeal No. 354/1990 (1992) 44 SCC 45] ; State of Maharashtra Vs. Laxmi Narismham [Cri Appeal No. 88 of 1973 1977 MhLJ 715]; State of Maharashtra Vs. Pollonji Darabshaw Daruwalla [Criminal Appeal No. 318/1978] 1987 (Supp)SCC 379 ; Pharma Drugs Manufacturing Company Vs. Excise and Taxation Officer, Jammu [1987 (Supp) SCC 387]; Pape Gowda Vs. State [ 1971 SCC Online Kar 197 ; (1971) 2 Mys LJ 255 ; 1972 Cri LJ 120] ; Umesh Kumar Chaubey Vs. State of Madhya Pradesh [ Cri. C. No. 3532 of 1999, 2000 Cri.L.J. 1760]; & Ashok Tshering Bhutia Vs. State of Sikkim [(2011) 4 SCC 402).
CC No.03/2010 Page15 of 44
Evaluation of evidence
8.1 Following Charts have been prepared on the basis of the
Charge Sheet. These Charts should prove handy as things admitted are not required to be dealt with comprehensively.
Income of Accused during Check Period 8.2 As per the Charge Sheet, income of the accused during check period i.e. 01.01.1995 to 25.08.2000 has been calculated as Rs.9,50,948/-. The various Items calculated and admitted by accused in this income are reflected in the Chart below: -
Srl. Assets Amount D. Nos & Admitted
Nos. vide
Vide (Exhibit P
Nos.)
(i) Net salary including Rs.6,88,568/- D-17
arrears from MCD
(ii) GRF withdrawal for Rs.1,00,000/- D-18 ( Ex.P-14)
marriage of daughter
(iii) Interest in Bank A/c. No. Rs.5,638/- D-21(Ex.P-17)
15440, PNB Ashok Vihar
(iv) Interest in Bank A/c. No. Rs.3,131/- D-20 (Ex.P-16)
3981, OBC Pitampura
(v) LIC Policy No. 24521359 Rs.80,405/- D-22 (Ex.P-18)
& 50288330 matured
(vi) LIC Policy No. Rs.63,750/-
120148822, 110013813,
111770506 & 112007848
Survival Benefit
(vii) Interest on Sri Ram
Finance FDR Rs.9,456/-
Total Income Rs.9,50,948/-
CC No.03/2010 Page16 of 44
8.3 This income of accused has not been disputed by the ld.
defence Counsel. However, Shri Manish Vashisht, ld. counsel submitted that deliberately Investigating Officer has erred in calculating the salary income of the accused during the check period and denying him benefit of the income earned by him before the check period. Shri Manish Vashisht had contended that it stands proved on record that accused had earned Rs.8,03,833/- as salary income, from the service rendered by him before the check period starting from the day, he joined his service.
8.4 PW-1 Shri Ram Gopal was UDC in MCD. He had produced salary statement of accused as Ex.PW-1/A. Ex.PW-1/DA running into 30 pages is the details of salary drawn by accused during his entire service career. As per this, accused has drawn salary to the tune of Rs.8,08,833/- from 06.05.1964 to 31.12.1994. The pertinent point to be considered is if this amount could be considered as income of accused during the check period.
8.5 Shri Manish Vashisht had contended that this amount is assets spilling over from the period anterior to the check period and the same should be duly considered.
8.6 On the other hand, ld. SPP has contended that whatever assets accused is holding or found in possession at the beginning of the check period are to be considered and this calculation is not required to be made on the basis of notional income earned by accused before the start of check period. It is stated that in his service career of 30 years before the check period, accused might have spent money on running his house, nurturing his children and to CC No.03/2010 Page17 of 44 meet out other expenses. Whatever accused was having at the beginning of the check period, burden is upon him to prove that but here in this case whatever amount was lying in the Bank account of accused was taken into consideration in addition to his household articles, as per inventory prepared at the time of search. In support of his submissions Shri Manish Vashisht has relied upon the observation made by Apex Court in State of Maharashtra Vs. Pollonji Darabshaw Daruwalla (Supra). The Apex Court has observed that assets spilling over from the anterior period, if their existence is probablized would of course, have to be given credit to on the income side and would go to reduce the extent and quantum of the disproportion. Existence of assets prior to check period can be probablized by accused by leading evidence. The assets held by accused prior to check period ought to have been in his possession and cannot be assumed on notionality.
8.7 Ex.PW-6/1 is statement of account of Saving Bank A/c. No. 15440 of accused, as per which, the balance in this account was Rs.3662.65 on 14.12.1994 i.e. before the beginning of the check period i.e. 01.01.1995. Where was the other money which accused had earned prior to the check period? Absolutely no proof in this regard has come on record. Accordingly, the contention of the accused that income of Rs.8,03,833/- earned by him from the salary before check period should be added in his income, is not found tenable.
8.8 Accused has claimed additional income of Rs.86,633/- which admittedly by PW-1 because of miscalculation was left in calculating income of accused during check period. As per CC No.03/2010 Page18 of 44 Ex.PW-1/A, during period 01.01.1995 till 25.08.2000, accused had drawn net salary to the tune of Rs.6,88,568/-. As per the abstract of salary/arrears received by accused which is part of Ex.PW-1/DA issued by Administrative Officer (Engineering) of MCD, during check period accused received salary/arrears to the tune of Rs.7,75,201/- PW-1 deposed that on the basis of Ex.PW-1/A it appears that accused remained suspended till October, 1999 till July, 2000 and accordingly, figures mentioned against the relevant months represent subsistence allowance being 50% of his earlier salary. But admittedly by CBI, no suspension order of accused during this period stands proved. Therefore, due consideration has to be given to the difference of salary, during the check period, which comes out to be Rs.86,633/-. The net salary of the accused including arrears during check period is accordingly taken as Rs.7,75,201/- instead of Rs. 6,88,568/-.
8.9 Other additional income claimed by accused is on account of the deposit of amount to the tune of Rs.37,440/- by crediting his Saving Bank Account No. 15440 with PNB (Ex.PW-6/1). As per Shri Vashisht, this amount was received by accused on account of encashment /maturing of his LIC Policy. It has been submitted that because the record being old, the copy of other details of Policy could not be proved on record but from the statement of PW-7, it stands established that Policy No. 24896442 on the name of accused matured on 26.02.1996.
8.10 Ex.PW-5/10 is the Status Report of Policy No. 024896442 on the name of accused. This Policy started from 26.02.1981 and having its date of maturity as February, 1996. As per PW-5, sum CC No.03/2010 Page19 of 44 insured was Rs.20,000/- and yearly premium was Rs.1456/- and policy matured on February, 1996. DW-7 Ms. Nandita is Manager (Legal), Delhi Division Office-I, LIC of Indi. As per her, as per record and as per procedure followed by LIC, the maturity amount was paid to accused in this case. Due to want of necessary records, she cannot tell the exact maturity amount paid thereof but the date of maturity of Policy as per record is '26.02.1996'. Statements of PW-5 & DW-7 regarding this Policy corroborates the version of accused that difference of Rs.15,600/- between the amount received and the premium paid, should be added in his income. I agree with accused that his income is required to be enhanced by Rs.15,600/- on account of this LIC Policy.
8.11 Accused has further claimed additional income to be reckoned in his income during check period, on the basis of the deposits made in his Bank A/c. No. 15440/-, the statement of account of which is Ex.PW-6/1. The following four deposits, as per Ex.PW-6/1 are there in his Saving Bank A/c. No. 15440 with PNB, Ashok Vihar.
Srl. Income Taken Amount
Nos.
(i) Income taken from Credit Entry dated Rs.10,075/-
22.03.1996 (as per Ex.PW-6/1)
(ii) Income taken from four credit entries Rs.63,150/-
dated 11.06.1996, 15.06.1996,
15.06.1996 & 23.06.1996
(iii) Income taken from credit entries dated Rs.46,316/-
04.02.1999 (Rs.23,158/- + Rs.23,158/-)
(iv) Income taken from Credit entries dated Rs.22,300/-
20.05.1998 (2 in number) Rs.9,220/- + Rs.13,080/-
CC No.03/2010 Page20 of 44
8.12 From perusal of Ex.PW-6/1, it is apparent that the amount
mentioned in the above Chart on this particular dates stands deposited in his account by clearing. The pertinent point to be considered is from where this amount has come and can it be put in "known sources of income" as explained in explanation of Section 13(1)(e) of PC Act. As per Shri Vashisht, due to lapse of time despite all endevours on his part, accused is unable to produce the relevant documents regarding his investment, from which these amounts have matured. It is admitted by accused that beyond these entries in Ex.PW-6/1, no other evidence has come on record in this regard.
8.13 Shri Vashisht has urged that for the investigation to be fair, Investigating Officer was supposed to verify these entries and seize relevant record from the concerned Bank. Admittedly, by Investigating Officer (PW-9), he has not done so. It is further submitted that as per settled legal proposition, accused is only required to probablize his defence and he is not required to bring evidence beyond reasonable doubt as Prosecution is required to do. On the other hand, ld. SPP has contended that no benefit of these entries could be given to accused as he has failed to prove their source. It is further contended that accused is not even reported to his Department regarding receipt of these amounts nor he has reflected these figures in his Income Tax Returns.
8.14 Investigating Officer has admitted during his cross- examination that he has not made any enquiry from PNB regarding these entries. To prove that record regarding these entries is not available in the Bank, accused has examined DW-6 Shri Shyam Singh Chauhan, Dy. Manager, Punjab National Bank. DW-6 has CC No.03/2010 Page21 of 44 categorically stated that no record pertaining to Saving Bank A/c. NO. 15440 on the name of accused is available in the Bank as all record has been destroyed in terms of RBI Guidelines and the record which is less than 8 years old is retained. He has further deposed that even shadow copies called for these cheques cannot be produced. Ld. Counsel for accused has contended that if accused has failed to inform his Department regarding receipt of these amounts, or has failed to reflect these figures in his Income Tax Returns, he has not committed any illegality, it is just a irregularity and simply on this ground the deposits entries in his Saving Bank Account cannot be ignored. In support of his submissions Ld. Counsel has relied upon Ashok Tshering Bhutia Vs. State of Sikkim (Supra).
8.15 On the other hand, ld. SPP has submitted that these amount cannot be added in the Income of accused as accused has failed to prove the legal source of these amounts. It is vehemently urged that 'expression known source of income' has reference to source known to the Prosecution and what was the source of these receipts is a fact which is specially within the knowledge of the accused and U/s. 106 of Indian Evidence Act, accused cannot escape from the burden of proving that. In support of his submissions, ld. SPP has relied upon the observation made by Apex Court in N. Ramakrishnaiah (Dead) thr. LRs Vs. State of A.P. (Supra) & State of Madhya Pradesh Vs. Awad Kishore Gupta (Supra). The relevant observation made by Apex Court in N. Ramakrishnaiah (Dead) thr. LRs Vs. State of A.P. (Supra) is reproduced here below:-
"14. ............ Under the new clause, the earlier concept of "known sources of income" has undergone a radical CC No.03/2010 Page22 of 44 change. As per the explanation appended, the Prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known source of income" mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. The expression "known source of income has expression reference to sources known to the Prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The Prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
15. The emphasis of the phrase "known sources of income" in Section 13(1) (e) [Old Section 5(1)(e)] is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his Office or post, commonly knowns as remuneration or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investments, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income".
CC No.03/2010 Page23 of 44 Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
16. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately case a burden on the account not only to offer a plausible explanation as to how he came by is large wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
8.16 The relevant observation by Apex Court in State of Madhya Pradesh Vs. Awadh Kishore Gupta (Supra) is reproduced below:-
"...........Therefore, it can be said that though 'income' is receipt in the hand of its recipient, every receipt would not [partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from [a] his property, or [b] his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the 'known sources of income' of a public servant. The Legislature CC No.03/2010 Page24 of 44 has advisedly used the expression 'satisfactorily account'. The emphasis must be on the word 'satisfactorily' and the legislature has, thus, deliberately case 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 acceptance."
8.17 In view of the observations of Apex Court discussed above, the burden was upon the accused to prove the source of these receipts in his Saving Bank Account during the check period. Moreover, what was the source of these receipts are facts, which are in the special knowledge of accused but he has failed to satisfactorily explained the source. Accordingly, these four receipts in his account cannot be reckoned in his income.
8.18 Accused has further claimed that interest amounting to Rs.45,323/- credited in his PPF A/c. No. 101857 admitted by Prosecution by Ex.P-21 (D-25) be also considered and this amount be added in his income during the check period. Ld. SPP has opposed this contention submitting that Rs.2,45,000/- was found invested by accused at the end of the check period, same has been duly considered in his assets held at the end of the check period. It is stated that investments made by accused might have gained interest but this cannot be counted as the income of the accused during the check period, as it never came into his hands.
8.19 Ex.P-21 which is an admitted document is a letter written by Post Master, Ashok Vihar Head Post Office to CBI. As per this letter, A/c. No. 103562 was opened on 31.03.1995, balance in this account as on 26.08.2000 was Rs.3,10,323/- and total interest CC No.03/2010 Page25 of 44 credited in this account upto 25.08.2000 was Rs.45,323/-. It is a fact of common knowledge that PPF Account is opened minimum for 15 years and interest is credited by the Post Office every year on the amount deposited by Account Holder. The interest amount is added in the account of the Account Holder. Here in this case, interest of Rs. 45,323/- did not come in the hands of accused, hence it cannot be added to his income during the check period.
8.20 Accused has further claimed that benefit of Rs.66,192/- available in his account in MCD Credit & Thrift Co-operative Society during the check period should also be added in his income. Ld. Counsel for accused has drawn my attention to Ex.P-1(D-4) page No. 5, where it is mentioned that paper receipts were recovered from the house of the accused during search pertaining to deposits made by him in his A/c. No. 31 of Thrift & Credit Co-operative Society.
8.21 DW-10 Shri Nirdosh Kumar was Hony. Secretary, DMC, Engineering Department, Co-operative Thrift & Credit Society Ltd. As per him, A/c. No. 31 is in the name of the accused. He has produced Register of Members of Co-operative Society and as per entry at Srl. No. 234, Rs.82,748/- had been given to accused vide Cheque No. 476093 dated 01.05.2002. During his cross-examination, this witness has specifically stated that he cannot say as to what amount had been deposited in this account from 1995 till 2000 and except this payment, no payment was ever made to accused from this account. As this amount had come in the hands of the accused only on 01.05.2002 i.e. after the check period, hence no benefit, as claimed by accused can be given to him of any amount.
CC No.03/2010 Page26 of 44
8.22 Accused has further claimed that his daughter got married
in May, 1996 and son was married in April, 1999. In their marriages, he got 'Shagan' of Rs.84,000/- & Rs.51,451/- respectively. It is contended that these amounts be added in his income during the check period. Factum of marriage of son and daughter of accused in May, 1996 & April, 1999 is admitted case of CBI. Accused has failed to produce any document regarding receipt of these amounts of 'Shagans' in the two marriages. Moreover, accused had no where reflected this amount either to his Department or in his Income Tax Return. Hence, benefit of this amount cannot be given to him.
8.23 Accused has further claimed that during check period, he had made various investments in Kisan Vikas Patras, National Saving Certificates and Tata Bonds and IDBI Bonds. These documents have been filed by Prosecution as D-46, D-48 & D-49. It has been submitted that it is admitted case of the Prosecution that accused has invested these amount by way of cheques drawn from PNB & OBC.It is urged that a certain amount of interest might have accrued to these investments but CBI has totally ignored this fact and no benefit of interest was reckoned while chargesheeting him.
8.24 These investments made by accused stand duly proved from the testimony of PW-8 Shri Ishwar Mishra, who in April, 2003 was working as Public Relation Inspector in Malkaganj Post Office, Delhi. Ex.PW-8/1 to Ex.PW-8/10 are the copies of various applications moved by accused for purchasing these instruments. Admittedly by accused none of these instruments has matured during check period and the same might have matured subsequently. As already discussed, income which has accrued on investments has CC No.03/2010 Page27 of 44 come in the hands of the accused has to be counted and same cannot be counted on the notionality. Hence, no benefit could be given to accused on this count.
8.25 Accordingly, the total income of accused during check period comes out to be Rs. 10,53,181/-.
9.0 Expenditure during the Check Period
Srl. Assets Amount D Nos. &
Nos. Admitted
vide (Exhibit
P. Nos)
(i) LIC Policies Premium Rs.2,09,741/- D-22 (Ex.P-18)
Paid during 1.1.1995 to
25.08.2000 :
Start Date Policy No. Yearly
Premium
Amount
28.03.74 24521359 1173.50
26.02.81 24896442 1456.00
28.02.84 50288330 1774.00
28.11.84 74884392 565.00
28.07.86 110318387 3160.00
01.04.86 110321839 3687.00
28.12.87 110013813 2222.00
28.04.91 120021999 3077.00
28.08.91 120148822 2493.00
28.04.93 111770506 9353.00
28.04.95 112007848 9658.00
CC No.03/2010 Page28 of 44
(ii) Non Verifiable Kitchen Rs.1,45,145/-
expenses 1/3 of Gross
Salary of accused taken
only 50% as rest benefit
given towards expenses,
if any, made by wife and
son of accused and
included in expenditure of
his wife
(iii) Expenses on daughters Rs.1,60,000/- D-18 (Ex.P-14)
marriage (May 1996)
(iv) Expenses on Son's Rs.1,50,000/- D-38 (Ex.P-34)
marriage (April, 1989) D-39(Ex.P-35)
(v) Telephone Bill Expenses Rs.33,801/- + Dlsputed
of Tel. No. 7419255 ; Tel Rs.10,880/-
No. 7458027
(vi) Electricity Expenses Rs.9,500/- D-43 (Ex.P-39)
(vii) Ganga Ram Hospital Bill Rs.36,928/- Disputed
(Viii) Income Tax Paid Rs.19,899/- D-17
(ix) 5110 Nokia Mobile Phone Rs. 12,995/- D-32, 33 & 34
with Connection Charges (Ex.P-29, 30 &
No. 9811101466 34 )
Total Expenditure Rs.7,88,889/-
9.1 As per the Charge Sheet, expenditure of accused during
check period, has been shown as Rs.7,88,889/-. Out of the nine items counted in the expenditure, accused has problem with three items.
9.2 Firstly, accused has problem with the calculation of non verifiable Kitchen expenses /household expenses calculated by the Investigating Officer. As per the Charge Sheet, only 50% of non- verifiable expenses i.e. 1/3rd gross salary of accused has been put by the CBI in expenditure of the accused, imputing the remaining 50% to his wife & Son and accordingly giving him benefit of 50%. As the CC No.03/2010 Page29 of 44 net salary of accused is. Rs.6,88568/-, by rounding off 1/3rd of it comes out to be Rs.2,30,000/-. By giving benefit of 50%, same comes out to be Rs.1,15,000/-. But while calculation, by mistake, Investigating Officer has taken it as Rs.1,45,145/-. Accordingly this expenditure needs to be reduced to the tune of Rs.30,000/.
9.3 Regarding this Item in the expenditure, ld. SPP admitted calculation mistake. He further submitted that since accused has claimed his net salary income to be taken as Rs.7,75,201/-, expenditure on this count be accordingly calculated.
9.4 In view of the fact that the income of accused from salary during check period has been taken as Rs.7,75,201/- instead of Rs.6,88,568/-, this figure, after giving benefit of 50% comes out to be Rs.1,29,200/-.
9.5 The second item disputed by accused is Item No. 4 i.e. Telephone Bill expenses of two telephones amounting to Rs.33,801/- + Rs.10,880/-. Shri Vashisht has drawn attention of this Court to statement of Investigating Officer PW-9 during cross-examination admitting that as per record about Rs.8,755/- had been paid by accused through cheques towards payment of telephone Bills. It is urged that whatever amount has been paid by accused should be put in his expenditure. On the other hand, Ld. SPP has contended that though both these telephones were on the name of his Son Shri Vikas Malhotra but entire payment of these Phones Bills was made by accused either through cheque or through cash, as Shri Vikas Malhotra has not shown this payments in his Income Tax Returns. It has been further submitted that Shri Vikas Malhotra has not come in CC No.03/2010 Page30 of 44 the Witness Box to substantiate this contention raised by accused. I agree with this submission of ld. counsel for accused that since as per record, accused has only paid Rs.8,755/- by cheque from his accounts, the benefit of remaining amount needs to be given to him. Accordingly instead of Rs.33,801 + Rs.10,880 = Rs.44681/-, the only expenditure of Rs.8,755/- could be imputed to the accused.
9.6 The third item with which accused has problem is Item No. 7 i.e. Ganga Ram Hospital Bill amounting to Rs.36,928/-. As per admitted documents Ex.P-37 & Ex.P-38 (D-41), wife of accused remained admitted in the Hospital and this amount was paid in the Hospital at the time of her discharge. Shri Vashisht has contended that this Bill is in the name of Smt. Usha Malhotra, she had known source of income and was admittedly by Prosecution filing Income Tax Returns, hence same should not be imputed to the accused.
9.7 On the other hand, ld. SPP has submitted that Hospital always raise bill on the name of the Patient irrespective of the fact that who has made payment of this Bill. It has been submitted that this expenditure was made by accused because his wife was bed- ridden and same has not been shown in his Income Tax Returns.
9.8 As per record, this amount was paid in Cash. The contention raised by ld. SPP is acceptable that normally patient himself/herself do not pay Hospital Bill at the time of his/her discharge. But there is no evidence on record if same was paid by accused. Moreover, it is admitted case of the Prosecution that Mrs. Usha Malhotra and son of accused were filing Income Tax Returns showing income since long. Accordingly, this expenditure should not CC No.03/2010 Page31 of 44 have been added in the expenditure of the accused.
9.9 Ld. SPP has submitted that in his written submissions, accused has admitted that he had given loan of Rs.50,000/- by way of two cheques each of Rs.25,000/- dated 27.05.1998 & 03.06.1998. It is contended that since it is an admission on the part of the accused, it should be counted in his expenditure. On the other hand, ld. counsel for accused submitted that he withdraw this submission and since there is no evidence in this regard, same cannot be counted as expenditure of accused.
9.10 Prosecution is seeking counting of this expenditure only on the basis of written submissions filed by accused. As per Ex.PW-6/1, two cheques each of Rs.25,000/- stand debited from the account of the accused but no evidence has come in this regard as to whom these cheques were issued. Hence, in my considered view, this figure cannot be added in the expenditure of the accused.
9.11 Accordingly, expenditure of the accused comes out to be :-
Srl. Assets Amount
Nos.
(i) LIC Policies Premium Paid during Rs.2,09,741/-
1.1.1995 to 25.08.2000
(ii) Non Verifiable Kitchen expenses 1/3 of Gross Rs.1,29,200/-
Salary of accused taken only 50% as rest
benefit given towards expenses, if any, made by wife and son of accused and included in expenditure of his wife CC No.03/2010 Page32 of 44
(iii) Expenses on daughters marriage (May 1996) Rs.1,60,000/-
(iv) Expenses on Son's marriage (April, 1989) Rs.1,50,000/-
(v) Telephone Bill Exepnses of Tel. No. 7419255 ; Rs.8,755/-
Tel No. 7458027
(vi) Electricity Expenses Rs.9,500/-
(Vii) Income Tax Paid Rs.19,899/-
(viii) 5110 Nokia Mobile Phone with Connection Rs. 12,995/-
Charges No. 9811101466
Total Expenditure Rs.7,00,090/-
Assets held prior to check period.
10.0 Assets held prior to check period i.e. as on
01.01.1995
Srl. No. Assets Amount D No. &
Admitted vide
(Exhibit P. Nos.)
(i) Balance in Punjab Rs.3662/-
National Bank, Ashok D-21 (Ex.P-17)
Vihar A/c. No. 15440
(ii) Household Articles as Rs.1,23,240/- D-5 (Ex.P-2)
per Inventory prepared
on search date i.e.
25.08.2000
Total Assets prior to check period Rs.1,26,902/-
10.1 The calculation of the assets held by accused prior to
check period has not been disputed by him. The sole contention raised by Shri Vashisht is that income of the accused prior to start of check period has not been considered and same should be reckoned in his income. This contention has already been dealt in earlier paras CC No.03/2010 Page33 of 44 while appreciating contentions of both the parties on the income of the accused.
10.2 Further I.O. has mentioned in the Charge Sheet that accused has made an expenditure of Rs.191149.50 prior to 01.01.1995 towards payment of the premium of 10 out of 11 LIC Policies held by him. In addition to that maturity of Rs.80,405/- of two LIC Policies and amount of Rs.63,750/- towards the survival benefit raised against 4 LIC Policies during check period has been added into the income of the accused.
10.3 Accordingly, assets held by accused prior to the check period calculated by CBI as Rs.1,26,902/-, stands established.
Assets held at the end of the check period 11.0 Assets held at the end of the Check Period i.e. 25.08.2000.
Srl. Assets Amount D. Nos & Admitted vide
Nos. (Exhibit Nos. )
(i) Balance in Oriental Rs.1,02,301/- D-20 (Ex.P-16)
Bank of Commerce,
Pitampura, A/c. No.
3981
(ii) Household Articles as Rs.2,29,210/- D-5 (Ex.P-2)
per Inventory on
25.08.2000
(iii) Cash in Brief Case of Rs.26,500/- D-5 (Ex.P-2)
accused on
25.08.2000
(iv) PPF Investment Rs.2,45,000/- D-25 (Ex.P-21)
CC No.03/2010 Page34 of 44
(v) Kishan Vikas Patra Rs.1,30,000/- D-46 (Ex.P-42A to H) &
Ex.P-42J to R
(vi) National Savings Rs.1,60,000/- D-47 (Ex.P-43A-1 to
Certificate A-17)
(vii) Tata Bond/IDBI Bond Rs.20,200/- D-48 , 49 (Ex.P-44(A-1),
44(A-2), 45(A) & 45(B)
Total Rs.9,13,211/-
11.1 Assets held jointly with Smt. Usha Malhotra (Wife):
Srl. Assets Amount D. Nos & Admitted
Nos. vide (Exhibit Nos.)
(i) National Savings Rs.10,000/- D-47 (Ex.P-43A /31)
Certificate (As purchased
in cash and not reflected
in I.T. Returns of Usha
Malhotra in corresponding
year fro claiming benefit
U/s. 88 of I.T. Act)
(ii) MIS No. 639244 of Post Rs.2,04,000/- D-28 (Ex.P-24)
Office R.P. Bagh (As no
debit entries of cash
withdrawal from Bank A/c/
not reflected in IT Returns
of Usha Malhotra /cash
given by B.R. Malhotra to
Post Office Agent who
arranged 3 cheques from
his clients Accounts as
large amount to be
deposited in Post Office
through cheque/draft only
but cheque was not
provided by
Usha/B.R.Malhotra show it
was ill gotten money of
accused)
CC No.03/2010 Page35 of 44
11.2 Assets held jointly with Shri Vikash Malhotra (Son): -
Srl. Assets Amount D. Nos & Admitted vide
Nos. (Exhibit Nos.)
(i) National Savings Rs.80,000/- D-47 (Ex.P-43 A-18 to
Certificate (As only A-30)
50,000 invested in
NSC out ot total NSC
worth Rs.1,30,000/-
reflected in the IT
Returns of Vikas
Malhotra
11.3 Total assets at the end of the check period =
Rs.12,07,211/-.
11.4 CBI has calculated assets to the tune of Rs.9,13,211/-.
Which accused was found to hold at the end of the check period. No dispute has been raised by accused regarding these assets. Rs. 2,39210/- has been counted on the basis of household articles as per inventory dated 25.08.2000 (D-5). Perusal of this document which is Ex.P-2 reveals that this Observation Memo was prepared in the presence of wife and son of accused and as per I.O., time of acquisition of each asset was mentioned as told by them.
11.5 Again, accused has not disputed the counting of these assets held by him jointly with his wife Smt. Usha Malhotra. First Item is National Saving Certificate held by accused jointly with his wife. As per Investigating Officer PW-9, this Certificate was purchased in cash and not reflected in Income Tax Return of Mrs. Usha Malhotra in corresponding year for claiming benefit under Income Tax Act.
CC No.03/2010 Page36 of 44
11.6 The other Item is MIS No. 639244 of Post Office (D-28)
for Rs.2,04,000/-. As per Investigating Officer PW-9, as no debit entry of cash withdrawal from Bank account of Mrs. Usha Malhotra is there and same is not reflected in the Income Tax Returns. Accordingly, it is counted as asset of the accused as same was purchased by accused with cash amount.
11.7 To prove that this Monthly Income Schemes were purchased by paying money in cash. CBI has examined PW-10 Shri Shri Subhash Chand Jain. As per him on 24.01.2000 monthly income Scheme on Joint A/c. No. 639244 in the joint names of accused and his wife Mrs. Usha Malhotra was got opened and accused has brought sum of Rs.2,04,000/- in cash for depositing the same in the aforesaid account. As per rules applicable in respect of said Scheme, at the most a sum of Rs.50,000/- in cash could have been deposited. Accused had told him that he wanted to deposit the said amount of Rs.2,04,000/- in the said new account. He had other Clients who had Saving Bank Account in Rana Pratap Bagh, Post Office, Delhi. Mrs. Sandhya & Shri Sethi has S.B. A/c. No. 855871/- wherein a sum of Rs.68,000/- out of said amount of Rs.2,04,000/- was deposited in cash and a cheque No. 471822 dated 24.01.2000 was got issued from the said Account Holder in the name of Chief Post Master, GPO, Similarly, Mr. Rinku and Raju, both his sons had saving Bank A/c. No. 855917 and Mrs. Sita Gupta and Mr. Ashok Kumar Gupta has S.B. A/c. No. 855956. In these accounts in a similar fashion, Rs.68,000/- each was deposited and a cheque of same amount was taken in the name of the Chief Post Master, GPO. After obtaining signatures of the accused and his wife on the application Ex.PW-4/2, all the three cheques were deposited in the Monthly Income Scheme. This witness CC No.03/2010 Page37 of 44 was cross-examined by accused but nothing has come on record to discredit his reliability.
11.8 Accordingly, it stands proved that accused held assets to the tune of Rs.2,14,000/- jointly with his wife Smt. Usha Malhotra but acquired by him by paying money in cash.
11.9 As per I.O. PW-9, during course of investigation it was found that accused was jointly holding NSC worth Rs.130,000/- alongwith his son Vikas Malhotra which are already exhibited as Ex.P-41, (A-18 to A-30) (D-45) . He has received three applications of dated 23.09.1997 received by him vide forwarding letter (D-23) Ex.P-19. In respect of these applications, payments were made in cash. Shri Vikas had claimed investment of Rs.50,000/- only in Income Tax Return for the assessment year 1998-99, therefore rest of the investment amounting to Rs.80,000/- was taken as asset of the accused.
11.10 This deposition made by Investigating Officer PW-9 has not been countered by the accused in any manner.
11.11 Accordingly, assets held by accused jointly with his son is taken as Rs.80,000/-.
11.12 By adding the assets held by accused at the end of the check period on his name, jointly with his wife Mrs. Usha Malhotra and son Vikas, the total assets held by him comes out to be of Rs.12,07,211/-.
CC No.03/2010 Page38 of 44
Conclusion
12.0 As per the Charge Sheet, Sanction U/s. 19 of PC Act is
not required in this case as accused has already been compulsorily retired from service in January, 2002 and when Charge Sheet was filed, he was no more a 'public servant'. No dispute has been posed by accused on this point.
12.1 It is worthwhile to mention here that in all fairness, Investigating Officer PW-9 has not added whopping assets and income held by wife Smt. Usha Malhotra and son Vikas Malhotra of accused, to the assets and income of accused. As per Investigating Officer, Smt. Usha Malhotra and Vikas Malhotra were filing Income Tax Returns since long and during investigation no visible source of their income could be found. The details of assets and income of Smt. Usha Malhotra and Vikas Malhotra are reflected by Investigating Officer in the Charge Sheet. But since no evidence was led by CBI to this effect and same are not discussed in this judgment.
12.2 In view of the forgoing discussion, for the period during check period, following figures emerge:-
Likely Savings during the Check Period Income :- Rs.10,53,181/-
Expenditure: - Rs.- 7,00,090/-
Rs. 3,53,091/-
CC No.03/2010 Page39 of 44
Assets held during check period =
Assets at the end of Check period: -Rs.12,07,211/- Assets at the beginning of -Rs. 1,26,902/-
Check period: ____________
Rs.10,80,309/-
Disproportionate Assets =
Assets held during check period : Rs. 10,80,309/-
Likely Savings :Rs. 3,53,091/-
Rs. 7,27,218/-
12.3 Percentage of Disproportionate Assets comes out to
be 69.04%.
12.4 In view of the aforesaid reasons, it is held that
Prosecution has been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused is held guilty for commission of offence U/s. 13 (1) (e) r/w 13(2) of PC Act.
Announced in the open court (SANJAY GARG-I)
on 24.04.2015 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No.03/2010 Page40 of 44
IN THE COURT OF SANJAY GARG-I:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No.03/2010
ID No. 02401R0165462005
Central Bureau of Investigation (CBI)
Versus
B.R. Malhotra ................. Convict
ORDER ON SENTENCE:
1 Heard Shri Anil Tanwar, ld. PP for CBI & Shri Manish
Vashisht, ld. Defence Counsel for Convict.
2 Ld. Counsel for Convict submitted that Convict has faced this trial regularly for 14 years, is aged 70 years and having multiple physical ailments. It is stated that the wife of the Convict is handicapped as she moves on Wheel Chair. It is urged that keeping in view the the trauma suffered by Convict, he be sentenced to minimum term of imprisonment provided under the Act by taking lineant view. In support of his submissions, the Ld. Counsel has relied upon R. Janakiraman Vs. State [(2006) 1 SCC 697] & N.P. Jharia Vs. State of M.P. [(2007) 7 SCC 358].
3 Ld. PP has submitted that keeping in view the facts and circumstances of this case, Convict deserves no lineancy and he should be sentenced to the maximum term of imprisonment.
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4 Convict has been found in possession of
disproportionate assets to the tune of Rs.7,27,218/- i.e. 69.04% to his known source of income. Convict had been indulging into corruption and amassing ill gotten money.
5 Corruption is a very serious problem and hurdle on the path of progress of this Country. Corruption by public servants has created a sense of insecurity for the common man. Such cases deserve no lineancy as a strong message needs to be sent to the Society. The Superior Courts from time to time have discouraged the practice adopted in case of corruption. In the case of State of M.P. Vs. Shambhu Dayal Nagar [(2006) 8 SCC 693], it was inter-alia observed as under :-
"It is difficult to accept the prayer that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the nation building activities and everyone has to suffer on that count. Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric CC No.03/2010 Page42 of 44 of efficiency in the public service and demoralising the honest Officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post."
6 In R. Janakiraman Vs. State (Supra), as pointed out by ld. Counsel for the Convict, in a similar case Convict was sentenced to imprisonment for one year and fine of Rs.1000/-. In N.P. Jharia Vs. State of M.P. (Supra), Trial Court has sentenced the Convict to undergo imprisonment of 3 years and pay find of Rs.75,000/- but same was reduced to 1 year by the Hon'ble High Court.
7 Every case has its own facts & circumstances. In my view, in Corruption Cases, Convict deserves to be given harsh punishment. It is matter on record that Convict is facing Trial for 14 years and he is an old person of 70 years. In my view, these are not the circumstances which mitigate his criminality.
8 Therefore, keeping in view the facts & circumstances of this case, Convict is sentenced to R.I for the period of 3 years and a fine of Rs.1.00 Lac in default of payment of fine, Convict shall suffer S.I. for 1 year.
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9 The amount recovered during search proceedings,
being the ill gotten money, be also confiscated to the State, in accordance with law.
Announced in the open court (SANAJY GARG-I)
on 18.05.2015 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
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