Delhi District Court
(Parveen Singh) vs Mcd. He Proved The Copy Of The ... on 23 July, 2016
IN THE COURT OF SHRI PARVEEN SINGH
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 09/2010
RC No. 2/2009/CBI/EOU-VII/New Delhi
U/s 120B, 420, 471 IPC & Section 13 (2) r/w
13 (1)(d) of PC Act, 1988.
Central Bureau of Investigation
Versus
1 Manoj Pahwa S/o late Sh. G. R. Pahwa,
r/o G-14, Vikaspuri, New Delhi.
2 G. S. Jindal, S/o late Sh. Fateh Chand,
r/o A-27, Rama Road, Adarsh Nagar, Delhi.
3 O. P. Meena S/o Sh. Mahinder Pal Singh,
r/o H. No. 834, Flat No. 301, Gali No. 7,
Raj Nagar Part II,
Near Dwarka, Sector-8, Delhi.
4 Aman Sarin S/o Sh. Ashok Sarin,
r/o 28 Shri Ram Road, Civil Lines,
Delhi.
5 Pankaj Nakra,
S/o late Sh. Lekhraj Nakra,
r/o 221, Gujrawala Town Part III,
Delhi.
6 Ashim Sarin, S/o Sh. Ashok Sarin,
r/o 28 Shri Ram Road, Civil Lines,
Delhi.
CC No. 09/10 1 of 67
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 23.07.2016
7 Anil Sarin S/o late Lala Anant Ram Sarin,
r/o 28 Shri Ram Road, Civil Lines,
Delhi.
8 R. K. Grover S/o Sh. J. R. Grover,
r/o H-13/B Kalka Ji,
New Delhi.
9 K. K. Sabharwal S/o late Sh. S. L. Sabharwal,
175, Pocket E, Mayur Vihar, Phase II,
Delhi.
.....Accused.
Date of Institution : 01.04.2010
Arguments heard on : 09.07.2016
Date of Judgment : 23.07.2016
JUDGMENT
The chargesheet The present case was registered on the basis of a written complaint filed by Insp. R. L. Yadav of CBI on the allegations, accused O. P. Meena JE, G. S. Jindal AE and P. K. Raja EE in gross violation of the provisions of DMC Act 1957, had issued in advance, the completion certificates to motels namely M/s Grand Meadows and Papillion Estate Pvt Ltd situated at Rajokri on NH-8 Highway. 2 It is alleged that joint surprise check was conducted on 24.12.2008 by the office of EE Building Najafgarh Zone with the assistance of other officers of MCD, Vigilance department and it was found that completion certificates for aforesaid two motels were issued in advance by O. P. Meena JE, G. S. Jindal AE and P. K. Raja EE in gross violation of the provisions of DMC Act 1957. O. P. Meena JE and G. S. Jindal AE were the two officers who allegedly inspected the construction site of the properties CC No. 09/10 2 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 and carried out the physical measurements. It is further alleged that the construction was in full swing despite issuance of completion certificate on 21.4.2008. The basement was fully exposed above the ground by removal of earth around the basement.
3 It was alleged that one Sh. S. N. Dhawan and his family had sold the land at Khasra No. 41/9, 37/23/2, 24/2, 41/3, 41/2/2, 41/2/3, 41/2/1 Village Smalkha Delhi to M/s Grand Meadows through sale deed executed between Sh. Vijay Dhawan, Smt Veermati Dhawan and Sh. Amit Sarin, one of the directors of M/s Grand Meadows. It is further alleged that vide sale deed dated 14.5.04 M/s Papillion Estate, through Amit Sarin, one of its Director, had purchased land at Khasra No. 41/9, 41/10/1/2, 41/10/2, 41/12 and 40/6/3/1 at Village Samalkha from Sh. S. N. Dhawan. It was revealed during investigation that previous owner of this land namely S. N. Dhawan had applied for sanction for building a motel in 2002 which was approved by the MCD on 26.2.2003. The MCD approved sanctioned plan for M/s Papillion Estate Ltd ( S. N. Dhawan ) was for basement, ground floor and first floor.
4 It is further alleged that application for sanction of building plan for construction of basement and ground floor of Motel Grand Meadows with total plinth area 229919 sq.mts and total floor area 229918 sq. mts was submitted to MCD, Delhi on 17.6.2004 by Sh. Manoj Pahwa, the authorized signatory of Grand Meadows which was sanctioned by the MCD on 21.3.2005. It has further revealed that M/s Grand Meadows Ltd & M/s Papillion Estate ltd were amalgamated in M/s Anant Raj Industries vide order dated 2.8.2007 of Punjab & Haryana High Court Sh. Anil Sarin is the Managing Director of M/s Anant Raj Industries since 4.3.1992. 5 It is further alleged that Manoj Pahwa of M/s Grand Meadows Ltd, in criminal conspiracy with co accused persons, submitted a false notice of completion to MCD on 5.3.2008. Along with it, he submitted forged certificate of M/s Adarsh Marken which had been countersigned by him. The said notice of completion was marked by CC No. 09/10 3 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 accused G. S. Jindal AE to accsued O.P. Meena JE ( B), who in pursuance of the said criminal conspiracy, dishonestly and by abusing his official position, submitted a false NOC report / inspection report on 20.3.2008 for completion of ground floor, first floor and other floors by mentioning un- constructed area at first floor as built area of 241.64 sq. mts. This area was mentioned as unconstructed even in the report of Technical Committee dated 22.12.2009. Accused O. P. Meena submitted false NOC report intentionally to show favour to the owners of the M/s Papillion Estate and wrongly calculated the compounding charges as Rs. 6,04,742/-. Sh. G. S. Jindal AE, pursuant to the conspiracy and by abusing his official position as public servant, accepted the recommendation of JE and forwarded it to Superintending Engineer Sh. V. K. Gupta, who approved the same on 31.3.2008 and completion certificate was issued on 21.4.2008 under the signatures of Sh. V. K. Charaya AE.
6 Similarly Sh. Pankaj Nakra, Director of M/s Papillion Estate Ltd, in criminal conspiracy with accused persons, dishonestly submitted a false notice of completion to MCD on 5.3.2008. Along with it he submitted a forged certificate of M/s Adarsh Marken Engineer/Plumber. The said notice of completion was marked by accused G. S. Jindal Asst. Engineer to accused O. P. Meena on 5.3.2008. Accused O. P. Meena JE, pursuant to the conspiracy, submitted a false NOC report on 25.3.2008 for completion of ground floor, first floor and basement and thereby recommended for issuance of completion certificate. Sh. O. P. Meena calculated the compounding charges of Rs. 7,11,373/-. Sh. G. S. Jindal AE, pursuant to the said conspiracy, accepted the recommendation of O. P. Meena and forwarded it to Suptd Engineer V. K. Gupta through Sh. P. K. Raja EE who approved it on 31.3.2008 and completion certificate was issued on 21.4.2008 under the signatures of Sh. V. K. Charaya AE. 7 It was further alleged that a technical team was constituted by Addl. Commissioner ( Engineering) MCD, vide office order dated 13.5.2009 and modified by order dated 21.7.2009. The team was to inspect the property of M/s Grand Meadows CC No. 09/10 4 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 and M/s Papillion Estates Pvt Ltd. The technical team consisted of Sh. Jagdish Dayani AE (B), Sh. Sher Singh Mittal Architect, Sh. A. K. Mittal AE (B) and Sh. Panna Lal EE. The technical team on inspection of M/s Papillion Estate found that the builder had constructed basement, ground floor, first floor and second floor. In the completion drawing submitted by the builder before the issuance of completion certificate to the MCD, Najafgarh Zone, on 25.3.2008, the construction has been shown as basement, ground floor and first floor. The builder had not intimated about the second basement which was dishonestly concealed at the time of applying for completion certificate. 8 On inspection of M/s Grand Meadows it was found that as per the sanctioned plan, the motel was to be constructed as basement, ground floor and first floor which had also been shown in the completion plan. However, at the time of applying for completion certificate, the builder had dishonestly concealed the construction of second basement and accused O. P. Meena and J. S. Jindal also concealed this fact at the time of inspecting the site on 20.3.2008 and 25.3.2008 and in their NOC/ inspection report.
9 The technical committee submitted its report dated 22.12.2009. The report of technical committee revealed that the builder has constructed additional structures which were not sanctioned by the MCD. The existing structure below ground level of M/s Grand Meadows and M/s Papillion Estate cannot be strictly called as basement as per the norms and definitions given in B. B. L.s. According to said bye laws any structure can qualify to be called as basement if it is 0.9 mtr to 1.2 mtr high above surrounding ground level. As per sanctioned building plan the total area of land is 2.71 hectare whereas the present area is 2.74 hectare. The owner had added some portion of land and amalgamated it with the land previously in his possession at the time of sanction thus, resulted in change of shape and size of land. 10 The other deviations from sanctioned building plan which tantamount to construction without a valid permission and beyond the scope of BBL and MPD CC No. 09/10 5 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 provisions are, that as per completion certificate issued on 21.4.2008 to M/s Papillion Estate, on the report of O. P. Meena JE, existing area of basement was 1704.33 sq. mts. However, as per inspection report the said basement is now been taken as ground floor and measures 1846.53 sq. mts as per actual measurement. Thus, the difference of measurement between report of O. P. Gupta and Inspection team is 1846.53 - 1704.33 = 142.20 sq. mts ( 1530.63 sq. ft).
11 As per completion certificate issued on 21.4.2008 to M/s Grand Meadows on the report of O. P. Meena the existing area of ground floor if 1575.72 sq. mts. However, as per the inspection report the ground floor is now been taken as first floor and it measures 1764.86 sq. mts. The difference of measurement thus comes to 1575.72
- 1764.86 = 189.14 mtrs ( 2035.88 sq. ft ).
12 The completion certificate issued on 21.4.2008 on the report of O. P. Meena JE shows area of first floor as 184.00 sq mts. As per the inspection report the first floor which is now been taken as second floor the measurement comes to 724.30 sq. mts. Thus the difference between report of O. P. Meena and Inspection team is 538.30 sq. mts ( 5794.21 sq. ft ).
13 It is further alleged that there was large scale unauthorized construction in both the motels which was not reported by JE and AE while recommending for issuance of completion certificate The extent of unauthorized construction is 2577.52 sq. mts in M/s Grand Meadows and 2584.16 sq. mts in M/s Papillion Estates. 14 It is further alleged that the construction of both the motels had not been completed till 6.9.2008. As per agreement dt 6.9.08, signed between Vijay Construction and Sh. N. S. Bhatia for M/s Anant Raj Industries, the work of civil construction was awarded to M/s Vijay Construction. Thus, at the time of awarding of completion certificate on 21.4.2008, the construction of these two motels were incomplete. 15 It is further alleged that Manoj Pahwa Company Secretary of M/s Anant Raj Industries not only submitted false completion notice to MCD on 5.3.2008, but also CC No. 09/10 6 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 submitted forged documents in the form of annexures with forged signatures of Vijay Kumar site engineer and the forged certificate of Adarsh Marken licenced engineer /plumber. Investigation also revealed that Kamal Kumar Sabharwal structural engineer and R. K. Grover architect in connivance with Pankaj Nakra have signed on various appendix enclosed with the completion notice stating that the building was fit for use and had been built under their supervision according to sanctioned plan. Accused R. K. Grover had also signed the completion plan of incomplete motels building. 16 It is further alleged that the false notice of completion was submitted by Pankaj Nakra for M/s Papillion Estate along with various certificates signed by R. K. G rover, Kamal Kumar Sabharwal which indicated that construction had been completed as per sanctioned plan. Accused Aman Sarin director of M/s GML PEL and M/s ARIL and Sh Ashim Sarin Executive Director of M/s ARIL were actively involved in the unauthorized construction of two motels. It was thus alleged that O. P. Meena JE, and G. S. Jindal AE, dishonestly by abusing their official position as public servants, in conspiracy with Sh. Manoj Pahwa, Pankaj Nakra, Aman Sarin, Ashim Sarin, Anil Sarin, R. K. Grover and Kamal Kumar Sabharwal, caused wrongful gain to M/s Anant Raj Industries by concealing the facts relating to unauthorized/ excess construction and ancillary structures. M/s Anant Raj Industries Ltd, through its MD Sh. Anil Sarin and other directors and office bearers, by misrepresentation of facts and submission of forged documents, fraudulently obtained the completion certificates from MCD. Hence the charge sheet.
Charge 17 Thereafter, on 21.3.2011, my learned predecessor framed charge u/s 120B r/w section 420 & 471 IPC & section 13 ( 2 ) r/w 13 ( 1 ) ( d ) of PC Act against all the accused persons. Charge U/s 13 ( 2 ) r/w 13 ( 1 ) ( d) of PC Act r/w 120 B IPC was also framed against accused G. S. Jindal & O. P. Meena and Charge U/s 420, 471 r/w CC No. 09/10 7 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 Section 120B IPC was also framed against accused Manoj Pahwa and Pankaj Nakra.
Prosecution Evidence In order to prove its case prosecution examined 28 witnesses.
18 PW1 is Sh. P. Sriniwasa. He deposed that he joined as Soil Engineering Consultant in the year 2002. He further deposed that a request for soil testing was received from Papillion Estates pertaining to plotA located at Rajokari, Gurgaon, Haryana. He stated that as per the specification given three bore holes were grilled in the said plot, sample of soil was taken and after testing, report was prepared by Sr. Consultant Sh. A. V. S. Rao which is Marked PW1/A. Report also accompanied site plan, bore logs details, Standard Penetration Test which are marked PW1/B to PW1/D. This witness has also deposed about the report of soil testing in respect of PlotB at Rajokari, Gurgaon Haryana. This report was also prepared by Sh. A. V. S. Rao Sr. Consultant and the same was marked PW1/E. The site plan bore logs details and Standard Penetration Test reports were marked PW1/F to marked PW1/G. He also proved his statement recorded U/s 161 Cr. P. C as Ex. PW1/1.
19 PW2 is Sh. V. K. Charaya. He deposed that in the year 2003 he was posted as Asst. Engineer at CSE ( Conservancy Sanitation Engineering ) Department Najafgarh Zone, New Delhi. Sh. J. S. Jindal Asst Engineer was his predecessor in ward No. 172 Najafgarh Zone. He remained posted in Najafgarh Zone from 29.3.2008 to 30.5.2008. He proved the NOC report dt. 20.3.2008 in respect of M/s Grand Meadows. He identify the signatures of O. P. Meena on this report as he had seen the signatures of O. P. Meena in officials records and in official communications. He described the procedure for issuance of Completion Certificate in respect of a building. As per column 12 of NOC Ex. PW2/1 JE O. P. Meena had given the details/measurement in CC No. 09/10 8 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 respect of compoundable deviations in the building and calculated a penalty of Rs. 6,04,742/. The report of penalty was sent to Asst Engineer for his approval as mentioned in column no. 17 of Ex. PW2/1. AE Sh. G. S. Jindal approved the report of JE in respect of deviations and penalty amount vide his order dt 20.3.2008 and sent his note to Sh. P. K. Raja Executive Engineer ( Bldg) Najafgarh Zone for approval. Sh. P. K. Raja EE approved the penalty amount calculated by JE and approved by AE. The noting and approval of Sh. P. K. Raja EE was placed before Sh. V. K. Gupta the then Suptd Engineer who also approved the decision of JE, AE and EE. He further deposed that O. P. Meena vide his noting dated 21.4.2008 had written that owner had submitted NOC from Chief Fire Officer and compounding fee had been deposited by G8. Sh. O. P. Meena recommended for issuance of completion certificate and marked the file to him. He again marked the file to O. P. Meena for the purpose of issuance of completion certificate. Thereafter, O. P. Meena put up Competion Certificate and on 21.4.2008 and after his signatures the completion certificate was issued to M/s Grand Meadows. He further deposed that on 25.3.2008 NOC sheet form Ex. PW3/2 in respect of Papillion Estate in village Smalkha was initiated by Sh. O. P Meena. The sanction plan of Papillion Estate was passed on 26.2.2003 and was valid upto 25.2.2008. As per Ex. PW3/2 the compounding fee of C and D form is Rs. 225/. The NOC Ex. PW3/2 was applied on 27.2.2008. The size of the plot of Papillion Estate permissible area for construction had been mentioned in NOC Ex. PW3/2. As per Ex. PW3/2 compounding fee of Rs. 7,11,373/ had been recommended for approval by the AE. In entire note AE, JE and EE had not recommended for rectification of any portion of Papillion Estate. He further deposed that completion plan in respect of Grand Meadows and Papillion Estate was submitted as per noting in Ex. PW3/2 and the completion plan Ex. PW2/B and Ex. PW2/C were approved in respect of Grand CC No. 09/10 9 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 Meadows and Papillion Estate. The completion certificates in respect of Grand Meadows Ex. PW2/D and in respect of Papillion Estate Ex. PW2/E were issued. 20 PW3 is Sh. V. K. Gupta. He deposed that from 26.2.2008 to 31.3.2008 he was posted as Suptd Engineer in Najafgarh Zone, Delhi. The Suptd Engineer of Nazjafgarh Zone was on leave for abourt 1520 days in February/March 2008, therefore, he was assigned to look after the work of Sh. R. K. Gupta in his absence. He further deposed that on 21.3.2005 sanction plan in respect of Plot / Khasra No. 41/9 min, 12 min, 37/23/2, 24/2, 41/3, 41/2/2/, 41/2/3, 41/2/1 at Village Smalkha, Najafgarh Zone was approved which was valid upto 20.3.2010. Vide his order dated 27.3.2008 he approved compounding fee of Rs. 6,04,742/ in respect of above plot on the recommendation of EE P. K. Raja and AE G. S. Jindal . He further deposed that when he approved the compounding fees, there was no cutting in portion encircled Ex. PW3/1. He further deposed that report in respect of Plot / Khasra No. 41/9 min, 41/10/1/2, 41/10/2, 41/12 min, 40/6/3/1 at Village Smalkha was prepared by Sh. O. P. Meena JE. On the recommendation of JE, AE and EE he approved the compounding fees of Rs. 7,11,373/. The NOC is Ex. PW3/2. There is a cutting at portion encircled G' in Ex. PW3/2. He clarified that if there was cutting at point G at the time when the file was put up before him, he would not have approved the compounding fee and would have directed for inspection of site by EE. There was no cutting at point G when the file was put up before him. He further deposed that if at the time of issuance of completion certificate compoundable deviations were found, it could be compounded by imposing a penalty in accordance with the rules and DMC Act and deviations beyond compoundable limits may be demolished by MCD.
21 PW4 is Sh Pawan Kumar. He deposed that in the year 1991 he was granted license of plumbing under the name of M/s Adarsh Marken & Company by CC No. 09/10 10 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 Delhi Jal Board. He had carried out different works in Delhi as well as outside Delhi. In the year 200305 he carried out the work of plumbing in 18 Kanwar Farm in the area of Rajokari, N. Delhi. He never carried out any work in any hotel M/s Grand Meadows or M/s Papillion Estate at any point of time but had issued certificate of completion of job and performance of job either to M/s Grand Meadows or M/s Papillion Estates on the asking of one Anil Bhandari, an architect. He visited the site and found that plumbing work had been already completed and he issued the requisite form of completion of plumbing work. He proved certificate of supervision of plumbing work Ex. PW4/A and Ex. PW4/B which were issued by him and had his signatures at point A. This witness was declared hostile by ld. PP for CBI and was cross examined.
22 PW5 is Sh. Vijay Kumar. He deposed that in the year 1987 he did diploma in Civil Engineering from G.B. Pant Polytechnic, Okhla, New Delhi. Thereafter in 1999 he completed his BE ( Civil ) from Jamia Milia Islamia, New Delhi He worked with several companies and joined Anant Raj Construction and Development Pvt Ltd as Sr. Project Manager with effect from 5.11.2007 and worked upto 8.8.2008. He further deposed that Appendix G ( Revised ) Form for certificate of Licenced Architect /Engineer/ Supervising/Group is not signed by him at point X or issued by him and somebody else had written his name as "Vijay". The certificate is Ex. PW5/A. Similarly Appendix B3 also does not bear his signature at point X where "Vijay" had been written by some one. The appendix B3 was neither signed by him nor written by him. The appendex B3 is Ex. PW5/B. 23 PW6 is Sh. Konark Bhandari. He deposed that he joined M/s Anant Raj Industries as DGM in August 2008 and worked till about 2009. He know Aman Sareen who was the Director of M/s Anant Raj Industries and worked with him. He further deposed that he could identify the signatures of Sh. Aman Sareen. The letter CC No. 09/10 11 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 dated 24.12.2008 addressed to Sh. Anil Bhandari was signed by Sh. Aman Sareen and he identified the signatures of Sh. Aman Sareen at point A on this letter. The letter is Ex. PW6/A. This letter was marked to him by Aman Sareen vide endorsement at point B. Letter Ex. PW6/A was pertaining to upgradation of rooms, required furnitures, electrical and minor AC Changes at Grand Papillion Motel, Rajokari, N. Delhi. The details of the work required were annexed with letter Ex. PW6/A and are Ex. PW6/B ( colly ). He visited the site of Grand Papillion and Grand Meadows in August / September 2008 and at that time the work had been completed but the upgradation was required as mentioned in Letter Ex. PW6/A and Annexure Ex. PW6/B. Sh. Sanjay Sharma was the supervisor for both the sites ie Grand Meadows and Grand Papillion. He identified the hand writing of Sh. Sanjay Sharma in the register Ex. PW6/C prepared for recording of daily work at the aforesaid two sites. He also identified the register pertaining to Grand Papillion pertaining to records maintained by him in respect of the work required at the site in respect of upgradation work. The register was in his hand writing and was Ex. PW6/D (collectively along with its contents.) He further deposed that CBI conducted raid in his presence. It had conducted video recording at both the sites, taken photographs of both the sites and seized the documents in his presence. At the time of raid work of up gradation was in progress at the above two sites. He further deposed that when he joined at the above two sites, both the buildings were fit for occupancy but when the work of upgradation was started, certain addition and alteration were required and therefore, at the time of raid the building was not fit for occupation as the work of up gradation was in progress.
24 PW7 is Sh. Avinash Chand Arora. He deposed that he was working as GM ( Services ) in M/s Anant Raj Industries from October 2007 to Separately / October 2008. He was looking after the work at the motels at Chhatarpur. Once he was called CC No. 09/10 12 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 at the site of Grant Papillion. When he reached the site, a meeting was going on and Sh. Aman Sareen and many other persons were present. They were discussing the work going on at the site of Grant Papillion. As he was looking after the work of services at the other sites, he had sent a check list to Aman Sareen through email for the purpose of work at the site of Grand Papillion. He proved the email as Ex. PW7/A and the list as Ex. PW7/B. List was pertaining to various services/ jobs to be carried out at Grand Papillion. Mr. Konark was looking after the civil work at the site of Grand Papillion as Supervisor. He had seen the site of Grand Papillion while going in and coming out in the meeting. He observed that some work of POP, work in the bathrooms work of plumbing and some electrical and air conditioning work was going on.
25 PW8 is Vijay Dhawan. He proved copy of sale deed Ex. P4 which had the signatures of his father at points A and photograph of his father at point B. He further deposed that vide this sale deed, property measuring 11 bigha 2 biswas in Khasra No. 41/9, 41/12 and 41/10/2, situated at Rajokori was purchased from Sh. Munni Lal vide sale deed dated 10.1.69. He further deposed that vide sale deed Ex. P3 M/s Dhawan Investment Pvt Ltd sold the land situated at Rajokori, Delhi in Khasra No. 41/2/2 total area 4 bighas 10 biswas to M/s Grand Meadows Ltd. This sale deed had his signatures at point A on all the pages as director of M/s Dhawan Investment Pvt Ltd. He further deposed that sale deed dated 14.5.04 Ex. P1 had the signature of his aunt Smt. Veermati Dhawan. Vide this sale deed she had sold the land measuring 8 bighas 17 biswas comprising in Khasra No. 23/2, 24/2, 41/3, 41/9 and 41/12 situated at Village Rajokori to M/s Grand Meadows Ltd. He also identified the photograph of his aunt at point B in Ex. P1. He further deposed that vide sale deed Ex. P2 his father had sold the land measuring 15 bighas and 12 biswas situated at Village Smalkha ( Rajokori ) comprising of Khasra No. 41/9, 41/12, 41/10/2 to M/s Papillion Estate Ltd. His father CC No. 09/10 13 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 had applied for sanction of a motel in his own name which was duly sanctioned and after sanctioning of Motel, the land was sold to M/s Grand Meadows Ltd. At the time of execution of sale deed, the possession was with the above mentioned seller and actual and physical possession of the above mentioned land was landed over to the respective purchasers.
26 PW9 is Sh. Janardhan Singh Chauhan. He deposed that he is residing in Delhi for the last about 30 years and was working as mason. He further deposed that he is illiterate and unable to sign in Hindi, English or in any other language. He did not remember the places or sites where he had worked in the year 2007. He knew Parveen Gupta who engaged him for the work at a site at Rajokari in the year 2006. However, he did not remember the exact site or the name of the building where he worked in 2006 at the request of Parveen Gupta. He sent 45 workers at the site to carry out the work of plastering etc and he used to visit the site occasionally. He was not sure whether he could identify the site from the photographs because he used to visit the site occasionally. He was unable to tell as to in how many rooms plaster had already done or the number of rooms built at the above mentioned site. This witness was declared hostile by the Ld. PP for CBI and was cross examined by him.
27 PW10 is Sh. Vijay Verma. He deposed that he was working as contractor in the name and style of Verma Constructions. He further deposed that his firm worked for M/s Anant Raj Industries at Rajokari, New Delhi and an agreement was executed between him and M/s Anant Raj Industries for the purpose. Photo copy of the said agreement was handed over by him to CBI. He proved the said agreement as Ex. PW10/A. He further stated that agreement Ex. PW10/A was handed over to him by Sh. Kunark Bhandari, site incharge at Rajokari and at that time the agreement had already been signed on behalf of M/s Anant Raj Industries. As per him agreement Ex.
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PW10/A was executed on 6.9.2008. He started the work at the site of Rajokari after about one week of execution of Ex. PW10/A. He carried out plaster at the places where it was damaged. At that time the work of cleaning etc was going on at the site. The window frames in the building were also being changed. He carried out the work at the site of M/s Grand Meadows and M/s Papillion Estates. The toilet and other basic requirements were already there but some changes were made as per the requirement. When he started the work, the electrical wiring and fitting were already there. He appointed Sh. B. D. Sharma as site Engineer on behalf of his firm after about two months from the day of start of work at the site. Prior to B. D. Sharma another engineer, whose name he did not remember, was looking after the work at this site. He proved the copy of four invoices which were raised by him on behalf of his firm in respect of the construction work performed at the site. The same are Ex. PW10/C1 to PW10/C4. The final bill of the work carried out by his firm at the site was prepared in the hand writing of Site Engineer Sh. B. D. Sharma. The said bill was handed over to Sh. Konark Bhandari of M/s Anant Raj Industries by Sh. B. D. Sharma. He proved the copy of the bill as Ex. PW10/D. 28 PW11 is Sh. B. D. Sharma. He deposed that he joined M/s Verma Construction on 21.2.2009 and he know its proprietor by the name of Boby. On 22.2.2009 he was asked to supervise the work at Rajokari, New Delhi as site engineer. At that time repair work was already going on. Under his supervision, the work of plastering, plumbing, door windows and electrical work was carried out. Fire Fighting equipments were already installed at the site of Grand Meadows and Papillion Estate the work was going on and these sites were habitable. This witness was also declared hostile by ld. PP for CBI and was cross examined by him.
29 PW12 is Sh. Inderjeet Magu. He deposed that since May 2005 he was
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(Parveen Singh)
Spl. Judge: CBI-02, NDD: 23.07.2016
working as Technical Assistant in the office of Registrar of Companies, 61 IFCI Tower Nehru Place, N. Delhi since May 2005. He identified the signatures of Registrar of Companies at point A as well as official seals of Registrar of Companies on certified copies of documents pertaining to certificate of incorporation, memorandum of association, articles of association and annual returns in respect of M/s Anant Raj Clay Products, M/s Grand Meadows and M/s Papillion Estates. These documents were collectively exhibited as Ex. PW12/A. He further deposed that documents Ex. PW12/A were handed over by him to the investigation officer vide production cum seizure memo Ex. PW16/B which had his signatures at point A. 30 PW13 is Sh. Anil Bhandari. He deposed that he was working as Intgerior Designer since 1990. Since 2004 he was working as such under the name and style of M/s Concept Planners and Mr. Mrinal Behal is his another partner in this firm. The work for M/s Grand Meadows and M/s Papillion Estate was given to his firm by Sh. Asim Sarin, one of the Directors of M/s Anant Raj Industries. His firm dealt with the work at the two sites in the year 2008 and 2009 and carried out the job of interior designing of Hotel Grand Meadows and Papillion Estates after completion of structural work. His firm redesigned the flooring, furnishing etc to make the building suitable for the purpose of hotels. He further deposed that when his firm took over the work, there were ordinary fittings and fixtures in the bathroom and they redesigned the walls, tiles work, marble flooring, POP false ceiling, new fittings and fixtures like taps, WC, Wash basin and shower etc. When he took over the work electrical equipments like transformers etc were already fixed with partial electrical wiring and electricity was operational only to the limited area of the building. His company redesigned the electrical work along with different points as per the requirement of a hotel. They also redesigned the windows and doors. As per this witness the building with their existing CC No. 09/10 16 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 fittings and fixtures were not fit for the hotels. They also changed the rough plaster of the walls with POP work and the IPS flooring with wooden laminated flooring 31 PW14 is Jagdish Dhyani. He deposed that he was posted as Asst. Engineer in MCD from October 2008. In May 2009 a for inspection of Motels Buildings of Grand Meadows and Papillion Estate at Samalkha, Najafgarh a team was constituted by the order of Superintending Engineer Sh. Davendra Singh He was one of the member of the team which consisted of M. R. Mittal EE, A. K. Mittal AE, Sher Singh Architect. Later on in place of M. R. Mittal EE Sh. Panna Lal EE was included in the team. He proved the order of Sh. Davender Singh S. E. ( Building ) dated 13.5.2009 as Ex. PW14/A. By Ex. PW14/A the inspection team was constituted. The team members inspected the sites of Grand Meadows and Papillion Estate and prepared a report which was signed by him along with other members of the team. He proved the report along with its annexures A, B & C, bearing his signatures at point A, as Ex. PW14/B. He also proved the forwarding letter of Panna Lal EE as Ex. PW14/C. Vide Ex. PW14/C report was forwarded by Panna Lal EE. During inspection photographs of Grand Meadow and Papillion Estate were taken and videography of these two sites was also carried. Photographs and video CD were submitted along with the report. He identified the photographs which were taken at the site and submitted along with the report as Ex. PW3/P1 to P100. He further stated that an official from architect section prepared the site plan of Grand Meadows and Papillion Estates. He identified his signatures at points A on site plans Ex. PW14/D1 to D5. As it was not possible to prepare the site plan at the site, these were prepared in the office of MCD though, the measurements were taken at the site. Team incharge Panna Lal had called all the team members in the chanber where the site plan was signed by all of them. He identified the signatures of Sh. S. S. Mittal Architect Asst. at point B, signatures of Panna Lal at CC No. 09/10 17 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 point C, signatures of V. P. Bhardwaj architect assistant at point D and Anil Mittal Asst. Engineer at point E on the site plans Ex. PW14/D1 to D5. He also proved the seizure memo dated 5.5.2009 bearing his signatures at point A as Ex. PW14/E. Vide this seizure memo files pertaining to completion of Grand Meadows and Papillion Estates were seized from Anil Mittal AE MCD.
32 PW15 is Sh. Hemant Varshney. He deposed that he joined M/s Anant Raj Industries as Manager ( Accounts ) and was looking after the work pertaining to the bills of different sites of the company. He further deposed that he had no idea about M/s Papillion Estate and Grand Meadows as he had never looked after the work of these sites. Sh. Ashok Sareen was the Chairman and Sh. Anil Sareen was Managing Director of M/s Anant Raj Industries. Sh. Manoj Pahwa was working as Company Secretary of M/s Anant Raj Industries. Sh. Pankaj Nakra was also working in this company but he do not have any idea about the designation and job profile of Pankaj Nakra. He further deposed that he could identify the hand writing and signatures of Manoj Mahwa and Pankaj Nakra. He had seen the signatures and hand writings of Manoj Pahwa on the documents/correspondence and had not seen the hand writing and signatures of Pankaj Nakra as he had not dealt with any documents /correspondence signed by Pankaj Nakra. He identified the signatures of Manoj Pahwa on the form for Notice of Completion Ex. PW15/A at point A, on Certificate of Safety from National Hazards Ex. PW15/B at point A, on Form for Certificate of Licensed Architect ( Appendix3) Ex. PW5/A at point A, on Appendix3 Bye Laws No. 7.5.2 Ex. PW5/B at point A, on Water Harvesting Certificate Ex. PW15/C at point A and on Licence for Plumber and Certificate of Council of Architectures Ex. PW15/D and Ex. PW15/E at points A. He proved his signatures at point A on the details of bank accounts of M/s Papillion Estate, M/s Grand Meadows and M/s Anant Raj Industries, provided by him to the CBI which CC No. 09/10 18 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 are Ex. PW15/F ( colly ). He also proved his signatures on the list of Promoters / Shareholders Ex. PW15/G, at point A. He also proved the signatures of Manoj Pahwa at points A on form of Ministry of Urban Development National Building Organization, Form for application to erect, re erect or to make material alteration ( Appendix A), Structural Stability Certificate, Certificate of noise, Affidavit of Manoj Pahwa, Affidavit/Undertaking for non stacking ( Appendix M), Undertaking of Manoj Pahwa and Indemnity bond for basement ( Appendix N) which are Ex. PW15/H1 to H8 respectively.
33 PW16 is Sh. Rakesh Kumar Shrivastava. He deposed that he was working as Sr. Officer Suptd in Air India, IGIA Terminal. He joined the proceedings of CBI as a witness on 24.3.2009. Along with 34 other officers of CBI he reached at the site of twin motels at Gurgaon Road and name of one motel was Papillion. The office room of the motels were searched by CBI officer and some files were gone through by CBI officers in his presence. Some work was going on in the motels. CBI officers took a round and observed the work going on at the site. One photographer also joined the team of CBI and took photographs. He did remember exactly, but perhaps CBI officers took some notes from the files of the office of motels. He do not remember whether CBI officers took any file in custody. He did not remember whether signatures of any employee/official of the said motels were taken on the files. As asked by CBI officers he signed some documents. After seeing the six files ( D14) he identified his signatures on the first page of each file at point B. The files were exhibited as Ex. PW16/B1 to B6. He had also proved the copy of search list dated 24.3.2009 as Ex. PW16/C bearing his signatures at point A. This witness was recalled for further examination U/s 311 Cr. P. C. In his further examination he deposed that after reaching the building they had inspected, they entered the building. He along with Sh. Rajiv CC No. 09/10 19 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 Diwidi and other members of the team went to one office situated in that building and sat there. Mr. Diwidi demanded certain documents from one or two employees present there. General inspection of the building was carried out along with videographer. Videographer made a film of the areas which were inspected by them. Construction work was going on and only 23 rooms were fully furnished. Videography was being done by using a handycam. After the completion of videography, the videographer handed over the cassettes to Mr. Diwidi. Building seemed to be complete from outside. However, it was a altogether different scenario when they went inside as it was incomplete and work was going on. The structures of the rooms was standing inside the building. However, other work was still pending. Wiring was visible, switch boards were not being placed, debris were lying around and there was water logging at many places. After completion of the proceedings they collected everything and went to CBI office. In CBI office Mr. Diwidi called for an envelope and placed certain things in it. He signed on the envelope on being asked by Mr. Diwidi. A seal was fixed on the envelope and seal was handed over to him. He produced the brass seal with initials CBI EO VII ND1 which is Ex. PW16/Art1. He also identified his signatures on Ex. PW24/F and Ex. PW24/G and point C and B respectively. The video cassettes Ex. PW24/I and Ex. PW24/J were played in the court during the examination of this witness. After seeing tape1 for five minutes he identified one Mr. Diwidi in the videography. He further stated that from the stairs the camera person moved inside the building along with team. When the team entered the premises it was found that structure was not at all complete from inside. Labours were seen working, waste material was lying at many places, cemented walls were seen but there was no distemper on the walls, room numbers were written at some places, some construction material/masala was lying on the floor, ceiling of the premises showed that AC ducts CC No. 09/10 20 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 were lying open and false ceiling was not complete and was lying open. There was water logging at many places. He had seen some support structure both inside and outside the building. At 9.51.11 in the film the camera enters the basement and this basement was below the ground level. The camera enters into the basement area and entry to this area was facilitated by removing cover passage of staircase. He further states that from the basement the staircase was going towards another basement and there might be two basement. He also identified himself in the videography.
34 After seeing tape2, he identified himself at the beginning and at different places inside the premises along with other team members. He stated that he had seen building material scattered at many places. Construction work was going on and it was incomplete. Some iron building material was found lying inside the premises and iron girders were lying around. Flooring was not complete and proper and there was no flooring inside the building.
35 PW17 is Sh. Pushkar Raj. He deposed that in the year 2008 he was posted as Head clerk / Sr. Vigilance Inspector with MCD. On the instructions of his senior officers he reached CBI office on 24.12.2008 at about 6.00/7.00 AM. He met with CBI officers in the office of SP CBI. One Ashok Kumar from his office was also present there. A team was constituted, the team members were asked to sit in a vehicle and they proceeded to the area of Najafgarh Zone in Rajokari. They visited two buildings which were situated in the same compound but he did not remember the names of those buildings. They entered the buildings through a common gate of temporarily tin shed. Building material was lying there at that time. Videography of the two buildings was done by the CBI officials. There was no other compound wall or the partition wall between the two buildings. Structure of the buildings was complete but otherwise the buildings were not complete. Even the plaster was not complete at some CC No. 09/10 21 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 places. There was no water and electricity connections in the buildings. He further deposed that Video Cassette was sealed at the spot. Two tapes of video recording, one CD and one Panasonic cassette were shown to the witness but none of them had signatures.
36 PW18 is Sh. Harish Kumar. He deposed that in the year 2009 he was posted as Patwari of Village Samalkha situated in Tehsil Vasant Vihar. He proved the copy of Khatauni for the year 20022003 in respect of Khata No. 285, 137 and 165 of Village Samalkha, Delhi. It is Ex. PW18/A and was prepared by him from the original record. It bears his signatures at point A on each page and is countersigned by Tehsildar Sh. Surinder Kumar at point B on each page who had put his signatures on the Khataunis in his presence. Similarly, he had also proved the copy of Khatauni for the year 20022003 in respect of Khata No 165, 285, 345 and 137 as Ex. PW18/B of Village Samalkha. He further proved the copy of Khatauni Chakbandi as Ex. PW18/C bearing the signatures of Sh. Krishanveer Patwari at point A and Sh. B. L. Meena Naib Tehsildar at point B. He identified their signatures as they were posted in Tehsil Vasant Vihar along with him.
37 PW19 is Sh. V. K. Tyagi. He deposed that in the year 2009, he was posted in Building Department of Najafgarh Zone. He further deposed that he had seen MCD file of Grand Meadows. As per the file, the inspection was carried out by the JE on 20.03.2008 and the calculation for compoundable deviations was also available in the file. He had seen house tax receipt in the file which is dated 16.06.2008 and for the year 200809. As per the file, a document of house tax receipt was found deficient for which a notice was issued on 19.06.2008 and in the noting dated 31.03.2008, it was mentioned by the then JE OP Meena that latest house tax receipt had been received and he processed the case for issuance of completion certificate which was ultimately CC No. 09/10 22 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 issued on 31.03.2008. He further deposed that completion certificate could be issued only with the approval of either Superintending Engineer or the Deputy Commissioner. The completion certificate dated 21.04.2008 was issued on the basis of approval of Superintending Engineer and no major deviation was mentioned in the inspection carried out by the JE. He further deposed that as per the noting, the JE had pointed out 08 discrepancies during the inspection. Out of those discrepancies, 06 discrepancies were removed vide notice dated 31.03.2008, one was removed vide noting dated 21.04.2008 and two discrepancies namely certificate from lift manufacturer and certificate from air conditioner engineer were never removed. He further deposed that when he visited the site with CBI team somewhere in April/ May 2009, there was excavation of earth surrounding the basement. The excavation was found to be fresh as the impressions of earth were available on the walls where the excavation was being carried out.
38 PW20 is Sh. Anshu Prakash. He deposed that in the year 2010 he was posted as Additional Commissioner in MCD. He received a letter from CBI for grant of sanction for prosecution of Sh. O. P. Meena Jr. Engineer of Slum and JJ Department. He received the request along with copy of FIR, statement of witnesses recorded by CBI, report of MCD experts and some other documents. After carefully perusing the documents and examining the material placed before him, he granted the sanction for prosecution dated 30.3.2010 Ex. PW20/A 39 PW21 is Sh. Mrinal Bahl. He deposed that he is a Science Graduate (Architecture). He joined M/s Concept Planner International as Asst. Architect in the year 2000. It deals in architectural projects and interior designing projects. He was looking after the architectural working drawings. M/s Concept Planner International started woking on the projects of M/s Grand Meadows and M/s Papillion Estate in the CC No. 09/10 23 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 year 2006. Sh. Mangat Ram Sharma was the Engineer in charge of these two projects. He was interacting with Mangat Ram Sharma in respect of these projects. He was told by Sh. Mangar Ram Sharma that there were 45 joint directors of M/s Anant Raj Industries. He never interacted with any of them directly. All the work of drawings was done as per instructions of Sh. Mangat Ram Sharma. He was not aware that who was interacting with government agencies on behalf of M/s Anant Raj Industries. The sanction plans of Motels M/s Papillion Estates and M/s Grand Meadows were made available to him by Sh. Mangat Ram Sharma. He met Sh. R. K. Grover while working on these projects who was a private person. He was handling the municipal drawings of these two projects. He further deposed that they had prepared the layout drawings as per the instructions of Sh. Mangat Ram Sharma. After submission of layout drawings, from time to time, on the basis of suggestions, revised working drawings were prepared as per the standard practice, but while doing so, the sanctioned plan was always kept in mind. He further deposed that there might be some minor deviations in the working drawings vis a vis the sanctioned plan but due to lapse of time he do not remember. One deviation which he remember was the entry to the Motel which was effected after the discussion with Mangat Ram Sharma and keeping in view the nature of project. Internal changes in the working drawings vis a vis the sanction plan are allowed but the major changes like set backs, ground coverage and FAR could not be made. These projects were for three floors, one basement, one ground floor and one first floor. The changes ie the size of rooms, the number of the rooms, the height were depicted in the lay out plan. In these projects the height of each floor was more than 03 meters. These changes were made at the ground floor and first floor. He did recollect the changes effected at the basement level. All the internal changes were effected as per the instruction of Sh. Mangat Ram Sharma and the owner was responsible for all the CC No. 09/10 24 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 internal changes. After the commencement of construction the MCD officials were required to inspect the site from time to time. He was not aware whether the MCD officials had inspected the site while construction was going on. The completion certificate was required after completion of the building and for that purpose "as built drawings" had to be submitted which were to be verified and the premises was to be physically inspected by MCD before issuing the completion certificate. Fire approval was also required to be submitted for getting completion certificate.
40 PW22 is Sh. P. K. Raja. He deposed that he remained posted as EE in building department at Najafgarh Zone from 18.10.2007 till 15.4.2008. He further deposed that as per record the completion certificate in respect of Motel Grand Meadows was issued on 21.4.2008. On 26.3.2008 the file was placed before him for approval of compounding fees amounting to Rs. 6,04,714/. As the area of the plot was more than 400 sq.yards the approval was to be granted by the Suptd. Engineer. The proposal placed before him by G. S. Jindal AE ( Building ), was in order and on 26.3.2008 he forwarded it to Suptd. Engineer Sh. V. K. Gupta itself vide his signatures at point D. The Suptd. Engineer had approved the compounding fee vide endorsement at portion X2 to X2 and signatures at point E. He received back the file on 27.3.2008 and marked it to G. S. Jindal on the same day. After 27.3.2008 he had never seen this file nor it was placed before him. He further deposed that as per record the completion certificate in respect of Motel Papillion Estates was issued on 21.4.2008. The file was placed before him on 31.3.2008 for approval of compounding fees amounting to Rs. 7,11,373/. As the area of the plot was more than 400 sq.yards the approval was to be granted by the Suptd. Engineer. The proposal placed before him by AE ( Building ) G. S. Jindal was in order and on 31.3.2008 he accordingly forwarded the same to Suptd. Engineer Sh. V. K. Gupta itself vide his signatures at point C and note at point D. The CC No. 09/10 25 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 Suptd. Engineer had approved the compounding fee vide endorsement at point E and signatures at point F. He received back the file on 31.3.2008 and marked it to G. S. Jindal on the same day vide his endorsement encircled Y. He identified the signatures of Suptd. Engineer Sh. V. K. Gupta on both the completion certificates as he had seen him writing and signing in the course of his official duties. On his transfer on 15.4.2008, the charge was taken by AE Sh. H. C. Sharma. He further deposed that Sh. V. K. Charaya was the AE and was successor of Sh. G. S. Jindal who retired on 31.3.2008. In the file of motel Grand Meadows as per the noting dated 31.3.2008 Sh. O. P. Meena had pointed out that the required documents had been submitted. He had visited the sites of Grand Meadows and Papillion Estates a week prior to 9.4.2009 and found, that the earth surrounding the basement had been removed in contravention of Building Bye Laws at both the sites thereby making the basement as regular floor and in turn making the upper floor totally unauthorized. He had visited the CBI office on 9.4.2009 and a house tax receipt dated 16.6.2008 was shown to him in CBI office in file D6.. He states that in his noting dated 31.3.2008 Sh. O. P. Meena had recorded that the owner had furnished the latest house tax receipt. No other house tax receipt was shown to him in CBI office. The photocopy of house tax receipt is Ex. PW22/A. In the noting dated 31.3.2008, O. P. Meena had recorded submission of photocopy of sanctioned building plan, proof of ownership, C&D compounded, two sets of latest photographs as per specifications and latest house tax receipt. The owner was further required to submit NOC from fire and receipt of compounding. There was no document showing C&D compounding in file D6. The NOC from the fire department dt 17.4.2008 and receipt for compounding fee of Rs. 6,65,000/ dated 21.4.2008 as reflected in the noting of Sh. O. P. Meena dated 21.4.2008 were available in file D6. For issuance of completion certificate, upto date deposit of property tax was mandatory. Completion CC No. 09/10 26 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 certificate was issued on 21.4.2008 whereas, the house tax receipt Ex. PW22/A is dated 16.6.2008. He further deposed that in CBI office he was also shown file D7 pertaining to issuance of completion certificate in respect of motel Papillion. He did not find C&D compounding in this file which was mentioned in the noting dt 31.3.2008 of O. P. Meena. The guidelines for issuance of completion certificate are laid down in circular dated 2.6.1997. The JE was required to inspect the premises and submit the report.
41 PW23 is Sh. Ashok Kumar. He deposed that he had retired from the Vigilance Department of MCD on 31.8.2010. On 24.12.2008 he was called in the CBI office for the purpose of carrying out a joint inspection of a building of twin motels site at Rajokri Crossing in Najafgarh Zone of MCD. Apart from him, the joint inspection team comprised of Dy. SP Dwivedi, Insp. R. L. Yadav, Sh. Pushkar Raj Sr. Vigilance Insp. MCD, photographer from CFSL and 23 other persons from other departments. The joint inspection reached the site. Gate was closed from inside. The person available at the gate opened the gate after he was told the purpose of visit. Two buildings were under construction at the site on a single plot. He further deposed that he is saying single plot as there was no demarcation or boundary wall between the two buildings and the access to both the buildings was from the same gate. Building material like bricks, iron bars, cement, concrete mixing machine, stone grits, and sand etc were dumped there. On enquiries, it was revealed that two buildings were being constructed for Papillion and Grand motels and one Anant Raj was the owner of the building. The construction was upto ground and first floor level and there were columns beyond first floor. The construction was unfinished construction. The photographer who accompanied them had taken still photographs and also videographed the area. Thereafter, the joint inspection team proceeded to other sites CC No. 09/10 27 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 and remained busy till evening. He and others were allowed to go in the evening. No cassette of videography, or the CD of photographs were sealed or got signed from him or any other member of the team in his presence. He did not know whether any completion certificate was issued by MCD or DDA in respect of these buildings.
42 PW24 is Rajeev Dwivedi Addl. SP. Spl. Unit Mumbai. He was a member of the inspection conducted at the buildings on 24.03.2009. His testimony shall be considered at the later stage as and when required.
43 PW25 is Sh. K. L. Nanda. He deposed that since 1983 he was doing the work of shuttering on labour rate basis in building construction. In the year 2005 he had worked at a construction site at Rajokri which was completed in 2006. He was called to do the shuttering work by Sh. Mangat Ram Sharma who was an engineer. The owner of the site was one Mr. Sarin whose son Asim Sarin used to come to the site. He do not know about the nature of building which was under construction. He was referred by Sh. Baldev for the work at Rajokri and on the asking of Sh. Baldev he met Sh. Mangat Ram. He executed the shuttering work for the laying of roof at the Zero level, at the ground floor level and at the first floor level. He used to deploy 1015 persons for shuttering work. The shuttering of the pillars were done on the basis of drawings . Any changes in the drawings were carried out by the engineer and he used to work as per their instructions. He ddid not know if any changes were carried out in the drawing.
44 PW26 is Sh. Anjan Sen Gupta. He deposed that he was working in M/s Anant Raj Industries since 2008 and since 2009 he was Dy. General Manager ( Hotels) and his work started after the hotel was ready. He look after for providing operational items like crockery, bed sheets and other items required for the use of guests in the CC No. 09/10 28 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 hotel. If there was some deficiency in the interiors in the hotel or, some correction was needed, he had done it through the appropriate agency personal or professional. He was looking after Mapple Exotic in Chattarpur, Pearl Ocean in Chattarpur, Maple Emrald which was earlier known as Grand Papillion in Rajokri. The hotel Grand Papillion was ready in 2009 and when it was given on lease to Mapple, some changes in the electrical fittings, plumbing fittings and reassembling of the furniture were got done at the instance of M/s Mapple. Electrical fittings were changed through one Mr. Iqbal Singh, plumbing fittings was gone done by M/s Rout Associates and furniture was arranged from M/s Done Polo. The Fire fighting equipments were already fixed. He deposed that he had never visited any authority including DCP ( Licencing) in connection with grant of licence for the hotel. He met CBI officials in 2009 or 2010. Fire fighting work to be carried out in Grand Papillion was awarded to M/s Kohli Enterprises under his signatures in February 2009 and it was of very small nature. He did not know as to who had carried out the fire fighting work in the building prior to February 2009.
45 PW27 is Sh. Anil Singh Addl. SP CBI ACU1 Zone. He was the IO of the case. His testimony will be considered at a later stage as and when required.
46 PW 28 is Sh. Dharamvir Singh Yadav. He deposed that he had retired from Delhi Fire Service on 31.10.2013. In the year 2008 he was posted as Asst. Divisional Officer, Safdarjung Fire Station, New Delhi. Whenever any application was moved to check the fire safety measures installed in any premises or, for grant of any trade license requiring fire clearance of fire safety measures before the Chief Fire Officer, the premises were inspected by the nominated authority for that purposes. He was the nominated authority in the year 2008 for the South District and Sh. A. K. Bhatnagar Divisional Officer was also one of the nominated authority for South CC No. 09/10 29 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 District. On 11.4.2008 he was assigned the work of carrying out inspection of premises of M/s Grand Meadows and M/s Papillion by his Divisional Officer Sh. A. K. Bhatnagar. He accordingly visited the premises and carried out the inspection. A 10,000 liter water tank was installed at the roof of first floor of each of the premises. There was a water tank of 1 lac liter capacity in the front portion at the entrance. Electricity and Diesel driven fire pumps were also found installed in the Fire Pump House located near the main entrance of the building. Generator was also installed and the working of fire pump was checked with the help of generator. A large dump of earth was lying outside the building on one side in a open area though the surface was made smooth. Fire check doors were installed and final touch to white washing was being given in the basement. The fire safety measures were installed as per the guidelines. The sewerage and water system was not appearing to be complete though pipes were laid. He had not checked the drainage system. The water storage tanks were installed underground as well as overhead for firefighting purpose. The sewer line was functioning properly and the water was flowing in the sewer line. This witness was also declared hostile by the ld. PP for CBI and was cross examined at length.
47 In the cross examination conducted by ld. PP for CBI he stated that he had carried out inspection of firefighting system installation and another inspection was to be carried out by the firefighting department for the purpose of issuance of occupancy certificate. There was no overflow of water from any place when the firefighting system was operated during that inspection . The sewer system has no connection with firefighting system. He had not checked the sewage system. He do not remember whether he had stated to CBI officer that there was no sewage system in the two motels. He stated that he did not tell to CBI officer that there was earth surrounding the motel from all the sides and some portion of the same has to be removed for drainage system CC No. 09/10 30 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 as there was no outlet in the building for the water to be drained out. He was confronted with his statement Ex. PW28/A from portion A to A where it was so recorded. He admitted that completion of the work like plastering, whitewashing, fixing of doors and windows were yet to be done. Firefighting equipment was checked with the help of DG set as electricity connection was to be made available only after NOC from the fire department. He had verified, during his inspection, the recommendation of the Chief Fire Officer given in the year 2004. He further stated that during inspection he had not spoken to any of the labours working there. One or two persons always remained available there. He had not seen any labour doing plastering work. He denied that he had stated to CBI that he had seen the labour doing the plastering work. He was confronted with Ex. PW28/A portion B to B in this regard where it was so recorded. No work was going on in the lobby of Grand Meadows and Papillion. He further stated that he did not remember whether he had stated to CBI, that Motels were not complete and their construction would take another few months to complete as they were making lobby for the motels.
Statement of Accused and Defence Evidence 48 Thereafter, statement of accused persons was recorded u/s 313 Cr.P.C. 49 All the accused persons claimed to be innocent and that they were falsely implicated in the present case. They preferred to lead evidence in defence and examined 05 witnesses 50 DW1 is Sh. Naresh Kumar Ahlmad of Appellant Tribunal MCD. He had brought the record /entire file pertaining to appeal No. 114/ATMCD/2010 titled as Anant Raj Industries V/s MCD. He proved the copy of the petition/appeal as Ex. DW1/1, copy of written submissions filed by MCD as Ex. DW1/2 and certified copy of the order passed by Appellant Tribunal as Ex. DW1/3. The photo copy of the show CC No. 09/10 31 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 cause notice was marked as Mark DW1/A. 51 DW2 is Sh. Kulwant Singh Office Incharge SDMC Najafgarh Zone. He had brought the record pertaining to file No. EE ( B)/NGZ/09 He proved copy of show cause notice dated 12.6.2009 as Ex. DW2/1. He had also proved the reply dated 18.6.2009 filed by M/s Pappilion Estate to the show cause notice as Ex. DW2/2. The remaining documents in the file including the order dated 3.9.2009 passed by ATMCD (Appellate Tribunal MCD) is Ex. DW2/3. He further deposed that remaining documents in the file in original had been seized by the CBI and the noting to this effect dated 28.5.2009 had the signatures of concerned JE which had been approved by Sh. Anil Mittal AE vide his signatures at point A. The noting is Ex. DW2/4. File bearing No. F13/B/UC/NGZ/09 was also taken in its custody by CBI. He had also proved copy of order bearing No. D1313/buildingII/SZ/10 dated 31.12.2010 U/s 343 ( 1 ) of DMC Act passed by AE Building South Zone as Ex. DW2/5, copy of order bearing No. D1312/buildingII/SZ/10 dated 31.12.2010 U/s 343 ( 1 ) of DMC Act passed by AE Building South Zone as Ex. DW2/6. The file brought by this witness also contained FIR bearing no. 18/UC/BII/SZ/2010 dated 1.2.2010 and show cause notice no. 18/UC/BII/2010 dated 1.2.2010. He proved the copies of these documents as Ex. DW2/7 and DW2/8 respectively. File also contained FIR and show cause notice, both dated 1.2.2010 bearing No. 17/UC/BII/SZ/2010. Copies of the same are Ex. DW2/9 and Ex. DW2/10.
52 DW3 is Sh. Sanjay Wadhawan Joint Managing Director of M/s Nine Dimension Hotels & Resorts Pvt. Ltd. He deposed that his company was running hotels throughout India. In January 2008 he frequently used to go to Jaipur for search of hotel property. While going to Jaipur he noticed two buildings located on the National Highway No.8. He found that location of those buildings was appropriate for CC No. 09/10 32 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 running hotel. In February 2008 he went to these buildings and found it to be a very good location for running a hotel. He further deposed that in March 2008 he was contacted by one Sh. Anil Mahendra of M/s Anant Raj Industries who inquired from him whether he was interested in operating these two hotels? Thereafter, he alongwith his team inspected these hotels and observed that these hotels required to be upgraded. He then make a list of up gradation work required to be done and provided it to M/s Anant Raj Industries. He informed them that his company would be starting these hotels only after up gradation work had been completed. The up gradation work was not done in time and finally they started running these hotels in 2010. When he had visited the hotels for inspection, the buildings had been completed but not upto their standards. A ramp was required to be built for entry to the basement for the purpose of parking of vehicles.
53 DW4 is Sh. Anil Mahindra. He deposed that he had been working for Anant Raj Industries since 2004. His job profile included acquisition of land and leasing of buildings. In January 2008, he was informed by his superiors that two buildings at NH8 had been completed and he should arrange tenants for these buildings. He contacted various companies, including Nine Dimension Pvt Ltd., which were running hotels in India. He further deposed that in February or March 2008, he contacted Mr. Wadhawan of Nine Dimension Pvt Ltd. Mr. Wadhawan visited these hotels and was very happy with the location of buildings. However, Mr. Wadhawan wanted certain up gradations to be done. Mr. Wadhawan wanted bathroom fittings to be changed to make them look modern and fancy. He also demanded change of flooring at many places. He also stated that for entry to the basement a ramp was required to be constructed. A meeting had taken place regarding the upgradation work which was also attended by Sh. Anjan Sen Gupta. This witness was not aware as to who had carried CC No. 09/10 33 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 out the up gradation work as it was not part of his job profile. He further deposed that finally in the year 2010 the hotel was leased to Nine Dimension.
54 DW5 is Sh. S. B. Sharma Head Clerk/ZI in SDMC, Minto Road, ND.
He had brought the duplicate file of tax assessment of property in Khasra No. 41/9, 37/23/2, 24/2, 41/3, 41/2/3, 41/2/1 at Village Smalkha known as Mapples. He further deposed that this file contained photo copies of receipt no. 486058 and 486059 and the original receipt book containing the carbon copies was detained by the court vide order dated 7.1.2013. After seeing the receipt book from the record, he deposed that it contained receipt no. 486058 and 486059 in the name of S. N. Dhawan and M/s Grand Meadows Ltd. The carbon copy of receipt in favour of Grand Meadows was already exhibited as Ex. PW22/DA. He proved the photo copy of receipt in favour of S. N. Dhawan as Ex. DW5/1.
The Arguments 55 It has been contended by Ld. PP that CBI, by virtue of evidence led, has clearly proved that the accused had not built up the buildings in a manner which could have been accorded completion certificate. It has been further contended that joint inspection report and the expert committee report which has been proved by PW14 clearly proves the existence of second/ hidden basement. Had this basement not been concealed by accused no. 1, 4 , 5 and 6 to 10 and its existence had not been ignored by accused no. 2 and 3, there could not have been issuance of any completion certificate regarding both the buildings which clearly establishes the conspiracy between all these accused persons, the object of which was to obtain completion certificate for the building despite the building not being eligible for completion certificate. He has CC No. 09/10 34 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 further contended that the prosecution has also proved that in furtherance of the common object of the conspiracy, accused OP Meena while submitting his report had deliberately stated that all the requirements for issuance of completion certificate has been met whereas there was no form C and D and house tax upto date had not been paid as is visible from the evidence led by CBI. He has further contended that accused OP Meena in furtherance of conspiracy, to cause pecuniary benefit to other accused persons/ owners of the buildings and pecuniary loss to the MCD, had wrongly calculated the compounding charges and thereby caused loss of Rs.50,000/ to MCD. He has further contended that CBI has proved that at the time of joint inspection in October 2008 and thereafter, the inspection by expert committee in May 2009, the construction activity was in full swing and therefore, the building was not complete even till 2009 whereas the completion certificate, on the recommendations of accused OP Meena and GS Jindal, was granted by MCD in April 2008 which clearly shows the connivance and conspiracy between the accused persons.
56 Countering the same, on behalf of accused OP Meena, who is public servant/ JE, MCD, it has been argued by Sh. Naveen Tittal that the accused had inspected the building on 25.03.2008 as has been confirmed by PW2 and had raised objections regarding non availability of fire certificate, ownership documents and house tax receipt. He has further contended that when these objections were removed and house tax upto date had been paid, the accused had given his report. As regards compounding of form C and D, it is contended that PW22 in his cross examination dated 31.10.2013 had confirmed that requirements of form C and D had been met by form B1 which had been complied with by the applicant. In this regard, learned counsel has drawn my attention to the cross examination of PW22 and has contended that PW22 in his cross examination has stated that form C and D had been replaced by CC No. 09/10 35 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 form B1 under the new building bye laws and as per file Ex.PW4/A, compounding fee for form B1 had been calculated and paid vide receipt Ex.PW3/DA and after the deposit of compounding fee for form B1, the requirement of obtaining form C and D stood met with. As regards the existence of second basement, it has been contended on behalf of accused OP Meena that so called second basement could not have been noticed by the accused as admittedly, it was a concealed structure. It has further been contended that even the expert committee report, Ex.PW14/B, states that inspection team discovered the structure by chance as there was a ray of light coming from underneath the basement floor. It has further been contended that it was a big team and even this team noticed that structure by chance and thus, accused OP Meena cannot be faulted for not finding out about the alleged second basement. It has further been contended that even PW2 V.K Charaya, AE, MCD, under whose signatures the completion certificate had been issued, during his cross examination had stated that during the inspections, JE was supposed to inspect the building physically and not to excavate and find out what lies beneath the ground level. He has further contended that the fact that this alleged second basement was concealed is visible from examination in chief of PW19 wherein he had stated that when he had visited site with CBI team somewhere in April/ May 2009, there was excavation of earth surrounding the basement which was found to be fresh as the impressions of earth were available on the walls where the excavation was being carried out. It is further contended that first inspection by CBI or any other team was done after nine months of the inspection being carried out by accused OP Meena, who had lastly visited the building on 25.03.2008. There is no contemporaneous evidence of the condition of the building as it existed on the date accused OP Meena gave his report. Therefore, in absence of the such evidence, it cannot be said that accused had given his report regarding a building which was incomplete and the CC No. 09/10 36 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 accused cannot be held liable for any repair or other construction activity which was carried out by builder or owner after the completion certificate has been granted. The only witness with regard to the condition of the building as it existed on or prior to the inspection of this building by accused OP Meena is PW28, who had inspected the building for the purposes of fire clearance and who during his cross examination by PP had denied that the final completion of the work like plastering, whitewashing, fixing of doors and windows was still to be done and had denied that at the time of inspection, construction was going on at Grand Meadows and Pappillion Estate.
57 On behalf of GS Jindal, it has been contended that accused GS Jindal has been falsely and wrongly impleaded in this case. The accused had only signed or approved the note Ex.PW2/1 which was not for issuance of completion certificate but for approval of compounding fees. He has relied upon the report of OP Meena regarding compoundable deviations which he had stated was absolutely within the rules as he was not required to personally verify the correctness of the note put up by accused OP Meena, who was JE. He has further contended that accused GS Jindal got retired in the year 2008 and after that, the accused could not have access to the file.
58 On behalf of accused no. 1 and 5, Sh. Mohit Mathur, Ld. Senior Counsel has contended that accused have been charged with section 13 (1) (d) (ii) POC Act r/w section 120B IPC. He has contended that there is no element of conspiracy which has been shown or proved by the prosecution in the entire evidence. The prosecution has not even been able to show when the conspiracy started and who had played what role in that conspiracy. The prosecution has also failed to show that the accused had ever met each other. Without meeting of minds, the object of the conspiracy could not have been proved and thus, the prosecution has failed to prove the conspiracy. It has further been contended that the entire case of the prosecution rests on the report of the expert CC No. 09/10 37 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 committee of MCD. It has been contended that this report was formulated on the basis of the condition as it existed in May 2009 i.e. almost after passage of one year of the completion certificate being granted and if at that time, certain renovation work was found to be in progress, it cannot be said that at the time of granting of completion certificate, building existed in the condition in which it was shown to be existing in May 2009. He has further contended that the condition of the building which was found by expert team at the time of its inspection was for the reason that after the completion of the building, the owners intended to let out the building to a hotel. As per the requirements of the proposed lesser, the changes in the interiors of the building were being made to make it suitable for being run as a hotel. The defence by positive evidence of DW3 and DW4 has clearly established this fact that it was after the completion certificate being issued that the proposed tenant had required certain changes and it was these changes which were in progress at the time of visit of expert committee. He has further contended that even otherwise the report of the expert committee, which is Ex.PW14/B, cannot be relied upon by the court because the constitution of this team was of much later date whereas the team had inspected the building prior to its constitution. Furthermore, the team was later on reconstituted and one member was replaced and the member who was added to the team had only signed the report but was not a part of the inspection team. Thus, the report cannot be relied upon. He has further contended that as regards the existence of second basement, there is no evidence before the court that the structure which was found underneath the basement was the second basement. Even the expert committee report states that the structure which was found underneath cannot be said to be a basement. He has contended that in fact it was a structure which came in existence because of the necessity created by the kind of soil upon which the buildings were erected. He has CC No. 09/10 38 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 further contended that PW1 is the soil engineer who had tested the soil and proved reports mark PW1/A and B which later on, during the cross examination of IO were exhibited as Ex. PW27/D3 and D4. These reports had clearly recommended the erection of building on a raft foundation as there was loose soil and water logging. He has further contended that what in fact had been found and termed as second basement was the foundation of the building and not the second basement.
59 On behalf of accused R.K Grover, it is contended that at the time of sanction of plan, the accused was not the architect and at that time, Ms. Manjula Chhakkar was the architect. It is further contended that there is no documentary evidence to show that the accused was working in this project. It is further contended by learned counsel for accused that there is no document showing the appointment of accused as an architect. He has further contended that even the address given in the documents was not the address of the accused.
60 On behalf of accused no. 9, it is contended that the allegations of conspiracy as levelled in the charge sheet are available at page 45 of the charge sheet but there is no evidence of conspiracy between accused no. 9 and other accused or that the signatures of accused no. 9 were false. It is further contended that a change of structural engineer is visible and no notice of such change was given.
61 It is contended on behalf of accused no. 4, 6, 7 and 10 that there is no evidence regarding the condition of the buildings at the time when the completion certificate was granted or when the JE visited these premises for inspection. The only person who had seen the buildings in April 2008 was PW28 who had clearly stated that at that time, the buildings were complete. Attention has also been drawn on the building bye laws 7.5.2 of the MCD. It is further contended that in April 2008, the buildings were complete and it was only as per the requirements of the proposed lessee, that the CC No. 09/10 39 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 upgradation work was being conducted. In this regard, PW6 who is a witness of prosecution, has clearly stated that at the time of CBI raid, the work of upgradation was in progress in these two buildings and that at the time when he joined these two sites, the buildings were fit for occupancy but the work of upgradation required certain additions and alterations and it is for this reason that at the time of CBI raid, the buildings were found not fit for occupation. It is further contended that underground structure which the prosecution has tried to establish as a basement was not the basement but it was the foundation of the building. It is further contended that the building was constructed on a raft foundation as per the report of the soil engineer. It is further contended that PW14, during his reexamination u/s 311 Cr.P.C as recorded on 18.12.2014, had clearly stated that underground structure which was found could not be said to be the basement in terms of building bye laws.
Findings 62 I have heard learned PP for CBI as well as learned counsels for accused persons and have perused the record very carefully.
63 The basic allegations against the accused forming the the basis of charges are, that the completion certificates, of M/s Grand Meadows which is Ex.PW2/E and of M/s Papillon Estate which is Ex.PW2/D, were issued pursuant to the conspiracy of the accused persons despite the fact, that the buildings at that time were incomplete and there were gross violations of sanctioned buildings plan especially the constitution of second basement and further that there was submission of forged certificate in the form of certificate of M/s Adarsh Marken, Engineer/ plumber.
64 First, I shall take up the issue of existence of second basement. The existence of this second basement, for the first time, was revealed during the joint CC No. 09/10 40 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 inspection by a team of MCD which was constituted at the request of CBI.
65 The first question is whether accused OP Meena, having knowledge of the existence of the alleged second basement, pursuant to common object of conspiracy with other accused, deliberately concealed or ignored its existence?
66 As per the testimony of PW14, this team was constituted in May 2009. He deposed that vide order dated 13.05.2009 Ex.PW14/A, Sh. Devendra Singh, SE (Building), constituted a team. Initially this team consisted of Sh. M.R. Mittal, Executive Engineer, Sh. A.K Mittal, Assistant Engineer and Sh. Sher Singh, Architect. Later on, the team was modified and in place of Sh. M R Mittal, Sh. Panna Lal, Executive Engineer was included in the team. The team members inspected the sites of of M/s Grand Meadows and M/s Papillion Estate and prepared report Ex.PW14/B. This report was forwarded to CBI by Sh. Panna Lal Executive Engineer, vide letter dated 22.12.2009 which is Ex.PW14/C. During the inspection, photographs Ex.PW3/P1 to Ex.PW3/P100 were taken and videography was also conducted.
67 During his cross examination, he deposed that the he was instructed by Superintending Engineer to reach at the site of Grand Meadows and Papillion Estate on 05.05.2009. He denied that on 05.05.2009, there was no instruction from any of the senior official to reach at the above mentioned sites. He further deposed that the team had visited sites of Grand Meadows and Papillion Estate either on the next day or within 23 days after the order dated 13.05.2009 (Ex.PW14/A). He further deposed that the undated report Ex.PW14/B was collectively prepared by the team members after discussion but no minutes of meeting were recorded in respect of any meeting of the team including, the meeting held on the day when report Ex.PW14/B was prepared. He further deposed that report Ex.PW14/B was signed by him and other members of the team on 22.12.2009. He denied that the report Ex.PW14/B was a false report and was CC No. 09/10 41 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 prepared without visiting the sites of Grand Meadows and Estate Papillion 68 During his reexamination u/s 311 Cr.P.C, a video CD of recordings during the inspection was played. He deposed that both the premises were checked from various places even after removing of concrete slabs. At places, on removing the concrete slab, shaft was found and at other places, staircase going down was found which was in concealed position and which was going about 18 feet down in both the buildings. In response to a court question, he deposed that the building was not fit for occupancy for issuance of completion certificate. Intermediate slabs were also found in the underground construction. The underground structure was in semi furnished condition and there was no plaster on the walls. The underground structure was about 18 feet deep and at some places, there were intermediate slabs making them two underground structures. This was a massive underground structure which was found only after digging out CC slabs. The construction at the site was compared with the sanctioned plan, and the deviations found therein were mentioned in the report. The deviations found were not the compoundable deviations. The underground structures in both the buildings were amalgamated/ interconnected as were found after breaking the slabs and had been reflected in the report and depicted in CD. As per the sanctioned plan, the underground basement was to go 1.82 meter below the ground level and 1.2 meter above the ground level whereas the underground structure was found to be 18 feet below the ground level. He further deposed that the underground structure found could not be said to be a basement in terms of building bye laws. Second basement is not defined in building bye laws.
69 During his cross examination, he deposed that the procedure had been prescribed under the DMC Act for booking unauthorized constructions. The completion certificates issued in respect of two separate buildings would not be affected if, after the CC No. 09/10 42 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 issuance of the same, the two buildings were joined by any means from any portion and this joining would result in fresh booking as unauthorized construction. He further deposed that structural engineer was required to assess the load bearing capacity of the soil and resultant depth of the foundation. Building bye laws did not provide for procedure of such assessment by the structural engineer. The structural engineer issues certificate keeping in view the structural strength of the building. Further digging of basement beyond permitted limits after issuance of completion certificate, would not have any effect on the completion certificate.
70 This inspection and the subsequent inspection reports are the basis on which the second basement has been alleged to be in existence. The existence of second basement and the connivance of public servants for concealing the second basement is one of the circumstance which according to the prosecution points towards the conspiracy between the accused/ public servants and other accused.
71 A perusal of this report reveals that according to the inspecting team, this second basement was a concealed structure and it was only by chance, that discovery of this structure was made by them. The relevant portion of this report is being reproduced as under: ...This portion has no floor and has sufficient volume of underground water at certain places with the result it was not though safe enough to inspect the said portion to ascertain the quantum of construction carried out. However, it can safely be said that a massive underground structure exist at site, which could be put to use as a basement after carrying out remaining finishing works. In our report, this part of building has not been shown constructed as a regular floor while giving area details. Based on the above exercise, a detailed report has been prepared and is enclosed as annexure B. A set of drawing existing structure duly signed by the team members is placed for approval and for favour of forwarding the same to CBI.
CC No. 09/10 43 of 67
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 23.07.2016
72 It is visible from the report that the team discovered this structure by
chance and because of a ray of light which was emanating from the ground beneath. Meaning thereby, but for this accidental discovery, the team could not have found this underground structure. If that be the case, then a serious doubt is raised whether accused OP Meena, at the time of his inspection for the purpose of granting NOC for completion certificate, could have discovered this structure? This in turn raises a serious doubt about the theory of connivance between public servants and other accused as far as the allegations of ignoring/ concealing of this structure by accused OP Meena are concerned.
73 The next important question which is to be decided is whether the underground structure which was discovered was a second basement?
74 In this regard, PW14 had deposed that the underground structure could not be called a basement as per building bye laws. A similar observation has been made by the team in annexure A to its report Ex.PW14/B and the report further states that there was no floor and this structure had sufficient volume of underground water at certain places which made it unsafe to inspect that portion. However, report also states that the massive underground structure could be put to use as basement after carrying out the remaining finishing work. Therefore, even if this report is taken on the face value, the expert team had found that this massive underground structure was not a basement, but a structure which could, in future, be put to use as a basement. Therefore, at the most what this report proves is a preparation and not the commission of the act. Meaning thereby, that there was no basement but a structure which may in future be put in use as basement.
75 On the other hand, the defence of the accused is, that this structure was not a basement but a foundation and the form of foundation used by them was raft CC No. 09/10 44 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 foundation. This raft foundation was necessitated by the kind of soil that existed at the site. Whether raft foundation was required or not could only be decided by the soil engineer.
76 The soil engineer was examined by the prosecution as PW1 and the reports of the soil engineer in respect of both the properties are Ex.PW27/D3 and PW27/D4. As per these reports, the soil engineer had recommended to use raft foundation for the proposed structure. A net safe bearing pressure which this kind of foundation could take was 25.0 t/m2 at a depth of 6.0 meters to 8.0 meters below ground level. In alternative, footing foundation was recommended for the proposed structure at a depth of 1.50 m below the basement floor finish level. A net safe bearing pressure of 15.0 t/ m2 and 18.0 t/ m2 can be taken for this design.
77 It is also to be noticed that during the cross examination of IO, who appeared as PW27, he deposed that Ex.PW1/1 (wrongly typed as Ex.PW1/A) was the statement u/s 161 Cr.P.C of Sh. P. Srinivasan Rao, the Soil Engineer. He further deposed that the sketch (Ex.PW27/D1) attached with the statement was prepared by Sh. P. Srinivasan Rao and was given to him during the recording of statement. He admitted that Sh. P. Srinivasan Rao had told him that he (P Srinivasan) had recommended raft foundation for both the buildings and volunteered, that Sh. P. Srinivasan had stated that this recommendation was as per the desire of the builder. He denied that word basement mentioned at point A on Ex.PW27/D1 had been struck out by him after it had been written by Sh. P. Srinivasan Rao. He denied that Sh. P Srinivasan had told him that for raft foundation, P Srinivasan had suggested a depth of 06 meter from ground level/ basement because of water oozing out from the dug up area. He did not inquire from Sh. P Srinivasan Rao about the existing structure on the land at the time when he (P Srinivasan) had conducted soil inspection. He did not make CC No. 09/10 45 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 any inquiries from any expert to find out what kind of foundation was required for raising a building which could withstand water logging and control dampness. He did not remember whether, after the completion certificates and prior to the inspection of joint team of CBI and MCD, any inspection of both the buildings or any of the building was conducted by MCD or not. He could not admit or deny, that the entire construction below the ground was pursuant of the reports Ex.PW27/D3 and Ex.PW27/D4 and volunteered, that the construction had to be as per the sanctioned plan. He admitted that the sanctioned plan did not specify the kind of foundation to be used for construction of building and volunteered, that it would appear in structural designs. He did not try to collect the structural designs from MCD.
78 Now these two testimonies at least establish one fact, that the recommendation of the soil engineer was, that the foundation should be raft foundation and in alternative, the builder could use a footing foundation.
79 As per the reports Ex.PW27/D3 and Ex.PW27/D4, load bearing capacity of raft foundation was significantly more than the footing foundation. Therefore, the building built on raft foundation had to be safer and stronger than the one built on footing foundation and the builder can not faulted with for choosing to use raft foundation.
80 Once this recommendation of raft foundation had come to the knowledge of the IO, he was duty bound to find from experts whether, the kind of structure that existed underneath the basement was because of existence of raft foundation? It was only then he could have arrived at a conclusion about the structure being a second basement or not. It was more so his responsibility, as expert team report, Ex.PW14/B, had also opined that this structure cannot strictly be called a basement. IO has miserably failed to gather or bring before the court any evidence held the court to CC No. 09/10 46 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 answer this question in form of his preposition.
81 For arriving at a plausible answer to the question which the prosecution has raised but failed to answer, I fall back upon whatever evidence is before the court.
82 The sketch of raft foundation which is a part of Ex.PW27/D1, and admittedly which had been made in the hand of Soil Engineer, reflects that raft foundation was to be raised on pillars whereupon, after the depth/ height of 06 meters, the first slab would come up. The question is will it be ground level or basement? In Ex.PW27/D1, it has been shown as ground/ basement, but the word 'basement' had been struck out in this sketch. A suggestion was put to the IO that he had struck out this word and he denied this suggestion but did not put forward any explanation as to who would have struck out the word 'basement'.
83 It is the IO who was handed over this sketch by PW1 and in whose custody it remained. Therefore, it was for him to explain this alteration. His failure to do so raised a possibility that this word 'basement' was written by PW1 and not struck out by him (PW1). Resultantly, there can be a possibility that the alleged second basement could be a part of raft foundation as suggested by the soil engineer.
84 Without going into further details, to answer this question, I go to the document which has been exhibited as Ex.DW1/3. It is a certified copy of judgment/ order dated 30.11.2010 of MCD Appellate Tribunal. Accused Anant Raj Industries had challenged the order of sealing of these buildings by the MCD and the show cause notices. One of the grounds of sealing and issuance of show cause notice was the existence of second basement which is also in question here. The said order was set aside by the Learned Appellate Tribunal. In the said judgment, referring to its earlier order dated 03.09.2009 in appeal no. 190/ATMCD/2009, ld. MCD Appellate Tribunal CC No. 09/10 47 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 had observed that it had directed the Dy. Commissioner / Executive Engineer (Building) to consider whether, there was any second basement in the property in question and entrances made to that basement were closed or not and hence, it was a case of double basement as pleaded by the respondent, or the case of raft foundation as pleaded by the appellant. It was further observed that while passing the impugned order, Dy. Commissioner had not dealt with this question for the reasons best known to him. No finding was ever given by MCD, despite the directions of Ld. MCD AT, whether it was a second basement or raft foundation?
85 Thereafter, while setting aside the order of MCD, ld. MDC Appellate Tribunal had held as under:
37. Therefore, I hold that the impugned sealing order suffers from patent illegality and, hence, is liable to be set aside. Before parting with the order I bring it on the record that the appellant has filed a written undertaking in the shape of affidavit before the Tribunal on 13102010 and copy thereof has been supplied to the opposite counsel. The appellant has given the following undertakings:
1. That the said staircase in the building has been provided as an additional exit point, for exit of Hotel Guests incase of any emergency in the superstructure and shall be used for such purpose only.
2. The raft foundation is to support the building structure and shall not be put to any other use.
3. The pucca room near the entrance area of the motel is an Electrical Substation Room and is not to be counted in FAR as per Notification bearing no.
88 dated 27.01.2006. Copy of notification attached herewith. We undertake that it shall be used for this purpose only.
4. The partitions in the basement are allowed as per the Master Plan of Delhi 2021. The ventilators in the Basement are permissible as per Building Bye Lwas. The basement shall only be used for purposes as permitted under MPD 2021.
5. The open ramp is permissible as per Building Bye Laws 13.08 for ingress and egress to the basement for parking and services. We undertake that the ramp shall not be put to any other use.
6. There is no excess covered area in the Building beyond the FAR that is permissible as per MPD 2021, contrary to the allegation made by MCD. Further we have deposited the compounding charges amounting to Rs.7,12,000/ vide CC No. 09/10 48 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 receipt no. 166075 dated 21.04.2008 for compounding charges for 5% FAR beyond permissible FAR as per Clause 3 (12) page 124 of Master Plan of Delhi 2021.
7. The height of the parapet walls, columns and beams are an Architectural feature and are within the permissible height allowed to Motels. We undertake that the Architectural features shall not be used for any other purpose.
8. That there is no Amalgamation of basements. According to chapter 8 (5) of MPD and as clarified by Delhi Development Authority to the Motels Welfare Association, basement are allowed up to the Set Back Lines. 86 Thereafter, there is an order of AE (Building) (South Zone) dated 30.12.2010, which has been proved by DW2 as Ex.DW2/6. Referring to the order of Ld. MCD AT dated 30.11.2010, AE (Building) had observed as under: In view of the above facts and the documents available in the file and the documents submitted by the owner and after hearing the owner the unauthorized construction is not liable for any action as the excess construction has already been regularized by the Najafgarh Zone of MCD after payment of necessary regularization charges in Najafgarh Zone vide G8 No. deposited the compounding charges amounting to Rs.7,12,000/ (Rupees Seven Lacs Twelve Thousand only) vide G8 receipt no. 166075 dated 21.04.2008 for compounding charges which is also available in the file. All the points raised in the booking have been duly addressed by the order dated 30.11.2010 of Hon'ble AT MCD in appeal no. 113/ATMCD/2010. However, in future at any stage if it is found that owner has violated any of the undertakings filed before the Hon'ble AT: MCD or any document submitted by the applicant is not found genuine the case shall be liable to be reopened by MCD at any stage for which no equity shall be claimed by the owner. The owner has contended that no additional basement has been constructed by him and the structure below the basement is a raft foundation as it was required because of the low bearing capacity of the soil as is clear from the soil investigation report.
In view of the above, I, the Asstt. Engineer (Building), South Zone in exercise of the powers of the Commissioner, MCD, delegated to me under Section 343 (1) read with Section 491 of DMC Act do hereby withdraw the show cause notice issued on 01.02.2010 issued vide no. 18/UC/BII/SZ/2010 as it has no substance at this stage and the proceeding under section 343/344 are hereby dropped.
87 From the order of Ld. MCD AT, it is very much clear that a question was also raised by Ld. MCD AT whether the structure in question which is being called a basement in the case before me is a second basement or raft foundation raised by accused Anant Raj Industries? This question was referred to MCD but the MCD shied CC No. 09/10 49 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 away from verifying it and Ld. MCD Appellate Tribunal had set aside the order of MCD with the observation as reproduced above. Subsequently, AE (Building), as is visible from the order, impliedly admitted that the alleged second basement was the raft foundation and dropped the show cause notice. As regards excess construction which was not compoundable, the AE has observed that there was no excess or no compoundable construction.
88 I find that the accused, not only before this court but also before the AT MCD had raised a contention that the structure underneath the basement was a part of the foundation which was the raft foundation design and not a second basement as alleged. The report of the soil engineer recommends erection of raft foundation. The sketch (Ex.PW27/D1) prepared by the soil engineer which was given to the IO by the soil engineer, also points towards possibility that the structure underneath the basement could be a part of the foundation and not the second basement. Admittedly, at the time of inspection, the structure was not usable as second basement as it was raw without any flooring, were not plastered and there was water logging in a large portion of this structure.
89 In view of the above discussion, I find that not only the prosecution has failed to prove beyond all reasonable doubts that the structure which was discovered was the second basement but on the contrary, the accused have subsequently raised a very strong probability that it was not a basement but was a part of the foundation of the buildings which was necessitated by the kind of soil that existed on those plots.
90 The next fact upon which there are charges against the accused is, that at the time of grant of completion certificate, the buildings were incomplete.
91 The prosecution to prove this has relied upon the testimony of PW14,
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PW16 and PW24 and the videography proved during the testimony of the witnesses.
92 PW16 Rakesh Kumar Srivastava deposed that on 24.03.2009, he joined the proceedings of CBI as a witness with CBI officer and 34 other officers of CBI. They reached the site of twin motels somewhere at Gurgaon Road and the name of one of the motel was 'Papillion'. Searches were conducted by CBI. Certain files were seized. Videography of the proceedings was conducted. Construction work was going on and only 23 rooms were fully furnished. From the outside, the building seemed complete. However, when they went inside, it was altogether a different scenario and the building was incomplete. Work was going on. Structure of the rooms inside the building was standing. However in other aspects, the work was still pending, wiring was visible, switch boards were not being placed, debris were lying around and there was water logging at many places.
93 Video cassettes Ex.PW24/I and 24/J were played in the presence of this witness. The video reflected that the work inside the buildings was incomplete and labourers were seen working, material was lying on floor and there was no distemper on the walls. Ceiling of the premises showed that AC ducts were lying open. Witness stated he had seen false ceiling in incomplete position, lying open.
94 The other witness is PW24 Rajeev Dwivedi, Addl. SP. He deposed that on 24.03.2009, on the instructions of DSP and other Sr. Officers, he carried out search of M/s Papillion Estate, Village Smalkha, NH2, Delhi. This was done in the presence of independent witness and CFSL team. He further deposed that Ex.PW16/C i.e. the search list dated 24.03.2009, was prepared by him and during the search, various files and registers were seized.
95 During his reexamination u/s 311 Cr.P.C, video cassette Ex.PW24/I was CC No. 09/10 51 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016
played which reflected that the construction activities were going on. Building was not fully complete. The ductings were open. There were no doors to many rooms and there was no flooring. Construction material was lying around. Electric fittings were not complete. The switch boards had not been installed. Ceiling were not complete and it was raw after removal of scaffolding. The scaffolding were still installed in the outer area. The shafts were visible and open. Water logging was seen at a lot of places inside the building.
96 Ld. PP has contended that the video cassettes as well as the testimonies of the witnesses have clearly established that even after almost 11 months of grant of completion certificate, the buildings were not complete and therefore, the completion certificate to these buildings was prematurely given. This clearly shows connivance between the accused and the public servants.
97 Countering the same, ld counsels for accused have contended that these testimonies at the most reflect the condition of the building which existed as on 24.03.2009, and none of these witnesses have stated that the building was in the same condition as on the date of inspection by the JE i.e. accused OP Mena who had conducted inspection on 20.03.2008 and 25.03.2008. It has further contended the owner of the property after grant of completion certificate is completely within his rights to make changes in interiors such as relaying of floor, replastering of walls, installation of false ceiling etc. It has been contended that M/s Anant Raj Industries, after completion of the buildings was intending to let them out to somebody to run them as hotels and after negotiations M/s Nine Dimensions agreed to take these buildings on rent but for the purposes of their hotels and standards, they wanted certain renovations to be carried out and it was these renovations which were being carried out at the time of alleged inspection / raid by the CBI. It is further contended that even CC No. 09/10 52 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 otherwise the CDs of the videography as well as video cassettes cannot be read in evidence as they failed to meet the test of Anwar P.V. In this regard, reliance has been placed on the judgment of Anwar PV v.
P.K. Basheer and others Civil Appeal no.4226/2012 decided on 18.09.2014 and Ram Singh & Ors. v. Col. Ram Singh, AIR, 1986, SC 3. In Ram Singh's case (supra), it has been held as under:
32. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
98 Relying upon this judgment , learned counsel for the accused has contended that the tape recorded evidence has to comply with the conditions laid down by Hon'ble Supreme Court in Ram Singh's case (supra) and so far as the present case is concerned, there is no evidence that the video cassettes Ex.PW24/I and Ex.PW24/J are complied with the conditions laid down in Ram Singh's case (supra). Therefore, they are inadmissible in evidence and no reliance can be placed upon them.
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99 The testimonies of PW14 and 16 have clearly reflected that as far as the
interiors of the buildings are concerned, at the time of inspection in March 2009, it seemed to be not complete at all. The work for making it habitable was on.
100 Let us examine the contention of the defence as raised above on the basis of evidence before me and the relevant law in this regard.
101 The contention of the defence is that no witness has been produced by CBI to prove that the condition of the building which was seen in March 2009 was the same as had existed in March 2008. The only witness of the relevant period produced by CBI was PW28 Dharamvir Singh Yadav.
102 He deposed that he was working in Delhi Fire Service till 31.10.2013. In the year 2008, he was posted as Assistant Divisional Officer, Safderjung Fire Station, New Delhi. On 11.04.2008, his Divisional Officer Sh. A.K Bhatnagar assigned him the work of carrying out the inspection of the premises i.e. M/s Grand Meadows and M/s Papillion in order to verify the fire safety measurements. On his visit, he noticed 10000 liter water tank installed at the roof of first floor of each of the premises and in front portion at the entrance, there was a water tank of 01 lac liter capacity. Fire pumps, electricity driven and diesel driven, were also found installed in a fire pump house located near the main entrance of the building. Generator was also installed and the working of the fire pump was checked with the help of the generator. Outside the building on one side in the open area, a large dump of earth was lying though, the surface was made smooth. Fire safety measures were installed as per the guidelines. The sewage and water system was not appearing to be complete though, pipes had been laid. He had not checked the drainage system, though when the firefighting system was operated, the water was going into drainage system.
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103 He was cross examined by Ld. Spl. PP for CBI and he admitted that water
storage and drainage are very important aspect in the firefighting system. He had carried out the firefighting system installation as per the recommendation made earlier. He denied stating to CBI, that the final completion of the work like plastering, whitewashing, fixing of doors and windows was yet to be done. He did not remember whether, he had told CBI officer that final completion work like plastering, whitewashing, fixing of doors and windows was yet to be done? He further deposed that the firefighting equipment was checked through the DG set as the electricity connection was to be made available only after NOC from the fire department. During his inspection, he had not spoken to any of the labourers working there. He had not seen any labour doing any plastering work. He deposed that he had not stated to CBI that he had seen labour doing plastering work in the premises. He was confronted with his statement Ex.PW28/A from portion B to B. He further deposed that no work was going on in the lobby of Grand Meadows and Papillion. He did not remember whether, he had informed CBI that the Motels were not complete and these construction would have taken another few months? He denied stating to CBI officer that the construction work was going on in Grand Meadows and Papillion. He was confronted with his statement Ex.PW28/A from point C to C. 104 This is the only witness of the relevant period which has been examined by CBI and testimony of this witness would reveal, that this witness had not supported the CBI as far as the fact of construction, at the time of grant of completion certificate in April 2008, being incomplete is concerned. On the contrary, he has stated that it was almost complete.
105 Now let us take the claim of the defence that work which was being seen going on at the time of inspection by CBI in March and May 2009 was renovation CC No. 09/10 55 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 work.
106 In this regard, testimony of prosecution witness, PW6 Konark Bhandari, is important. He deposed that he had joined as DGM in M/s Anant Raj Industries in August 2008, and had worked there till about 2009. He knew Aman Sareen, who was a Director of M/s Anant Raj Industries. He proved a letter Ex.PW6/A, which was marked to him by Aman Sareen. It was written in relation to the upgradation of rooms at Grand Papillion Rajokri, New Delhi. After going through the letter, he could not say whether, it was pertaining to the upgradation of rooms, required furnitures, electrical and minor AC changes? The detail of the required work was annexed with letter and is Ex.PW6/B. He deposed that in August/ September 2008, he had visited the sites of Grand Meadows and Papillion. For the first time, when he visited these sites, the work was already complete at both the sites but the work of upgradation was required as mentioned in letter Ex.PW6/A and annexure Ex.PW6/B. 107 Later on, during his examination in chief, he deposed that at the time of CBI raid, the work of upgradation was in progress at the above mentioned two sites. When he joined the above mentioned two sites, both the buildings were fit for occupancy but when they started the work of upgradation, at the time of CBI raid, the building was not fit for occupation as the work of upgradation was in progress.
108 Another witness is PW13 Anil Bhandari. He deposed that since 2004, he was working as interior designer under the name and style of M/s Concept Planners. He further deposed that his firm had worked with M/s Grand Meadows and M/s Papillion Estates and the work for the said firms was given to them by Sh. Asim Sarin, one of the Directors of M/s Anant Raj Industries. They had carried out the job of interior designing of Hotel Grand Meadows and Papillion Estate. They redesigned the flooring, furnishing etc. to make the building suitable for the purpose of hotels. The furniture at CC No. 09/10 56 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 the site of the said building was in the process of fabrication. When they took over the work, the bathrooms were in working condition with ordinary fittings and fixtures and they redesigned the same for the hotel purpose in respect of walls, tiles work, marble flooring, POP, false ceiling etc. When they took over the work, electrical equipments like transformers were already fixed with partial electrical wiring. The electricity was operational only to the limited extent of lighting few bulbs in different areas of the buildings. They redesigned the electrical work alongwith different points suitable to the requirement of a hotel. When they took over the work, ordinary windows and doors were in place in the buildings of M/s Grand Meadows and M/s Papillion Estate, but these fittings were not suitable for the purpose of hotels and therefore, they redesigned the windows and doors. The buildings with their existing fittings and fixtures were not fit for a hotel, and thus, they redesigned above mentioned work/ facilities.
109 Now these two witnesses are prosecution witnesses who have not been declared hostile by the prosecution. As per the testimony of PW6, in August/ September 2008, buildings were complete with plaster and flooring; windows and doors were installed. He further deposed that for the purposes of running hotels, it was not considered sufficient and they were to be remodified. PW13 has deposed that modification was done by him and also about the kind of modification work done by him.
110 These testimonies, coupled with the testimony of PW28, give credence to the contention of the defence that when the completion certificate was granted, the basic structure of the buildings was complete and there is a possibility that the subsequent situation which was available in the year 2009, as is also visible in the video recordings, was because of the renovation work being carried out.
111 In order to further establish this defence of theirs, the accused had led
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evidence.
112 Defence has examined DW3 Sanjay Wadhawan. He was the Managing
Director of M/s Nine Dimension Hotels. He deposed that his company was running hotels throughout India. In January 2008 he frequently used to go to Jaipur for search of hotel property. While going to Jaipur he noticed two buildings located on the National Highway No.8. He found that location of those buildings was appropriate for running hotel. In February 2008 he went to these buildings and found it to be a very good location for running a hotel. He further deposed that in March 2008 he was contacted by one Sh. Anil Mahendra of M/s Anant Raj Industries who inquired from him whether he was interested in operating these two hotels? Thereafter, he alongwith his team inspected these hotels and observed that these hotels required to be upgraded. He then make a list of up gradation work required to be done and provided it to M/s Anant Raj Industries. He informed them that his company would be starting these hotels only after up gradation work had been completed. The up gradation work was not done in time and finally they started running these hotels in 2010. When he had visited the hotels for inspection, the buildings had been completed but not upto their standards. A ramp was required to be built for entry to the basement for the purpose of parking of vehicles. Since 2010, they had been operating both the hotels under the name and style of Mapple Emerald.
113 During his cross examination, he deposed that the formal inspection of these buildings was done in March 2008. Apart from him, he remembered two other names who were part of the team. He did not remember whether a written note of this inspection was prepared. There was no written communication between their company and Anant Raj Industries regarding lease of these properties. There was no documentation done before the lease. Despite the delay in completion, he did not send CC No. 09/10 58 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 any written protest or request to speed up the work to Anant Raj Industries. A written list of the up gradation work that was required to be done was prepared and handed over to Anant Raj Industries. His office had also kept the record of the upgradation which they had sought in these two buildings. He was not in a position to produce that record. He denied that there was no record of any upgradation work sought by them as they had never sought any upgradation in these two buildings in the year 2008. He denied that before 2010, he never had any contact with Anant Raj Industries regarding these two buildings and that is why, despite the alleged two year long relationship, he was not in a position to produce any written /electronic communication regarding these two buildings between his company and Anant Raj Industries.
114 Now, from the above evidence what has emerged is, that the CBI has not produced any witness to conclusively establish that in MarchApril 2008 i.e. when the inspection was carried out by accused OP Meena and when the completion certificate was granted, the buildings as far as their interiors are concerned, were incomplete, or were in the state as was seen by the CBI, MCD and independent witnesses in March and May 2009. On the contrary, the prosecution's own witnesses i.e. PW6 and PW13 have stated that the buildings were complete in August/ September 2008 when the upgradation work was started and its because of this upgradation work that the buildings were found in the condition in which they were in the year 2009. The testimony of these witnesses on this point has remained unrebutted. This part of their testimony is supported by another prosecution witness PW28, who is the only witness examined by the prosecution, who could have seen the state of those buildings in March/ April 2008. In view of this, it cannot be said that the prosecution has proved that in March 2008 when the buildings were inspected by accused OP Meena and in April 2008 when completion certificates were granted; the buildings were incomplete, CC No. 09/10 59 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 or that they were in the same condition as were seen in March and May 2009.
115 Even otherwise, the kind of work which was found to be going on in March and May 2009 can at the most be said to be the work of alteration as listed under Delhi Building Bye Laws. The Building Bye Law 6.4 and 6.4.1 are being reproduced as under: 6.4 Notice for Alteration only when the notice is only for an alteration of the building (see Bye Law no. 3.5), only such plans and statement as may be necessary, shall accompany the notice.
6.4.1 No notice and building permit is necessary for the following alterations, which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the Bye laws:
(a) Plastering and patch repairs;
(b) Reroofing or renewal of roof including roof of intermediate floor at the same height;
(c) Flooring and reflooring;
(d) Opening and closing windows, ventilators and doors not opening towards other's property;
(e) Replacing fallen bricks, stones, pillars, beams etc.;
(f) Construction or reconstruction of sun shade not more than 75 cm in width within one's own land and not overcharging over a public street;
(g) Construction or reconstruction of parapet exceeding 1 m and not more than 1.5 m in height and also construction or reconstruction of boundary walls as permissible under these Bye laws;
(h) Reconstruction of portions of buildings damaged by storm, rains, fire, earthquake or any other natural calamity to the same extent and specification as existed pror to the damage, provided the use conforms to provision of Master Plans;
(i) Whitewashing, painting etc. including erection of false ceiling in any floor at the permissible clear height provided the false ceiling in no way can be put to use as a loft/ mezzanine etc.; and
(j) Erection or reerection of internal partitions provided the same are within the purview of the Bye Laws.
116 A bare reading of the aforesaid building bye laws clearly states that the owner, of his own will without obtaining any building permit or giving any notice to the CC No. 09/10 60 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 MCD, can carry out the kind of the activities which were seen in the video or which were testified about by the witnesses.
117 Therefore, I find that firstly, the CBI has failed to prove that the buildings at the time of inspection in March 2008 and at the time of grant of completion certificates in April 2008 were incomplete. Secondly, whatever activities were being carried out were within the rights of the owner.
118 There are certain other acts which have been imputed upon the public servants in order to prove the existence of conspiracy with the common object of granting completion certificate to these properties which, but for these acts and omissions, could not have been granted.
119 One such allegation is that while giving NOC Ex.PW2/1, accused OP Meena wrongly calculated the deviations and thus, while calculating the compounding fee had caused a loss of Rs.50,000/ to the MCD.
120 In this regard, PW3 V.K Gupta had deposed that from 26.02.2008 to 31.03.2008, he was posted as Superintending Engineer, Najafgarh Zone, Delhi. He further deposed that in NOC Ex.PW2/1, at sl. no. 12, there was a deviation of 100 sq. meter. In calculation report of accused OP Meena, a loss of Rs.50,000/ had been caused to MCD because if there would have been no error in the calculation, compounding fees would have been Rs.50,000/ extra.
121 I have seen Ex.PW2/1. At sl .no. 12, the entry is as under:
(a) Excess Coverage in Basement with in permissible limit 2106891916.09= 90.80 sq. m. @ Rs.500// sq. m= Rs.45400/ 122 It is very much clear from this entry that accused OP Meena has not tried CC No. 09/10 61 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 to conceal anything or mislead. It is mere a calculation error as the compoundable fee should have been charged for 190.08 sq/m and not 90.08 sq/m. This calculation was made by accused OP Meena but no criminal intent can be attached to it especially, when his superiors including accused GS Jindal and PW3 also did not bother to check about this calculation error and they also failed to detect it.
123 The next allegation is that accused OP Meena in his NOC Ex.PW2/1 had stated that the latest house tax receipts had been deposited, whereas it was not so.
124 In this regard, prosecution has examined PW19 V.K Tyagi. He deposed that from April 2009 to February 2010, he was working as Assistant Engineer, MCD, Najafgarh Zone, Building Department. He further deposed that he had seen MCD file of Grand Meadows. As per the file, the inspection was carried out by the JE on 20.03.2008 and the calculation for compoundable deviations was also available in the file. He had seen house tax receipt in the file which is dated 16.06.2008 and for the year 200809. As per the file, a document of house tax receipt was found deficient for which a notice was issued on 19.06.2008 and in the noting dated 31.03.2008, it was mentioned by the then JE OP Meena that latest house tax receipt had been received and he processed the case for issuance of completion certificate which was ultimately issued on 31.03.2008. He further deposed that as per the noting, the JE had pointed out 08 discrepancies during the inspection. Out of those discrepancies, 06 discrepancies were removed vide notice dated 31.03.2008, one was removed vide noting dated 21.04.2008 and two discrepancies namely certificate from lift manufacturer and certificate from air conditioner engineer were never removed.
125 On the basis of this testimony, the prosecution has contended that there was no house tax paid for the year 200910 and the last house tax was paid for the year 200809 vide receipt dated 16.06.2008 despite that vide noting dated 31.03.2008, CC No. 09/10 62 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 accused OP Meena had observed that latest house tax receipt had been placed on record.
126 The defence to disprove that house tax had not been paid upto date had examined DW5 SB Sharma, Head Clerk from SDMC Head Quarter., Civic Centre, Minto Road, New Delhi. He had brought duplicate property tax assessment file of property at Khasra No. 41/9, 37/23/2, 24/2, 41/3, 41/2/3, 41/2/1 at Village Smalkha which was popularly known as Mapples. He further deposed that the file contained photo copy of the receipt No. 486058 and 486059. He further deposed that he had not been able to bring the original receipt book containing the carbon copies of these receipts because the said receipt book had been detained by the court on 7.1.2013 when on the orders of the court this receipt book was produced before the court. The ahlmad had brought that receipt book which contained carbon copies of receipt from receipt No. 486001 to 486100. He further deposed that he had seen the receipt book and it contained receipt no. 486058 and 486059 which were in the name of Mr. S. N. Dhawan and M/s Grand Meadows Ltd. The carbon copy of receipt in favour of Grand Meadows was already Ex. PW22/DA and the carbon copy of receipt in the name of Sh. S. N. Dhawan had been seen by him and the photo copy of the same which had been retained in the duplicate file as the original had been deposited in court. The carbon copy of the receipt was exhibited as Ex. DW5/1.
127 The receipt Ex.DW5/1 and Ex.PW23/DA are the receipts of Mr SN Dhawan and M/s Grand Meadows. These receipts are available on record and therefore, the observation of accused OP Meena that upto date house tax was paid cannot be found to be wrong.
128 Another contention raised on behalf of the prosecution to show connivance of public servant with other accused to grant completion certificate which CC No. 09/10 63 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 was otherwise not to be granted is, that accused OP Meena in NOC had mentioned compounding of C& D form whereas in the file there was no such compounding.
129 In this regard, PW22 has deposed that when he visited CBI, he was shown file D7 pertaining to issuance of completion certificate in respect of motel M/s Papillion Estate. As per noting dated 31.03.2008 of accused OP Meena, there was C&D compounding. However, he could not find any record of C&D compounding in file D7.
130 However, during his cross examination, he deposed that form C & D had been replaced by form B1 under the new Building Bye Laws. As per the file Ex.PW4/A, compounding fee for form B1 had been calculated and deposited vide receipt no. 166074. After deposit of compounding fee for form B1, the requirement of obtaining form C & D stood met with.
131 In these circumstances, the allegations of CBI that without obtaining form C and D, accused OP Meena had wrongly observed that form C & D had been compounded stands disproved.
132 In view of the foregoing discussion, it is amply clear that CBI has failed to prove the existence of any facts or circumstances which could establish the existence of conspiracy between the accused persons. CBI has also failed to prove substantive charges of section 13 (1) (d) of PC Act against public servants.
133 There is yet another charge u/s 420 r/w 120B IPC against accused Manoj Pahwa and Pankaj Nakra. The basis of this charge is that these accused for obtaining the completion certificate, alongwith the notice of completion, had submitted forged certificates of M/s Adarsh Marken, Engineer/ Plumber.
134 Regarding this certificate, the witness which the prosecution has brought before the court is PW4 Sh. Pawan Kumar. He deposed that he was granted license of CC No. 09/10 64 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 plumbing by Delhi Jal Board under the name of M/s Adarsh Marken & Co. It was a partnership firm of his son and him. He deposed that he had not carried out any work in any hotel named M/s Grand Meadows or M/s Papillion Estate but had issued one certificate about the completion of job and performance of job either to M/s Grand Meadows and M/s Papillion Estate. He was asked by Anil Bhandari, an architect, to issue the completion certificate in respect of plumbing work in respect of the building located at Rajokri. After visiting the site, he found that the plumbing work was already complete and he issued the requisite form for completion of plumbing work. He volunteered, that all of sudden he was called by CBI and his statement was recorded and at that time, he could not recollect that he had issued the certificate at the request of Anil Bhandari. ) He did not know any Director or official of M/s Grand Meadows, M/s Papillion Estate and M/s Anant Raj Industries. He further deposed that certificates of supervision of plumbing work Ex.PW4/A and Ex.PW4/B had his signatures at point A. He was cross examined by Ld. PP for CBI. He deposed that in his statement u/s 161 Cr.P.C, from point A to A1, it had been correctly recorded as "I have not issued any certificate, in fact, I have never worked for any hotel/ motel after the year 2005 in and around Rajokri. I state that signatures appearing on the file as above are not my signatures". He further deposed that his signatures were not shown on documents/ files by the IO. He did not state before the IO that on the file , documents bore his signatures because at that time, the signatures were not shown to him. He further deposed that when his statement was recorded, he had directly come to Delhi from Ludhiana and he could not recollect at the time of his statement and therefore, he stated that he had not issued any certificate and volunteered, that later on he recollected that he had issued the certificate which he had stated before the court. He denied that documents Ex.PW4/A and Ex.PW4/B did not bear his signatures.
CC No. 09/10 65 of 67
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 23.07.2016
135 The allegation of the CBI is that the certificates Ex.PW4/A and
Ex.PW4/B were forged certificates whereupon the signatures of PW4 had been forged and these certificates were submitted on the directions of M/s Anant Raj Industries accused no. 10, through accused no. 1 Manoj Pahwa and accused no. 5 Pankaj Nakra, for obtaining completion certificate.
136 However, before the court, PW4 has clearly deposed that these certificates are not forged certificates and admitted his signatures on the certificates. He further admitted that he had issued these certificates after visiting the site and after verifying that the plumbing work had been completed.
137 During the cross examination by Ld. PP, he deposed that his signatures had not been shown at the time of recording of his statement. Surprisingly, during his cross examination, Ld. PP for CBI had suggested him that he had deliberately and falsely deposed before the IO that he had not issued any certificate.
138 It has been suggested to the witness that his signatures had been forged on certificates and that he had been won over by the accused. However, a mere suggestion that the witness had been won over by the accused will not be sufficient to prove the factum of forgery and prosecution was required to bring something more before the court to prove that these signatures were in fact, not the signatures of the witness. However, the prosecution has brought nothing of this sort on record. In these circumstances, I find that the prosecution has failed to prove that the certificates Ex.PW4/A and Ex.PW4/B were forged certificates and therefore, charge u/s 420 IPC/471 IPC.
139 In view of above discussion, I find that the prosecution has failed to prove the charges of conspiracy as well as substantive charges u/s 420 and 471 r/w 120B IP C CC No. 09/10 66 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016 and section 13 (2) r/w 13 (1) (d) of PC Act against any of the accused. All the accused are accordingly acquitted of all the charges framed against them. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to the record room.
Announced in open court On 23.07.2016 (Parveen Singh) (This judgment contains 67 pages Additional Sessions Judge and each page bears my signature.) Spl. Judge(PC Act), CBI02: NDD. CC No. 09/10 67 of 67 (Parveen Singh) Spl. Judge: CBI-02, NDD: 23.07.2016