Delhi District Court
Heard On The Point Of Sentence And ... vs Ramashastri The Then Sp on 27 November, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03, CBI
NEW DELHI,DISTRICT, NEW DELHI
CC No. 41 /2011
Case ID No. 02403R0072902003
RC No. 75 (A)/2000/CBI/ACB/ND
In re:
STATE (CBI)
VS
ASHOK KUMAR KAPOOR
S/O SH. CHANAN RAM
R/O AC23C, SHALIMAR BAGH,
NEW DELHI.
Date on which charge sheet was filed 07.06.2003
Date on which charges were framed 19.04.2007
Date on which judgment was reserved 05.11.2012
Date on which judgment was pronounced22.11.2012
APPEARANCES:
Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. S. K. Saxena, Ld. Counsel for the accused.
22.112012
JUDGMENT
1. Accused Ashok Kumar Kapoor S/o Late Sh. Chaman Ram working as a public servant in the capacity of Private Secretary, Vice Chairman, Delhi Development Authority has been arraigned for trial by the State (CBI) on the allegation that during the period State (CBI) v. Ashok Kumar Kapoor Page No.1/70 2 01.01.1998 to 13.11.2000 he acquired assets disproportionate to his known sources of income and on or about 13.11.2000 was found in possession of pecuniary sources of property in his name and jointly in the name of his wife Smt. Surender Rani and his mother Bhag Sodhi besides pecuniary sources in bank locker no. 1284 with Punjab National Bank, Pahar Ganj Branch, New Delhi being operated jointly with Shakuntala Devi, his motherinlaw. FACTS
2. The case of the State (CBI) that FIR No. RC 65 (A)/2000 was registered against certain officials of DDA and several property dealers for unauthorized allotment of cancelled flats and misappropriation of amount generated through selling of such flats at higher premium; that during the investigation of such case, searches were conducted at the residence and office premises of accused Ashok Kumar Kapoor, the then Private Secretary to the Vice Chairman, DDA on 10.11.2000 and later his bank locker was operated on 13.11.2000; that during the searches, recovery of cash amount of Rs. 2,93,495/ was made from his residence and cash amount of Rs. 8,08,275/ from locker no. 1284, Punjab National Bank, Pahar Ganj, New Delhi; that since prima facie the accused was found in possession of assets disproportionate to his known sources of income, the State (CBI) v. Ashok Kumar Kapoor Page No.2/70 3 present FIR RC 65 (A)/2000 Ex. 15/6 was registered on 23.12.2000.
3. It is the case of the State (CBI) that the accused was born on 27.07.1949 and he joined DDA in the year1970 and served in various capacities and had been Private Secretary to Chairman, DDA w.e.f. 25.5.1995; that he was married to Smt. Surender Rani in January, 1974 and have three children: one daughter and two sons namely Ms. Renu, Vikram and Hemant born in the years 1975, 1976 and 1977 respectively; that the daughter Ms. Renu was married in the year 1996 without being gainfully employed while Vikram and Hemant were studying and not gainfully employed till 1999 and 1997 respectively.
4. It is the case of the State (CBI) that investigation revealed that most of the disproportionate assets especially in the nature of cash started flowing from 1998 onwards and, therefore, the check period was reckoned from January, 1998 to 13.11.2000; that the gold and silver ornaments recovered at the house search and operation of locker with PNB were not included in the calculation of assets acquired by the accused; that the claim of the accused that he and his family members received huge cash of Rs.3,95,600/ as gifts on various occasions from 1974 to 2000 was found to be not tenable in the absence of State (CBI) v. Ashok Kumar Kapoor Page No.3/70 4 documentary evidence; that Smt. Surender Rani, wife of accused claimed income of Rs.4.5 lakhs from tuition during the period 1974 to 1997 although she studied upto 10th Standard but with diploma in Nursery and Infant teachers; that she also claimed that she was working as LIC agent since 1998 and in that capacity she earned commission of Rs.17,256/during the period 199899; that Rs.53,450/ during the year 19992000; and that Rs.42,510/ during the year 20002001 (out of which Rs. 24,798/ falls for consideration as ending with check period ). It is the case of the CBI that such income had not been intimated by the accused to his Department and it was found that his wife had never engaged herself in any gainful business or profession so much so that such income totalling Rs. 84,564/ as LIC agent had been earned in violation of circular no. DD/ZD/20/81 dated 13.8.1981 of the Central Government.
5. It is the case of the state (CBI) that in regard to recovery of cash amount of Rs.2,93,495/ from his residence, accused gave explanation that Rs.2,00,000/ had been received by him as Bayana i.e. Earnest money from Smt. Sushila Juneja on negotiations for sale of his house no. ACIII/23C, Shalimar Bagh, Delhi but the sale remained inconclusive; that Rs.45,000/ was withdrawn by him from his bank account no. 5348 at SBI, State (CBI) v. Ashok Kumar Kapoor Page No.4/70 5 INA Branch, Delhi during OctoberNovember, 2000 and Rs. 30,000/ were given to him by his neighbour Sh. S. K. Anand for purchase of construction material in respect of repair of his flat out of which a sum of Rs.18,000/ had been spent and remaining amount of Rs.12,000/ was liable to be accounted/refunded.
6. It is the case of the State (CBI) that only Rs.90,000/ in respect of proposed sale of above said house could be verified besides withdrawal of Rs.45,000/ and expenditure of Rs. 18,000/ on repairs and benefit of Rs.1,65,000/ was given to the accused but there was no explanation about the balance amount of Rs.1,28,495/ which was considered to be ill gotten money of the accused.
7. It is the case of the State (CBI) that as regards operation of locker no. 1284 at Punjab National Bank, Pahar Ganj, New Delhi, the locker key was seized during the office search of the accused; that the locker was taken on rent w.e.f. 16.9.1989 by the accused jointly with his mother in law Smt. Shakuntala Devi and investigation revealed that she had operated the locker only once i.e. on the day when the same was opened and the locker had been operated by the accused as many as 42 occasions. State (CBI) v. Ashok Kumar Kapoor Page No.5/70 6
8. It is the case of the CBI that the claim of the accused was examined to the effect that his fatherinlaw Harnam Dass had sold property no. 259495 at Multani Dhanda, Delhi alongwith fabrication unit to one Smt. Virmati and Mukesh Sharma for Rs. 7.75 lakhs and Rs.45,000/ in 1988 and that Harnam Dass started a General Provisions Store out of the proceeds of the above said sale in the name of M/s Harshram Store at CB15/A, Ground Floor, DDA Flats, Shalimar Bagh, Delhi; and the claim was examined that the income of such business had been deposited in the locker from time to time; that the investigation revealed that such claim by Smt. Shakuntala Devi could not be substantiated and found to be not correct and it was revealed that the property had been sold for Rs.45,000/ only to Smt. Virmati and not for Rs.7.75 lakhs; and in the absence of documentary proof plus the slips on the wads of currency notes that were recovered from the locker, the amount of Rs.8,08,750/ was considered as the ill gotten money by the accused.
9. It is the case of the State (CBI) that on completion of the investigation the final position of income and expenditure of the accused during the check period emerged as under: State (CBI) v. Ashok Kumar Kapoor Page No.6/70 7 A. INCOME DURING THE CHECK PERIOD (JAN. 1998 TO 13 NOV. 2000) TABLE NO. A S. No. Particulars Amount (in Rs.) 1 Salary for the period 19982000 3,67,400 Dividends/profits earned on 2 shares, debentures, bonds a) SBI Equity Shares 900 SBI Magnum Multiplier 1200 UTI Master Growth 1993 750 UTI Master Gain 1992 300 Payment received from LIC 3 policy 050290992 8000 Share proceed from Sale of 4 Ancestral Properties 14000 5 GPF withdrawals 70000 6 Bank Interest
(i) PNB PaharganjSB35758 11419
(ii) PNB PaharganjSB48315 1880
(iii) SBI Parliament Street SB 01190341135 693
(iv) SBI PaharganjSB010170 1312
(v) SBI INA SB 5348 3675
(vi) CBI INA SB 393 1958 7 Interest earned on NSS Account 2562 8 Balance in NSS account 4218 9 Balance in Bank Account
a) PNB, Paharganj SB 35758 15892
b) SBI Parliament Street SB 01190341135 16055 Cash recovered from house (DDA Flat of Ashok Kapoor) duly 10 explained 165000 Income through maturity of FD 11 MGF 14390 Total 701604 State (CBI) v. Ashok Kumar Kapoor Page No.7/70 8 B. EXPENDITURE DURING THE CHECK PERIOD (JAN. 1998 TO 13 NOV. 2000) TABLE NO. B S. No. Particulars Amount (in Rs.)
1. Premium paid on LIC policies 53045
(i) No. 112514685, DoC 28/12/98, Rs. 16054 yearly
(ii) No. 050290992, DoC 28/10/94, Rs. 1364 yearly
(iii) No. 110981885, DoC 28/10/91, Rs. 4251 yearly
(iv) No. 24234516, DoC1970, Rs.
134 quarterly Premium paid on Oriental Insurance Policies p/t Maruti Omni car, Bajaj Chetak Scooter 2 and Shalimar Bagh DDA flat 4565 Property Tax p/t Shalimar Bagh 3 DDA flat 1824 4 Telephone Bills 26656 Payment made to M/s Devraj Dharmvir & company for 5 purchase of teak wood 16818 Expenditure on renovation of 6 shalimar Bagh, DDA flat 45000 Petrol expenses towards running of Maruti Omni car & 7 Bajaj Chetak scooter 14476 Payments made to M/s 8 Shalimar Gas 3738 Nonverifiable kitchen 9 expenses (1/3 of salary 122466 Total 288588 State (CBI) v. Ashok Kumar Kapoor Page No.8/70 9 C. ASSETS ACQUIRED DURING THE CHECK PERIOD (JAN.
1998 TO 13 NOV. 2000)
TABLE NO. C
S. No. Particulars Amount (in Rs.)
Cash recovered from house
1 search 293495
Cash seized from locker no.
1284, PNB, Paharganj in the
name of accused jointly with
2 motherinlaw 808750
Investment in FDsMGF (Rs.
3 10000) and HUDCO (Rs.10000) 20000
4 Bank Balances
a) PNB Paharganj SB 48315 39380
b) SBI Paharganj SB 010170 56959
c) SBI INA SB 5348 73282
d) CBI INA SB 393 56603
5 Investment in IVP & NSCs
a) IVP 45000
b) NSC 15000
Balance in DDA Employees
6 Cooperative T & C Society 760
7 Household articles 8690
Total 1417919
10. Based on such calculation the State (CBI) arrived at the conclusion that as against likely saving of Rs.4,13,016/ the assets disproportionate to the known sources of income were to the tune of Rs.10,04,903/ viz. 143% and accordingly after completion of the investigation the present charge sheet was filed.
State (CBI) v. Ashok Kumar Kapoor Page No.9/70 10 CHARGE
11. Needless to state that the accused has been charged for possessing assets disproportionate to his known sources of income during the check period in terms of section 13 (2) read with section 13 (1) (e) of the Prevention of Corruption Act to which accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
12. The prosecution in order to prove its case examined 37 witnesses. The following witnesses were examined.; (BANK LOCKER)
13. PW 1 was Sh. Sohan Lal, Branch Manager from State Bank of Patiala, Model Town, Rohtak who deposed that he was posted in the branch from 22.5.2000 to 04.5.2003 and that bundles of currency notes in the denomination of Rs.100/, Rs. 500/ used to stapled together with Bank slips attached with the bundles and on showing D37, D38 and D39, he deposed that slips on the bundles were that of the branch on the signatures of Smt. Krishna Ahuja, Cashier at point A bearing date 09.4.1999 and the said slips were marked Ex. PW1/A to Ex. PW1/C.
14. PW2 was Mr. Sanjay Haseeja, Assistant in State Bank of India, DMS, Sadipur, New Delhi during the period 1994 to 2007. On being shown D31 which is a Bank note slip used during the State (CBI) v. Ashok Kumar Kapoor Page No.10/70 11 relevant time he deposed that the same were bearing signatures of Sh. Kawaljeet Singh, the then Assistant at point A bearing date 09.11.1998 and the same was marked Ex. PW2/A.
15. PW3 was Sh. S. C. Dass posted as Chief Manager, Syndicate Bank, Nangloi Branch, Najafgarh Road, Delhi during the period 25.5.2001 to 12.6.2004. He was shown the Bank note slip D29 who deposed that the same was being used on the bundles of currency notes when they were stapled in the denomination of Rs.500/ and Rs.100/. He deposed that the said slips were not in use before 1998.
INVESTMENTS / ASSETS
16. PW4 was Sh. Titus John, Deputy Chief (Finance), HUDCO. He deposed that on 24.4.2002 he handed over to the CBI photocopy of receipt bearing no. 19551 dated 27.5.1999 in the joint name of Smt. Surinder Rani and Ashok Kumar Kapoor Ex. PW4/1 for Rs. 10,000/. He deposed that the said FDR had been renewed on 07.12.2004 with maturity date of 07.12.2006 and the money had been deposited/invested vide cheque no. 490551 drawn on Punjab National Bank, Pahar Ganj, New Delhi dated 22.5.1999 in the joint name. The copy of the application for deposit is marked as Ex. PW4/2 and the original FDR receipt is Ex. P24 with original deposit receipt Ex. PW4/5. State (CBI) v. Ashok Kumar Kapoor Page No.11/70 12
17. PW5 was Sh. K. S. Singhal, Special Assistant in PNB, Pahar Ganj branch, New Delhi posted and functioning from March, 2001 to June, 2006. He deposed about the locker opening form (D41) in the joint name of accused with his mother in law is Ex. PW5/A. He described the procedure for operation of the locker and produced the record of locker no. 1284 Ex. PW5/B. He deposed that as per the record Smt. Shakuntala operated the locker on the first day that on 16.9.1989 and thereafter, the locker had been operated by the accused.
18. PW6 was Sh. M. K. Madan, Vice PresidentcumCompany Secretary of Motor General Finance Ltd. He deposed about a fixed deposit by the accused jointly with his wife in the sum of Rs. 10,000/ on 23.3.2000 Ex. PW6/A which was renewed on 16.12.2004. The original renewed receipt for Rs.11,384/ dated 16.12.2004 was proved as Ex. PW6/B which receipt was handed over to the CBI vide memo Ex. PW6/C and he deposed that during the period from 19.03.1997 to 31.3.1998 interest of Rs. 1620/ was earned.
19. PW8 was Ishwar Singh, Inspector, Post Office, Multani Dhanda during the relevant time. He deposed about investment in six Indira Vikas Patras by accused in the sum of Rs.2500/ each having maturity value of Rs.30,000/ and the documents State (CBI) v. Ashok Kumar Kapoor Page No.12/70 13 are Ex. PW8/A to Ex. PW8/C and Rs. 15,000/ was invested during the check period.
20. PW9 was Mohan Lal, Senior Superintendent at Old Dak Khana. He deposed about investment of twelve Indira Vikas Patras in the sum of Rs.2500/ each by the accused jointly with his wife and proved on record. The details of which were handed over to the CBI vide memo Ex. PW9/A and on PVCS are marked Ex. PW9/B1 to B12.
21. PW10 was Sh. M. I. Khan, Public Relation Officer posted at Indraprastha Head office, New Delhi. He deposed about investment in NSCs by the accused jointly with his wife dated 11.2.1998 for total of Rs. 15,000/. The photocopy of the application and the relevant documents are Ex. PW10/A to Ex. PW10/B1.
22. PW11 was Sh. A. N. Chanchal, Assistant Manager, Vikas Sadan Branch, Central Bank of India, New Delhi. He identified the signatures of P. P. Arora, Senior Manager in the branch during the relevant time who handed over certain documents to the CBI vide letter dated 28.6.2001 Ex. PW11/A. The documents included specimen signatures card pertaining the account no. 393 in the name of the accused Ex. PW11/B, statement of account running into six pages Ex. PW11/C and he deposed State (CBI) v. Ashok Kumar Kapoor Page No.13/70 14 about the interest that accrued and credited in the account of the accused during the check period.
23. PW14 was Sh. A. K. Goila, Manager, Punjab National Bank, Pahar Ganj Branch, New Delhi during the period August, 2001 to 2004. He deposed about joint account no. SB48315 of accused with his mother Bhag Sodhi and deposed about the certified copy of the statement of account from 01.10.1999 to 08.01.2003 Ex. PW14/A and evidence was led about interest earned by the accused in his account during the check period and the documents are Ex. PW14/A to Ex. PW14/C.
24. PW24 was Sh. Sachidanand Mishra, Computer Operator in PNB, Pahar Ganj, New Delhi. He deposed about the certified copy of the statement of account no. 32680 in the name of Smt. Shakuntala Devi for the period 05.10.1999 to 22.01.2005 which is Ex. PW24/A.
25. PW27 was Sh. Satbir Singh, Officer in State Bank of India, Personnel Banking Branch (Domestic) at Parliament Street, New Delhi. He deposed that he handed over copy of the statement of account no. 1411435 in the name of Ashok Kumar and Smt. Surinder Rani to the CBI vide covering letter Ex. PW27/A alongwith which he handed over certified copy of the account opening form besides certified copy of the statement of account State (CBI) v. Ashok Kumar Kapoor Page No.14/70 15 that are Ex. PW27/B to Ex. PW27/D.
26. PW28 was Sh. Kirpa Kant Thakur, Account Clerk in DDA Employees CoOperative Thrift and Credit Society. He deposed handing over certain documents to CBI viz. Photocopy of share certificate in favour of accused Ex. PW28/A besides photocopies of the ledger account of accused Ex. PW28/B containing a balance of Rs.2695/ as on 13.3.2000. He deposed about the investment of the accused in 50 shares each for Rs.10/ and the summary of the account was proved by him Ex. PW28/C.
27. PW29 was Sh. G. N. Pant, Computer Operator,SBI, INA, Vikas Sadan Branch, New Delhi. He deposed about certain documents handed over to the CBI by N. K. Jain, the then Chief Manager of the branch vide Ex. PW29/A viz. Photocopy of the statement of account of bank account no. 5348 is Ex. PW29/B.
28. PW30 was Sh. A. R. Joshi, Motor Licensing Officer, Department of Transport, South Zone, Sheikh Sarai, New Delhi. He deposed over that handing over file in respect of vehicle no. DL 3CE 1560 to CBI registered in the name of Nirmal Rani and transferred in the name of accused Ashok Kumar Kapoor in the year 1996 and the documents were marked as Ex. PW30/A1 (Colly.) State (CBI) v. Ashok Kumar Kapoor Page No.15/70 16
29. PW31 was Sh. Pradeep Anand, MLO from Sarai Kale Khan, Transport Department. He deposed about registration of Scooter bearing no. DL 6SA 0374 in the name of the accused which are Ex. PW31/A to Ex. PW31/F.
30. PW33 was Sh. S. C. Gupta, Deputy Vigilance Officer, DDA, New Delhi. He deposed handing over property returns of the of the accused with the department to the CBI on 22.11.2002 vide memo Ex. PW33/A.
31. PW35 was Sh. Mohan Lal who in brief he deposed about negotiations by him and his wife in regard to purchase of property of the accused at Shalimar Bagh where the deal was struck for Rs.6,50,000/ and Rs.2,00,000/ were paid in advance in November2000 and proved the receipt Ex. PW35/DA. EXPENSES
32. PW7 was Smt. Aruna Nanda, proprietor of M/s Shalimar Gas located at BFI, Shalimar Bagh, New Delhi. She deposed that accused was having consumer no. SG12364 (D11) and made total payment of Rs.2212/ for gas connection and later further payment of Rs.1838.09/ was made during the check period and documents were proved as Ex. PW7/A to Ex. PW7/B.
33. PW12 was Sh. Rakesh Mehta, Development Officer in Oriental Insurance Company Ltd. He deposed about insurance State (CBI) v. Ashok Kumar Kapoor Page No.16/70 17 premium paid by the accused in respect of his Bajaj Chetak Scooter bearing no. DL 6SA 0374 during the check period amounting to Rs. 3288/ which documents are Ex. PW12/A to Ex. PW12/E.
34. PW17 was Sh. R. P. Singh, Assistant Zonal Inspector, MCD Zonal Office, Rohini. He deposed about imposition of house tax and its recovery in respect of house no. AC3/23 C, DDA Flats, Shalimar Bagh, New Delhi belonging to the accused and such documents are Ex. PW17/A to Ex. PW17/F.
35. PW18 was A. K. Sharma, Administrative Officer in LIC at Janpath Branch. He deposed about three policies in the name of accused Ashok Kumar Kapoor during the relevant time and about payment of premium. The details of which were supplied to the CBI and the relevant documents are Ex. PW18/A to Ex. PW18/F.
36. PW32 was Sh. A. K. Panchal, Accounts Officer, MTNL, Shalimar Bagh, Delhi. He deposed about the payments made in respect of telephone no. 7132968 and 7482968 installed at the residential premises of the accused and such documents are Ex. PW32/A to Ex. PW32/C. INCOME
37. PW13 was Sh. Sudesh Kumar, neighbour of accused. He State (CBI) v. Ashok Kumar Kapoor Page No.17/70 18 deposed that in October, 2000 he as well as accused wanted to carry out some major renovation in their flats and he gave Rs. 30,000/ to the accused for purchase of building material out of which Rs.18,000/ was spent and Rs.12,000/ were returned to him by the accused in February, 2001.
38. PW20 was Sh. S. C. Kaushik, Assistant (Vigilance), Vikas Sadan, DDA, New Delhi who supplied details of pay particulars of the accused for the check period vide letter Ex. PW20/A and the particulars are Ex. PW20/B.
39. PW34 was Sh. B. R. Gogia, Administrative Officer from SBI Mutual Fund. He deposed about letter dated 29.4.2002 Ex. PW34/A whereby investment of Rs.4000/ was made in the year 1993 in the name of Sh. Hemant, minor son of accused Ashok Kumar Kapoor and about dividend warrant of Rs.600/ and Rs. 800/ sent for the year 199899 and 19992000. SEARCH & SEIZURE
40. PW15 was Inspector Alok Kumar, CBI, Vigilance Cell, New Delhi. He deposed that as per directions of Nirbhay Kumar, the then Deputy SP in case RC No. 65(A)/2000 he conducted search of the residence of accused alongwith independent witnesses namely, Jagdish Prasad and Vivek Kumar, Railway employees from Baroda House. He proved the search cum observation State (CBI) v. Ashok Kumar Kapoor Page No.18/70 19 memo Ex. PW15/1 and also deposed that during the search cash amount of Rs.2,85,000/ was seized. He further deposed that the search started at 8 AM and concluded at 5.15 PM and thereafter, search of the office premises of the accused was conducted and the items recovered were reflected in the seizure memo Ex. PW15/3.
41. He further deposed that on 13.11.2000 the locker no. 1284, PNB, Pahar Ganj, New Delhi was operated by the accused in the presence of Inspector R. S. Bedi, two independent witnesses from the bank namely, Sh. Brij Mohan and Rakesh Gupta and the seizure memo Ex. PW15/4 was prepared in this regard on which I would dwell later on in this judgment. He further deposed that on the basis of memo of seized documents and material available, he lodged a complaint addressed to SP, CBI on the basis of which the present FIR Ex. PW15/6 was registered and all the documents were handed over by him to Sh. P. V. Ramashastri the then SP, CBI and Mr. Nirbhay Kumar, the then Dy. SP, CBI vide Ex. PW15/7.
42. PW16 was Jagdish Prasad, Head Clerk in Mechanical Branch, Baroda House who was associated during the search at the residence of accused as well as office on 10.11.2000.
43. PW19 was Sh. Rakesh Gupta, Deputy Manager at Punjab State (CBI) v. Ashok Kumar Kapoor Page No.19/70 20 National Bank, Pahar Ganj Branch who was the witness to the operation of the locker no. 1284 running in the name of the accused jointly in the name of mother in law of the accused.
44. PW21 was Sh. G. D. Nagpal,eputy Director (CR), DDA. He deposed that vide one productioncumseizure memo dated 13.11.2000 Ex. PW21/A, he handed over annual property return file of the accused to the CBI Ex. PW21/B (Colly.).
45. PW22 was Sh. Vivek Kumar in Indian Railways. He was also a witness to the search of the residence and the office premises of the accused on 10.11.2000.
46. PW25 was Sh. R. L. Bhatt. He was another member of the CBI team alongwith independent witnesses for conducting the search at the residence of the accused and later at his office premises.
47. PW26 was Sh. R. S. Bedi from CBI. He was associated during the operation of the locker no. 1284 at PNB, Pahar Ganj Branch.
SANCTION
48. PW23 was Sh. Anil Baijal, Vice Chairman, DDA during the relevant time who deposed that he granted sanction for prosecution against the accused vide sanction order dated 08.05.2003 Ex. PW23/A. State (CBI) v. Ashok Kumar Kapoor Page No.20/70 21 CBI OFFICIALS
49. PW36 was Sh. D. C. Jain, the then SP, ACB, New Delhi who took over the charge of investigation of this case from Sh. P. V. Rama Shastry and the latter was examined as PW37 and both deposed about various steps taken during the investigation of this case on which I would dwell later in this judgment. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
50. On the close of the prosecution evidence, the accused was examined in terms of section 313 Cr.P.C and on putting the incriminating facts and circumstances brought on the record by the prosecution, accused denied the case of the prosecution stating that during the relevant years a number of DDA scam cases were being investigated by the CBI and in one of the case the CBI coerced him to become an approver against the then Vice Chairman, DDA; and as he refused, a false and fabricated case was slapped upon him by the CBI. He claimed that he was innocent and that the money in the locker no. 1284, PNB, Pahar Ganj Branch belonged to his deceased motherinlaw. He also filed written submissions in terms of section 313(5) of the Cr.P.C.
51. In his defence, accused examined four witnesses: DW1 was Sh. Prem Kumar Verma who deposed that Harnam Dass, State (CBI) v. Ashok Kumar Kapoor Page No.21/70 22 deceased father in law of the accused, ran a general store in the name of M/S Harsham from his premises no. CB16A Shalimar Bagh, Delhi and the store was running very well till 1998 who used to be assisted by his son Mohan Lal.
52. DW2 was Sh. S. L. Dhir. He was a Government Registered Valuer of properties. He deposed that he had inspected the property no. 2594/2595, Chuna Mandi, Pahar Ganj, Delhi which was residentialcumcommercial on 30.6.2012; that he calculated that the value of the property on 19.5.1988 was about Rs.10.20 lakhs and he deposed that his report is Ex. DW2/1 based on L&DO and CPWD rates.
53. DW3 was Sh. Vikram Kapoor, son of the accused who deposed about his earnings as well of his brother Hemant Kapoor.
54. DW4 was Sh. Manoj Kumar, brother in law of the accused. He testified that the cash amount that was recovered from the locker belonged to his mother Shakuntala Devi in respect of which she had written a will Ex. DW4/A and the same had been got probated by the Competent Court vide as per order Ex. DW4/C. He deposed that the money lying in the locker was obtained by his mother on the sale of their house. State (CBI) v. Ashok Kumar Kapoor Page No.22/70 23 ARGUMENTS
55. Mr. S. K. Saxena, Ld. Counsel for the accused urged that his client has been falsely implicated as in the infamous DDA and CGHS scams, he refused to become an approver against the then Vice Chairman of DDA; that for the refusal of the accused to cooperate with CBI the entire investigation was done in a malafide manner during the course of which several irregularities were committed. Mr. Saxena, Ld. Counsel urged that the search conducted at the residence of the accused on 10.11.2000 was never done in pursuance of a warrant issued by the court u/s 91 Cr.P.C. nor the same was justified u/s 165 Cr.P.C.; that no written authorization was given by the SP concerned to PW 15 to conduct the search and seizure at the residence and office and later in connection of operation of the locker on 13.11.2000 with PNB, Pahar Ganj branch. He then urged that the entire investigation was motivated that although the search was completed on 10.11.2000 and 13.11.2000 and although the complaint D1 Ex. PW 15/5 was immediately lodged, the present FIR was registered on 29.12.2000 and the CBI officials were unable to explain to what transpired during the interregnum. Mr. Saxena, Ld. counsel pointed out that initially the check period was taken from January, 1990 to State (CBI) v. Ashok Kumar Kapoor Page No.23/70 24 10.11.2000 and when the CBI was not able to foister a case against the accused, the check period was shortened to period 01.01.1998 to 13.11.2000 and the case proceeded on the wrong premise where several items of assets including residential flat, car and scooter etc. that were acquired by the accused prior to the check period, were reckoned as the assets of the accused to implicate him falsely in this case so much so that the earnings of the two sons of the accused namely, Hemant Kapoor and Vikram Kapoor besides his wife and the rental income were ignored by the CBI.
56. Mr. S. K. Saxena, Ld. Defence counsel challenged the case of the prosecution tongs and hammer arguing that the cash amount of Rs.8,08,495/ that was recovered from the locker belong to the motherinlaw of the accused Smt. Shakuntala Devi. He pointed out that the locker was taken on rent much prior to the check period i.e., on 16.9.1989 and the rent towards the locker has always been paid by Smt. Shakuntala Devi from her account; that during the course of investigation she had written a representation to the CBI that such money belonged to her that was obtained out of the sale proceeds of their house bearing no. 2594/95, Gali no. 9, Chuna Mandi, Pahar Ganj, Delhi sold by her late husband for Rs.7.75 State (CBI) v. Ashok Kumar Kapoor Page No.24/70 25 lakhs on 19.5.1988 and in this connection he referred to the report of the Architect Ex. DW2/1 to the effect that such property was having the market value of Rs.10.20 lakhs as per L & DO rates on the date of sale. Whereas the CBI did not conduct any exercise to determine the market value of the property.
57. It was urged that the amount of consideration in the sale deed to the tune of Rs.45,000/ was only a common way to circumvent stamp and registration duty by husband of Smt. Shakuntala Devi for which fault the accused cannot be made liable. It was urged with great vehemence that no evidence has been led by the State (CBI) that the amount of Rs.8,08,495/ recovered from the locker belonged to the accused. It was further urged that Smt. Shakuntala Devi at the time of her death executed a registered will Ex. DW 4/A which was probated by the Competent Court vide order Ex. DW4/C and it was pointed out that CBI was a party in the probate proceedings and at no stage of the case, the State (CBI) challenged that the amount of Rs.8,08,495/ in the locker of the deceased did not belong to her. Much challenged was made about the bank slips that were found on few of the wads of currency notes and it was urged that the money, if any, was put State (CBI) v. Ashok Kumar Kapoor Page No.25/70 26 in the locker prior to the check period. It was also urged that the money recovered was never produced during the course of trial for its identification so much so that PW15 and PW36 admitted that the slips that were on the wads of currency notes had not been initialled or dated at the time of recovery and seizure from the locker.
58. Ld. Defence counsel has relied on decisions in State of Maharashtra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88; State Inspector of Police Vishakhapatnam v. Surya Sankaram Karri, (2006) 3 SCC (Cri) 225; Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another; (2006) 3 SCC (Cri) 233, Dr. R. R. Kishore v. CBI, Crl. Rev. P. 366/2006 dated 05.10.2006; D.S.P, Chennai v. K. Inbasagaran, (2006) 1 SCC (Cri) 325, Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 701 (3 September 1997); Om Prakash v. State and Ors. (CBI), Crl. A. No. 232/1999 judgment dated 15.10.2008 of High Court of Delhi; State of T. N. v. M. M. Rajendran, Crl. Appeal No. 654 of 1996 dated 05.02.1997 of Hon'ble Supreme Court of India; K. C. Singh v. CBI, Crl. Appeal No. 976/2010 dated 10.8.2011 of Hon'ble High Court of Delhi; Mohd. Iqbal Ahmed v. State of Andhra Pradesh, dated 18.01.1979 of Hon'ble Supreme Court of India; State through State (CBI) v. Ashok Kumar Kapoor Page No.26/70 27 Central Bureau of Investigation v. Ravinder Singh, Rev. Appeal no. 45 of 1993 dated 12.01.1995 of Hon'ble High Court of Delhi; G. S. Matharaoo v. CBI, Crl. M. C. 2695/2010 and Crl. M. A. 13999/2010 dated 25.01.2012 of Hon'ble High Court of Delhi; State of Karnataka through CBI v. C. Nagarajaswamy, Crl. Appeal no. 1279 of 2002 of Hon'ble Supreme Court of India; Rakesh Kumar Gaur & Ors. v. Vipin Gaur, FAO (OS) no. 188190/2005 dated 12.3.2009 of Hon'ble High Court of Delhi; Shanti Kumar Panda v. Shakuntala Devi, Civil Appeal no. 10906 of 1996 dated 03.11.2003 of Hon'ble Supreme Court of India; Ramesh Chand Gupta & Ors. v. Union of India & Ors. 2009 [2] JCC 826; Chander Bose v. Ved Prakash & Ors., 2009 [2] JCC 836; M. Krishna Reddy v. State Deputy Superintendent, AIR 1993 SC 313; Samadhan Dhudaka Koli v. State of Maharashtra, Crl. Appeal no. 637 of 2006 dated 18.12.2008 of Hon'ble Supreme Court of India; State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, dated 06.5.1981 of Hon'ble Supreme Court of India.
59. I have heard Ld. PP for the State (CBI) and Ld. Defence Counsel for the accused. I have also perused the entire oral and documentary record carefully and minutely. I have also gone through the written submission filed by the defence and State (CBI) v. Ashok Kumar Kapoor Page No.27/70 28 the case law.
PROPOSITION OF LAW
60. Section 13(1)(e) of the PC Act provides as under:
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionation to his known sources of income.
Explanation: For the purpose of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
61. Thus, the conditions essential to bring a case u/section Section 13 ( 1 ) ( e) of the PC Act could be spelled out as under: (1) The accused is a public servant;
(2) The nature and extent of the pecuniary resources of property found in his possession;
(3) His known sources of income, i.e. known to the prosecution.
(4) Such resources or properties found in possession of the accused were disproportionate to his known sources of income.
(5) The aforementioned ingredients are established by the prosecution, the burden of proof would shift on the accused to show that the prosecution case is not correct.
62. As regards what constitutes "known sources of income,"
in the case of State of Madhya Pradesh v. Awadh Kishore Gupta, 2004 CRI. L. J. 598, their lordships of the Supreme Court State (CBI) v. Ashok Kumar Kapoor Page No.28/70 29 observed as under: The expression 'known sources of income' in S. 13 has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that 'known sources of income' means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters 'specially within the knowledge' of the accused, within the meaning of S. 106. The phrase 'known sources of income' in S. 13(1)(e) (old S. 5(1)(e)) has clearly the emphasis on the word 'income.' It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term 'income' by itself, is elastic and has a wide connotation. Whatever comes in or is received is income. But, however, wise the import and connotation of the term 'income,' it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term 'income.' Therefore, it can be said that, though 'income' is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from
(a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the 'known sources of income' of a public servant. The Legislature has advisedly used the expression 'satisfactorily account.' The emphasis must be on the word 'satisfactorily' and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. (Paras 5, 6, 7) The phrase "known sources of income" in S.1 3(1)(e) (old S. 5(1)(e)) has clearly the emphasis on the word "income." It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, State (CBI) v. Ashok Kumar Kapoor Page No.29/70 30 commonly known as remuneration or salary. The term "income" by itself, is elastic and has a wide connotation.
Whatever comes in or is received, is income. But, however, wide the import and connotation of the term "income," it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income." Therefore, it can be said that, though "income" is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the "known sources of income" of a public servant.
The Legislature has advisedly used the expression "satisfactorily account." The emphasis must be on the word "satisfactorily" and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy or acceptance.
INCOME DURING THE CHECK PERIOD (01.01.1998 TO 13.11.2000) SALARY INCOME
63. In the light of the proposition of law discussed above, we take into account all the legitimate receipts in the hand of the accused during the check period. At the outset, assessment of income done by the prosecution, as reflected in the charge sheet, is fallacious and cannot be accepted as it wrongly State (CBI) v. Ashok Kumar Kapoor Page No.30/70 31 incorporates the amount towards the balance in various bank accounts of the accused which, elementary as it may seen, could only be reckoned as assets of the accused at the end of the check period. As per the charge sheet, the total income of the accused during the check period was assessed to Rs. 7,01,604/. During the course of arguments on the point of charge, as reflected in the order dated 13.4.2007 of this court, at the instance of the prosecution, the income was assessed at Rs. 7,24,098/ including the amount of salary of three months to the tune of Rs.17,495/ as well as honorarium of Rs.5000/ totaling to Rs.22,495/.
64. I may hasten to indicate that this court entertained a doubt whether the stand taken by the CBI at the stage of charge that income of the accused be reckoned Rs.7,24,099/ shall be final and conclusive. In my view, the stand taken by the CBI at the stage of charge was a tentative one based on a prima facie view of the evidence/material collected during the investigation and placed on the judicial record. Our system of Administration of Justice is based on the "Due Process Control Model" and the Courts have the ultimate jurisdiction to consider whether items of income, expenditure or assets, in a case like the instant one, could be reckoned for one purpose or State (CBI) v. Ashok Kumar Kapoor Page No.31/70 32 the other as per the standard accounting practices, business standards and norms and in conformity with the law on the subject. I do not see as to how the stand taken by the CBI at the stage of charge that total income was Rs.7,24,099/ could operate as estoppel as I have already demonstrated that the assessment of income was wrongly made by the State (CBI) in as much as the amount standing to the credit in the bank account of the accused are items which could only be reckoned towards assets and not towards his income except for the interest in the bank accounts which got credited during the check period. I do not see how an erroneous impression in the order on charge has prejudiced the accused either.
65. That being the position, during the course of trial, the prosecution examined PW 20 Sh. S. C. Kaushik who testified without any challenge that the accused had drawn gross salary of Rs.1,37,333/ in the year 199798; Rs.1,69,310/ in the year 199890; Rs.1,75,378/ in the year 19992000 and Rs.1,76,935/ in the period 01.3.2000 to 13.11.2000 which statement is Ex. PW 20/B (D62). If the salary for three months for the year 199798 i.e. January to March, 1998 is reckoned, the gross salary of the accused during the check period 01.01.1998 to 13.11.2000 comes to Rs.5,57,868/. Further, Rs.5000/ is also State (CBI) v. Ashok Kumar Kapoor Page No.32/70 33 added as an honorarium received by the accused during the check period, as was conceded by the CBI at the stage of charge on 22.3.2005 and thus the gross income comes to Rs. 5,62,868/.
66. All said and done, the above discussion is an academic one since it is admitted case of the accused in his written submissions u/s 313 (5) of Cr.P.C as well as in written arguments that the net income from salary during the check period comes to Rs.3,89,495/ as against amount of Rs. 3,67,400/ shown in the charge sheet and the same is reckoned in the decision of the instant case.
BANK INTEREST
67. It is in evidence of PW 11 that accused was having bank account no. 393 with Central Bank of India and as per statement of account Ex. PW 11/C, his account was credited with interest of Rs.1946/ during the check period which has to be reckoned for the purposes of assessing his income. Further, as per PW 14 accused was having a joint account no. 48315 with mother Bhag Sodhi which was in operation from 01.10.1999 to 08.10.2003 and he earned interest of Rs.1880/ as per interest chart Ex. P14. Accused had another account in State Bank of India, Personnel Banking Branch, Parliament Street no. 11435 jointly with his State (CBI) v. Ashok Kumar Kapoor Page No.33/70 34 wife Smt. Surender Rani and as per certified copy of statement of Ex. PW 27/C he earned interest of Rs.2643.79 p during the check period 1998 to 2000 which also has to be included in his income. Sum total of salary income plus honorarium and interest income referred above comes to Rs.4,00,964.79p (3,89,495 +5000 +1946+1880+2643.79).
68. Further, the dividend income was received in respect of SBI Equity Shares by the accused to the tune of Rs.900/; dividend from SBI Mutual Fund to the tune of Rs.1200/, interest on UTI Master Growth 1993 and UTI Master Gain 1992 amounting to Rs.1050/ and payment received on LIC survivor policy of Rs.8000/ are items of income and receipts to be reckoned. Accused had further withdrawn Rs.70,000/ from this GPF as per the statement of GPF Ex.PW 36/C on 23.10.2000.
69. Then, as per the evidence of PW6, there was investment in fixed deposit of Rs.10,000/ on 23.02.2000 by the accused in joint name with his wife Smt. Surender Rani which is Ex. PW 6/A. It was also in evidence that such fixed deposit was initially made on 19.9.1997 and the income on maturity of such FD MGF was Rs.14,390/ which was received during the check period. The receipt of this income cannot be excluded but correspondingly such fixed deposit shall be reckoned for State (CBI) v. Ashok Kumar Kapoor Page No.34/70 35 assessment of the assets of the accused. The sum total comes to Rs.4,96,504.79p. (3,89,495 +5000+ 1946+1880+ 2643.79 +900 + 1200 + 1050+8,000+70,000+14390).
SEIZURE OF CASH OF RS.2,93,495/
70. The State (CBI) accounted for Rs.1,65,000/ out of the seized amount at the time of search of the house as reflected in the search cum seizure memo Ex. PW 15/1 as the income of the accused. It is admitted that Rs.8,495/ was given back to the accused and Rs.2,85,000/ were only seized. The plea of the accused is that Rs.2,00,000/ had been obtained by him in regard to proposed bayana/earnest money for sale of house no. ACIII/23C, Shalimar Bagh, Delhi from Smt. Sushma Juneja in November 2000.
71. Without much ado, this stand of the accused appears to have been brought home satisfactorily in the evidence of PW 35 Mohan Lal, who was examined by the prosecution. PW 35 deposed without any challenge that a deal had been struck between accused and his wife for purchase of the flat for total consideration of Rs.6,50,000/ and Rs.2,00,000/ in cash had been paid in advance and in this regard an Agreement to Sell Ex. P20 besides receipt for Rs.2,00,000/ was proved as Ex. PW 35/DA which documents were available at the time of search of State (CBI) v. Ashok Kumar Kapoor Page No.35/70 36 the house of the accused on 10.11.2000 and not challenged by the prosecution.
72. All the same, this receipt in the hand of the accused as on 10.11.2000 does not count much since if we take it as his income in the nature of capital gain/earnings, the said amount would have to be shown as cash in hand for reckoning his assets at the end of check period. I do not see any substance in the plea of ld PP that this amount is ill gotten money since it had not been accounted in the property returns Ex. PW 33/B as the deal had taken place few days prior to the search and accused had ample time to communicate his department and file returns. Here reference can be had to decision in State of Madhya Pradesh v. Awadh Kishore Gupta (Supra), to the effect that every receipt would not partake into the character of income.
73. In so far as the remaining amount of Rs.85,000/ is concerned, the prosecution conceded that Rs.45,000/ had been withdrawn by the accused from his bank and Rs.30,000/ had been paid to the accused by PW 13 towards renovation/repairs of flat situated below the flat of the accused. Only Rs. 12,000/ was the balance with the accused out of the amount of Rs. 30,000/ given to him by PW13 as it is own case of the accused that Rs.18,000/ had already been spent on the purchase of the State (CBI) v. Ashok Kumar Kapoor Page No.36/70 37 building material. The balance was liable to be refunded and if we include Rs. 12,000/ as his income, we will have to deduct this amount while assessing the net worth of the assets and thus it is also to be discarded. The remaining amount in the hand of the accused i.e., Rs. 81, 495/ (2,93,4952,00,00012,000) was an asset of the accused as on 10.11.2000 in the nature of cash in hand and shall be reckoned accordingly.
74. It was also the case of the accused that he had earned rental income of Rs.1,81,000/ during the period 1985 to 1997 but that rental income cannot be counted for assessing income during the check period. It is pertinent to mention here that no evidence is led by the accused that his property was fetching any rental income during the check period. Although the documents in the nature of lease agreement which are Ex. PW 15/DB were relied upon in respect of property no. ACIII/23C, Shalimar Bagh, Delhi, the same indicate that the property was fetching rental income from 12.2.1990 till about 31.7.1996 but it is not the case of the accused that he had any rental income during the check period.
75. Viewed from that angle the total income of the accused during the check period (01.01.1998 to 13.11.2000) comes as to Rs. Rs.4,96,504.79p State (CBI) v. Ashok Kumar Kapoor Page No.37/70 38 EXPENDITURE OF THE ACCUSED DURING THE CHECK PERIOD (01.01.1998 TO 13.11.2000)
76. As per the evidence of PW 12 the insurance premium towards car and scooter of the accused during the check period works out to Rs.4565/ which has not been disputed by the accused. Further, it has not been disputed that amount of Rs. 1024/ was paid by the accused towards house tax as per evidence of PW 17. The amount of Rs.4050/ was paid by the accused as per evidence of PW 7 towards facilities of gas cylinder which document are Ex. PW 7/A and Ex. PW 7/B that was not challenged by the accused. As regards the Life Insurance Policy, it is in evidence of PW 18 that the accused had subscribed to three Insurance Policies no. 4685 with annual premium of Rs.16,054/; policy no. 050290992 with half year premium of Rs.1,364/ and third policy no. 110981885 for Rs. 4251/ yearly which documents are Ex. PW 18/A to Ex. PW 18/F.The payment of insurance premium were admitted by the accused vide premium receipts that are Ex.PW 22/9 to Ex.PW 22/11 (also Ex.P3). The LIC premium if computed for three years is Rs.69,099/ while the State (CBI) has reckoned it on proportionate basis to Rs.53,045/ which was conceded by the State (CBI) v. Ashok Kumar Kapoor Page No.38/70 39 accused.
77. There is further evidence on payment of telephone bills that as per the evidence of PW 32 comes to Rs.26,656/. Although such items of expenditure is not disputed by the accused, at the same time it is urged that since his two sons had been gainfully employed besides his wife only ¼ of such expenditure could be attributed to the accused. It is pertinent to mention here that as per PW30, accused was registered owner of car bearing no. DL 3 CE 1560 acquired by him in the year 1996 as per documents Ex. PW 30/A while he was also possessing a scooter bearing no. DL6SA 0374 in terms of evidence of PW 31. Another item of expenditure that has been reckoned by the State (CBI) is the petrol expenditure worked on the Kilometer basis as brought out in the evidence of PW 15 and PW 36 to the tune of Rs.14,476/ which is again not challenged but the same plea is taken by the accused that only ¼ of it could be attributed to him. The State (CBI) has further attributed Rs.1,22,446/ towards kitchen expenditure etc. for the check period and again the same is disputed by the accused urging that ¼ of it could be attributed to him.
78. Well, I am not impressed since the telephone bills were in the name of the accused and so also the car and scooter were in State (CBI) v. Ashok Kumar Kapoor Page No.39/70 40 the use of the accused. He being head of the family must have been paying such expenses. There is nothing in the evidence of DW4 Vikram Kapoor that he had been contributing any amount towards payment of telephone bills, petrol or kitchen and therefore, I find that all the items of expenditure could only be attributed to the accused. Before parting on this aspect, although 1/3 of the non verifiable kitchen expenses based on the net salary income comes to Rs. 1,31,498/ (Rs.3,94,495 x 1/3) but this Court taking a liberal view is reckoning only a meager amount of Rs.1,22,466/ and further taking a liberal view treating the nonverifiable expenses to include the amount paid on gas connections, house tax and petrol expenses discussed above.
79. Accordingly the expenditure of the accused for the check period is assessed as under: Insurance permium of car/scooter 4,565/ LIC premiums 53,045/ Nonverifiable expenses 1,22,466/ Total Rs. 1,80,076 State (CBI) v. Ashok Kumar Kapoor Page No.40/70 41 ASSETS OF THE ACCUSED DURING THE CHECK PERIOD
80. In this category, we shall consider all tangible things that were having material value or usefulness that was owned by the accused at the end of check period. It would obvisouly exclude outstanding liabilities, if any, of the accused pertaining to the check period.
BANK BALANCES
81. Accused had account with PNB, Pahar Ganj Branch in the joint name with his mother Smt. Bhag Sodhi, bearing no. 48315 and as per statement Ex. PW 36/B3 (D43) which has not been disputed by the accused, he had balance of Rs.41,752/ as on 10.11.2000. Further accused had a joint account with his wife Surender Rani in PNB, Pahar Ganj no. 35758 and as per D44 which is admitted by the accused, he had balance of Rs. 1,13,443.58ps as on 13.10.2000. Further accused had an account in Central Bank of India, INA, New Delhi no. 393. As per statement of account Ex. PW 11/C (D49) he had balance of Rs. 9,648.09ps as on 10.11.2000. Accused further had a joint account with his wife in SBI, Parliament Street, New Delhi A/c no. 01190341135 and as per statement of account Ex. PW 27/D (D50) he had balance of Rs.16,617.93ps as on 09.10.2000. State (CBI) v. Ashok Kumar Kapoor Page No.41/70 42
82. The sum total to Rs.1,81,461.60ps. However, deductions have to be made from such accounts about the amount standing to the credit as on 01.01.1998 and the interest credited in such accounts during the check period to arrive at the net figure as on 10.11.2000. When such assessment is done, the credit balance to be reckoned for account no. 48315 with PNB, Pahar Ganj should be Rs.37,373/; for account no. 393 with Central Bank of India should be Rs.55,205/ and for account no. 35758 with PNB, Pahar Ganj should be Rs.59,817/. So far as the position of the fourth account no.01190341135 with SBI, Parliament Street is concerned there was no transaction and concession has been given in respect of interest during the time which comes to Rs.693/. Therefore, the amount standing to the credit of the four balance accounts as on 10.11.2000 comes to Rs.1,52,395/.
83. Now, there is no iota of evidence that wife was of the accused was having any regular income form tuition. Assuming for the sake of convenience that she earned some income as LIC agent, it hardly comes to Rs. 84,564/ and the case of the accused is that investment in the IVPs and NSCs (that I would discuss herein after) had been done by his wife. Well, such plea appears to be sham and just to cloud the assets of the accused. This State (CBI) v. Ashok Kumar Kapoor Page No.42/70 43 court has not reckoned the amount spent on acquisition of jewellery and other household items found during the search of the house and the bank locker. When the income, as happens with LIC agents, was irregular, it is difficult to hold that above said accounts were being operated by the wife of the accused or that she had been putting her own money in the same.
84. It is then in evidence of PW8 that Indira Vikas Patras were jointly subscribed by the accused with his wife Smt. Surender Rani for maturity value of Rs.30,000/ during the check period and thus the amount that was invested during the check period i.e. Rs.15,000/ is to be reckoned towards his assets that are PW 22/25 for Rs.5000/ and Ex. PW 22/26 for Rs.10,000/. It is further in evidence of PW 9 that accused had subscribed to Indira Vikas Patras with maturity value of Rs.60, 000/ during the check period in the joint name of his wife. Each Indira Vikas Patras in the sum of Rs. 2,500/ was acquired on 27.08.1998 and on 25.08.1999 during the check period which are Ex.PW 9/B1 to Ex.PW 9/B12 amounting to Rs, 30,000/. All these investments could only be attributed to the accused in the absence of worthwhile evidence that his wife was having an independent and regular source of income.
State (CBI) v. Ashok Kumar Kapoor Page No.43/70 44
85. It is then in evidence of PW4 that fixed deposit of Rs. 10,000/ was made on 27.5.1999 as per receipt Ex. PW 4/1. This deposit was made in the joint name by the accused with his wife and for the reasons already given earlier while reckoning the income of the accused, this investment is also to be attributed to the accused. There is then in the evidence of PW6 about fixed deposit in MGF in the sum of Rs.10,000/ made on 22.3.2000. It would bear repetition that since initial investment was made prior to the check period and the receipt of Rs.14,390/ has been considered as an item of income of the accused and the plea of the accused that two fixed deposits of Rs.10,000/ each have to be excluded from consideration as the money was contributed by his wife, cannot be accepted while reckoning his assets. RECOVERY OF CASH AT THE RESIDENCE
86. I have already discussed the issue while reckoning the income of the accused. At the cost of repetition, in so far as recovery of cash of Rs.2,93,495/ at the time of search of the house of the accused on 10.11.2000 is concerned, Rs.8,495/ was given back to the accused. Out of the remaining amount of Rs. 2,85,000/, Rs.2,00,000/ have been counted for towards the proposed sale of the flat at Shalimar Bagh which is off set when we consider the same to be income as well as an asset. Out of State (CBI) v. Ashok Kumar Kapoor Page No.44/70 45 the balance of Rs.85,000/, Rs.12,000/ is deducted as that was the amount that was refunded to PW13 and accordingly amount of Rs.81,495/ in cash is reckoned as the assets of the accused i.e cash in hand at the time of search as on 11.10.2000.
87. It is then in evidence of PW 10 that accused had subscribed to two National Saving Certificates one in the sum of Rs.10,000/ and other for Rs.5000/ in joint name with his wife on 11.2.1998 as per application Ex. PW 10/A which again is to be attributed to the accused. Infact, accused was allowed to encash this amount during the trial. It is then in evidence of PW28 that accused was a member of the DDA Cooperative Thrift and Society and he had a balance in his account for the relevant period was Rs.760/.
88. Now if the amount of Rs.8,08,750/ which was recovered on search and operation of locker at PNB, Pahar Ganj on 13.11.2000 is reckoned the total value of the assets in the hand of the accused is arrived at as under: Bank Balance+ DDA T&CS 1,53,155.00 IVPs 45,000.00 NS C 15,000.00 Fixed Deposits 20,000.00 Cash in hand 81,495.00 Cash in locker 8,08,750.00 11,23,400.00 State (CBI) v. Ashok Kumar Kapoor Page No.45/70 46 MATHEMATICAL CALCULATION AND APPRECIATION OF EVIDENCE
89. In the light of the discussion above, the total income of the accused minus the expenditure during the check period brings out likely saving of Rs.3,16,428.79p. (4,96,504.79 - 1,80,076) Therefore, the assets disproportionate in hand of the accused at the end of the check period comes to Rs. 8,06,971.21p (Assets Minus Savings) which appears to be 162% (8,06,971.21 / 4,96,504.79 X100) of the known sources of income. On the other hand, if the amount of Rs.8,08,750/ recovered from the locker is excluded, the position that emerges is that there is no case of disproportionate assets.
Total Income 4,96,504.79p
Total Expenditure 1,80,076.00p
Likely Savings 3,16.428.79p
Assets 3,14,650.00p
CASH OF RS. 8,08,750/ IN THE LOCKER
90. Let me state that it was fairly conceded during the course of arguments that the decision in this case delicately hinges on the issue whether the accused is able to satisfactorily explain that the money in the locker belonged to his mother in law? State (CBI) v. Ashok Kumar Kapoor Page No.46/70 47 Before we proceed to decide this case, it would be expedient to point out that it is the fundamental canon of criminal jurisprudence that the prosecution has to stand on its own legs and must prove its case beyond reasonable doubt, and in doing so the prosecution cannot derive any strength or support from the weakness in the case of the defence. The nature and extent of burden of proof u/s 5(1)(e) of PC Act analogous to Section 13 (1) (e) of the Act came up for discussion before the Apex Court in State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar"
AIR 1981 SC 1186 wherein it was held that:
" That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5 (1) (e) of the Act. The expression ' burden of proof' has two distinct meanings (1) the legal burden, i.e. the burden of establishing the guilt, and (2) the evidential burden, i. e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by Jaw upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under S. 5 (2) read with S. 5 (1) (e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under S. 5 (1) (e); namely, (1) it must establish that the accused is a public servant, (2) the nature, and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i. e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate State (CBI) v. Ashok Kumar Kapoor Page No.47/70 48 to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S. 5 (1) (e) is complete, unless the accused is able to account for such resources or property.
The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5 (1) (e) cannot be higher than the test laid by the Court in AIR 1966 SC 1762 i. e. to establish his case by a preponderance of probability. That test was laid down by the Court following the dictum of Viscount Sankey, L. C. in Woolmington v. Director of Public Prosecutions, (1935) AC 462. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in AIR 1960 SC 7, the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income, i. e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of S. 106 of the Evidence Act, 1872. Section 106 reads :
Section 106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In this connection, the phrase the burden of proof is clearly used in the secondary sense, namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability."
91. In regard to what is the nature and extent of explanation to be rendered by the accused, the Apex Court in Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170 inter alia held while dealing with a case of Prevention of Corruption Act that:
State (CBI) v. Ashok Kumar Kapoor Page No.48/70 49
"......Another question which arises is that what are the standards to be employed in order to judge the truth or falsily of the version given by the defence. Should the accused prove its case with the same amount of rigour and certainity, as the prosecution is required, to prove and criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case?"
".....The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. Infact, from the cardinal principles, it is sufficient if the accused is able to prove its case by the standard of preponderance of probabilities as envisaged by Sec. 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him , there is doubt on the prosecution case and therefore, the prosecution cannot said to have been established the charge beyond reasonable doubt. In other words, the move of proving by standard of benefit of doubt is not applicable to the accused where he is called upon to prove its case or to prove the exceptions of the Indian Penal Code. It is sufficient to the defence to give a version probable with the prosecution version for that would be sufficient to throw suspicion on the prosecution case and rejection by the Court ."
92. With the said proposition of law at the back of our mind, there is no denying the fact that the locker no. 1284 in PNB, Paharganj Branch was in joint name of the accused with his mother in law as per the account opening form Ex.PW 5/A (D41). The accused was entitled to operate the same being in the category of "either or survivor" as per the terms and conditions in Ex. PW5/A. The locker became operational w.e.f. 16.09.1989 much prior to the check period. PW5 testified that either of the account holder or their nominee with proper State (CBI) v. Ashok Kumar Kapoor Page No.49/70 50 authorization was supposed to bring the key of the locker for operating the same in the branch. The certified copy of the ledger of the locker no. 1284 Ex.PW 5/B was brought in the evidence containing entries about the visits of the account holder and he categorically deposed that motherinlaw Smt. Shakuntala Devi operated the locker on the date of opening i.e 16.09.1989 and as per the entries in the ledger Ex.PW 5/B , accused signing as Ashok Kumar had operated the locker in his personal capacity which evidence was corroborated by PW19.
93. Much challenge was attempted to be made that the rent of the locker was being paid out of the account No. 32680 with the same Branch of Smt. Shakuntala Devi but the fact remains that the register / ledger Ex.PW 5/B that have been maintained in the ordinary course of business cannot be disputed and it does show that she had never operated the locker on her own or personally. Perusal of the certified copy of the ledger Ex.PW 5/B (Ex.PW 19/A) would show that it was accused who had operated the locker on different dates and as many as fifty odd occasions. It is also pertinent to mention here that during the check period the locker appears to have been operated by accused on 13.06.1998, 05.06.1999, 03.11.2000.
State (CBI) v. Ashok Kumar Kapoor Page No.50/70 51
94. Interestingly, a plea was taken that Smt. Shakuntala Devi had always been accompanying the accused to operate the locker but she was not signing as she was disabled and unable to put her signatures. This plea appears to be by way of afterthought as during the course of investigation, Smt. Shakuntala Devi had submitted a representation to the CBI received on 10th January 2007 Ex.P19 (D84) on which she had signed her name in Hindi, and, therefore, I find that the plea is patently false.
95. It is also pertinent to mention here that address of Smt. Shakuntala Devi was CB16A, Shalimar Bagh, Delhi, in the application form and she had not been residing with the accused at his DDA flat at Rajinder Nagar, Delhi. The fact that the key of the locker PNB 130 Godrej 1269 had been recovered from his office along with other documents on 10.11.2000 as per searchcum - seizure memo dated 10.11.2000 Ex.PW 15/3 (D4) is another incriminating circumstance nailing the accused.
96. The said evidence clearly demonstrate that the locker no.
1284 was being operated by the accused. Much was urged by Sh. S. K. Saxena, Ld. Defence counsel that no evidence is led by the CBI that the amount of Rs. 8,08,750/ was the ill gotten money of the accused acquired during the check period and he pointed State (CBI) v. Ashok Kumar Kapoor Page No.51/70 52 out that the amount seized was not even produced before the Court.
97. First thing first, the recovery of Rs. 8,08,750/ from the locker is not disputed by the accused. Its non production in the court during the trial does not prejudice the accused in amy manner. Judicial cognizance could be taken that currency notes imprint the year of release only and that could hardly be a criterion to find out when the money was acquired. Evidence of PW15 Alok Kumar is very decisive to the effect that the currency notes were found in different denomination of Rs. 100/ and Rs. 500/ and only on few of the currency notes there were bank slips and in total 16 bank slips were found on the currency notes. Perusal of searchcumseizure memo dt. 13.11.2000 Ex.PW 15/4 (D28) shows that in one green polythene packet 10 bundles of currency notes in the denomination of Rs.100/ each containing 100 GC notes were counted out of which one bundle was containing slip dt. 24.12.1998 and two bundles were having bank slips dated 28.12.1998 of Gramin Bank, Gurgaon Mark C and other seven bundle marks D were having bank slips of PNB but there were nothing discernible as to which branch nor there was any date of counting of notes which were marked 'B'. State (CBI) v. Ashok Kumar Kapoor Page No.52/70 53
98. The memo dt. 13.11.2000 Ex.PW 15/4 (D28 further indicates that in another pink polythene packet there were 10 bundles of Rs.100/ denomination each bundle containing 100 GC notes of which one bundle was having slips of SBI Rohtak bearing branch no. 185 and also dated 09.04.1999 on the slip; and one bundle contained slip of PNB Parliament Street but without any date; and one more bundle was having slip of SBI, DMS Shadipur dt. 09.11.1998 Ex.PW 2/A.
99. The memo Ex.PW 15/4 further describes that in another white polythene packet 09 bundles each containing 100 GC notes in the denomination of Rs. 500 were recovered out of which one bundle was having slip of Syndicate Bank Nangloi Branch bearing year 1998 but date or month not legible and the same is Ex.PW 3/A. The memo further shows that two more bundles each containing 100 notes in the denomination of Rs. 100 out of which two bundles were having the bank slips of State Bank of Patiala Rohtak dated 09.04.1999 that were were mark Ex.PW 1/A, Ex.PW 1/B and Ex.PW 1/C.
100. That apart, there were slips which are Mark E which was not legible that did not indicate the name of the bank or date and the same is marked F of Syndicate Bank but nothing more legible about the date; there were mark 'A' slip pertaining to State (CBI) v. Ashok Kumar Kapoor Page No.53/70 54 Syndicate Bank and the same is not legible about the branch name, code, date. In total there were sixteen bank notes or slips that were found on the wads/bundle of currency notes. At the cost of repetition, non production of bags in which the money was kept is hardly of any significance. The only flaw that I observe is that only eleven of such bank notes/slips were filed along with the charge sheets while the rest of which were not accounted for. There was indeed flawed approach adopted by PW15 when he got the slips detached from the wads of currency notes in such manner. It would have been prudent to retain the currency notes intact that were having bank slips, legible or not. The only inference as suggested by Ld. Defence counsel is that about Rs.12 lakhs were having the slips while the remaining wads of currency notes were without any bank slips. This as per Ld. Defence counsel would raise an inference that only part of the tainted money was put in the locker during the check period.
101. All said and done, the above said irregularities have not caused any prejudice to the accused. The question of recovery is beyond any dispute and to expect the prosecution to collect and lead evidence as to when the money was put in the locker is something that would be impossible in itself. Evidence of PW1 and PW3 only demonstrate that some part of the money could State (CBI) v. Ashok Kumar Kapoor Page No.54/70 55 have been put during the check period and it is for the accused to satisfactorily explain when the money was kept in the locker. What belies common sense is: why such huge amount of money was kept in the locker if it was legitimate money of accused or his mother in law. It was not yielding any interest or returns. Particularly in the light of the evidence that Smt Shakuntal Devi was having a bank account with PNB, as reflected in the evidence of PW24, it raises a strong inference that it was ill gotten money of the accused that had been kept by him in the locker as he had been operating it all along. Assuming for the sake of convenience that the ill gotten money had been acquired over a period of time albeit prior to the check period as well, that would be inconsequential since its possession during the check period is all that counts. It can not be the law that if it is proved that the illegitimate money has been acquired prior to the check period, the public servant would be exonerated.
102. In order to strengthen the said inference, let us examine the plea of the accused that the amount of money found in the locker belonged to his mother in law Smt. Shakuntala Devi. It is pertinent to mention here that Smt. Shakuntala Devi was having three daughters besides a son Mohan Lal(DW4) and she passed away on 07.01.2007 and her husband Harnam predeceased her State (CBI) v. Ashok Kumar Kapoor Page No.55/70 56 on 11.11.1994. Indeed, she executed a Will on 30.04.2001 Ex.PW 4/A prior to her death which was got probated vide judgment dated 20.08.2011 Ex.PW 4/C. It is pertinent to mention here that Probate Court, in regard to cash amount in the locker, specifically provided that no one would be entitled to operate the locker or claim or use amount of Rs.8,08,750/ till the final adjudication of the case vide RC No. 75(A)/2000/AC/DLI.
103. The Probate is primarily a declaration in rem by the Court that the Will was last and final testament of the deceased but not final as regards the title of the subject matter in the Will. In other words, a claim therein that the money kept in the locker belonged to her cannot be said to be final or binding upon this Court. Mere fact that some properties, movable and/or immovable mentioned in the Will belonged to the testator does not ipso facto confer any right, title or interest in the legal heirs in respect thereof.
104. The case of the accused as brought out in the evidence of DW4 Mohal Lal is that Sh. Harnam Dass sold property bearing no. 2594/2595 Chuna Mandi, Pahar Ganj, Delhi for a sum of Rs. 7,75,000/ in the year 198889 and this amount had been handed over by him to his wife Smt. Shakuntala Devi which was kept in the locker. I would for a moment assume that the sale State (CBI) v. Ashok Kumar Kapoor Page No.56/70 57 deed for Rs.45,000/ in respect of the same was executed so as to circumvent or evade stamp or registration charges, which is common practice in our country. But if that is the case, it is also the case of the accused that Sh. Harnam had purchased a property bearing no. CB 16A, Shalimar Bagh , New Delhi in the year 198889 and if defence version is believed it was purchased for Rs.48,000/. By the same logic we can say that the sale consideration must have been deliberately placed at a low rate while actual consideration was something bigger.
105. It is also in the evidence that Harnam Dass started running a general store and probably finance would have been required to invest in business as well. I am afraid the evidence that the amount of cash of Rs.7,75,000/ had been kept by Smt. Shakuntala Devi in the locker jointly with the accused for almost 10 years does not strike to reasons and notions of common sense. To believe that money was kept for so long as safe keeping in the background of the social and financial status of the family involved, would be totally absurd. In fact, DW4 introduced a new piece of evidence that his father Harnam Dass also sold his business and Rs.90,000/ were given by him to his mother, which is mentioned only to be discarded. State (CBI) v. Ashok Kumar Kapoor Page No.57/70 58
106. Not much can be read in the plea that both the sons of the accused were handsomely earnings. Evidence of PW3 is that he filed income tax returns for Rs.64,390/ for the assessment year 19992000 which is Ex.PW 3/1 after getting employment in June 1999. However, in the following year 20002001 the return was filed for Rs.3,17,868/ which is Ex.PW 3/2. In regard to the income of Hemant Kapoor it has been vaguely stated that he was earning Rs.7,000/ to Rs.8,000/ per month. One could very rightly assume that even the sons must have been spending some amounts of money on their clothing, travelling, entertainment and their earnings were not so high to assume that they could substantially contribute cash or in kind in the hands of the accused.
107. It was urged with much vehemence by Sh. S. K. Saxena, Ld. Defence Counsel that when the possession of items in the locker was joint with Smt. Shakuntala Devi, the entire money found in the locker cannot be solely attributed to the accused. He pointed out that on operation of the locker on 13.11.2000, there were found jewellery items of Smt. Shakuntala Devi as well and he pointed out that during the course of the trial an application was moved by Smt. Shakuntala Devi dated 29.4.2004 on the judicial record to allow her to operate the locker which State (CBI) v. Ashok Kumar Kapoor Page No.58/70 59 application was allowed by the court vide order dated 22.7.2004. The plea does not cut much ice in as much as the search cum seizure memo Ex. PW 15/4 would rather show that except for 23 jewellery items belong to Smt. Shakuntala Devi weighing about 50gms the substantial items of jewellery belonged to the wife of the accused weighing about 162gms. Mere fact that an order was passed by the Court as interim measure allowing Smt. Shakuntala Devi to operate the locker does not create any legal right in favour of the accused. The cited case of D.S.P, Chennai v. K. Inbasagaran (Supra) was one where some money was recovered at the time of house search and the accused was able to satisfactorily explain that although the money was in joint possession with his wife, the money actually belonged to his wife out of her own earnings who was also an Income Tax assessee. This case is clearly distinguishable and the proposition of law in the cited case has no application in the instant case. SANCTION FOR PROSECUTION
108. An objection was taken in terms of pending application dated 03.12.2011 to the effect that accused was a Group 'B' Officer deriving pay scale of Rs.650020010500 posted as Senior Private Secretary. It is urged that PW 23 was not competent to grant sanction for prosecution against him which issue could State (CBI) v. Ashok Kumar Kapoor Page No.59/70 60 have only be considered by the Member Finance DDA. Perusal of the Conduct, Disciplinary and Appeal Regulation, 1999 applicable to the DDA Ex. PW23/DA would show that with regard to Group 'A' Officers, the appointing authority was Chairman where the incumbent was deriving pay or a scale of pay the maximum of which was equivalent to Rs.22,400/ and it was Vice Chairman in respect of which the incumbent was deriving pay or scale of pay maximum of which was less than Rs. 22,400/ but not less than Rs.13,500/; whereas in case of Group 'B' Officers the appointing authority was any full time member carrying a pay or scale of pay with maximum of not less than Rs.9000 but not less than that of Rs.13,500/.
109. The requirement of Section 19 (1) (c) of the PC Act is that sanction must be accorded by an authority competent to remove a public servant from his office. The plea that sanction prosecution could not have been granted by PW 23 is misplaced as Ex. PW 23/DA would show that any full time Member was competent to remove any employees falling in Group 'B' category. The very fact that such power was exercised by the Vice Chairman has not prejudiced the accused in any manner. The said irregularity in the grant of sanction has never been agitated at an earlier stage of the case and in as much as sanction was State (CBI) v. Ashok Kumar Kapoor Page No.60/70 61 granted by a superior authority, than the one provided is not resulting in prejudice to the accused in terms of section 19 (4) of the Prevention of Corruption Act. Technically speaking, even the Vice Chairman is Member in the DDA, albeit a permanent one, who is designated as such due to seniority or administrative considerations.
110. Further, the plea that the Sanction order Ex. PW 23/A was accorded without non application of mind cannot be sustained. Mere fact that draft sanction order Ex.PW 23/DA was an exact replica of the sanction order does not cut much ice. PW23 categorically stated that the entire file was produced before him and after going through the same he accorded the sanction. It is hardly of any significance if PW23 over looked that salary for three months and three days had not been computed towards income of the accused during the check period. In the said view of the discussion, I do not find that the case law relied upon by the defence has any bearing on the matters in issue.
ILLEGAL INVESTIGATION
111. Much was urged about the investigation being mala fide right from the time of search of the house of the accused on 10.11.2000. Without much ado, I do not see as to how the entire State (CBI) v. Ashok Kumar Kapoor Page No.61/70 62 investigation can be said to be mala fide or with ulterior motives except that as I have already noticed the approach of PW15 & PW36 in computing the income, expenditure and assets of the accused for the check period was flawed as they failed to take into consideration the fundamental accounting parameters. I may say that in a case u/s 13 (1) (e) of the P. C. Act, there can rarely be a situation where the FIR would be based on figures that are absolutely accurate. Accounting by its very nature is a difficult process requiring lot of efforts and time in arriving at one valuation or the other. In the instant case, while the approach was flawed, it was not unconscionable or shocking. I, therefore, do not see as to how the case law relied upon on the aspect of illegal investigation has any bearing in this case. FINAL ORDER
112. In the said view of the discussion, I find that prosecution has been able to prove its case against accused Ashok Kumar Kapoor beyond reasonable doubt that he was possessing assets disproportionate to his non sources of income to the extent of Rs. 8,08,750/ during the check period from 01.01.1998 to 10.11.2000. The accused is convicted u/s 13 (1) (e) read with section 13 (2) of the Prevention of Corruption Act. State (CBI) v. Ashok Kumar Kapoor Page No.62/70 63
113. Let he be heard on the point of sentence on 27.11.2012. ANNOUNCED IN OPEN COURT TODAY i.e ON 22.11.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
xx State (CBI) v. Ashok Kumar Kapoor Page No.63/70 64 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03, CBI NEW DELHI,DISTRICT, NEW DELHI CC No. 41 /2011 Case ID No. 02403R0072902003 RC No. 75 (A)/2000/CBI/ACB/ND In re:
STATE (CBI) VS ASHOK KUMAR KAPOOR S/O SH. CHANAN RAM R/O AC23C, SHALIMAR BAGH, NEW DELHI.
Date on which charge sheet was filed 07.06.2003 Date on which charges were framed 19.04.2007 Date on which judgment was reserved 05.11.2012 Date on which judgment was pronounced22.11.2012 APPEARANCES: Mr. S. C. Sharma, Ld. PP for the State (CBI). Mr. S. K. Saxena, Ld. Counsel for the convict.
27.11.2012 ORDER ON THE POINT OF SENTENCE
1. Heard on the point of sentence and perused the record.
2. Mr. S. K. Saxena, Ld. Defence counsel for the convict Ashok Kumar Kapoor has urged that his client is about 64 years of age and his family comprises his wife, one married daughter and two sons.State (CBI) v. Ashok Kumar Kapoor Page No.64/70 65
It is pointed out that the convict had put in almost 30 years of unblemished service before being arraigned in this case. It is urged that the convict has suffered extreme mental agony, humiliation and social stigma because of this case besides having suffered loss of his terminal benefits in the nature of gratuity, full pension on his superannuation w.e.f., 31.07.2009, so much so that he has been getting provisional pension based on the pay scales as were applicable in the year 2000 and deprived of the benefit of revision by the VIth Central Pay Commission.
3. It has been urged that convict has been living hand to mouth with a meager pension and it is pointed out that consequent to search of his house, his entire bank balance including the salary account, cash in hand, lawful savings had been seized. Ld. Defence counsel urged that a lenient view may be taken in awarding the sentence to the convict.
4. Per contra, Mr. S. C. Sharma, Ld. PP for State (CBI) has urged that there are no mitigating circumstances, which could warrant taking a lenient view in favour of the convict. Mr. Sharma has further urged that this is a fit case where the assets, which have been found disproportionate to the known sources of income be also confiscated to the State (CBI). It has further been urged that while imposing the fine, the factors that have already been brought State (CBI) v. Ashok Kumar Kapoor Page No.65/70 66 on record may also be taken into consideration in terms of Section 16 of the Prevention of Corruption Act.
5. Finding of this court in regard to convict possessing assets disproportionate to his known sources of income have already been explained in the accompanying judgment dated 22.11.2012 and the same need not be repeated herein for the sake of brevity. Suffice to state that the total income of the accused minus the expenditure during the check period brings out likely saving of Rs. 3,16,428.79p. (4,96,504.79 - 1,80,076) Therefore, the assets disproportionate in hand of the accused at the end of the check period comes to Rs. 8,06,971.21p (Assets Minus Savings) which appears to be 162% (8,06,971.21 / 4,96,504.79 X100) of the known sources of income.
6. The sum and substance of the matter is that the convict has been unable to satisfactorily explain and brought home that the amount of Rs.8,08,950/ lying in the locker no. 1284 with PNB, Pahar Ganj Branch, New Delhi belonged exclusively to his mother inlaw. The inference is that the convict has been indulging in corrupt activities during the check period, abusing his official position and thereby succeeded in amassing such wealth for which he has not satisfactorily accounted for.
State (CBI) v. Ashok Kumar Kapoor Page No.66/70 67
7. Therefore, in the totality of the facts and circumstances of the convict, I sentence the convict Ashok Kumar Kapoor to undergo Rigorous Imprisonment for two years u/s 13 (1) (e) r/w 13 (2) of the Prevention of Corruption Act and further sentence to pay a fine of Rs.2.5 lakhs ; in default of payment of fine, to further undergo Rigorous Imprisonment for further period of 6 months.
8. As regards the request by the State (CBI) for confiscation of cash of Rs.8,08,750/ which was recovered on search and operation of locker no. 1284 with Punjab National Bank, Pahar Ganj Branch, New Delhi jointly in the name of the convict and his motherinlaw, reliance is placed on a decision in Mirza Iqbal Hussain.vs. State of UP, AIR 1983 SC 60 , wherein it was held that in cases falling u/s. 5 (1) (e) of the Prevention Act 1947 (which is analogues to Section 13 (1) (e) of the present Act), the Special Judge has the jurisdiction to make an order for confiscation of the wealth that have been unlawfully acquired or which have been proved to be the disproportionate to his known sources of income. It may be added that Section 5 (6) of the PC Act, 1988 also empowers this court to exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944..
9. It is., therefore, directed that the cash amount of Rs. 8,08,750/ which was recovered on search and operation of locker State (CBI) v. Ashok Kumar Kapoor Page No.67/70 68 no. 1284 with Punjab National Bank, Pahar Ganj Branch, New Delhi jointly in the name of the convict and his motherinlaw shall be confiscated to the State (CBI).
10. At this stage, an application u/s. 389 Cr.PC. is moved by Mr. S. K. Saxena, Ld. Counsel for convict. Copy supplied to Mr. S. C. Sharma, Ld. PP. No written reply is called for.
11. Heard on the application moved. It is stated that applicant/convict would be preferring an appeal against the judgment of this court and it is requested that order on sentence may be suspended and he may be granted bail till filing of appeal. As regards payment of fine of Rs.2.5 lakh, Sh. S. K. Saxena, Ld. Counsel has urged that his client is not in a financial position to pay the fine and it is requested that the amount of cash that was recovered at the time of house search on 10.11.2000 may be appropriated towards the fine.
12. Considering the fact that the convict is about 64 years of age, and also for the fact that he was a stenographer only and for the fact that he has been regularly appearing during the trial and appears to be remorseful the application deserves to be allowed.
13. In so far as the payment of fine is concerned, in terms of judgment dated 22.11.2012, in reference to para nos. 70 to 73 and 86, it may be reiterated that total cash of rs.2,93,495/ was seized at State (CBI) v. Ashok Kumar Kapoor Page No.68/70 69 the time of the search of the residence of the convict on 10.11.2000. He was returned cash of Rs.8,495/ after the search. It has already been observed by this court that amount of Rs.2 lakhs has been satisfactorily accounted for by the convict That leaves balance amount of Rs.85, 000/ which was duly accounted for by the convict. The total sum that remains to be refunded to the convict is Rs.2,85,000/ which was part of the cash found at the time of search of his residence. The State(CBI) is legally bound to refund this amount to the convict.
14. Therefore, the State (CBI) is directed to produce an amount of Rs.2,50,000/ before the court towards such refund and the same be deposited as fine on behalf of the convict by way of appropriation towards the fine imposed; and on payment of such fine, the receipt be given to the convict.
15. Before parting with this order, it is also directed that all the bank accounts including the salary account and NSCs in favour of the accused referred in the judgment shall stand de frozen giving the liberty to the convict to operate the bank account; and the convict shall be entitled to realize the amount under the NSCs amounting to Rs.15,000/ and the convict shall further be released cash amount of Rs.35,000/ (thirty five thousand) out of Rs. 2,85,000/ after deposit of Rs.2,50,000/ as fine but the convict State (CBI) v. Ashok Kumar Kapoor Page No.69/70 70 shall not be entitled to any interest on the amount of Rs. 2,85,000/ for the pendency of this case that, if any earned by the State(CBI), that shall stand confiscated to it. Let the amount of Rs. 2.5 lakhs be produced on 04.12.2012 as requested by the Ld. PP for the State (CBI) for deposit as fine.
16. In view of such directions, the sentence of the convict is suspended till 31.01.2013 subject to the applicant/convict Ashok Kumar Kapoor furnishing Personal Bond in the sum of Rs.50,000/ with one surety in the like amount . Bail bonds are furnished and accepted.
17. A copy of the judgment dated 22.11.2012 and copy of the order on sentence of even date be supplied to the convict free of cost.
18. A copy of this order be also given to Ld. PP for necessary compliance.
ANNOUNCED IN OPEN COURT TODAY i.e ON 27.11.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
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