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Delhi District Court

Cbi vs . Badrul Islam & Ors. Cc No. 301/19 Rc. No. ... on 21 April, 2022

  IN THE COURT OF MS. NIRJA BHATIA, SPECIAL JUDGE
   (PC ACT) CBI­03, ROUSE AVENUE DISTRICT COURTS,
                      NEW DELHI.


CNR NO. DLCT11­001164/2019
Registration/CC No. 301/2019
RC. No. 4(A)2015
PS: CBI/ACU­VI/New Delhi
U/s : 120­B IPC r/w Sec. 419, , ,  IPC
and Sec 13(2) r/w section 13 (1) (d) of PC Act, 1988

In re:

Central Bureau of Investigation (CBI)

                    Versus

(1)      Badrul Islam                                           (Accused No.1)
         S/o Late Sh. Mohd. Islam
         R/o L­48, Abul Fazal Enclave, Part­I,
         Jamla Nagar, Okhla New Delhi­110025

(2)      Swarn Singh Malhi                                      (Accused No.2)
         S/o Late Sardar Jamar singh
         R/o H.No. 2925, Ground Floor,
         Gali No. 1, Dharmpura,
         Ghandhinagar, Delhi ­110031

(3)      Neeru Kumar Gupta                                      (Accused No. 3)
         Late P.L. Gupta
         R/o G­2/78, Sector­16, Rohini,
         Delhi ­ 110085


CBI Vs. Badrul Islam & Ors.   CC No. 301/19   RC. No. 4(A)/15         Page 1 of 334
 (4)      Smt. Sangeeta Gupta                                    (Accused No.4)
         W/o Sh. Neeru Kumar Gupta,
         R/o G­2/78, Sector­16, Rohini,
         Delhi ­ 110085

(5)      Sh. Nitesh Kumar @ Harmesh Kumar                       (Accused No. 5)
         S/o Late Sh. Hemraj,
         H.No. 89, Block­B, Ward No. 6,
         Village Post, PS Tehsil­Sri Karanpur,
         District Sri Ganganagar, Rajasthan

         Date of institution                                    :    18.12.2015
         Date on which judgment was reserved                    :    30.03.2022
         Date of judgment                                       :    21.04.2022


                                  JUDGMENT

1. The brief facts are summarized herein below for the purpose of analysis and assessment of facts and evidence for arriving at the decision.

2. The accused in this case Badarul Islam (A1) (the then Dy. Director, L&B Department), Swarn Singh Malhi (A2) (the then UDC) are both public servants. Besides them, Neeru Kumar Gupta (A3) (an Advocate by profession), his wife Smt. Sangeeta Gupta (A4) and Nitesh Kumar @ Harmesh Kumar (A5) are the public persons charge­ sheeted and put up for facing the trial.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 2 of 334

3. The prosecution has pressed the charge against the aforementioned accused persons u/s 419/420/468/471 IPC read with Section 13(2) and 13(1)(d) of Prevention of Corruption Act.

4. The charge against the accused persons is framed vide order dated 12.08.2016 by my ld. Predecessor, who had been pleased to observe the factual matrix revealing that as per revenue records, property bearing Khasra No. 1640, 1641, 1642 and 1643 in Village Rangpuri was acquired vide award No. 1958/66­67.

5. The aforementioned land as per revenue record was originally in the name of M/s Punjab Textile Company, Lahore, Delhi and the land owners received the compensation towards acquisition of land.

6. Name of accused Nitesh Kumar S/o Sh. Bed Prakash or the name of Sh.Bed Prakash never existed as recipient of compensation towards acquisition by Land Acquisition Collector (LAC).

7. The Govt. of NCT of Delhi launched a welfare scheme to rehabilitate the agriculturists whose land was acquired by the Government and the Land & Building Department was in process of implementing the said scheme for allotment of alternative plots in lieu of acquired land under "Large Scale Acquisition Development and Disposal of Land in Delhi" announced by the Government of India, Ministry of Home Affairs vide letter no. 37/16/60/Delhi dated 02.05.1967.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 3 of 334

8. In order to implement the aforesaid scheme, Land & Building Department through press advertisement invited applications from land owners whose land was acquired by the government for grant of alternative plots.

9. In response, 131 applications were received in Land & Building Department and separate file was opened by dealing clerk for each application.

10. The number "F­32" indicated that the file pertained to South Zone and the number within the bracket indicated the village name "50A" (in the instant case, denotes to village Rangpuri).

11. As is detailed, the procedure was that the dealing clerk submits the file containing the applications with note containing particulars for seeking orders from Branch Officer i.e. Dy. Director for the issuance of letter to the LAC for verification of the particulars mentioned in the application in prescribed format.

12. On receipt of verification report from LAC, the Dealing Assistant submits report in the said file with noting referring the LAC report for verification by revenue branch of Land & Building Department and on receipt of said file, Patwari, Kanungo, Naib Tehsildar and Tehsildar in the Revenue Branch would cross­check the details received from LAC with the details available in the revenue records and submits their report duly signed by their competent CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 4 of 334 officer in the said file through their dispatch section.

13. On receipt of the said file from the revenue branch, the file was sent to Writ Cell for legal scrutiny by the Law Officer.

14. Thereafter, detailed brief of file is prepared by the dealing clerk and signed by the branch officer for placing the file in the Recommendation Committee Meeting comprising of Secretary­cum­ Commissioner, Joint Secretary, Legal Advisor/Dy. Legal Advisor and Dy. Director of Alternative Branch.

15. After approval by the Joint Secretary a notice of meeting is issued to all the Members of the Committee regarding meeting.

16. After approval of the Committee vide its Minutes, the case is recommended for allotment of plots and recommendation letter is prepared in triplicate with three different colour, one in green colour for DDA, one in yellow colour for applicant and other in pink colour for office copy.

17. The booklets of recommendation letters are serial numbered and kept in the personal custody of the dealing clerk of Alternative Branch and in the instant case, the said booklet bearing serial number 1351 to 1400 was issued to S.S. Malhi (A2).

18. The dealing clerk thereafter prepares the letter of recommendation and in the last column of recommendation letter, the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 5 of 334 Dy. Director of Alternative Branch appended his signatures.

19. It is further revealed that in one of the files in Land & Building Department, copy of Minutes of Meeting dated 03.12.2002 was found in which Badarul Islam (A1) was a Member and it had recommended allotment of alternative plots for 18 cases out of 29 cases placed before the Committee and the said 18 recommendations were inclusive of recommendation for allotment of plot measuring 400 sq. yds in Dwarka, Delhi vide file no.

F.32(50A)/159/89/L&B/ALT in the name of Nitesh Kumar S/o Sh. Bed Prakash against acquisition of 20.09 Bigha land in village Malikpur Kohi @ Rangpuri and the recommendation letter was sent under the signatures of accused Badarul Islam, Dy. Director, Land & Building Department to the Commissioner (Land), DDA.

20. It is further revealed that in pursuance of the public notice issued, 131 applications were received in L&B Department for which files were made from File no. F.32/(50A)/6/89/L&B/ALT to F.32((50A)/136/89/L&B/ALT and there was no file beyond file no. F.32((50A)/136/89/L&B/ALT and file no. F.32(50A)/159/89/ L&B/ ALT fraudulently existed in L&B Department and the said recommendation letter with file no. F.32(50A)/159/89/L&B/ALT bearing serial no. 001354 dated 26.05.2003 in favour of Sh. Nitesh Kumar S/o Sh. Bed Prakash issued after a lapse of about 13 years was fraudulently created by both accused Badarul Islam and S.S. Malhi CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 6 of 334 while being posted and functioning as Dy. Director and UDC in L&B Department.

21. The DDA processed the recommendation letter No. F.32(50A)/159/89/L&B/ALT dated 26.05.2003 by including the said case in Draw of plots held on 26.05.2004 for allotment of alternative plots for Dwarka, Narela and Rohini and in the said draw conducted vide programme No. LSB(R)D00059, Serial No.4, Nitesh Kumar S/o Sh. Bed Prakash had been allotted plot measuring 333.600 sq. meters in Dwarka.

22. Thereafter, Demand-cum­Allotment Letter No. F.27 (16)/ 2003/LSB(R)/7110 dated 29/30.06.2004 was sent by speed post addressed to Nitesh Kumar S/o Sh.Bed Prakash R/o Lohia Nagar, Ghaziabad, UP, however, the said letter was returned undelivered by the Postal Department mentioning therein on the reverse of envelope that the address was not complete. Thereafter, a letter was sent to L&B Department for confirmation of address of Nitesh Kumar, however, no reply was received.

23. Thereafter, Nitesh Kumar himself submitted an application in the office of AD, LSB(R), DDA enclosing therewith affidavit, undertaking, photocopy of voter I­card, form­60 and three blank challans.

24. All the three challans were deposited through three banker's CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 7 of 334 cheques i.e. banker's cheque no.997750 dated 06.07.2004 for Rs.7 Lakhs, banker's cheque no. 997809 dated 08.07.2004 for Rs.1 Lakh and banker's cheque no.997794 dated 07.07.2004 for Rs.7.89 Lakhs. These were issued from two separate saving bank account nos. 07SB11066820 (Old)/114001000015370 in the name of accused Neeru Kumar Gupta and account no.07SB11066821(old)/ 114001000015380 in the name of accused Sangeeta Gupta w/o Neeru Kumar Gupta.

25. Accused Nitesh Kumar vide his application submitted to DDA gave his address as 16, Gali No.5, VPO Lohia Nagar, District Ghaziabad, UP. On 20.07.2004, Sh. Suresh Chand Kaushik, the then UDC processed the said communication on 20.07.2004 to get confirmation of the challans as well as outstanding dues, if any, against the allottee which was got confirmed on 26.07.2004.

26. On receipt of confirmation, vide letter no.

F.27(16)/2003/LSB(R)/8185 dated 02.08.2004, a letter was issued to Nitesh Kumar for taking over the possession of plot No.66, Pocket­ 10, Block­B, Sector­13, measuring 333.60 sq. mtr. in Dwarka Residential Scheme by 26.08.2004 and thereafter, on 21.09.2004, lease deed was executed and witnesses to the lease deed were Shahid and Budh Prakash, both private labourers working in private office situated near DDA office. Copy of voter ID used in the transaction as address/ID proof of Nitesh Kumar was fake and the witnesses namely CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 8 of 334 Shahid and Budh Prakash were stock witnesses, who used to put their signatures without knowing identity of persons by collecting payment of Rs.100/­.

27. It is revealed further that on the same day i.e. 21.09.2004, the property was sold by Nitesh Kumar to Smt. Sudesh Madan (50% share), Smt. Ramesh Kumar (25% share) and Smt. Monika (25% share) and the said deed was registered in the office of Sub­Registrar, Janakpuri and one of the witnesses to the sale transaction was Megh Raj, employee of Pramod Garg.

28. It is alleged that the real identity of Nitesh Kumar as Harmesh Kumar was established during investigation. During search at his residence at Sri Ganganagar, Rajasthan, original voter ID card, copy of Aadhar card, driving licence, ration card, gas connection etc. showing photographs of Harmesh Kumar @ Nitesh Kumar were seized. The ration card also showed name of his wife as Smt. Hamita Rani.

29. It is revealed that during the search of residential house of accused N.K. Gupta, office copy of recommendation letter No.F.32(50­A)/157/89­L&B/ALT was recovered which should have been on record.

30. Further, during residential search of accused N.K. Gupta, decree regarding dissolution of marriage between Ms. Mamta and Sh.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 9 of 334

Mahesh Kumar Gupta brother of accused N.K. Gupta was found, wherein both accused N.K.Gupta and accused S.S. Malhi are signatories to the statement under oath. During the said search, photocopy of fake ration card in the name of Rajinder Kumar S/o Sh. Prahlad Kishan was also found. Recovery of the said three documents further establishes the extent of closeness between these accused persons.

31. In view of the afore­said, as observed above, all the accused persons were charged for the offences under Sections 419/420/468/471 IPC read with Section 120B IPC. Besides, the accused were also charge­sheeted for the offences u/s 13(2) r/w Section 13(1)(d) of PC Act, for which they did not plead guilt and claimed trial.

32. Thereafter, the matter was put for prosecution evidence.

33. Prosecution, in all, examined 63 witnesses. Gist of their evidence is reproduced herein below :

34. PW­1 Sh. Bhupal Singh deposed in the year 2004 he was working as Assistant Director. He identified DDA file No. F.27(16)2003/LSB(R) (D­13) which he then exhibited as Ex.PW1/A. He identified the noting pertaining to draw of allotment of alternative plots in various categories and residential areas held on 26.05.2004 which was held in presence of two independent judges and was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 10 of 334 confirmed by Vice Chairman, DDA on 08.06.2004 in a separate file No.F.1(14)/2004/LSB(R)/DDA.

35. The draw was held vide programme no. LSB(R) D00059 vide which a plot measuring 400 sq. yards bearing No.66, Pocket­10, Block­B, Sector­13, (measuring 333.33 sq. mtrs.) in Dwarka Residential Scheme was allotted to A5 Sh. Nitesh Kumar. The confirmation note bearing signatures of witness and of Sh. Mohan Lal, Programme Assistant and Sh. S. C. Kaushik, Dealing Assistant were was then exhibited as Ex.PW1/B.

36. He detailed that a note dated 29.06.2004 was put up by Dealing Assistant, Sh. S.C. Kaushik alongwith demand letter in favour of Nitesh Kumar for approval of Deputy Director which he then exhibited as Ex.PW1/C. The demand letter was signed by Sh. Sanjeev Kumar, the then Dy. Director (LA) on 30.06.2004 and letter No.F.27(16)2003/LSB(R)/7110 dated 30.06.2004 was sent along with file to dispatcher. The demand­cum­allotment letter was exhibited as Ex.PW1/D.

37. He detailed that while the letter was sent to the allottee Nitesh Kumar a copy was retained on record, one copy was also sent to Joint Secretary, L&B Department with reference to their recommendation letter No.32(50A)159/89/L&B/Alt/3088 dated 26.05.2003.

38. He then exhibited the letter dated 'nil' received in Central CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 11 of 334 Diary Counter of Vikas Sadan vide Diary No. 36107 dated 13.07.2004 was received in LSB Office on 16.07.2004 vide Diary No. 152/16.07.2004 of Sh. Nitesh Kumar vide which he submitted the documents such as undertaking of his being bachelor, affidavit, form­ 60 etc. which were mentioned in the letter and was exhibited as Ex.PW1/E.

39. The three bank challans enclosed with the letter amounting to Rs,7,89,000/­, Rs. 7 lakh and Rs. 1 lakh respectively were collectively exhibited as Ex.PW1/F. Affidavit was exhibited as Ex.PW1/G, undertaking of allottee Nitesh Kumar Ex.PW1/H, Form 60 was Ex.PW1/I and the specimen signatures with photograph was Ex.PW1/J (colly). The photograph was attested by a Notary Public. The photocopy of the Voter Card bearing signatures of Nitesh Kumar were exhibited as Ex.PW1/K.

40. He detailed that letter dated 'nil' received in LSB on 16.07.2004 Ex.PW1/E was marked to him on 22.07.2004 whereafter he forwarded the file to AAO (Billing­1) for verification of bank challans which was verified by AAO on 26.07.2004 and forwarded the verification to DD (L&A) Sh. Sanjeev Kumar who then marked the file to him on 27.07.2004. He then identified his noting of receipt on note sheet page 9/N at point A and exhibited as Ex.PW1/L (colly). It was detailed that DA had put up the file for issuing the possession CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 12 of 334 letter which noting was exhibited as Ex.PW1/M as it was approved by Deputy Director, LA. The possession letter was then dispatched to allottee on 02.08.2004 at address R/o 16, Gali No. 5, Lohiya Nagar, Ghaziabad, UP under signatures of Deputy Director Sh. Sanjeev Kumar whereafter it was exhibited as Ex.PW1/N. The copy of the same was sent to Director Planning, Joint Director, Survey, Dwarka, Assessor and Collector of Assessment and Collection Department, MCD. He detailed that as per the aforesaid letter possession was to be handed over uptill 26.08.2004.

41. He then identified the letter dated 20.08.2004 which was marked by Deputy Director, Sh. Sanjeev Kumar to him on 24.08.2004 and was received by him on 26.08.2004 and information of the fact of allottee having been taken the possession on 10.08.2004 whereafter the letter was exhibited as Ex.PW1/L. (It is observed that the witness has also exhibited in the documents file as Ex.PW1/L apparently due to inadvertence duplicate exhibited number was put on the noting whereas in the statement there is an error of omission as it is not finding mention therein).

42. He detailed that vide noting page 10/N of F.27(16)2003/LSB (R) of Deputy Director, LA the issuance of possession letter was approved. (Handing over of possession dated 10.08.2004 (is also inadvertently exhibited as Ex.PW1/M which is again exhibited as CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 13 of 334 Ex.PW11/D by witness namely PW­11 Sh. Raj Kumar Rakheja who handed over the possession of allottee on the spot.

43. Witness detailed that vide another letter dated 'nil', allottee Nitesh Kumar requested for release of lease papers which letter was exhibited as Ex.PW1/N (it appears that due to inadvertence wrong exhibit number is mentioned as letter dated 02.08.2004 of Deputy Director, LA is already exhibited as Ex.PW1/N in the documents filed collectively exhibited as Ex.PW1/A)

44. Vide note Ex.PW11/N of DDA in file no.

F.27(16)2003/LSB(R) the Dealing Assistant intimated about the preparation of six copies of perpetual lease deed of which few may be released for allottee for stamping which noting was exhibited as Ex.PW1/P. The allottee was then called vide Ex.PW1/Q letter dated 27.08.2004 /31.08.2004 written by Deputy Director Sh. Sanjeev Kumar calling Nitesh Kumar for collecting the perpetual lease deed for stamping. Vide Ex.PW1/R report of copies of lease deed received duly stamped was intimated by Dealing Assistant Sh. Suresh Chand Kaushik whereafter a noting pertaining to letter of Nitesh Kumar was made on 09.09.2004 regarding execution of lease in favour of Nitesh Kumar and the witness identified having been put up before him through S.C. Kaushik and R. Mohan Lal on 10.09.2004 whereafter the noting was exhibited as Ex.PW1/R. Letter was then issued by him to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 14 of 334 allottee to attend the office on 15.09.2004 for execution of lease deed and he was directed to bring the necessary document which letter was then exhibited as Ex.PW1/S. Witness detailed that Nitesh Kumar appeared on 21.09.2004 and requested for execution of lease deed on the same day which as per his request was executed on the same day by him in presence of two DDA witnesses namely Smt. Krishna Setia, UDC and Sh. Tej Pal Singh, UDC and two witnesses brought by allottee namely Sh. Sahil and Sh. Budh Prakash where he identified the lease deed which was already exhibited as Ex.PW25/B. Copy of lease deed was then handed over to allotee Nitesh Kumar whereafter the file was sent to AAO against noting Ex.PW1/T. The file was then sent to record room by Programme Assistant vide noting Ex.PW1/U.

45. He was cross­examined by Sh. Javed Akhtar,ld. Counsel for S.S. Malhi (A2), Neeru Kumar Gupta (A3) and Sangeeta Gupta (A4), wherein, he stated that he cannot say as to who has removed the portion encircled X on Ex.PW1/J (D­13). He volunteered that it was the practice at that time to cut the signature and paste the same on possession letter when the said possession letter was sent to the allottee. He admitted that the lease document was brought to him after the cost of the plot was paid as per demand of DDA. He also admitted that if the amount as per demand of DDA was not received the lease deed could not be executed. He volunteered that they used to take undertaking from the allottee to pay the difference amount CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 15 of 334 subsequently,if any.

46. He was then specifically put a question, which is reproduced in the following words : "I suggest to you that whatever amount was demanded by the DDA for the cost of plot, the same was paid by allottee in this case and no loss has occurred in this case to anyone", to which he replied in the following words : "It is correct to suggest that before execution of lease deed in favour of allottee he had already paid the cost amount of the plot and no loss have occurred to DDA. He was not cross­examined by rest of the accused.

47. PW­2 Sh. Sunil Malhotra, Chief Manager, Punjab National Bank witnessed on 23.10.2015 the collecting of specimen signatures/initials/writings of accused Badrul Islam, which were given by accused voluntarily in his presence. In cross­examination, nothing material came out.

48. PW­3 Sh. Chhatarpal, Assistant Director, Lease Administration Branch/Residential Branch, DDA exhibited the original file bearing No. F.1(14)2004/LSB(R) captioned as "Confirmation of Draw of Narela/Rohini/Dwarka held on 26.05.2004" as Ex.PW3/A (colly) vide which Sh. Nitesh Kumar had been allotted 333.60 sq. mtrs. of plot No.66, Sector­13, Pocket­10, Block­B, Dwarka vide Dwarka Programme No. SLB(R)­D­00059, 400 sq. yds. which result was confirmed by Vice Chairman on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 16 of 334 08.06.2004. The letter of Sh. Binder Kumar through which IO collected the documents was then exhibited as Ex.PW3/B.

49. PW­4 Sh. Kamal Kumar Sharma, Retired Assistant Director, DDA was posted as Programme Assistant w.e.f. 2003 to October, 2003 while Sh. Suresh Chand Kaushik UDC was Dealing Assistant, Sh. S.N. Gupta was Assistant Director and Sh. K.D. Reddy was Deputy Director of LSB Residential.

50. He exhibited the Recommendation Letter issued in favour of Sh. Nitesh Kumar by Alt. Branch bearing no. F.32(50A)/159/89­ L&B/ALT3088 dated 26.05.2003 as Ex.PW4/A. This letter was received in DDA on 26.05.2003 vide diary no.14282 in Central Diary Section, Vikas Sadan whereafter the letter was received in Commissioner Office vide diary no. 5454 dated 27.05.03 and in director office as on same day i.e. 27.05.2003 vide diary no. 2026 and was received in L&B (R) vide diary no. 23­R/45­11 dated 28.05.2003. The letter was endorsed by Deputy Director , KD Reddy to Sh. Ranvir Singh, AD on 28.05.2003 which was further endorsed to S.C.Kaushik on 30.05.2004. On receipt of recommendation letter F.32(50A)/159/89­L&B/ALT/3088 dated 26.05.2003, a file bearing no. F.27(16) 2003/LSB Residential was opened in LSB (R) by Sh. S.C. Kaushik, the then DA (Dealing Assistant). The letter found mention "in lieu of his acquired land bearing Khasra No.1640 (6­3), CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 17 of 334 1641 (5­14), 1642 (5­3) and 1643 (3­9), total measuring 20.09 bigha in which applicant's share was half 10­4 ½ bighas which was acquired vide award no.1958/66­67 dated 23.03.1967 of Village Rangpuri, Delhi in South Zone as he was found entitled for the same."

51. He then detailed that an application was received from Sh. Nitesh Kumar for inclusion of his name in draw of plots which was diarized at the office of Deputy Director LAB(R) vide diary no.4536 dated 29.05.2003 and received by dealing assistant on 03.05.2003. The allottee had moved an undated application for inclusion of his name in draw of lots (which application is Ex.PW20/A).

52. The draw was held already Sh. Suresh Chand Kaushik proposed on 30.05.2003 for keeping it pending till the next draw which was approved and sent to allottee vide Ex.PW4/B i.e. carbon copy of letter dated 18.06.2003 bearing signatures of Sh. S.N. Gupta. (the letter dated 18.06.2003 bearing signatures of S.N. Gupta is then again marked as Ex.PW4/C). However, the letter was returned back undelivered vide Ex.PW4/D with remarks "address incomplete, returned for complete address". The envelop of spped post is exhibited as Ex.PW4/D.

53. After the above information, he proposed a note on 04.07.2003 which was approved by Sh. K.D. Reddy as "we may keep the file pending till the other reference received from the allottee or CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 18 of 334 issue letter to L&B Development, NCT of Delhi to intimate correct address of recommendee". On the above, Deputy Director (LA) vide his order dated 11.07.2003 ordered to "send a letter to L&B Department to confirm the address".

54. The letter bearing no.27(16)/2003/LAB(R)/DDA/7240 dated 29.07.2003 was then sent as per direction of Dy. Director (LA) to DD (Alt) L&B Department, Vikas Sadan, New Delhi, for confirmation of address and was exhibited as Ex.PW4/E. However, no report was received from L&B Branch, Govt. of NCT of Delhi.

55. In his cross examination by counsel for A­2 to A­4 he stated that letter Ex.PW4/A was not received by him personally, however, it was received in the Central Diary of DDA. He had not verified from L&B Department regarding the genuineness of letter Ex.PW4/A prior to creation of the file Ex.PW1/A as the same was not the policy of the DDA. He was the only programme assistant during the year 2003 in DDA.

56. He was then cross­examined by Sh. Chander Maini, ld. Counsel for accused Badrul Islam wherein, he detailed the hierarchy above him and stated that all officers above him scrutinize the documents and thereafter put their initials on the letters before marking to the next officer below. He then volunteered that notings are made only when a new file is created by Dealing Assistant for the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 19 of 334 particular letter. He further stated that during his tenure in LSB(R), 10­15 recommendation letters were received from L&B to the DDA, wherein, the same procedure was followed. He detailed that the department did not allot land for all the recommendations, though, none of the recommendation was rejected as such. Those which were received after draw of lot were not allotted in draw during his tenure. The recommendation which came after draw of lots were included in the seniority list and were put up before higher authorities pending next draw of lots.

57. It was not within their policy to carry out verification of the recommendation letters. Their Department only allotted land on the basis of recommendation letter of L&B after conducting draw of lots and allotment letter was issued by their department to the Joint Director, L&B in reference to the particular recommendation letter sent by them.

58. He was then further cross­examined by Sh. H.S. Gill, ld. Counsel for accused Nitesh Kumar, wherein, he stated that the documents relating to acquisition of land and payment of compensation would be with L&B Department, GNCT of Delhi. The allotment of land was in pursuance to recommendation letter of L&B Department. The records relating to the recommendation would probably with the L&B Department. He was then put the recommendation letter Ex.PW4/A and was asked to detail his version, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 20 of 334 on which, he replied that he could not tell about the signatures of Sh. Nitesh Kumar on the aforementioned exhibit as it was not prepared in his presence and/or their Department.

59. He then stated that after allotment of land on the basis of recommendation letter, they sent allotment letter to the allottee on the address mentioned in the recommendation letter by speed post and a copy of the same is also sent to L&B Department.

60. PW­5 Smt. Sheela Devi had joined as LDC and was posted in L&B Department in March, 2003. In the month of June, 2003 accused Badrul Islam, Officer in L&B Department directed her to take charge of large number of files from Sh. S.S. Malhi, on which, she requested Badrul Islam to get the charge handed over to someone else as it was not possible for her to deal with the files, as she was not conversant with English language. She was posted in L&M Branch, though she had no knowledge of full form of letters "L" & "M". She stated that Sh. S.S. Malhi was used to sit in separate room and the files of his seat were being given by him only. She was not given any list of files which were handed over to her. One letter of handing over/taking over was given to her, which she signed. She kept the files received by her in almirah, however she did not go through the contents as she was not conversant with English language and was unable to understand the same. The key of the almirah was kept with her and she did not open the almirah. It took about 15­16 days in CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 21 of 334 taking the charge of files and thereafter, after 1 / 1½ half months on the asking of Badrul Islam, she handed over the key of the almirah and charge of files to Sh. Satbir Singh. She was not given any work related to those files which were given to her by S.S. Malhi. No administrative order was issued for her for working in alternative section except the order of Badrul Islam to take charge of files from accused S.S. Malhi at that time. She identified both accused Badrul Islam and S.S. Malhi, who were present before the Court on the date of her deposition.

61. She then deposed that the charge report of S.S. Malhi dated 30.06.2003 in L&B Department was not signed by her and her signatures were forged at point A, as she did not sign in initials and writes her full name "Sheela Devi" as her signatures. The charge report / list of files was then exhibited as Ex.PW5/A.

62. She was then cross­examined Sh. Chander Maini, ld. Counsel for A1 Badrul Islam, in which, she stated that CBI officials called her to their office for recording the statement which was recorded in English language and that thereafter it was read over to her. She was asked to produce handing/taking over memo.

63. She was given the suggestion that the work pertaining to charge of L&M branch was entrusted to her by accused Badrul Islam being part and parcel of her official duty and that, she voluntarily CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 22 of 334 accepted the charge. She further denied the suggestion that Ex.PW5/A contained her signatures. It was denied that decision of handing over the charge was taken by senior officers and that, in pursuance of those directions accused Badrul Islam communicated to her, whereafter she volunteered that she was asked by Badrul Islam to take over the charge. She also volunteered that during the period the charge remained with her the key of almirah in which files were kept remained with S.S. Malhi. She was not cross­examined by Sh.H.S. Gill, ld. Counsel for accused Nitesh Kumar despite opportunity.

64. In her cross­examination by Sh. Javed Akhtar,ld. Counsel for S.S. Malhi (A2), Neeru Kumar Gupta (A3) and Sangeeta Gupta (A4), she deposed that there were 830 files for which she had taken the charge from accused S.S. Malhi. It took 15­20 days to take charge. She volunteered that accused S.S. Malhi was doing other work in the meantime but she was not aware on whose instructions he was doing other official work. After handing over the charge to Sh. Satbir Singh, she was called by L&B Department telephonically. She contemplated that she was called by the person who replaced Badrul Islam as she was not able to remember exactly who had called her on the telephone wherein she was asked to detail about having any document of handing over the charge to Sh. Satbir Singh. She stated that while handing over the charge she did not prepare the list or handing and taking over memo and volunteered that she had given in writing in CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 23 of 334 Hindi to Badrul Islam of handing over charge and also stated that verbally also, whereafter, she was asked to produce the letter on the next date.

65. She stated that she had not given charge of separate files to Sh. Satbir Singh and handed over the key of almirah in a bunch to him.

66. She was recalled for further cross­examination on 12.04.2017 on which date, she had brought copy of intimation dated 18.08.2003 given to Deputy Director, Alternative, L&B Department, Vikas Sadan regarding handing over of the charge by her to Sh. Satbir Singh bearing her signatures at point B which was then exhibited as Ex.PW5/DA (OSR). She deposed that portion A to A1 on Ex.PW5/DA was not written by her when she had filed her intimation on 18.08.2003. She volunteered that portion A to A1 was written by Sh. Satbir Singh and was bearing his signatures at point A. She detailed that Sh. Satbir Singh signed in her presence.

67. She detailed no separate document regarding handing over the key and files on 05.08.2003 was made between her and Sh. Satbir Singh. She had handed over the charge in a single day by handing over key to Sh. Satbir Singh and he was asked to verify the files and contact the witness if something was missed, whereafter, Sh. Satbir Singh informed her about five missing files which she had written CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 24 of 334 down in portion A to A1 on Ex.PW5/DA. She than searched out the mentioned five files from point A to A1 and handed them over to Sh. Satbir Singh. She had seen original handing over memo prepared by Sh. S.S. Malhi when she took the charge from him. It was on a single page and did not list 850 files separately. She had signed the said document, however the document was in English which language she was not versed with.

68. She then stated that her signatures are the same as appeared at point B on Ex.PW5/DA as she normally signed with full name, however, puts her initials on attendance register. At that stage, she was asked to provide the sample of her signatures which was then exhibited as Ex.PW8/DB. (It is observed that inadvertently it appears that the number of RC No. 17/15 is put where Sheela Devi was being examined as PW­8). She was then put page 46 of document D­60 which was described as "receipt and issue of recommendation forms alternative plot (South Zone) serial no. 1 to 88", whereafter she stated that initials at point A on page 46 of D­60 were not of her and not in her handwriting, whereafter, D­60 was exhibited as Ex.PW8/DC.

69. A note then was inserted by ld. Predecessor that the bracketed portion has been recorded in CC No.17/2015 and the original of Ex.PW8/DC (colly) was in the file of that case and photocopy of page 46 of this exhibit has been kept on record in this case. It was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 25 of 334 also recorded that however the document is marked as Ex.PW5/DC for this case, whereafter the witness denied the suggestion that she only had signed/initialed at point A on page 46 of Ex.PW5/DC and Ex.PW5/A despite which she had, denied her signatures.

70. PW­6 Hem Raj was posted as Naib Tehsildar in the office of LAC/DC, on being authorized by ADM, LAC to furnish the required documents to CBI, he had furnished the documents to IO vide seizure memo Ex.PW6/A CBI had seized a letter dated 17.08.2015 written by Sh. Vivek Kumar Tripathi, ADM, LAC, Jam Nagar House, New Delhi, certified copy of statement showing compensation / payment details pertaining to Award No.1958 (1966­67) of Village Rangpuri and certified copy of Award No.1958 for land measuring 1571 bigas 3 biswa situated in village Malikpur Kohi @ Rangpuri. He identified the signatures of Sh.Vivek Kumar Tripathi on letter (status report of Khasra No. 1640, 1641, 1642 and 1643 of village Malikpur Kohi, Rangpuri) dated 17.08.2015 at point A having seen him signing during course of his employment, which was then exhibited as Ex.PW6/B.

71. The certified copy of statement of showing compensation pertaining to Award No.1958 bearing his signatures and rubber stamp of Land Acquisition Branch at point A on each page, which was then exhibited as Ex.PW6/C. Certified copy of the Award which was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 26 of 334 bearing his signatures at point A was then exhibited as Ex.PW6/D.

72. The witness was unaware whether Land & Building Department made inquiry from them before allotting alternate plots to the land owners whose land is acquired, however, Land & Building Department asked for copy of Award and payment details to the land owners whose land had been acquired from LAC for that purpose. He was then shown the document given by him to the CBI, whereafter he stated that no compensation was awarded to Sh. Nitesh Kumar s/o Sh. Bed Prakash r/o Lohiya Nagar, Ghaziabad, U.P., or in favour of Sh. Bed Prakash for acquisition of land vide Award No.1958/66­67 of village Rangpuri (Malikpur Kohi) for Khasra No.1640(6­03), 1641 (5­14), 1642 (5­3) and 1643 (3­9) total measuring 20 Bigha 9 Biswa. He stated that no letter was received from Land & Building Department in the office of LAC regarding allottment1 of alternative plots in respect of above­mentioned land measuring 20 Bigha and 9 biswa.

73. He was then cross­examined by Sh. Chander Maini, ld. counsel for accused Badrul Islam, wherein, he stated that certified copy of award and payment is part of record maintained by him. He then volunteered that copy of award is also uploaded on the Website and the exhibited document is taken from there. He denied the suggestion that his Department had not given all requisited documents available with it and intentionally the documents pertaining to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 27 of 334 compensation to Sh. Nitesh Kumar had not been handed over to the investigating agency.

74. He then was cross­examined by Sh. Javed Akhtar, ld. Counsel for accused S. S. Malhi, Neeru Kumar Gupta and Ms. Sangeeta Gupta. However, nothing material was received as in response to the court questions, witness replied that as per revenue record, the name of LR is not mentioned, where the name of owner is recorded. He was not cross­examined by ld. Counsel for accused Nitesh Kumar.

75. PW­7 Sh. Parvinder Tomar was posted as Patwari, Tehsil Vasant Vihar, office of SDM, Old Terminal Tax Building, Kapashera, New Delhi. He exhibited Production cum receipt memo dated 29.07.2015 as Ex.PW7/A bearing his signatures at point A. He then exhibited letter dated 28.07.2015 as Ex.PW7/B of Dr. Sonal Swaroop, whose signatures he identified and through which record of jamabandi and khatuni was directed to be handed over.

76. He exhibited the record pertaining to Jamabandi of village Rangpuri for the year 1976­77 and 1980­81 containing Khasra No.1628 to 1656 which included Khasra No.1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9) showing ownership in the name of 'Sarkar Daulat Madar Majkoor'). The record was bearing his signatures on each page at point A and the two Jamabandis for the year 1976­77 and 1980­81 of Kh. No.1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­ CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 28 of 334

9) were then exhibited as Ex.PW7/C (colly). He explained that the expression 'Sarkar Daulat Madar Majkoor' means that the ownership of the land is with the government.

77. He was then cross­examined by Sh. Chander M. Maini, ld. Counsel for accused Badrul Islam. He had taken the original Jamabandis to CBI and had given them attested copies as mentioned in his examination­in­chief. He affirmed that the expression "Sarkar Daulat Madar Majkoor" means that ownership of the land vest with the government.

78. He then was cross­examined by Sh. Javed Akhtar, ld. Counsel for accused S. S. Malhi, Neeru Kumar Gupta and Ms. Sangeeta Gupta and was asked about the knowledge of Udru language, in response to which, he stated that he was aware of Udru language partially. He denied that ownership of land is written in Urdu and stated that expression 'Sarkar Daulat Madar Majkoor', is in Hindi, whereafter he was shown Jamabandi of the year 1976­77, which was partially in Urdu and expression 'Sarkar Daulat Madar Majkoor' was in Urdu, to which he replied that he could not say what was written in Urdu above the said expression, however, at the time of preparation of Jamabandi, name of owner of land was written as per records. Jamabandi produced was not in his own handwriting nor was signed by the witness, Tehsildar or Field Kanoongo on the same day. He had signed the same on 27.07.2015, whereas Field Kanoongo and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 29 of 334 Tehsildar verified the same on 28.07.2015. Contrary suggestions were denied.

79. PW­8 Sh. Ganga Sahai Meena, Kanoongo / Record Keeper in office of SDM, Old Tehsil Bldg, Mehrauli, New Delhi had produced the record of Khatoni for the year 1964­65 Khata No.177 (number of pages 34) and Khata no. 185 (number of pages 2), Khatoni for the year 1968­69 Khata No.186/177 (number of pages 26) and Khata no.196/ 185 Village Rangpuri, New Delhi (two pages only with Hindi translation). The copy of khatuni in Hindi and order provided by SDM Sh. Mukesh Rajna under cover of lettr dated 14.10.2015 was then exhibied on Ex.PW5/A. The certified copies of Khatonis contained his signatures as well as Rubber Stamp at point A on each page. He affirmed that Khasra number 1640, 1641, 1642 and 1643 were part of the abovesaid Khata number.

80. He detailed that in the year in the year 1964­65, the ownership of Khasra number 1640, 1641, 1642 and 1643, Khatani / Khata No.177 & 185, Khasra Nos. 1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9) was with Punjab Textile Company Ltd., Lahore Delhi Branch. He further detailed that as per records of 1968­1969, ownership of Khata Khatoni number referred above was transferred to the Government as the land was acquired by LAC vide Award no.1958 dt. 23.03.1967 from Punjab Textile Co. Ltd., Lahore, Delhi CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 30 of 334 Branch. The note at point D on Ex.PW8/A showed the transfer of ownership of the property from time to time. The translation from Urdu to Hindi was carried by Sh. Rati Ram, Retd. Naib Tehsildar as he had knowledge of Urdu and Hindi and he worked in Revenue Department, Delhi Administration. The land in Khasra nos.1640, 1641, 1642 and 1643 was never in the name of Sh. Nitesh Kumar or his father Sh. Bed Prakash as per the document exhibited as Ex.PW8/A.

81. In his cross­examination by Sh.Chander Maini, ld. Counsel for accused Badrul Islam, he detailed that he is not conversant with Urdu language. Sh. Rati Ram was requested by his senior/SDM and Tehsildar for translating the documents. The documents to be translated were given to Sh. Rati Ram in presence of the witness. The suggestion that the documents translated from Urdu to Hindi was act of fabrication and concoction on the part of investigating agency was denied.

82. Sh. Zubair, ld. Counsel for accused S. S. Malhi, Neeru Kumar Gupta and Ms. Sangeeta Gupta adopted the cross­examination above.

83. Sh. Ranvijay Kumar, ld. Counsel for accused Nitesh Kumar then conducted cross­examination, wherein, the witness detailed that the land had vested in the Gram Sabha in the year 1973 as is evident from Note at point B on Ex.PW8/A. He detailed that the record was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 31 of 334 sent to Urdu Academy for translation but as the matter was getting delayed, Sh.Rati Ram was requested for translation. No further material could be elucidated from his cross­examination.

84. PW­9 Sh. Rati Ram joined as Patwari in Delhi Administration in March, 1967 and had retired in the year 2003 as Head Clerk. He had worked as Patwari, Kanoongo and then Naib Tehsildar. He knew four languages namely Urdu, Hindi, Punjabi and English. He could Tanslate Urdu documents pertaining to revenue department i.e. Jamabandi, Katha, Khasra, Khatoni etc, as he had worked in revenue for about 35 years. He was shown Ex.PW8/A (colly) on which he responded that documents pertaining to Khatoni for the year 1964­65, Khata no. 177 (34 Pages) and Khata No. 185(2 pages), Khatoni for the year 1968­69. Khata No. 186/177 (26 pages) and Khata no. 196/185 (2 pages) pertaining to Khasra no. 1640, 1641, 1642 and 1643 of village Rangpuri were translated by him in Hindi on 09.10.2015 on the request of office of SDM, Mehrauli. He signed on each page of the translated copy at point A, which was part of Ex.PW8/A (colly). As per his knowledge, the translation was correct.

85. He was then shown document regarding Khasra no. 1640(6­3), 1641(5­14), 1642(5­3) & 1643 (3­9) in the year 1964­65 prior to award no. 1958 dated 20.03.1987. As per the record shown to him, the ownership over this property was with Punjab Textile Company Ltd., CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 32 of 334 Lahore, Delhi Branch. He stated that after passing of the award, the ownership vested in Gaon Sabha as on 03.01.1975. On the basis of document shown to him Ex.PW8/A (colly), the land was never in the name of Nitesh Kumar or his father Sh. Bed Prakesh.

86. He was not cross­examined by Sh. Chander Maini, ld. Counsel for A­1 Badrul Islam. However, he was cross­examined by Sh. Javed Aktar, ld. Counsel for S.S. Malhi (A2), Sangeeta Gupta (A3) and N.K. Gupta (4), wherein he stated that he learned Urdu while working in Department while dealing with documents in Urdu in the Department. He stated that he was called by the office Kanoongo Sh. Ganga Sahai Meena verbally for translation. The translation work took him about 2­3 days as he took them to his house for the translation, whereafter it was returned. He detailed that he had taken only photocopy documents for translation. He was then again shown Ex.PW8/A (colly) and in cross­examination, he reaffirmed that he had translated the documents after perusal of Ex.PW8/A (colly). He detailed that the noting in Hindi language marked at point B was not in his handwriting and he was not aware who had written the noting in Hindi language. The translation was given in handwritten from and was not typed. The contrary suggestions were denied.

87. He was cross­examined by Sh. Ranvijay Kumar, ld. Coucnsel CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 33 of 334 for A­5, however, nothing contradictory could be received.

88. PW­10 Sh. Bijender Tyagi, Postman stated that he was posted in the year 2004­05 in Navyug Market, Head Post Office, Ghaziabad. He identified white envelop registered letter No.RD­ 485670035­IN in the name of Sh. Nitesh Kumar s/o Sh. Bed Prakash r/o H. No.16, Gali no.5, VPO Lohiya Nagar, Ghaziabad U.P., and detailed that this letter was given to him for delivery to the addressee. The letter contained his signatures at point A and was then exhibited as Ex.PW10/A. He detailed that the letter could not be delivered to the addressee as the address was incomplete. In a GDA Colony, there is no Gali and there are blocks in the said colony. In the absence of a block, the letter could not be delivered. He had written on the envelope in Hindi "Adavi", which means "unclaimed". He had made this note on 12.09.2015 and since the address was incomplete / non existent, the letter could not be served. He was not cross­examined by Sh. Chander Maini, ld. Counsel for accused Badrul Islam. He was not cross examined by Javed Akhtar, ld. Counsel for accused S. S. Malhi, Neeru Kumar Gupta and Ms. Sangeeta Gupta.

89. Sh. Ranvijay, ld. Counsel for Sh. Nitesh Kumar cross­ examined the witness, in which, he has stated that he remained posted in the area for the last ten years and that, the address mentioned on the envelope did not exist in the colony due to which he made remark "Adavi".

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 34 of 334

90. PW­11 Sh. Raj Kumar retired Asstt. Director, Survey (Planning), DDA, Dwarka, Delhi. He was posted in Dwarka Project, DDA as Asstt. Director (Survey), Planning in 2004. He identified copy of letter dated 02.08.2004, which was regarding handing over of possession of plot no. 66, Pocket­10, Block­B, Sector­13, measuring 333.60 sq. mtrs. in Dwarka Residential Scheme, which letter he exhibited as Ex.PW11/A.

91. The letter was received by Dy. Director Sh. C.P. Sharma on 05.08.2004 whose signature was identified by him at point A. He then identified noting of Sh. C.P.Sharma at point B to B as 'please do the needful' which then was marked to Rajbir Singh Rose, Surveyor by him for site report. witness for site report.

92. He then identified site verification report for possession of residential plot, on which he identified signatures of Sh. Rajvir Singh Rose, Surveyor at point A and the same were then exhibited as Ex.PW11/B (colly).

93. File no. F­12(1439)/04/Plg/Dwarka on the subject of possession of plot no.66, Pocket­10, Block­B, Sector­13, Dwarka was exhibited as Ex.PW11/C (colly). He was then shown original copy of possession letter dated 10.08.2004 (Lease Section copy) issued vide file no. F­12(1439)/04/Plg/Dwarka regarding giving possession of plot no.66, Pocket­10, Block­B, Sector­13, Dwarka, which was then CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 35 of 334 exhibited as Ex.PW11/D. Vide this letter, possession was given to Nitesh Kumar, which letter was bearing the signatures of Nitesh Kumar at point A. He identified the signatures of Nitesh Kumar as he had signed in his presence. He also identified his own signatures and rubber stamp of his office at point B.

94. He stated that Ex.PW11/D was issued to Nitesh Kumar after matching his signatures and photographs on letter dated 02.08.2004 (Ex.PW11/A) and he had also verified the photocopy of ID proof with the original and signatures of Nitesh Kumar were also taken on the photocopy of his ID and the same was then exhibited as Ex.PW11/E. He identified his signatures on ID proof at point A. The lease plan was exhibited as Ex.PW11/F on which he identified signatures of Sh. B.D. Paliwal at point A, signatures of Sh. R.S. Rose at point B and his own signatures at point C. He detailed that all these documents pertaining to handing over the possession of plot no.66, Pocket­10, Block­B, Sector­13, Phase­II, Dawrka were sent to Dy. Director (LA Residential). He stated that all these documents were marked by him on 18.08.2004 to Sh. C.P. Sharma, the then Joint Director, Survey (Planning), Dwarka. The letter dated 20.08.2004 was exhibited as Ex.PW11/G.

95. He was cross­examined by Sh.Javed Akhtar, ld. Counsel for S.S. Malhi (A2), Neeru Gupta (A3) and Sangeeta Gupta (A4), CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 36 of 334 wherein he admitted as correct that Ex.PW11/F did not contain signatures of lessee, vendee or lessor vendor or lease administration officer and volunteered that these were signed after the file was sent back to the branch from where it was received. He was then shown photocopy of lease plan bearing the signatures of lessee vendee and lease administration officer and he detailed that same was signed by lessee/lease administration officer after the file was sent back from their office. He admitted that Ex.PW11/F was signed by him and was not signed by Nitesh Kumar. He detailed that the file was got signed by lease section after they sent the file to them.

96. He further stated in cross­examination that one copy of possession letter was retained at Dwarka Office and he did not remember that how many copies were sent to the Director.

97. He was not cross­examined by Sh. Chander Maini, ld. Counsel for A­1. He was cross­examined by Sh. Ranvijay Kumar, ld. Counsel for A­5, wherein he stated that Nitesh Kumar had visited his office at the time of possession and remained there for half an hour. He stated that the photo was already pasted on Ex.PW11/A when it came to him. Signatures on the photo were not legible and the signatures of Nitesh were already appended at point B, before the letter came to him. It was denied that signatures of Nitesh Kumar were not original and/or he had not signed the document in presence CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 37 of 334 of the witness. He further admitted that photocopy of ID card of Nitesh Kumar was signed in his presence at points A and B, which was already exhibited as Ex.PW11/E. He stated that only for the reason that date was not mentioned below the signatures, it cannot be said that Nitesh Kumar had not signed on Ex.PW11/A. He stated that the document Ex.PW11/D was collected by Nitesh Kumar from the witness. He admitted that Ex.PW11/F was not given by him to Nitesh Kumar. He denied the suggestion that letter Ex.PW11/D was not given to Nitesh Kumar or it was given to N.K. Gupta. He was confronted with copy of lease plan which was bearing signatures of A­5 in original and was exhibited as Ex.PW11/D­2.

98. PW­12 Sh. Virender Kumar, Postman o/o Sr. Post Master, Head Post Officer, Navyug Market Ghaziabad detailed that he was posted in the year 2003 in Lohiya Nagar area as Postman. He was shown white envelope containing F­27(16)03/L&D(R/5336) having EMS speed post sticker No. EE241831105IN. Witness detailed that this envelope was given to him for delivering it to the addressee, however, it was not delivered as the address was incomplete. He stated that the envelope was bearing remarks written by him 'adhura patta, pure patte ke liye vapas' on 20.06.2003 at point A, which was already Ex.PW4/B. He detailed that the envelope could not be delivered to the addressee as the address was incomplete and no house number was mentioned on the same. After giving his remark, the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 38 of 334 letter was returned undelivered. The speed post receipt the envelope was exhibited as Ex.PW12/A.

99. PW­13 Sh. Ravinder Singh had worked with Bank of Punjab in October 1997 till September 2005. He was shown original relationship form of Bank of Punjab Ltd. of account bearing no.114001000015380 in the name of Ms. Sangeeta Gupta placed in the file Mark M355/2015 (page 5 of the file). He identified his signatures over the account opening form in red ink being authorized signatory for opening of accounts in the said branch during the said period at point A, whereafter account opening form was exhibited as Ex.PW13/A. Account number mentioned above was a new account number. He detailed that earlier account number was SB­11066821, which was changed after merger of the bank. He detailed that applicant Ms.Sangeeta Gupta had signed account opening form in his presence at point A and he identified signatures of Sangeeta Gupta at point B on the specimen signature card.

100. He detailed that nobody introduced the applicant for account opening as at that time accounts were opened on the basis of PAN cad and PAN cad holder were not required to be introduced. He was then shown Form­60 whereafter, he detailed that the applicant had given statement of ICICI credit card, copy of telephone bill in the name of spouse Sh. Neeru Kumar Gupta and copy of conveyance deed in the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 39 of 334 joint name i.e. of herself and of her husband, which all documents were made available to CBI. He also identified the photocopy of voter ID card of accused Neeru Kumar Gupta and MTNL bill in his name, which were given at the time of opening of account and were kept on record, and exhibited as Ex.PW13/C (colly) (the mode of proof was objected to).

101. He identified cheque no. 810880 dated 06.07.2004 for a sum of Rs.7,89,592/­ issued by Smt. Sangeeta Gupta whose signatures he identified at point A. Against said cheque, DD was issued in favour of DDA and the amount was debited from the account of Ms. Sangeeta Gupta on 07.07.2004. The cheque with remittance application of Ms. Sangeeta Gupta was then exhibited as Ex.PW13/D (colly). The account statement of Sangeeta Gupta was then exhibited as Ex.PW13/E.

102. He was then shown cheque no. 809040 dated 06.07.2004 for a sum of Rs.8,00,625/­ issued by Neeeru Kumar Gupta. Three DDs were prepared in favour of DDA, one was for Rs.7 lakh and two for Rs.50,000/­ each. The PO numbers were mentioned on remittance application of Sh. Neeru Kumar Gupta and were 997748, 49 and 50, which amount was debited from his account no. 07SB­11066820 on 06.07.2004. The cheque and three remittance applications were then exhibited as Ex.PW13/F (colly) bearing signatures of Neeru Kumar CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 40 of 334 Gupta at point A on both sides. The statement of account was exhibited as Ex.PW13/G.

103. He was then shown cheque no. 809041 dated 08.07.2004 for a sum of Rs.1,00,075/­ issued by Neeru Kumar Gupta. A DD for a sum of Rs.1,00,000/­ was made in favour of DDA. PO number was mentioned on remittance application of Neeru Kumar Gupta and was 997809 which amount was debited from account 07SB­11066820 of Neeru Kumar Gupta on 08.07.2004. The cheque and remittance applications were then exhibited as Ex.PW13/H (colly) bearing signatures of Neeru Kumar Gupta at point A on both sides. The statement of account was already Ex.PW13/G.

104. He was not cross­examined by ld. Counsel for A1. During his cross­examination by Sh. Javed Akhtar, ld. Counsel for A2 to A4, he detailed in response to question qua signatures of Sangeeta Gupta already being on form before being placed to him, as a process that account opening officers namely Ms. Sapna and Ms. Ruchi first verified the documents enclosed for opening the bank account. He detailed that the final authorization for opening the account used to be given by him. The specimen signature card was also signed by the applicant before him. He admitted it to be correct that he had not processed the issuance of different pay orders requested by account holder as he was not posted with the seat dealing with the Pay Orders.

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He was then shown account opening form of Ms. Sangeeta Gupta only and not of Neeru Kumar Gupta. During cross­examination by Sh. Ranvijay Kumar, ld. Counsel for A­5, nothing material came out on record.

105. PW­14 Sh. Hardayal Singh Kaim posted as Record Keeper Land and Building Department, Central Record Room Branch. He identified letter bearing no. F.5 (56)/2011­L&B/Admn/CRR13090 dated 09.10.2015, ( through which he was authorized by the then Dy. Secretary, Central Record Room Branch to submit the documents with CBI. He had given the documents to investigating officer through Ex.PW14/A. He detailed that the photocopies of the required documents were made from photocopies available in the office which were authenticated by Sh. Anil Kaushal, who signed and affixed rubber stamp on each page. He identified the signatures and rubber stamp affixed by Sh. Anil Kaushal on each page of the documents at point A and his own signatures at point B, whereafter it were exhibited as Ex.PW14/B (colly) (objected to the mode and manner of the proof). He detailed that the requisite document was list of files for the year 2004 consigned to the Central Record Room, Land & Building Department, GNCT of Delhi.

106. He was cross­examined by Sh. Chander M. Maini, ld. counsel for Badrul Islam (A1), wherein he detailed that he was not given any CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 42 of 334 written instructions by Sh. Anil Kaushal for making photocopies and the list of files in the year 2004 consigned to Central Record Room. Sh.Anil Kaushal was In­charge of Central Record Room in the year 2014 and was custodian of the Record Room. The suggestion that he had given false and fabricated record to the CBI was denied.

107. He was not cross­examined by ld. Counsel for A2, A3 and A4. However, he was cross­examined by Sh. Ranvijay Kumar, ld. counsel for Sh. Nitesh Kumar (A5), wherein he stated that Sh. Anil Kaushal had instructed him to bring the original records. However, as only photocopies of the records were available, he produced photocopies only. The originals were not available in the CRR ever.

108. He detailed that he was assisted by Sh. Baidynath Jha to search for the record. He detailed that he told Sh. Anil Kaushal that the original file was not traceable. He had physically checked and had also checked from the official record and found out that original of the file, was not available in the record room. He had never seen the original of this file. The suggestion that the original record was deliberately concealed was denied.

109. PW­15 Sh. Subhash Gupta was DLA in Land & Building Department since 1989 and he was posted at Legal Cell, Tis Hazari Courts. For a short period, he was member of the Recommendation Committee which was used to recommend alternative plots in lieu of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 43 of 334 acquisition of agricultural lands in New Delhi by Land & Building Department.

110. He detailed that Sh. Prakash Kumar was Chairman of the Committee, Sh. Z.U Siddique, the then Joint Secretary, Sh. Badrul Islam, the then Dy. Director (Alternative) and he himself as DLA were the members of the Committee. The applications for alternate plots were processed by alternative branch then headed by Sh. Badrul Islam, Dy. Director (Alternative). After necessary verifications from land and acquisition collector etc. were carried out, stating that file was complete, it was placed before the Committee for deliberations. The Committee used to consider merits and demerits of each case and take decision. His role was to give his opinion with regard to legal documents such as affidavit, indemnity bond, relinquishment deed and various court orders. The report of LAC and other revenue records were called for and verified by alternative branch. When the matter was placed before the Committee for consideration, all these documents were made part of the records. He identified the signatures of accused Badrul Islam the then Dy. Director (Alternative) on minutes of meeting dated 03.12.2002 at point B which was exhibited as Ex.PW15/A­1. He then identified list of recommended cases Annexure­A bearing his signatures at point A was then exhibited as Ex.PW15/B (2 pages). He was then identified list of rejected cases Anneuxre­B bearing his signatures at point A, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 44 of 334 whereafter, it was exhibited as Ex.PW15/C (2 pages). He also identified signatures of accused Badrul Islam at point B. He was then shown list of cases recommended for re­examination as Annexure­C bearing his signatures at point A and the same was then exhibited as Ex.PW15/D (1 page). He also identified signatures of accused Badrul Islam at point B.

111. He detailed that in the said meeting 18 cases were recommended for alternate plots, 2 cases were rejected and 9 cases were recommended for re­examination. He detailed that normally the Minutes were prepared for signing within 7­10 days of the meeting of the recommendation committee. The Minutes used to be prepared by alternative branch. In the present case, Minutes of Meeting held on 03.12.2002 were prepared and signed on 04.02.2003 by Head of Alternative Branch Sh. Badrul Islam and the reason for delay in preparing the Minutes could only be explained by him (Badrul Islam).

112. He was then shown Ex.PW15/B which stated that Sh. Nitesh Kumar S/o Sh. Bed Prakash, File No. F­32(50­A)/159/89/L&B/Alt (Rengpuri), area of land acquired 10 bigha 09 biswa and date of notification 23.01.1965, Award No.1958/66­67 date of possession 25.04.1967 was one of the recommended cases of 18 recommendations made during the said meeting and his name appeared at serial no.7 (point C) at Annexure­A which was list of recommended cases. He was recommended for 400 sq. yds (South).

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He detailed the role of accused Badrul Islam, Head of Alternative Branch in respect of Nitesh Kumar was to seek reports from legal department, internal revenue department and concerned LAC and call for personal verification of the applicant. He detailed that after completion of these formalities by Alternative Branch, the matter was placed before the recommendation committee for recommendation alongwith other cases. The recommendation committee at the time of deliberations relied on the documents placed on file by the Alternative Branch and there was no practice for their re­verification by the committee during deliberations. He detailed that as far as he recollects accused Swarn Singh Malhi was the dealing assistant in the Alternate Branch, who used to assist accused Badrul Islam in the meetings.

113. He was then shown recommendation letter No.F­ 32(50A)/159/89­L&B/Alt/3088 dated 26.05.2003 pertaining to allotment of alternative plot under the scheme of Large Scale Acquisition in favour of Nitesh Kumar S/o Sh. Bed Prakash R/o Lohia Nagar, Ghaziabad, measuring 400 sq. yds in lieu of acquisition of his land in village Rangpuri. He identified signatures of accused Badrul Islam, the then Dy. Director (Alternate) at point A, which letter was already E.PW4/A.

114. He detailed that the role of the committee was to consider the records made available in the file by Alternate Branch, which was headed by Dy. Director (Alternative). He had also detailed that the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 46 of 334 documents were gathered and verified by alternative branch and the documents with regard to the alternative branch as per his statement must have been collected and verified by alternative branch. Witness revealed that they had no source to find about the genuineness or otherwise of the documents, which was collected by Head of Alternative Branch i.e. Badrul Islam, the then Dy. Director, who was assisted by S.S. Malhi and they also had no reason to disbelieve their verification. There was no practice to reverify the documents placed before the committee already processed by Alternative Branch.

115. He was cross­examined by Sh. Chander Maini, ld. Counsel for Badrul Islam (A1), wherein he affirmed that he had no knowledge qua procedure followed in Land & Building Department for processing application for allotment of alternative plot. The scheme of Large Scale Acquisition of Land was stated to be of 1961 and not of 1989. He stated that he was not aware that in 1989 a public notice was issued for the purpose of planned development of Delhi inviting applications for allotment of alternative plots. He could not say that 131 applications were received in Alternative Branch for allotment of plots. He was not aware of the working of Alternative Branch and stated that the working of the Alternative Branch must be under the directions of its Dy. Director. He detailed that he was unable to make any statement regarding LAC report having been appropriately taken.

116. He was further cross­examined by Sh. Javed Akhtar, ld.

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Counsel (A2), (A3) and (A4), wherein it was recorded that the cross­ examination recorded in CC No. 47/16 be read as cross examination in this case.

117. He was then confronted with Ex.PW15/D1, Draft List of Rejected Cases however, he was not aware as to who had made corrections thereupon and whose writing was on the said page.

118. He was then confronted minutes of the meeting dated 03.12.2002 prepared on 04.02.2003 bearing his signatures at point A, which was then exhibited as Ex.PW15/D2 (it appears that document is inadvertently given two exhibits as it has already been exhibited as Ex.PW15/A­1).

119. He was then confronted noting regarding fair minutes of meeting which was bearing his signatures at point A, that of Badrul Islam at point B and Sh. Z. U. Siddiqui, Joint Secretary at point C. The same was then exhibited as Ex.PW15/D3.

120. He was then cross­examined by Sh. Ranvijay Kumar, ld. Counsel for A5 Sh. Nitesh Kumar @ Sh. Harmesh Kumar, wherein he denied the suggestion that Sh. Nitesh Kumar had not given any application for allotment of alternate plot.

121. PW­16 Sh. Anil Kumar Singh, Cashier in office of Sub Registrar­VII, Vikas Sadan, INA, New Delhi identified seizure memo CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 48 of 334 dated 23.07.2015 as Ex.PW16/A through which lease dated 21.09.2003 having registration No.7693 Addl. Book No.1 Vol. No. 1234 page no. 59 to 66 dated 21.09.2003 in the office of Sub Registrar­VII, New Delhi in the name of Sh. Nitesh Kumar s/o Sh. Bed Prakash r/o H. No.16, Gali No.6, Lohiya Nagar, District Ghaziabad, and LSB DDA towards registration of property bearing plot No. 66, Block B, Sector 13, Pocket 10, Dwarka, New Delhi, was provided the lease copy was then exhibited as Ex.PW16/B.

122. PW­17 Sh. Megh Raj Verma employed with Pramod Garg, Property Dealer. He identified GPA and Agreement to Sell both dated 21.09.2004 executed by Sh.Nitesh Kumar while GPA was only in favour of Smt. Sudesh Madan, the Agreement to Sell was executed in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg.

123. He affirmed having signed the GPA at point A as a witness and Agreement to Sell at point B, being which were then exhibited as Ex.PW17/A and Ex.PW17/B respectively.

124. He identified the signatures and photographs of Sh. Nitesh Kumar (First Party) and Smt. Sudesh Madan, Smt. Ramesh Kumari, Smt. Monika Garg at point X, X1, X2 and X3 respectively. He detailed that Smt. Monika Garg was sister­in­law of Sh. Pramod Garg and all the signatures were appended in his presence for which reason CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 49 of 334 he could identified them. He had never met Sh. Nitesh Kumar earlier. He signed as attesting witness on the directions of his employer Sh. Pramod Garg as he had directed him to accompany his sister­in­law to the office of Sub­Registrar. The Second attesting witness Sh. B. B. N. Deo a Notary Advocate had also signed in his presence at point X4 on GPA as well as on Agreement to Sell against fees. He detailed that Sh. Ashok Arora was a financier who used to visit their office frequently. He was not cross­examined on behalf of A1 to A4.

125. Sh. Ranvijay Kumar, ld. Counsel for Sh. Nitesh Kumar @ Sh.Harmesh Kumar (A5) cross­examined him, wherein he stated that Nitesh Kumar never visited their office and he met Nitesh Kumar only in the office of Sub­Registrar. He stated that all the parties on Ex.PW17/A and Ex.PW17/B signed in his presence in the office of Sub­Registrar. He again affirmed that all the signatories on Ex.PW17/A and Ex.PW17/B had signed in his presence in the office of Sub­Registrar. He affirmed that he used to sign as witness on different titled deeds on the directions of his employer Sh.Pramod Garg. He told CBI that Sh. Ashok Arora was real brother of Smt. Sudesh Madan and Sh. Inderjeet Bhayana was the cousin brother of Smt. Ramesh Kumari. He knew Sh. Ashok Arora and Sh. Inderjeet Bhayana prior to execution of Ex.PW17/A and Ex.PW17/B. Both Sh. Ashok Arora and Sh. Inderjeet Bhayana were friends and business associates of Sh. Pramod Garg. He affirmed as correct that he had CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 50 of 334 stated before CBI that some amount in the abovesaid deal was financed by Sh. Pramod Garg, his employer on behalf of his sister­in­ law Smt. Monika Garg. He denied that Sh. Nitesh Kumar was not present in the office of Sub­Registrar at the time of execution of Ex.PW17/A and Ex.PW17/B and had not signed the documents in his presence.

126. PW­18 Sh. Vijay Kumar Aggarwal brother­in­law of accused Neeru Kumar Gupta, deposed that he was not aware that accused Neeru Kumar Gupta was doing some other business also. As he did not support his earlier statement he was declared hostile whereafter he was cross­examined by ld. Sr. PP, in which, he affirmed that he was called by Inspector Sanjay Kumar from CBI for investigation had answered the requisite questions. He denied having told CBI that accused Neeru Kumar Gupta was also dealing in Real Estate Business. He knew Sh. Sanjeev Kumar and Sh.Harmesh Kumar both were sons of Sh. Hem Raj and were also related to him. Both Sh.Sanjeev Kumar and Sh. Harmesh Kumar were cloth merchants and were doing the business from their house. He denied having told IO that Sh. Sanjeev Kumar and Sh. Harmesh Kumar were introduced to Sh.Neeru Kumar Gupta by him. He was recalled for further examination on 20.08.2019, on which date, he admitted having told IO, that Sh. Neeru Kumar Gupta was also doing real estate business. He denied having stated to IO that as Neeru Kumar Gupta CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 51 of 334 agreed to his suggestion to employ Sh. Sanjeev Kumar and Sh.Harmesh Kumar, he informed both of them to get in touch with Sh.Neeru Kumar Gupta, at which stage, his attention was drawn to his statement Ex.PW18/PX portion A to A, wherein it was so recorded. He denied having told the IO that he came to know that both brothers Sanjeev Kumar and Harmesh Kumar were assisting Sh. Neeru Kumar Gupta in real estate business, at which stage, his attention was drawn to statement Ex.PW18/PX portion B to B where it was so recorded. He was not subjected to any cross­examination.

127. PW­19 Sh. Baidyanath Jha UDC, Land & Building Department, C­Block, Vikas Bhawan, New Delhi, was posted in Record Room from March 2000 to April 2014. He detailed the procedure for consigning the files to record room followed in Alternative Branch and detailed that after the applications for allotment of alternative plot were allowed/rejected were consigned to Central Record Room. In cases where recommendation was made for allotment of plot from recommendation committee, a letter was sent to DDA by R&I Branch of L&B Department He detailed that in the year 2004, Sh.Satbir Singh was the Assistant, Alternative Branch.

128. He further stated that a list is maintained of all the files which are consigned to the Central Record Room. The Record Keeper used to sign the list and receive the consigned files. In 2004, he was the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 52 of 334 Record Keeper. One list of consigned files was counter signing by him and was given to the concerned clerk, Alternative Branch, which as per him was Sh. Satbir Singh.

129. He stated that file No. F.32(50A)/159/89/L&B/Alt which was the file number of recommendation letter Ex.PW4/A was never consigned to Central Record Room.

130. He searched for the file no.F.32(50A)/159/89/L&B/Alt. on the directions of Sh. Anil Kaushal, the then Dy. Secretary but could not find the same.

131. He was shown meeting notice for meeting of 03.12.2003 which he identified signatures of Badrul Islam on which was then exhibited as Ex.PW19/B.

132. He exhibited summary sheets of different candidates including Sh. Nitesh Kumar s/o Sh. Bed Prakash all bearing the signatures and handwriting of Sh. S. S. Malhi which he identified at point A on each page and since he was versed with his handwriting and signatures having seen him writing, signing the documents during course of his employment as Ex.PW19/C (colly), the exhibiting was objected however no reason whatsoever of the objections were raised.

133. He was not cross­examined by ld. Counsel for A1. During his cross­examination by Sh. Javed Akhtar, l.d counsel for A2, A3 and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 53 of 334 A4, he detailed that file of 19 branches were consigned to the Central Record Room of L&B Department. He further explained that the procedure for consigning the files as the dealing clerk being responsible to bring the files along with two lists out of which one was signed by him as acknowledgement and returned to the dealing clerk while keeping the files in the record room.

134. He detailed that on Ex.PW19/C (colly) only the remarks at the end of each summery sheets at point A and signatures were in the handwriting of Sh. S. S. Malhi. He could not identify the writing in Col. 1 to 20 on each summery sheets. He denied the suggestion that he could not identify the signatures of anyone except Badrul Islam and S.S. Malhi.

135. He was then shown Manual of Office Procedure - Records Management for Govt. Offices from a book written by Rama Jain of Akalank Publication 2018, where, as per Section 112 Part IV, it is provided that the departmental record room will maintain a record review register (Appendix 30) in which a few pages will be allotted for each future year. Copy of the same is Mark X). He stated that this procedure was not applicable prior to 2006 and no record review register was maintained before 2006. He denied that Joint Secy of L&B Department inspects the central record room every year. The directions for search file no. F.32/50A/159/89/L&B/Alt. were given verbally by Sh. Anil Kaushal. He volunteered that before that Sh. Anil CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 54 of 334 Kaushal had made a report that this file was not consigned to the record room. He detailed that there were around four lakhs filed in Central Record Room and the files are maintained list­wise.

136. In his further cross­examination by Sh. Ranvijay Kumar, ld. Counsel for A5, he detailed that his statement was recorded by CBI. Sh. Satbir Singh had taken original list of files and had given only a photocopy of the list of files consigned. The witness was not aware as to why he had not given the original list of files. He reiterated that file No.F32(50A)/159/89/L&B/Alt was not consigned in the record room and was also not in the list of files consigned to the record room.

137. PW­20 Sh. Suresh Chand Kaushik, Asst. Director was UDC in 2002 and was attached with Programme Assistant, Land Sales Branch (Residential). His nature of duties included besides others duties to look after the work pertaining to allotment of alternative plots along with Sh. K. K. Sharma, Programme Assistant. He detailed that both of them were reporting to Sh. S. N. Gupta, Asst. Director.

138. He identified Ex.PW4/A which he detailed was the recommendation letter for alternative plot from file no. F.32(50A)/159/89/L&B/Alt.3088 dt. 26.05.2003. He stated that this letter was first received in DDA on 26.05.2003 vide diary no.14282 whereafter it was received in the office of Commissioner (Land/CLD CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 55 of 334 Office) vide diary no.5454 dt. 27.05.2003. This letter was then received in office of Director (Residential Land) vide diary no.2026 dt. 27.05.2003, and was received in his office on 28.05.2003 vide diary No.23­R/45­11 and was received by him on 30.05.2003.

139. After report of Ex.PW4/A (Recommendation Letter) file no.F.27(16)2003/LSB(R) was opened and the letter was processed in this file.

140. He detailed that the letter was for allotment of alternate plot under scheme of Large Scale Acquisition and Development and Disposal of Land in Delhi, 1961, requesting for allotment of alternative plot measuring 400 sq yds. to Sh. Nitesh Kumar s/o Sh. Bed Prakash R/o Lohiya Nagar, Ghaziabad, U. P. wherein it was also mentioned 'in lieu of his acquired land bearing Khasra No.1640 (6­3), 1641 (5­14), 1642 (5­3), 1643 (3­9) total measuring 20.9 bigha in which applicant's share was half i.e. 10­4 ½ bigha which was acquired by Award No.1958/66­67 dated 23.03.1967 of village Rangpuri, Delhi in South Zone (date of physical possession - 25.04.1967) as he had been found entitled for the same'.

141. He identified the application of Sh. Nitesh Kumar dated 26.05.2003 addressed to Dy. Director, LSB(R) for allotment of alternative plot against recommendation no.F.32 (50A)/159/89/L&B/ Alternate dated 26.05.2003 for draw dated 29.05.2003 was received CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 56 of 334 with recommendation letter for alternative plot and was received in R&D Cell, Vikas Sadan vide diary no.14284 dated 26.05.2003 and was received by him on 30.05.2003. Nitesh Kumar had moved the application for inclusion of his name in draw of plots for 29.05.2003 which he then exhibited as Ex.PW20/A. However since the application was received on 30.05.2003 and the draw was held on 29.05.2003 he made a noting proposing to keep the application pending till next draw.

142. He identified his note sheet page 1/N, which was part of D­13 and his signatures at point A. The note and the file then were put up to Programme Assistant on 30.05.2003 by whom the file was sent to the then Asst. Director Sh. Ranvir Singh who made a note that "the list was displayed on 26.05.2003". He identified the signatures of the Asst. Director Sh. Ranvir Singh at point D. The file was further sent to the then Dy. Director, LA. His examination­in­chief was then deferred and resumed on 18.07.2019, on which date he was shown letter dated 18.06.2003 of Assistant Director, LSB(R), DDA, which was already Ex.PW4/C addressed to allottee Nitesh Kumar R/o Lohiya Nagar, Ghaziabad. Vide this letter, Nitesh Kumar was informed about the display of eligibility list on 26.05.2003 and the draw having been held on 29.05.2003. He was also informed that his representation was received late, as such, his name will be considered in the next draw. The said letter was dispatched to the given address CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 57 of 334 of Nitesh Kumar through registered post, however, the said letter was returned back with the remark "Adhura Pata, Pure Pate Ke Liye Wapas" on 20.06.2003. The endorsement was already at point D encircled in red pen and the envelope was also already Ex.PW4/D. The PoD returned back by the postal department was also on record as Ex.PW12/A. Office copy of the said letter was already on record as Ex.PW4/B.

143. He detailed that this letter was received back from the postal authorities and was put up on 04.07.2003 vide noting dated 04.07.2003 of Sh. K.K. Sharma, Programme Assistant/Dealing Assistant at page no.2/N of the noting portion of the file Ex.PW1/A (whole file). He identified that noting was under the signatures of Sh. K.K. Sharma at point B and was made regarding procuring the complete address of allottee Nitesh Kumar. He again detailed that the file was put up before Sh. S.N. Gupta, the then Assistant Director, who further forwarded the file to Dy. Director Sh. K.D. Reddy through this noting dated 11.07.2003. Vide his noting he was directed to issue a letter to L&B Department to confirm the address of the allottee. The file was marked to put up before the Assistant Director who marked it to Programme Assistant, whereafter Sh. K.K. Sharma submitted a letter to Assistant Director and Dy. Director, who signed on 25.07.2003 and letter dated 29.07.2003 already Ex.PW4/E was sent to Dy. Director (Alternative) Land & Building Department to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 58 of 334 intimate the complete address of Sh. Nitesh Kumar. He detailed that his branch did not receive the reply of the letter.

144. He further detailed that as per the approval of the Principal Commissioner, DDA in file no. F­1(14)2004/LSB(R), DDA, the draw was held on 26.05.2004 in the presence of two judges. As per the noting at page 3/N to 5/N of the said file already Ex.PW1/B, Nitesh Kumar was allotted plot no.66, Pocket 10, Block­B, Sector­13, Dwarka measuring 333.60 sq. mtrs. in Dwarka Residential Scheme. He further detailed that the demand letter was generated by the system department in respect of all the 17 cases including the case of Sh. Nitesh Kumar. Thereafter, a note was put up on 29.06.2004 by him on page no.7/N of the said file indicating the allotment of the above­said plot for approval of demand­cum­allotment letter. The file was marked to Programme Assistant Sh. R. Mohanlal on 29.06.2004 and Sh. Bhupal Singh, Assistant Director on 29.06.2004. The Dy. Director Sh. Sanjeev Kumar signed the demand­cum­allotment letter No. F­27 (16)/2003/LSB(R)/7110 dated 30.06.2004. The demand letter was already Ex.PW1/D. He stated that copy of this demand letter was also endorsed to Joint Secretary, Land & Building Department, Vikas Bhawan with reference to their recommendation letter referred to above and Account Officer (RL), DDA. In response to this demand­cum­allotment letter Sh. Nitesh Kumar had submitted required documents including the cost of plot vide his application CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 59 of 334 dated 'nil' already Ex.PW1/E in Central Diary DDA No. 36107 dated 13.07.2004. He also stated that he had also submitted that attested copy of voter card no. FVX 1874898 already Ex.PW43/G. Vide his noting at page 8/N to Programme Assistant and Assistant Director (RL), file had been sent to AAO (Billing) for confirmation of the bank challan on account of cost of plot deposited by Nitesh Kumar. Account Officer (RL) vide his noting and signature dated 27.04.2004 at page 9/N had confirmed the payment in respect of the above plot deposited by Nitesh Kumar. He detailed further that after receipt of the confirmation of cost/NOC, the file was put up by him on 29.07.2004 vide his noting at page 10/N to Programme Assistant, Assistant Director (LA), who had sent the file for approval of issue of possession letter to the allottee to Dy. Director Sh. Sanjeev Kumar, who had accorded the approval for issue of possession letter to the allottee. Accordingly, the possession letter No. F­27 (16)/2003/LSB(R)/8185 dated02.08.2004 already Ex.PW1/N was issued to Nitesh Kumar S/o Sh. Ved Prakash R/o H. No.16, Gali No.5, VPO Lohiya Nagar, Ghaziabada, UP. Copy of this letter was also endorsed to the Director (Planning, Dwarka, Joint Director (Survey), Dwarka for handing over the possession of the above said plot and Assessor and Collector of Assessment and Collection Department, JCD. Both the letters were bearing his initials at point B and signatures of Sh. Sanjeev Kumar, the then Dy. Director (LA) at CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 60 of 334 point A.

145. He further detailed that the Joint Director (Survey) vide his letter No. F­12(1439)/2004/Dwarka/Planning/701 dated 20.08.2004 Ex.PW1/L had forwarded the possession slip and attested copy of voter card of Nitesh Kumar already Ex.PW1/M and PW1/K respectively, vide which Nitesh Kumar took over the possession of the above said plot on 10.08.2004.

146. He detailed that Nitesh Kumar vide his letter dated 'nil' Ex.PW1/N submitted the copy of possession letter, affidavit regarding his being bachelor and undertaking regarding his being bachlorethe payment of difference of premium. Vide this letter Nitesh Kumar had also requested to issue the lease papers to him. He detailed that on request of the allottee Nitesh Kumar, he had submitted the file through his noting at page no.11/N dated 27.08.2004 already Ex.PW1/P to Programme Assistant and Dy. Director for issue of perpetual lease deed in respect of the abovesaid plot. He further detailed that Dy. Director Sh. Sanjeev Kumar had accorded his approval on 31.08.2004. The lease papers were issued vide letter no. F­27(16)/2003/LSB(R)/9341 dated 27.08.2004 already Ex.PW1/Q on the given address through registered post. He detailed that vide his letter dated 'nil' Nitesh Kumar had submitted three copies of lease deed duly stamped from Collector of Stamp on 09.09.2004 at CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 61 of 334 page 53/C of the said file, which letter was then exhibited as Ex.PW20/B.

147. He detailed further that request of Nitesh Kumar was put up by him for issuance of call letter vide his noting dated 09.09.2004 at page 12/N already Ex.PW1/R for execution of lease deed. Said letter Ex.PW1/S dated 10.09.2004 was sent to Nitesh Kumar on given address. The lease deed was executed by Smt. Krishna Setia and Sh. Bhopal Singh, LAO on 21.09.2004 (page 13/N). After execution of lease deed, the file was sent to Assistant Account Officer LSA­3 for noting down the particulars of the lease vide his noting dated 21.09.2004 Ex.PW1/V of the said file.

148. At that stage, he was shown file No.1(14)/2004/LSB(R) already Ex.PW3/A (whole file). In this file, the approval was given for holding the draw by Principal Commissioner, DDA at page 13/N. The list of eligible recommendee was also submitted by each Dealing Assistant to Programme Assistant. He had also submitted the list of eligible candidates which was at page 12/C of the file. He detailed that the list bears his signatures at point A and was Ex.PW20/C.

149. He detailed that he was called by CBI office on 13.06.2005 by IO/Insp. Sanjay Kumar, where he witnessed the obtaining of writings/signatures of Harmesh Kumar @ Nitesh Kumar, which specimen he identified as already Ex.PW40/A. He had witnessed to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 62 of 334 obtaining of specimen handwriting / signatures of Neeru Gupta which he identified as already Ex.PW29/D (colly).

150. In his cross­examination by Sh. Javed Akhtar, ld. Counsel for S.S. Malhi (A2), Neeru Kumar Gupta (A3) and Sangeeta Gupta (A4), he detailed that DDA made draw regarding the recommended persons and no document was summoned/taken from those recommended persons before the draw of plots. He detailed that demand letter was issued only after allotment of the plot after the draw. He stated that if the demanded amount was not paid by the allottee, the allotment was liable to be cancelled but before that process allottee was to be issued a notice in that regard. He detailed that the entire detail of the total amount to be paid and the mode of payment etc. were to be mentioned in the demand­cum­allotment letter. He stated it to be correct that all the requirement of documents and payments etc. regarding allotment of the plot in this case were complete and legal. He was not cross­examined by ld. Counsel for Badrual Islam (A1) and Nitesh Kumar @ Harmesh Kumar (A5).

151. PW­21 Sh. Pawan Kumar was posted as Chief Manager, Bank of India, Jhandewalan Extn. Branch and identified production cum seizure memo dated 28.09.2015 which he exhibited as Ex.PW21/A, through which he had provided Account opening form exhibited as Ex.PW21/B. The photocopy of Saral Form Ex.PW21/C. CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 63 of 334 The statement of account of Smt. Sudesh Madan 01.04.2004 to 31.05.2005 as Ex.PW21/D, all the above were pertaining to account of Smt. Sudesh Madan. It was then exhibited as Ex.PW21/D as it was being his signatures and seal of Bank.

152. He detailed that as per statement of account no.15807, on 10.05.2005, the amount of Rs.8,65,000/­ was deposited in the account of Smt. Sudesh Madan through cheque bearing no.256331. This transaction was done through clearing. This cheque was not available with their bank as it was sent to the drawee branch of the bank. The pay in slip depositing this cheque was also not available as it was more than ten years old transaction. He was not cross­examined by Sh. Chander Maini, ld. Counsel for Badurl Islam (A1) and Sh.Javed Akhtar, ld. Counsel for accused S.S. Malhi (A2), Neeru Kumar Gupta (A3) and Ms.Sangeeta Gupta (A4).

153. In his cross­examination by Sh. Ranvijay Kumar, ld. Counsel for Nitesh Kumar @ Harmesh Kumar (A5), he stated that the signatures (specimen) at point X on account opening form Ex.PW21/B must be of the account holder Smt. Sudesh Madam. He could not say whether the details of account opening form were filled by the account holder herself or by someone else. Nothing material was further revealed from his cross­examination.

154. PW­22 Sh. Deepak Sharma Dy. Manager with HDFC Bank CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 64 of 334 identified production­cum­seizure memo dated 12.08.2015 exhibited as Ex.PW22/A. He identified the letter written by Ms. Taruna Singh, Branch Manager, HDFC Bank, North Ex. Mall, Sector 9, Rohini, Delhi addressed to Sh. Sanjay Kumar, Inspector of Police, CBI, Vide which letter, five documents mentioned therein pertaining to Sangeeta Gupta and Neeru Kumar Gupta, account details of erstwhile bank of Punjab Ltd. were provided. He identified the signatures of Ms. Taruna Singh and rubber stamp of the HDFC Bank at page 2 of this letter at point A. He also identified the signatures of Ms. Taruna Singh as he had seen her signing during his course of employment, which letter was then exhibited as Ex.PW22/B.

155. He was also shown the relationship form of Bank of Punjab Ltd in the name of Smt. Sangeeta Gupta and stated that 'Account Opening Form' at the relevant time was captioned as 'Relationship Form'. Account Opening Form (already Ex.PW13/A) contained specimen signatures card (already Ex.PW13/B), Election Card of Neeru Gupta, MTNL bill (already Ex.PW13/C (colly) in the name of Neeru Gupta. As per account opening form, account bearing No.114001000015380 was opened in the name of Smt. Sangeeta Gupta and Sh. N. K. Gupta was the nominee of this account which was originally opened in the Bank of Punjab Ltd. and later on, Bank of Punjab Ltd. was merged with Centurion Bank of Punjab which was thereafter merged with HDFC Branch, Sector 8, Rohini, Balaji Plaza, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 65 of 334 New Delhi.

156. He was then shown Page 11 of Questioned Documents File (D­31), which was letter for opening of saving bank account given to the Branch Manager, Bank of Punjab Ltd. under the signatures of Mrs. Sangeeta Gupta. On comparing the signatures of Smt. Sangeeta Gupta as existing on the specimen signatures card, he could state that the signatures at point AA on this letter were also of Smt. Sangeeta Gupta. The letter was then exhibited as Ex.PW22/C.

157. The witness was then shown request for issuing of Demand Draft of Rs.50,000/­ in favour of DDA under the signatures of Sh. Neeru Kumar Gupta which was given on 06.07.2004. He was shown request for issuing of Demand Draft of Rs.50,000/­ in favour of DDA under the signatures of Sh. Neeru Kumar Gupta given on 06.07.2004. He was shown request for issuing of Demand Draft of Rs.70,000/­ in favour of DDA under the signatures of Sh. Neeru Kumar Gupta given on 06.07.2004. He was then shown cheque of Rs.8,00,625/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Sh. Neeru Kumar Gupta dated 06.07.2004. On its back of the cheque it was found written request by Sh. Neeru Kumar Gupta to issue a PO in favour of DDA for Rs.50,000/­ and Rs.50,000/­ and Rs.7,00,000/­ only. He was then shown request for issuing Demand Draft Rs.7,89,000/­ in favour of DDA under the signatures of Smt. Sangeeta Gupta, given on 06.07.2004, already Ex.PW13/D (colly). He was shown cheque of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 66 of 334 Rs.7,89,592/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Smt. Sangeeta Gupta dated 06.07.2004. On the back of which it was found written request by Smt. Sangeeta Gupta to issue a PO in favour of DDA for Rs.7,89,000/­ only. He was then shown request to issue a DD in favour of DDA for a sum of Rs.1 Lakh which request was given by Sh. Neeru Kumar Gupta dated 08.07.2004 (already as Ex.PW13/H). He was also shown cheque of Rs.1,00,075/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Sh. Neeru Kumar Gupta dated 08.07.2004. On the back of which it was found written 'request by Sh. Neeru Kumar Gupta to issue a PO in favour of DDA for Rs.1,00,000/­ only'. The certificates u/s 2A of the Banker's Book of Evidence Act 1891 with regard to account no.114001000015380 in the name of Smt. Sangeeta Gupta for the period from 01.04.04 to 31.03.05 and with regard to account no.114001000015370 in the name of Sh. Neeru Kumar Gupta for the period from 01.04.04 to 31.03.05 were signed by Smt. Taruna Singh, Branch Manager, HDFC at point A alongwith rubber stamp of the bank on both the certificates which were then exhibited as Ex.PW22/D and Ex.PW22/E respectively.

158. He was then shown Statement of Account No.114001000015380 in name of Smt. Sangeeta Gupta on which he identified his signatures and rubber stamp at point A which statement was exhibited as Ex.PW13/E. As per the statement of account it was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 67 of 334 revealed that on 07.07.2004, cheque no.810980 was given by Smt. Sangeeta Gupta for issuance of a DD for a sum of Rs.7,89,000/­ and a sum of Rs.7,89,592/­ was debited from her account at point A.

159. He was then shown Statement of Account No.114001000015370 in name of Sh. Neeru Kumar Gupta on which he identified his signatures and rubber stamp at point A which statement was already Ex.PW13/G. The statement of account revealed that on 06.07.2004, cheque no.809040 was given by Sh. Neeru Kumar Gupta for issuance of a DD for a sum of Rs.8 Lakhs and a sum of Rs.8,00,625/­ was debited from this account at point A. The entries of statement of account revealed that on 08.07.2004, cheque no.809041 was given by Sh. Neeru Kumar Gupta for issuance of a DD for a sum of Rs.1 Lakhs and a sum of Rs.1,00,075/­ was debited from this account at point B.

160. He was not cross­examined by ld. Counsel for Badrul Islam (A1). Ld. Counsel Sh. Javed Akhtar subjected him to cross examination where he admitted that he was never employed with Bank of Punjab Ltd and has no information as to when the Bank of Punjab Ltd. Had merged with Centurian Bank with HDFC Bank however the merger took place in the year 1995. He admitted that he had not given any document to CBI pertaining to merger of Centurian bank with HDFC Bank and no information in that regard was sought from him. He was not employed with the bank in the year 2004 when CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 68 of 334 the account opening form / relationship form of Smt. Sangeeta Gupta was submitted with the bank. He confirmed that no supporting document with the account opening form of Sangeeta Gupta was filed however it was mentioned that she was submitting statement of ICICI Bank Credit Card and Telephone Bill in the name of spouce and Conveyance Deed in the joint name.

161. He was cross­examined by Sh. Javed Akhtar, ld. Counsel for S.S. Malhi (A2), Neeru Kumar Gupta (A3) and Ms.Sangeeta Gupta (A4), however, nothing material was revealed. He was then cross­ examined by Sh. Ranvijay Kumar, ld. counsel for Sh. Nitesh Kumar @ Sh. Harmesh Kumar (A5), wherein, he was put the following question : "I put it to you that Sh. Neeru Kumar Gupta, Smt. Sangeeta Gupta and the bank officials colluded together in opening bank accounts on the basis of forged documents and for issuing demand draft in favour of DDA ?", to which, the witness replied as below :

"the same is denied. It is wrong to suggest that I have deposed falsely."

162. PW23 Sh. Abhishek Jaiswal, Dy. Manager, ICICI Bank had submitted the account details of one smt. Manjeet kaur vide seizure memo Ex.PW23/A. The statement of account of Manjeet Kaur qua A/c No. 49077 and new A/c No.629801049077, was Ex.PW23/C (colly).

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163. PW­24 Sh. Raj Pal working as Informatics Assistant in the office of District Transport Officer, Sriganganagar, Rajasthan, identified the production­cum­ seizure memo dated 07.12.2015 which was exhibited as Ex.PW24/A. He identified letter dated 04.12.2015 having No.Pari/Ganga/2015/5042 under signatures of Zilla Parivahan Adhikari Sh.Ram Chander addressed to IO Insp. Sanjay Kumar which was then exhibited as Ex.PW24/B wherein it was informed that DL No.RJ­13­DLC­11­153979 dated 29.04.2011 was issued in the name of Sh. Harmesh Kumar s/o Sh. Hemraj r/o 89 B, Srikaranpur, District Sriganganagar, as per records of the office. He was then shown document a certificate "To whomsoever it may concern" which also was signed through which it was certified that DL No.RJ­13­DLC­11­ 153979 dated 29.04.2011 had been issued to Harmesh Kumar. In this certificate the details of renewal of the licence from time to time have been given. As per this certificate the DL was valid till 01.02.2021.

164. He was then shown Extract of certified copy of Register where the entries with regard to DLs issued was recorded with the photograph of the licence holders. This document records that the DL of Sh. Harmesh Kumar was extended till 01.02.2021. The same was attested by Zilla Parivahan Adhikari Sh. Ram Chander and was exhibited as Ex.PW24/D. The witness has brought the original thereof also. Document Ex.PW24/D was also showing the photograph of Sh. Harmesh Kumar at point B. CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 70 of 334

165. He was then shown verification of DL bearing No. RJ13/DLC/11/153979 issued on 29.04.2011 in the name of Sh. Harmesh Kumar. The same was also attested by Zilla Parivahan Adhikari Sh. Ram Chander and was exhibited as Ex.PW24/E.

166. He exhibited the record of Licence Holders and the details of Sh. Harmesh Kumar were being shown at point B which was also attested by Zilla Parivahan Adhikari at point A and was Ex.PW24/F.

167. He then exhibited the computer printout of fee deposit for renewal of licence by the licence holders where the name of Sh. Harmesh Kumar was shown at Sr. No. 45 at point B and was attested by Zilla parivahan Adhikari at point A which was exhibited as Ex.PW24/G. Sh. Harmesh Kumar had deposited a fee of Rs.300/­ for the renewal of licence on 29.04.2011. He was also shown proforma of particulars for computerized DL along with Form 9 and Form 1 with terms and conditions. The same was marked as Mark PW24/H (colly).

168. He was then shown Superdginama dated 07.12.2015, which he had signed at point A. Vide this, the documents mentioned were released on Superdari, which was then exhibited as Ex.PW24/I.

169. He was not subjected to any cross­examination on behalf of ld. Counsel for Badrul Islam (A1) and ld. Counsel for S.S. Malhi CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 71 of 334 (A2), Neeru Kumar Gupta (3) and Ms. Sangeeta Gupta (A4), whereas, ld. Counsel for Nikesh Kumar @ Harmesh Kumar (A5) subjected him to cross examination however noting material which could contradict the substance of statement and dispel the authenticity of document was shown.

170. PW25 Sh. Budh Prakash detailed that he was working with various shopkeepers in DDA Shopping Complex, INA, Vikas Sadan, New Delhi as a photographer and photocopier and sometimes, he on the request of property dealers, was signing as attesting witness on various documents for which he charged Rs.100/­ or Rs.150/­. He was then shown perpetual lease deed dated 21.09.2004 on which he identified his signatures after which it was exhibited as Ex.PW25/A. He identified the signatures of Nitesh Kumar as Ex.PW25/B. He was having small telephone diary Ex.A14. He stated that he did not remember having seen the person whose photograph was shown upon the diary. He than claimed that due to poor eyesight he could not identify Sh. Nitesh Kumar in the court, though, he identified thumb impression of Sh. Nitesh Kumar was also taken in his presence which was shown at point D Ex.PW25/A.

171. He was cross­examined by Sh. Ranvijay Kumar, ld. Counsel for Sh. Nitesh Kumar @ Sh. Harmesh Kumar (A5), in which he stated that photographs of Ex.PW25/A and Ex.PW25/B were taken when CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 72 of 334 the lease was executed. He stated that at that time, no negatives were there for photographs. He stated that he did not remember which property dealer had requested him to sign as a witness, though, he admitted that he was requested by some property dealer to sign as a witness. He stated that he had signed on Ex.PW25/A and Ex.PW25/B in the year 2004. He admitted that he was not writing the date after signing. He had signed the perpetual lease deed in DDA office and not outside the shops. He stated that he signed in the presence of DDA officials, though he could not identify them on the date of his deposition.

172. PW­26 Sh. Tejpal Singh Tomar had been posted for few months in LSB (R) branch DDA in the year 2004 and Sh. Sanjiv Kumar was the then Deputy Director and Sh. Bhopal Singh was the then Assistant Director and he was working as UDC and was looking after Diary Seat. He detailed that normally 2­4 lease deeds were executed every day during his posting and the files were taken for execution to public hearing hall from the office of LSB (R) by the peon accompanied by LDC/UDC. He stated that as per directions of Sr. officers he used to sign as a witness on perpetual lease deed from DDA side besides two witnesses from the side of allottee and the perpetual lease deed was also signed by Lease Administrative Officer, LSB (R) Branch thereafter. The signatures of the witnesses of the allottee were signed in the presence of DDA staff and photocopy of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 73 of 334 identify proof of witnesses were also verified from the original by DDA staff and self attested photocopies were retained in DDA. Ex.PW25/A and Ex.PW25/B the original perpetual lease deed in the name of Nitesh Kumar S/o Sh. Bed Prakash on which he identified his signatures at point D and that of Smt. Krishna Setia, UDC, LSB(R), DDA at point E. He also identified the signatures of Sh. Bhopal Singh at point F and that of Nitesh Kumar at point B. He then identified thumb impression/finger impression of Nitesh Kumar on Ex.PW25/A and Ex.25/B at point G, which were taken in his presence on reverse side of page no.9 and on page no. 68/C as per practice. He stated that original perpetual lease deed was handed over to Nitesh Kumar on 21.09.2004.

173. He was cross­examined by Sh. Ranvijay Singh, ld. Counsel for accused Nitesh Kumar @ Harmesh Kumar (A5), wherein he stated that since he remained posted for a very short time, he did not get sufficient time to learn the procedure for executing the lease deed. He detailed that intimation to the allottee for execution of lease was sent through dispatch and therefore, he could not say whether the letter was sent to the lessees calling them for execution of lease deed. He denied having knowledge that every lessee was to visit DDA office with a letter from the branch calling him for execution of lease deed. He could not say that said letter is retained by DDA. He admitted that on Ex.PW25/A Smt.Krishna Setia had not signed.

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174. PW­27 Sh. Ajit Kumar Singh, Sr. Manager, Central Bank of India, Mitrao Branch, New Delhi Sr. Manager, INA, New Delhi in the year 2015 through production cum seizure memo dated 29.07.2015 Ex.PW27/1 bearing his signatures at point A. He forwarded certificate u/s 2A of Banker's Book of Evidence Act and statement of account of DDA HSS from 01.01.2004 to 15.07.2004 with his signatures on seal of bank. The forwarding letter from Central Bank of India was then exhibited as Ex.PW27/2, and certificate u/s 2A of Banker's Book of Evidence Act was exhibited as Ex.PW27/3. The statement of account of DDA HSS was exhibited as Ex.PW27/4.

175. After going through the statement of account of DDA HSS, he stated that on 08.07.2004 an amount of Rs.7 Lac was credited through a banker's cheque no. 997750, on 10.07.2004 an amount of Rs.7,89,000/­ was credited through a banker's cheque no.997794 and on 12.07.2004 an amount of Rs.1 Lakh was credited through a banker's cheque no. 997809. Prior to 2009 the original banker's cheques were being sent to issuing branch for making payment for clearing so these original banker's cheques were not available in their branch. He detailed that bankers are supposed to maintain record for eight years and these particular banker's challan were more than eight years old, so these had been destroyed and were not available.

176. He was cross­examined only by Sh. Ranvijay Kumar, ld.

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Counsel for accused Nitesh Kumar @ Harmesh Kumar (A5), however, nothing material came out, whereafter, the witness was recalled on 10.01.2019, in which, he exhibited the policy for retention of banker's challan as Ex.PW27/DX. He was asked as if banker's cheques and demand draft were same, to which, he replied that both were different and explained that if a cheque is issued for a local transaction it is called banker's cheque and for outside transaction it was called demand draft, however, at present, both banker's cheque and demand draft are common, at which stage, he was shown Ex.PW27/4 (colly) and was asked whether these were local transactions or outstation transactions, to which, the witness replied that these were local transactions.

177. PW­28 Mohd. Shahid was running a photographer shop in DDA Shopping Complex, INA, Vikas Sadan, New Delhi. He detailed that various property dealers approached him to sign the perpetual lease deed/sale deed as witness and paid him Rs.100 to Rs.150/­ for witnessing the deeds. He identified his signatures on perpetual lease deed Ex.PW25/A at point E on each page which was issued by DDA in favour of Mr. Nitesh Kumar. He admitted that photo at point C was taken at his shop and that Mr. Nitesh Kumar had signed on Ex.PW25/A in his presence, which signatures had identified at point A. He was then shown photocopy of his driving licence bearing his signatures at point A, original of which, he had brought, after which, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 76 of 334 the photocopy of driving licence was exhibited as Ex.PW28/1 (OSR). He was then shown photograph of Neeru Kumar Gupta, which was part of telephone diary in D­6 Ex.A14, however, he denied having seen him.

178. He was cross­examined by ld. Counsel for accused Nitesh Kumar. In cross­examination, he affirmed that he had seen Nitesh Kumar in his shop and only on that basis he had deposed that his photograph was clicked at his shop. He affirmed that signatures on Ex.PW28/1 at point B and at point A are different in appearance as earlier he used to sign as he had signed at point B and afterwards he changed his signatures as at point A on Ex.PW28/1. He affirmed that writing encircled at point 'C' on Ex.PW28/1 was written by him. He was unaware that Sh. Pramod Garg and Neeru Kumar Gupta were used to visit his shop.

179. PW­29 Affak Ahmed UDC was posted in office of SR II­B Office, Janakpuri and had handed over to CBI letter of Jagdev Singh alongwith notification dated 19.06.2014 exhibited as Ex.PW29/1. The record pertaining to plot no. 66, Block­B, Sector 12, Pocket­10, Dwarka came to the office record of Sub­Registrar II­B from 19.06.2014 to 26.09.2015 and as per record, no encumbrance had been found recorded in respect of the said plot. He was cross­ examined by Sh. Javed Akhtar, ld. Counsel for accused Nos. 2, 3 and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 77 of 334 4, however, nothing material was culled out.

180. PW­30 Sh. Vijay Kumar Jain husband of Smt. Archana Jain deposed that she had purchased a plot bearing no.66, Pocket­10, Block­B, Sector­13, Dwarka, New Delhi from Sukhminder Singh on 24.03.2006 for consideration of Rs.20 lacs through three cheques drawn on Bank of Rajasthan Ltd., Panchsheel Park, New Delhi and the sale deed Ex.PW30/B was executed on 24.03.2006.

181. Other documents of the property which were in the name of Nitesh Kumar S/o Bed Prakash were also handed over to CBI Insp. Sanjay Kumar, where were mentioned in the Supardaginama and were exhibited as Ex.PW30/D (in total 65 pages, part of D­70). He was not cross­examined.

182. PW­31 Sh. P.K. Dixit was working Sr. PA in TRIFD, NCUI Building, Second Floor, August Kranti Marg, New Delhi and on 09.06.2015 along with another independent witness participated in search of house of Smt. Monika Garg W/o Sh. Sunil Garg, M­98, 4 th Floor, Guru Hari Kishan Nagar, Paschim Vihar, New Delhi The search list prepared in his presence wherein the details of seized documents were mentioned. H exhibited search list as Ex.PW31/A. He was not subject to cross­examination.

183. PW­32 Sh. P. S. Rawat, employee of TRIFD, NCUI CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 78 of 334 Building, Second Floor, August Kranti Marg, New Delhi. On 09.06.2015 along with independent witness P.K. Dixit witnessed the search of house of Smt. Monika Garg W/o Sh. Sunil Garg, M­98, 4 th Floor, Guru Hari Kishan Nagar, Paschim Vihar, New Delhi. The search list was already Ex.PW31/A. He was not subject to cross­ examination.

184. PW­33 Sh. Rajender Kumar Sharma participated in proceedings of obtaining specimen signatures/initials of Swarn Singh Malhi on paper­sheets on 05.10.2015 b IO Insp. Sanjay Kumar which proceedings were conducted in his presence and in the presence of Abhishek Vasta, He identified his signatures at point A which was exhibited as Ex.PW33/A.

185. PW­34 Sh. Abhishek Vatsa along with PW­33 Rajender Kumar Sharma witnessed the proceedings for obtainment of specimen signatures of S.S.Malhi already Ex.PW33/A.

186. PW­35 Sh. Dinesh Kumar Singhal Deputy Manager in Punjab National Bank, on 09.06.2015, participated as witness along with Vineet Arora to house search of Neeru Kumar Gupta at his residential address G­2/78, Sector­16, Rohini, Delhi. The documents D­4, D­5 and D­6 were then exhibited as Ex.PW5/B, Ex.PW35/C & Ex.PW35/D respectively. The witness was cross­examined by Sh. Javed Akhtar, ld. Counsel for Neeru Kumar Gupta (A­3) Sangeeta CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 79 of 334 Gupta (A­4). His statement was not recorded by CBI officers. No officer of investigation team offered their search before conducting the search of premises of accused. He stated that he was aware that CBI officers were having one search warrant, however, he was not aware whether they were carrying other file or document. He stated that large number of documents were recovered during the search but he could not tell the number. He only signed the seized documents shown to him by CBI officers. He denied that signatures were never taken on all documents and were taken only on search list. He stated to have signed about hundred documents and admitted that he had signed 154 pages of Ex.PW35/B, Ex.PW35/C and Ex.PW35/D. Search proceedings took 5/6 hours. No videography of search was done. He had accompanied the CBI officials for search on one earlier previous occasion in some other matter. He denied that he was the stock witness of the CBI and had not accompanied the CBI team to any place but had only signed the documents when he was called by CBI officials. The directions to have visit CBI office were given in writing by his department, though he was never asked by CBI to hand over the direction/letter. He was not cross­examined by any other accused.

187. PW­36 Sh. Rupesh Kumar Gupta Sr. Manager, PNB, Head Office, New Delhi. On 09.06.2015 along with Sh. Tanuj Rastogi, another officer from Oriental Bank of Commerce participated in CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 80 of 334 house search of Pramod Garg at House no. 361, Behra Enclave, Paschim Vihar, New Delhi. Search list was exhibited as Ex.PW36/A one memo regarding the details of mobile/sim number/IMEI number was prepared and signed by him which he then exhibited as Ex.PW36/B bearing his signatures at point A.

188. Another search of office premises Kothi No.6, Sector­17, Pocket­/2. Dwarka of Pramod Garg was conducted on same day. The search list was then exhibited as Ex.PW36/C.

189. He had witnessed the obtainment of specimen signatures/initials of Pramod Garg after return from searches in the CBI Office, which he exhibited as Ex.PW36/E (colly) bearing his signatures at point A (Part of D­1124). Specimen signatures of Pramod Garg were identified at point B. He was not subjected to any cross­examination.

190. PW­37 Sh. N.S Bhati UDC Lease Administration Branch (Residential), DDA, Vikas Sadan, INA, New Delhi, handed over the official file to IO at CBI office on 01.07.2015. The production memo was then exhibited as Ex.PW37/A. He handed over official file of to plot No.66, Pocket 10, Block B, Sector 13, Dwarka, New Delhi Ex.PW37/A (Colly). It was noted by the ld. Presiding Officer at that stage that conveyance deed containing in the file was already Ex.A­9 (D­13) and also page no. 1/C Ex.PW4/A, page no. 2/C Ex.PW20/A, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 81 of 334 page no.7/C Ex.PW4/B, Page no.8/C Ex.PW12/A, page no.9/C as Ex.PW4/D, Page no.10/C was Ex.PW4/C and page no.11/C Ex.PW4/E. He was not subjected to any cross­examination.

191. PW­38 Sh. Surinder Singh Chief Manager, Dena Bank, Zonal Office Parliament Street, New Delhi in presence of Sh. Umesh Ijral, witnessed obtainment of specimen signatures/initials of Sangeeta Gupta by IO. Insp. Sanjay Kumar which were then collectively exhibited as Ex.PW38/A. On 21.08.2015 the specimen signatures / initials of Badrul Islam were taken in his presence and in presence of Sh. Umesh Chand Ijral, which he exhibited as Ex.PW38/B. He identified signatures of Badrul Islam at point C. He was not subjected to any cross­examination.

192. PW­39 Sh. S.D. Mittal, Officer, Punjab National Bank, HO, Bhikaji Kama Place, New Delhi. On 13.06.2015 he participated in the proceedings of the obtainment of specimen finger prints and signatures of Harmesh Kumar @ Nitesh Kumar. The specimen finger prints of Harmesh Kumar @ Nitesh Kumar were taken by Sh. B. Mahesh Krishna Ratnam, who was officer from CFSL in his presence as well as in the presence of another witness and also CBI Inspector Sanjay Kumar on paper sheets marked S­41 to S­46, whereafter, the same were collectively exhibited as Ex.PW39/A.

193. PW­40 Sh. B.B. Chadha, Officer, Punjab National Bank, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 82 of 334 HO, Bhikaji Kama Place, participated as witness to proceedings of collection of specimen signatures / initials of Harmesh Kumar while Sh. Suresh Chand Kaushik, Asstt. Director, DDA, INA, Viaks Sadan, New Delhi was also present as witness on 13.06.2015. He exhibited the specimen signatures of A­5 as Ex.PW40A. He was not subjected to any cross­examination.

194. PW­41 Sh. Ram Pal Sharma, Asstt. Director (Survey) in the office of Director Planning, DDA Dwarka Project, Mangla Puri, Palam, New Delhi handed over documents to Inspector CBI Sanjay Kumar on 08.09.2015 through production­cum­seizure memo Ex.PW41/A. He identified letter dated 07.09.2015 of Sh. Kishore Kumar, the then Dy. Director (Survey), Dwarka as Ex.PW41/B addressed to IO, on which, he identified signatures of Sh. Kishore Kumar at point A, which letter was then exhibited as Ex.PW41/B (D­

50). He had put his signatures at point A on page 1/N, which were handed over to IO of the case, which were then collectively exhibited as Ex.PW41/C (page 13 to 1). He was not subjected to any cross­ examination.

195. PW­42 Deshbandhu Gosain was working as UDC in the office of Sub­Registrar­II, Opposite Rajdhani College, Basai Darapur, Delhi handed over the agreement to sell and GPA (Ex.PW42/B and Ex.PW42/C) vide memo dated 23.07.2015 executed by Nitesh Kumar CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 83 of 334 in favour of Sudesh Madan, Ramesh Kumari and Monica Garg Ex.PW42/A.

196. He witnessed the proceedings of obtaining of thumb impressions of Pramod Garg vide Ex.PW42/D.

197. He then visited CBI office on 27.07.205 and handed over documents to CBI vide seizure memo dated 27.07.2015 which was then exhibited as Ex.PW42/E. The documents were on record as D­ 21, D­22 and D­23, which were then exhibited as Ex.PW42/F, Ex.PW42/G and Ex.PW42/H.

198. He was not subject to cross­examination by ld. Counsel for A­1 Badrul Islam. However, Sh. Javed Akhtar, ld. Counsel for A­2 Swarn Singh Malhi, A­3 Neeru Gupta and A­4 Sangeeta Gupta subjected him to cross­examination, wherein, he detailed that he remained posted in Sub­Registrar Office, Basai Darapur as Record Keeper from March, 2014 to December, 2015.

199. PW­43 Smt. Hamita Rani, W/o Sh. Harmesh Kumar identified A­5 Nitesh Kumar as Harmesh Kumar as her husband and being both residents of 89, B­ Block, Ward No. 6, Village & Post PS & Tehsil Sri Karanpur, District Ganganagar, Rajasthan. She had handed over certain documents to the CBI, vide production­cum­ seizure memo dated 26.11.2015 Ex.PW43/A. She identified the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 84 of 334 photograph of her husband Harmesh Kumar Ex.PW43/B on the back of which she identified signatures of Harmesh Kumar. She identified her signatures at the back of her photograph at point A, which was then exhibited as Ex.PW43/C. She identified signatures of herself as well as the signature of her husband Sh. Harmesh Kumar at points A and B on their marriage photograph which was then exhibited as Ex.PW43/C1.

200. She had provided the photocopy of her Aadhar card and also put her signatures as a token of handing over the same to CBI, which she identified at points A and B and the copy then was exhibited as Ex.PW43/D. She had never stayed at Ghaziabad at H.No. 16, Gali No. 5 and had never visited Ghaziabad.

201. Neeru Gupta was known to her through Vijay Kumar Gupta, (being brother of brother­in­law). Vijay Kumar Gupta was the son­in­ law of (Damad) of her Mausi. She did not know any Nitesh Kumar.

202. She identified attested photocopy of voter ID card of Nitesh Kumar on which she identified photo of Harmesh Kumar, her husband. The documents were then exhibited as Ex. PW43/E, PW43/F and PW43/G.

203. She was shown document already Ex.PW4/A (D­13), (Recommendation Letter) on which she identified the photo at point C CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 85 of 334 being that of her husband Harmesh Kumar. She was then shown the specimen signature and photograph pertaining of Nitesh Kumar which she identified as that of her husband Harmesh Kumar, whereafter, the document was exhibited as Ex.PW43/H.

204. She was shown documents pertaining to execution of perpetual lease on which she identified the photo of her husband Harmesh Kumar, whereafter the documents were exhibited as Ex.PW43/J. PW43/K, PW43/L.

205. She was not subjected to cross examination by Sh. B. K. Wadhwa and Sh.Chander Maini, ld. Counsels for A­1 Badrul Islam. However, she was put under cross­examination by Sh. Javed Akhtar, ld. Counsel for A­2, A­3 and A­4 wherein she stated that the documents and photographs except Ex.PW43/A, PW43/B, PW43/C, PW43/C1 and Ex.PW1/J shown to her were photocopies and were not original. She stated that the original of page no. 65/C was on record and the signature of Nitesh Kumar was marked on the said document as Q­59 to 62, however, the photograph pasted on the said document was that of her husband Harmesh Kumar. The original of perpetual lease at page no. 60/C was already Ex.PW25/B and the photograph pasted at point C on the said document was that of her husband Harmesh Kumar. The original of perpetual lease at page no. 51/C was already Ex.PW25/A and the photograph pasted at point C CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 86 of 334 on the said document was that of her husband Harmesh Kumar.

206. In her further cross­examination by Sh. Nishant Kumar Srivastav, ld. Counsel for A­5 she stated that she was 9 th class pass and could not read or write or understand English, however she used to sign in English. Her husband Harmesh Kumar is 8th class pass and he also could not read or write or understand English. She was not aware about the nature of wok of Neeru Gupta and she knew him only through Vijay Kumar Gupta.

207. PW­44 Smt. Usha Chaturvedi was working as Deputy Secretary (Alternative) in Land & Building Department of Govt. of NCT and her duties as Deputy Secretary (Alternative) in Land & Building Department were to recommend the alternate plots to the farmers, whose land had been acquired by the government. She was a member of the Recommendation Committee of Land & Building Department. She knew the policy and procedures regarding the allotment of alternative plots to the farmers being that during 2000­ 2003 the allotment of alternative plots to the DDA was governed under the scheme of Large Scale Acquisition, Development and Disposal of Land in Delhi 1961. The Govt. of NCT had launched welfare scheme to rehabilitate the agriculturist / farmers whose land were acquired by the Govt. for the planned development of Delhi. The procedure regarding the allotment of alternate plot to the farmers was; that firstly, the land must have been notified by the concerned CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 87 of 334 LAC under Sec. 4 of Land Acquisition Act. Secondly, the applicant must be recorded owner in revenue record. Thirdly, he must have got the compensation from the concerned LAC and the certificate of the said effect. Fourthly, he should have applied to the Land & Building Department in specified period. Fifthly, he or his family or his dependent should not own any other plot or residential property out of village abadi. Sixthly that the entire land of the farmer must have been acquired and he should not have been left with any other piece of agriculture land.

208. She detailed that if someone had purchased the land through auction, he should get the certificate from the concerned Ministry in his name, whereafter one will be entitled for compensation and recommendation for alternative plot. She then stated about the category of those persons who were not covered under the Welfare Scheme, being (i) who were not recorded owner in the revenue record or had not received compensation from the concerned LAC, (ii) if they have already a plot or residential premises in his / his family/ dependent's name in urban area, (iii) if acquired land had built up area of more than 20% and whose possession was not given to the Govt. agency i.e. DDA. She stated that besides the above the following were those category of cases who were not eligible for alternative plots,

(iv) applicant who had purchased the land by sale deed after the issuance of notification under Sec. 4 of the Land Acquisition Act and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 88 of 334 the land had not been mutated in his name, (v) the person who has purchased the land in contravention of the provision of Delhi Land Reform Act 1984 or the Delhi Land (Restriction on Transfer) Act 1962 or any other law in force or the person who does not have documentary evidence of bonafide lawful acquisition of such land and

(vi) the farmers who had not applied within the specified period as notified through public notice.

209. It was deposed further that in the year 1988, the Ministry of Home Affairs launched a Welfare Scheme through public notice for those farmers whose land have been acquired but they had not applied for any alternative plot, they can apply for alternative plots by the cut of date as mentioned in the public notice i.e. 01.04.1989. It was deposed that in response to the public notice, number of applications were received in the Land and Building Department. She further stated that the applications were required to be filed in prescribed format alongwith the Khatoni, LAC certificate and three photographs of applicant/farmer. The applications were received at the Central R&I Branch of L&BD and were diarized by the concerned official, from where they were sent to the concerned alternative branch. The alternative branch again diarized the same and gave them file number as per the zones, whereafter, LAC certificates were used to be sent to the concerned revenue district for verification.

210. She deposed that after receiving the verification report from CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 89 of 334 the concerned revenue district, they were again cross checked by the Patvari, Kanoongo of the Land Acquisition branch of Land and Building Department. Thereafter, the file was sent to Writ Cell for further legal scrutiny of the application by the Law Officers. After obtaining the legal opinion, a detailed brief file was prepared by the concerned Clerk and the concerned file was to be put up and routed through the Head of the branch i.e. the Deputy Director to various branches of the revenue / L&B department. She stated that after completing all these formalities, files were placed before the competent authority of L & B department to fix date for calling the meeting of Recommendation Committee. Recommendation Committee consisted of Principal Secretary, Additional Secretary, Deputy Legal Advisor and Deputy Director of the Alternative Branch. After approval of the date, notices were issued to the concerned members of the Recommendation Committee for the meeting. In the meeting on the scheduled time and venue cases were placed before the members. Some of the cases were approved and some get rejected due to some deficiencies. Minutes of the meeting were issued after the meeting in which all the details of each and every approved and rejected case were mentioned. She detailed that after the minutes of the meeting was prepared, the deficiency memos were issued to the farmers/applicants to complete their papers and for approved cases, recommendation letter in triplicate was issued (one for DDA, other for applicant and third one is office copy). The triplicate copies were CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 90 of 334 prepared in three colours i.e. green colour letter for the DDA, yellow colour for the applicant and pink for office copy. These letters also bear the booklet number and attested photograph of the applicant. These letters were sent through Central R&I branch of L&B department to DDA and the applicant through post.

211. The concerned dealing Assistant prepared the recommendation letter having details of applicant name, village name, Khasra no. and total area of acquired land in the prescribed proforma, which was signed by the Dy. Director of the Alternative Branch. It was detailed that after recommending the alternative plot and issuing order, the file was consigned to the record room of L&B department.

212. She stated that about 131 applications were received from the Rangpuri Village, Delhi, at which stage, she was shown Ex.PW4/A which was a recommendation letter pertaining to Nitesh Kumar. After going through the same, she stated that word 'F­32' denotes the zone no. which was South, '50­A' denotes to Rangpuri Village, '159' denotes Serial no. of the application/file, '89' denotes the year of receiving of the application. The date of issue of this letter is 26.05.2003.

213. She was cross­examined by Sh. B. K. Wadhwa and Sh. Chander Maini, ld. Counsels for Badrul Islam (A1), wherein she admitted that number of departments were involved in order to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 91 of 334 ascertain and verify the application made by any individual for alternative plot. She further admitted that the departments namely Revenue, Building, Legal branch of L & B department, Acquisition branch of L & B department etc. have to verify the authenticity of the documents annexed alongwith the application moved by the applicant for alternative plot. She admitted that after positive report on the verification and authenticity of the documents annexed alongwith the application by the above­stated department, the said file is put up before the alternative branch L & B department. She admitted that after completion of abovesaid process of verification etc., the said file is put up before the Committee comprising of Secretary­cum­ Commissioner, Joint Secretary, Legal Advisor/Dy. Legal Advisor and Dy. Director of the Alternative Branch.

214. She stated that although notices are issued in respect of convening of meeting of the Committee for consideration of the application for alternative plot, however, in some cases certain days and times are fixed for such meeting. She stated that after taking the approval of the competent authority, Dy. Director of the alternative branch issues notice for convening the meeting. The files containing application etc. are kept under the possession of Dealing Assistant. She detailed that the competent authority means either the Secretary of L & B department or Joint Secretary.

215. She admitted that all the files are put before the Committee CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 92 of 334 and the members of said Committee meticulously examine the files and documents. She admitted that it is the prerogative of the Committee either to reject or accept on the basis of the documents placed in the file. She also admitted that any member of the Committee may take objection in respect of any file/document placed before him for alternative plot and that, in case of objection having been taken by any member with regard to any documents/deficiencies in the file the said case is liable to the rejected or deferred for completion of the documents/deficiencies. However, where the applicant is not eligible as per rules his case will be rejected). She further stated that the Committee takes a collective decision, however the Secretary (L&B) may return the file for reconsideration. She stated that in case of approval of the application for alternative plot by the Committee it is always a collective decision of the Committee. Secretary (L&B) is empowered to defer/put the matter for reconsideration in case of any deficiency found in the application. She stated that document Ex.PW4/A was constructed in the year 1989 and also could not say about the factum that the document Ex.PW4/A was processed since year 1989 as she was not posted at that time. She was not knowing when Badrul Islam (A1) became the Dy. Director L&B.

216. As per her statement, letter to DDA was issued as Dy. Secretary after approval of the Secretary and letter on stated that letter CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 93 of 334 started with the words " I am directed", which means he was issuing order on behalf of the Secretary, L & B department. The witness was shown the document Ex.PW4/A where the letter to DDA was also starting with the wordings "I am directed".

217. She stated that she could not tell exact number of staff deputed in the alternative branch of the L & B department during the year 2005. During her tenure between 2013­2016, there used to be about 7­8 persons working in the said branch and that, each staff member was alloted particular work of the branch. The file pertaining to L & B department alternative were in possession of Dealing Assistant of concerned Zone. The Senior to Dealing Assistant is supposed to be the Superintendent of the Branch, then Dy. Director.

218. She detailed that the agenda of the meeting was used to be sent to the member of the Committee before convening the meeting. There was no specific number of days before convening the meeting for sending the agenda to the members, however, she stated that it was certain that before the meeting, the agenda was to be with the member of the Committee. The Dealing Assistant generally prepares the agenda of the meeting. Files were not shown / sent to the Members before the meeting as the same were available to the members during the meeting. She denied that accused Badrul Islam performed his duty as Dy. Director L & B alternative as per law and depicting the prudence in discharge of his official duty. She denied CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 94 of 334 the suggestion that on the basis of the reports / inquiry/ recommendation/documents etc. being sent by the other departments, the same were put up before the Committee comprising of Senior persons and on the basis of the collective decision taken by the Committee the appropriate recommendations were made.

219. In her further cross­examination by Sh. Javed Akhtar, ld. Counsel for A­2, A­3 and A­4, she denied that there was a separate branch/officials under the nomenclature LAC in the L&B department to verify the applications of the farmers for alternative plots, at which stage she volunteered that said work was done by the LAC concerned which comes under the revenue department of Govt. of NCT Delhi. She stated that report of the LAC concerned was cross checked by the Kanoongo/Patwari from the Land Acquisition Branch of L & B department and she further admitted that the Secretary /Dy. Secretary /Superintendent /Dealing Assistant /Dy. Director does not personally verify the report of the LAC concerned, at which stage, she volunteered that in case of any doubt they can verify / cross check telephonically or personally also. She denied that accused S.S.Malhi, the then Dealing Assistant was doing his job as per the norms and procedure required for the work of the Dealing Assistant.

220. In her further cross­examination by Sh. Nishant Kumar Srivastav, ld. Counsel for A­5, she stated that she could not say whether the photograph appended to Ex.PW4/A pertained to the year CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 95 of 334 1989 or at the most year 2003.

221. PW­45 Smt. Krishna Setia was UDC in DDA in Land and Sale Branch (Residential) from 2004 to 2006. At that time Sh.Sanjeev Kumar was Deputy Director and Sh. Bhopal Singh was Assistant Director / Lease Administration Officer (LAO), Sh. Mohan Lal was the Programme Assistant and Sh. S. C. Kaushik was the Assistant and Sh. Tej Pal Singh Tomar was UDC. As UDC she looked after the execution of lease work for one month only i.e. in the month of September, 2004. At that time, the work of lease deed execution was conducted either once or twice in a week depending upon the number of case files of allottees. Normally, 7­8 cases of execution of lease deed took place, which files were carried out by LDC / UDC from the office of Land & Sale Branch to the hall where the lease deeds were executed. It was the practice that UDC / LDC has to witness the execution of the lease deed and the lease deed papers were signed by Lease Administration Officer, Land & Sale Branch of the DDA. The lease deed papers were also signed by the allottees and the two witnesses. She detailed that prior to execution of the lease deed, identity proof of the allottee and of both witnesses were checked and verified from the original and a self attested copy of identify proof was also taken and kept on record, at which stage, she was shown the perpetual lease pertaining to Nitesh Kumar dated 21.09.2004 which was already Ex.PW25/B, on which, she identified signatures of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 96 of 334 Bhupal Singh on the five papers of the deed which were already at point F on all the five pages along with his official seal. She also identified the signatures of Sh. Tej Pal Singh already at point D and her own signatures already at point E and that of Nitesh Kumar at point B and the signatures of witnesses of Shahid at point C and Budh Prakash at point A on the fifth page of the deed. She also identified the signatures of Nitesh Kumar mark Q­52 and of Shahid at point B at the back of the fifth page and signatures of Nitesh Kumar at page no. 6 as Q­51 of the deed. She was shown perpetual lease deed Ex.PW16/B which was also the perpetual lease pertaining to Nitesh Kumar, on which she identified signatures of Bhupal Singh at point A (on five pages), that of Tej Pal Singh at point B, herself at point C and that of Nitesh Kumar at point D and both witnesses Shahid at point E and Budh Prakash at point F. She also identified the signature of Nitesh Kumar mark Q­106, Q­108, Q­110 on Ex.PW11/D2. She had signed the lease as she had verified the documents of both witnesses. She was shown noting page 13/N of file F27 (16/2003 LSB (R) which contained her noting portion X to X1 and also containing her signature at point A. She detailed that the said noting was regarding the receiving three copies of perpetual lease in respect of Plot No. 66, Block­B, Sector 13, Dwarka in residential scheme and the allottee has deposited ground rent w.e.f. 10.08.2004 to 09.08.2009 vide challan no. 11126804 dated 08.07.2004. The noting was then exhibited as CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 97 of 334 Ex.PW45/A and she had forwarded the said note sheet to Lease Administration Office for further proceedings. Further, there was another noting on the same page dated 21.09.2004 which was portion Y to Y and her signatures were at point A. She had made this note regarding receipt of lease deed and site plan on 21.09.2004 to the allottee. After her noting she had sent the file to Assistant.

222. She detailed that there was a public hearing held bi­weekly regarding the disputes of the address of the allottee, during which, the allottee could submit or collect their documents/letter from Public Hearing Authority. The documents of the cases were received in their section through diary section of their own branch.

223. During cross­examination, nothing substantial was asked by Sh. B. K. Wadhwa, ld. Counsel for A­1 Badrul Islam. No cross­ examination of her was conducted by Sh. Javed Akhtar, ld. Counsel for A­2, A­3 and A­4. In her cross­examination by Sh. Nishant Kumar Srivastav, ld. Counsel for A­5, she denied that there was a procedure for taking photograph of the allottee on the official camera installed in the office and got printed on the perpetual lease deed. She volunteered that there was no such procedure existing in the year 2004 only photograph of allottee was affixed on the perpetual lease. She denied that no execution of the above said lease took place in her presence, though she had not witnessed the allottee putting thumb impression or signatures in her presence as her responsibility was to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 98 of 334 only check the documents. She could not identify the allottee i.e. Nitesh Kumar @ Harmesh Kumar (A­5).

224. PW­46 Sh. Dinesh Singh was posted as Office Superintendent (Alternative) in L & B was looking after the work of Alternative Branch and on direction of Ms. Usha Chaturvedi handed over the documents to CBI. He identified the signatures of Ms. Usha Chaturvedi on handing over memo dated 07.10.2015, whereafter the memo was exhibited as Ex.PW46/A. It contained the information regarding file no. F.32(50A)/159/89­L&B/ALT, and as per the record the number of applications received were up to serial no. 136 and there was no file bearing no. 159 being maintained in the alternative branch. He stated that he was custodian of the documents annexed to the letter Ex.PW46/A and he had attested these documents under his seal and signatures. He identified the copy of guidelines for allotment of alternative plots, Government of NCT of Delhi bearing his seal and signatures on all the seven pages in token of attestation of the same and the same was then exhibited as Ex.PW46/B (D­73). He was then shown the copy of the relevant pages of Recommendation Letter issued Registrar from serial No. 320 to 339 (five pages). He identified his signature alongwith his seal at point A in token of the attestation of the same, whereafter it was exhibited as Ex.PW46/C (D­74). He went through the entry at serial no. 325 (mark X to X1). The entry pertaining to file F­32 (50­A) / 159/89/L & B /ALT pertaining to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 99 of 334 Nitesh Kumar, in which entry the address was mentioned as 55 kms stone, Partapur by­pass, Meerut, U.P. The said address has been cut by a horizontal line with the remarks "not appeared and therefore form no. 001143 issued on 09.04.1993" (mark X2). He stated that there was also a remark "recommended in the meeting held on 03.12.2002 issued in favour of Sh. Thakur Singh S/o Bhaghel Singh"

(mark X3).

225. He was then shown entry at serial no. 333 which pertained to file no. 32(55/110/99/L&B/ALT) (mark Y to Y1). The entry pertained to Sh.Thakur Singh S/o Bhaghel Singh and for which the recommendation letter No. 001143 was issued. He was then shown the entry at serial no. 339 (mark Y2 to Y3) which pertains to the file F­32(50­A)/159/89/L&B/ALT pertaining to Nitesh Kumar for which the recommendation letter No. 001354 was issued. He was then shown the entry below the entry at serial no. 339 which showed that the book no. 28 bearing serial no. 001355 to 1400 was handed over to Smt. Sheela, LDC and it was handed by S.S. Malhi, Grade­III.

226. On being shown relevant photocopy of the stock register of recommendation letter maintained at alternative branch, the entry at serial no. 28 at page no. 3 of the said register there was an entry dated 10.04.2003, "received book no. 28 from serial no. 001355 to 1400".

pertaining to recommendation of plots as mentioned therein to DSP, CBI Sh. N. V. Navneet Krishnan at CBI Office against Ex.PW46/E CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 100 of 334 (D­88). On her instructions he visited CBI office and handed over the file pertaining to "Constitution of Committee for Alternative Plots" to Insp. Sanjay Kumar who seized the same vide the production­cum­ receipt memo dated 14.10.2015 Ex.PW46/F. The document already Ex.A­4 (the minutes) was attested by him under his signature and seal at point A on all 65 pages at point C. He had handed over letter dated 23.10.2015 of Sh. Ramesh Kumar, Deputy Secretary (Admn.) Ex.PW46/G (D­93). Vide this letter the information / documents in original / photocopies mentioned therein were handed over to Insp. Sanjay Kumar.

227. In his further examination­in­chief, he was shown the file pertaining to Constitution of Committee for alternative plots bearing no. F­30 (Misc)/1/97/L & B/ALT which contained 27 summary of case files on internal page no. 13 to 39. All the summaries contained certification beneath the remarks at point A that the particulars above were found correct as per record except the summary pertaining to applicant Moti Ram bearing file no. F33(2913/2000/L & B/ALT) at page no.20. He detailed that these certifications appeared to be given by Sh. S. S. Malhi as the name was mentioned below the signature of the official. He was then shown the note sheet portion of the file, page no. 3/N, para no. 7 of the noting and the draft of Minutes of Meeting dated 03.12.2002 which was put up on 09.12.2002. The draft of Minutes was at internal page no. 41 to 46 of the above file. He was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 101 of 334 shown page no. 4/N of the said file Ex.PW13/D­3. It showed the draft Minutes of Meeting by the Secretary (Land) on 15.01.2003.

228. He was cross­examined by Sh. Javed Akhtar by ld. Counsel for A2 to A4, wherein he stated that he was unable to remember whether the CBI had asked from him or has taken from him Central Diary Register where the applications received for alternative plots were initially registered. He volunteered that various documents were demanded and handed over.

229. He admitted that he had never seen/viewed the Central Diary Register. He stated that he being the Office Superintendent was custodian of all the files pertaining to alternative branch. He detailed that he had not taken charge of any file from his predecessor because the Superintendent does not take charge of the files. He could not detail the number of the total files of which he was custodian as Office Superintendent. He detailed that one Sheela Devi had never been working in his office. He detailed that all the files were kept by LDC / UDC as per work assigned to them. He admitted the suggestion that he was not aware of the contents of the documents and the files handed over by him to the CBI.

230. He was then cross­examined by Sh. B. K. Wadhwa, ld. Counsel for Badrul Islam (A1), wherein he stated that file bearing no. 159 was never maintained in their office. He denied the suggestion CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 102 of 334 that file bearing no. 159 was duly maintained and existed in their office and its details were mentioned in the Central Diary Register and for that reason it was sent to Recommendation Committee for want of knowledge. He was not subjected to any cross­examination on behalf of Nikesh Kumar @ Harmesh Kumar (A5).

231. PW­47 Pawan Kumar Bansal was working as Office Superintendent in BSNL, near Nagarpalika, Shri Karanpur, District Shri Ganganagar, Rajasthan. He knew accused Harmesh Kumar as he was his neighbour and residing in the same vicinity. He detailed that house number of Harmesh Kumar was 89, B­Block, Ward no.6, Shri Karanpur, District Shri Ganganagar, Rajasthan. He detailed that at about 3.00 p.m., accused Harmesh Kumar came to his house and asked to accompany him as CBI had raided at the house and CBI need some witness to witness the search and on asking of accused, he visited the house of the accused and met with CBI officers. He detailed that one of the officials introduced himself and told him that CBI was going to conduct a search of house of accused Harmesh Kumar and his presence was required as a witness.

232. On the date of his deposition, he could not recollect the name of the officer, however, he detailed that besides the CBI officials family of accused he himself and one another person namely Mani Ram were present. He could not recollect the exact time when the search begun, however he stated that he remained present throughout CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 103 of 334 alongwith Mani Ram till the search was conducted. Whatever documents were seized by CBI, were mentioned in list of documents prepared by CBI, which he alongwith Mani Ram and CBI official signed. On the asking of CBI, he alongwith Mani Ram put signatures as a token of witnessing the seizure. He was shown the search list already Ex.A­1 (D­11) and Ex.A­2 (D­10) bearing his signatures at point A on two pages. There were 80 pages of documents seized with search list Ex.A­1 & Ex.A­2. He detailed that he alongwith Mani Ram put signatures on all pages at point B, whereafter the documents were exhibited as Ex.PW47/A. He was not cross­examined by ld. Counsel for A2 to A4. He was also not cross­examined by ld. Counsel for A1. He was cross­examined by Sh. Abhishek Kukkar, ld. Counsel for A5, wherein he detailed that when he joined search at the house of accused Harmesh Kumar, the search was already going and it had not started in his presence and he stayed for about 15­20 minutes at the place of search.

233. PW­48 Sh. Prakash Kumar had worked in Land & Building Department, Government of NCT of Delhi as Secretary. He was part of Recommendation Committee, which was constituted for recommending the allotment of alternative plots to the farmers whose land was acquired by for planned development of Delhi by DDA.

234. He detailed that the Committee consisted of Secretary, L & B CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 104 of 334 as Chairman and other members being Joint Secretary, L & B, Deputy Legal Advisor and Incharge of Alternative Cell.

235. He was the Chairman of the Committee in 2003, while Accused Badrul Islam was the head of the Alternative Branch whose designation was Deputy Director (Alternative).

236. He detailed that the entire Committee deliberated upon cases which were processed by the Alternative Branch when the same were put up before it and as the Chairman he used to preside the Committee meeting.

237. He detailed the procedure that applications were used to be invited and processed by the Alternative Branch which looked at all the required documents namely Revenue Record, payment certificate, affidavit etc. They used to get details verified from the revenue branch and completed cases with all records were put up before the Committee. The Committee was then used to meet when there were about 10­15 cases. There was no other way of processing any application.

238. He was shown the Minutes of Meeting held on 03.12.2002 already Ex.PW15/A­1 circulated on 04.02.2003. He presided over this meeting as Chairman and the agenda of the meeting was to consider 29 cases regarding allotment of alternative plots which were placed before the Committee. Alongwith him, there were other CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 105 of 334 members namely, Mr. Z.U Siddiqui, Joint Secretary, L&B, Sh.Subash Gupta, Deputy Legal Advisor and Sh. Badrul Islam, Deputy Director (Alternative). He identified his signatures on Minutes of Meeting at point B and the list of recommended cases (2 pages) which was already Ex.PW15/B, Annexure­B list of rejected cases already Ex.PW15/C, Annexure­C list of cases recommended for re­ examination already Ex.PW15/D. He detailed that 18 cases were recommended as detailed in annexure­A, two cases were rejected as detailed in annexure­B and there were 9 cases which were sent for reconsideration as mentioned in annexure­C.

239. He detailed that Badrul Islam (A1) was the head of Alternative Branch and used to examine and process all the cases along with his staff and place the same before the Committee. He detailed the responsibilities of accused Badrul Islam were that of convener of the Committee being the head of the branch were handling cases of alternate plot applications. All the documents used to be held by the alternative branch and accused Badrul Islam was the head of the branch at that time.

240. He was then shown copy of notings at page no. 3/N and 4/N in the file D­89 pertaining to constitution of the Committee for alternative plots which contained his notings alongwith his signature at point A at page no. 3/N, which was then exhibited as Ex.PW48/A CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 106 of 334 and his noting was already Ex.PW13/D­3 alongwith his signature at point D. It was also mentioned at that stage by the Court that the original of these notings pages were in RC No. 12A/2016.

241. He detailed that noting on the page 3/N was regarding the draft Minutes put up for approval and the noting on the page 4/N was regarding fair Minutes of Meeting for signature. He approved the draft of Minutes and then signed the fair Minutes. Draft of Minutes of Meeting dated 03.12.2003 were on record in the file D­89 from page no. 41 to 46 which he had approved and were then exhibited as Ex.PW48/B.

242. He detailed that during investigation when he was called by CBI for inquiry it came to his knowledge that there was irregularity in this particular case of Nitesh Kumar and there were some more cases besides the present case of Nitesh Kumar where files were not available in the Alternative Branch. At that stage, he was put a Court questions by ld. Predecessor as to what was the irregularity in the Nitesh Kumar's case and other cases as stated above, qua which he detailed that he was told by the Investigating Officer that in these cases the files were missing on which the processing was done which was also produced before the Recommendation Committee. At which stage, he was again asked as to who were responsible for processing these files and placing before the Recommendation Committee, to which he replied specifically that after the applications alongwith CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 107 of 334 annexures were received by the Alternative Branch, the Assistant Sh. Malhi and the then Deputy Director Sh. Badrul Islam were required to examine each paper before putting up the same before the Committee and if he recalled their signatures were also there on each paper contained in the application form that they were verified by them.

243. At that stage, witness was put for cross­examination. He was then cross­examined by Sh. Javed Akhtar, ld. Counsel for A2 to A4. He detailed that when the investigation was going on he had taken VRS and had not conducted any enquiry regarding missing file. He had come to know about the irregularity during his tenure as Secretary, L&B Department one case of allotment of alternative plot to a dead person came into my knowledge and he passed an order for proper scrutiny of cases so that such cases are not processed in future.

244. He detailed the procedure that as far as he could remember whenever an application for alternative plot is received the same was to be entered in the Central Diary Register along with all the receipts. He detailed that it was the duty of the applicant to file all the necessary and required documents with the application. The verification of the documents is to be done by the LAC as well as Revenue Branch of L&B. He detailed that he could not comment if the Alternative Branch was responsible only to process the file containing the document and it was not required to personally verify the correctness and genuineness of the documents which were to be CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 108 of 334 verified by the LAC and the Revenue Branch of L&B Department. At which stage, he was confronted with document already Ex.PW13/D­3 and was asked that when he had signed the same, to which he replied that he had signed the same on 4.2.2003. He detailed that there was a gap of 61 days between the convening of the Recommendation Committee meeting on 03.12.2002 and the fair Minutes singed by him on 04.02.2003. At which stage, he volunteered that the draft Minutes were placed before the Joint Secretary on 09.12.2002 which he amended and sent back to DD Alternate on 26.12.2002. The amended draft Minutes were put up by the DD Alternative Branch before Joint Secretary on 06.01.2003. The draft Minutes were approved by him on 15.01.2003 and fair Minutes were put up before him on 16.01.2003 which he signed on 04.02.2003. He detailed that each member of the Committee was to go through every document of application as well as the initials of the persons who has verified the documents. At which stage, he was given a suggestion that before putting the case before the Recommendation Committee each case and its documents are thoroughly checked by the Legal Branch of the L&B Department, to which he replied that after going through the file as per his memory these cases were not scrutinized by the Deputy LA or Legal Branch of L&B separately and as Deputy LA was the part of the Recommendation Committee he examined them when the Committee met.

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245. He detailed that each member of the Committee was responsible for the recommendation / rejection / reconsideration of the matters put before the committee. He denied that one Sheela, LDC traced all the files from the Department and the same were in the Department. He was then shown a letter dated 28.03.2003 written by the witness to Secretary (Services), Government of NCT of Delhi copy of which was obtained through RTI, which was then exhibited as Ex.PW48/DX­1 (three pages), on which witness volunteered that letter was written to the Secretary (Services) for continuation of Sh.Malhi for computerization of Alternative Branch which was already under way as he was the only experienced and handling these cases. He was not subjected to any cross­examination by other accused.

246. PW­49 Sh. Ashok Kumar Arora brother of Smt. Sudesh Madan deposed that she had expired. He knew Sh. Pramod Garg, who also was a property dealer. In the year 2003­2004 he was asked to finance Rs. 16 lakhs with interest of 2% per annum for purchase of plot in Dwarka. Sh. Pramod Garg made a proposal to his sister Smt. Sudesh Madan as a security of the said amount, her name will be included in the Agreement to Sell, since his sister had given Rs. 8 lakhs as finance.

247. He identified signatures of his sister Smt. Sudesh Madan, Smt. Monica Garg and Mrs. Ramesh Kumari. He knew Smt. Monica Garg CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 110 of 334 as she was Bhabi of Pramod Garg. He knew Mrs. Ramesh Kumari as she was sister of his friend Sh. Inderjeet Bhayana, Advocate. He was then shown Agreement to Sell executed by Nitesh Kumar in favour of Sudesh Madan at X­1, Mrs. Ramesh Kumari X­2, Monica Garg X­3 on all pages of the said document. This Agreement to Sell was executed between Nitesh Kumar and (i) Smt. Sudesh Madan (for 50% share), (ii) Smt. Ramesh Kumari (for 25% share) (iii) Smt. Monica Garg (for 25% share) for purchase of plot no. 66, Block­B, Pocket No. 10, Sector­13, Dwarka Residential Scheme, Dwarka. The sale consideration was Rs.16,14,000/­. He was also shown the Agreement to Sell dated 11.05.2005 running into 10 pages (D­23), on which he identified signatures of his sister Smt. Sudesh Madan on the said document at point A on all the pages and that of Smt. Ramesh Kumari at point B and of Smt. Monica Garg at point C on all the pages of the said document, after which the document was exhibited as Ex.PW49/A (colly.). He detailed that this Agreement to Sell was between (i) Smt. Sudesh Madan (for 50% share), (ii) Smt. Ramesh Kumari (for 25% share) (iii) Smt. Monica Garg (for 25% share) for sale of plot no. 66, Block­B, Pocket No. 10, Sector­13, Dwarka Residential Scheme, Dwarka to one Smt.Manjeet Kaur and the total sale consideration was Rs. 17,30,000/­. This deed was witnessed by Sh. Pramod Garg and he identified the signatures of Sh. Pramod Garg at already mark Q­146 in red pencil. He stated that during execution of both the Agreement to Sell he was present along with his sister CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 111 of 334 Smt. Sudesh Madan.

248. PW­50 Smt. Ramesh Kumari detailed that she knew Sh.Inderjeet Bhayana who was her brother and she knew Sh. Pramod Garg through his brother Sh. Inderjeet Bhayana. She did not know the business of Sh. Pramod Garg, however, she had financed Rs. 4 lakhs to Sh. Pramod Garg through her brother Sh. Inderjeet Bhayana. Since she had financed Rs. 4 lakhs for the property situated at Dwarka, Delhi, Sh. Pramod Garg included her name in Agreement to Sell for 25% share. She identified her signature at point X on Agreement to Sell already Ex.PW17/B. She detailed that this deed was executed between Nitesh Kumar and (i) Smt. Sudesh Madan (for 50% share),

(ii) Smt. Ramesh Kumari (for 25% share) (iii) Smt. Monica Garg (for 25% share) for purchase of plot no. 66, Block­B, Pocket No. 10, Sector­13, Dwarka Residential Scheme, Dwarka. The sale consideration was Rs. 16,14,000/­. She stated that Smt.Sudesh Madan and Smt. Monica Garg were guru sisters. She could not identify the person and his signature who had agreed to sell the above said property to Smt. Sudesh Madan, herself and Smt. Monica Garg. At which stage, she was declared hostile and permission was granted to prosecution for cross­examination, at which stage, she was confronted with her statement recorded u/s 161 of Cr.P.C. on 18.08.2015, which was already Ex.PW50/PX­1.

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249. PW­51 Smt. Monica Garg knew Sh. Pramod Garg who was her brother­in­law. She detailed that he was doing business of property dealing at Dwarka. Her husband was also doing the business of property dealing at Dwarka along with her brother­in­law Sh.Pramod Garg. She came to know about Smt. Sudesh Madan and Smt. Ramesh Kumari when they met at the time of Agreement to Sell. She identified her signature at point X­3 on all five pagesd and her photograph at point Y­2 on the Agreement to Sell Ex.PW17/B (D­

17).

250. She stated that Agreement to Sell was arranged by her brother­ in­law Pramod Garg. She did not know Nitesh Kumar and could not identify the photograph of the person at point Y­3 on the day of her deposition. She was unable to recollect whether the person in the photograph was the present at the time of execution of above said document. At which stage, she was declared hostile and permission to cross­examine the witness was given to the prosecution, whereafter, she was confronted with her statement recorded u/s 161 on 18.08.2015 Ex.PW51/PX­1 from portion A to A. She denied having told the IO in the statement that she can identify the photograph, signatures and thumb impression. She was not cross­ examined by accused persons.

251. PW­52 Sh. Swaroop Chand Rana was working as Section CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 113 of 334 Officer in Unique Identification Authority of India (UIDAI), Regional Office, Delhi and had provided certified copy of the Aadhar Enrollment Form pertaining to Harmesh Kumar to IO (Ex.PW52/A). He identified his official seal alongwith his signature at point A on the certified copy of Adhar form which was then Ex.PW52/B (D­131). The certified copy of enrollment slip of Harmesh Kumar bearing his signatures and official seal was exhibited as Ex.PW52/C. The certified copy of voter ID card of Harmesh Kumar was Ex.PW52/D. The copy of the family ration card was exhibited as Ex.PW52/E. The certified copy of e­aadhar letter of Hamita Rani (D­136), then exhibited as Ex.PW52/F.

252. PW­53 Sh. Ritesh Narayan was Reader in SDM, Kanjhawala, Delhi and on 07.12.2015 and vide Ex.PW53/A handed over relevant extract as stamp vendor register. He was then shown the true copy of the relevant page no. 82 of the stamp vendor register bearing his signature alongwith official seal at point A and the same was then exhibited as Ex.PW53/D (D­149). The entry at sl. no. 194 marked X to X­1 pertained to Nitesh Kumar S/o Sh. Bed Prakash, R/o Lohia Nagar, Ghaziabad, U.P. He was then shown the true copies of page no. 298 (D­150) and page no. 402 (D­151) of the above vendor register. Both contained his signatures alongwith his official seal at point A and was then exhibited as Ex.PW53/E and Ex.PW53/F respectively.

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253. He was cross­examined by Sh. Javed Akhtar, ld. Counsel for A­2, to A­4, wherein he stated that the original stamp register mentioned above had been taken back by him on the same day when it was produced before the CBI. He could not detail whether the name of Nitesh S/o Bed Prakash was entered in the register as well as in the true copy of the register shown to him on the day of his deposition as Ex.PW53/E and detailed that only by Arvind Kumar, Stamp Vendor who made the entry in the register. He was not subjected to cross­examination by ld. Counsels for other accused persons.

254. PW­54 Sh. B. Magesh Krishnaratnam was Sr. Scientific Officer, Grade­II, Finger Print at CFSL, CBI, CGO Complex, Lodhi Road, New Delhi. He detailed that Superintendent of Police, CBI, ACU­IV, AC­II vide his letter dated 01.12.2015 had sent original documents i.e. perpetual lease deed dated 21.09.2014 in the name of Sh. Nitesh Kumar executed in DDA bearing question thumb with finger impression mark Q­107, Q­109, Q­111.

255. He stated that Q­111 was further marked as Q­111A, Q­111B and Q­111C and that photocopy of general power of attorney and agreement to sell both dated 21.09.2004 executed by Sh. Nitesh Kumar in favour of three ladies bearing question thumb and finger impressions marked as Q­112, Q­115. He further stated that Q­115 was further marked as Q­115A, Q­115B, Q­115C and Q­115D, Q­ CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 115 of 334 117, Q­118, Q­120, Q­122, Q­124, Q­124 was again marked as Q124A, Q­124B, Q­124C and Q­124D. Q­127, Q­128, Q­128 was further marked as Q­128A, Q­128B, Q­128C, Q­128D, Q­131, Q­133, Q­135, Q­136.

256. He detailed that the photocopy of GPA, SPA and Agreement to Sell all dated 11.05.2005 executed by Smt. Sudesh Madan and two ladies in favour of Smt. Manjeet Kaur bearing question thumb impressions marked as Q­139, Q142, Q­145 and specimen left and right thumb / finger impressions of Sh. Harmesh Kumar @ Nitesh Kumar son of late Sh. Hemraj marked as S­41 to S­46. Specimen left thumb impressions of Pramod Garg son of Sh. B. R. Garg marked as S­82 to S­86 which documents duly received in their office for seeking the expert report thereon.

257. He detailed that the documents were marked to him by his senior officer with the instructions to examine and report thereon. All these documents were received by him. He carefully examined and compared the question thumb / finger impressions and specimen thumb / finger impressions with the help of magnification lense and all other scientific aids. The question thumb impressions marked Q­ 107, Q­109, Q­115, Q­117, Q­118, Q­120, Q­122, Q­124, Q­127, Q­ 128, Q­131, Q­133, Q­135, Q­136 were matched / identical with specimen left thumb impressions of Harmesh Kumar @ Nitesh Kumar marked as specimen slip marked as LTI­42 (S­42).

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258. The question finger impressions marked as Q­115D, Q­124A, Q­128A were identical with specimen left index impression of Sh.Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LIS­41 (S­41).

259. The question finger impression marked as Q­115C, Q­124B, Q­128B are identical with specimen middle impressions of Harmesh Kumar @ Nitesh Kumar, as specimen slip marked as LMS­41 (S­41). He detailed that the question finger impressions marked as Q­115B, Q­124C, Q­128C were identical with specimen left ring impressions of Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LRS­41 (S­41).

260. The question finger impressions marked as Q­115A, Q­124D, Q­128D were identical with specimen left little impressions of Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LLS­45 (S­45). The report was exhibited as Ex.PW54/A (colly).

261. He had also taken the 10 digit finger print/ palm print impression slips of Harmesh Kumar @ Nitesh Kumar at CBI Office in presence of the independent witnesses. He identified documents Ex.PW39/A (colly.) part of D­124 running into 5 pages bearing his signatures point C on each page. He had taken into consideration during his examination of the documents sent for his opinion.

262. He was not cross­examined by ld. Counsel for Badrul Islam CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 117 of 334 (A1). During his cross­examination by Sh. Javed Akhtar, ld. Counsel for A2 to A4, he admitted that except the perpetual lease deed dated 21.09.2004 in the name of Nitesh Kumar executed in DDA which was sent before him for comparison in original but other documents of column no. 2 and 3 were the photocopies. He admitted that the originals of documents of column no. 2 and 3 were never submitted to him. He denied that proper ridges etc. were not possible to be compared from the photocopy of a document. He explained that there was possibility of manipulation in the thumb impression of any person on the photocopy but it can be easily identified from the photocopy also for the purpose of comparison. He denied that when a person put the thumb impression forcefully, lightly and having pressure lightly, then the ridge can be different in the said three conditions and stated that ridge can never be different in all the three conditions and remained the same. He detailed that he took the thumb impression, palm prints of Nitesh Kumar on 13.06.2015 on Ex.PW39/A at CBI, HQ as he had gone there when called by SP CBI. He took the thumb impressions as per the request of SP CBI and did not verify whether there was a judicial order permitting SP CBI to take the thumb impression of Nitesh Kumar or not. He denied that the aforesaid thumb impression and palm prints of Nitesh Kumar are not taken as per rules and procedure. He was cross­examined by ld. Counsel for Nitesh Kumar @ Harmesh Kumar (A5), who adopted the cross­examination above.

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263. PW­55 Smt. Savita Dahiya was notary Public. She was shown affidavit dated 21.9.2004. After having seen the document, she stated that it was not attested by her. The seal of Notary Public in the name of Savita Dahiya, Advocate appeared on the document did not belong to her, however, it contained her name in the seal impression but it was not affixed by her. The initial put at point A was not her and the document was never placed before her. She denied attestation on affidavit dated 21.09.2004 Ex.PW­1/G (D­13) and register Ex.PW55/B.

264. PW­56 Sh. Arvind Singh, was a stamp vendor. He detailed that (stamp paper) Ex.PW55/D, Ex.PW1/D, Ex.PW56/A, Ex.PW56/B, Ex.PW53/C (stamp vending register) was sold to Sh. Nitesh Kumar, S/o. Sh.Bed Prakash R/o. Lohia Nagar, Ghaziabad. He did not know the person named Nitesh Kumar and stated he had stated regarding selling of stamp paper to him on the basis of name mentioned on the back side of the stamp paper. At which stage, he was put a Court Question "Whether at the time of selling the stamp paper, you verify the document / or identity of person in whose name the stamp paper is being purchased" to which he answered as below : "At that time we never used to verify the identity of person who used to purchase the stamp papers. But, now a days, we mentioned the mobile number etc. of the purchaser".

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265. PW­57 Sh. Vijay Verma Sr. Scientific officer, CFSL, CBI, CGO Complex. He detailed that the documents of this case were scientifically examined and opinions were expressed vide report no. CFSL­2014/D­1714 dated 27.03.2015 and the same was forwarded to SP, CBI through letter no. CFSL­2014/D­1714/988 dated 31.03.2015 by director CFSL, CBI, New Delhi. The copy of the above­said report running into 8 pages was bearing his signatures on each page. At which stage, original report dated 27.03.2015 as well as forwarding letter dated 31.03.2015 produced by Sameer Raj Singh, Ahlmad in the Court of Sh. Lal Singh, Spl. Judge, CBI (12), which contained the original report dated 27.03.2015 as well as forwarding letter dated 31.03.2015, whereafter, these were exhibited as Ex.PW57/A (OSR).

266. He detailed that is opinion read "the questioned English initials marked Q­2 to Q­19 showed inconsistency with the specimen English initials marked S­5 to S­9 attributed to Sheela Devi, indicated their different authorship and then volunteered that marking marked as S­5 to S­9 were actual as S­5 to S­8 attributed to Sheela Devi."

267. He identified the forwarding letter of Director CFSL to CBI bearing signature of the then Director Sh. Rajender Prasad at point A, whereafter it was exhibited as Ex.PW57/B (OSR). He then exhibited the question documents marked Q­2 to Q­19 (original of which was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 120 of 334 produced from the Court of Sh. Lal Singh, ld. Special Judge) containing seal of Document Division. The exact copy of the documents Q­2 to Q­19 was admitted by the witness as D­156 which was unstamped of Document Division, at which stage, photocopy from the original document from the file of Sh. Lal Singh, ld. Special Judge was placed on record. Thereafter, it was exhibited as Ex.PW57/C (colly) and originals were returned after being seen.

268. He was then shown the specimen signature of Smt. Sheela Devi marked as S­5 to S­8 contained in summoned documents and exact photocopy was on record as part of D­160. He identified the seal of Document Division alongwith stamping and marking at point A, whereafter it was exhibited as Ex.PW57/D (colly) (OSR).

269. He was cross­examined by ld. Sh. Javed Akhtar, ld. Counsel for Swaran Singh Malhi (A­2), Neeru Kumar Gupta (A­3) and Sangeeta Gupta (A­4), wherein he denied that the handwriting examination science is not a perfect science. He detailed that he had examined the line quality of Q­2 to Q­19 with S­5 to S­8 and had scientifically examined Q­2 to Q­19 in comparison with S­5 to S­8, where he had observed the disagreement between the two sets, details reasons of which, he expressed in his report. He stated that the line of quality was poor and defective in disputed signatures of Sheela Devi i.e. Q­2 to Q­19 and in the specimen CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 121 of 334 signature i.e S­5 to S­8 and volunteered at that stage that minute and inconspicuous details which also includes line quality were considered while expressing the aforesaid opinion. He admitted that he had received one type of signatures in English for the comparison in the form of S­5 to S­8 and volunteered that since the science is based on principal of comparison "like with like" so the model of both the questioned and specimen signature of Sheela Devi were compared and found of similar model. He had not developed specimen signature with the help of magnifying cameras for the purpose of comparing with the questioned documents and volunteered that examined the original questioned document as well as specimen signatures to study their line quality and minute details under various scientific instruments which also contained magnifiers for examination. The suggestion that he had prepared the false report at the instance of CBI was denied.

270. PW­58 Ms. Nirmala Singh Nayyar was Notary Public at INA Vikas Sadan, New Delhi. She denied the stamp impression on Ex.PW1/J (colly.), Ex.PW43/G, Ex.PW56/B and Ex.PW56/A, Ex.PW43/E, Ex.PW58/A. She stated that notary register for the year 2004 was not available with her as after three years she used to destroy the register as per the rule. She was not cross­examined.

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271. PW­59 Sh. Anil Kaushal was posted as Deputy Secretary, L&B Dept. Govt of NCT Delhi from November, 2012 to March, 2016. He was shown his letter dated 23.09.2015 written to IO bearing his signature at point A exhibited as Ex.PW59/A and was in respect of availability of the file F.32(50A)/159/89/L&B/Alt. His office had intimated to CBI that the above said file had never been consigned to the record room by the alternative branch. Against Ex.PW59/A, he had sent the attested copies of the report dated 17.02.2015, 12.09.2014 and a note dated 20.02.2015 which was enclosed with the letter. The information regarding the non­availability of the above said file was given by Sh.H.S. Kaim, Head Clerk, Record Room, whose signatures he identified at point B.

272. He was then shown attested copy of the internal report dated 17.02.2015 prepared by Sh. H.S. Kaim, Record Keeper, Central Record Room. The photocopy was bearing his signature at point A and the same was then exhibited as Ex.PW59/C. (objected to the mode of proof as original document is not placed on record).

273. He was then shown photocopy of the report dated 12.09.2014 signed by him as Deputy Secretary, Central Record Room, L & B Department bearing impression of his signature at point A and the same was then exhibited as Ex.PW 59/D. This report was marked to Deputy Secretary, Alternative Branch, L & B Dept. by him. (objected CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 123 of 334 to the mode of proof as original document is not placed on record). Vide these reports the status of the file F.32(50A)/159/89/L&B/Alt. was intimated to the CBI.

274. He was then shown the letter dated 09.10.2015 already exhibited as Ex.PW14/A (D­76), vide which their office provided authentic copy of the list of the files received from Alternative Branch in the year 2004 Head no. (30) and (32) to Insp. CBI Sh. Sanjay Kumar, which was bearing his signature at point A. The list of files enclosed was already exhibited as Ex.PW 14/B (colly) (D­77). His signatures at point already A and that of Sh. H.S.Kaim at point B on all the 67 pages.

275. He was then cross­examined Sh. B.K. Wadhwa, ld. Counsel for Badrul Islam (A1), wherein he stated that he could not admit or deny fromwhere A,B,C category of files which were preserved category­wise as category 'A' preserved for indefinite period, while category 'B' preserved for 25 years and category 'C' preserved for 10 years. He could not admit or deny the suggestion that only 'C' category files were sent for consigning to the record room. He volunteered that they were not supposed to see the contents of the file nor the aforementioned categorization was under his domain as it was to be prepared and dealt with in Alternative Branch which only could explain.

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276. He was then questioned that file bearing no.

F.32(50A)/159/89/L&B/Alt. was a 'C' category file supposed to be preserved only for 10 years and had been destroyed after expiry of the said period and for that reason the same was not traceable, to which he replied that he could not state about this fact as he was never posted in Alternative Branch. He denied the suggestion that aforementioned file was available in their record room and they deliberately had not searched the file sincerely.

277. He stated that he could not tell the procedure of weeding out of the files consigned to their record room because the weeding out was to be done by the concerned branch to which the file belonged. Concerned branches had to identify the file to be weeded out and thereafter the said branch was required to seek sanction and permission of Principal Secretary of L&B for destroying the file. The file was opened by the concerned branch head­wise and for that reasons the number (30) and (32) find mentioned in the above said file. He was not cross­examined by ld. Counsel for Nitesh Kumar @ Harmesh Kumar (A5).

278. He was then subjected to cross­examination by Sh. Javed Akhtar, ld. Counsel for A2 to A4, wherein, he detailed that he did not remember whether during his tenure the record room was inspected by Joint Secretary and Secretary, L&B Dept. He was then confronted with the office procedure for Government Offices, 2018 by Rama CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 125 of 334 Jain, Akalank Publications, 2018, wherein his was drawn to Inspection Authorities under Section 137 (page 98). (Copy of the same were already mark­X during the examination of PW­19 Sh. Baidhya Nath Jha) and after perusing the same, he stated that as per said Section there should be inspection by the authorities mentioned therein.

279. He detailed that files pertaining to 6/7 branches are consigned to the record room where he had been working. The person who come to consign the file bring their list containing the name and number of the file and on the said list acknowledgement was given by the dealing clerk. He was then put a question by the court as to what record was maintained in the record room regarding consigning of the file in the record room by any branch, to which replied that a register was maintained in the record room.

280. He was then specifically asked the basis of his saying that file no. F.32(50A)/159/89/L&B/Alt was not consigned in the Central Record Room, to which he replied that they had submitted the report in that regard on the basis of register maintained in the record room.

281. PW­60 Sh. Mukesh Kumar Gupta had worked as UDC in Alternative Branch, L&B Dept. of Govt. of NCT of Delhi from 2013 to Oct, 2016 and his duties were to put up the dak before Section Officer. He detailed that South Delhi Head Files of L&B Dept. were CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 126 of 334 being dealt by Office Superintendent.

282. PW­61 Sh. Ranjeet Kumar Pandey was posted Insp. CBI, Special Crime­1, New Delhi and was entrusted a preliminary inquiry no. PE 5 (S) 2014 for inquiry by the then SP of the Branch. The enquiry was regarding four missing files from L&B Department, Govt. of NCT of Delhi and persons whose names were recommended by L&B Dept., Govt. of NCT of Delhi through the files to DDA for allotment of alternative plots were non existent. He stated that file no. F32(50A)/159/89/L&B in the name of Sh. Nitesh Kumar was missing/non­existent from the office of the L&B Dept., Govt. of NCT of Delhi. He detailed that during inquiry it was revealed that L&B Dept. vide letter no. F32(50A)/159/89/L&B/Alt/3088 dated 26.05.2003 recommended allotment of alternative plots in favour of Sh. Nitesh Kumar s/o Sh. Bed Prakash R/o Lohia Nagar, Ghaziabad, UP and subsequently DDA allotted plot no. 66B, Pocket­10, Sector­ 13, Dwarka in his name. It was found that payment of about 15 lakhs was deposited by one Neeru Kumar Gupta from the Joint Account of his wife Mrs. Sangeeta Gupta. This file could not be traced during inquiry. Records of DDA, scrutiny of land record of Govt. of NCT, Delhi and verification of allottee Sh. Nitesh Kumar and examination of persons by whom this plot was subsequently purchased it was revealed that the said Nitesh Kumar was non­existent / fictitious. The plot of land was purchased by Sh. Pramod Garg in the name of his CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 127 of 334 sister­in­law Monica Garg and two others. During inquiry it was revealed that Sh. Swaran Singh Malhi, the then UDC/dealing clerk, Badrul Islam, Dy. Director (Alternative) L&B Dept. in connivance with private persons namely Sh. Pramod Garg, Sh. Neeru Kumar Gupta and other unknown persons abused their official position and on the basis of forged records recommended alternative plot to non­ existent/fictitious person who subsequently got allotted alternative plot and ultimately sold the same which caused wrongful loss to government and corresponding wrongful gain to accused persons at which stage, use of words "words wrongful gain and wrongful loss"

was objected.

283. The witness detailed that he made the complaint in writing to the SP­AC­II Branch, New Delhi. He was shown his complaint dated 28.05.2015 (D­1) on which he identified his signature on all the three pages at point A, whereafter it was exhibited as Ex.PW61/A.

284. He was cross­examined by Sh. Javed Akhtar, ld. Counsel for A2 to A4. He detailed that one self contained note was received in his Branch from CBI, AC­II Branch alleging that four files of L&B Department, Govt. of NCT of Delhi were missing and on the basis of these files alternative plots were recommended in respect of fictitious person and same was alloted by DDA. He detailed that the then SP registered a preliminary inquiry on PE­5 (S)/2014 SC­I and marked to him for further inquiry. During his inquiry, it did not come to his CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 128 of 334 knowledge that any complaint had been lodged by L&B Department regarding missing of those files and other allegations regarding allotment of alternative plots to fictitious persons. He detailed that he had not seen the details of that case as it was not investigated by him. He was not aware whether the said case was regarding the alternative plot. He could not remember the numbers of other three files other than the file regarding the file of Nitesh Kumar mentioned above and volunteered that he remembered one another name of Smt. Rattan Kaur's file.

285. He was then asked "whether during course of inquiry you had come across any witness who ascertain you whether the aforesaid persons whom the alternative plot was recommended by the L & B Dept. was the legal heirs of original land owners", to which he answered in negative and stated that "since the person to whom alternative plot was allotted were fictitious and could not be traced during my inquiry". No FIR having been lodged by L&B Department about missing of four files came to his knowledge. He had collected the bank documents pertaining to payment made to DDA by Neeru Kumar Gupta. The bank was either Punjab & Sindh Bank or Punjab National Bank and were related to payment made to DDA, which he handed over to the concerned IO. He admitted the suggestion that the said bank perhaps got merged in some other bank. He was not subjected to cross­examination by any other ld. Counsel.

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286. PW­62 Ms. Alka Gupta, Senior Scientific Assistant (Documents), Government Scientific Expert, CFSL (CBI), New Delhi received case RC No. 2172015A004/ACU6/AC­II/CBI/ND forwarded by SP CBI ACU­VI, AC­II, New Delhi vide letter no. 10875 dated 1.12.2015 through finger print division on 23.02.2016 through Internal Forwarding Note dated 19.02.2016.

287. She detailed that after examination of these documents she reached the following opinion Ex.PW62/A:

xxxx (ii) Handwriting evidence points to the writer of the specimen signatures mark S­31 to S­40 attributed to Harmesh Kumar @ Nitesh Kumar being the person responsible for writing the questioned signatures marked Q­23 to Q­27, Q­30 to Q­37, Q­39 to Q­68, Q­93 to Q­98, Q­101 to Q­106, Q­108, Q­110, Q­113, Q­114, Q­116, Q­ 119, Q­121, Q­123, Q­125, Q­126, Q­129, Q­130, Q­132, Q­134, Q­

137.

(iii) Handwriting evidence points to the writer of the specimen signatures marked S­62 to S­71 attributed to Ms. Sangeeta Gupta being the person responsible for writing the questioned signatures marked Q­73 to Q­76, Q­85 to Q­88.xxxx

288. In cross­examination, she was given suggestion by Shri B. K. Wadhwa, ld. Counsel for A­1 that she had prepared false report at the instance of CBI, which was denied. She was then cross­examined by CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 130 of 334 Sh. Javed Akhtar, ld. Counsel for A2 to A4, in which she stated that the handwriting examination was a perfect Science. Formation of words was similar in many persons and volunteered that individual identifying characteristics are different in every person. She detailed that CBI had not asked from her about the age of the questioned signatures examined by her. She denied the suggestion that the line of quality of a 15­20 years old writing/signatures becomes poor and defective. She stated that the questioned signatures which were developed by using the technique of Magnifying Glass and Microscope were not supplied along with their report and stated that said the photographs were not developed but the technique was used to examine the questioned signatures.

289. PW­63 Sh. Sanjay Kumar, Insp. CBI, AC­II, New Delhi detailed that present FIR RC No. 4(A)/2015 CBI/ACU­VI/AC­II/New Delhi was registered on 08.06.2015 under Section 120B read with Section 419/420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 against Badrul Islam, the then Deputy Director, L&B Department (Alternative), Sh.Swarn Singh Malhi, the then Dealing Assistant/UDC L&B Department (Alternative), Sh.Pramod Garg, Private Person, Sh. Neeru Kumar Gupta, Private Person and other unknown persons on the basis of the complaint of Sh. Ranjeet Kumar Pandey, Insp. CBI, SC­I, New Delhi. He detailed that the allegation was that accused persons entered into criminal CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 131 of 334 conspiracy during the year 2003 and in furtherance thereof by abusing their official position as public servants Sh. Badrul Islam then Deputy Director, L&B Department (Alternative) and Sh.Swarn Singh Malhi, the then Dealing Assistant / UDC L&B Department (Alternative) recommended for allotment of alternative plot no. 66, Block­B, Pocket­10, Sector­13, Dwarka, New Delhi, in the name of non­ existent person namely, Sh. Nitesh Kumar by fraudulent means, using forged documents as genuine. Accused Neeru Kumar Gupta paid an amount of Rs. 15,89,000/­ by way of four demand drafts favouring Delhi Development Authority and Sh. Pramod Garg got the plot registered, causing wrongful loss to the government as well as corresponding wrongful gain to themselves and others.

290. L&B file bearing no. F­32(50A)/159/89­L&B/Alt. pertaining to recommendation for allotment of alternative plot no.66, Block­B, Pocket­10, Sector­13, Dwarka, New Delhi was missing from the office of L&B Dept. Government of NCT of Delhi. It was also alleged that Sh. Nitesh Kumar is a fictitious/non­existent person.

291. He detailed that after registration of the above mentioned FIR, the same was entrusted to him on 08.06.2015. Searches were conducted at the residential premises of Sh. Pramod Garg, Sh. Neeru Kumar Gupta and office premises of Sh. Pramod Garg. A search under Section 165 Cr.P.C. was also conducted at the residential premises of Smt. Monica Garg wife of Sh. Sunil Garg, who was the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 132 of 334 sister­in­law/bhabi of Sh. Pramod Garg. During investigation several documents were collected and the material witnesses were examined by him. He recorded the statements of 50 witnesses and forwarded the relevant/questioned documents to CFSL for obtaining opinion of expert.

292. He was shown the original FIR dated 08.06.2015 of the above mentioned case, on which he identified signature of Sh. Ajay Kumar, SP, CBI, ACU­VI/AC­II, New Delhi at page no. 6 and 7, whereafter the same was exhibited as Ex.PW 63/A (D­2). The complaint was already on record as Ex.PW61/A (D­1).

293. He was then identified the notice u/s 160 CrPC (part of D­48) bearing his signature at point A, which was then exhibited as Ex.PW63/H. He detailed that he had issued this notice to Sh Nitesh Kumar S/o Bed Prakash, House no. 16 Gali no. 5, V&PO Lohia Nagar, Ghaziabad, which notice was handed over to ASI S.K. Tyagi to serve the notice to the addressee and after visiting the said place, ASI S.K.Tyagi, submitted handwritten report to him, on which report the witness identified his signatures at point A, whereafter the same was exhibited as Ex.PW63/I. He stated that in his report he has submitted that the address given on notice was incorrect and such address was not existing, hence notice could not be served.

294. He then identified Ex.PW41/A (D­49) production­cum­ CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 133 of 334 seizure memo, vide which he seized the documents containing in file Ex.PW11/C, which were Ex.PW41/1, Ex.PW11/G, Ex.PW11/D, Ex.PW11/A, Ex.PW11/B, Ex.PW11/F, Ex.PW11/E, Ex.PW62/C­ 22, Ex.PW62/C­23 from Sh. Ram Pal Sharma, Assistant Director (Survey) DDA., on which memo he identified his signatures at point B.

295. He was then identified production­cum­seizure memo Ex. PW63/J (D­51), vide which he seized the documents mentioned therein from Budh Prakash, Registrar, Tehsil Ghaziabad, on which he identified his signature at point A. He then identified the voter list for the area Mohalla Lohia Nagar, Ghaziabad Part No. 200 to 204. The voter list was then exhibited as Ex.PW63/K (colly.) (D­54 to D­59). He then identified the letter dated 10.09.2015 of Tehsildar Ghaziabad Sh. Budh Prakash addressed to him, which he had received vide the above said memo and the same was then exhibited as Ex.PW 63/L (D­52). He detailed that as per this letter and voter list attached therewith the voter­ID card no. FVX 1874898 in the name of Nitesh Kumar, son of Sh. Ved Prakash was never been issued. He was then identified another notice under u/s 160 CrPC (part of D­60) bearing his signatures at point A and same was then exhibited as Ex.PW63/M. He detailed that the said notice was issued through registered post with AD to Sh Nitesh Kumar S/o Bed Prakash, House CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 134 of 334 no. 16 Gali no. 5, V&PO Lohia Nagar, Ghaziabad, however, the same was returned unserved. The said envelop was already on record as Ex.PW10/A.

296. He was then identified the notice under Section 160 Cr.P.C. dated 13.10.2015 issued to Nitesh Kumar son of Sh. Bed Prakash, Partapur By­pass, Meerut, UP. He detailed that the said notice was bearing his signatures at point A, whereafter the same was exhibited as Ex.PW63/W (part of D­153). The said notice was handed over to Sh. Bharat Tyagi, Police Constable for execution who submitted his report dated 14.10.2015. He was shown the report of Sh. Bharat Tyagi and he identified his signature at point A on the said report and the same was then exhibited as Ex.PW63/X (D­153). He detailed that he submitted in his report that at the said address Nitesh Kumar s/o Sh. Bed Prakash was not residing, however one Sh. Nitesh Kumar s/o Sh. Narender Kumar was found at the address 213, Baral Partapur, Meerut, UP, whose copy of Aadhar Card was enclosed.

297. He stated that after completion of the investigation he submitted the charge sheet before the Hon'ble Court. He detailed that since accused Badrul Islam and S.S.Malhi were already retired from their service hence no sanction for prosecution was required.

298. He was cross­examined by Sh. Javed Akhtar, ld. Counsel for A2 to A4, wherein he stated that he had not tried to collect the CCTV CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 135 of 334 coverage of Land & Building Department to know if the accused persons (private persons) had ever gone to Land & Building Department during the relevant period. Same was his reply with regard to register maintained by peon. He had not examined any witness or any accused, who might have told him that any officer/official of L&B Department had asked for bribe from them. He stated that as per his memory, he examined some witnesses during investigation of two cases bearing RC 4(A)/15 and RC12(A)/16 wherein it was disclosed that accused S.S. Malhi and Neeru Kumar Gupta had met with each other. He detailed the witness as Baidhyanath Jha of Land & Building Department. He denied that there was no such witness or statement made by him regarding the above fact. He admitted that he had recommended departmental inquiry against one S.C. Kaushik of DDA in both the matters. He denied having knowledge that any clue of this case was received from the case of one Sh. Manoj Kumar Aggarwal. The proceedings was registered on written complaint of one Sh. Ranjit Kumar Pandey. He had not investigated any case of Sh. Manoj Kumar Aggarwal. He was not aware if any case was registered against Sh. Manoj Kumar Aggarwal but the matter was not put up for trial. He had not received any private complaint for registration of FIR in the present case. No separate complaint from Land & Building Department was received by him during investigation regarding missing of file while he stated that this fact was already incorporated in the complaint of Sh. Ranjit CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 136 of 334 Kumar Pandey that some files were missing from Land & Building Department.

299. He had examined some official, who had disclosed the files were not created in Land & Building Department with regard to the present case and volunteered that the file of this case was a bogus file having a bogus number of the department. He denied the suggestion that no allotment of alternative plot can be made without creation of a file. He was asked that whether in his examination it transpired that Sh. Prakash Kumar, Secretary; Z.U. Siddiqui, Joint Secretary; Subhash gupta, Dy. Legal Advisor and Badrul Islam, Dy. Director had examined all documents and considered those documents as genuine and then signed the Minutes of Meeting, to which he replied that the documents were put up before Recommendation Committee and on the basis of those documents, the Committee recommended the allotment of plot.

300. He detailed that Smt. Sheela was examined by him and she had disclosed about list of 830 files but he did not remember if she had stated that she had received 830 files from S.S. Malhi when she took the charge. At that stage, he stated that investigating officer of another case had taken the specimen signature of Sheela Devi in another case regarding her signature on charge report and the same were sent to CFSL and had been found false and that he had filed the said CFSL report in this case. He did not remember if Satbir Singh CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 137 of 334 had told about missing of four files including file of the present case and Sheela Devi had disclosed that she searched and handed over those files to Satbir Singh.

301. Recommendation Letter Ex.PW60/A (D­4) was shown to him and he was asked that there was no legal impediment for allotment of alternative plot in the said letter, to which he replied that this fact can be clarified by only some legal experts. He denied that he had not gone through and considered said recommendation letter during his investigation. He could not remember whether during his investigation any officer of Land & Building Department had communicated or not communicated to him about the fact that 11 files of that department were missing in the year 2011 for which FIR was registered and one Dinesh Kumar was suspended. He then stated that he had examined Sh. Prakash Kumar, Secretary, Land & Building Department, who had disclosed him about an instance regarding some wrong allotment and to be vigilant about allotment in such matters. The witness was then shown one reply of Land & Building Department dated 28.12.2016, which was taken on record and exhibited as Ex.PW63/DX­1. He stated that this letter was never produced during investigation of the case and Land & Building Department had never disclosed to him about the said information subject matter of the aforesaid reply. He could not remember having examined any witness from Revenue Branch of Land & Building CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 138 of 334 Department.

302. He detailed that during investigation he came to know that S.S. Malhi used to send documents attached with the application for alternative plot for verification in the Revenue Branch and further volunteered that he was not sure whether he had sent documents of the present case or not. He could not remember whether Revenue Branch had given any report regarding documents of the present case. He denied that it was not duty of S.S. Malhi to personally verify authenticity, genuineness and correctness of the documents from the concerned person/authority. He had submitted the documents for verification to the Revenue Branch.

303. He detailed that though, it was not duty of S.S. Malhi to go through genuineness of the documents, however, it was his duty to confirm the genuineness through correspondence or by any other means.

304. He detailed that he did not remember having examined Insp. Kadar Khan and two accompanying public witnesses on the aspect that they had offered their personal search to the occupant of house when they went to search the premises of Neeru Kumar and Sangeeta Gupta and volunteered that personal search of entire team including independent witness were being given as a procedure to the occupant of the house. He had not examined any witness from Telephone CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 139 of 334 Department to find out the number mentioned on the diary of Neeru Kumar Gupta were having number of S.S. Malhi.

305. He had not examined Mahesh Kumar Gupta and Mamta to ascertain the presence of and signature of Neeru Kumar Gupta and S.S. Malhi on Ex.PW63/E (D­6). He did not exactly remember but stated that probably he had seen the original of Ex.PW63/E, though he got photocopy of the same for the purpose of investigation. He could not exactly remember that during investigation he received ID card of Smt. Neeru Kumari Gupta and not of Mr. Neeru Kumar Gupta. He denied that during investigation proper documents regarding account opening in the name of Neeru Kumar Gupta and Sangeeta were not found or that cheques issued on those accounts in favour of DDA and the information regrading those cheques were not completed or had surfaced during the investigation and volunteered that the documents collected were sufficient to establish the role of Neeru Kumar Gupta and Sangeeta Gupta.

306. He was recalled for further cross­examination on 27.11.2019, in which he stated that he had seen copy of election voter card Ex.PW13/B (colly) and the said voter card pertained to Neeru Gupta w/o Nihal Chand Gupta, at which stage he volunteered that the said document was received by him alongwith the original account opening application form Ex.PW13/A and there was one telephone CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 140 of 334 bill in the name of Neeru Kumar Gupta Ex.PW13/C r/o G2/78, Sector­16, Rohini.

307. He detailed that during his investigation he came to know that there was a case RC no. 5/14 already registered. He had no knowledge, if no complaint prior to 2014 was received in Land & Building Department pertaining to allotment of alternative plots before 2014. He detailed that during his investigation he did not examine any witness who could disclose that any recorded owner might have approached Land & Building Department stating that some other had been alloted plot against acquisition of his land. He could not remember whether he had examined actual recorded owner of the alleged acquired land. He had not examined any person during his investigation from M/s Punjab Textile Company Ltd., Lahore, Delhi. He could not remember having examined any person who had received compensation regarding Khasra Nos.1640, 1641, 1642, 1643 in Village Rangpuri. He had not examined the fact of previous assessment for the purpose of compensation before passing of award no. 1958 in this case, at which stage, he volunteered that as the fraudulent allottee Nitesh Kumar @ Harmesh Kumar never resided in Delhi and no land pertaining to him was acquired by Land & Building Department, he did not try to examine the fact of previous assessment.

308. He did not remember who was the last recorded owner of Khasra Nos. 1640, 141, 1642 and 1643 in Village Rangpuri. He had CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 141 of 334 not examined the LRs of recorded owners of these Khasras. He had not investigated the fact if there was any Bhumidar recorded as owner regarding any of the above khasras. He denied that the recommendation letter was issued by Land & Building Department on the basis of actual file maintained in the department containing all the relevant documents or that the said file was still in existence and was not being produced deliberately.

309. He was then put to specific question that PW5 Smt. Sheela Devi in her cross­examination dated 12.04.2017 at page 2 had stated "five files which were mentioned in the document Ex.PW5/DA portion A to A were then searched, looked for by her and after she found them she handed over these five files to Satbir Singh", hence the relevant file of plot of this case was very well available in the Land and Building Department to which replied that he had examined Sheela Devi and she had stated nothing in her statement recording the file of this case being available in Land & Building Department and she had also stated that the charge report was containing her fake signatures. It was denied that Sheela Devi had disclosed the facts of availability of files to him but he had deliberately not recorded those facats in hire statement u/s 161 Cr.P.C. He denied that there were only allegations against accused Neeru Kumar Gupta and Sangeeta Gupta that they had simply deposited the money on account of fraudulent allotment of plot in DDA. He denied that the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 142 of 334 recommendation letter was issued by Land & Building Department with due deliberation, discussion and on the basis of legal documents. He denied that Neeru Gupta and Sangeeta Gupta were planted by him as accused on the basis of false evidence.

310. He was cross­examined by Sh. Chander Maini, ld. Counsel for A­1 Badrul Islam, wherein he stated that he did not record statement of any official from LAC regarding the concerned file bearing No. F.32(50A)/159/89­L&B/Alt and volunteered that he had collected the documents related to alleged Khasras from the LAC Department and examined the relevant witnesses in that regard. He could not recollect whether he had seen the report of LAC in the above mentioned file. He admitted that LAC report was contained in the above­mentioned file. He did not remember whether he had inquired or recorded the statement of the person, who had prepared the said LAC report. He did not remember whether he had recorded or examined the statement of Patwari, Kanoongo, Tehsildar with respect to the relevant Khasra or the above mentioned LAC report. Contrary suggestion was denied. He stated that as long as he remembered, he had examined one officer of Land & Building Department, but he was not sure whether he had inquired from him about the above mentioned file. He did not remember the name of the said person examined from the Legal Cell of Land & Building Department. He volunteered that he was not clear that whether the said legal officer was examined in this case or CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 143 of 334 in another RC no.12(A)/2016. He stated that he had examined one Sh. Subhash Gupta, Dy. Legal Advisor who was one of the member of the Recommendation Committee. He had gone through the legal opinion in this case. He had gone through the legal opinion given in this file but was not able to recollect its contents. He did not remember whether there was correct and complete LAC and Legal Report in this case submitted by the concerned persons. He denied that he was giving evasive reply in respect of the contents of LAC report as well as legal opinion for the reason that both these documents were in proper form stating therein recommendation for alternative plot.

311. He detailed that it was collective decision of entire Recommendation Committee and volunteered that during investigation it came to his notice that Badrul Islam and S.S. Malhi prepared the purported file and relevant documents and placed before the Committee on the basis of which recommendation was made. He further elaborated that a bogus file bearing No. F.32(50A)/159/89/L&B/Alt was prepared by both the accused and the same could not be recovered from the Land & Building Department. He denied that he had not investigated the instant case as per law and indulged in shadowy and baised investigation. Rest of the suggestions were denied.

312. He was then cross­examined by Sh. Nishant Kumar Srivastava CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 144 of 334 and Sh. Abhishek Kukkar, ld. Counsel for Nitesh Kumar @ Harmesh Kumar (A5), wherien he detailed that during investigation at the residence of Harmesh Kumar @ Nitesh Kumar, he did not find any material regarding recommendation letter, however, he had collected voter I­card, Aadhar card containing address of Shri Ganga Nagar, Rajasthan, which established that he was a resident of Shri Ganga Nagar. He admitted that accused Harmesh Kumar was not well conversant with English language as he was not sufficiently educated. He admitted no payment was made by accused Harmesh Kumar to DDA and volunteered that the payment was made from the account of Neeru Kumar Gupta and Sangeeta Gupta, who both were distant relative of Harmesh Kumar. He had not collected any entry register/CCTV footage regarding his visit to DDA in this regard. The suggestion that accused Harmesh Kumar had not used any forged document as genuine as was being alleged in the case was denied. It was denied that accused Harmesh Kumar did not take possession of the plot in question showing himself to be Nitesh Kumar.

313. After his testimony, vide separate statement of Sh. Praneet Sharma, ld. Sr. PP, PE was closed on 05.12.2019.

314. After his testimony, vide separate statement of Sh. Praneet Sharma, ld. Sr. PP, PE was closed on 05.12.2019.

315. Statements of accused u/s 313 Cr.P.C. of all the accused CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 145 of 334 persons were recorded on 26.02.2020.

316. Accused Badrul Islam (A1) expired on 28.04.2021 vide verification of IO dated 11.08.2021. The death certificate was found to be genuine and it was recorded accordingly, in view of which, the proceedings against Badrul Islam (A1) stood abated vide order dated 11.08.2021.

317. Matter was at the stage of final arguments, while ld. Sr.PP filed an application for amendment in charge submitting that the charge u/s 120­B IPC has not been framed against all the accused persons. No objection was stated to his statement and accordingly, the application was allowed. Amended charge has been framed against accused S.S. Malhi (A2), Sangeeta Gupta (A4) and Neeru Kumar Gupta (A4) on 02.11.2021 and against accused no.5 Nitesh Kumar @ Harmesh Kumar on 17.11.2021, which was read over and understood by all the accused persons, who pleaded not guilty.

318. Ld. Sr.PP also submitted that since the entire evidence is on record, there is no requirement of fresh examination­in­chief, which part of his statement has been recorded separately. There was no occasion of fresh cross­examination since no new evidence was received on record and accordingly, ld. Defence counsel conceded to the same preposition. No DE is lead subsequent to the charge as no other fresh plea is raised.

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319. Accordingly, matter has been listed for final arguments. Final arguments addressed.

320. Final arguments were addressed by Sh. Javed Akhtar, ld. Counsel for A2 to A4. At the outset, ld. Counsel detailed the procedure for allotment of a plot and detailed that in the present proceedings, award no. 1958 was made pertaining to assessment year 1966­67. He stated that the allotment had been claimed and recommended in the year 2003, whereas RC (FIR in this case) is lodged in the year 2015. He has pointed to the delay of 12 years and has stated that neither investigating officer nor prosecution has tried to give any answer on record qua the delay of such a long duration.

321. In respect of the role assigned to S.S. Malhi (A2) by prosecution, he asserted that S.S. Malhi (A2) was posted in East Zone prior to his being transferred in South Zone (where the present matter/plot is connected to). He submits that his appointment was made in Alternative Department, DDA in the year 1999 uptill 2003 where he was occupied the responsibility of East Zone and then was posted to Southern Zone (South Zone) covering Rangpuri.

322. It is averred further that as is shown during the deposition of witnesses, he was transferred from South Zone in 2003 and was again assigned the responsibility in Alternative Branch fromwhere he retired in 2011. It is averred that from the record of his CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 147 of 334 transfer/postings, it is apparent that in the year 1989, the year to which the scheme and the matter is allegedly claimed of, S.S. Malhi (A2) was not even posted with DDA, leave aside his having been in position to form any conspiracy and/or ill intention and/or malafide as is alleged against him. It is averred that even on the date of transfer of the plot, accused was nowhere in the picture as his assignment was only pertaining to the Zone he was posted in. ld. Counsel stated that it is unexplained as to how he is shown to have processed the files of 29 applicants for putting up before the recommendation committee, which in fact were pertaining to other zones as well as from the entire jurisdiction of Govt. of NCT of Delhi.

323. It is averred that the accused was only responsible after the application was received in Central Diary and was registered therein and after having been sorted is sent to the concerned department. He stated that approximately thousands of application received in Central Diary and after the sorting out and placement before the department, Dy. Director is duty bound to direct opening of a file and dealing assistant (in the present case A2 S.S. Malhi) was duty bound to open a file and hand over to Dy. Director [in this case A1 Badrul Islam (since expired)].

324. It is averred that Dy. Director was then to give direction to call report from Land Acquisition Department. The process for calling the report was through R&I Branch alone where the verification was to be CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 148 of 334 called through the documents of which the report was called. Subsequent to LAC report having been received on directions of Dy. Director, the file was sent to Legal Department and was put up before Legal Advisor and thereafter, Tehsildar/ Patwari would cross­check and verify since it was their job. It is averred that dealing assistant S.S. Malhi (A2) at no stage was duty bound to personally verify the documents and the applications, which was the responsibility of the Land Acquisition Collectorate through R&I.

325. He submitted that in the present matter, the impugned matter was put up before the Recommendation Committee after the permission was obtained from the Dy. Director Badrul Islam (since decease). He claimed that apart from the Chairperson namely Sh. Prakash Kumar, the then Secretary (L&BD), there were four other members of the Recommendation Committee namely, Sh.Z.U. Siddiqui, the then Joint Secretary, Sh. Subhash Gupta, the then Dy. Legal Advisor and A1 Badrul Islam, the then Dy. Director (Alternative Branch).

326. It is averred that under the chairmanship of the Secretary (Head of L&B Department), the Committee convened its meeting and made the recommendation after due deliberation, in which legal Advisor was under the obligation to verify the merits of the documents placed alongwith each application. He casted severe imputation on the conduct of the legal advisor and claimed that he CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 149 of 334 failed in his duty to properly verify the contents of the documents which had been put up alongwith the application of Nitesh Kumar (A5).

327. It is claimed that even the order of recommendation had been signed by the Dy. Director, which was sent through R&I. He averred that while the meeting was held on 03.12.2002 for unexplained reasons the Minutes were signed by the Chairman Sh.Prakash Kumar, Secretary, Head of Department after the delay of 67 days on 04.02.2003. It is averred that he being the senior most working in capacity of HoD should have explained the reason for the file being withheld in his department despite recommendation made on 03.12.2002.

328. It is averred that the role of S.S. Malhi (A2) was nowhere visible as it is apparent from the proceedings (Minutes of Meeting Ex.PW15/A­1) that during the committee meeting 29 recommendations were put up, out of which 18 were rejected, 2 were forwarded for re­examination while 9 were rejected.

329. He stated that in total 29 summary sheets were drawn and for unexplained reasons have been shown to bearing sign by S.S. Malhi (A2) who was specifically dealing with Southern Region (South Zone). He also went on to submit that out of 29 summary sheets, 2 summary sheets have been missing.

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330. It is averred that the documents were examined by the Committee and the draft of minutes was sent to DDA.

331. He averred that the compensation register had not been placed to make the assessment as to who showed entitlement and who received what subsequent to award of acquisition.

332. He claimed that the prosecution and investigating officer have adopted a policy of pick and choose qua accused persons. He averred that while initially the investigating officer found material against accused Roma Aggarwal, Suresh Chand and Pramod Garg as well, out of whims and fancies they were not forwarded for trial.

333. He averred that though initially 79 witnesses were cited, the prosecution only examined 63 witnesses suggesting that sufficient material was not available with the prosecution and the investigation authority regarding the trial.

334. At this juncture, he proceeded to read the examination­in­chief and cross­examination and more specifically the cross­examination that he carried out. He averred that in order to stress from the cross­ examination of PW1 Sh. Bhopal Singh that the witness of DDA himself admitted that the cost of the plot was deposited and there has been no loss to DDA. He also pointed that the investigation had been so casual that even while PW2 Sh. Sunil Malhotra, Chief Manager, PNB was present at the time of collection of specimen signatures of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 151 of 334 accused Neeru Gupta, name of one Smt. Neeru is mentioned. He averred that while most of the witnesses are formal in nature, almost uniformly they had stressed the fact of having no loss having been caused to DDA and deposition of the entire cost against the plot.

335. He went on with the cross­examination of PW5 Smt. Sheela Devi, which he stressed in detail and relied on the document Ex.PW5/DA, wherein he stated that the allegation that there was no availability of file No. 32(50A)/159/89/L&B/ALT, is misplaced averment as even the witness who was dealing with the said file and at the relevant time admittedly being In­charge and custodian of record, admitted that she searched out the said file and handed over to successor Sh. Satbir Singh. He stated that there is no controversion to this statement and no rebuttal to the document by the prosecution which emphatically shows that the allegations against S.S. Malhi (A2) are motivated.

336. He claimed further that PW6 Sh. Hem Raj had not brought any revenue record pursuant to preposition whether on passing of the ownership the compensation may have been imparted to any LRs and he as such was not even aware of any such provision. He vehemently mentioned about the deposition of PW8 Sh. Ganga Sahai Meena and PW7 Sh. Parvinder Tomar and stated that as per the statement of PW8 Sh. Ganga Sahai Meena ownership had been shown in favour of M/s Punjab Textile Company, Lahore, Delhi. He averred that despite the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 152 of 334 witness knowing M/s Punjab Textile Company as the owner, the investigating officer as well as prosecution miserably failed to bring out any evidence from M/s Punjab Textile Company and/or proprietor of M/s Punjab Textile Company. He stated that the prosecution and the investigating officer both have been lethargic and loath in even collecting any material from M/s Punjab Textile Company to prove another subsequent mischief.

337. He stated that PW9 Sh. Rati Ram, translated the documents; PW10 Sh. Bijender Tyagi, Postman; PW11 Sh. Raj Kumar, Asstt. Director; PW12 Sh. Vijender Kumar, who stated about address being incomplete; PW13 Sh.Ravinder Singh from HDFC; PW14 Sh. Hardayal Singh Kaim, UDC, L&B Department have all been cross­ examined by him and it is drawn from their statements that they have failed to support the investigation in the manner the prosecution seeks to interpret and it is evident from their testimony that PW14 Sh. Hardayal Singh could not have searched out one file out of the bunch comprising of four lakhs files since it is not reasonable to locate one file out of such huge stock.

338. He stated that cross­examination of PW15 Sh. Subhash Gupta is to be read from cross­examination of file of another RC which is stated to be pending before this court at the time of cross­examination but subsequently transferred to the Court of Sh. Ajay Gulati. At which stage, request was made from both sides to place "copy of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 153 of 334 cross­examination" since it stated as vital part of evidence for the next date. However, Sh.Javed Akhtar, ld. Counsel provided that the rest of the cross­examination of the witnesses recorded in consonance to the examination­in­chief is to be read alongwith the above wherein Ex.PW15/D1 was put up at the stage of confrontation.

339. He claimed that as per the said document, it is evident that each and every document of the file was available with the Recommendation Committee before recommendation of the plot and in view of which the assertion of prosecution that mischief has been made at the instance of accused is misplaced.

340. He then relied upon statement of PW16 Sh. Anil Kumar Singh, who had brought the document/sale deed. He averred that despite the matter having come to the knowledge the CBI (IO) made no effort for seeking the cancellation of the plot despite alleging mischief in allotment, whereas, a similar exercise had been carried out in pick and choose manner in RC No.12/2016.

341. He read over statement of PW17 Sh. Sh. Meghraj Verma and vehemently relied on the statement of PW20 Sh. S.C. Kaushik. He again pointed out that this witness was proposed initially to be an accused but for unexplained reasons was not forwarded for trial, while the charge­sheet was submitted. He stated that IO admitted having proposed departmental inquiry against him suggesting clearly his CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 154 of 334 participation, however, withholding of his name from the array of accused is not explained by the IO despite opportunity.

342. He then continued with the remaining statement of PW21, PW22, PW23, PW24, PW25, PW27, PW29, PW30, PW31, PW32, PW33 up till PW44 Ms.Usha Chaturvedi and stated that most of the witnesses including PW44 have supported his contention and has detailed the same procedure which he has proved during his arguments. He then proceeded with the cross­examination of PW48. He detailed about the delay of 17 days and stated that delay of 17 days at the hand of HoD must be explained, though in the same breath, he admitted that he did not put any specific question to elucidate any clarification from the competent witnesses qua the alleged delay.

343. He then went on to read the statement of PW54 and asserted that he has specifically cross­examined the witness of his capacity to examine the finger print from photocopy, though, he stated that he has not confronted the witness from scientific material/research to suggest that any such examination was weak in nature and was not reliable.

344. He then went to the statement of PW63 IO and stated that there have been many shortcomings in investigation which is sufficiently showing that investigation is of poor nature and of such of quality that it cannot be relied and made basis for conviction of any CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 155 of 334 accused.

345. He pointed out that in the present matter the proceedings have been brought out from nowhere against the accused persons as there is no complaint from original allottee, no complaint even from L&B Department about loss of file and no complaint from DDA to allege wrongful loss. He again stressed that the lapse of period from 1989 till 2002 is not explained. He then stated that he has filed his compilation pertaining to incapacity of proceedings against accused persons for want of sanction pertaining to Section 195(1)(b) part II and III and claimed that the same argument had been made by him even at the stage of charge. He asserted that while one of the charge against accused persons is falling under Section 471. The prosecution was duty bound to show the compliance having been made to requisited procedure explained above. He also averred that there have been many lapses on the part of Legal Advisor who was member of the Committee which have been brought out specifically by PW15.

346. At this stage, he sought time to submit compilation of case laws and other relevant submissions pertaining to IPC as well as PC Act's provisions qua which the charge has been framed.

347. After the submissions made by Sh. Javed Akhtar, ld. Counsel for A2 to A4, ld. Sh. Abhishek Kukkar made his submissions on behalf of Nitesh Kumar @ Harmesh Kumar (A5).

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348. At the outset, ld. Counsel stressed upon incapacity of his client/A5 of reading and writing and asserted that he being an illiterate person had been manipulated at the instance of other accused persons who used him for their mischief and ill designs. It is asserted that A5 is not a resident of Delhi­NCR and in fact resident of Sri Ganga Nagar, Rajasthan which fact is proved by prosecution. He admitted that DDA allotted the plot in favour of is client and on the date of his possession it was transferred to another party. He averred that against the transaction no payment had been made by his client which he admitted having been by A2 and A3. He also averred that subsequent to the realisation of sale consideration, no part of it came in his hands as the amounts were taken away by the accused persons and their accomplishes. He claimed that accused Nitesh Kumar @ Harmesh Kumar has himself been the victim of manipulation and at no stage had sufficient knowledge least any ill intention to cause any mischief to anyone.

349. He asserted that in terms of provisions of Sections 120­B and 420 IPC, the meeting of minds must be shown at the outset i.e. since the initial/very beginning. He asserted that conspiracy cannot be claimed at the fag end when the allegation of 420 IPC surfaced. He asserted that as per the claim of prosecution the conspiracy initiated in 1989 at the time of floating of the scheme of rehabilitation of the farmers with alternative plots, whereas the accused was nowhere in CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 157 of 334 the picture at the slated time.

350. He further averred that documents purportedly belong to accused i.e. Voter Identity Car is recovered from his possession while the search was made at his premises at Sri Ganga Nagar. It is averred that since the original Voter Identity Card had been searched out by the prosecution/IO itself, no import of forgery of some documents can be made against A5 as he had no linking or connect with the alleged forged Voter Identity Card.

351. He averred that prosecution has failed to show as to who forged the document and rather no part of some papers etc. have been recovered from the possession of his client/A5 which in fact have been recovered from the seizure made from the house of accused Neeru Gupta.

352. It is averred that this fact is strengthened from the seizure made by CBI at the house of accused as they recovered all the genuine documents. It was claimed that at no stage A5 made any attempt to portray himself as someone else least Hitesh Kumar. He stated that he had no occasion to create any such identity and had no knowledge that his photograph had been misused by A3 Neeru Gupta who was in possession of the same. He averred that he was not aware how his photographs have been manipulated by A3 Neeru Gupta as he was called to Delhi for one day at the instance of A3 Neeru Gupta a CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 158 of 334 distant relative (Jija of Jija) for witnessing some documents which he obliged as a courtesy being relative without having any intention to gain out of the transaction.

353. He asserted that for the first time Harmesh Kumar signed as Nitesh Kumar on the asking of IO when the signatures of Nitesh Kumar were presented before Harmesh Kumar and he was asked to write in the same manner which he obliged. He stated that it is difficult to understand that how CFSL report suggested a handwriting of Nitesh Kumar to have matched with specimen signatures of his client/A5. He stated that during statement of accused recorded under Section 313, wherein, he clearly told all requisite facts before the court without making any attempt to conceal any relative portion.

354. He then proceeded to argue on the legal aspects and suggested that in order to establish charge against accused under Section 419 IPC, requisite of Section 416 must have been proved and similarly, in order to bring out the charge of forgery against accused, prosecution must have established the ingredients from Sections 463 to 465 IPC against him. He reiterated that there had been no impersonation or allegation of fake identity at the hand of his client/A5 who had been made a stakeholder at the hand of other accused taking advantage of his illiteracy and relation. He relied on Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. in Crl. Appeal No. 1695 of 2009 arising out of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 159 of 334 SLP (Crl.) No. 6211 of 2007.

355. After the arguments both the ld. Counsels concluded, opportunity was sought to place on record compilation of judgments. Ld. Sr. PP also sought opportunity for filing written submissions.

356. Ld. Sr. PP has filed written submissions and argued that the present case was registered on 08.06.2015 vide complaint Ex.PW­ 61/A and FIR ExPW63/A with the allegation that during year 2003 the accused persons entered into criminal conspiracy and in furtherance thereof accused public servant Badrul Islam (A­1), the then Dy. Director (Act), S.S. Malhi (A­2) the then UDC Dealing Clerk in L & B Department by abusing their official position, recommended for alternative plot in favour of a nonexistent person Sh. Nitesh Kumar @ Harmesh Kumar at Dwarka by fraudulent measure by forged documents and in furtherance accused Neeru Kumar Gupta (A­3) & Sangeeta wife of N.K. Gupta paid Rs.15,89,000/­ by way of 3 banker's cheque favoring DDA and Sh.Pramod Garg fraudulently got the plot registered also. It is alleged that by indulging in aforesaid act, the accused persons wrongfully caused loss to the Government/State and wrongful gain to themselves, thereby, committed an offence punishable under Section 120­B IPC r/w Sec. 419, 420, 468, 471 IPC and Section 13(2) r/w sec. 13(1)(d) of PC Act 1988 (prior to amendment).

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357. It is detailed that as per policy, the persons eligible for allotment of plots were : (i) the persons who are recorded owner prior to issue of notification U/s 4 of Land Acquisition Act (ii) the person whose land has been acquired must have received compensation as a rightful owner from the LAC/Court and the possession of acquired land has been taken by the Government (iii) the applicants should not own a house/residential plot/flat out village abadi in his/her own name or in the name of his wife/husband or any of his/her dependent relatives including unmarried children, nor he should be a member of any Co­operative Housing Society, and (iv) for awards announced prior to 03.04.1986, the land acquired is not less than 150 Sq. Yards and for awards announced post 03.04.1986, the land must not be less than one begha. It is argued that PW44 Smt Usha Chaturvedi has proved the procedure followed in cases, where the land was purchased by the land owner through the sale deed and has detailed the requisits. He argued that in response to the public notice issued in 1989 inviting application from farmers and land owners whose land was acquired for the purpose of planned development of Delhi upto 31.12.1988, 131 applications were received in the Land & Building Department. As per the laid down norm by Land & Building Department, the received applications shall contain three copies of revenue records. Fard i.e. (i) Khatoni/jamabandi; (ii) copy of certificate for payments received as compensation by the applicant from the land Acquisition Collector; and, (iii) three photographs of applicant duly attested by the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 161 of 334 Gazetted Officer. The received applications were sorted out zone­ wise. After sorting out, the applications were given to dealing clerk of the respective zone of alternative branch in the Land & Building Department, whereafater, the dealing clerk opened a separate file for each application under the heading of 'Registered for the year 1989.' He detailed that file also contained the village and zone name. The files were maintained serial­wise with file no. F32 (village name) 1/89/L&B/Alt­(model file no.) It is argued that in the file, the number after "F" indicates particular zone, Number "F­32" indicates that the file pertain to south zone and Number "F­31" indicates that the file pertain to north zone. The number within the bracket indicate the village name, "50­A" in the instant case denotes to village Rangpuri), the number "1" indicates the serial number of application received from the applicants and the year "89" denotes to the year in which the application was received in the branch.

358. It is averred that thereafter, the file was submitted by dealing clerk containing application of the applicant with note containing complete details such as applicants name, details of acquired land, village name award number etc., seeking order from the Branch Officer i.e. Deputy Director for the issuance of letter to the Land Acquisition Collector LAC for verification of the particulars mentioned in the application by the said applicant in a prescribed format. He averred that the said letter signed by the Deputy Director CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 162 of 334 was sent to LAC through receipt & dispatch section by post, whereafter, verification report from LAC containing date of notification U/s 4 of Land Acquisition Act (LA Act) 1982, name of the owner at the time of notification of Section 4, Khasra number with area, share of the applicant, amount of compensation with date of payment to the applicant, date of taking over possession by the Government were received and on the receipt of the verification reports from LAC, the dealing assistant submitted report in the said file with noting for referring the LAC Report for verification by the revenue branch of L & B department. On receipt of the said file, Patwari, Kannugo, Naib Tehsildar and Tehsildar in the revenue branch cross­checked the details received from LAC with the details available in the revenue records and submitted their report duly signed by their competent officer in the said file through their dispatch section. On receipt of the said file from the revenue branch, the file was sent to Writ cell for legal scrutiny by the law officers. After obtaining legal opinion, a detailed brief of file was prepared by the dealing clerk and signed by the branch Officer i.e. DD for placing the file in the recommendation committee meeting constituted by the Secretary Cum Commissioner. The Recommendation Committee consists of Secretary­Cum­Commissioner, Joint Secretary, Legal Advisor/Deputy Legal Advisor and Deputy Director of the Alternative Branch. It is claimed that after approval by the Joint Secretary, a notice for meeting was issued to all the members of the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 163 of 334 committee mentioning date, time and venue of the meeting. The dealing clerk of Alternative Branch prepares agenda for the meeting with due approval of DD.

359. After the meeting, the Minutes of Meeting were prepared. The Minutes contained the decisions of the committee such as the cases recommended for allotment of plots, cases rejected and objection/queries made by the committee was prepared by the Branch Officer of the Alternative branch i.e. dealing clerk and Deputy Director of alternative branch. The copies of the Minutes of Meeting signed by all the members of the Committee were placed in all the individual files and original was kept in Minutes file. He detailed further that the applicants for whom the committee had recommended allotment of plots, the dealing clerk prepared recommendation which was in triplicate with three different colours i.e. green colour, yellow colour and pink colour, out of which yellow colour was for applicant and pink colour was office copy. The booklet of proforma recommendation letters were serial numbered and kept in the personal custody of the dealing clerk of Alternative Branch. He further stated that in the booklet, Recommendation letter was issued to the dealing clerk duly making entry in the register called stock register by obtaining his signature on the register towards receipt by him.

360. He detailed that after receiving the application in L & B Department, the files were prepared giving file number F32(50­ CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 164 of 334 A)/6/89/L & B/ALT to file no. F­32 (50A)/136/85/L&B/ALT. It is further argued that accused public servant in furtherance of criminal conspiracy created/prepared a file bearing file no. F32 (50­ A)/159/89/L&B/ALT of Nitesh Kumar @ Harmesh Kumar Ex.PW 15/A fraudulently caused in­existence in Land & Building Department and issued recommendation letter with file no. F32 (50­ A)/159/89/L&B/Alt bearing Sl. No. 001354, dt. 26.05.2003 Ex.PW­ 4/A in favour of Sh. Nitesh Kumar (A­5) S/o Bed Prakash after lapse of about 13 years. It is argued that as per file no. F30 (Misc. )/1/97/L&B/ALT (VolI), Ex.A­4 captioned "constitution of the committee for alternative plots containing minutes of recommendation committee meeting dated 03.12.2002". As per this file committee member were PW 48 Sh.Prakash Kumar Sr. (L&B)­ Chairman, Z.U. Siddiqui, Secretary (L&B)­ Member, PW15 Subash Gupta, Dy. Legal Director (ALT)­member. In these minutes 18 recommendation were made for allotment of alternative plots measuring 400 Sq. Yds in Dwarka, Delhi vide above said office against acquisition of 20.09 bigha land in village­Malikpur Kohi @ Rangpuri for ½ share vide award no. 1958/66­67 dt. 23.03.1967 Ex.PW6/C.

361. He relied on the statement of PW­19 Baidhnath Nath Jha and stated that he has proved that accused SS Malhi being UDC certified copy of 27 summary sheet Ex.PW­19/C available in above said file.

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These summary sheets contained certificate "the particulars above are found correct as per record". These summery sheets also contains sheet of accused Nitesh Kumar despite the fact that there was application in the name of Nitesh Kumar. That a recommendation letter bearing letter no. F32 (5D­A)/159/89/L&B/ALT/3088, Sl. No. 001354 dt. 26/5/2003 Ex.PW4/A under signature of accused Badrul Islam to commissioner (land), DDA measuring "I am directed to request you to allot a plot measuring 400 sq. yard to Sh. Nitesh Kumar S/o Bed Prakash, Village Rangpuri, Delhli. "in lieu of his acquired land bearing khasra no. 1640 (6­03), 1641 (5­14), 10­4 ½ Bigha which is acquired vide award no. 1958/66­67 dated 23.03.67 of village Rangpuri, Delhi in South Zone as he has been found entitled for the same."

362. He further relied on the statement of PW20 Sh.S.C. Kaushik, who detailed the process of letter in file bearing No. F­27 (16)/2003/LSB (Residential) Ex.PW1/A by including the case of accused Nitesh Kumar@ Harmesh Kumar in the draw of lots held on 26.05.2004 for allotment of alternative plots from Dwarka, Narela and Rohini. He then relied on the statement of PW4 Sh. K.K. Sharma, whereby, it was detailed that draw of lots conducted vide programme No. LSB (R)D00059, Sl. No. 4, Nitesh Kumar S/o Ved Prakash been allotted plot measuring 333.6 sq. mt. bearing plot No. 66, Pocket 10, Block­ B Sector­13, Dwarka and the said letter was issued to the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 166 of 334 given address at Ghaziabad of the Nitesh Kumar and the said letter was returned undelivered by "Adhura Pata Purey Pate Ke Liye Vapis" on 20.06.2003.( Ex.A­9, note at page5/Nof D­13). It is averred that after receipt of above said undelivered letter, it was decided by Dy. Director (LA­Residential), DDA to send a letter for confirmation of the address to Land and Building Department, but no reply was received from the L & B Department, GNCT of Delhi.

363. He then relied on the statement of PW­20 Suresh Chand Kaushik, the then UDC as well as Sh. R. Mohan Lal, the then Programme Assistant (Retd. Asstt. Director/ DDA), processed the recommendation letter dated 26.05.2003 in a separate file No. F.1(14)/2004/LSB(R)/DDA Ex.PW3/A (79) Captioned "Confirmation of draw of Narela/Rohini/Dwarka held on 26.05.2004"

by including the name of accused Nitesh Kumar in the draw of plots, held for allotment of alternative plots for Dwarka. Thereafter, PW­ 20 S.C. Kaushik vide note dated 29.06.2004, processed file for issuance of Demand cum Allotment letter and accordingly, a Demand Cum Allotment letter No. F.27(16)/2003/LSB(R)/7110, dated 29/30.06.2004 Ex.PW4/A (page10/C,D­13) was issued through speed post to accused Nitesh Kumar.

364. He then relied on the statement of PW1 Bhupal Singh and averred that accused Nitesh Kumar submitted an application dated Nil CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 167 of 334 Ex.PW1/E in the office of AD, LSB (R), DDA enclosing the required document i.e affidavit Ex.PW­1/G, undertaking Ex.PW­1/H, photocopy of voter ID Card Ex.PW­1/K, Form­60 Ex.PW­1/L and 03 Bank Challans bearing i) No. 11125004, dated 07.07.2004 for R. 7,00,000/­, Ex.PW­1/F ii) No. 11126804, dated 09.07.2004 for Rs. 1,00,000/­ Ex.PW­1/F and iii) No. 11125604, dated 09.07.2004 for Rs. 7,89,000/­ Ex.PW­1/F (impersonated as Nitesh Kumar @ Harmesh Kumar).

365. He the relied on the statement of PW 13 Ravinder Singh Vasu and stated that these banker cheques were issued from two separate SB A/c i.e. i) SB A/c No. 07­SB11066820(old)/114001000015370 (New) Ex.PW13/G in the name of accused Neeru Kumar Gupta (A­3) and ii) SB A/c No. 07­SB11066821 (old)/114001000015380 (New) Ex.PW13/E in the name of accused Ms. Sangeeta Gupta (wife of accused Neeru Kumar Gupta) of The Centurian Bank, which later on merged with in HDFC Bank.

366. He stated that accused Nitesh Kumar vide his letter dated Nil received in the office of Dy. Director LSB (R), DDA on 16.07.2004 gave his new address as "16 Gali No. 5 VPO Lohia Nagar, Distt. Ghaziabad (UP)", after which PW20 S.C. Kaushik, the Dealing Clerk processed to get the confirmation of challans and as well as outstanding dues if any, against the allottee, which was confirmed on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 168 of 334 26.07.2004 vide note Ex.PW1/L. On receipt of confirmation of deposition of challans of DDA, PW­20 SC Kaushik put up the proposal for issuance of possession letter on 29.07.2004 (10/N,D­13) in favour of accused Nitesh Kumar which was approved on 30.07.2004 by DD(LA/Residential) and in pursuance of the said approval, a letter No. F.27 (16)/2003/LSB(R)/8185, dated 02.08.2004 Ex.PW1/N, was issued to accused Nitesh Kumar, S/o Bed Prakash, H.No. 16, Gali No.5, VPO­Lohia Nagar, Ghaziabad (UP), through speed post, for taking over the possession of Plot No. 66, Pocket 10, Block­B, Sector­13, Measuring 333.60 Sq. mtr. in Dwarka Residential Scheme, by 26.08.2004.

367. He argued that the real name of accused Nitesh Kumar is Harmesh Kumar S/o late Hem Raj and his actual address is House No.89, B­Block, Ward No.6, VPO, PS & Tehsil Srikaranpur, Distt­Sri Ganganagar, Rajasthan. Neeru Kumar Gupta and Nitesh Kumar @ Harmesh Kumar are distant relative and Neeru Kumar Gupta had managed all the things in getting recommendation letter in the name of accused Nitesh Kumar. Further, Nitesh Kumar provided false information in his affidavit filed along with an application to the DDA, wherein, he had given false information showing himself as Bachelor and also given fake address, which fact was contradicted by PW43 Hamita Rani, is wife, wherein, it has been stated that they were married in the year 1990 and had been residing at the aforementioned CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 169 of 334 address. She also identified photographs Ex.PW43/B, Ex.PW43/C, Ex.PW43/J and Ex.PW43/K of accused Nitesh Kumar @ Harmesh Kumar as her husband and attested photocopy of the Voter ID card Ex.PW43/E. It is argued that the aforesaid recommendation letter Ex.PW4/A is a lease deed dated 21.09.2004 was executed by DDA in favour of accused Nitesh Kumar, after which he took the possession of plot from office of Director (Projects), DDA, Dwarka New Delhi on 10.08.2004 vide possession letter Ex.PW1/M and he further got registered the plot with Sub Registrar -VII, INA, Vikas Sadan, Delhi. After issuance of recommendation letter, accused Nitesh Kumar submitted forged/false voter ID Card bearing no. FVX 1874898(AC­

388) Part 120, Sl. 1070 in the name of Nitesh Kumar Ex.PW 45/E, Ex.PW 45/F and Ex.PW 45/G, which he placed before land sales Branch (Residential DDA File p/ F27(16)/2003/LSB( R) and Director (Planning), DDA Project, Dwarka File No. F­12(1439)/04/Plg/Dwk.2.

368. He then relied on the statement of PW17 Megahraj Verma and PW49 Ashok Kumar Arora claimed that they had proved that soonafter the taking the possession of the above said plot, accused Nitesh Kumar @ Harmesh Kumar sold the plot to three ladies namely Smt. Sudesh Madan (50% share), Smt. Ramesh Kumar (25%) and Smt. Monica Garg (25% share), Bhabhi (sister­in­law) of one Pramod Garg and for the sale, GPA & Agreement to sell were executed on 21.09.2004, which have been exhibited as Ex.PW25/A at the office of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 170 of 334 Sub­Registrar, Janakpuri.

369. He detailed that during house search of Nitesh Kumar @ Harmesh Kumar, original voter ID card, copy of Adhar card, ration card, as connection showing photograph of Harmesh Kumar @ Nitesh Kumar were recovered and established.

370. It is averred that from PW6 Hemraj, PW­ Parvinder Tomar, PW8 Ganga Sahai Meena and PW9 Rati Ram, it is mentioned that as per revenue records, the property bearing Khasra No. 1640, 1641, 1642 and 1643 in Village Rangpuri, which was acquired vide award no. 1958/66­67, was originally in the name of M/s Punjab Textile Company Ltd. Lahore, Delhi and none of the names of either Sh. Nitesh Kumar S/o of Sh.Bed Prakash or Sh. Bed Prakash are shown against the list of land owners. He averred that no award or compensation either stand in the name of Nitesh Kumar or Sh. Bed Prakash in terms of Ex.PW7/C and Jamabandi of village Rangpuri Ex.PW­8/A). He averred that the proof of receipt of compensation from the LAC towards acquisition of land was mandatory for the Land & Building Department to process the recommendation letter for allotment of plot to the applicant, whereas, in the instant case, there was no communication from Land & Building Department to LAC enquiring about the status of property bearing Khasra No. 1640 (6­03), 1641 (5­14), 1642 (5­03), 1643 (3­09), total measuring 20 Bigha 09 Biswa of Village malikpur Kohi @ Rangpuri for ½ share, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 171 of 334 in the name of Sh. Nitesh Kumar, S/o Bed Prakash, R/o Lohia Nagar, Ghaziabad (UP). Further, ADM, LAC, Jamnagar House, New Delhi also clarified that no correspondence has been made between Land & Building Department and LAC, New Delhi regarding allotment of alternative plot in r/o above mentioned Khasra Nos. and no such recommendation was made to Land and Buildings Department, GNCT of Delhi by LAC/New Delhi. He averred that despite the aforementioned, Sh. S.S. Malhi (A­2) then UDC and dealing clerk of Alternative Branch of L & B Department, had prepared the annexures of minutes in which the said plot was fraudulently mentioned and subsequently cleared by the committee members.

371. It is averred that accused S.S. Malhi certified that the summary of each file including file No. F.32 (50­A)/159/89­L&B/Alt are found correct as per records, while detailing further the role of accused S.S. Malhi, he submitted that accused submitted charge report while he was transferred from Land & Building Department in which he mentioned about file No. F.32 (50­A)/159/89­L&B/Alt along with the other 829 files, showing handing over the said number of files to PW­5 Smt. Sheela Devi who was successor to the accused S.S. Malhi, whereas, PW­5 Smt. Sheela Devi during her deposition, disowned her signatures on the said charge report Ex.PW­5/A submitted by accused S.S. Malhi, meaning thereby, he has forged the signature of PW­5 Smt. Sheela Devi on the charge report Ex.PW­5/A CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 172 of 334 and falsely made entry of the non­existing file in the said charge report.

372. He then pursued his further submissions relevant to the charge framed u/s 120B IPC. The charge u/s 120B IPC was reproduced, whereafter, it was stated that PW­44 Smt. Usha Chaturvedi who was Dy. Director L&B Department and PW­15 Shubash Kumar Gupta, who was Member of Recommendation Committee, both detailed the procedure and factum of recommendation of file No.F.32(50A)/159/89/L&B/Alt Ex.PW15/B having been recommended for allotment of alternative plot in favour of Nitesh Kumar @ Harmesh Kumar (A5) despite the specific procedure and requisits details by PW44.

373. He then relied on the statement of PW4 Sh. K.K. Sharma and stated that he has proved that after approval of the name of Nitesh Kumar@Harmesh Kumar, a recommendation letter Ex.PW­4/A under signature of accused Badrul Islam (since expired) was sent to commissioner (Land), DDA. He also relied on the statement of PW­ 46 Dinesh Singh and PW­44 Usha Chaturvedi to seek affirmation of the aforesaid submissions.

374. He also relied on the statements of PW46 Sh.Dinesh Singh and PW­44 Usha Chaturvedi separately to prove that no file beyond No. 136 was there and the file No. 159 was not in­existence and was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 173 of 334 dishonestly and fraudulently created by the accused S.S. Malhi and accused Badrul Islam (now expired) after the lapse of 13 years.

375. He then relied on the statement of PW­1 Bhupal Singh that the above said recommendation letter was received in the office of Commissioner (Land) DDA and he processed the recommendation letter bearing No. F­32 (50­A)/159/89­L&B/Alt3088 and Serial No. 001359 dtd. 26.5.2003 to be sent for draw of plots held on 26.05.2004 for the area Dwarka, Narela and Rohini during which allotment of plot was made in favour of accused Nitesh Kumar @ Harmesh Kumar was allotted in Dwarka measuring 333.6 Sq. Mtrs. He further relied on the statement of PW1 in proving the demand­cum­allotment letter No. F27 (16)/2003/LSB (R)/7110 dated 29/30.06.2004 Ex.PW­1/D, which was sent to Nitesh Kumar at the address 16 Gali No. 5 VPO Lohia Nagar, Distt. Ghaziabad (UP) and solicited from the testimony of PW4 K.K. Sharma stating that he has proved that no reply was received on the given address. He also stressed on the statement of PW­10 Bijender Tyagi and PW­12 Virender Kumar both postman of the concerned area has proved that the given address was found incomplete (Ex.PW­10/A and Ex.PW­4/B) and also through PW­4 K.K. Sharma that accused Nitesh Kumar himself submitted application in the office of A.D., LSB (R), DDA enclosing, affidavit, undertaking photographs, copy of voter ID Cards and Form 60 (Ex.PW­1/G, Ex.PW­1/H, Ex.PW­1/K and Ex.PW­1/I). In his CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 174 of 334 application he had given his address as 16 Gali No. 5 VPO Lohia Nagar, Distt. Ghaziabad (UP).

376. He then sought reliance on the statement of PW 13 Ravinder Singh qua bank challans, which were Ex.PW13/G and Ex.PW13/E against which total payment of Rs.15,89,000/­ was received.

377. He also sought reliance on the statement of bank official PW13 Sh. Ravinder Singh to prove two different bank account of accused N.K. Gupta and his wife accused Sangeeta Gupta Ex.PW13/G and Ex.PW13/E.

378. He also averred that the concerned UDC PW­20, S.C. Kaushik on whose statement he also relied upon the clearance of outstanding dues and challans, whereafter a letter No. F27 (16)/ 2003/LSB/8185 dated 02.08.2004 was issued to the accused Nitesh Kumar @ Harmesh Kumar for taking possession of Plot No. 66 Pocket No. 10 Block B Sector13, Dwarka, measuring area 333.6 sq. meter. PW­1 Bhopal Singh and PW­2 Chatarapal Singh both employee of DDA deposed and proved that on 10.08.2004 possession was taken by accused and handed over by DDA to the accused.

379. He subsequently also relied on the statement of PW­17 Meghraj Verma and PW­49, Ashok Kumar Arora and stressed that both these witnesses have proved that after the execution of above said lease deed in favour of Nitesh Kumar on 21.09.2004, property CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 175 of 334 was transferred by him to Smt. Sudesh Madan (50% share), Smt. Ramesh Kumar (25% share) and Smt. Monica Garg (25% share).

380. He also relied on the statement of PW­43 Smt. Hamita Rani to prove the driving licence and ration card of accused Harmesh Kumar @ Nitesh Kumar, which suggested the real identity of Nitesh Kumar as that of Harmesh Kumar who himself impersonated himself as Nitesh Kumar.

381. He also stated that PW­6 Hem Raj, PW­7 Parvinder Tomar, PW­8 G.S. Meena and PW­9 Rati Ram have proved that award No. 1598 was pertaining to Punjab Textile Ltd. Lahore, Delhi Branch, land was original own by Punjab Textile Ltd Co. and was acquired by NCT of Delhi having Khasra No. 1640, 1641, 1642­1643­Village Rangpuri. Further, all the above Khasra Nos belongs to "Sarkar Daulat Madar Majkoor" which means the property belongs to the Government and the documents on record suggests that there was no correspondence between LAC and DC and L&B Department.

382. He claimed that from the aforesaid material, it is clearly established that accused S.S. Malhi and Badrul Islam (since deceased) conspired with private persons namely Nitesh Kumar @ Harmesh Kumar, Neeru Kumar Gupta and Sangeeta Gupta as accused Nitesh Kumar @ Harmesh Kumar has filed an application for allotment of alternative plot on the basis of the false information that the land of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 176 of 334 accused Nitesh Kumar @ Harmesh Kumar S/o Bed Prakash had been acquired and in lieu of the acquisition of the land a compensation was awarded vide award No. 1958/66­67 in pursuance of which Harmesh Kumar impersonated himself as Nitesh Kumar, who presented himself as allottee of plot measuring 400 sq. yards in Dwarka.

383. He argued that in connivance with the accused Nitesh Kuamr @ Harmesh Kumar processed the file in the L&B Department falsely showing accused Nitesh Kumar @ Harmesh Kumar as awardee of the Award No. 1598/66­67, whereas from the evidence it is clear that the said information was false and LAC Certificate produced by the accused Nitesh Kumar @ Harmesh Kumar was fake.

384. He stated that further accused public servant S.S. Malhi has falsely certified the record of accused Nitesh Kumar @ Harmesh Kumar without obtaining any verification from LAC department and further it is also proved that by the witnesses from Revenue Department that the award bearing No. 1598 is in the name of Punjab Textile Ltd. Lahor, Delhi Branch and the land stood in the name of Government after its acquisition in 1966­67. He argued that accused S.S. Malhi has falsely certified the 27 summary sheets including accused Nitesh Kumar @ Harmesh Kumar in a format that "the particulars above are found correct as per records". Thereafter, the file was processed and was put up through accused Badrul Islam (now expired) the then Dy. Director and also one of the member of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 177 of 334 the Committee for allotment of alternative plots and in the meeting dated 03.12.2002, the committee has recommended 18 cases out of 29 placed before the Committee, which includes the name of accused Nitesh Kumar @ Harmesh Kumar.

385. Ld. Sr. PP argued that accused Badrul Islam (since deceased) was responsible for putting the each and every case before the committee, being the Dy. Director of L&B Department (alternate plots). The both the accused public servant in criminal conspiracy with each other they have created a file beyond a number which do not exist, in view of the evidence that only 131 applications were received in pursuance to the public notice dated 01.04.1989.

386. It is argued that in connivance with each other they have created false information regarding the award No. 1598 showing to be awarded to the accused Nitesh Kumar @ Harmesh Kumar and in furtherance of the above said criminal conspiracy a recommendation letter bearing letter No. F­32 (50­A)/ 159/89/L&B/ Alt./3088, containing serial number 001354 dated 26.05.2003 was issued under the signature of accused Badrul Islam (since deceased) to the commissioner DDA for further proceedings i.e. the formalities as per requirement for the execution of lease deed in favour of accused Nitesh Kumar @ Harmesh Kumar.

387. He then relied on the statement of PW­18 Anil Kumar CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 178 of 334 Aggarwal to suggest that accused Neeru Kumar Gupta and his wife Sangeeta Gupta and accused Harmesh Kumar @ Nitesh Kumar were well known to each other and in pursuance of the above said criminal conspiracy, the accused Neeru Kumar Gupta and his wife Sangeeta Gupta had facilitated/financed the entire transaction of impersonation, cheating, forgery for the purpose of obtaining the alternative plot by falsifying the documents submitted before the L&B Department which establishes that the all the accused persons including both public servant were well linked with each other in criminal conspiracy and the substantive offences charges against them were in furtherance of their criminal conspiracy.

388. He then detailed that the charge U/s 419, 420, 467 and 471 IPC verbatim against accused Nitesh Kumar @ Harmesh Kumar and relied on the statement of PW­43 Hamita Rani to establish real identity of accused Nitesh Kumar and claimed that Ex.PW6/D (forged award no. 1958/66­67) was presented alongwith the application. He repeated his earlier part of arguments as "Further accused Nitesh Kumar @ Hamesh Kumar impersonated as Nitesh Kumar and represented to DDA authorities as the allottee of plot measuring 400 sq. yards in Dwarka which was alloted vide file no.32(50)159/89/L&B/ALT against acquisition of 20.09 bighas land in Village Rangpuri, vide award no. 1958/66­67 dated 23.03.1967 in conspiracy with public servants and as such accused had submitted CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 179 of 334 the application dated 26.05.2003 along with relevant document (at page 2/C, D­13,Ex.A­9), application dated Nil along with relevant documents (page no. 27/C to 35/C, D­13, Ex.A­9), application dated Nil (at page no. 38C, D­13, Ex.A­9 application (page no. 53/C, D­13, Ex.A­9,), application dated Nil along with relevant documents (page no. 64/C to 67/C, D­13, Ex.A­9,) and application dated Nil (page no. 69/C, D­13, Ex.A­9)."

389. He then again relied on the statement of PW­6 Hemraj. PW­7 Parvinder Tomar, PW­8 G.S. Meena and PW­9 Rati Ram to suggest that accused S.S. Malhi processed the file in Land & Building Department and did not obtain any verification report from LAC and made a false note Ex.PW6/D in criminal conspiracy with Nitesh Kumar (A5).

390. He also argued that Nitesh Kumar (A5) dishonestly and fraudulently induced L&B Department and DDA / Recommendation Committee to deliver the recommendation letter Ex.PW­4/A in his name for the purpose of draw of Plots held on 26.04.2004 on the basis of which, he got plot measuring 333.6 Sq. mtrs. in Dwarka.

391. He argued that in order to prove the charge U/s 467 IPC, prosecution has examined PW­17 Meghraj Verma and PW­49 Ashok Kumar Arora, who has proved that GPA Ex.PW­17/A(D­16) and the agreement to sell Ex.PW.17/B (D­17) was executed by Nitesh Kumar CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 180 of 334 @ Harmesh Kumar in favour of (i) Smt. Sudesh Madan (for 50% share), (ii) Smt. Ramesh Kumari (for 25% share) (iii) Smt. Monica Garg (for 25% share)for purchase of plot no. 66, Block -B, Pocket No.10, Sector­13, Dwarka residential Scheme, Dwarka and the sale consideration was Rs. 16,14,000/­.

392. He further relied on the statement of PW­1 Bhupal Singh who has proved the execution of lease deed Ex.PW­25/B in favour of accused Nitesh Kumar @ Harmesh Kumar on 21.09.2004. He then relied on the statement of PW­62, Alka Gupta, GEQD Expert for her report Ex.PW­62/A.

393. He also relied in furtherance of charge under Section 467 IPC on the statement of PW­54, B. Magesh Krishnaratnam, who proved the signature of Sudesh Madan and other two ladies in favour of Smt. Manjeet Kaur and that of accused Nitesh Kumar @ Harmesh Kumar on GPA, SPA and agreement to sell all dated 11.05.2005.

394. He also relied on the statement of PW1 Sh. Bhupal Singh to support the charge under Section 471 IPC and that of PW­43 Hamita Rani to show that false voter ID card was used by Nitesh Kumar (A5), which were Ex.PW­45/E, Ex.PW­45/F, Ex.PW­45/G at the time of execution of the lease deed on 21.09.2004.

395. He then argued in furtherance of substantive charge U/s 13(2) CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 181 of 334 read with Section 13(1) (d) of PC Act prior to amendment against public servant and after having reproduced the charge verbatim argued in support of PW­4 K.K. Sharma and PW­20 S.C. Kaushik, and claimed that both these witnesses proved that Nitesh Kumar (A5) had submitted an application dated 26.05.2003 Ex.PW 4/A (D­ 13,Ex.A­9) and after filing of this application the both the accused public servant have processed the recommendation letter on the basis of false information submitted by accused Nitesh Kumar @ Harmesh Kumar, whereafter accused S.S. Malhi has certified on the summary sheets that the required documents are found correct, which was supported by Badrul Islam (A1) (since deceased), who otherwise was responsible to direct for getting verification from LAC and Revenue Department of Govt. of NCT of Delhi as the accused Nitesh Kumar had written in his application dated 26.05.2003 that "in lieu of his acquired land bearing Khasra no. 1640 (6­03), 1641 (5­14), 10­4 ½ Bigha which was acquired vide award no. 1958/66­67 dated 23.03.67 of village Rangpuri, Delhi in South Zone as he has been found entitled for the same.". He may be allotted alternative plot. It is argued that this application was processed by PW­4 K.K. Sharma and PW­20 S.C. Kaushik, however, both accused public servant did not do any verification regarding the award either from LAC or Revenue Department of GNCT of Delhi. PW­6 Hemraj, PW­7 Parvender Tomar, PW­8 Ganga Sahai Meena, PW­9 Rati Ram have proved that the award does not contain the name of accused Nitesh Kumar or of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 182 of 334 Bed Prakash and also the land actually belongs to Punjab Textile Co. Ltd. prior to its acquisition and after its acquisition the land belongs to the Government. Both the public servant concealed these facts from the Recommendation Committee and from the evidence of PW­1 Bhopal Singh, PW­3 Chattrapal Singh,PW­15 S.C.Gupta and PW ­48 Prakash Kumar, it is proved that the both accused person had sent and put up the case before the Recommendation Committee and Recommendation Committee recommended the name of accused Nitesh Kumar@ Harmesh Kumar for allotment of plot for putting the same in draw of lots held on 26.05.2004 (file Ex.PW1/A, D­13).

396. It is argued that after the draw of lots Nitesh Kumar @ Harmesh Kumar (A5) was allotted the plot in Dwarka Scheme. Further, Badrul Islam (A1) issued a recommendation letter in the name of accused Nitesh Kumar @ Harmesh Kumar and sent the same to the DDA for processing the same for execution of lease deed and handing over the possession to the Nitesh Kumar @ Harmesh Kumar.

397. He also relied on the statement of PW­57, Vijay Verma to proved that the charge report prepared by accused S.S. Malhi does not bear signature of PW­5 Sheela Devi and it bears signature of accused S.S.Malhi and has given his opinion Ex.PW­57/A.

398. He stated that it is proved that accused S.S.Malhi has prepared the false charge report of Sheela Devi showing the existence of file CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 183 of 334 pertaining to accused Nitesh Kumar @ Harmesh Kumar for recommendation of alternative plot. He also relied on the statement of PW­62, Alka Gupta, GEQD expert, who has proved the signatures of accused Badrul Islam (A1) (since deceased) writing and signature of accused S.S. Malhi on the questioned document including summary sheets and recommendation letter of accused Nitesh Kumar @ Harmesh Kumar and from the above said evidence, it is averred that it is sufficiently shown that the accused deserves conviction as they have committed criminal misdeed by abusing their official position and favoured other co­accused.

399. Subsequent to completion of submissions of ld. Sr. PP, Sh.Javed Akhtar, ld. Counsel for accused A2 to A4 has filed rebuttal submissions to final arguments of ld. Sr. PP.

400. At the outset, he has challenged the statement of PW44 Smt. Usha Chaturvedi and has averred that her statement does not disclose any material fact to dislodge the defence. He has stated that she was not present in the year 1989 at the time when the scheme came into operation and had no first hand knowledge whether any list where the applications were received in Land & Building Department after the aforesaid cut off date but in the year 1989 itself and those applications were allowed later by the intervention of Lt. Governor and/or by Secretary, L&B Department by condoning the delay while considering the various reasons given by the applicants.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 184 of 334

401. He averred about the direct receipt of applications at Alternative Branch, where many applicants during their personal appearance before Head of Alternative Branch submitted their applications and other documents, during which, to satisfy the public, usually Branch Head made endorsement and marking by his signatures, after which, the application or submitted documents were no more required to be submitted through central diary or R&I Branch of Land & Building Department.

402. Besides, it is averred that answering accused are not relying on the eligibility criteria in respect of determining the size of recommendable plot as per procedure asserted by PW44 Smt. Usha Chaturvedi. It is also stated that accused are not relying on the version of PW44 and/or of prosecution in respect of any public notice or any publication made under it. It is claimed that accused are not relying on the assertion that in response to the "alleged" public notice only 131 applications were in Land & Building Department.

403. Ld. counsel on behalf of accused then put to challenge the version of PW44 and claimed that she had been 'prejudiced' due to non­availability of record in department and lack of her experience in perusing the available record and information with her in the department and on account of some 'missing' and malafide information provided by vested interest withing the department by some officials of Alternative Branch, she failed in considering all CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 185 of 334 facts, information/record which was available within the department and has drawn wrong conclusion that only 131 applications received in response to the said public notice from village Rangpuri, Delhi. It is averred that PW44 is not a reliable witness as during the preliminary inquiry she supplied wrong information to CBI and has wrongly stated that no file with reference No. F32(50A)/159/89/L&B/Alt pertaining to Land & Building Department which was mentioned in Ex.PW4/A was never created in Land & Building Department.

404. It is claimed that PW44 has made a contrary statement as PW5 Smt. Sheela, UDC another prosecution witness posted in Alternative Branch who relieved S.S. Malhi (A2) after collecting the charge from him under her examination­in­chief admitted that all files were handed over to her by A2 and admitted that since she was not well conversant with English language she had not gone through the charge. However, all files which were kept in almirah were received by her by taking the keys from A2. She further admitted that it took her about 15/16 days in taking the charge of files under the instructions of Badrul Islam (HoD). She handed over the keys of almirah and charge to Sh. Satbir, her successor. In furtherance of the aforesaid arguments, he relied upon the cross­examination conducted by Sh. Chander Maini, ld. Counsel for A1 on 07.04.2017 and referred to page 2 and 5 of cross­examination and stated that PW5 admitted CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 186 of 334 that number of files were 830 and on 12.04.2017 the copy of charge report Ex.PW5/DA was confronted to the witness, where portion A to A1 was written by Satbir, whereupon Satbir has signed at point A.

405. He relied upon the statement of Sheela, wherein, she deposed that she handed over the entire charge to Satbir on the same day and had told him to inform her if any file was missing, whereafter she was informed of five missing files which she searched and handed over to Satbir. It is stated that in view of the aforesaid, the fact of file No. F.32(50A)/159/89/L&B having been missing as stated by PW44 stood contradicted.

406. He then relied upon the statements of PW15 and PW48.

407. He then relied upon the statement of PW15 Sh. Subhash Gupta, who was posted as Dy. Legal Advisor, L&B Department and Member of Recommendation Committee whose examination­in­chief was relied upon by ld. Counsel to state that he "categorically admitted the fact in showing of Ex.PW15/B Nitesh Kumar @ Harmesh Kumar S/o Bed Praksh file no. F32(50A)/159/89/L&B/Alt (Rangpuri) area of land acquired 10 bigha 4 biswas and the date of notification 23.01.1965, Award No. 1958/66­67 date of possession 25.04.1967, is one recommended case out of 18 recommendations made during the said meeting and his name appears at serial no.7 (point C) at Annexure­A which was the list of recommended cases."

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 187 of 334

He further submitted that Nitesh Kumar was recommended a plot measuring 400 sq. yds (South). He stated that on page­4 of his examination­in­chief, "the role of committee was to consider the record made available in the file by Alternative Branch, which was headed by Dy. Director (Alternative)". He also relied on the statement where he stated that " I have already stated above that the documents were gathered and verified by alternative branch, the documents with regard to allotment of alternative plot to Sh. Nitesh Kumar must also have been collected and verified by alternative branch headed by Sh. Badrul Islam and Sh. S.S. Malhi, the Dealing Assistant." He stated that in view of the abovesaid statement, the prosecution has not put forth any material to contradict the aforesaid version.

408. He then relied on the statement of PW48 Sh. Prakash Kumar Srivastava, posted as principle Secretary, L&B Department and the Chairman, Recommendation Committee (Alternative Plot). He drew the attention of the Court to the statement of this witness recorded on 05.07.2019, wherein the role of Recommendation Committee was described and stressed on the statement "There is no other way of processing any application" for recommending an alternative plot but only due deliberation of the said Committee. He has also drawn attention on the statement in respect to the Court Questions recorded as "I was told by the IO, CBI that these case files were missing on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 188 of 334 which the processing was done which was also produced before the Committee". He also sought to strengthen his arguments on the Court Questions in which the witness has replied that after receiving the application alongwith annexures were received by the Alternative Branch, Assistant S.S. Malhi and Badrul Islam the then Dy.Director were required to examine which paper before putting up the same before the Recommendation Committee, if I recall their signatures were also there on each paper containing in the application form they were verified by them. He also relied on the cross­examination conducted by him to stress his arguments that PW48 Sh. Prakash Kumar Srivastava admitted the existence of file No. F.32(50A)159/89/L&B/Alt, which came before the members of the Recommendation Committee held on 03.12.2002 for their consideration but the above mentioned PW44 made a contradictory story.

409. He claimed that prosecution has created a false story to the extent that the accused conspired without existence of file No. F.32(50A)159/89/L&B/Alt (Ex.PW4/A). He stated that prosecution in para­12 of its written arguments has made a contradictory plea by alleging that Ex.PW15/A was fraudulently caused in existence in L&B Department and issued recommendation letter with file No. F.32(50A)159/89/L&B/Alt bearing serial No.001354 dated 26.05.2003 in favour of Nitesh Kumar (A5) after lapse of 13 years.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 189 of 334

410. It is stated that in view of the abovesaid, prosecution is blowing hot and cold and is admitting the existence of file No.F.32(50A)159/89/L&B/Alt, which PW44 had denied and on whose statement CBI relied upon during preliminary inquiry.

411. It is averred that in the chargesheet also, the period of start of conspiracy has categorically been mentioned as started from 2003, however the prosecution with ulterior design has turned it from early period from 1989 start of conspiracy which move on the part of prosecution is a clear cut abuse of process and unwarranted and unfair in judicial proceedings.

412. He averred that CBI document D­89 is the document which has shown by the prosecution as Ex.A­4. However, as per his assessment he claimed that it appears that either it was a mistake or an attempt to misled on the part of the prosecution as the exhibit in question, in which the statement of witness has not been mentioned.

413. He claimed further that paras­15 to 31 are denied by the accused persons.

414. He again relied on para­16 as rebuttal arguments to written arguments of prosecution to claim that he is denying para­32 of the written submissions and stated that the prosecution has since beginning of the proceedings is struggled to clearly allege the period of commencement of conspiracy as it is stated that in para­32 it has CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 190 of 334 been claimed that the conspiracy started in 2003 while in para­12 of written arguments the prosecution has attempted to disclose the period of start of conspiracy 12 years before from 26.05.2003 and hence, both the versions are contradictory on the face of it.

415. He further claimed that in para­12 of the written submissions the period of 1989 is raveled to be the period of commencement of conspiracy during which year neither A1 nor A2 were posted in the Alternative Branch. He claimed that if the conspiracy is believed to commence in the year 2003 then prosecution failed to prove how file No. F.32(50A)159/89/L&B/Alt was available on 03.12.2003 while the case was under due consideration of the Committee for recommendation of alternative plot.

416. He again went on to deny para 33 to 36 and claimed that same are contradictory to the statement of PW44. He averred that para­37 is contradictory to the statement of PW15. Then he reverted back to para­38 to para 41 and claimed them to be contradictory to the statement made by PW1, PW4 and PW44.

417. Again he repeated that para ­42 of written submissions of prosecution is contradictory to the statement of PW13. He denied paras­43 to 48 being in contravention to the statement of PW17, PW20, PW43 and PW49. It was averred that contents of para­49 are subject to judicial scrutiny and further went on to point out that in CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 191 of 334 para­50 the name of PW18 is Vijay Kumar Aggarwal and not as mentioned Anil Kumar Aggarwal.

418. Ld. counsel in reply to contents of para­51 stated that PW3 exhibited documents Exs.PW43/B, PW43/C & PW43/D i.e. the documents collected from the residence of Nitesh Kumarch may be capable of proving identify of A5 and the photographs or any other material under Exs.PW43/H, PW43/J, PW43/K, PW43/L and Exs.PW45/E, PW45/F & PW45/G of Nitesh Kumar may also have been identified by witness PW43 as that of her husband, however the aforesaid statement does not establish the case of the prosecution beyond doubt. He further argued that the prosecution has made a lot of reliance on single witness though neither she can be considered as extraordinary person her knowledge being limited unto her being laywomen, who has deposed without consideration to the repercussions of her deposition on her family life. While referring documents Ex.PW6/D and Ex.A­9 (colly), he stated that the aforesaid documents are nothing but are created documents, which the answering accused considered having been planted by DDA/CBI in order to prove their case.

419. He contended that statement of PW7, PW8 and PW9 is nothing but eye­wash with the help of some documents proved as evidence without considering that they are not even actually CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 192 of 334 connected with this case. He stated that the prosecution has omitted to put forth the actual required documents for the reasons of lack of knowledge on the part of investigation team about land revenue documents. He stated that the investigating team with their limited knowledge on the subject was in search of land revenue documents or material which may be helpful to prove their case as to establish it beyond doubt, "however, on the other hand, land revenue department being expert on the subject under pressure of limited time been provided them by CBI has supplied CBI what could land revenue department made available to CBI, this was the difference of thinking at both ends", which resulted a number of tainted documents from the record of land revenue department having been inducted as evidence.

420. He further stated in response to para­53 of final arguments that PW17 exhibited documents Ex.PW17/A & Ex.PW17/B, which clearly stated that said exhibited documents were executed by Nitesh Kumar but nowhere there is any reference from the deposition itself which can remotely suggest that the witness has implied in his deposition to the reference that Nitesh Kumarn under exhibited document is the same person who in Court proceedings is present as Harmesh Kumar.

421. He claimed that similarly PW1 in his deposition has stated that the lease deed in favour of allottee Nitesh Kumar was executed by him with his presence therein by obtaining his signatures on the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 193 of 334 document and also by pasting his photograph on document but there was no question by Court/PP on identification of Nitesh Kumar to match with the person who was present in court proceedings as Harmesh Kumar the witness failed on the instance.

422. He further relied on the statement of PW26 and claimed that also in the statement of PW45 there was no reference of such a nature that the exhibited documents were executed by Nitesh Kumar the said person is also the same person which is present as Harmesh Kumar in the proceedings of the court.

423. In reply to para­54, he denied that deposition of PW62 and Ex.PW62/A has corroborated the evidence to hold that Nitesh Kumar and Harmesh Kumar both are the same person. He stated that at the maximum his statement is capable of raising suspicion, however the suspicion is not evidence in concluding nature.

424. Thereafter, he in reply to para­55 submitted that deposition of PW­54 an expert who exhibited Ex.PW54/B is incapable of proving that the lease deed executed by Assistant Director, Land & Building Department (R) (LA), DDA PW1 Sh. Chhatarpal was a created or forged document. He stated that PW1 being authorized person on behalf of DDA has executed the said document within his authority and after applying his all due diligence and hence, at this stage, the document cannot be claimed as forged and fabricated documents, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 194 of 334 which has been created by the accused to cheat someone within the meaning of Section 467 IPC.

425. Thereafter, in reply to para­56, he claimed that no charge under Section 471 IPC has been proved against the answering accused persons and again mentioned that the statement of PW43 being house­ wife is not trustworthy as being homely she could not understand the person namely Nitesh Kumar neither Harmesh Kumar both are in fact the same persons or not. She being laywomen just relying upon her limited wisdom and the information received from her plain view of eyes mistakenly did so even at the time she did not understand and repercussion of her this deposition on future of her family life. He further stated that as it may be a time of confusion and grief for a woman when someone alleged about her husband being a person of criminal nature though the women know how good her husband for her is contradictory preposition and obedience towards law both lead to a person to commit some kind of omissions which may not be regarded as illegal but such type of omission out of confusion may cause prejudice to someone under helplessness of person who commits that omission. Here it is the case. No document Ex.PW45/E, PW45/F & PW45/G can be said as proved on the basis of the statement of PW43, especially, when PW1 was himself was failed in determining that Nitesh Kumar who appeared before him with his document Ex.PW45/E, PW45/F & PW45/G and Harmesh CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 195 of 334 Kumar who was present in the court during proceedings were the same persons.

426. He also denied that any offence under Sections 419/420/467/468/471 IPC is made out.

427. While replying the charge framed against accused under Section 13(2) read with 13(1)(d) of the PC Act, he claimed that prosecution has merely repeated and is referring the record from the Court charge. He further in support of his arguments relied on the statements of PW15 and PW48 and claimed that it has surfaced from their statements that nothing wrong was done by A2 and A1 and they did their duty within framework of departmental rules and regulations.

428. He stated that if any irregularity has occurred during deliberation of Recommendation Committee in such facts and circumstances, all Members of the Committee are liable equally.

429. He then replied to the contents of para­58 and claimed that ld. Sr.PP has been attempting to mislead the Court and stated that the prosecution has linked their allegations of criminal conspiracy from third angle. His arguments, at this stage, is reproduced herein below :

"Herein, the prosecution is saying that PW4 and PW20 has said that Nitesh Kumar submitted Ex.PW4/A and after filing the said document A1 and A2 processed the recommendation letter which CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 196 of 334 itself is document Ex.PW4/A, thereafter prosecution say that A2 certified the 27 summary sheets inducing of this case, thereafter A1 got verification from the LAC/Revenue Department, now here again quoting the contents of Ex.PW4/A the prosecution further alleged 'however A1 and A2 did not do any verification regarding subjected award under this case from LAC/Revenue Dept.' 'PW6, PW7, PW8 & PW9 have proved that subjected award under this case does not contain the name of Nitesh Kumar or his father's name Bed Prakash, the subjected land under Ex.PW4/A belongs to Punjab Textiles Ltd.' further alleged that both 'A1 & A2 concealed these facts from the recommendation committee'." Against these allegations by the prosecution, he stated that the application for alternative plot first comes in Land & Building Department. Then after deliberation of Recommendation Committee only, recommendation letter like Ex.PW4/A may be prepared. It could never be possible that the letter like Ex.PW4/A may be in advance sent to DDA and later the case may recommended. In the instant case also, the document Ex.PW15/A which was the result of meeting dated 03.12.2002 could not have been in existence. He then claimed that the statement of PW44 hence is not reliable and is in contradiction as she did not handover D­89 herself during investigation, which was forcibly seized by CBI.

430. He then pointed out that deposition of PW6, PW7, PW8 and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 197 of 334 PW9 suggest that they have not brought the actual record linking to this case while CBI team is not expert on the subject matter of LAC. He claimed that when a RC is registered, out of busy schedule itself has to complete investigation in a time framed. It may delay only when IO is under impression that investigation required some more material but where IO is satisfied within himself in respect with completion of investigation under such circumstances he will try on those documents who he has referred in course of his preliminary inquiry from where his suspicion was made clear about the irregularity/offences/mischief etc. believed to be committed by the accused but he doe not look any possibility where the accused may be proved innocent.

431. He claimed that LAC record, copy of award can never establish that all recorded owners till that date were included in the said proceedings of the said Award as there is possibility that the persons who are owners but are not being recorded as such or their ownership is in dispute under any pending litigation or otherwise interested persons like tenant, licensee, mortgagor etc, there may be many kind of interested class of persons who may be ideally interested in that award proceedings were excluded being their recording of ownership was not proper. He stated that hence in such circumstances, the revenue record is not proper record to castigate or cause due involvement of the accused.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 198 of 334

432. He further claimed that from the statement of PW15, no attempt of conspiracy is suggested against A1 and A2 and he stated that 4th angle of conspiracy is opened by the prosecution suggesting that even the DDA Public Draw which was held by DDA under working of DDA's separate programme branch on 26.05.2004 was held as a result of conspiracy of A1 and A2 with A5. He stated that in this case, A3 and A4 were not the participants of conspiracy and hence, the prosecution has miserably failed in bringing any material particularly, to link these three accused. He then went on to make the following argument, which is reproduced as below : "The Ex.15/A was the result of meeting held on 03.12.2002 meaning thereby Ex.PW4/A came into existence by the outcome of the said document, which was dispatched on 26.05.2003 from L&B Department and received in DDA's central diary on 26.05.2003, same was sent from DDA's central diary to Commissioner LM office on 27.05.2003 from where it was sent to LSB(R), DDA Branch on 28.05.2003 in LSB(R), its Dy. Director marked it downward on 28.05.2003 it reached to Asstt. Director (Incharge) on 28.05.2003 from where it was marked to Dealing Assistant on 30.05.2003 while the allotment of plot draw pertaining to be held in the year 2003 was within displayed result was completed on 29.05.2003. Thereafter, the next draw held on 26.05.2004. The existence of A5 here appears on the fact of fact itself under many questions. Why any principle of any conspiracy like A1 CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 199 of 334 and A2 may keep a person engaged for a period even unknown to A1 and A2 specially when the next date draw was to be announced by the DDA. Under such type of uncertainty conspiracy never implemented."

433. He thereafter in response to para­58 drew reference from point 'PW­57' on page 24 of the final arguments and submitted that "the prosecution has again failed in understanding the fact that list given by A2 in course of investigation to CBI later, which was referred to CFSL for opinion, PW57 reason best known to CBI, in respect with this CBI never informed to A2, however, PW57 given his opinion which was exhibited as Ex.PW57/A. Under the said document, it was said that signatures of PW5 does not match with available on the list supplied by A2 during course of investigation. We do not disregard the opinion given by any expert but specimen was taken from PW5 as Ex.PW5/DB during her cross­examination for immediate reference of the Court. Furthermore, PW5 also admitting all the facts containing in the said list in her cross­examination. The fact related with number of files given by A2 to A5 she states it was 830 files and it took 15­16 days in taking over the charge. If this the preposition than does it appear on part of A2 that he deliberately will forge any document to submit in CBI where investigation procedure is clear for everyone, even admitted signatures of persons during course of CBI investigation usually sent to CFSL to determined whether the person admitting the signatures on documents can be relied upon or not.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 200 of 334

Therefore, it appears some mistake or omission on the part of PW5 or CBI."

434. He also traversed the report given by PW62 in terms of Evidence Act and has relied on the judgment of Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee (died) LR & Ors. :

1964 AIR (SC) 529.

435. In view of the aforesaid submissions, he prayed for acquittal of the accused persons.

436. I have heard the submissions from both sides as noted above and have gone through the record carefully as well as written submissions to the specific charge and record my findings accordingly.

Conspiracy

437. The crux of the allegation against all the accused have been woven through the common thread of the allegation of conspiracy. It is vehemently averred that on account of their pre­meditated malicious intentions which has been woven together by, transaction of actions spread over various stages of the offence, all the accused persons have come together to receive yield of illegal design.

438. The charge of conspiracy is the first and primary charge, which has been framed on all the accused persons. It has been argued CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 201 of 334 vehemently that all accused in furtherance of their mischievous intentions, through A­5 Harmesh Kumar, who adopted fake identity as Nitesh Kumar duped DDA to extract wrongful gain of a bearing No. 66, Pocket­10, Block­B, Sector­13, Dwarka measuring 333.600 sq mts. In achieving the above, A­5 was facilitated by A­1 and A­2 both officials of Alternative Branch, A­3 and A­4 Neeru Gupta and Sangeeta Gupta who paid against the plot and A­5 himself who concealed his actual identity and stood as a fake entity to secure the advantage of a scheme meant for the disadvantaged farmers who were displaced of their lands.

439. It is also alleged that the payment of the plot was financed by accused Neeru Kumar Gupta from his account as well as from his wife's account Ms.Sangeeta Gupta (A3 and A4). The plot was sold by A5 Nitesh Kumar @ Harmesh Kumar under fake identity to Ms.Monika Garg, Ms. Sudesh Madan and Ms. Ramesh Kumari on the day the lease in his favour was executed. The law relating to conspiracy is defined in detail u/s 120B IPC. At this stage, reproduction of provision is requisited and is accordingly made as below :

"1.Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 202 of 334 Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"

440. At the threshold, it be observed that the prosecution while being burdened to prove a charge of conspiracy u/s 120B IPC is burdened to prove : (i) that the accused agreed to do so or caused to be done an act; (ii) that said act was illegal or was to be done by illegal means; and, (iii) some overt act was done by one of the accused in pursuance of the crime. It is held that like most rimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state.

441. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity.

442. Through various judgments, the provision has been CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 203 of 334 interpreted. In order to make appropriate assessment of circumstances detailed through evidence and to receive comprehensive interpretation, it shall be worthwhile to detail some of such precedents/observations.

443. The law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Conspirators may be tried and punished for both the conspiracy and the completed crime. (Firozuddin Basheeruddin & Ors. vs. State of Kerala , 2001 (7) SCC

596).

444. However, for an offence punishable u/s 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. (Chaman Lal & Ors vs State Of Punjab & Anr.: AIR 2009 SC 2972). It is worthwhile to observe in order to form a criminal conspiracy a meeting of minds is to be proved by adducing substantive evidence in cases where circumstantial evidence is incomplete or vague as is settled proposition of law. Whether the agreement is one to do or caused to be done an act which is itself an offence, no overt act need to be proved. A crime of criminal conspiracy is established once such a crime is proved (Bimbahadur Pradhan vs The State Of Orissa : AIR 1956 SC 469, Suresh Chandra Bahri vs State of Bihar : 1994 AIR CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 204 of 334 2420, Ram Narain Popli vs Central Bureau of Investigation : AIR 2003 SC 2748)

445. The Hon'ble Supreme Court had also made significant observations in Bimbahadur Pradhan (supra), wherein, it is held that where a conspiracy is alleged to commit a series of serious crime, mere proof of such a crime between the accused is sufficient to sustain a conviction. It is held further, however, needless to say that the proof that they or some of them were concerted in overt act alleged would go far to establish that the agreement alleged was infact made between them.

446. It is held that conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable u/s 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done illegal act; the agreement may be proved by necessary implication, as is held in K. Hashim vs State Of Tamil Nadu : 2005 Cri LJ 143 SC. In the Parliament Attack Case [State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru : 2003 (6) SCC 641], the Hon'ble Supreme Court held that short of participating in the actual attack, Afzal did everything to set in motion the diabolic mission. He was associated with the terrorists in almost every act done by them in order to achieve the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 205 of 334 objective of attacking the Parliament House. The circumstances cumulatively considered and weighed and unerringly pointed to the collaboration of the Afzal to various acts done in furtherance of conspiracy. He was held partner in crime of enormous gravity.

447. Having regard to the facts that the conspiracy is usually an act behind closed doors, the observations in Bimbahadur (supra) are again material, wherein, it is observed that in cases of conspiracy, the agreement between the conspirators cannot be generally directly proved but can only be inferred from the established facts in the case. The Hon'ble Courts have gone on to observe that conspiracy need not be established by evidence of actual agreement between the conspirators and overt act raises a presumption of an agreement and knowledge of the purpose of the conspiracy. The criminality of the conspiracy is independent of the criminality of overt act. To prove conspiracy, it is not necessary that there should be direct communication between each conspirators and every other but the criminal design alleged must be common to all. [(Kehar Singh & Ors vs State (Delhi Admn.) : 1988 AIR 1883)].

448. In crux, the rationale of the conspiracy is the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 206 of 334 security, a person may carry out his part of a conspiracy without even being informed of the identity of his co­conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co­operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together that they would accomplish the unlawful object of the conspiracy. [Firozuddin Basheeruddin (supra)].

449. Further, in Firozuddin Basheeruddin (supra), it is observed "Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 207 of 334 promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast."

450. It is observed in P. K. Narayanan v. State of Kerala : 1994 (3) Crimes 850 SC that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence.

451. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts. [Firozuddin Basheeruddin (supra)].

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 208 of 334

452. For establishing/proving a charge of conspiracy, knowing other conspirators and details of conspiracy is not necessary. The necessary requisite is to know the main object and purpose of conspiracy. (Mohmed Amin @ Amin C.R.M.Shaikh & ... vs C.B.I :

2008 (15) SCC 49).

453. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co­ conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus, conspirators are liable on an agency theory for statements of co­conspirators, just as they are for the overt acts and crimes committed by their conferrers. [Firozuddin Basheeruddin (supra)].

454. After having discussed the aforesaid proposition set up by way of precedents and provisions, it is now incumbent to see the factual matrix presenting the scope which may lead to fulfillment of necessary ingredients in order to constitute and present a landscape sufficient to declare the acts engaged and indulged by accused persons has offence falling within the domain of aforementioned provisions of Section 120B IPC.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 209 of 334

Extraction of recommendation letter obtained in fictitious name

455. The domain of charge indites accused for having engaged with mischievous, malafide and ill intention to extract recommendation letter in favour of Nitesh Kumar (A5), a false and fictitious entity. In order to assess the aforesaid elements of accusation, the statement of PW4 Sh. Kamal Kumar Sharma is required to be noted first. Sh. K.K. Sharma, retired Director, in his deposition exhibited the recommendation letter No. F.32(50A)/159/89/L&B/89/Alt./3088 dated 26.05.2004 as Ex.PW4/A. He deposed that the aforesaid recommendation letter is in favour of Nitesh Kumar and was received in his department through Central Diary Section, Vikas Sadan vide diary No.14282. He read out the contents of the aforementioned recommendation letter and detailed that Ex.PW4/A was for allotment of alternative plot under the scheme of "Large Scale Acquisition and Development and Disposal of Land in Delhi, 1961" requesting to allot an alternative plot measuring 400 sq yds. to Sh. Nitesh Kumar s/o Sh. Bed Prakash R/o Lohiya Nagar, Ghaziabad, U. P. and it finds mentioned "in lieu of his acquired land bearing Khasra No.1640 (6­

3), 1641 (5­14), 1642 (5­3) and 1643 (3­9), total measuring 20.09 bigha in which applicant's share was half i.e. 10­4 ½ bighas which was acquired vide award no.1958/66­67 dated 23.03.1967 of Village Rangpuri, Delhi in South Zone and he was found entitled for the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 210 of 334 same."

456. Thus, construction of meaning and import of the aforesaid recommendation letter Ex.PW4/A tantamounted to presentation of a claim premised on the eligibility and entitlement of applicant Nitesh Kumar S/o Sh. Bed Prakash R/o Lohiya Nagar, Ghaziabad, UP on account of him having been deprived of his land vide award of 1958/66­62 pertaining to his land of Village Rangpuri, against which, by way of rehabilitation scheme he was found entitled to claim an alternative plot. The aforesaid fact that the recommendation letter Ex.PW4/A was issued in favour of Nitesh Kumar with the aforementioned contents is an undisputed fact.

457. The contents of the recommendation letter, hence requisited A­5 to establish the factum of ownership of Khasra No. 1640, 1641, 1642, 1643 at Village Malikpur Kohi as well as its acquisition vide award of 1958/66­67.

458. In this context, the statement of PW7 Sh. Parvinder Tomar, Patwari, Tehsil Vasant Vihar, office of SDM, Old Terminal Tax Building, Kapashera, New Delhi is now noted. This witness produced the record pertaining to Jamabandi of village Rangpuri for the year 1966­67 containing Khasra No.1628 to 1656, which included Khasra No.1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9) showing ownership in the name of 'Sarkar Daulat Madar Majkoor'). The CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 211 of 334 record is Ex.PW7/C (colly) qua which there is no resistence to the correctness of its contents through cross­examination. The aforesaid statement was strengthened by PW8 Sh. Ganga Sahai Meena, Kanoongo/Record Keeper in office of SDM. Old Tehsil Building, Mehrauli, who produced the Khatoni for the year 1964­65 Khata No.177 and Khata no. 185, Khatoni for the year 1968­69 Khata No.186/177 and Khata no.196/ 185 Village Rangpuri, New Delhi with Hindi translation. The certified copies of said Khatonis were exhibited as Ex.PW8/A (colly). As per the record of Khatoni pertaining to ownership of Khasra Nos. 1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9), their ownership was found vested with one Punjab Textile Company Ltd., Lahore, Delhi Branch uptill 20.03.1967, on which date, vide LAC award No. 1958, the ownership was transferred in favour of the Government. He detailed that the translation of Urdu record was done by one Sh. Ratiram, which he also authenticated and after having gone through the record, he detailed that the land in Khasra nos.1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9) was never in the name of Sh. Nitesh Kumar or his father Sh. Bed Prakash as per document Ex.PW8/A.

459. The cross­examination conducted rather elucidated facts favourable to prosecution and confirmed the contents of examination­ in­chief as the witness detailed that the land in question vested in Gram Sabha in 1973 as it is evident from note at point B on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 212 of 334 Ex.PW8/A.

460. The translator of the record Sh. Rati Ram was also examined as PW9, who affirmed that he had made the translation of record on request and affirmed that the ownership vested in Gram Sabha and prior to award no. 1958 dated 20.03.1967 it stood in favour of Punjab Textile Company Ltd., Lahore, Delhi Branch. He explained in cross­ examination that he was verbally requested for translation of record, however, this could not bring any doubt of the genuineness of the translation and/or his capacity of translator qua his acumen to carry out correct interpretation of record from Urdu to Hindi. As he had given the translation in hand­written form which he identified.

461. The fact that the land never stood in name of Nitesh Kumar was also affirmed by PW­6 Sh. Hemraj, Naib Tehsildar in office of LAC, DC, who confirmed the payment details of compensation pertaining to Award No.1958(1966­67) of Village Rangpuri and certified copy of Award No.1958 for land measuring 1571 Bigha 3 biswa situated in village Malikpur Kohi @ Rangpuri. The record was exhibited as Ex.PW6/B, which was certified copy of letter of ADM Sh.Vivek Kumar Tripathi dated 17.08.2015, whose signatures he identified alongwith rubber stamp. The award No.1958 was exhibited as Ex.PW6/C. The certified copy of the award was also bearing the signature of PW6 Sh. Hemraj and was Ex.PW6/C. The certified copy CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 213 of 334 of the award was also bearing the signatures of PW6 Sh. Hemraj and was Ex.PW6/D. Premised on the record, he detailed that no compensation had been paid to Sh. Nitesh Kumar S/o Sh. Bed Prakash R/o Lohiya Nagar against acquisition of land vide award No.1958 of village Rangpuri (Malikpur Kohi) for Khasra No.1640(6­

03), 1641 (5­14), 1642 (5­3) and 1643 (3­9) total measuring 20 Bigha 9 Biswa.

462. He affirmed that as per the practice, Land & Building Department asks for copy of Award and payment details to the land owners whose land had been acquired from LAC for that purpose. In cross­examination, he affirmed that fact and rather detailed that copy of award is also uploaded on the website and even the documents exhibited by him had been taken therefrom. The suggestion could not dispel the correctness and genuineness of the record, thus, showing the contents of Ex.PW4/A to be false to the extent wherein the eligibility and entitlement in favour of Nitesh Kumar. No record in name of Nitesh Kumar showing acquisition of his land bearing Khasra No.1640(6­03), 1641 (5­14), 1642 (5­3) and 1643 (3­9) specified his share as 10 ½ Bigha having been acquired vide Award No. 1958 of village Rangpuri was brought on record rather the witnesses deposed adversely stating that land in question never took in his favour as owner at any point.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 214 of 334

463. In continuation of the aforesaid, comes the question of real identity of Nitesh Kumar (A5), which is again doubted. It is claimed by prosecution that Nitesh Kumar (A5) donned a false and fictitious identity to gain mischievously the recommendation of an alternative plot. In order to support the aforesaid allegation, statement of PW43 Smt. Hamita Rani is heavily relied on. PW43 Smt. Hamita Rani is wife of Sh. Harmesh Kumar (Nitesh Kumar). She identified Nitesh Kumar (A5) in Court as Harmesh Kumar (her husband). She detailed that they have been residing at 89, B­ Block, Ward No. 6, Village & Post PS & Tehsil Shri Karanpur, District Ganganagar, Rajasthan. She identified the photograph of her husband given against production­ cum­seizure memo dated 26.11.2015 Ex.PW43/A bearing her signatures at point A. She had also provided some other documents alongwith this memo. She identified the endorsement made by Harmesh Kumar at the back of the photograph, which endorsement was then exhibited as Ex.PW43/B. The marriage photograph of her and Harmesh Kumar bearing signatures of her own at point B and that of Harmesh Kumar at point A was then exhibited as Ex.PW43/C1. Photocopy of her Aadhar card bearing her signatures was exhibited as Ex.PW43/D. She denied having resided at Ghaziabad at any point of time or having visited Ghaziabad.

464. She then detailed that Sh. Neeru Gupta, an Advocate (A3) was known to her through Sh.Vijay Kumar Gupta, being brother­in­law as CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 215 of 334 Sh. Vijay Kumar Gupta was son­in­law of her Mausi. She did not know any Nitesh Kumar, at which stage, she was shown attested photocopy of voter ID card of Nitesh Kumar, on which, she identified photograph of her husband Harmesh Kumar. The documents were then exhibited as Ex. PW43/E, PW43/F and PW43/G.

465. She was then shown recommendation letter Ex.PW4/A, which was bearing photograph of her husband Harmesh Kumar at point C, which she identified, whereafter, the document was exhibited as Ex.PW43/H. She then identified the photograph of her husband on Ex.PW43/J, PW43/K, PW43/L, both copies of perpetual lease deed and on specimen card and photograph.

466. In cross examination, she identified her husband Harmesh Kumar being present in Court as well as his photograph having been appended, which she identified on all the documents mentioned above. While in cross­examination, she was asked that the documents and photographs except Ex.PW43/A, PW43/B, PW43/C, PW43/C1 and Ex.PW1/J were photocopies and were not original, this suggestion could not deny and dispel that the photographs were of Harmesh Kumar (her husband) and they both had been residing at Shri Karanpur, District Ganganagar, Rajasthan. The fact that the photographs were of her husband was reaffirmed in cross­ examination as well. She then identified the photograph of her CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 216 of 334 husband on perpetual lease deed Ex.PW25/B and the photograph appended at point C.

467. From the statement of PW43 Smt. Hamita Rani, it became evident that Harmesh Kumar (her husband) had adopted the false identity in name of Nitesh Kumar (A5) and the fact that he was resident of Shri Karanpur, District Ganganagar, Rajasthan and was married with her were also established through her statement. While no material cross­examination to challenge the statement of PW43 Smt. Hamita Rani and or her incapacity to depose as witness came forward, intriguingly, in the written submissions, ld. Sh.Javed Akhtar challenged her capacity qua her deposition. He claimed that PW­43 being a housewife and by making a statement to the effect has allowed herself to be played in the hands of prosecution without realising the jeopardy it may cause or adverse consequences it may have on her marital relations. While admitting that the photograph identified by PW43 are correctly identified as that of Harmesh Kumar, he claimed that the identification on the photographs does not establish any substance even if it is read in conjunction with the statement of PW43 (wife of Harmesh Kumar). He challenged the stance of prosecution in heavily relying on the statement of PW43 and claimed that she cannot be considered as an extraordinary person as her knowledge being limited being a laywoman, who deposed without consideration to the repercussions of her deposition on her family life.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 217 of 334

However, as is apparent the arguments are more out of anxiety and frustration than any genuine attempt to challenge the veracity of facts stated by her.

468. The fact that Harmesh Kumar had been portrayed as Nitesh Kumar was then corroborated through the statement of PW18 Sh.Vijay Kumar Aggarwal, brother­in­law of accused Neeru Kumar Gupta. While in further major portion of his statement, the witness did not support the prosecution, still the portion of his statement corroborated that he was called for investigation by the IO and he knew Harmesh Kumar and one Sh. Sanjeev Kumar, who both were sons of Sh. Sh. Hem Raj and related to him. He also disclosed that Harmesh Kumar was a cloth merchant and was doing the business from his house. The part of this statement is held reliable evidence in view of law laid down in Zahira Habbibula Sheikh & Anr Vs State of Gujrath & Ors. Crl. Appeal No. 446 / 2004 (Dod) 08.03.2006. The aforesaid statement was in sync with statement of PW43 Smt. Hamita Rani, who had detailed connect of Nitesh Kumar (A5) with Neeru Kumar Gupta (A3) through PW18 Sh. Vijay Kumar Aggarwal, who also admitted that he knew Neeru Kumar Gupta as well as Harmesh Kumar. Though, he denied that the suggestion to employ Harmesh Kumar was made over to Neeru Kumar Gupta by him, it still established that he was a common source through which both the accused were connected, which fact had been stated by PW43 also, as CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 218 of 334 Sh. Vijay Kumar Aggarwal was Damad of their Mausi and a distant relative.

469. Besides the aforesaid witnesses i.e. wife and a relative revealing the identity of Nitesh Kumar (A5) as that of Harmesh Kumar R/o Srikaranpur, District SriGanganagar, Rajasthan and a married man (which fact is in contravention to the declaration made by A­5 in his affidavit ExPW1/H, as one of the requisites for application for recommendation was that the applicant must be a bachelor), the fact that he was not Nitesh Kumar was then shown by PW24 Sh. Rajpal, Informatics Assistant in office of District Transport Officer, Sriganganagar, Rajasthan. By Ex.PW24/A (production­cum­ seizure memo dated 07.12.2015) through which he had provided a letter dated 04.12.2015 having No.Pari/Ganga/2015/5042 addressed to IO, on which he identified his signatures, whereafter, the letter was exhibited as Ex.PW24/B, through which, he submitted the information that DL No.RJ­13­DLC­11­153979 dated 29.04.2011 was issued in the name of Sh. Harmesh Kumar s/o Sh. Hemraj r/o 89 B, Srikaranpur, District Sriganganagar, which fact had been certified by Sh. Ram Chander, Zilla Parivahan Adhikari on Ex.PW24/C. He also exhibited the certified extract of Register, where the entries with regard to DLs issued were recorded with the photographs of licence holders. The record showed that driving licence of Harmesh Kumar was extended till 01.02.2021 and was attested by Zilla Parivahan CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 219 of 334 Adhikari. The original was sent and returned as it was showing the photograph of Harmesh Kumar at point B. The verification of driving licence was Ex.PW24/E, which again showed Harmesh Kumar as the holder of licence and was attested by Zilla Parivahan Adhikari Sh.Ram Chander and the record of Licence Holders and the details of Sh. Harmesh Kumar at point B which was also attested by Zilla Parivahan Adhikari at point A was exhibited as Ex.PW24/F. On seeing the photograph on Ex.PW4/A (recommendation letter), he identified the person to be Harmesh Kumar, however, shown as Nitesh Kumar. In cross­examination by ld. Counsel for Nitesh Kumar (A5), he was confronted with the perpetual lease deed (Ex.PW25/B) in name of Nitesh Kumar S/o Sh. Bed Prakash, Voter ID Card in the name of Sh. Harmesh Kumar s/o Sh. Hem Raj, Ration Card in the name of Sh. Harmesh Kumar S/o Sh. Hem Raj and the other documents whereas photographs were common of Voter ID Card and Licence verification, the other were different, to which the witness replied that the photographs were of one and the same person. Hence, the cross­examination could not establish any favourable reply to strengthen the defence, rather the material stated by the prosecution was admitted and corroborated through the confrontation as on seeing all the material documents, the identity of Nitesh Kumar (A5) was established as that of Harmesh Kumar.

470. Intriguingly, while the search at his house was conducted CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 220 of 334 during the process of investigation, A­5 only called his neighbour Pawan Kumar Bansal, PW­47 as search witness namely Sh. Pawan Kumar Bansal (PW47) as a witness, who also identified him as Harmesh Kumar being his neighbour and residing in his vicinity. He identified Harmesh Kumar as R/o Sriganganagar, Rajasthan and stated that house search was also witnessed by his family members who were present at the time of search, besides another independent witness namely Sh. Mani Ram. He proved search list Ex.PW47/A, one document of whch was the original voter ID card. The original voter ID card was received during house search is not disputed but is affirmed by A­5 during written submissions tendered on record. He deposed that search list Ex.PW47/A was prepared in his presence, wherein the documents recovered from the house search were entered by the search team and all the documents were signed as a token of his presence during search operation.

471. Apart from the aforesaid, PW63 IO/Insp. Sanjay Kumar having received the voter list for area Mohalla Lohia Nagar, Part No. 200 to 204, which list he exhibited as Ex.PW63/K (colly), from Sh.Budh Prakash, Registrar, Tehsil Ghaziabad through production­ cum­seizure memo Ex.PW63/J on which he identified his signatures and having received letter dated 10.09.2015 of Sh. Budh Prakash, Tehsildar, Ghaziabad against Ex.PW63/L, which showed that voter ID card no. FVX 1874898 in the name of Nitesh Kumar, son of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 221 of 334 Sh.Ved Prakash was never issued. He detailed that Ct. Bharat Tyagi, who had gone for execution of notice at the address of Lohiya Nagar, submitted his report Ex.PW63/X (on which he identified signatures of Sh. Bharat Tyagiat point X) that at the address of Lohiya Nagar, Nitesh Kumar S/o Sh. Bed Prakash never resided, however, one Nitesh Kumar S/o Sh. Narender Kumar was found at H.No. 213, Baral Partapur, Meerut, UP.

472. At this stage it is intriguing to note the reason that why accused adopted the identity only as Nitesh Kumar and no other name came to be used. It appears that answer to above is stated by PW­46 Dinesh Singh who brought the record of alternative branch and recommendation document (Letter Issue Register) Ex.PW46/C against the entry no. 325 (mark X to X1) name of Nitesh Kumar, R/o 55 Kilometres, Paratpur By­pass, Meerut, UP is horizontally cut and reason for the same is mentioned as "not appeared and thus form no. 11001143 issued is on 09.04.1994".

473. In view of the aforesaid revelation, the question of issuance as Ex.PW4/A recommendation letter as voluntary act out of the self­ doing or individual act of Nitesh Kumar (A5) and/or is a collective, mischief Act attributable to common intention of all accused persons is, requisited to be probed in order to assess the demand of ingredients of Section 120B IPC.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 222 of 334

474. In the background of this question, the nexus is first explained by PW44 Smt. Usha Chaturvedi, Dy. Secretary, Land & Building Department, who by virtue of her aforementioned capacity had also been a member of Recommendation Committee of Land & Building Deptt and had been fully versed with the policy and procedure regarding the allotment of alternative plots to farmers.

475. She detailed that the procedure of recommendation in the year 2003 was that the allotment of alternative plots was governed under the scheme of Large Scale Acquisition, Development and Disposal of Land in Delhi 1961, which was launched as a welfare scheme to rehabilitate the agriculturists / farmers whose land were acquired by the Government for the planned development of Delhi. She painstakingly detailed the entire procedure regarding the allotment of alternative plot to farmers being, that in order to gain the eligibility, the land must have been notified by the concerned LAC under Sec. 4 of Land Acquisition Act; the applicant must be recorded owner in revenue record; he must have got the compensation from the concerned LAC and the certificate of the said effect; he must have applied to the Land & Building Department within specified period; he and/or his family or his dependent should not own any other plot or residential property out of village abadi; and, the entire land of the farmer must have been acquired and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 223 of 334 he should not have been left with any other piece of agriculture land.

476. She detailed that the applicants who were ineligible were those who were not recorded owners, had not received compensation from LAC, if they already possessed a plot or residential premises, had acquired land and had built­up area of more than 20% the possession of which was not given to Government/DDA and/or the applicant who purchased land by Sale Deed after issuance of notification of acquisition, land having not been mutated in their name, the applicant who had purchased the land in contravention to the Delhi Land Reforms Act and/or the farmers, who did not apply within the specified period as notified by public notice.

477. She disclosed the procedure, which an applicant was required to follow, while moving an application seeking alternative plot. She detailed that the applications were required to be filled in prescribed format and must have been supported alongwith the documents i.e. Khatoni, LAC certificate and three photographs of the applicant/farmer. The applications were then received in the Central R&I Branch of Land & Building Department and were diarized by the concerned official, fromwhere they were sent to concerned Alternative Branch. On being received in the alternative Branch, they were again diarized and given file number as per zones, whereafter, the LAC certificate was used to be sent to the concerned Revenue CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 224 of 334 District for verification.

478. The fact that LAC certificate was required to be sent to concerned Revenue District for verification lends credence and corroboration to statement of PW6 Sh. Hemraj, who has also deposed the same. At this stage, it is pertinent to observe that PW6 Sh. Hemraj has denied having received any request for verification of LAC certificate pertaining to Nitesh Kumar (A5).

479. Outlining the requisite procedure and explaining it further, PW44 Smt. Usha Chaturvedi then detailed that such verification reports received from the concerned Revenue Districts were re­ verified and cross­checked by Patwari, Kanungo and Land Acquisition Branch of Land & Building Department. It is again at this stage requisited to be observed that no such statement of verification is made from the relevant department as is evident on record and is rather denied specifically.

480. There is no record pertaining to receipt of application of A­5 Nitesh Kumar with Central Diary and/or any entry of its being diarized again at Alternative Branch. During the arguments, ld. Sh. Javed Akhtar explained the reason by stating that at times, applications were directly received by hand and in order to pacify the farmers they were endorsed and marked by Dy. Secretary (at the relevant time A1 Badrul Islam), whereafter no fresh diarization was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 225 of 334 required and the applications were processed. However, this assertion is in sharp contrast to established procedure, disclosed by PW­44 who stated that any application for alternative plot was first to be diarized at Central Registry and then on receipt in department it was to be separately diarized again. It is worthwhile to note that such procedures are carved out only to reduce the scope of mischief however in this case the procedure was ignored on the pretext of pacifying the applicants farmers, without suggesting that how in such scenarios their record was kept. Even otherwise even if an application was first received by hand, there was no reason for not making an entry at the branch level and again at the level of the concerned official to whom the application was marked to maintain record and tract its progress.

481. Further Smt. Usha Chaturvedi then detailed that after the re­ verification of the LAC certificate, award and compensation was received from the necessary quarters, the file was sent to Writ Cell for further legal scrutiny by an officer. After obtaining the legal opinion, detailed brief was prepared by the concerned clerk (in this case A2). She detailed that the concerned files were used to be put up and routed through the HoD (Dy. Director) and after the completion of the formalities were placed before the Recommendation Committee, comprising of Member Secretary, Addl. Secretary, Dy. Legal Advisor and Dy. Director of Alternative Branch. It is necessary at this stage to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 226 of 334 note that there is no material cross­examination to dispel the evidence qua eligibility or the procedure required to be followed except of the explanation which has come during cross­examination and at the stage of written submissions showing deviations having been made by way of receiving the application directly.

482. From the combined reading of the statements of PW6, PW7, PW8 and PW9, it is evident that Nitesh Kumar did not satisfy the eligibility and entitlement criteria as discussed above details of which are not repeated for the sake of brevity.

483. While no eligibility in favour of A­5 had been shown, it is apparent that the procedural deviations were made considerably, which fact itself shows and offers explanation as how crafty methods were put to use to provide as reasons for non­availability of any entry of application of Nitesh Kumar (A5) existing either at the Central Diary and/or its re­diarization at the stage of its receipt at Alternative Branch. It is noted that in order to affirm the deviation claimed by accused persons as a just exception and a due exercise of disoretim, it must have been supported with keeping of record atleast at Alternative Branch if the step of entry at the Central Diary Section were skipped for the sake of expeditiousness.

484. Further no such entries are shown to be existing of any applicant and/or in name of Nitesh Kumar (A5) having been made at CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 227 of 334 the hands of recipient of application (in this case A2 S.S. Malhi) and/or any endorsement having been made subsequent to completion of stages and steps of verification through LAC, Revenue and other departments involved as even if it is presumed that the applications were received by hand to save time of farmers, there was no prohibition of entering them at later stage in appropriate record.

485. The question that now arises is whether these aforementioned acts were in pursuance of an act of discretion which at the most may be termed negligent or were omissions of not making necessary entries in the Branch diary of the applications and not calling the verifications, was in pursuance of a mischief, ill design etc which fact then is answered from Ex.PW19/C the verification sheets sharing verification under the hand of A2 S.S. Malhi as he had appended his verification on 27 summary sheets including that of Nitesh Kumar (A5), which was placed before the Recommendation Committee for consideration of recommendation of an alternative plot. The fact that the verification was made by A­2 is affirmed by PW19 Sh. Baidyanath Jha, who identified the signatures of A2 S.S. Malhi on the verifications and exhibited the same as Ex.PW19/C (colly) (27 sheets).

486. While the factum of verification having been made under the hand and signatures of S.S. Malhi is not denied a feeble defence is raised qua his competence and capacity to execute the verification on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 228 of 334 all of 27 sheets, by defence counsel Sh. Javed Akhtar who claimed that A­2 was only dealing with South District and hence held no competence and capacity to issue verification on all the summary sheets pertaining to all the zones.

487. However, the defence does not hold not much merit for the following reasons, ie. firstly, no such material is brought on record by A2 S.S. Malhi to suggest that he was only dealing and/or was responsible to one Zone, as no circular etc. of such nature is brought on record and/or is confronted to any witness. Secondly, the factum of signatures on all 27 sheets to be that of A2 S.S. Malhi is established through the expert's statements made by PW57 Sh.Vijay Verma. Though, there is no dispute specifically raised to the genuineness of signatures, even otherwise, it is also to be noted that as per statements of PW15 Sh. Subhash Gupta, Member of Recommendation Committee, the fact that A2 was the only Dealing Assistant, assisting A1 Badrul Islam (since deceased) before the Recommendation Committee is an uncontroverted fact. In such circumstance, as such, merely shrugging of responsibility of signatures on the ground raised is an incomplete statement and unreliable defence, which fails to satisfy the requisite expectation.

488. The fact that Ex.PW19/C shows the verification in case of Nitesh Kumar imbueds in itself expectation of the fact that the pre­ requisite verifications were made by S.S.Malhi after having being CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 229 of 334 satisfied of contents of the application of Nitesh Kumar that he being the owner of Khasra no. 1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9), which fact to be affirmed by the LAC / Revenue and on cross checking had to led him to give the verification report. However, the fact stated by PW6, PW7, PW8 and PW9 dispels the aforesaid cogently, in which circumstance, the verification of A2 and the reasons thereof, indicates that the verification was not genuine and was made mischievously by thoughtfully ignoring and in disregard to established procedure of Alternative Branch which he was liable to follow.

489. The contrary argument made by ld. Defence counsel by putting an attempt to shift the burden of verification upon PW15 Sh. Subhash Gupta being the Deputy Legal Officer and a Member of Recommendation Committee, does not hold much merit for the reasons that PW44 Smt. Usha Chatruvedi, PW48 Sh. Prakash Kumar, Chairperson, both have detailed that there was no occasion for the Recommendation Committee to dispute and doubt the verification made by S.S. Malhi (A2) after the material with verification report was presented.

490. In this context, the statement of PW15 needs to be assessed in detail. He exhibited on record the list of recommendation made by the Committee as Ex.PW15/B, list of rejected cases as Ex.PW15/C and list of cases sent for re­examination as Ex.PW15/D, while CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 230 of 334 detailing that the meeting of recommendation committee was held on 03.12.2002, after which, case of Nitesh Kumar was placed in the list of recommended cases i.e. Ex.PW15/B. He explained that A1 Badrul Islam (since deceased) being Head of Branch was to seek report from legal department, internal revenue department and concerned LAC and call for the verification of the documents appended with application, whereafter the mater was placed before the Recommendation Committee on completion of all formalities and the Committee at the time of deliberations relied on the documents placed on file by the Alternative Branch and there was no practice for its re­verification by the Committee during deliberations. He stated that as far as he could recollect A2 S.S. Malhi was the Dealing Assistant in Alternative Branch, who used to assist A1 Badrul Islam in the meetings.

491. On specifically seeing the recommendation letter, he reiterated that role of Recommendation Committee was to consider the record made available in the file by Alternative Branch, which was headed by Dy. Director (Alt.) and that the documents were gathered and verified by Alternative Branch and in terms of his assessment, the documents must have been collected and verified by the Alternative Branch. He then detailed that there was no source to find out the genuineness otherwise of the documents collected by the Alternative Branch as they had no reason to disbelieve their verification. He CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 231 of 334 stressed that there was no practice to re­verify the documents placed before the committee by Alternative Branch. The aforesaid facts deposed by the witnesses were not specifically contradicted. Rather, in cross­examination, he was confronted with Minutes of Meeting held on 03.12.2002, whereafter the Minutes were exhibited as Ex.PW15/D2.

492. The aforementioned facts were reiterated by PW48 Sh. Prakash Kumar, Chairperson of Recommendation Committee, which made the recommendation in favour of Nitesh Kumar (A5) in the meeting held on 03.12.2002. He affirmed the factum of his being the Chairman and having presided over the meeting in which the agenda was to discuss 29 cases relating to alternative plots in which meeting the recommendation in favour of Nitesh Kumar was made vide Ex.PW15/B. He explained that it was the responsibility of A1 Badrul Islam (since deceased) being Head of Alternative Branch to examine and process all cases alongwith his staff and place before the Committee.

493. He further detailed that all the documents were used to be held by Alternative Branch and A1 Badrul Islam was Head of Branch.

494. He stated that responsibility for processing the files and placing them before the Recommendation Committee after the applications were filed alongwith annexures was of Head of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 232 of 334 Alternative Branch and his assistant S.S. Malhi, who were required to examine each paper before putting up the same before the Committee and he recalled that their signatures were also there on each paper contained in the application form stating that they had verified them. In cross­examination, the aforesaid facts could not be controverted specifically. Rather, he reiterated the procedure and detailed that the applications were to be entered in Central Diary Register alongwith all receipts and verification of document was to be done by LAC, Revenue Branch of Land & Building Department. The responsibility of processing only was of Alternative Branch and though it was not required to personally verify the correctness and genuineness of the documents, the responsibility qua verification still remained with A1 and A2 was established as material fact.

495. The statement of PW15 and PW48 stood corroborated through statement of PW44 Smt. Usha Chaturvedi, who also deposed that it was the responsibility of S.S. Malhi (A2) to seek the verification, wherein during cross­examination, she specifically denied that A2 had performed his duties diligently. The crux of the aforesaid statements hence established that while A5 was neither eligible nor entitled to seek an alternative plot by virtue of rehabilitation scheme, an application came to be moved under a fake name by A5 Harmesh Kumar and was purposefully taken by hand by A1 and A2 to avoid the entries in record. The acts of omissions and avoidance continued CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 233 of 334 by accused, who gave verification Ex.PW19/C certifying the correctness of the contents of application and the documents without having called any verification as such, which led to file being processed before the Recommendation Committee in its meeting held on 03.12.2002, whereby the claim of Nitesh Kumar @ Harmesh Kumar (A5) was one of the recommended cases as per Ex.PW15/B and the Minutes of Meeting Ex.PW15/D2 confirmed to the issuance of recommendation letter Ex.PW4/A.

496. Another intriguing aspect is connected to the number of file, from which recommendation letter Ex.PW4/A is generated. PW44 Smt. Usha Chaturvedi detailed how the file numbers were put. She explained that in the file number 'F­32' denotes the zone no., which was South, '50­A' denotes to Rangpuri Village, '159' denotes Serial no. of the application/file, '89' denotes the year of receiving of the application. She then detailed that only 131 applications were received from village Rangpuri, in which scenario, the recommendation having arisen from file no. 159 was improbable, as such number of application had not been received.

497. She then detailed that file No. F32(50A)/159/89/L&B/Alt. was not traceable which fact had been informed to the CBI. The factum of the file being not traceable was confirmed by PW19 Sh. Baidyanath Jha, Record Keeper, who has made his elaborate statement on record CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 234 of 334 and detailed the procedure of consignment of files which followed in Alternative Branch. He deposed that after the applications for allotment of alternative plot were allowed/rejected, the files were consigned to Central Record Room. He detailed that in cases where recommendation was made for allotment of plot by Recommendation Committee, such files were considered fit for consignment and were consigned to Record room. He detailed that file no.F.32(50A)/159/89/L&B/Alt was never consigned to Record Room. He also disclosed that he had made attempt to search the file on directions of Sh. Anil Kaushil, the then Dy. Secretary but could not locate the same. During cross­examination, he was confronted with the Manual of Office Procedure - Records Management for Govt. Offices, the relevant abstract for consignment were then confronted with a book written by Rama Jain of Akalank Publication. However, he explained that the record was maintianed as per the above and reiterated that the file in question was not consigned. The aforementioned report was strengthened by the statement of PW59 Sh. Anil Kaushal, earlier Sy. Secretary, Land & Building Department and PW14 Sh. Hardayal Singh Kaim whose report Ex.PW14/B alongwith list of files was again corroborated in his report Ex.PW59/D, internal report of Sh. Hardyal Singh Kaim dated 17.02.2015 was Ex.PW59/C, both of which were handed over during investigation by way of handing over memo Ex.PW59/A. During CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 235 of 334 statement of PW59 Sh. Anil Kaushil it had been detailed that the record was generated from the photocopy which practice was explained by PW19 Sh. Baidyanath Jha, Record Keeper, who stated that only photocopy list was received from the department i.e. Alternative Branch, which was made over by Sh. Satbir Singh, LDC at the relevant time, as he took the original list with him.

498. The argument of ld. Sh. Javed Akhtar that the statement of aforementioned witnesses are not belief worthy is merely an argument, the strength of which is not shown. In the first instance, there is no material cross­examination to dispel or to raise doubt to the credibility and credence qua the version of the above said witnesses. Secondly, no material is produced from the side of accused to show any relevant entry of the file having been maintained by them during course of employment in any particular book or register etc. qua the file in question, which may have also been summoned. Had there been any official record, it could have been summoned by the accused persons as well on their own. Merely by claiming that there are four lakh files with the record room and search of one file is not possible and/or the report of the witness in this regard is prejudiced or is with malafide are not sufficient grounds to dislodge the statements made, when no material to establish the defence is brought on record.

499. Another relevant fact is the generation of Ex.PW4/A from the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 236 of 334 booklet which had been in possession of A2. In terms of statement of PW46, it is shown that the booklet bearing serial number 1351 to 1400 had been issued to S.S. Malhi (A2), which fact again is not controverted.

500. PW46 Sh. Dinesh Singh, Office Superintendent of Alternative Branch in Land & Building Department gave deep insight to the omissions and commissions caused by A2 in pursuit of his intention. While it is shown through his statement that as per record Ex.PW46/A, the files only upto 136 numbers were received and there was no such file bearing no. 159, the recommendation letter Ex.PW4/A was shown to have been made in pursuance of the application received against file No.F.32(59A)/159/89/L&B/Alt. The witness made available five pages of extract of "recommendation letter issued register" from Serial No. 320 to 329, which were exhibited by him as Ex.PW46/C, which showed entry at serial no. 325 (mark X to X1), pertaining to file no.F.32(50A)/159/89/L&B/Alt pertaining to Nitesh Kumar (A5), the address against which, was, mentioned as 55 Kms Stone, Partapur by­pass, Meerut, U.P., which entry was then cut horizontally with the remarks "not appeared and therefore form no. 001143 issued on 09.04.1993" (mark X2). Another remark "recommended in the meeting held on 03.12.2002 in favour of Sh. Thakur Singh S/o Sh. Baghel Singh (mark X3)" was made. Hence, the above entries tenatamounted that the recommendation CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 237 of 334 letter form no.101143 had been issued against recommendation made on 03.12.2002 in favour one Sh. Thakur Singh S/o Sh. Bhagel Singh and not in favour of Nitesh Kumar whose claim was rejected on account of his non­appearance as per the above record. However, both these entries suggest that they are made intentionally with the mind to misguide, and avoid tracking of the relevant record. While the first instance also discloses the reason as to why Harmesh Kumar has been given fake identity of Nitesh Kumar as an entry in name of another person Nitesh Kumar existed and was ignored on ground of non appearance which could facilitate the cause of accused, in respect of another fake entry of file no. F.32(50A)/159/89/L&B/Alt which then is mischievously shown to have been made in favour of Sh. Thakur Singh S/o Sh. Bhaghel Singh.

501. Another entry at serial no. 333 is again made pertaining to Sh. Thakur Singh S/o Sh. Bhaghel Singh for which again recommendation letter No. 001143 is shown to have been issued. Name of Sh. Thakur Singh S/o Sh. Bhaghel Singh is then shown at serial no. 339 (mark Y2 to Y3) which infact pertains to the file F­ 32(50­A)/159/89/L&B/ALT pertaining to Nitesh Kumar for which recommendation letter No. 001354 is shown to have been issued.

502. However, Ld. Sh. Javed Akhtar sought to premise his submissions as the counter allegation that a report is generated to support the CBI case to falsely implicate the accused persons, by CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 238 of 334 alleging that a fictitious report is made under the bias approach of PW­44 who being inexperienced has been swayed by the officials of Alternative Branch holding vengence against accused. However, this allegation is not given any premise by any supporting material and /or cross examination. Further Sh. Javed Akhtar claimed that allegation of relevant file being missing from Alternative Banch is a bogus claim as all the relevant files were handed over to PW5 Smt. Sheela Devi, which fact he claims is shown from the charge report as well as her statement. However, aforesaid submission again does not find any merit in view of the statement made by PW5 Smt. Sheela Devi, LDC. She deposed that she was directed to take over the charge from S.S. Malhi (A2) in the month of June 2003. At this stage, it is noted that the recommendation letter Ex.PW4/A was generated on 26.05.2003. This shows that till the date of issuance of recommendation letter A2 S.S. Malhi held the custody of the files and remained its custodian. The facts show that suddenly a change of guard was proposed at the internal level by use of authority of A1 Badrul Islam (since deceased), who directed PW5 Smt. Sheela Devi to take over the charge. It is again relevant to note that PW5 did not hold the charge for a very long duration and the charge was again transferred from her to another LDC Sh. Satbir Singh. These facts are suggestive of a thought out plan to show change of custody of files to a haire person like PW5, who was neither versed with the contents of files nor the language in which the noting etc. was made and who could have CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 239 of 334 never dealt with the files without assistance.

503. In her statement, she clearly detailed that throughout the period she retained the charge of files, the files were dealt by S.S. Malhi (A2) only. A2 also held the almirah's keys in which the files were kept as she stated in her cross­examination.

504. She did not receive any list of files showing the name, title etc of each file. Ex.PW5/DA which is claimed to be in her purported handwriting / signature and is claimed as list of files received at the time of receipt of charge from S.S.Malhi was denied by her and the fact that the signatures on the aforementioned list did not belong to her was proved by PW57 Sh.Vijay Verma, Sr. Scientific Officer (handwriting expert), who after analyzing her handwriting gave the opinion that the questioned English initials marked Q­2 to Q­19 showed inconsistency with the specimen English initials marked S­5 to S­9 attributed to Sheela Devi, indicated different authorship and stated that the marking marked as S­5 to S­9 were actual as S­5 to S­8 attributed to Sheela Devi and the questioned documents were Q­2 to Q­19 since the original were produced from another court where the trial against accused persons was pending. In cross­examination, PW­ 57 reiterated his opinion by stating "that he had examined the line quality of Q­2 to Q­19 with S­5 to S­8 and had scientifically examined Q­2 to Q­19 in comparison with S­5 to S­8, where he had observed the disagreement between the two sets, details reasons of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 240 of 334 which, he expressed in his report.

505. He also explained that science of comparison is based on principal of comparison "like with like" so the model of both the questioned and specimen signature of Sheela Devi were compared and found of similar model.

506. In view of the aforesaid opinion, the signatures on Ex.PW5/DA being that of PW5 Smt. Shela Devi having been executed at the time of receiving the charge report of files including of the one pertaining to Nitesh Kumar (A5), could not be proved.

507. Another set of arguments which is raised is based on the premise of number of files. It is argued by ld. Sh. Javed Akhtar that even if PW5 Smt. Sheela Devi refused to accept the receipt of charge report Ex.PW5/DA, she admitted having received 830 files, which shows the receipt of all the files. However, he has failed to show any departmental list of files which could show and establish that at the relevant point of time S.S. Malhi (A2) was dealing exactly with 830 number of files only. While in examination­in­chief Smt. Sheela Devi narrated the number as 830 files in cross­examination she claimed 850 files. There was no material produced by the accused to show existence of only 830 files which could give credence to the averment to the fact that Smt. Sheela Devi had received all the existing files, which fact was specifically denied by her.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 241 of 334

508. Another arguments of ld. Sh. Javed Akhtar is based upon the fact of handing over of charge by Smt. Sheela Devi to Sh. Satbir Singh, where he claimed that all the files were handed over to Sh. Satbir Singh which supports the fact that the file of Nitesh Kumar was also handed over to Sh. Satbir Singh and had been passed on to Smt. Sheela Devi by S.S. Malhi. However, this apparently is a far stretched argument and shows no material hence is based more on a presumption, than facts in absence of expression of material as how it can lead to assumption of the file of A5 being handed over by A­2 to Sheela Delhi while neither the list of files nor the charge report specified the exact no. of files, showing any list of files, their serial nos. and status of their being handed over to the successor by Smt. Sheela Devi, which were never shown to have been passed onto her custody first.

509. Another significant fact is qua missing of other copies of recommendation letter Ex.PW4/A.PW44 Smt. Usha Chaturvedi detailed that the recommendation letter was issued in triplicate. She explained that green colour copy of recommendation letter was meant for DDA, yellow colour copy was for the allottee and the pink colour copy was required to be retained by the department. Intriguingly, in this case, the recommendation letter Ex.PW4/A is the only copy. It is the green colour copy which had been forwarded to DDA for the purpose of further process of allotment. While from the allotment file CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 242 of 334 green colour copy is made available neither the pink copy required to be retained by alternative branch nor yellow receipt of allottee I.e. A­ 5 is produced. Had A­5 produced his copy it could have shown his bonafide participation. PW­30 Sh. Vijay Kumar Jain, who purchased the plot subsequently admitted having received all documents from seller, including the documents of A­5 Nitesh Kumar he did not show receipt of recommendation letter which clearly establishes that the copy was not existing and was either destroyed. Had the participation of accused persons in receiving the recommendation been bonafide, the copy meant for allottee must have been the first document produced from their side.

510. Ld. Sh. Javed Akhtar tried to shift the onus of absence of related record of file no. F.32(50A)/159/89/L&B/Alt. Upon investigation and claimed that A­2 should not be made to suffer due to failure of investigation agency to collect the document, as an attempt to cover up for his clients deliberate acts of omissions. No occasion is shown existing for prosecution to collect the record if none is existing. Before attributing the failure on investigation, no effort is made by exercising opportunity of summoning the file no. F.32(50A)/159/89/L&B/Alt., which shows the possession of knowledge as part of accused qua its non­existence.

511. Moreover, the resistance to the statement of PW44 Smt. Usha Chaturvedi by ld. Defence counsel, is of no avail as PW44 only stated CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 243 of 334 about the prevailing practice in normal course. The general practice of calling verification by Dak could not be stressed in case of circumstances warranting use of exception as a normal mode which fact is stressed by PW44 also, specifically in her deposition and stands corroborated through the statement of PW48 Sh. Prakash Kumar, who both stated about the possibility of verification through physical/personal mode.

512. Another submission of ld. Sh. Javed Akhtar is arising from his reliance on the portion of the statement of PW­44 Smt. Usha Chaturvedi where she stated about the verification process being carried out through Dak. It was stressed by ld. Sh. Javed Akhtar that nowhere A2 could be held responsible for omission of verification as he was not expected to get it done personally. However, he seems to have missed many points. First, the fact that verification report Ex.PW19/C is made by A2 showing his act of engaging himself in calling a verification in first place. Thus, tentamounting to him having completed the file by acting diligently by calling all verification and reporting on record while actually no verification from anywhere was called. It is a case where false report of verification is made without A­2 having called any. Further the argument that A02 was not personally seeking the verification which were to be called upon through DAK after such step was directed / approved by A­1 is hence a mis placed argument. The argument qua the mode of calling CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 244 of 334 verification report is raised, no evidence is shown that A­2 even followed the accepted mode at hand.

513. While the crux of testimony of above witness giving significant details and insights on facts could not be challenged, refuge is sought under the counter allegation of irregularities and possible malafide at the hands of the Committee by pointing fingers qua delay in signing of Minutes of meeting held on 03.12.2002 and signatures having been appended only on 04.02.2003.

514. Though, the objection qua delay is raised, it fell on the shoulder of the accused themselves as the witnesses PW48 Sh. Prakash Kumar and PW15 Sh. Subhash Gupta categorically stated that the responsibility of preparation of Minutes of Meeting was on A1 Badrul Islam, only, and casting the allegation of malafide on the part of Committee Members in delayed signing of Minutes, which is raised and alleged as a proof against them, suggests nothing in favour of defence.

515. Even otherwise, it is unexplained that how the delay in signing the Minutes in fact has created any scope of advantage in their favour. Moreso, when neither the contents of Minutes nor the signatures are disputed, as the document itself is not claimed ingenuine or tampered, the delay in signing the same now could dislodge or create advantage for accused is hence unstated.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 245 of 334

516. The facts unfolded uptill now hence show that a fictitious file no.F.32(50A)/159/89/L&B/Alt. was caused to be created in Land & Building Department/Branch and was carrying fake record in favour of false entity Nitesh Kumar w/o Sh. Bed Prakash and after the recommendation was received through Minutes Ex.PW15/D2 the file silently went untraceable and no record qua it at any place was shown existing. It is also uptill now explicity shown that the file was presented and maintained under the custody of A2.

517. The close nexus shared by is then stated. A­2 S.S. Malhi and A­3 Neeru Kumar Gupta. It is shown from the search carried out at the house of A­3 Neeru Kumar Gupta which is witnessed by PW35 Sh. Dinesh Kumar Singhal, that documents Ex.PW35/B, Ex.PW35/C & Ex.PW35/D were recovered from his house. Interestingly, the documents, recovery of which is challenged on the ground of manipulation by IO having been made with intention of false implication, allegedly are not shown to be a creation of IO or even of duration or the time period of investigation. The search list Ex.PW35/A (D3) show recovery of documents separately sized, which were identified by witness and exhibited as Ex.PW35/B (colly), Ex.PW35/C and Ex.PW35/D. A3 Neeru Kumar Gupta himself admitted two sheets i.e. copy of telephone diary pertaining to him. In cross­examination, witness asserted having signed 154 pages vide Exs.PW35/B, PW35/C & PW35/D. Through the statement of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 246 of 334 PW63 IO/Insp. Sanjay Kumar, it is again corroborated that from the residential premises search of A3 Neeru Kumar Gupta, which was conducted by Insp. Kadir Khan under his authorization, incriminating documents at serial Nos. 12, 13, 26 and 32 were found and bunch of papers Ex.PW63/C (D4­containing total 85 pages) were seized. Another file seized from the house search of A3 Neeru Kumar Gupta Ex.PW35/C was identified. The IO detailed that Marriage Dissolution Document between Sh. Mahesh Aggarwal, brother of A3 Neeru Kumar Gupta and Mamta was found, of which A3 Neeru Kumar Gupta and A2 S.S. Malhi were shown witnesses, which he then exhibited as Ex.PW63/E. He identified Ex.PW35/D, which was a telephone diary containing coloured photograph of A3 Neeru Kumar Gupat in which number of A2 S.S. Malhi is encircled at point X1. Both these documents were not controverted in cross­examination.

518. The bunch of papers on record Ex.PW35A (D4) documents pertaining to DDA and copy of challans were also recovered. It was unexplained that how A3 Neeru Kumar Gupta came in possession of the documents comprising of the internal papers including the recommendation letter copies meant for DDA and being pertaining to Alternative Branch, which must have been kept in safety of the department under custody of A2. The nature of documents recovered from the possession of A3 Neeru Kumar Gupta showed sharing of deep connect and mutual trust and a close nexus. The chain of nexus CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 247 of 334 was further completed as accused A4 Sangeeta Gupta is wife of A3 Neeru Kumar Gupta whose bank account was used for the purposes of preparation of the challans in favour of DDA for depositing the payment, which is shown vide Ex.PW1/F (colly). The fact that Harmesh Kumar @ Nitesh Kumar is related to A3 was then established on record from the statement of PW43 Smt. Hamita Rani wife of Harmesh Kumar @ Nitesh Kumar and PW18 Sh. Vijay Kumar Aggarwal, brother of A3 Neeru Kumar Gupta.

519. In circumstances above, the fact that all the accused persons had been sharing close connect with each other was duly shown which channel of closeness was converted into community of collective interest wherein separate roles were assigned and performed by each accused person at appropriate, designed stages/intervals etc. and in furtherance of which acts of omissions and commissions were committed receive the yield of conspiracy.

520. Thus, all the discussions above showed that recommendation letter Ex.PW4/A was extracted through the alternative Branch headed by A1 and in assistance of A2 from Recommendation Committee in name of fake and fictitious person i.e. A5 Nitesh Kumar, who was relative of A3 and his real name being Harmesh Kumar S/o Sh. Hem Raj R/o Srikaranpur, District Sriganganagar, Rajasthan.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 248 of 334

Use of recommendation letter Ex.PW4/A for allotment of alternative plot

521. PW4 Sh. Kamal Kumar Sharma, who in 2003 was posted as Programme Assistant in Land Sales Branch (Residential), while Sh. Suresh Chand Kaushik (PW20) was the UDC, Sh. S.N. Gupta was Assistant Director and Sh. K.D. Reddy was Deputy Director of aforementioned Branch had received the recommendation letter Ex.PW4/A bearing file No. F.32(50A)/159/89­L&B/ALT 3088 dated 26.05.2003 in favour of Sh. Nitesh Kumar, which was received in DDA on 26.05.2003 vide diary no.14282 in Central Diary Section, Vikas Sadan. On receipt of the said letter Sh.S.C. Kaushik created file No. F.27(16) 2003/LSB(R). He detailed that the recommendation letter mentioned as "Recommended for allotment of alternative plot under the scheme of Large Scale Acquisition and Development and Disposal of Land, 1961 for allotment of plot measuring 400 sq. mtrs. in favour of Nitesh Kumar S/o Sh. Bed Prakash R/o Lohiya Nagar, Ghaziabad, UP" and stated "in lieu of his acquired land bearing Khasra No.1640 (6­3), 1641 (5­14), 1642 (5­3) and 1643 (3­9), total measuring 20.09 bigha in which applicant's share being half 10­4 ½ bighas which was acquired vide award no.1958/66­67 dated 23.03.1967 of Village Rangpuri, Delhi in South Zone as he was found entitled for the same."

522. He disclosed that an application was also moved by Sh. Nitesh CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 249 of 334 Kumar for inclusion of his name in draw of plots, which application was diarized at the office of Dy. Director, LAB(R) vide diary no.4536 dated 29.05.2003 and was then received by dealing assistant on 03.05.2003. However, as the draw was held already Sh.Suresh Chand Kaushik (PW20) proposed on 30.05.2003 for keeping it pending till the next draw, which note was approved with the proposal "the applicant may be informed accordingly". Vide Ex.PW4/B, letter dated 18.06.2003 of Sh. S.N. Gupta was sent to Nitesh Kumar, which was exhibited as Ex.PW4/C, though, their letter was received back with the remarks (Ex.PW4/D) "address incomplete, returned for complete address". On return of the letter on 04.07.2003, Sh. K.D. Reddy approved the proposal that "file may be kept pending till the other reference is received from the allottee or a letter is issued to L&B Development, NCT of Delhi to intimate correct address of recommendee", whereafter Deputy Director (LA) 11.07.2003 ordered to send a letter to L&B Department to confirm the address. Accordingly, letter bearing no.27(16)/2003/LAB(R)/DDA/7240 dated 29.07.2003 was then sent as per direction of Dy. Director (LA) to DD (Alt) L&B Department, Vikas Sadan, New Delhi, for confirmation of address which was Ex.PW4/E.

523. Sh. S.C Kaushik (PW20) was a dealing official/UDC (LSB) and identified the recommendation letter Ex.PW4/A received for allotment for alternative plot. He corroborated the contents of the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 250 of 334 statement of PW4 that the letter was first received in DDA on 26.05.2003 vide diary no. 1482 and was processed further as he only had made the noting for keeping the file pending till next draw which had been approved.

524. He stated that claim of Nitesh Kumar for allotment was then included in the draw of plots held on 26.05.2004 vide file no. F­ 1(14)2004/LSB(R), result of which was confirmed in presence of two judges vide Ex.PW1/B. As per draw, Sh. Nitesh Kumar (A5) was alloted plot no. plot No.66, Pocket­10, Block­B, Sector­13, measuring 333.60 sq. mtr. in Dwarka Residential Scheme. The draw was confirmed and approved by the Vice Chairman.

525. PW1 Sh. Bhupal Singh stated that the result of draw was confirmed by the Vice Chairman, DDA on 08.06.2004 in a separate file No.F.1(2004)/LSB(R)/DDA, which was separately exhibited by PW3 Sh. Chhatarpal as Ex.PW3/A. Copy of the confirmation note was then exhibited as Ex.PW1/B, on which the signatures of PW20 Sh. S.C. Kaushik and Programme Assistant Sh. Mohan Lal also identified.

526. PW1 then detailed that on approval of draw by the Vice Chairman, demand letter Ex.PW1/C with note dated 29.06.2004 was put up by Sh. S.C. Kaushik, which was approved and demand letter Ex.PW1/D was signed by Sh. Sanjeev Kumar, the then Dy. Director CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 251 of 334 (LA) on 30.06.2004 and file was sent to dispatcher/DA for issuance of letter No.F.27(16)2003/LLSB(R)/7110 dated 30.06.2004. Another copy of demand letter was sent to the Joint Secretary, L&BD, Vikas Sadan.

527. In the meanwhile, vide Ex.PW1/E, Sh. Nitesh Kumar addressed a letter to the then Assistant Director, LSB(R) and submitted the requisite documents, which were three challans for amount Rs. 7,00,000/­, Rs.1,00,000/­ and Rs,7,89,000/­ Ex.PW1/F (colly), affidavit Ex.PW1/G, undertaking Ex.PW1/H, Form 60 Ex.PW1/I, specimen signatures, photograph were Ex.PW1/J (colly) and copy of voter ID card Ex.PW1/K. Letter Ex.PW1/E dated Nil was received in Central Diary Counter of Vikas Sadan, vide diary no. 36107/ dated 13.07.2004, which entry was then marked vide Ex.PW1/E. It was detailed that after the challans were received their verification was called, which was verified by AAO (Billing­1) on 26.07.2004 the file was forwarded back vide noting Ex.PW1/L. The certificate was then issued by Accounts Officer about credit of cost of plot of Rs.15,88,937/­ + Rs.11/­ cost of paper in DDA and possession letter was dispatched to allottee on 02.08.2004 under signatures of Dy. Director to handover possession by 26.08.2004 against noting Ex.PW1/M, the copy of which was then forwarded to Director Planning, Dwarka, Joint Director (Survey), Dwarka, and was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 252 of 334 exhibited as Ex.PW1/N.

528. It is pertinent to observe that factum of receipt of Ex.PW4/A is not disputed and denied which was meant for processing the allotment in favour of A5 Nitesh Kumar. No substantial cross­ examination on the above aspect has come from the ld. Defence Counsels.

529. The wittnesses PW1 Sh. Bhupal Singh, PW4 Sh. K.K. Sharma and PW20 Sh. S.c. Kaushik, who were cross­examined, stated that it was not the policy of Land Sales Branch to carry out verification of recommendation letters. Apparently this fact was within the domain of knowledge of accused persons and was used for manipulating the process of allotment.

530. The witness explained in cross­examination that Land & Sales Brach only alloted land on the basis of recommendation letter issued in Land & Building Department after conducting draw of plots and the allotment letter is issued by their department to Joint Director, L&BD in reference to the particular recommendation letter sent by them.

531. In his further cross­examination, he detailed that the relevant documents qua acquisition of land and payment of compensation would be with L&BD, Govt. of NCT of Delhi, which fact is again corroborative of fact that no material for recommendation letter was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 253 of 334 sent to LSB(R) where the allotment based on the recommendation letter Ex.PW4/A took place.

Possession of plot having been taken by A5 Nitesh Kumar in person

532. The allotment letter Ex.PW1/L was then used for receiving the possession of plot No. 66, Block­B, Pocket 10, Sector­13, Dwarka. As detailed by PW1 Sh. Bhupal Singh, Nitesh Kumar (A5) received the possession which was handed over to him vide Ex.PW1/M and Ex.PW1/K on 10.08.2004. The factum of possession having been handed over was affirmed by PW11 Sh. Raj Kumar, retired Asstt. Director, Survey (Planning), DDA, Dwarka, who in the year 2004 was posted as Asstt. Director (Survey). He was shown the possession letter dated 02.08.2004 regarding handing over of possession of plot no. No. 66, Block­B, Pocket 10, Sector­13, Dwarka. He confirmed that the letter was received by Dy. Director Sh. C.P. Sharma on 05.08.2004 whose signature he verified and also identified the noting from point B to B, which was 'please do the needful'. He exhibited the noting as Ex.PW11/A. Site verification report was then exhibited as Ex.PW11/B (colly), which was bearing the signatures of Sh. R.S. Rose, Surveyor at point A.

533. File no. F­12(1439)/04/Plg/Dwarka on the subject of possession of No. 66, Block­B, Pocket 10, Sector­13, Dwarka was CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 254 of 334 exhibited as Ex.PW11/C (colly). He exhibited the original copy of possession letter dated 10.08.2004 (Lease Section copy) issued vide file no. F­12(1439)/04/Plg/Dwarka regarding giving possession of plot no.66, Pocket­10, Block­B, Sector­13, Dwarka, as Ex.PW11/D. He stated that the possession was given to Nitesh Kumar vide this letter which was bearing signatures of Nitesh Kumar at point A, which he identified and affirmed that the signatures were made in his presence. The possession letter Ex.PW11/D was issued to Nitesh Kumar after matching his signatures and photographs on letter dated 02.08.2004 (Ex.PW11/A) and on verification of photocopy of ID proof with the original and signatures were also taken on photocopy of ID, which was then exhibited as Ex.PW11/E. All these documents were then sent to Dy. Director (LA­R) through Sh. C.P. Sharma, the then Joint Director, Survey (Planning), Dwarka vide Ex.PW11/G. In cross­examination, he stated that result of draw was not placed before him. However, nothing material in cross­examination could be extracted to controvert the factum of handing over of possession to Nitesh Kumar (A5) vide Ex.PW11/D and submission of ID proof Ex.PW11/E on which also he made self attestation.

534. The statement of PW11 has been corroborated by Sh. Rajpal Sharma, Asst. Director examined as PW41. He was posted in the office of Director (Planning), DDA, Dwarka Project, Mangla Puri, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 255 of 334 Palam, New Delhi. He had handed over documents to IO against production­cum­seizure memo dated 07.09.2015, on which he identified signatures of Sh. Kishore Kumar and exhibited as Ex.PW41/B. The documents then were exhibited as Ex.PW41/C.

535. Before embarking on further discussion, it is necessary to note that PW10 Sh. Bijender Tyagi, who was Postman in the year 2004­05 in Navyug Market, Head Post Office, Ghaziabad, was shown a white envelop registered letter No.RD­485670035­IN in the name of Sh. Nitesh Kumar s/o Sh. Bed Prakash r/o H. No.16, Gali no.5, VPO Lohiya Nagar, Ghaziabad U.P. He stated that this letter was given to him for delivery to the addressee and on identifying his signatures, it was exhibited as Ex.PW10/A. He detailed that the letter could not be delivered to the addressee as the address was incomplete. He stated that in a GDA Colony, there is no Gali and there are blocks in the said colony. In the absence of block, the letter could not be delivered. He had written on the envelope in Hindi "Adavi", which means "unclaimed". He had made this note on 12.09.2015 and further explained that as the address was incomplete / non existent, the letter could not be served. No fruitful cross­examination of this witness was received on record.

536. Similarly, PW12 Sh. Virender Kumar, another Postman at Head Post Office, Navyug Market Ghaziabad identified his report on white envelope containing F­27(16)03/L&D(R/5336) having EMS CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 256 of 334 speed post sticker No. EE241831105IN and detailed that the envelope was given to him for delivery to the addressee, however, the address was incomplete, on which he wrote 'adhura patta, pure patte ke liye vapas' and envelope could not be delivered as no house number was mentioned. There was no substantial cross­examination of this witness.

537. From the perusal of statements of both these witnesses, it is clear that the address provided by Nitesh Kumar (A5) did not exist and was a fictitious address. It is pertinent to note that during the entire trial no attempt was made by the accused persons to bring on record any material to show the existence of aforesaid address and/or A5 having been residing there at any point of time. When the statements of PW10 and PW12 are read in conjunction, they lend credence and corroboration to the statement of PW43 Smt. Hamita Rani W/o Sh. Harmesh Kumar (Nitesh Kumar) that the accused never stayed at any address of Ghaziabad at any point of time and also to the fact that for avoiding the delivery the complete address was not mentioned on the recommendation letter Ex.PW4/A. The omissions were reported by PW20 and PW4 both officials of Land Sales Branch under the approval of noting to send this intimation to L&BD for seeking complete address as the intimations of the allotment were returned back undelivered. Under the above context and background, where A5 never resided at the address of at Ghaziabad, as how and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 257 of 334 under what circumstances he could gather the information of movement of his application for allotment and possession against which the requisite payment challan and documents such as undertaking/affidavit etc. were by hand submitted. It is also unstated that while both letters asking him to takeover possession did not reach him, what made him aware of his being requisited to take possession prior to 21.08.2004 as was mandated from him.

Execution of lease deed

538. Nitesh Kumar (A5) made over a request dated Nil Ex.PW1/E and submitted affidavit regarding his being bachelor Ex.PW­1/G and undertaking Ex.PW­1/H alongwith payment of difference of premium and requested for issuance of lease papers to PW1 Sh. Bhupal Singh. The noting dated 27.08.2004 Ex.PW1/P was then made and approval was accorded by Dy. Director (LA) Residential Sh. Sanjeev Kumar on 31.08.2004. The lease papers were then issued vide letter No. F.27(16)/03/LSB(R)/9341 dated 27.08.2004 Ex.PW1/Q and sent through post.

539. A5 Nitesh Kumar vide letter dated nil submitted three copies of lease deed duly stamped from the office of Collectore of Stamps personally on 09.09.2004 (Ex.PW20/B), on which approval, vide noting Ex.PW1/R for execution of lease was received qua which letter Ex.PW1/S dated 10.09.2004 was sent to A5 Nitesh Kumar on CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 258 of 334 the given address.

540. The lease deed was executed in presence of PW1 Sh. Bhupal Singh, PW45 Ms. Krishna Setia and PW 26 Sh. Tejpal Singh Tomar, officials of LSB on 21.09.2004. Consequent to the execution of lease deed file was sent to AAO LSA­III for noting down the particulars of lease deed vide noting dated 21.09.2004 Ex.PW1/V (it appears that it is inadvertently mentioned as Ex.PW1/V, whereas on the document it is exhibited as Ex.PW1/U). No substantial cross­examination qua the aforesaid events, authenticity of the statements and contents of the noting and other documents exhibited by this witness is made.

541. In continuation of the evidence above, which is received on record through the statement of PW20 Sh. S.C. Kaushik, another material statement is of PW1 Bhupal Singh, who was one of the witness to execution of the perpetual lease in favour of A5. He detailed specifically that vide noting Ex.PW1/Q dated 27.08.2004/31.08.2004 of D/D (LA) Sh. Sanjeev Kumar, a letter was sent to Sh. Nitesh Kumar for stamping the lease papers and for which purpose three copies were later issued to him. The duly stamped lease papers were then submitted by Nitesh Kumar which was noted vide Ex.PW1/R dated 09.09.2004, whereafter the execution of the lease deed was processed. PW1 then deposed that vide letter dated 10.09.2004 Ex.PW1/S, Nitesh Kumar was intimated to attend the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 259 of 334 office on 15.09.2004 for execution of lease deed and was also directed to bring the documents mentioned as requisited with two independent witnesses, whereafter A5 Nitesh Kumar appeared on 21.09.2004 and requested for execution of lease deed on the same day, which was then executed in presence of two witnesses from DDA namely Smt. Krishna Setia (PW45) and Sh. Tejpal Singh Tomar (PW26) and two witnesses brought by A5 from his side namely Mohd. Shahid (PW28) and Sh. Budh Prakash (PW25). He deposed that after execution, copy of lease deed was handed over to allottee Nitesh Kumar vide endorsement dated 21.09.2004 on the backside of the lease deed Ex.PW25/B. There was no cross­examination in connection with the statement pertaining to the execution of the lease deed, which was restricted only to the aspect of confirmation of receipt of cost of plot by DDA having been deposited against the allotment.

542. It is now noted in detail that the execution of lease deed was witnessed by Sh. Tejpal Singh Tomar as one of the witnesses from DDA. He deposed on record as PW26. He deposed that as per the directions of Sr. officers he was used to sign as a witness on perpetual lease deed for DDA and two witnesses from the side of allottee also signed the lease deed, which was then signed by Administrative Officer, LSB (R) Branch. He detailed that the signatures of the witnesses of the allottee were made in the presence of DDA staff and photocopy of identify proof of witnesses were also verified from the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 260 of 334 original by DDA staff and self attested photocopies were retained in DDA. He then identified Ex.PW25/A and Ex.PW25/B the original perpetual lease deed in favour of Nitesh Kumar S/o Sh. Bed Prakash on which he identified the signatures of PW45 Smt. Krishna Setia, UDC, LSB(R), DDA at point E and that of PW1 Sh. Bhopal Singh at point F and that of Nitesh Kumar at point B. He also identified thumb impression/finger impression of Nitesh Kumar on Ex.PW25/A and Ex.PW25/B at point G and affirmed that all the signatures of the party i.e. Nitesh Kumar and witnesses including the witnesses brought by the allottee and DDA were taken in his presence on reverse side of page no.9 and on page no. 68/C as per practice, whereafter the original perpetual lease deed was handed over to Nitesh Kumar on 21.09.2004. In cross­examination, he was asked about the factum of receipt of intimation for execution of lease deed in absence of any communication/letter having been received by Nitesh Kumar, however, intriguingly, this question should have been posed to the defence itself and answered.

543. Another witness from DDA Smt. Krishna Setia was examined as PW45. She detailed that as per practice UDC / LDC has to witness the execution of the lease deed and the lease deed papers were signed by Lease Administration Officer, Land & Sale Branch of the DDA, which were also signed by the allottees and the two witnesses. She detailed that prior to execution of the lease deed, identity proof of the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 261 of 334 allottee and of both witnesses were checked and verified from the original and a self attested copy of identify proof was also taken and kept on record. She affirmed the execution of lease deed Ex.PW25/B in favour of Nitesh Kumar and identified signatures of PW1 Sh. Bhupal Singh on the five papers of the deed which were already at point F, that of Sh. Tej Pal Singh at point D, her own signatures at point E and that of Nitesh Kumar at point B. She identified the signatures of witnesses of Mohd. Shahid at point C and that of Sh. Budh Prakash at point A on the fifth page of the deed. She also identified the signatures of Nitesh Kumar mark Q­52 and of Shahid at point B at the back of the fifth page and signatures of Nitesh Kumar at page no. 6 as Q­51 of the deed. She identified signatures of Nitesh Kumar mark Q­106, Q­108, Q­110 on Ex.PW11/D2. She had appended her signatures on lease deed as she had verified the documents of both witnesses. She exhibited her own noting at portion X1 to X1 on page 13/N of file F27 (16/2003 LSB (R), which was then exhibited as Ex.PW45/A and was regarding receiving three copies of perpetual lease in respect of Plot No. 66, Block­B, Sector 13, Dwarka in residential scheme and the allottee having deposited ground rent w.e.f. 10.08.2004 to 09.08.2009 vide challan no. 11126804 dated 08.07.2004. She had forwarded the note to the lease administration office for further proceedings. She explained that there was a public hearing held bi­weekly regarding the disputes of the address of the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 262 of 334 allottee, during which, the allottee could submit or collect their documents/letter from Public Hearing Authority. The documents of the cases were received in their section through diary section of their own branch. In cross­examination by ld. Counsel for A5 Nitesh Kumar, she denied that there was a procedure for taking photograph of the allottee on the official camera installed in the office which was printed on the perpetual lease deed. She stated that there was no such procedure existing in the year 2004 and only the photograph received from allottee was affixed on the perpetual lease.

544. Apart from the aforesaid official witness, who witnessed the execution of lease deed in favour of A5, two independent witnesses brought by A5 Nitesh Kumar also deposed. PW25 Sh. Budh Prakash, worked with various shopkeepers in DDA Shopping Complex, INA, Vikas Sadan, New Delhi and worked as a photographer. Sometimes, on the request of property dealers, he was used to sign as attesting witness, for which he charged Rs.100/­ or Rs.150/­. He identified his signatures on perpetual lease deed dated 21.09.2004 Mark Ex.PW16/AA, which was then exhibited as Ex.PW25/A. He deposed that Nitesh Kumar (A5) had singed on each paper on perpetual lease deed at point B in his presence, on which he had signed at point A. In cross­examination by ld. Counsel for A5 Nitesh Kumar, he stated that photographs pasted on perpetual lease deed Ex.PW25/A and Ex.PW25/B were taken when the lease deed was executed. There CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 263 of 334 were no negatives of the aforementioned photographs. The statement of Sh. Budh Prakash was then affirmed by PW28 Mohd. Shahid, another photographer at DDA Shopping Complex, INA. He also deposed that against charge of Rs.100/150 he was used to sign an attesting witness. He identified the additional documents mark PX/15A (colly) bearing his signatures at point E. The document was identified as perpetual lease deed in favour of Nitesh Kumar. He identified the photograph of Nitesh Kumar having been taken and Nitesh Kumar having signed on Ex.PW25/A in his presence. He identified photocopy of his own driving licence, which he had given as identify proof and was Ex.PW28/1. In cross examination, he again affirmed his own signatures on Ex.PW28/1.

545. The proceedings pertaining to lease deed were carried out by PW37 Sh. N.S. Bisht, UDC in Lease Administration Branch (Residential), DDA, Vikas Sadan, INA, New Delhi. He handed over the original file against production­cum­seizure memo Ex.PW37/A and had provided the original file of plot No.66, Pocket 10, Block B, Sector 13, Dwarka, New Delhi Ex.PW37/A (Colly). He was not subjected to any cross­examination.

546. The crux of the statements of PW­1 Bhupal Singh, PW20 S.C. Kaushik, PW­45 Krishna Setia, PW­26 Rajpal Singh Tomar, PW­28 Shahid and PW­25 Budh Prakash hence clearly showed that CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 264 of 334 subsequent to allotment and possession of plot, A­5 took steps for securing the lease deed in his favour for which he moved the application on 21.09.2004 requesting for the execution of lease deed on same day which was at his request, was carried out on the same day. It is also shown that despite his having received no communication from DDA, he on his own, tendered the documents requisited for execution of lease deed in a public hearing suggesting his knowledge of the procedure, hence persuading the DDA to part with ownership of plot no. 66, Dwarka which copy was taken also registered against Ex.PW16/A at the office of Sub­Registrar.

Sale of plot by A5 Nitesh Kumar

547. After having received the lease, A5 Nitesh Kumar entered into Agreement to Sell of the plot in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg. The aforesaid fact is established through the statement of PW42 Deshbandhu Gosain, UDC in the office of Sub­Registrar­II, Basai Darapur, Delhi. He handed over against production­cum­seizure memo 23.07.2015 and 27.07.2015 Ex.PW42/A documents Ex.PW42/B and Ex.PW42/C, which were General Power of Attorney dated 21.09.2004, and agreement to sell executed in favour of Smt. Sudesh Madan in respect of plot no. No. 66, Block­B, Pocket 10, Sector­13, Dwarka, in favour of Smt. Suidesh Madan (for 50% share), Smt. Ramesh Kumari (for CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 265 of 334 25% share) and Smt. Monica Garg (for 25% share). Intriguingly, while the GPA is executed only in favour of Smt. Sudesh Madan, Agreement to Sell is executed in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg against sale consideration of Rs.16,14,000/­, on which stamp duty of Rs.91,908/­ is separately paid. There is no dispute or denial to both the aforementioned documents.

548. The evidence received on record then shows that after the title of plot no. 66, Block­B, Pocket­10, Sector­13, Dwarka was transferred in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg, PW­51 Smt. Monica Garg executed sale deed vide SPA, GPA both dated 11.05.2005 in favour of Smt. Manjeet Kaur and original Agreement to Sell executed by Smt. Sudesh Madan, Smt. Ramesh Kumar and Smt. Monica Garg in favour of Smt. Manjeet Kaur were handed over vide Ex.PW42/E. The certified copy of GPA is exhibited Ex.PW62/C­27.The SPA is exhibited as Ex.PW62/C­28 which Agreement to Sell is exhibited as Ex.PW49/A and another copy of SPA between Smt. Sudesh Madan and Smt. Manjeet Kaur is then Ex.PW42/F, while the copy of SPA is Ex.PW42/G and copy of Agreement to Sell is Ex.PW42/H.

549. Another set of documents provided to CBI on 30.09.2015 vide letter dated 29.09.2015 of Sh. Lokesh Kumar, Sub­Registrar­II, Basai CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 266 of 334 Darapur, New Delhi is document Ex.PW42/I, which is certified copy of GPA executed by Smt. Manjeet Kaur in favour of her son Sh.Sukhvinder Singh dated 11.05.2005 and certified copy of sale deed then executed on strength of above GPA by Sukhvinder Singh in favour of Ms. Archna Jain is provided, whose husband Sh. Vijay Kumar Jain was examined as PW30 and affirmed the transaction in favour of his wife.

550. The factum of execution of aforementioned documents by A5 is corroborated by PW49 Sh. Ashok Kumar Arora (brother of deceased Smt. Sudesh Madan), PW50 Smt. Ramesh Kumari and PW51 Smt. Monica Garg.

551. PW49 Sh. Ashok Kumar Arora, brother of Smt. Sudesh Madan was knowing one Sh. Pramod Garg. He stated that Sh.Pramod Garg was a financer, who had financed Rs.16 lakhs with interest of 2% per annum for purchase of plot in Dwarka. Sh. Pramod Garg had made a proposal to his sister Smt. Sudesh Madan stating that as a security against the part amount her name will be included in the Agreement to Sell, as the amount of Rs. 8 lakhs was financed by her. He identified signatures of Smt. Sudesh Madan, Smt. Monica Garg and Smt. Ramesh Kumari as he knew Smt. Monica Garg who was Bhabi of Sh.Pramod Garg. He knew Smt. Ramesh Kumari as she was sister of his friend Sh. Inderjeet Bhayana, Advocate. The Agreement to Sell was identified by him, on which he identified signatures of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 267 of 334 Smt. Sudesh Madan, Smt. Ramesh Kumari and Monica Garg against sale consideration of Rs.16 lakhs.

552. At this stage, it appears that Agreement to Sell dated 21.09.2004 is exhibited as Ex.PW17/B, whereas this agreement is again exhibited as Ex.PW42/C out of inadvertence.

553. He then identified signatures of Smt. Sudesh Madan on ATS dated 11.05.2005 executed in favour of Smt. Manjeet Kaur alongwith that of Smt. Ramesh Kumari and Smt. Monica Garg, which document is already Ex.PW49/A (it appears that inadvertently the document is exhibited as Ex.PW49/A, whereas it is already exhibited by PW42 as Ex.PW42/E).

554. He affirmed his presence at the time of execution of both the agreements and affirmed the presence of his sister Smt. Sudesh Madan, whose photograph he identified at point Y and Y1 on the aforementioned respective documents.

555. PW50 Smt. Ramesh Kumari, sister of Sh. Inderjeet Bhayana knew Sh. Pramod Garg, through his brother and had financed Rs.4,00,000/­ through her brother Sh. Inderjeet Bhayana and her name was included in ATS for 25% share. She identified her signatures at point X on ATS (inadvertently exhibited as Ex.PW17/B, whereas the agreement is already exhibited as Ex.PW42/C). She could not CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 268 of 334 identify the person who had agreed to sell the property at which stage she was declared hostile. However, from her statement, the factum of execution of ATS in her favour for 25% share besides that of Smt. Sudesh Madan and Smt. Monica Garg was established.

556. Smt. Monica Garg then deposed as PW51 that she knew Sh.Pramod Garg who was her brother­in­law and deposed that he was doing business of property dealing at Dwarka. She had known Smt. Sudesh Madan and Smt. Ramesh Kumari having met them both at the time of Agreement to Sell, on which she identified her signatures at point X3 and photograph at point Y2 on the document exhibited above.

557. In view of the statements discussed above, sufficient material has been brought on record to establish the factum of transfer of plot No. 66, Block­B, Pocket 10, Sector­13, Dwarka by way of execution of Agreement to Sell in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg on respective share of 50% and 25% each as well as execution of GPA in favour of Smt. Sudesh Madan on the same date on which the lease deed had been executed by DDA in favour of Nitesh Kumar i.e. 21.09.2004 showing immediate transfer of the plot receipt by way of execution of sale against consideration shown as Rs.16,14,000/­ on which stamp duty of Rs.91,000/­ had also been paid.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 269 of 334

558. The fact that the payment originally qua the cost of plot was deposited vide Ex.PW13/D and Ex.PW13/F is exhaustively discussed. In such background, where the cost was paid by A­3 and A­4 from their personal bank account, the receipt of consideration of Rs.16,14,000/­ by A­5, apparently is showing a sham transaction having been carried out in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg as no realisation of this amount by Nitesh Kumar in his account or any payment of capital gain tax is shown. The documents hence are apparently made to legitimize an illegal transaction and also cover up the fact that payment was financed by a property broker Sh. Pramod Garg who used Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg as a face for execution of property to gain of the amounts financed. However, in this process the fact of initial payment haivng been paid by A­3 and A­4 clearly establish a nexus and community of interest of all accused being involved in the transaction from the beginning since issuance of the recommendation letter to the stage of taking possession, execution of lease and disposal of plot in question by sale.

559. I, now advert to deal with the series of arguments raised by the respective counsels on behalf of accused persons qua the accusations. At the threshold, I propose to deal with the arguments raised on the aspect of conspiracy by ld. Sh. Javed Akhtar, who is representing A2, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 270 of 334 A3 and A4.

560. Ld. Sh. Javed Akhtar, at the threshold challenged the delay in filing the FIR and claimed that while the occurrence is alleged to have taken place in the year 2003 RC (FIR in this case) is only lodged in the year 2015 after a delay of about 12 years, which delay has not been explained either by investigation or the prosecution. However, it is apparent that he has completely ignored the statement of PW61 Sh.Ranjeet Kumar Pandey, Inspector, Special Crime­I, New Delhi, in which it is disclosed that a preliminary inquiry was entrusted bearing no. PE5(S) 2014 only in 2014 by the then SP of the Branch pertaining to four missing files of Govt. of NCT of Delhi and the persons whose names were recommended by L&BD for allotment of alternative plots were found non­existent. The file No. F32(50A)/159/89/L&B in the name of Sh. Nitesh Kumar was missing/non­existent from the office of the L&B Dept., Govt. of NCT of Delhi and during inquiry it was revealed that recommendation dated 26.05.2003 was made qua which the subsequent allotment of plot No. 66, Block­B, Pocket 10, Sector­ 13, Dwarka was made against which payment of Rs.15 lakh was deposited from the account of Neeru Kumar Gupta (A3) and Sangeeta Gupta (A4). Since the file could not be traced during enquiry, on detailed examination of persons from whom this plot was subsequently purchased it was revealed that A5 Nitesh Kumar was a non­existent/fictitious person and the plot was purchased by Sh.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 271 of 334

Pramod Garg in name of his sister Smt. Monica Garg and two others. The involvement of A2 S.S. Malhi and A1 Badrul Islam (since deceased) in connivance with Neeru Kumar Gupta (A3) and non­ existent persons was found and a complaint in writing was made on 28.05.2015, which was then exhibited as Ex.PW16//A.

561. In view of the aforesaid, the prosecution has duly explained the reasons for filing the FIR (RC) in 2015. The complaint in this case is made by PW61 Sh. Ranjeet Kumar Pandey, Inspector. He exhibited it Ex.PW61/A. This witness is cross­examined by ld. Sh.Javed Akhtar, where he reiterated the afore­mentioned facts stated in his examination­in­chief. During the cross­examination, no question pertaining to delay of lodging of PE or RC at a later stage had been asked, which goes to show that argument qua delay in lodging of FIR (RC) is an afterthought and a half­hearted attempt of defence.

562. It is worthwhile to note that above statement is corroborated by PW63 IO Sanjay Kumar, who also deposed in sync. Though, he is cross­examined in great detail not even a single question pertaining to delay in lodging the FIR is put to this witness. Even otherwise no connection between the alleged delay in lodging RC and occurrence having caused any advantage to accused is shown. Nowhere any averment qua loss of material evidence causing incapacity to prove the defence is raised. Rather, the accused restricted their argument to CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 272 of 334 defective investigation alleging that while evidence was available it was deliberately not collected which shows that no assertion of loss of material to the disadvantage of accused is raised making this argument as a futile exercise.

563. Ld. Sh. Javed Akhtar then raised the question regarding competence of A2 S.S. Malhi qua execution of verification Ex.PW19/C (colly). It is claimed that he could not be attributed all summary sheets since he was attached to South zone alone. Though, I have dealt with this submission earlier also, in order to put an end to this controversy, it is noted that it is not denied firstly that A2 was the only dealing assistant handling the files pertaining to recommendation Committee and was directly assisting A1. No circular/office order or any material as such is placed to show that he was not authorized to execute any verification. The statement that he was only dealing with South zone and was not posted to deal with any other zone is not put forward before any witness who deposed about execution of summary sheets by him.

564. Another argument raised to deny the allegations of ill intention or malafide is qua the time of conspiracy. Ld.Sh Javed Akhtar has alleged that at the relevant time S.S.Malhi was nowhere in the picture. He was not present when the plot was transferred. However, again the argument is misplaced as the role of A2 is not pertaining to allotment /transfer of plot in question but the issuance of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 273 of 334 "recommendation letter" which is made on 26.05.2003 on which date he was posted in the alternative branch which fact is undisputed.

565. Another averment that accused was only responsible after application was received and registered in Central Diary and was sorted and sent to Alternative Branch, is a self­contradictory plea as in the rebuttal submissions, it is stated that in certain cases the procedure of receipt of applications through Central Diary was ignored to pacify the applicants whose applications were received directly and endorsed by A1 in which case no entry in diary at any stage was kept. He tried to shift the onus of issuance of recommendation letter for which the file was to be opened by him by claiming that the said act is in furtherance of the directions of A1. However, there is no dispute qua the aforementioned as a collusion and connivance of A1 is also stated by prosecution specifically.

566. Qua the verification proceedings, it is claimed that it was not the responsibility of A2 to personally verify the documents. However, it appears that arguments are modeled on the plank of convenience while interpreting the evidence on record as ld.Sh. Javed Akhtar omitted to read the statement of PW­44 Smt. Usha Chaturvedi and PW­48 Sh. Praksh Kumar, who both comprehensively stated that the verification was the sole responsibility of A­2. PW44 has rather gone on to state that in certain cases if need be the exception could be carved out through personal verification, which renders the argument CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 274 of 334 above meritless. Further, the aforementioned agreement is an extraneous and presumptuous submission as in this case there is no evidence qua the fact that A­2 called any verification even by Dak, which responsibility is not denied by him, which fact further strengthened through statement of PW6 who denied any verification having been called from Alternative Branch.

567. Another argument raised is an attempt to shift the burden of recommendation on the Recommendation Committee and it is claimed that it was primarily the responsibility of PW15 Sh. Subhash Gupta, DLA to verify the contents of documents placed alongwith each application. Again, the aforesaid submissions is not a result of proper reading of examination/cross­examination of PW15. While PW15 Sh. Subhash Gupta and PW48 Sh. Prakash Kumar, Chairman both have stated that when the matter was placed before the Recommendation Committee, the Recommendation Committee trusted and believed the process of verification conducted and went on to deliberate on the matters premised on the verification made by the Alternative Branch. This fact is then specifically stated by PW48 Sh.Prakash Kumar who stated that as a token of verification signatures of Dealing Assistant were appended on each page, which fact is shown from Ex.PW19/C.

568. Further, nowhere any practice/procedure or guidelines etc. are shown to establish that calling the verification was the responsibility CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 275 of 334 of Recommendation Committee and by not calling the same, a lapse is caused at the end of the Committee members for which accused cannot be held liable. Rather, no such question is even put in cross­ examination to any of above witnesses to show merit in the argument.

569. It is now observed that above averment rather shows contrary that apparently the accused persons were aware of the practice of dependence of the Committee on dealing hand and took advantage therefrom by making verification at their end without having actually sought any from concerned department such as LAC, Revenue etc.

570. Another argument is qua the delay in signing of Minutes of Recommendation Committee. However, this submission is again misplaced as is stated by witnesses that preparation of minutes of meeting was in the domain of responsibility of A1 Badrul Islam (since deceased) and any delay hence was explainable by the accused persons themselves.

571. Ld. Sh. Javed Akhat has averred that compensation register has not been placed to make an assessment to show the entitlement. However, this submission is again misplaced as the relevant record is produced by PW6 Sh. Hemraj and PW7 Sh.Parvinder Tomar showing that the award no.1958/66­67 Ex.PW6/D had been made in favour of the Government and that prior to acquisition settlement is made in favour of Punjab Textile Com., Lahore, the erstwhile owner. While CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 276 of 334 the correctness of the statement of the witnesses showing the award of LAC and entries pertaining to payment of compensation vide Ex.PW6/C are not denied and dislodged, how a benefit would have been received by production of compensation register by prosecution and would have changed the colour of testimony, is not explained by the accused.

572. The argument that prosecution has adopted policy of pick and choose qua accused persons is of no consequences to A2 to A4.

573. Similarly, the submission that out of 70 witnesses only 63 witnesses have been examined is inconsequential for the reason that no detriment is shown to their cause.

574. Ld. Sh. Javed Akhtar has read over the statement of all the witnesses and has pointed to the statement of PW6 Sh. Hemraj stating that prosecution has not probed the fact of ownership of land having been passed over to any LR and as such he may not be aware of any such provision, which is apparently a presumptuous argument, especially in view of the record showing the change of ownership from Punjab Textile Company, Lahore in favour of the Government. No material contradictions have been raised qua the statement of PW9 Sh. Rati Ram, Translator of the document, PW10 Sh.Bijender Tyagi, PW11 Sh. Raj Kumar, PW12 Sh. Vijender Kumar and view other witnesses whose examination have been dealt in deal above.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 277 of 334

575. While making his submission by way of rebuttal, he claimed that the prosecution has altered the axis of time qua the controversy of conspiracy claiming that it took place in 1989. However, he misconstrued the statement of PW44 as what the witness intended through her statement was that the recommendation was pertaining to scheme of 1989. Nowhere, it was stated that the conspiracy or acts in furtherance thereof emerged in 1989.

576. The averment that the defence is not relying on the statement of PW44 Smt. Usha Chaturvedi qua the eligibility criteria in respect of determining the size of eligible plot, is a misplaced submission as the same is stated by her in official capacity. Further, the argument is not elaborated and supported with any contrary evidence. The allegations against PW44 of prejudice are also to be treated in the same realm as no material for her holding any bias or prejudice against accused is either put to her in cross­examination or detailed during arguments. The allegations of her making an incorrect statement pertaining to non­availability of file no. F.32(50A)159/89/L&B/Alt. from which the recommendation has been generated, premised on the statement of PW5 Smt. Sheela Devi, is an argument, which I have already dealt with and is discussed in detail and is not being repeated for the sake of brevity.

577. The allegation that prosecution has created a false story is again a misplaced submissions for not showing any appropriate CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 278 of 334 reason for prosecution to lead to file a false case against accused persons.

578. It is again pertinent to observe that argument regarding Smt. Hamita Rani have already been dealt with in foregoing paragraphs and are not repeated herein for the sake of brevity. Similarly, discussion qua the import of statement of PW8 and PW9 is discussed in detail earlier, in which circumstance, the averments are observed to be contrary and arguments as meritless.

579. While execution of documents Ex.PW17/A and Ex.PW17/B is not disputed and it is not denied that the documents were executed by Nitesh Kumar, the submission intending to stretch the claim that the person who executed the document was not Nitesh Kumar, is another presumptuous argument and is in complete disregard to the statement of PW43 Smt. Hamita Rani who has established his identity. There is no requirement for each witness to identify the accused separately during physical deposition if the prosecution is satisfied of the import of the testimony of the witnesses who have established the same categorically. It is not shown that how by other witnesses not being asked to identify Nitesh Kumar any detriment to the cause of prosecution or advantage to the defence has accrued.

580. While again the execution of documents by PW26 Sh. Tejpal, PW45 Smt. Krishna Setia is admitted, presumptuous argument is CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 279 of 334 made to dispute the reliance on their version, which is not supported with any explanation.

581. The averment that in view of the statement of PW62 through Ex.PW62/A which admittedly corroborates that Nitesh Kumar and Harmesh Kumar both are the same person, how the statement is only capable of raising suspicion, is again a presumptuous argument ignoring the import of statement of other witnesses corroborating the identity of A5 Nitesh Kumar,

582. Ld. Sh. Abhishek Kukkar has also made vehement submissions. However, arguments are premised on incapacity of A5 to understand the implication of involvement in execution of documents, which he claims to have been done at the instance of A3, who was known to him. While A5 has claimed and admitted himself to be not a resident of NCR and has accepted the statement of prosecution while admitting him to be the same person in whose favour DDA alloted the plot which he transferred immediately on the date of receiving the sale deed, the transaction is denied to be an authentic one for the cause of his having not received any consideration. However, this is only an argument which is raised by way of defence and is not supported by way of any cross­examination or material placed on record. None of the material witnesses including PW49, PW50 and PW51 who have received the transfer from him have been given any suggestion to the extent that the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 280 of 334 consideration was not paid and/or otherwise. While it is claimed thatA5 has been a victim of manipulation having no ill intention, no material as such is placed to show his having suffered at the hands of the accused persons and/or his identity having been manipulated while the record is stating otherwise qua his voluntarily participation at all stages including making request to DDA by filing application for inclusion of his name in draw of plots, personally collecting the possession, remaining present with two witnesses for execution of lease deed and hading over the documents even in absence of his having received any communication from DDA personally.

Charge u/s 419/420 IPC

583. In the backdrop of allegations, one of the accusations which is integral to the entire factual matrix and gist of other accusation, is arising out of the allegations/charge under Section 420 IPC. Before adverting to the evidence received on record and the challenge made to its assessment by arguments and counter arguments wherein both the prosecution and the defence counsels, tried to interpret the evidence and read the statements in light of their understanding and interpretation of the material, it would be beneficial if the necessary ingredients of the relevant provisions are reproduced :

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 281 of 334 person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".

584. How the ingredients of aforementioned provision are to be interpreted is detailed in Archna Rana vs. State of UP [Crl. Appeal No. 167/2021 (DoD 01.03.2021)], the Hon'ble Supreme Court while discussing above provision guided that no offence u/s 420 IPC can be termed to have been committed, unless, the ingredients of Section 415 are shown to have been satisfied, in background of above, it is now worthwhile to reproduce the relevant part of the judgment as below :

"i) a person must commit the offence of cheating under Section 415; and

ii) the person cheated must be dishonestly induced to

a) deliver property to any person; or

b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.

Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a person by deceiving him:

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 282 of 334

The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.

Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating."

585. The definition of cheating contains two parts. First comes the main part "whoever, by deceiving any person....." words which obviously apply to the whole section. Then comes the first part "fraudulently, or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property." Then comes Part 2, which is an alternative to sub­part 1 viz. "or intentionally induces ..... mind, reputation or property." then comes the closing words "is said to cheat.". The words "and which act or omission .... reputation or property" form a portion of Part 2 and are not applicable to Part 1 at all. (Ishar Das (1908) PR No.10 of 1908 : (1906) 7 Cri LJ 290.

586. The aforementioned judgment makes it clear that there are two distinct provisions forming part of offence of cheating. First relating to inducement/deception to fraudulently get a transaction of property which may be movable or immovable in nature, whereas second part CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 283 of 334 is more emphatic in connection with act or omission relating to inducement which may cause damage or harm to reputation or property. Both the aforementioned parts are distinct and disjunct, however, "deception" is common in both.

587. This preposition has been strengthened further in Bavaji (1875) Urrep Cr C 96, Cr R September 23, 1875, wherein it is detailed "the definition of offence of cheating embraces, in some cases, in which no transfer of property is occasioned by the deception and some in which such a transfer occurs; for these cases generally a general provision is made in Section 417 of the Code. For the cases in which property is transferred a more specific provision is made by Section 420 IPC. Again in Iridium India Telecom Ltd vs Motorola Incorporated : AIR 2011 SC 20 it is held that "misleading statements which withhold the vital facts for intentionally inducing a person to do or to omit to do something would amount to deception. Further, in case it is found that misleading statement has wrongfully caused damage to the person deceived it would amount to cheating". In Roop Chand & Anr. Vs. The State 1966 Crl. L.J. 1367 and again in Nadir Ali Barqa Zaidi And Ors. vs The State of U.P. : AIR 1960 All 103 :

1960 Cri LJ 188 (All), it is held "every promise by a person of his future conduct implies the statement of witness about it. Therefore, if a person makes a false representation regarding his future conduct and thereby obtains property from another, the mis­representation made CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 284 of 334 by him would be an existing state and would fall within the mischief of this section".

588. While discussing the ingredients, the applicability of Section requires the following ingredients as is held in Ram Jas vs. State of UP : AIR 1974 SC 1811 :

"1 Deception of any person.

2(a) Fraudulently or dishonestly inducing that person :

       (i)        to deliver any property to any person, or.

       (ii)       to consent that any person shall retain any property,
                  or

       (b)        intentionally inducing that person ......."

589. While declaring the purport of deception it is held in Iridium India Telecom Ltd (supra) "non­disclosure of relevant information would also be treated as a mis­representation of facts leading to deception"

590. Again in Robert John D'Souza & Ors vs Mr. Stephen V. Gomes & Anr : 2015 CriLJ 4040 SC, it is held that essential ingredient of cheating is "deception".

591. In Swami Dhirendra Brahmachari v/s Shailendar Bhushan :

1995 CLJ 1580 as well as in Motorola Incorporated vs. Union of India : 2004 CriLJ 1576 (Bom), it is held that "it is causing to believe CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 285 of 334 what is false; or misleading as to a matter of fact or leading into an error".

592. As to what is sufficient to constitute a deception must be decided in each case on its own fact [Ram Nath Kalphar (1905) 2 CLJ 524)].

593. When a person fraudulently represents as an existing fact, that, which is not an existing fact, he commits this offence. A willful misrepresentation of definite fact with intent to defraud, cognizable by the senses is cheating. Hence, in all cases, the evidence must show that the inducement was dishonest or fraudulent and accordingly to secure a person conviction of cheating 'mens rea' on the part of that person must be established.

594. After having made note of the relevant provisions, it is now incumbent to take on record for discussion, the contentions raised in the background of the factual matrix presented through the evidence and its interpretation in the light of the arguments in the present case.

595. Now, coming to the factual matrix of the present case. The first and the foremost being Ex.PW4/A (the recommendation letter dated 26.05.2003) in favour of A5. As has been discussed in detailed in foregoing paras, the recommendation letter had been received in favour of fictitious identity of Nitesh Kumar S/o Bed Prakash, whereas no such identity ever existed and was a 'garb' taken by A5 CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 286 of 334 whose real identity is established Harmesh Kumar S/o Sh. Hemraj R/o Srikarnapur District Sriganganagar, Rajasthan. It is discussed that the recommendation letter which proposed allotment for alternative plot was premised out of welfare scheme for displaced farmers whose lands were taken for planned development of Delhi under the scheme of Large Scale Acquisition and Development and Disposal of Land in Delhi. While it is shown on record by PW6, PW7, PW8 and PW9 that Nitesh Kumar (A5) whose identity is established as Harmesh Kumar by PW43 Smt. Hamita Rani, PW47 Sh. P.K. Bansal and PW18 Sh.Vijay Kumar never owned any portion of land from Khasra No. 1640 (6­03), 1641 (5­14), 1642 (5­03), 1643 (3­09), of Village Malikpur Kohi @ Rangpuri, total measuring 20.09 bigha, which was acquired vide award no.1958/66­67 dated 23.03.1967. It is shown that the verification qua above facts Ex.PW19/C made by A2 was mischievous. Whereaffter, the file from which the recommendation letter Ex.PW4/A originated was untraced as per the report of PW19, PW44 and PW59.

596. While the aforesaid facts have been discussed in detail, it is necessary at this stage to note that even the payment against the allotment of the plot had not come from the account of A5. At this stage, it is necessary to discuss in detail the source of payment which is shown by prosecution to have been made by A3 Neeru Kumar Gupa and A4 Sangeeta Gupta. In this connect, reliance on the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 287 of 334 statement of the witnesses are taken note of. First in the series being PW22 Sh. Deepak Sharma, Dy. Manager, HDFC Bank, who handed over the relevant documents vide production­cum­seizure memo dated 12.08.2015, which he exhibited as Ex.PW22/A. The documents were pertaining to account opening of Sangeeta Gupta (A4) and Neeru Kumar Gupta (A3). The account had been opened in the erstwhile Bank of Punjab Ltd., which first was merged with Centurian Bank merged with HDFC Bank. The relationship/Account opening form of Bank of Punjab Ltd. in name of Sangeeta Gupta (A4) was Ex.PW13/A and specimen signatures card was Ex.PW13/B, Election Card of Neeru Kumar Gupta (A3), MTNL bill annexures for account opening form were Ex.PW13/C (colly), as per which, account bearing No.114001000015380 was opened in the name of Smt. Sangeeta Gupta and Sh. N. K. Gupta was the nominee of the said account. He then exhibited the requests for issuing of Demand Draft of Rs.50,000/­ each (two such requests) in favour of 'DDA' under the signatures of Sh. Neeru Kumar Gupta both of which were given on 06.07.2004.

597. Another request for issuance of Demand Draft of Rs.7,00,000/­ in favour of 'DDA' under the signatures of Sh. Neeru Kumar Gupta again dated 06.07.2004, a cheque of Rs.8,00,625/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Sh. Neeru Kumar Gupta being dated 06.07.2004 as request written on its back CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 288 of 334 by Neeru Kumar Gupta to issue a PO in favour of 'DDA' for Rs.50,000/­ and Rs.50,000/­ and Rs.7,00,000/­ only.

598. Another request for issuing Demand Draft Rs.7,89,000/­ in favour of DDA under the signatures of Smt. Sangeeta Gupta was given on 06.07.2004, which is already Ex.PW13/D (colly), cheque of Rs.7,89,592/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Smt. Sangeeta Gupta dated 06.07.2004, on the back of which it was found written under the signatures of Sangeeta Gupta to issue a PO in favour of DDA for Rs.7,89,000/­ only. Another request to issue a DD in favour of DDA for a sum of Rs.1 Lakh which request was again given by Sh. Neeru Kumar Gupta dated 08.07.2004 is Ex.PW13/H, cheque of Rs.1,00,075/­ in favour of 'yourself' i.e. 'Bank of Punjab Ltd.' given by Sh. Neeru Kumar Gupta dated 08.07.2004. On the back of which it was found written 'request by Sh. Neeru Kumar Gupta to issue a PO in favour of DDA for Rs.1,00,000/­ only' with certificates u/s 2A of the Banker's Book of Evidence Act 1891 with regard to account no.114001000015380 in the name of Smt. Sangeeta Gupta for the period from 01.04.04 to 31.03.05 and with regard to account no.114001000015370 in the name of Sh. Neeru Kumar Gupta for the period from 01.04.04 to 31.03.05 were signed by Smt. Taruna Singh, Branch Manager, HDFC at point A alongwith rubber stamp of the bank on both the certificates which were then exhibited as Ex.PW22/D and Ex.PW22/E respectively. He CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 289 of 334 identified Statement of Account No.114001000015380 in name of Smt. Sangeeta Gupta on which he identified his signatures and rubber stamp at point A which statement was exhibited as Ex.PW13/E. The statement reveals that on 07.07.2004, cheque no.810980 was given by Smt. Sangeeta Gupta for issuance of a DD for a sum of Rs.7,89,000/­ and a sum of Rs.7,89,592/­ was debited from her account. He identified Statement of Account No.114001000015370 in name of Sh. Neeru Kumar Gupta on which he identified his signatures and rubber stamp at point A which statement was already Ex.PW13/G and revealed that on 06.07.2004, cheque no.809040 was given by Sh. Neeru Kumar Gupta for issuance of a DD for a sum of Rs.8 Lakhs and a sum of Rs.8,00,625/­ was debited from this account. The entries of statement of account revealed that on 08.07.2004, cheque no.809041 was given by Sh. Neeru Kumar Gupta for issuance of a DD for a sum of Rs.1 Lakhs and a sum of Rs.1,00,075/­ was debited from this account. Nothing material in his cross­examination came out to dispel the details of payment and corresponding entries pertaining to issuance of D/D in favour of DDA. Intriguingly, in cross­examination, the witness was given a suggestion that Neeru Kumar Gupta (A3), Smt. Sangeeta Gupta (a4) and bank officials colluded in opening bank account on the basis of forged papers and issuance of D/D in favour of DDA, which was denied by the witness, though it raises sufficient question qua the intention of the accused.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 290 of 334

599. Another witness, who affirmed the transaction is Sh. Ravinder Singh, Branch Manager, HDFC, Rajori Garden, who had worked with Bank of Punjab in October, 1997 till September, 2005. The original relationship form of Bank of Punjab Ltd. of account bearing no.114001000015380 in the name of Ms. Sangeeta Gupta was identified by him. He detailed that account number above is the new account after having Bank of Punjab merged with HDFC Bank and earlier account number was SB­11066821, on which he identified signatures of Smt. Sangeeta Gupta (4) on account opening form as well as specimen card, whereafter the account opening form of Sangeeta Gupta was exhibited as Ex.PW13/B. He detailed that there was no requirement to introduce the customer earlier as the account was opened on the basis of PAN card. He provided the necessary annexures received at the time of opening of account such as statement of ICICI credit card, copy of telephone bill in the name of spouse Sh. Neeru Kumar Gupta and copy of conveyance deed in the joint name i.e. of herself and of her husband, which all documents he exhibited as Ex.PW13/C. He affirmed that the documents i.e. the cheque with remittance application of Ms. Sangeeta Gupta was then exhibited as Ex.PW13/D (colly). He affirmed that cheque no. 809040 dated 06.07.2004 for a sum of Rs.8,00,625/­ issued by Neeeru Kumar Gupta from where three DDs were prepared in favour of DDA, amounting to Rs.7 lakh and two for Rs.50,000/­ each. The PO CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 291 of 334 numbers were mentioned on remittance application of Sh. Neeru Kumar Gupta and were 997748, 997749 and 997750, which amount was debited from his account no. 07SB­11066820 on 06.07.2004, which cheque and remittance applications were exhibited as Ex.PW13/F (colly) bearing signatures of Neeru Kumar Gupta at point A. The statement of account was exhibited as Ex.PW13/G. He then identified cheque no. 809041 dated 08.07.2004 for a sum of Rs.1,00,075/­ issued by Neeru Kumar Gupta. A DD for a sum of Rs.1,00,000/­ was made in favour of DDA. PO number was mentioned on remittance application of Neeru Kumar Gupta and was 997809 which amount was debited from account 07SB­11066820 of Neeru Kumar Gupta on 08.07.2004. The cheque and remittance applications were then exhibited as Ex.PW13/H (colly) and witnesses identified the signatures of Neeru Kumar Gupta at point A on both sides. The statement of account was already Ex.PW13/G. Ld. Sh. Javed Akhtar, ld. Counsel for A2 to A4 conducted detailed cross­ examination of PW13 , wherein he stated that the signatures of A4 on account opening form were taken by Ms. Sapna and Ms. Ruchi, who had also verified the documents enclosed for opening bank account and he was shown only the account opening form of Sangeea Gupta and Neeru Kumar Gupta.

600. The aforesaid statement of PW13 Sh. Ravinder Singh establishes the fact that despite allotment having made in favour of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 292 of 334 A5, no payment against the plot was made by him. This fact is corroborated by the written submissions of A5 himself, who has admitted that the payment was made on his behalf by A2 and A3.

601. Ex.PW4/A bears the signatures of A1 Badrul Islam (since deceased), which has been identified by PW15 Sh.Subhash Gupta, PW48 Sh. Prakash Kumar and other witnesses. The Minutes of Meeting infact had been confronted to the witness which lend corroboration to the aforementioned series of facts channelized to receive the goal of mischief. The facts show that indulgence of A2 in clearly manipulating the scheme created for displaced farmers by mischievously manipulating record for personal gain, in which act, active collusion and support is received from A1 as they both succeeded in extracting the recommendation letter from recommendation committee specially constituted for the benefit of displaced farmers. It is apparent that accused were aware of the practice that recommendation letter alone is to be sent without any record and no practice of verification is available with LSB, which knowledge they used to their advantage and were successful in getting Ex.PW4/A converted into allotment of plot No. 66, Pocket 10, Block­ B, Sector­13, Dwarka through LSB branch DDA and accordingly Ex.PW4/A was forwarded through Central Dak and Diary Department through LSB, which fact is shown from the statement of PW4 and PW20, who both as well as PW1 proved that on receipt of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 293 of 334 recommendation letter bearing No.F.32(50A)/159/89/L&B/Alt/2088 dated 26.05.2003 (Ex.PW4/A), file No. F­27(16)/2003/LSB(R) (Ex.PW1/A) was opened in LSB for allotment in the name of Nitesh Kumar whose name was then included in draw of plots in caption of scheme for draw of plot for Rohini, Narela and Dwarka, which was held and recommendation letter was taken note of, whereafter No. 66, Block­B, Pocket 10, Sector­13, Dwarka was allotted in favour of A5.

602. As discussed above, no payment against this plot was deposited by A5 which had been made by A3 and A4, who were related to A5, which fact is admitted by A5 during course of written arguments. The physical possession of the property was then received by tendering documents in name of fictitious identity of Nitesh Kumar i.e. affidavit Ex.PW1/G, undertaking Ex.PW1/H as well as specimen thumb impression Ex.PW1/J.

603. It is pertinent at this stage to note that one of the conditions for allotment was that 'recommendee' 'allottee' must be a bachelor. In fact an undertaking Ex.PW1/H on oath had been made by A5 to the aforementioned fact which again is false in view of the statement of PW43, who has tendered the marriage photograph and exhibited as Ex.PW43/C1 showing the factum of marriage of A5.

604. The facts uptill now clearly show that the sole intention of accused was to cause cheating to DDA by extracting plot in their CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 294 of 334 favour for which accused closely engaged with each other in order to make mischievous, fraudulent and deceptive representation to DDA at each stage in order to gain the possession of the plot and succeeded in their ill designs as the possession of the plot was received through PW11 at the spot, who forwarded the report of receipt of possession by A5 on 10.08.2004.

605. In foregoing paras, it is discussed in detail in the light of statement of PW10 and PW12 both postman that none of the communication for receipt of possession, furnishing requisitie documents and taking requisite steps for obtaining the possession reached A5 since the address was incomplete. In the first instance, it was the responsibility of the accused to detail as to how he gathered the information of the allotment having been made in his favour especially when he alleged that even the payment was not deposited by him. It was required to be shown by A5 that what prompted him for causing his personal appearance in public haring and tendering requisite documents alongwith application Ex.PW1/S through which the request for execution of lease deed was prayed. He collected all the copies of lease deed for stamping by hand and submitted them alongwith his letter dated nil, Ex.PW1/E.

606. It is also at this stage necessary to note that the accused out of knowledge of their acts and omission showed the anxiety and engaged in sale of the plot immediately on the same day on which he received CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 295 of 334 the lease deed in his favour. The factum that the transfer was executed in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt. Monica Garg is proved by PW42 Sh.Deshbandhu Gosain and PW17 as well as the recipient of the transfer themselves i.e. PW49, PW50 and PW51 and as per record the transaction was materialized for an amount of Rs.16 lakhs, on which stamp duty was paid, which showed that the accused gain by way of sale of the plot causing loss to the DDA by inducement.

607. Another argument raised by ld. Sh. Javed Akhtar is premised on the submission that DDA has suffered no actual loss as the factum of payment of plot having been received is admitted by PW­1 Bhupal Singh, PW­45 Krishna Setia stating that the ingredients of S 420 IPC are not satisfied. However, the submission is an exaggeration of the half interpretation of evidence. Merely for the reason that cost fixed by DDA against a welfare scheme is paid, it cannot be construed that no loss is occurred to DDA. Apparently the scheme was not meant to advantage accused persons and was result of a Welfare measure for displaced farmers, for which benefit, accused were not entitled. It is to be noted that the land qua which the recommendation was collected belonged to Gram Sabha and was Government land hence showing all sufficient facts to constitute the ingredients of 420 IPC.

608. In such circumstances as such, the claim that DDA has not suffered any loss for the reason that the cost of the plot has been made CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 296 of 334 over, is misplaced submission and further it is not required that the twin condition of gain and loss must be always proved, in which opinion, I find strength from the judgment of Tulsi Ram vs. Sate of UP AIR 1963 SC 666.

Charge u/s 467/468/471 IPC

609. Charge u/s 467/468/471 IPC has also been framed against the accused persons as they stood under accusation for causing forgery by way of creation of false documents dishonestly, mischievously and fraudulently, knowing fully well the documents to be fake and using them as genuine for malafide gain.

610. The first occasion of creation of false documents is shown by PW­19 who exhibited on record Ex.PW19/C the summary sheet pertaining to case of A­5 showing verification having been made as under "Certified that the particular above are found correct as per record" . This verification to the knowledge of A­2 had been false as in foregoing paras it is discussed elaborately that no such verification was ever called by him or at his instance or was received and which fact was in his knowledge despite which the summary sheets was used as verification for the cause of A­5. The signatures of A­2 were obtained voluntarily which fact is proved by PW­33 Sh.Rajender Kumar Sharma, who exhibited the specimen signature/handwriting sheets as Ex.PW33/A and was corroborated by PW­34 Sh.Abhishek CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 297 of 334 Vats, though, the handwriting is not denied. Further, the other acts in series are caused by A­5 Harmesh Kumar in adopting fake entity as Nitesh Kumar in furtherance of which he tendered documents Ex.PW1/E (letter dated Nil) submitting the documents under signatures as Nitesh Kumar, Ex.PW1/G (affidavit) stating himself to be bachelor Ex.PW1/F affidavit signed as Nitesh Kumar, Form 60 Ex.PW1/I, specimen signatures and photographs as Nitesh Kumar Ex.PW1/J (coly) and most significantly fake copy of voter ID as Ex.PW1/K showing his identity as Nitsh Kumar, based on which he took the possession from PW­11 on 10.08.2004 and got the lease executed through PW­1, PW­45 on 21.09.2004 in favour of Nitesh Kumar. The recovery of original voter ID card of Harmesh Kumar is witnessed by PW­47. The fact of his identity and falsehood of Ex.PW1/K is then stated by PW52 Sh. Swaroop Chand Rana, Section Officer (UIDAI), Regional Office Delhi who provided certified copy of Aadhar enrollment form of A5 Nitesh Kumar Ex.PW52/A and certified copy of Aadhar enrollment form Ex.PW52/B and certified copy of enrollment slip of Aadhar bearing his signatures and official seal as Ex.PW52/C, certified coy of voter ID card of Harmesh Kumar was Ex.PW52D and copy of family ration card was Ex.PW52/E. He also tendered the certified copy of e­adhar letter of Smt. Hamita Rani as Ex.PW52/F, which all facts have shown that a false identity in the name of Nitesh Kumar was purposefully adopted by A5 Nitesh CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 298 of 334 Kumar. As per the statement of PW56 Sh.Arvind Singh, Stamp Vendor, it is established that stamp papers, which were used for above affidavit/undertaking etc., were taken in the name of fake identity of Nitesh Kumar, which strengthens the prosecution allegations of accused engaging in acts of mischief for the purpose of deception under false identity. Though, PW55 Smt. Savita Dahiya and PW58 Ms. Nirmala Singh Nayyar, Advocates/Notary Public denied the attestation, there is no denial qua use of aforesaid stamp papers for the purpose of preparation of false undertaking, affidavit, exhibited as Ex.PW1/E to PW1/K which were then used under the signatures of Nitesh Kumar at intermittent stages of tendering application for allotment, possession and lease etc, is rather an admitted contention of A5 Nitesh Kumar himself.

611. At this stage, the opinion of scientific expert PW54 Sh. B. Mangesh Krishnaratnam also needs to be noted. He had compared the signatures of Nitesh Kumar with questioned documents from the original perpetual lease deed dated 21.09.2004 executed in DDA, photocopy of GPA and ATS dated 21.09.2004 executed by Nitesh Kumar in favour of Smt. Sudesh Madan, Smt. Ramesh Kumari and Smt Monica Garg and on careful comparison and examination he detailed that the questioned thumb impressions Q­107, Q­109, Q­115, Q­117, Q­118, Q­122, Q­124, Q­127,Q­128, Q­131, Q­133, Q­135 and Q­136 matched being identical with specimen left thumb CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 299 of 334 impression.

612. The questioned finger impressions marked as Q­115D, Q­ 124A, Q­128A were found identical with specimen left index impression of Sh.Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LIS­41 (S­41).

613. The questioned finger impression marked as Q­115C, Q­ 124B, Q­128B were found identical with specimen middle impressions of Harmesh Kumar @ Nitesh Kumar, as specimen slip marked as LMS­41 (S­41). He detailed that the questioned finger impressions marked as Q­115B, Q­124C, Q­128C were identical with specimen left ring impressions of Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LRS­41 (S­41).

614. The questioned finger impressions marked as Q­115A, Q­ 124D, Q­128D were identical with specimen left little impressions of Harmesh Kumar @ Nitesh Kumar as specimen slip marked as LLS­45 (S­45). The report was exhibited as Ex.PW54/A (colly.).

615. Prior to the report voluntary collection of specimen was stated by PW39 S.D. Mittal S.D. Mittal who witnessed obtainment of signatures and handwriting of A­5 by PW­54 and by PW­40 B.B. Chadha.

616. During cross­examination PW54 admitted that perpetual lease CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 300 of 334 deed dated 21.09.2004 in name of Nitesh Kumar executed in DDA was sent before him for comparison in original but other documents in column nos. 2 and 3 were photocopies which were not submitted to him, however, he denied that proper ridges were not possible to be compared from photocopy of documents qua which no confrontation with any scientific material was made or any such report was brought to dispel this part of his deposition qua forming of opinion.

617. Without going into the controversy of other documents being photocopy, it is necessary to note that perpetual lease deed with original signatures was sent for comparision which fact is not disputed and the authenticity of signatures vide report Ex.PW54/A is not denied which hence establishes that Harmesh Kumar appended fake signatures as Nitesh Kumar at point B on perpetual lease deed Ex.PW25/A and Ex.PW25/B in presence of PW­1 Bhupal Singh, PW­45 Sh. Krishna Setia and PW­26 Tejpal Singh Tomar. He made signatures as Nitesh Kumar on possession letter receiving possession on 10.08.2004 in presence of Sh. Rajpal, Surveyor in whose presence he took the physical possession and attested his voter ID vide Ex.PW11/D and Ex.PW11/E respectively. All these witnesses cogently stated about A­5 putting his signatures and thumb impression falsely representing himself as Nitesh Kumar, s/o Sh. Bed Prakash, knowing fully well that his real identify is of Harmesh Kumar and not Nitesh Kumar.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 301 of 334

618. The report of Scientific officer PW62 Ms.Alka Gupta is pertinent to be noted in view of the signatures appended by A5 Harmesh Kumar @ Nitesh Kumar on documents such as Ex.PW1/G (affidavit), Ex.PW1/H (undertaking), Ex.PW1/I (form­60), Ex.PW1/J (specimen signatures), Ex.PW1/K (voter ID Card). Ex.PW1/M (possession letter), Ex.PW1/R (Noting), Ex.PW11/D (possession letter) and Ex.PW11/E (Voter ID card of A5), which were affirmed in report Ex.PW62/A, as below :

".II. Handwriting evidence points to the writer of the specimen signatures marked S­31 to S­40 attributed to Harmesh Kumar @ Nitesh Kumar being the person responsible for writing the questioned signatures marked Q­23 to Q­27, Q­30 to Q­37, Q­39 to Q­68, Q­93 to Q­98, Q­101 to Q­106, Q­108, Q­110, Q­113, Q­114, Q­116, Q­ 119, Q­121, Q­123, Q­125, Q­126, Q­129, Q­130, Q­132, Q­134, Q­137 due to the following reasons:

The questioned and the specimen signatures are written freely showing smooth line quality and natural variations. Qualities of imitation are not present between them.

Both the questioned and the specimen signatures agree with each other in the general writing characteristics such as movement, siant, spacing, alignment, relative size, proportion of letters. The skill and line quality of the questioned signatures is also found consistent with these qualities of the specimen signatures.

Both the questioned and the specimen signatures also agree with each other in individual writing characteristics CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 302 of 334 without any material divergence. Some of the points of similarity are detailed below:

Manner of execution of Hindi signature read as 'Nitesh Kumar', comprising the letter such as 'Na', with the nature of start, execution of staff in continuation of its body: vowel sign small 'e' in two pen operations; letter 'Ta' with movement of body curve, separate execution of staff, occasional habit of execution of body in continuation of staff; letter 'Sha', with eyelet formation at the start, movement of its body curve, separate execution of its staff; 'ka' with the nature of its start, execution of its left body, staff and right body in one operation; vovel sign small 'o', with the nature of its start in continuation of letter 'ka', direction of finish, occasional habit of separate execution of this vowel sign, letter 'Ma', with the nature of its curved start, retrace / compact eyelet formation at the foot, execution of staff in continuation of left body, occasional habit of connecting vowel sign small 'o' of the word 'ka' to the letter 'ma', separate execution of vowel sign 'Aa', letter 'Ra', with the nature of its start, movement of body curve, relatively extended finish as observed in the questioned signatures is similarly observed in the specimen signatures within the range and extent of their nature variations.

(ii) Similar habit of putting headline between them.

(iii) Similar habit of writing full Hindi signature read as 'Nitesh Kumar' between both the sets of signatures.

I have not observe any fundamental difference between both sets of signatures. Cumulative consideration of the aforesaid points of similarity observed between the questioned and specimen signatures in both general and individual writings characteristics constitute the basis of the aforesaid opinion.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 303 of 334

619. During arguments, reliance was placed upon the judgment of Murari Lal vs. State of Madhya Pradesh : 1980 AIR 531 claiming that opinion of expert is merely an expression of opinion and cannot be treated as a proof. However, corroboration made and credence added to the statement of witnesses have been completely ignored.

620. The argument is mis­premised as A5 himself brought PW25 Sh. Budh Prakash and PW28 Mohd. Shahid who were his attesting witnesses and established the execution of lease deed by A5 as Nitesh Kumar. It is hence, not a case where mere an opinion is expressed but is a cogent case of corroboration by PW54 to the statements of witnesses who have deposed qua fact of execution of lease deed by Harmesh Kumar under guise of Nitesh Kumar A5. Further, true import of the judgment is ignored which, the Hon'ble Supreme Court has observed as below :

"We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion­evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion­evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 304 of 334 handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses­the quality of credibility or incredibility being one which an expert shares with all other witnesses­, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger­prints has attained near perfection and the risk of an incorrect opinion is practically non­ existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate :

1953 S. C. 34 quoted by Professor Cross in his Evidence)."

621. Another question, which now is to be considered is as to what should be the true effect of act of execution by A5 and to what extent it can be extended to the other accused to hold them liable? In CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 305 of 334 making assessment qua above questions, I am guided by the provision of Section 10 of Indian Evidence Act, which, at this stage, is requisited to be noted and hence is reproduced as follows :

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

622. In 'The Law of Evidence" (Ratan Lal & Dhirajlal), 25 th Edition, page 339, while discussing Principle and Scope of Section 10 of Evidence Act, the first note that comes is worth reproduction and is accordingly, noted as below :

"The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the persons prosecuted, is that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attitude of individuality, so far as regards the prosecution of the common design: thus rendering whatever is done or said by anyone, in furtherance of that design, a part of the res gestae and, therefore, the fact of all.................."

623. According to Phipson (15th Edn., 2000, page 728) "Where two persons are engaged in a common enterprise, the acts and CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 306 of 334 declaration of the one in pursuance of that common purpose are admissible against the other. This rule applied in both civil and criminal cases and in the letter, whether there is a charge of conspiracy or not, provided that the crime charged was committed in pursuance of a conspiracy i.e. an agreement of two or more persons to commit it".

624. Further, Cross & Tapper on Evidence, 8TH Edition, 1995, page 654, it is observed "The admissions of one conspirator are receivable against the other if they relate to an act done in furtherance of the conspiracy, but not otherwise".

625. In Badrirai vs. State : AIR 1958 SC 953, Hon'ble Supreme Court observed :

"Section 10 of Indian Evidence Act has been deliberately enacted in order to make such acts and statements of a co­conspirator admissible against the while body of conspirators, because of the nature of crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statements of the others, unless there is a common bond linking all of them together. Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another. It is only when there is evidence of a concerted action in furtherance of a common responsibility, on the principle that everyone concerned in a conspiracy, is acting as the agent of the rest of them. As CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 307 of 334 soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration made, by anyone of the co­ conspirators, is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the subject of the conspiracy. Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to common purpose running through the chain of acts or illegal omission attributable to individual members of the conspiracy".

626. The fact that all the acts of accused have been woven through a chain of conspiracy and they have performed in furtherance of common interest in a consolidated manner, is evident and discussed in detail in foregoing paras.

627. There are clear attempts of infact causing imputation on each other by accused qua individual acts committed and omitted of their being member of common interest.

628. Ld. Sh. Abhishek Kukkar for A5, casted imputation on A3 and A4 for manipulating his client A5, whom he claimed was an illiterate person and had been manipulated and used for their mischievous and ill designs, while admitting that the real voter ID card is recovered from the possession of Nitesh Kumar, an effort was made to disown his participation in transaction by claiming that A5 did not know any Nitesh Kumar and singed as such for the first time at the instance of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 308 of 334 IO. It was claimed that since the original voter ID recovered from his house search, he cannot be connected to the forgery. However, both the above mentioned statements are misplaced, as relevant witnesses, especially PW1 Sh. Bhupal Singh and PW26 Sh. Tejpal Singh Tomar have all asserted that the voter ID card of Nitesh Kumar was presented by Harmesh Kumar at the stage of execution of lease deed. This fact is affirmed again that A5 Nitesh Kumar used a forged voter ID card Ex.PW11/E at the time of taking possession from PW11 Sh. Raj Kumar, Retd. Asstt. Director, who verified his identity through the same voter ID card before the possession was handed over to him. At the stage of receiving of possession from PW11 also he attested the voter ID card and signed requisite documents as Nitesh Kumar.

629. The fact that he can sign as "Nitesh Kumar", which fact is not denied and is rather admitted, A5 , shows his knowledge of language and displaces the argument of his illiteracy. Fact of his being capable of writing as Nitesh Kumar clearly shows the knowledge of the contents as well as of the facts that he was writing the name and signing as someone else and not as Harmesh Kumar. The factum of gullibility and haive­ness cannot be stretched to such extent that all the acts done voluntarily would be washed away under a blanket plea of illiteracy and ignorance. There is no reason shown by A5 Nitesh Kumar for obliging A3 and A4 and especially, in wake of defence CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 309 of 334 taken that he has not been advantaged monetarily. The facts pleaded as defence must have been proved by him either through effective cross­examination or by leading defence evidence. However, nothing has been brought on record and apparently new pleas are raised qua ignorance, as an afterthought.

630. I, at this stage, find the submission that prosecution has failed to show as to who forged the documents and no part of some papers have been recovered from the possession of A5 Nitesh Kumar as an outstretched and mis­premised argument.

631. The reliance on Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. in Crl. Appeal No. 1695 of 2009 arising out of SLP (Crl.) No. 6211 of 2007 and Sheila Sebastian Vs R Jawaharaj & Ors. AIR 2018 SC 2434 are hence not applicable to the facts and circumstances of the present case.

Arguments qua Section 195 Cr.P.C.

632. Further on the aspect of applicability of section 195 Cr.P.C is raised. During the submission of ld. Sh. Javed Aktar as well as ld. Sh.Abhishek Kukkar cited various judgements challenging the cognizance and claimed that there is a bar of section 195 Cr.P.C.

633. Ld. Sh. Javed Aktar in his written submissions claimed that cognizance in the present matter is bad in law due to non compliance CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 310 of 334 of section 195 Cr.PC. the provisions of which are to be made applicable. He relied upon the judgement of Daulat Ram Vs. State of Punjab AIR 1962 SC 1206 to stress the provisions of section 195 Cr.P.C. are mandatory in nature and court should apply with this provision at the time of taking cognizance. He then relied upon M.S. Ahlawat Vs. Sate (2000) 1 SCC 278, Arvind Kumar Adukia vs. State of NCT Delhi (2010) 173 DLT 738; CBI Vs. Indra Bhusan Singh & another AIR 2014 SC 1907. He elaborated the arguments by claiming that in the instant case, IPC section involved are 120B r/w Section 419, 420, 468, 471 are invoked, while on plain reading of statutory provision of section 195 (1)(a) it appears that only the section offences are punishable u/s 172 to 188 (both inclusive) of the IPC or any abatement of or attempt to commit, such offence or of any criminal conspiracy to commit such offence are only offences which falls under the ambit of this section this principle is now expanded. He averred that Hon'ble Supreme Court in Basir­Ul­Huq and Ors vs. The State of Bengal AIR 1953 SC 293, has laid down the principles that there is no bar if some distinct offence may be brought in the ambit of section 195 Cr.P.C on the basis of same facts and circumstances. He stated that by enlarging the scope of provision of the aforesaid section hence on the basis of facts and circumstances of the present case it may be determined that which similar offence may fall under the ambit of section 195(a)(a) (i) (ii) and (iii) may become CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 311 of 334 applicable in which situation a complaint in writing becomes mandatory.

634. Elaborating the law laid down in Padohi Ram (supra) he averred that Allahabad High Court has dealt with the same issue while complaint was instituted while using section 120­B read with sections 419,420,463,467 of the IPC which arose out of the allegations of offence against authority of public servant and clearly observed that where no distinct offence of the IPC is made out, then the one u/s 195 Cr.P.C, no cognizance can be taken without a complaint in writing from authority, against whom the offence has been committed. Relying on B.N. Subba Rao vs. State of Mysore AIR 1955 Kar 1; State Vs. Kathi Unad Ranning and Ors. (1955) Crl.L.J. 52 he elaborated the findings of the Hon'ble High Court to claim that as in the present case CBI has alleged that an offence has been committed against the authority of public servant were the competent members of the recommendation committee of alternative plots in L&B Department, govt. of NCT Delhi or against the authority of Principal Secretary, L&B Department, govt. of NCT of Delhi and that A­5 impersonating herself as allottee of plot succeeded in taking over the possession, it was mandatory to invoke the provisions of section 195 Cr.P.C. as it became abundantly clear that offences were committed against the authority of public servant which may be Commissioner Land Management Branch DDA or authority by Vice Chairman, CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 312 of 334 DDA. He stated that in the present case it is clear that neither the competent authority from DDA nor competent authority from L&B has filed any complaint in writing as per requirement of section 195(1)(a) of Cr.P.C. In this background he claimed that the charge has been framed u/s 13(2) and 13(1) (d) of PC Act. The offences have been committed while A­3, A­4 and A­5 are undisputedly private persons in view of the law laid down in the State of Punjab vs.Nirmal Kaur in criminal appear no. 866/2009 arising out of SLP (Crl) No. 4907/2006, the provisions of the PC Act cannot be extended to private persons which preposition has further been strengthen in N. Vijay Kumar Vs. Sate of Tamil Nadu in Crl. Appeal No. 100­ 101/2021 arising out of SLP(Cri) no. 4720/2020.

635. A similar submission has been made on record by ld. Sh.Abishek Kukkar relying on the same set of legal facts.

636. It is required at this stage to observe that same submissions almost verbatim were made before ld. Predecessor at the stage of charge. While considering the law laid down, and case law cited on record, the order on charge dated 12.08.2016 came to be passed wherein the following observations were made:

"Learned Counsel for A­2 S.S. Malhi and A­4 N.K. Gupta submitted that the cognizance in the present case is bad due to non­compliance of section 195(1)(a) Cr. P.C. It is submitted that in the present case offences were CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 313 of 334 committed either against the public office and these offences were committed as to the contempt of lawful authority of public servants. Therefore, the first offence with was committed by accused persons was under

section 177 IPC by furnishing false information to public servants and second offence was under section 181 IPC. The offence alleged under section 419/420/468/471 read with section 120 B IPC could not be accomplished until an offence under section 181 IPC was not committed with contempt of lawful authority of public servants. However, for commission of these offences. Cognizance can not be taken unless the complaint under section 195 Cr. P.C. has been filed and admittedly, no complaint has been filed in the present case. In support of his submission, Learned counsel cited Banshir Ul Huq & Ors. V. State of west Bengal [AIR 1953 AC 293} ; Padohi Ram V. Sate of Uttar Pradesh & Anr (1990) Crl.L. 495); B.N. Subba Rao v. State of Mysore (AIR 1955 Mys.) and State Vs. Kathi Unad Ranning & Ors.{(1955)Crl. L.J. 52}.

Learned counsel submitted that cognizance is bad in law on account of non compliance of Section 197 Cr. P.C. and Section 19 of PC Act. It is Stated that prosecution has failed to obtain the sanction for prosecution firm the relevant superior authority. Learned counsel submitted that no sanction under section 197 Cr. P. C. was taken. Learned counsel cited state of Maharashtra V. Budhikota Subbarao (Dr.) [1993 SCC (Crl. ) 901] Sate of Bihar V.P.P. Sharma [AIR 1991 SC 1260} S.K. Zutshi V. Bimal Debnath [AIR 2004 SC 4174} Ashok Gyanchand Vohra V. State of Maharashtra {2006 Crl. L.J. 1270} and State of Maharashtra V. Mahesh G. Jain {2013 Crl. L.J. 3092}. I It is further submitted that as per the Chapters­14 and 14.1 of CBI Crime Manual, no permission was taken form the State Government before CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 314 of 334 investigating the matter.

Firstly, I shall deal with submissions. As regards the submission that offence under section 177/182 IPC has not been invoked to overcome the procedure under section 195 Cr.P.C. the answer is very simple that it is the prerogative of prosecuting agency to charge particular person with particular offence. Unless the same amounts to camouflaging the other offence. Law is well settled that if some offence is made out for which written compliant under section 195 Cr.P.C. is required, except for that offence, the trial can be proceeded against remaining. This is so authoritatively held by Hon'ble Supreme Court in Durag Charan Naik V. State of Orissa {(1966)3 SCR 636)}.The same has been followed by our own Hon'ble High Court in Chandra Prasad Pillai V. State (3878) and Shiv Charan Vs. State {2011 SCC online Del 4279}.

In the cited judgement of Daulat Ram V. State of Punjab {AIR 1962 SC 1206}, accused was prosecuted for offence under Section 182 IPC. Admittedly, no complaint under the old code of 1898. Admittedly, Section 182 IPC falls under the category of offences which are enumerated in section 195(1) (a) Cr.P.C. that is, from section 172 IPC to Section 182 IPC. Therefore, it was held that cognizance is wrong. The ratio of the said case cannot be applied to the facts of the present case, as there are offences which do not fall within any of the offences under Section 172 IPC to section 182 IPC.

Next Judgement cited is M.S. Ahlawat V. State of Haryana & Anr. {AIR 2000 SC 168}. This case is w.r.t. perjury under section 193 IPC. Admittedly, this falls within the ambit of section 195(1)(a) Cr. P.C. There is no quarrel to legal proposition of law however, that is not CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 315 of 334 applicable to the facts of present case.

Learned counsel also cited Arvind Kumar Adukla Vs. Sate of NCT of Delhi & Anr (2010) 173 DLT 738. This judgment is w.r.t. direction under section 156(3) Cr.P.C. to register FIR. In the said case, accused persons, including court bailiff was alleged to have committed various offences and theft etc. while he had gone for execution of decree of possession. This is also not applicable to the facts of the present case as admittedly such are the court proceedings wherein, procedure under Section 340 Cr.P.C. is required to complied with. Similarly in case of CBI Vs. Indra Bhushan Singh & Ors. (AIR 2014 SC 1997), perjury was involved. In the said case, complaint was filed by Dy. Registrar of the Court without any authority conferred by Hon'ble High court and, therefore, the proceedings were not instituted on merit. There is no quarrel to the legal proposition.

Learned counsel also cited Bashir­ul­Haq V. Sate of West Bengal (AIR 1953 SC 293). Tis judgement is in fact contrary to submissions made by learned counsel. To quote:

"......12. Section 195, Criminal Procedure Code, on which the question raised is grounded provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence u/s 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 316 of 334 taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made........"

According, it was held that if two sets of offences are disclosed and for which complaint is register and other for which no complaint is registered, the court can proceed with the other offences as it is barred u/s 195 Cr.P.C. Learned counsel also cited Padohi Ram V. State of U.P. & Anrs. {1990 Crl. L.J. 495} This judgment is contrary to the constitution Bench Judgement of Iqbal Sindh Marwah V. Meenakshi Marwah (2005) 4 SCC 370, as in the said case, it was held by Hon'ble Supreme Court that there is distinction off forgery having been committed outside the court and inside the court. For forgery having been committed outside the court, complaint under section 195 Cr. P.C. is not required.

Learned counsel also cited B.N. Subha Rao V. State of Mysore {(1955) Crl. L. J. 160}. The said case is w.r.t Section 172/182 Cr.P.C. These offences are admittedly covered under section 195 (1) (a) Cr. P.C. and therefore, complaint is necessary. There is no quarrel to the legal proposition. Similar is the case w.r.t judgment of Honble Gujrat High Court titled State V. Kathi Unad Rannning & Ors. 1955 Crl. L.J. 52 this case is w.r.t to offence under section 188 IPC; this is squarely covered under section 195 Cr.P.C. Therefore, the complaint is required.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 317 of 334

There is no quarrel to the legal proposition. "

637. It is again observed that the order on charge has not been put to challenge. However, since the submissions are premised on the legal assertions and also demonstrated, probable discussions on facts and law being mixed question, I propose to ponder thereupon and after due consideration the following observations are noted. At the threshold the provisions of section 195 Cr.P.C are reproduced as below:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1)No Court shall take cognizance­

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii)of any abetment of, or attempt to commit, such offence, or

(iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 318 of 334

(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub­ clause (i) or sub­ clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2)Where a complaint has been made by a public servant under clause (a) of sub­ section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3)In clause (b) of sub­ section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4)For the purposes of clause (b) of sub­ section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:

Provided that­

(a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 319 of 334

(b)where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

638. In Iqbal Singh Marwah vs. Meenakshi Marwah, AIR 2005 SC 2119 the Hon'ble Supreme Court while discussing the scope and applicability observed as below:

"Section 19(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with respect to the document after it has been produced or in evidence in a proceeding in any court i.e., during the time when the document was in "custodia legus".

639. A similar observation was made in Ram Dhan Vs. State of U.P. AIR 2012 SC 2513 wherein it is held that if the fabrication of false evidence takes place or the document is tampered with before filing in court, the provisions of section 195 Cr.P.C would not be attracted. It is only when the document is tampered with after filing in the court then the bar provided u/s 195 Cr.P.C would be attracted. Similar observation has been reiterated in P. Swaroopa Rani Vs. M. Hari Narayana, AIR 2008 SC 1884, Mukesh Chand Sharma vs. State of UP, AIR 2010 SC812.

640. In Jagran Vs. State of U.P. 2008 Crl.LJ (NOC) 1119 (All), it is observed that unless a document which is in custody of court is forged the section is not attracted.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 320 of 334

641. Coming to the facts of the present case no such material is available. It is claimed that the provisions are arising out of interpretation of section 195A (i) (ii) & (iii) is available in case of violations of section 172 to 188 both inclusive. It is required at this stage to observe that while opportunity was available of through with the ld defence counsel, no attempt whatsoever is made to subject any of the relevant official witness including PW­44 Smt. Usha Chaturvedi, PW48 Sh. Prakash Kumar and/or the IO PW­63 Insp. A.K. Saini who should have been subjected to cross examination on this aspect to suggest existence of any such material which could be held attracted. In circumstances above, the averments raised on record did not find any support or merit and held that there is no merit being disclosed by above averments.

Charge under Section 13(2) r/w Section 13(1)(d) P.C. Act

642. After having made the discussions of all the relevant provisions for which the accused persons have been charged now comes the provision pertaining to section 13(1)(d) read with section 13(2) of PC Act. The law relating to the provision under section 13(1)(d) is crystalized and its relevant portion is reproduced :

"If any ­

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 321 of 334

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest"

643. While the foregoing paragraphs clearly establish the acts and omissions imputable to A­2 S.S. Malhi [proceedings against A­1 Badrul Islam (since deceased) (other public servant) are abated] who has at the relevant time misconducted himself in a manner to cause advantage in favour of A­5 Nitesh Kumar. In order to attain brevity the discussion is not repeated or reproduced herein below, however, it is sufficient to say that all necessary instances of participation in pursuit of mischief whereby the official position and authority had been manipulated and compromised in order to abuse his position as public servant resulting in obtaining of plot no. 66, Block­B, Sector­ 13, Dwarka in the name of A­5 Nitesh Kumar have been detailed sufficiently.

644. No rebuttal to the aforementioned provisions subsequently has been made. In view of the judgement in Runu Ghosh Vs. CBI in Crl. Appeal No. 482/2002 (DoD : 21.12.2011), the law has been crystalized wherein the following relevant paras are reproduced herein below:

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 322 of 334

"74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant‟s actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute".

In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:

―public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options­­ Further in Noida Entrepreneurs Association v. Noida & Ors ., (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), The court held that:

The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee­­

75. It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise.

* * *

78. Therefore, when a public servant‟s decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 323 of 334 responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest.

This offence­ under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of Crl.A.Nos. 482/02, 509/02 & 536/02 Page 57 offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.

645. Further in Neera Yadav Vs. CBI in Crl. Appeal No. 253 of 2017 the observations have been made in para 15:

"15. Section 13 of the P.C. Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of 'criminal misconduct'. Sub­section (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the P.C. Act lays down the essentials and punishment respectively for the offence of 'criminal misconduct' by a public servant. Section 13(1)(d) reads as under:

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 324 of 334

"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct, CA NO.253 OF 2017

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"

A perusal of the above provision makes it clear that if the elements of any of the three sub­clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under Section 13(1)(d).

Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct.

Illegality in Allotment of Plot No.B­002 Sector 32 and subsequent conversion to Plot No.26, Sector­14A"

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 325 of 334

646. Further, in view of the judgment of Bimbahadur (supra), P. Naddamal vs. State (MANU/SC/0455/1999), it is establihsed that all the accused persons have connected in furtherance of their community of interest to extract gain of their ill designs and intention as has been discussed in detail in foregoing paras and is not being reproduced herein.

647. While the accusations against the accused persons have already been determined and the relevant arguments raised by ld. Defence counsels are dealt with at the appropriate stages, one argument raised by Sh. Javed Akhtar is now being noted for discussion as he alleged that the IO engaged himself in an act of "pick and choose" while preparing and formulating the charge sheet, only qua the accused A­1 to A­5 in this case while clearly ignoring the material against the other persons named earlier in the preliminary inquiry.

648. I find force in this assertion made by him. As is shown on record PW­61 Sh. Ranjeet Kumar Pandey, Insp. CBI, Special Crime Team, who was entrusted with the preliminary inquiry no. PE 5 (S) 2014 which report he exhibited on record as Ex.PW61/A and during his oral statement in the court he named Sh. Pramod Garg as one of the suspects of crime being financier of the transaction in issue. In pursuance of which it was incumbent upon the IO to investigate the CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 326 of 334 role of Sh. Pramod Kumar Garg, however, it appears that the material evidence in this regard is deliberately ignored and no attention is paid to vital material supporting allegation of indulgence against Pramod Garg.

649. While through the statement of PW­49 Sh. Ashok Kumar Arora, brother of deceased Smt. Sudesh Madan it has come on record as evidence that Pramod Kumar Garg proposed to finance the transactions for purchase of the plot in question and persuaded deceased Smt. Sudesh Madan to put on stake 50% of the total amount financed which was disclosed as Rs. 16 lakhs of which interest @ 2% was being charged. Against this 50% stake her name was included as a stake holder of 50 percent of plot bearing no. 66, Block­B, Pocket No. 10, Sector­13, Dwarka in the Agreement to Sell Ex.PW17/B. She was also made a Power of Attorney Holder of Nitesh Kumar vide Ex.PW42/B.

650. Similar statement has come on record from PW­50 Smt. Ramesh Kumari who was introduced as part purchaser of 25% share of plot bearing no. 66, Block­B, Pocket No. 10, Sector­13, Dwarka by her brother Sh. Inderjeet Bayana, who knew Sh. Pramod Garg. She stated " I do not know the business of Sh. Pramod Garg, however, I have financed Rs. 4 lakhs for the property situated at Dwarka, Delhi. Sh. Pramod Garg included my name in Agreement to Sell for 25% CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 327 of 334 share" She identified her signatures and stated that the sale consideration was Rs. 16,14,000/­.

651. Besides her PW­51 Smt. Monica Garg, Sister­in­law of Sh. Pramod Garg deposed that Sh. Pramod Garg was a property dealer at Dwarka. She came to know Smt. Sudesh Madan and Smt. Ramesh Kumari only at the time of execution of Agreement to Sell. She identified the agreement to sell already Ex.PW17/B and stated "This Agreement to Sell was arranged by my brother­in­law Pramod Garg". The aforesaid facts clearly show that while the payments were transacted from the account of A­3 Neeru Kumar Gupta and A­4 Smt. Sangeeta Gupta, the amounts did not belong to these two accused but were in fact financed by Sh. Pramod Garg. This fact is then strengthened from statement of account of Sh. Neeru Kumar Gupta and Smt. Sangeeta Gupta from 01.04.2004 to 30.04.2004 Ex.PW13/E and Ex.PW13/G respectively which statements are supported with certificate u/s 2A of Bankers Book of Evidence Act Ex.PW22/D and Ex.PW22/G respectively. The material entries in these two accounts are reproduced in the format below:

Neeru Kumar Gupta Transaction Date Value Date Narration Credit amount Balance 05.07.2004 05.07.2004 By Cash 4,00,000 4,01,216,22CR 05.07.2004 05.07.2004 By Cash 4,00,000 8,01,216,22CR CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 328 of 334 Sangeeta Gupta Transaction Date Value Date Narration Credit amount Balance 05.07.2004 05.07.2004 By Cash 4,00,000 410,920.00CR 05.07.2004 05.07.2004 By Cash 3,90,000 800,920.00CR

652. Apparently both these amounts have been deposited by cash in the above account numbers with the intention to support clearance of cheques in favour of DDA, request for which were made on 06.07.2003 by A­3 and A­4 through the aforementioned accounts. It is unexplained that how these entries have not been probed and what has led the IO to conveniently ignore the existence of evidence apparently showing finance of payments which is then used for paying the cost against allotment in favour of Nitesh Kumar.

653. IO has made no effort to even investigate the existence of any bank account in the name of A­5 Nitesh Kumar after having seized the documents ie.. Agreement to Sell Ex.PW17/A (Agreement to Sell is Ex.PW42/C, it appears that inadvertently witnesses have exhibited the documents Ex.PW17/B, however the document which is exhibited is Ex.PW42/C) which is a registered document, the fact of registration of which is proved by PW­42 Sh. Deshbandu Gosain, who has brought the certified copy of both documents show receipt of payment of Rs. 16,14,000/­ in favour of Nitesh Kumar. While the amount of payment is reflected on Agreement to Sell, no receipt of CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 329 of 334 payment having been executed by Nitesh Kumar and/or detail of any amount where the received amount is deposited is collected. It is material to note that in absence of valuable consideration having been passed on, the transaction executed is illegal transaction and a sham act. Apparently by paying the cost of Rs.91,000/­ towards the stamp duty the attempt is made to give a legal hue to an illegal transaction by accused. The IO has made no attempt to even collect any ITR of Nitesh Kumar on relevant period to show payment of tax against the receipt of payment which strengthens the fact of it being a mischievous transaction.

654. No reason as such is disclosed in charge sheet explaining in this omission to connect the material allegations against the accused. The participation of Pramod Garg is then proved by PW­42 Sh. Deshbandhu Gosain, who showed the signature of Pramod Garg on Agreement to Sell, which was exhibited as Ex.PW42/D. The presence of Pramod Garg is admitted by PW­49 Sh. Ashok Kumar Arora, PW­ 50 Smt. Ramesh Kumari, and PW­51 Smt. Monica Garg.

655. In background of above circumstances, the source of payment for purchase of plot 66, Block­B, Pocket No. 10, Sector­13, Dwarka against the allotment, is shown to have been made by Pramod Garg, however, the IO did not name him in the FIR and apparently for deliberate reasons made no investigation to probe against Sh. Pramod Garg.

CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 330 of 334

656. The IO has failed to even investigate the source of knowledge of accused persons in identifying the land i.e. of Khasra nos. 1640, 1641, 1642 and 1643 of Village Rangpuri , the award of which had been made in 1958/66/67 and the acquisition took place in favour of Gram Sabha @ Government, which fact itself is suggestive that apart from A1 to A5 some more hands had joined in conducting searches of such lands which were actually government properties so that the claim qua them is not resisted at any level through a genuine land owner.

657. While the above flaws are noted, these are not detrimental to the cause of justice and do not constitute sufficient grounds for causing any advantage to the named accused. Even otherwise it is settled law that defective investigation in itself cannot be a ground for acquittal. As though there is negligence on the part of investigating agency, no benefit should is to be passed on to the accused for no material shown on record, which may lead to establish any miscarriage of justice qua accused persons. Reliance is placed in this regard on State of Tamil Nadu Tr. Inspector of Police Vs. N. Suresh Ranjan & Ors (2014) 11 SCC 709; Karnel Singh Vs. The Sate of MP AIR 1995 SC 2472, wherein it is held "In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing CBI Vs. Badrul Islam & Ors. CC No. 301/19 RC. No. 4(A)/15 Page 331 of 334 into the hands of the investigating officer if the investigation is designedly defective."

658. In view of which though no advantage is gained by accused A­2 to A­5 qua whom the elaborate discussions on the available evidence is made, it is pertinent to issue a direction to Director, CBI to hold a Disciplinary Inquiry against the IO to probe the reasons and intentions behind the omissions noted above and also to make an inquiry into the lapses of supervisory authorities who ignored material commissions in chrage­sheet before approving filing of chrage­sheet permitting major lapses and deletion of names of suspects. The report be furnished on or before 29.04.2022.

659. In view of the detailed discussion and the conclusions drawn by me hereinabove, my final conclusions as regards various offences, for which charges were framed against the accused persons, may be now summarized as under :

Charges Framed S. Name of Final decision No. accused Charges Charges common to all separately framed 1 A­1 Badrul Islam expired during the trial and proceedings against him stands abated vide order 11.08.2021.

 CBI Vs. Badrul Islam & Ors.    CC No. 301/19    RC. No. 4(A)/15   Page 332 of 334
 2       A­2            S.S. U/s 120­B IPC;     U/Sec. 13(2)       Convicted for the
        Malhi                                  r/w Section        offences
                              U/s 120B r/w 13(1)(d) of            punishable    U/s
                              Sec.419// PC Act              120­B IPC;
                              IPC and Sec. 471
                              r/w Sec 468 IPC                     U/s 120B r/w
                              r/w Sec. 13(2)                      Sec.419/420/467
                              r/w Sec 13(1)(d)                    IPC and Sec. 471
                              of PC Act                           r/w Sec 468 IPC
                                                                  r/w Sec. 13(2) r/w
                                                                  Sec 13(1)(d) of PC
                                                                  Act

                                                                  AND

                                                                  U/s 13(2) r/w Sec
                                                                  13(1)(d) of PC Act

3       A­3 Neeru U/s 120­B IPC;   No charge                      Convicted for the
        Kumar                      framed                         offences
        Gupta     U/s 120B r/w separately                         punishable    U/s
                  Sec.419/420/467                                 120­B IPC;
                  IPC and Sec. 471
                  r/w Sec 468 IPC                                 U/s 120B r/w
                  r/w Sec. 13(2)                                  Sec.419/420/467
                  r/w Sec 13(1)(d)                                IPC and Sec. 471
                  of PC Act                                       r/w Sec 468 IPC
                                                                  r/w Sec. 13(2) r/w
                                                                  Sec 13(1)(d) of PC
                                                                  Act

4       A­4 Sangeeta U/s 120­B IPC;   No charge                   Convicted for the
        Gupta                         framed                      offences
                     U/s 120B r/w separately                      punishable    U/s
                     Sec.419/420/467                              120­B IPC;
                     IPC and Sec. 471

CBI Vs. Badrul Islam & Ors.     CC No. 301/19   RC. No. 4(A)/15     Page 333 of 334
                                r/w Sec 468 IPC                       U/s 120B r/w
                               r/w Sec. 13(2)                        Sec.419/420/467
                               r/w Sec 13(1)(d)                      IPC and Sec. 471
                               of PC Act                             r/w Sec 468 IPC
                                                                     r/w Sec. 13(2) r/w
                                                                     Sec 13(1)(d) of PC
                                                                     Act

 5.      A­5 Nitesh U/s 120­B IPC;                 U/s419/420/       Convicted for the
         Kumar   @                                 467 IPC and       offences
         Harmesh    U/s 120B r/w                   Sec. 471 r/w      punishable    U/s
         Kumar      Sec.419/420/467                Sec 468 IPC       120­B IPC;
                    IPC and Sec. 471
                    r/w Sec 468 IPC                                  U/s 120B r/w
                    r/w Sec. 13(2)                                   Sec.419/420/467
                    r/w Sec 13(1)(d)                                 IPC and Sec. 471
                    of PC Act                                        r/w Sec 468 IPC
                                                                     r/w Sec. 13(2) r/w
                                                                     Sec 13(1)(d) of PC
                                                                     Act




Announced in the open Court                              (Nirja Bhatia)
on 21st day of April, 2022                        Spl. Judge (PC Act) CBI­03
                                                        RADC/New Delhi




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