Delhi District Court
Cbi vs . Suresh Kr. Lakra Etc. Judgement Dt. ... on 7 May, 2016
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
IN THE COURT OF SPECIAL JUDGE03,
(PREVENTION OF CORRUPTION ACT) (CBI) PHC, NEW DELHI
CC No. 04/13
RC No. 3A/2009/ACUI/ND
Central Bureau of Investigation
Versus
(1) Suresh Kumar Lakra
S/o Sh. Satbir Singh Lakra
R/o A2/274, Janak Puri,
New Delhi
(2) Jaibir Sherawat
S/o Sh. Sahib Singh
R/o Flat No. 61, Pocket24,
Sec. 24, Sangam Apptt.
Rohini, New Delhi.
(3) Umesh Parashar
S/o Sh. Krishan Kumar Parashar
R/o 40/8, 3rd Floor,
East Patel Nagar, New Delhi
(4) Virender Pal
S/o Sh. Ram Kumar
R/o H. No. 1632,
Pana Mamurpur,
Pandit Balkishan wali Gali,
Narela, New Delhi
CC No. 4/2013 Page 1 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
(5) Piyush Goel
S/o Sh. Prakash Chand Goel
R/o 14A/42, WEA,
Karol Bagh, New Delhi
(6) Mukesh Gupta
S/o Sh. J. B. Gupta
R/o 55/4439, Raigarpur,
Karol Bagh, New Delhi
Date of filing of chargesheet : 18.12.2009
Date of conclusion of final arguments : 18.04.2016
Date of announcement of judgement : 07.05.2016
JUDGEMENT :
This FIR was registered on the allegations that during the period Nov.Dec., 2008, certain officials of Municipal Corporation Delhi (MCD) (i.e. A1 to A4) while working in MCD, Karol Bagh Zone, New Delhi, entered into a criminal conspiracy amongst themselves and with one Mukesh (A6), a middleman and Piyush Goel (A5). In furtherance of said conspiracy, the officials of MCD demanded and accepted illegal gratification to the tune of Rs.17 lakhs from Piyush Goel (A6).
CC No. 4/2013 Page 2 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 It was also alleged that the said officials of MCD and middlemen, are running a racket to extract money from various building owners in Karol Bagh, New Delhi area in lieu of inaction against illegal construction etc. The modusoperandi adopted is in that they permit unauthorized construction, allow illegal commercial activities in residential areas, facilitate desealing of earlier sealed properties etc., in lieu of illegal gratification. They serve genuine & bogus show cause notices on various building owners and raise vague queries in order to cast an impression that the property is vulnerable to sealing and demolition by the MCD. They also resort to bogus sealing to threaten & terrorise the owners of buildings. Thus, by threatening the party they negotiate the bribe amount which is demanded and collected by the MCD officials either directly or through middlemen. The bribe amount is subsequently distributed amongst themselves.
It was alleged that during the period Nov.Dec., 2008, Jaibir Sherawat, Umesh Parashar, Virender Pal in conspiracy with each other, demanded directly as well as through Mukesh, a bribe of Rs.37 lakh from one Piyush Goel to allow unauthorized construction at property bearing No. 13/28, WEA, Karol Bagh, New Delhi. Out of Rs.37 lakhs, CC No. 4/2013 Page 3 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 amount of Rs.17 lakhs was demanded and accepted by them as illegal gratification for the lower floor. The remaining amount of Rs.20 lakhs was demanded for the shops at the upper floor @ Rs.1 lakh per shop.
Investigation has revealed that the property no. 13/28, WEA, Karol Bagh, New Delhi was sold by Dr. Deepak Oberoi and Mrs. Jyoti Oberoi during Feb., 2006 to four buyers including S.K. Gupta & Sons, HUF through its Karta S.K. Gupta each having ownership of 1/4th undivided shares. At the time of sale, the garage measuring 10' X 15' at the ground floor was under tenancy. The 3/4th of undivided property i.e. the except the portion in the name of S.K. Gupta and sons (HUF) was further purchased by M/s Prime Education Instructions Pvt. Ltd., during June, 2008. S.K. Gupta (PW31) alongwith Piyush Goel (A5) alongwith and others are Directions in the company.
Investigation has further revealed that the house tax assessment of the property was carried out for the first time during the year 1960. As per the assessment, the existing structure of the building at that time was as under: a. Ground Floor: It comprised of two portions each having of CC No. 4/2013 Page 4 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 two bed rooms, one store, one kitchen, one bath room/WC, used for residential purpose. One small garage at ground floor was under tenancy for commercial purpose. b. First Floor: Same as that at ground floor, except the garage. c. 2nd Floor: Barasati consisting of two rooms.
As per the house tax return, for the financial year 200506, the property was being used for residential purpose. The assessee had shown the covered area as 141 Sq.Mt. at the ground floor and the first floor and 128 Sq.Mt. at the second floor. However, in the self assessments for the financial years 200607 onwards, filed by the new assessee, it is declared that the ground floor was being used for commercial purpose and the first floor was also being used for commercial purpose but was lying vacant. During investigation, the ground and first floor of the 'property' was found to consist of shops with shutters on the entire plot area and not the residential premises. The structural valuation of the existing structure at the 'property' has been carried out by the Experts of MCD. However, the report is still awaited.
CC No. 4/2013 Page 5 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Investigation has revealed that the property has been reconstructed by Piyush Goel (A5) during the year 200809 and it was under construction during the period October, 2008 to April, 2009, which was in the knowledge of the accused public servants. Utility of the property has changed from residential premises to commercial during this period.
Investigation has further revealed that as per the Master Plan 2012 passed on 07.02.2007, some areas of the Delhi including the Karol Bagh Zone have been notified as Special Area. The redevelopment scheme for such areas is to be notified by the MCD within three years i.e. up to Feb., 2010. Till that time the status quo of the buildings in these areas should be maintained. No fresh building activities in these areas are permitted without the permission of the competent authority. For the fresh construction at the property in question, no permission was sought from the competent authority and it was unauthorizedly reconstructed.
Investigation has also revealed that during the year 2007, properties in certain areas of Delhi were permitted to get registered for mixed land use if some commercial activity were already been CC No. 4/2013 Page 6 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 carried out i.e. prior to Feb., 2007, on their ground floor. However, the remaining floors could be used for residential purpose only. During August, 2007, the 'Property' owner declared that it was under
mixed land use and the ground floor was being used for mobile accessories shop. However, the commercial use of the property commenced only during the year 2009, when the shops at the ground floor was sold and then they become operational. The conversion charges for mixed land use including Rs. 1000/ as registration fee were also deposited. As asessee had deposited only Rs. 1000/ as registration charges, it signifies that as per declaration the entire ground floor comprised of one commercial unit and not 22 shops as found functional during investigation. Thus, the declaration was deliberately made false so that the premises could to commercial use later on.
Investigation has further revealed that the Building Department of MCD keep check on the unauthorized constructions. Primarily, it is the duty of the concerned JE to keep on unauthorized construction in area under his jurisdiction by making physical visits. He also submits Weekly Area Inspection Certificate in prescribed proforma, which contains details of unauthorized construction noticed by him during CC No. 4/2013 Page 7 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 his visits, if any. Any construction without sanction building plan or in violation of the building plan will be terned as an unauthorized construction and it can be demolished. Ongoing unauthorized construction can be demolished at any time as a preventive measure. However, buildings, where the construction has acquired shape, can be demolished only after they are booked and demolition order is passed. In such cases, a FIR under Delhi Municipal Corporation (DMC) Act, 1957, is registered by the concerned JE. Therefore, the concerned AE issues the First Show Cause Notice, which is to be immediately served by the JE. The owner is given three working days time to respond and/or to certify the construction. If the owner fails to give convincing reply within stipulated period, the AE issued a Second Show Cause Notice (Demolition Order) giving the owner six days time to demolish the unauthorized construction himself, otherwise it could be demolished by MCD. After the demolition action is taken, the action taken is recorded on the Demolition File and Missal Band Register by the JE concerned.
The Building Department of MCD receives complaints regarding unauthorized constructions from various sources including from the general public. A monthly report on the complaints received and CC No. 4/2013 Page 8 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 action taken, is prepared which is signed by the concerned AE and JE. Investigation has revealed that a complaint was received in the Building Department of Karol Bagh Zone, MCD, Delhi on 13.03.2009 and was marked to S. K. Lakra (A1) on 17.03.2009 who in turn marked the same to Jaibir Sherawat (A2) on 20.03.2009. In the monthly report submitted on 27.04.2009, Jaibir Sherawat and S. K. Lakra deliberately concealed the fact of unauthorized construction at the 'Property' and reported that only repairing work was found at the site. In his Weekly Area Inspection report for the month of March, 2009 also, Jaibir Sherawat deliberately did not report any unauthorized construction at the 'property. Another complaint regarding unauthorized construction at the 'property' was received the Zone on 28.04.2009 and was marked to S. K. Lakra on 29.04.2009. An FIR no. 40731 dt. 01.05.2009 for unauthorized construction 'on completion' was issued by Jaibir Sherawat. The First Show Causes Notice No. 5181 was issued by S. K. Lakra on 01.05.2009. As per FIR and the Show Cause Notice, the unauthorized construction included reerection of partitionwall, fixing of circles on ground floor and first floor and two rooms and toilet at second floor. However, Jaibir Sherawat in conspiracy with S. K. Lakra and others, with ulterior motive, did not serve the notice on owner ever after three weeks, in CC No. 4/2013 Page 9 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 order to save the 'property' from the action of demolition.
During investigation it is revealed that the Special Unit, CBI, New Delhi, received some source information that the accused persons were involved in corrupt and illegal activities. After obtaining orders of the competent authority, it taped telephonic conversation amongst them held during the period November, 2008 to April, 2009 on the concerned mobile phone numbers. The said taped telephonic conversations (113 in number) were collected and analysed during investigation. The conversations established that Jaibir Sherawat (A
2) had been in touch with Umesh Parashar (A3), Virrender Pal (A4), Mukehs Gupta (A6), Piyush Goel (A5) and S. K. Lakra (A1) regarding the unauthorized construction being carried out at the 'property'. He has also demanded and accepted the bribe from Piyush Goel either directly or through Virender Pal and Mukesh Gupta for allowing unauthorized construction at the 'Property'. He also asked Virender Pal (A4) to pay 1 lakh to Umesh Parashar (A3). The conversation also shows that Virender Pal (A4) on the direction of his superior i.e. Jaibir Sherawat, has demanded and accepted the bribe to the tune of Rs. 37.60 lakhs from Piyush Goel either directly or through Mukesh Gupta for allowing unauthorized construction at the CC No. 4/2013 Page 10 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 'Property'. Umesh Parashar (A3), though not posted in the Building Department, Karol Bagh Zone, MCD, Delhi at that time, has created impression on Virender Pal, Mukesh Gupta and others that he was likely to be transferred soon to Karol Bagh Zone, New Delhi. The conversation shows payment of the bribe by Piyush Goel to Virender Pal and to Umesh Parashar. His offer of bribe is of the nature of fait accompli. The conversation shows that Mukesh Gupta (A6) has played role of a mediator to ensure smooth transaction of bribe amount. He was in touch with Jaibir Sherawat, Umesh Parashar, Virender Pal and Piyush Goel. He was also insisting Piyush Goel to make payments to Virender Pal for the unauthorized construction being carried out by him at the 'Property'. The conversation also shows that unauthorized construction, demanded and acceptance of bribe, was in the knowledge of S. K. Lakra and he has conspired with other accused in this regard. He had asked Jaibir Sherawat to get two rooms constructed at the top floor of the 'Property', so that the action of demolition could be shown to be taken on the same in order to save the entire building from demolition. He also discusses the receipt of complaint of unauthorized construction at the 'Property'. The payment of the bribe by Piyush Goel is mentioned 'benami' in his diary, containing details of expenditures incurred towards CC No. 4/2013 Page 11 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 construction of the 'Property'. These payments are corroborated from the conversation, wherein, the amount of bribe paid by Piyush Goel tallies with the amount reflected in the Daily Diary, as mentioned below:
Date Amount paid as per the Amount paid as per the taped Daily Diary telephonic conversation 20.11.2008 Rs. 5,00,000/ Piyush Note: As per the entries, a tells Mukesh that he has already paid total amount of Rs. 10.10 Rs. 11 lakhs to MCD people. lakhs had been paid till date 11.12.2008 Rs. 2,00,000/ After the money was arranged, Piyush asked Virender Pal to come tow collect "Kharcha".
17.12.2008 Rs. 1,00,000/ Piyush asked Mukesh to arrange "one
peti". He subsequently, asked
Virender Pal to collect "single gaddi".
24.12.2008 Rs. 1,50,000/ Piyush asked Virender to collect "1 ½
File".
25.12.2008 Rs. 1, 50, 000/ Mukesh asked Piyush to send money
to Parasharw.
06.01.2009 Rs. 2,00,000/ Piyush tells Mukesh that he was
paying Ts. 2 lakhs to Virender Pal.
He also asked Virender Pal to come
his house to collect the money.
13.01.2009 Rs. 5,00, 000/ Piyush asked Virender to collect
"Five" from the shop.
21.01.2009 Rs. 1,50,000/ Piyush asked Jaibir Sehrawat to
whom he would pay "1 1/2".
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The analysis of conversations shows that in order to disguise the demand and acceptance of bribe, the accused persons, at various places in the conversations, have used the coded word "File" to denote the amount in "Lakh".
The call details Records of the service providers for the phone numbers used by the accused persons corroborate the calls in question taped by Special Unit, CBI, New Delhi. All the phones, except those of S. K. Lakra and Bijender Singh have been seized either from the residences of the accused persons during searches or they have produced the same suomoto during the investigation. Umesh Parashar has been using the official phone number 9717788506, issued to him by MCD. The phone number 9810076110 used by Piyush Goel exists in personal name. The telephone number 9818802431 used by Jaibir Sherawat is issued in the name of his relative/friend Sunil Khatri. However, during the relevant period, it was uner the use with Jaibir Sherawat. The phone number 9811229954 used by Mukesh Gupta exists in the name of his sisterin law (Bhabhi) Mrs. Seema Garg, but was being used by Mukesh Gupta, during the relevant period. The phone number 9968493939 used by Virender Pal exist in the name of his mother.
CC No. 4/2013 Page 13 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Investigation did not reveal any mensrea on part of Bijender Singh. He has few conversation only with Virender Pal. However, in none of the conversation he has demanded or accepted/collected bribe. There is nothing in conversation which shows that he has collected the money on behalf of any other public servant for allowing unauthorized construction at the 'property'. The investigation also did not reveal that accused public servant have any bribe for allowing unauthorized construction at 7A/36, WEA Karol Bagh, New Delhi. The entire incriminating conversation pertain to property no. 13/28, WEA Karol Bagh, New Delhi.
Investigation has thus, revealed that the 'property' was not deliberately booked for unauthorized construction, by accused public servants in conspiracy with the accused private person. It was booked only after the complaint in this regard was received and the construction was completed. Even then, the Show Cause Notice was not deliberately served with ulterior motive to protect the 'Property' from the action of demolition. The fact of unauthorized construction was also deliberately concerned in the Weekly Inspection Report and the monthly report on complaints. The accused public servant have CC No. 4/2013 Page 14 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 demanded and accepted bribe for allowing unauthorized construction at the 'property'. During investigation voice samples of accused persons were taken and were sent to CFSL along with the questioned voices in the CDs containing intercepted calls. As per the report of CFSL both matched. The diary was also sent to CFSL for comparison with hand writing of Piyush Goel but as per the report the same did not tally. The sanction under Section 19 of P. C. Act was accorded to prosecute the accused persons.
The charge sheet was filed, cognizance was taken and accused persons were summoned. After completion of the requirements under Section 207 CrPC, arguments on point of charge were heard.
CHARGE After hearing the arguments, a charge u/s 120B r/w Sec. 7,12 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act 1988 against all the accused persons were framed.
Separate charge u/s 7 & 13(2) r/w 13(1) (d) of Prevention of Corruption Act was framed against Jaibir Sherawat (A2).
CC No. 4/2013 Page 15 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Separate charge u/s 7 & 13(2) r/w 13(1) (d) of Prevention of Corruption Act was framed against Umesh Parashar (A3).
Separate charge u/s 7 & 13(2) r/w 13(1) (d) of Prevention of Corruption Act was framed against Virender Pal (A4).
A charge u/s 12 PC Act 1988 was framed against Piyush Goel (A5).
All the accused persons pleaded not guilty to the charges and claimed trial.
Prosecution Evidence Prosecution examined following witnesses in support of its case :
S. No. PWs Name of Witnesses Pages No.
1. PW1 K. S. Mehra, Commissioner, MCD, Town Hall 6367
2. PW2 Manoj Kumar Verma, Executive Eingineer, MCD 69111
Building Dept, Karol Bagh Zone
3. PW3 Mrs. Jyoti Oberoi 113121
4. PW4 Sudesh Kumar Jain, Zonal Inspector, Property Tax 123125
Deptt, MCD
5. PW5 Pawan Kumar, Tax Clerk in Building Dept, MCD 127175
6. PW6 Anil Dalal, Chief Exwcutive with M/s Victor 177181
Infotech
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7. PW7 Anil Gupta, Supplier of building material 183185
8. PW8 T. Nagesh, LDC in Building Dept 187277
9. PW9 Shakti Nangia 279281
10. PW10 Tajinder Singh 283285
11. PW11 M. C. Kashyap, Dy. SP, Special Unit, CBI 287303
12. PW12 Anuj Bhatia, Nodal Officer, Vodafone 305307
13. PW13 Chain Sukh, Baildar, MCD, Karol Bagh Zone 309311
14. PW14 R. K. Singh, Nodal Officer, Airtel 313317
15. PW15 Rakesh Soni, Junior Telecom Officer, Tis Hazari 319323
Exchange
16. PW16 Ravinder Kumar 325327
17. PW17 Mukesh Goel 329383
18. PW18 Neeraj Pahwa 385387
19. PW19 Narender Thakur 389391
20. PW20 Nirmal Singh 393395
21. PW21 Gurmeet Singh 397399
22. PW22 Kailash Chand Aggarwal 401403
23. PW23 Kishan Singh, Retd Drawing Officer, Archaeological 405407
Survey of India, Janpath
24. PW24 Nagender Mandal, Assistant, DDA 409417
25. PW25 Deepak Kumar Tanwar, Scientific Officer GradeI 419529
(Physics), CFSL
26. PW26 Ms. Seema Garg 531533
27. PW27 Sunil Khatri 535543
28. PW28 Prakash Chand Goel 545549
29. PW29 Vijay Dutt Sharma 551555
30. PW30 Sher Singh Mittal 557559
31. PW31 Satish Gupta 561569
32. PW32 Bharat Bhushan Sharma, Officer, PNB, Rajendra 571577
Place
33. PW33 Sunil Kumar, Principal Staff Officer, MHA 579581
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34. PW34 A. D. Tiwari, Sr. Scientific Officer, CFSL 583593
35. PW35 M. Krishna, Assistant, GEQD, CFSL, Hyderabad 595601
36. PW36 V. M. Mittal, DSP, CBI/ACB 603677
Statements under Section 313 Cr.PC
In their statements under Section 313 CrPC all the accused persons denied the allegations against them.
Defence Evidence Mahipal Singh, Junior Engineer was examined in defence as DW1 by accused Jaibir Sherawat (A2).
The other accused persons did not examine any defence witness.
Sanction under Section 19 of Prevention of Corruption Act 1982.
Accused Suresh Kumar Lakra (A1) is Assistant Engineer with MCD. K. S. Mehra (PW1) the Commissioner of MCD accorded sanction to prosecute him vide sanction order Ex.PW1/B. Accused Jaibir Sehrawat (A2) was Junior Engineer with MCD. K. S. Mehra (PW1) the Commissioner of MCD accorded sanction to prosecute him vide sanction order Ex.PW1/A. CC No. 4/2013 Page 18 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Accused Umesh Parashar (A3) was a Junior Engineer with MCD. K. S. Mehra (PW1) the Commissioner of MCD accorded sanction to prosecute him vide sanction order Ex.PW1/C. Accused Virender Pal (A4) was Beldar with MCD. K. S. Mehra (PW1) the Commissioner of MCD accorded sanction to prosecute him vide sanction order Ex.PW1/D. PW1 testified that he was competent to remove the aforesaid public servants from service.
Ld. Defence Counsels have drawn my attention to the cross examination of PW1, who has stated that before according the sanction, he did not hear the recorded conversation. It is argued that if complete record has not been produced before the complete authority, such authority would not be a capacity to take an informed decision on the question of according of sanction to prosecute the public servants. It is further argued that the report of voice expert and hand writing expert were not before the competent authority, nor the intercepted calls were played before him. Therefore, it is argued that the sanction orders suffer from non application of mind by PW1.
CC No. 4/2013 Page 19 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 I have considered the submissions of Ld. Defence Counsels. I agree with Ld. Defence Counsel that nothing material should be concealed from the competent authority. It is true that neither the intercepted calls were played before him nor he had the opportunity to see the report of voice expert and the hand writing expert. However, it is not the case of the defence that transcripts were not shown to the competent authority. The report of scientific officer/expert is required for the purpose of proving the prosecution case in the court and is not necessary for according sanction. However, in the present case, the substantial material collected by Investigating Officer was placed before the competent authority and after perusing the testimony of PW1, I am convinced that he had sufficient material before him to accord the sanction to prosecute the accused persons. The competence of PW1 to accord the sanction has not been challenged by any accused. Perusal of his testimony shows that he had duly considered the facts and allegations against the public servants. Hence, I hold that the sanction to prosecute A1, A2, A3 and A4 have been accorded by a competent authority and after due application of mind on the facts of the case.
CC No. 4/2013 Page 20 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 What will be fate of this case, if the call detail records (i.e. CDRs) and the report of voice expert is excluded from the evidence?
I am constrained to adopt this approach because the question of admissibility of intercepted calls was considered by Sh. Gurvinder Pal Singh, Ld. Sepcial Judge, in one of the connected cases. I may clarify that the CBI had been intercepting the calls of the present accused persons as well as other officials of MCD and private persons. After investigation, four cases were filed by CBI against various MCD officials including some of the accused persons, who are facing trial before this court. These intercepted calls were segregated casewise and were made the part of respective cases. In one case, all the accused persons were discharged. In another case, all the accused persons were acquitted on merits. In third case, Ld. Special Judge opined that prosecution has not been able to rule out the tampering of the intercepted calls. Copy of this judgement was placed by Ld. Defence counsels before me.
Secondly, Hon'ble Supreme Court of India in Ritesh Sinha vs. State of UP, 2013 CRI.L.J. 1301 was divided on the question of power of Investigating Officer to take voice sample of the accused. The issue was, therefore, referred to a larger Bench of three Judges.
CC No. 4/2013 Page 21 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 The final verdict of Hon'ble Supreme Court of India is still awaited on this issue.
Therefore, in first part of the judgement, I would like to appreciate the evidence except the calls details, intercepted calls and voice samples.
In second part of the judgement, I will discuss the above quoted judgement of Hon'ble Supreme Court, call details, intercepted calls and voice samples.
FIRST PART OF THE JUDGEMENT The procedure followed in MCD in respect of unauthorized construction.
In order to understand the procedure, I deem it necessary to reproduce the entire statement of PW2 Manoj Kumar Verma, Executive Engineer, Building Department, Karol Bagh Zone, MCD. This statement will not only explain the departmental procedures and practices but also show the role of A1 and A2 in respect of the property no. 13/28, WEA, Karol Bagh, New Delhi. His testimony will CC No. 4/2013 Page 22 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 also prove the status of the property as on last week of May 2009. The relevant portions of testimony is reproduced as under :
"26.02.2013 PW2 Statement of Sh. Manoj Kumar Verma, son of late O. P. Verma, aged about 45 years, R/o A I/98, Second Floor, Janakpuri, Delhi. On SA I was posted as Executive Engineer, MCD Building Department, Karol Bagh Zone from 15.01.2099 till 28.7.2009. If an owner or occupier wishes to reconstruct his property, he has to get it demolished and can only reconstruct after obtaining a sanction building plan. If the owner or the occupier wishes to renovate his property or do some repairs, as per building bye laws no.6.4.1, the same could be done without any permission.
If the owner or the occupier wishes to change the land user, say from prescribed residential use to commercial use, whole or in part, the scheme has been provided under the Master Plan 2021 and all the formalities have to be completed prescribed therein. Any building which has been constructed contrary to the sanction plan or without a sanction plan are booked for action and demolition orders could be passed.
The primary responsibility of detecting and ascertaining unauthorized construction is that of the Junior Engineer of the area. If any complaints are received by the JE or he detects any unauthorized construction suo moto, as per the provisions of the DMC Act he has to CC No. 4/2013 Page 23 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 initiate the actions. During the relevant time, the Junior Engineer of the 2 area was also enjoined upon to submit weekly reports on unauthorized construction. If any, in his area that used to be dealt with in the department at different levels upto the steering committee.
On detection of unauthorized construction, the JE lodges an FIR u/s 343/344 of the DMC Act and puts a report before the concerned AE. The latter then issues a show cause notice to the owner/occupier/builder who is normally given three working days time to reply. In case any reply is received, the AE may also give a personal hearing to the wrong doer and thereafter a second show cause notice issued for demolition whereby the owner/occupier is given seven working days time to demolish the unauthorized construction failing which the MCD can execute action for demolition. The demolition action is ultimately carried out with the assistance of the local police. All the relevant orders and action taken including demolition are noted down in the U/C file and details of the demolition carried out are also noted down in a separate document called demolition register.
Special area notification was brought w.e.f. 07.2.2007 inter alia regarding status of properties in some areas of Karol Bagh under the scheme of Master Plan 2021. I have seen a copy of the said notification which is D34 and the same is Ex.PW2/A. By the said notification, there was a moratorium for giving sanction plan in respect of properties falling in the Karol Bagh Zone for a period of three years w.e.f. 07.02.2007. The property bearing no. 13/28 CC No. 4/2013 Page 24 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 3 WEA Karol Bagh, New Delhi was governed by the mandate of the Special Area Notification Ex.PW2/A. I know accused S. K. Lakra and Jaibir Sehrawat both present in the court today (correctly identified) as they worked under me and I have seen them writing and signing documents during the discharge of official duties.
I have seen the FIR register D29 at sl.no. 40731 whereby the property no. 13/28 WEA Karol Bagh, New Delhi had been booked by the area JE Jaibir Sehrawat on 01.05.2009 who had signed at point A and the same was marked by him to Sh. S. K. Lakra, AE who signed at point B and the same is Ex.PW2/B. I have seen D28 sl. no. 5181 whereby on 01.05.2009 show cause notice was prepared upon the owner / occupier Sh. Mukesh and Sh. Piyush by accused Jaibir Sehrawat in his handwriting and the same was signed by accused S. K. Lakra, AE at point A and the same is Ex.PW2/C. The said notice was prepared in quadruli plate and was required to be served upon the owner / occupier but it was not done so as all the copies are available in D28.
I have seen D10 which is a photocopy of the Missil Bund Register in which the entry of booking of unauthorized construction of the property in question was made but notice was not issued to the owner / occupier. The Missil Bund Register remains in the custody of the Officer Incharge in the Karol Bagh Zone, Delhi. I do not remember who was the 4 CC No. 4/2013 Page 25 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Officer Incharge during the relevant time and it might be one Mr. Pawan. The copy of the Missil Bund Register is marked X1 for identification.
I had visited the site and inspected the property sometimes in the last week of May 2009 and I observed some additions and alterations going on on the first floor of the premises no. 13/28 WEA, Karol Bagh, New Delhi. I found out that the owner / occupier of the said property had not applied for any sanction plan before additions and alterations on the same.
On Court question : The building was already constructed with slabs which was three storey construction with ground, first and second floor and when I say additions and alterations, I mean internal walls were being constructed on the first floor giving indication that the plan was afoot to construct shops.
I have seen D33 at page no. 8 which is a photocopy of the complaint register and it shows that on 13.03.2009 a complaint had been received in respect of unauthorized construction at premises no. 13/28 WEA Karol Bagh, New Delhi and entry at sl. no. 83 was made. The copy of the complaint register is marked X2 for identification.
I have seen D32 at page no. 667, 668, 729 to 733 which are weekly certificates submitted by accused Jaibir Sehrawat, JE wherein he reported that no unauthorized construction was found at the spot except for the last one at page no. 733. The reports bear the signature of 5 accused Jaibir Sehrawat at point A and the same are marked Ex.PW2/D CC No. 4/2013 Page 26 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 (Colly) (objected to for nonproduction of the originals). Ld. PP points out that the originals are lying in another case pending before the Court of Sh. Gurvinder Pal Singh, Ld. Special Judge, CBI, New Delhi District.
I have seen D11 which is the Dak Receipt Register that shows that on 12.03.2009 a complaint had been received in regard to unauthorized construction in property no. 13/28, WEA, Karol Bagh, New Delhi to accused S. K. Lakra, AE which was received by accused Jaibir Sehrawat who signed at point A and I identify his signatures and the same is marked Ex.PW2/E. I have seen D12 which is also the Dak Receipt Register that shows that on 27.04.2009 a complaint had been received in regard to unauthorized construction in property no. 13/28, WEA, Karol Bagh, New Delhi and marked to accused S. K. Lakra, AE. The said entry is marked Ex.PW2/F. (objected to as the witness does not identify the handwriting in the register). Objection disallowed since the register appears to have been maintained in the ordinary course of official business.
Accused S. K. Lakra and Jaibir Sehrawat were working under me and I had occasions to speak to them personally and on phone and mobile and I will try to identify their voices but I do not know Umesh Parashar and I never met or spoke to him during the relevant time. I had been called to the office of the CBI where a recorded conversation was played and the same was heard by me.
6At this stage, a sealed brown envelop with the sale of SSOII, CFSL, CBI is produced and the same is opened and a yellow open envelop with CC No. 4/2013 Page 27 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 the seal DKT is taken out, out of which another yellow envelope is taken out with the seal of SU, CBI, Delhi and from it a CD mark Q1 is taken out with protective cover /inlay card and the CD is make Sony 700MB which is played in the open court in a laptop brought by the CBI under my supervision and the witness is directed to hear the voices and respond to the questions as and when put by Ld. PP for the State (CBI) or the court.
Court observation is made that the CD contains 67 files...................
27.02.2013 PW2 Statement of Sh. Manoj Kumar Verma..................... On SA.
During the course of investigation vide letter dated 29.5.2009 I had informed the IO Sh. V. M. Mittal that the unauthorized construction file pertaining to property no. 13/28, WEA Karol Bagh, New Delhi is not available in the office and there is no sanction building plan pertaining to the aforesaid property was available in the office. The letter dated 29.5.2009 bears my signatures at point A and the same is Ex.PW 2/E. Further vide letter dated 16.6.2009 I had forwarded the photocopy of weekly inspection certificates, report in respect of details of complaints, booklets of show cauase notice, copy of monthly demolition programme and extract of Master Plan 2021. The said letter bears my signatures at point A and the said letter is Ex.PW 2/G. ...................................
XXXXXXX by Sh. S. C. Sharma, Ld. PP for the State (CBI).
CC No. 4/2013 Page 28 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 ..........................................................
13XXXXXXXX by Sh. Anil Kumar, Ld. Counsel for accused A2 and A4.
It is correct that no specific time period is provided for service of show cause notice by the JE after detection of unauthorized construction by nay circular or notification and other things. It is correct 14 that normally a Junior Engineer is entrusted with one Ward under his jurisdiction. It is correct that duration of visits by the JE to the area depends upon availability of time and work load and the Wards under his charge. Vol. The JE has to set his priorities. It is correct that if unauthorized construction was existing prior to 07.02.2007, as per the Special Area Notification there was a bar for three years to take punitive action. Vol. But not in regard to unauthorized construction in progress as on 07.02.2007.
It is correct that repairs, renovations in terms of bye laws 6.4.1 were allowed during the period of Special Area Notification. I cannot say if the work in progress at the time of my visit at the site in May 2009 was covered by the ambit of bye laws 6.4.1. No action had been taken till 28th July 2009 in regard to the property in dispute. I had stated to the CBI that on my visit I had found certain additions, alterations being carried on at the spot. Confronted with statement Ex.PW2/DB where it is not so recorded at page 6 portion A to A. It is wrong to suggest that by looking at the entry no. 1735 dt. 12.03.2009 at point A on Ex.PW2/E, it cannot be inferred that there was CC No. 4/2013 Page 29 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 any complaint pertaining to property no. 13/28, WEA, Karol Bagh, New Delhi. Vol. Because the word 'U/C' is mentioned there at indicating complaint for unauthorized construction.
XXXXXXXXXXX by Sh. Javed Hashmi, Ld. Counsel for accused A1 and A3.
15It is correct that service of show cause notice is required to be effected by the JE. Mr. Jagdish, AE in the Maintenance Division, Karol Bagh, Delhi had been given additional charge for looking after sealing, desealing, misuser of premises during the period January 2009 to June 2009. I have seen D 33 marked X2 which is a monthly report and the same is not signed by accused S. K. Lakra. It is correct that normally an AE is vested with two Wards under his jurisdiction. It is correct that FIR and the show cause notice are mentioned / registered in the Missil Bund Regiser and the same is put up before the Executive Engineer. It is correct that complaints for unauthorized construction are dealt by JE (Building) of the area concerned. It is correct that legally speaking as JE of different area / zone cannot be made liable for unauthorized construction or irregularities in respect of building activities in some other area or zone.
.................................................
...................................
XXXX by Sh.Ajay Burman, Ld. Counsel for accused Piyush Goel.
It is correct that as per Clause (j) in 6.4.1 of the building bye laws CC No. 4/2013 Page 30 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 erection and reerection of partition walls do not require any permission. Vol. The said Clause cannot be read in isolation. I do not remember the date of my visit at the site in the month of May 2009. I do not exactly remember if I reported that at the time of visit there was work in progress in regard to erection of wooden, gypsum and zink sheets at the site. I did not file any report in writing after such visit.
I have seen page 3 of file D56 which is a public notice and I admit the portion which is encircled X1 and X2 in the same and the same is Ex.PW2/D1."
History of the Property The original owner of House No. 13/28, WEA, Karol Bagh, New Delhi was Dr. Ram Lal Oberoi. His daughter in law Mrs. Jyoti Oberoi was examined by prosecution as PW3. She testified that Dr. Ram Lal Oberoi died on 17.12.1997. She stated that the property was comprising of ground floor, first floor and two rooms on the second floor. There were six rooms, two bathrooms, two kitchens and two toilets on the ground floor. Same was the construction on the first floor. She further testified that they had been using the property as residential use only.
She testified that the said property was sold vide 4 agreements to sell on 15.2.2006 to four persons as under :
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1. Sh. S. K. Gupta & Sons, HUF. (¼ share)
2. Kailash Chand Aggarwal S/o B. R. Aggarwal & Satish Kumar S/o B. D. Gupta. (¼ share)
3. M/s Long Run Developers & Promoters Pvt. Ltd. through its Director Sh. Ravi Luthra. (¼ share)
4. M/s Kawa Polymers Pvt. Ltd. through Baldev Raj Patra. (¼ share) (see Ex.PW3/A to Ex.PW3/I, which are annexed in D44 and D
47) The perusal of the aforesaid agreements to sell show that ¼ undivided share each was sold by PW3 to the aforesaid persons through the agreements to sell dated 15.2.2006.
However, Smt. Jyogi Oberoi and her son executed two general power of attorneys dated 15.2.2006, particulars of which are as under :
1. GPA dated 15.2.2006 Ex.PW3/C jointly in favour of Kailash Chand Aggarwal and Satish Kumar.
2. GPA dated 15.2.2006 Ex.PW3/E jointly in favour of Baldev Raj Kwatra and Ravi Pal Luthra.CC No. 4/2013 Page 32 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 PW22 Kailash Chand Aggarwal testified that he had purchased ¼ share of the said property vide agreement to sell Ex.PW3/I and Ex.PW3/H and had sold the same to M/s Prime Educational Instruments Pvt. Ltd. through registered sale deed Ex.PW22/A dated 30.5.2008 through its Director Piyush Goel.
PW31 Satish Gupta testified that Mrs. Jyoti Oberoi had sold ¼ share of the aforesaid property through agreement to sell Ex.PW3/A dated 15.2.2006 and when he purchased the same, it was a residential property which consisted of 2 ½ storeys. He testified that on 19.6.2008 vide sale deed Ex.PW31/B dated 19.6.2008, he sold ¼ share in the said property in the name of M/s Prime Educational Instruments Pvt. Ltd.
Perusal of this sale deed shows that this ¼ portion of the property was sold by Smt. Jyoti Oberoi and her son Deepak Oberoi through the GPA holder Ravi Pal Luthra to M/s Prime Educational Instruments Pvt. Ltd. The name of Satish Gupta is also mentioned as the Director of M/s Prime Educational Instruments Pvt. Ltd.
CC No. 4/2013 Page 33 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 As per PW31 Satish Gupta, he handed over to Investigating Officer vide letter dated 10.7.2009 various documents namely companies resolution for purchase of property, Directors date of appointment, list of directors and their dates of appointments, list of share holders, photocopy of certificate of incorporation of M/s Prime Educational Instruments Pvt. Ltd. All these documents i.e. D48, D 49, D50 and D51 were collectively exhibited as Ex.PW31/C. Thus, this witness has proved the complete chain of property, which is at page no. 1 to 114. These chain of documents shows that vide a sale deed dated 23.6.2008 placed at page no. 105 to 114, Ms. Jyoti Oberoi and Deepak Oberoi sold ¼ share in favour of S. K. Gupta & Sons HUF. Further, a sale deed dated 19.6.2008 placed at page no. 28 to 40, which is part of D44/45, is executed by Ms Jyoti Oberoi and Deepak Oberoi in favour of M/s Prime Educational Instruments Pvt. Ltd. through its Director Piyush Goel. Another sale deed Ex.PW22/A is 30.5.2008 vide which Ms Jyoti Oberoi and Deepak Oberoi sold the shares to M/s Prime Educational Instruments Pvt. Ltd. Thus, as per prosecution, the entire property was in the hands of M/s Prime Educational Instruments Pvt. Ltd. in June 2008.
CC No. 4/2013 Page 34 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 I have already mentioned that before this period the property was residential at least upto 15.2.2006, when it was sold by Ms. Jyoti Oberoi. The manner in which entire residential house was converted into a commercial complex by A5 itself is a proof that the entire property was in hands of A5 in the year 20082009.
During what period new constructions were carried out Ld. Defence counsels have argued that the building was complete in the year 2006 and that in the year 2008 no unauthorized construction was carried out in the premises. On the other hand, Ld. Senior Public Prosecutor has drawn my attention to the testimony of PW7 Anil Gupta, who testified that he is in business of supplying building material including cement etc. in the name and style of M/s Mittal Building Material Supplier. He testified that he knew Piyush Goel, who is a builder and that he was his customer, who had been ordering various building materials for his various sites. He testified that vide 27 parchies/ receipts, he supplies building material to Piyush Goel, which are Ex.PW7/A1 to Ex.PW7/A27. He testified that the said receipts had been written by him (i.e. by PW7) and delivery of building material from time to time were acknowledged by Munshi/ Clerk of accused Piyush Goel, who signed at point A. He further CC No. 4/2013 Page 35 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 testified that he used to send his Clerk or rickshawwala to collect payment from accused Piyush Goel from premises no. 13/28, WEA, Karol Bagh, New Delhi. In crossexamination he admitted that he was sending building material for different sites of accused Piyush Goel. It is argued by Ld. Defence counsel that accused Piyush Goel was having his office at 13/28, WEA, Karol Bagh, New Delhi, where PW7 used to send his slip for collecting the payment of the material and that PW7 used to send the said material at various other sites, on which Piyush Goel was working. Hence, it is argued that it is not proved that the building material was being sent by PW7 at 13/28, WEA, Karol Bagh, New Delhi.
I disagree with his submissions. PW7 has specifically testified that he had supplied the material mentioned in the aforesaid 27 slips at 13/28, WEA, Karol Bagh, New Delhi. There is no ambiguity in his testimony. I have perused the aforesaid slips. None of the slips mentioned any amount. Therefore, the defence version that slips were sent to collect payment is not acceptable. I would like to tabulate the contents of these 27 slips as under :
S.No. Date on the Material supplied Exhibit
slip
1 20.12.2008 06 bags cement Ex.PW7/A1
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
2 20.12.2008 Half gadi reta Ex.PW7/A2
05 cement
3 20.12.2006 10 cement Ex.PW7/A3
20 reta
4 17.10.2007 150 ft. reta Ex.PW7/A4
5 17.12.2008 30 bags cement Ex.PW7/A5
6 16.12.2006 10 reta Ex.PW7/A6
7 16.12.2006 15 reta Ex.PW7/A7
8 15.12.2008 15 bags cement Ex.PW7/A8
9 15.12.2008 35 bags cement Ex.PW7/A9
10 10.12.2008 25 bags cement Birla Ex.PW7/A10
11 12.12.2008 15 bags cement Binani Ex.PW7/A11
12 13.12.2008 15 bags cement Ex.PW7/A12
13 07.12.2008 270 ft. ....... Ex.PW7/A13
14 07.12.2008 15 bags cement Birla Ex.PW7/A14
15 06.12.2008 15 badarpur Ex.PW7/A15
16 04.12.2008 15 badarpur Ex.PW7/A16
17 01.12.2008 20 badarpur (evening) Ex.PW7/A17
20 badarpur (morning)
18 30.11.2008 20 cement Ex.PW7/A18
19 23.11.2008 50 Badarpur Ex.PW7/A19
25 cement
20 19.11.2008 200 foot dust + 70 foot rodi Ex.PW7/A20
25 cement
21 18.11.2008 20 badarpur Ex.PW7/A21
22 18.11.2008 05 cement Ex.PW7/A22
20 rodi
20 badarpur
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
23 17.11.2008 15 badarpur Ex.PW7/A23
24 16.11.2008 15 badarpur Ex.PW7/A24
25 20.10.2008 10 cement Ex.PW7/A25
26 31.10.2008 15 bags cement Ex.PW7/A26
27 31.10.2008 100 cement Ex.PW7/A27
On all these slips the address is written as 13/28, WEA. This indicates that all the material was being sent at this address. On a few slips, "Goelji" is written. It can safely be presumed that it pertains to Piyush Goel and no one else. Perusal of the abovesaid chart would make is amply clear that major constructions of the shops in the aforesaid premises were conducted in the months of October, November and December 2008, because large number of cement bags and other material are being sent at the aforesaid address during this period. In his written submissions A1 had submitted that he joined as AE on 07.11.2008. Therefore, it is clear that the construction of shops was being carried out not only when he joined in November 2008 but also thereafter.
Ld. Defence counsels have drawn my attention to the testimony of PW9 Shakti Nangia, who testified that he purchased the Shop No. 2, Ground Floor of 13.28, WEA, Karol Bagh, New Delhi, vide sale deed CC No. 4/2013 Page 38 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 dated 15.07.2008. But he also stated that he heard the noises of laying up and down the shutters. It means that fitting work was proceeding in the other shops. PW10 Tejender Singh testified that he purchased Shop Nos. 1 & 3, vide sale deed dated 15.07.2008 from Prime Educational Instruments Pvt. Ltd. through its Director Piyush Goel and S. K. Gupta & Sons (HUF). He admitted in crossexamination that all shops on ground floor had been constructed even 04 to 05 months prior to his purchasing the property. PW18 Neeraj Pahwa testified that he purchased two Shops bearing no. 7 & 8 located on Ground Floor of the property through its Director Piyush Goel and S. K. Gupta on 16.09.2009 vide sale deed Ex.PW18/A and Ex.PW18/B. PW19 Naren Thakur testified that he purchased the Shop No. 11, on ground floor of the property from Prime Educational Instruments Pvt. Ltd. thruogh its director Piyush Goel on 15.07.2008. PW20 Nirmal Singh purchased Shops No. 13 & 22, both on Ground Floor, on 15.07.2008 and 26.03.2009, respectively. PW21 Gurmeet Singh testified that he purchased shop no. 12, located at Ground Floor on 15.07.2008.
Perusal of these testimonies would show that all these shops have been sold from July 2008 till March 2009. All the shops are of CC No. 4/2013 Page 39 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Ground Floor and none is of the First Floor. If this evidence is believed, it can be reasonably held that the shops were constructed and completed on the ground floor till March 2009. Had the first floor shops been completed before March 2009, the accused persons would have been able to bring on record the purchasers of the first floor shops, which they have not been able to place on record. From this material it can be safely presumed that ground floor shops might have been ready but, the first floor shops were still under construction in the month of November, December 2008 as well as thereafter.
In this regard, I would refer to the testimony of PW2 Manoj Kumar Verma, the Executing Engineer, MCD, Building Department, who remained posted in Karol Bagh Zone fro, 15.01.2009 till 28.07.2009. He testified that he had visited the site and inspected the property sometime in last week of May 2009 and he observed that some additions and alterations were going on in the first floor of the premises no. 13/28, WEA, Karol Bagh, New Delhi. He found that the owner/ occupier of the said property had not applied for any sanction plan before additions and alterations on the same. Ld. Defence counsels have strongly assailed this testimony on the ground that PW 2 has not made any noting of his inspection and hence, his evidence CC No. 4/2013 Page 40 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 should be rejected. I disagree with his this submission. PW34 Sh. A. D. Tiwari, Senior Scientific Officer had videographed the entire site on 27.05.2009 alongwith the Investigating Officer and other police officials and he proved the video cassette as Ex.PW34/C. Ld. Defence counsels have strongly objected to admission of this cassette on the ground that no certificate under Section 65B of Indian Evidence Act was tendered by PW34 alongwith this cassette. I am of the opinion that it is not required because the original cassette has been produced and proved before this court. This cassette was played before my Ld. Predecessor at the time of examination of PW34 as well as before me at the time of final arguments. During the dictation of the judgement I have played this cassette in my Chamber and found that the ground floor shops were ready but the carpentry work was in full gears on the first floor. The second floor shows tall beams and one mixer (used for mixing the building material for construction) giving an indication that soon the second floor construction would also be carried out. This cassette prepared on 27.05.2009 fully corroborates the testimony of PW2. It need not requires any great imagination to understand that carpentry work is carried out soon after completion of construction. Therefore, I accept the version of PW2 that when he inspected the first floor of the premises, additions and alterations like removal of CC No. 4/2013 Page 41 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 walls, etc. was being carried out. Form all this evidence, it can be said very safely that atleast first floor shops of 13/28, WEA, Karol Bagh, New Delhi were constructed in the month of October, November and December 2008 and thereafter upto May 2009.
I may point out that Ld. Defence counsels have relied upon the testimony of Satish Gupta (PW31), who was one of the Directors of M/s Prime Educational Instruments Pvt. Ltd. alongwith accused Piyush Goel. Ld. Defence counsels have drawn my attention to Ex.PW31/C, which contains list of directors and which shows PW31 as well as accused Piyush Goel as directors of M/s Prime Educational Instruments Pvt. Ltd. Ld. Defence counsels submit that PW31 has stated in examinationinchief that he had purchased the property in the year 2006. He testified in his crossexamination that he made changes in the property within five to six months after the purchase of building in February 2006 and that he had created 22 shops on the ground floor and 28 shops on the first floor of the property and that after creation of these shops he had deposited conversion charges from residential to commercial with MCD. Ld. Defence counsels argued that this evidence of PW31 in crossexamination was not assailed by prosecution by way of further crossexamination / re CC No. 4/2013 Page 42 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 examination and therefore, it must be accepted to be true. Ld. Defence counsels submit that testimony of PW31 proves that 22 shops on the ground floor and 28 shops on first floor of the property had been constructed by PW31 by August 2006. Therefore, the present accused persons cannot be held responsibility for its construction/nontaking of action by public servants, who came in picture in the year 200809.
I have considered this plea, which on careful perusal of the record turns out to be specious. D50, which is a part of Ex.PW31/C (Colly.) shows that Satish Kumar Gupta (PW31) and Piyush Goel (A
5) were the directors of M/s Prime Educational Instruments Pvt. Ltd. Even the saledeeds vide which the said property was purchased by them shows both of them as directors. It appears that the whole property came in the control of Piyush Goel in the year 2008. This is reflected from the fact that PW7 is sending building material to Piyush Goel at 13/28. WEA, Karol Bagh, New Delhi. It is pertinent to note that testimony of PW31 that he had created 22 shops on ground floor and 28 shops on first floor within six months from February 2006 is falsified from the testimony of PW2, who had stated that addition and alterations work on the first floor was going on in last week of 2009, which is corroborated by the video shot on 27.05.2009, CC No. 4/2013 Page 43 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 which shows that carpentry work was proceeding at full speed on the first floor. Had PW31 constructed the 28 shops on the first floor in the year 2006, it is not possible that even a single shop at first floor might not have been sold within two years. Defence could have examined the purchasers of the shops of the first floor to prove as to when the shops were purchased by them. For a moment, if it is presumed that the shops were constructed by PW31 on the first floor in the year 2006, and the same were not sold, still this fact could have been brought on record by A5. I am stating so because PW31 and A5 are coowners of the premises in question, in the capacity of directions of M/s Prime Educational Instruments Pvt. Ltd. and therefore it appears that testimony of PW31 in cross examination is aimed to save A5. Furthermore, A5 has not explained as to for what purpose the material was being supplied by PW7 in the months of October, November and December of 2008 at 13/28, WEA, Karol Bagh, New Delhi. Therefore, it is clear that PW31 is testifying falsely about the year when the shops were constructed in this premises and I am convinced that instead of 2006, the shops were constructed in the year 2008. I may point out that the builders, who have purchased a residential house and have illegally converted the same into a commercial complex, would not leave the shops unsold for such a CC No. 4/2013 Page 44 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 long time and would make all out effort to sell off the shops as soon as the construction is completed, so as to make profits from the investment. PW9, PW10, PW18, PW19, PW20 and PW21 testified that they had purchased the shops on ground floor from July 2008 to March 2009. Therefore, the construction of shops on ground floor must have been completed last upto March 2009 and the constructions and furnishing the first floor shops must have continued even upto 27.05.2009. Hence, the testimony of PW31 in respect of the year of construction of shops on ground floor and first floor has to be rejected for obvious reasons especially when he is a codirector with A5, with whom PW31 has common business interests.
Ld. Defence counsels have heavily relied upon the testimony of DW1 Mahipal Singh, Junior Engineer, who testified that he remained posted in Ward no. 149 of Building Department of MCD, Karol Bagh, from April 2008 to September 2008, as well as from June 2009 till December 2009 and thereafter from December 2010 to September 2012. He testified that property no. 13/28, WEA, Karol Bagh, New Delhi was under Ward No. 149 and that he had visited the said property during his posting from June 2009 to December 2009. On his visit, he found shops on ground and first floor and two rooms on the CC No. 4/2013 Page 45 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 top, which were lying vacant. He stated that no construction was going on in the said property at that time. He further testified that he had visited the said property during his previous tenure from April 2008 to September 2008 and that he did not find any change in the construction on the said property during both his visits. Thus, it is argued by Ld. Defence counsels that the ground floor and first floor had already been ready before April 2008 i.e. prior to the posting of A1 and A2 in the said Zone.
I have perused this testimony. However, I am not inclined to have any reliance upon this evidence in view of the clear cut evidence obtaining on record as to when the construction was raised in the aforesaid premises.
The stand of the accused persons that the construction in question had already been carried out before the special area notification stands falsified from another important piece of evidence. Investigating Officer (PW36) testified that during the course of investigation, the search of residence of A5 situated at House No. 14/A, WEA, Karol Bagh, New Delhi was conducted on 21.5.2009 and during the search, various documents were recovered vide search list CC No. 4/2013 Page 46 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Ex.PW24/A. This search list shows that one diary Ex.PW28/A was recovered from the search of A5, which has been mentioned at serial no.8 of AnnexureA to the search list Ex.PW24/A (D13). The description of the diary at serial no.8 of search list is mentioned as "one note book regarding construction details of Plot No. 13/28 containing used pages 1 to 24. Perusal of this diary shows that on the cover 13/28 is written in pen. The internal pages of this diary show that the expenditures have been mentioned meticulously date wise. The first entry is dated 5.9.2008 and last entry is dated 29.4.2009 on the back side of page 14. In the last pages, there is description of building material. One entry at back side of page 20 is dated 5.9.2008 and the last entry in respect of building material is dated 28.4.2009 on page 18. Perusal of these entries shows that the sand, cement bags, badarpur etc. have been mentioned in large quantities. This diary proves that huge expenditure was being incurred by A5, who is the owner of premises no. 13/28 during the period from 5.9.2008 to 28.4.2009. It fully substantiates the prosecution case that new construction converting the residential place into a commercial complex was carried out in the months of October 2008 to April 2009. When PW2 visited the premises in the last week of May 2009, addition and alternations of walls on the first floor were still going on.
CC No. 4/2013 Page 47 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 But despite booking the building for unauthorized construction on 1.5.2009, A1 and A2 did not take any step to serve the notice, rather remained totally inactive and the construction, addition, alternation etc. continued even after 1.5.2009.
Ld. Defence Counsels argued that neither it could be proved that the diary was recovered from the exclusive possession of A5 nor the hand writing of A5 was matched with the hand writing in the diary. Ld. Defence Counsels have drawn my attention to the evidence of PW28 Sh. Prakash Chand Goel, who is the father of A5, who did not identify the hand writing in the diary. Therefore, it is submitted by Ld. Defence Counsels that prosecution has not been able to prove that diary belongs to A5.
I disagree with this submission. PW36, the Investigating Officer, recovered the diary from the residence of A5. On the cover of the diary 13/28 is written. Therefore, it is clear that the expenditure mentioned in the meticulously maintained diary pertains to the premises no. 13/28. I have already held that it was A5, who had purchased this property being a Director of M/s Prime Educational Instruments Pvt. Ltd. Therefore, it stands proved that diary belongs to CC No. 4/2013 Page 48 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 A5. Since the diary was recovered from the house of A5, it is for him to inform the court as to whom the diary belongs, if it does not belong to A5. This fact is in special knowledge of A5 and as per Section 106 of Indian Evidence Act, burden is upon him to inform the court that diary belongs to someone else.
In nutshell, I hold that prosecution has proved beyond reasonable doubt that commercial construction in the premises was carried out during the period October 2008 to May 2009. PW2 has testified that special area notification was brought w.e.f. 7.2.2009, copy of which is Ex.PW2/A (D34) regarding the status of properties in some area of Karol Bagh under the scheme of master plan 2021. By the said notification, there was a moratorium for giving sanction plan in respect of properties falling in Karol Bagh Zone for a period of three years w.e.f. 7.2.2007. He also testified that the property bearing no.13/28, WEA, Karol Bagh was governed by the mandate of special area notification. From his testimony, it is clear that S. K. Lakra and Jaibir Sherawat worked under him. I may point out that as per his own testimony, PW2 remained posted as Executive Engineer in MCD Building Department, Karol Bagh Zone from 15.1.2009 till 28.7.2009. Therefore, it can be safely presumed that A CC No. 4/2013 Page 49 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 1 and A2 remained posted at the period in question in Karol Bagh Zone and therefore were responsible for all the constructions carried out in 13/28, WEA, Karol Bagh during that period. I may mention here that A1 in his written submissions has specifically mentioned that he joined Karol Bagh Zone in November 2008. Although, A2 has not stated his period of posting there, but he has also not come up with a defence that he was not posted in Karol Bagh Zone during May 2008 to May 2009.
Whether the fact of unauthorized construction in the property in question was in knowledge of A1 and A2.
PW2, whose testimony I have already reproduced, has testified that D32 at page no. 667, 668, 729 to 733 are weekly certificates submitted by Jaibir Sherawat, JE, wherein he reported that no unauthorized construction was found at the spot. The original of the certificates are lying in another case pending in the court of Sh. Gurvinder Pal Singh, Ld. Special Judge. These certificates were exhibited as Ex.PW2/D. Ld. Defence counsels have strongly objected to proving of these documents being photocopies without production of the originals. I would have found substance in the submissions, if the originals were not lying in another court, which fact is not CC No. 4/2013 Page 50 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 disputed by Ld. Defence counsels. Furthermore, these certificates, which are from 14.03.2009 to 27.04.2009, do not show any unauthorized construction in 13/28, WEA, Karol Bagh, New Delhi, except the certificate Ex.PW5/B, which shows that the property has been booked on 01.05.2009, which is an admitted fact. The stand of A1 and A2 is that no unauthorized construction took place in the suit premises during their tenure, which is supported by the blank certificates showing no unauthorized construction. Therefore, these certificates are not contrary to the stand taken by A1 and A2 and thus, can be accepted in evidence.
PW2 has testified that D11 is a dak receipt register that shows that on 12.03.2009 a complaint was received in regard to unauthorized construction in property No. 13/28, WEA, Karol Bagh, New Delhi to S. K.Lakra, AE (A1), which was received by Jaibir Sherawat (A2), who signed at point A. This entry in the register was proved as Ex.PW2/E. Perusal of this register shows that actually this entry no. 1735 refers to a complaint numbered as SE/10230, dated 12.03.2009 and was entered in the register on 13.03.2009.
CC No. 4/2013 Page 51 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 PW2 further testified that D12 is the dak receipt register which shows that on 27.04.2009 a complaint was received with regard to unauthorized construction in property no. 13/28, WEA, Karol Bagh, New Delhi and was marked to accused S. K. Lakra, AE. This was entered in the register on 28.04.2009 and the entry is proved as Ex.PW2/F. I have perused both these entries. It is argued by A1 that his signatures do not appear on any of these two entries. It is argued by A2 that his signatures are not available at the entry Ex.PW2/F, whereas, no handwriting expert's opinion was taken on the entry Ex.PW2/E. Therefore, it is argued by Ld. Defence Counsels that it cannot be presumed that A1 and A2 had knowledge of the aforesaid complaints. I disagree with their submissions. This is a register, which is maintained in due course of official business and I find that against both the entries designation of AEI is written and against the entry Ex.PW2/E, signatures of A2 are also available. PW2 has testified that both the complaints were marked to S. K. Lakra, AE and the complaint at entry No. 2/E was received by Jaibir Sherawat, whose signatures were duly identified by PW2.
CC No. 4/2013 Page 52 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 I may point out that there is additional evidence on record to prove that the property being constructed unauthorizedly was very much within the knowledge of A1 and A2. Police had conducted search of the Office of A2 on 21.05.2009 in presence of PW23 Kishan Singh and on conducting the search, various documents were recovered, which were proved by PW23 as Ex.PW23/A (D27) (Colly.). Perusal of these documents shows that following documents were seized vide SearchcumSeizure Memo Ex.PW5/H, from the office of Jaibir Sherawat :
S.No. in the Document
Seizure Memo
9 It is a bunch of loose papers, which contains a letter dated
05.03.2009 by Poornima Vidyarthi to Commissioner MCD in respect of unauthorized construction having been carried out in property no. 13/28, WEA, Karol Bagh. This bears initials dated 20.03.2009 and on its side "Sh. Sherawat" is written. Even AE has made a cut mark.
The Seizure was proved by PW5 Pawan Kumar and PW23 Kishan Singh. The fact that this document was found from the office of A2, which has been received through proper channel mentioning the designation of AE Buildings i.e. A1, there is no manner of doubt that A1 and A2 had been the knowledge of the aforesaid building CC No. 4/2013 Page 53 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 being constructed unauthorizedly during their tenure. Therefore, all this evidence proves beyond doubt that the fact of unauthorized construction being carried out in 13/28, WEA, Karol Bagh, New Delhi was being brought to the notice of AE and JE, i.e. A1 and A2, respectively, constantly vide complaints dated 05.03.2009 (D27), 12.03.2009 (Ex.PW2/E) and 27.04.2009 (Ex.PW2/F). Interestingly, in the letter dated 05.03.2009 of Poornima Vidyarthi, a specific allegation was made that the unauthorized construction has been carried out with connivance of one of the AE of Building Department of the Zone and a huge amount has been taken as a bribe. It is also alleged that these properties were commercially built up. It is also interesting to note that this complaint prayed to the Commissioner for taking action against the defaulting officials, however, the original of this letter reached in the hands of A2 through A1.
Despite all these complaints, which were very much in knowledge of A1 and A2, no action was taken by them till 01.05.2009.
The purpose of discussion of the aforesaid evidence is to show that documentary evidence is enough to prove that A1 and A2 had CC No. 4/2013 Page 54 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 the knowledge that the unauthorized construction has been carried out and is being carried out in property no. 13/28, WEA, Karol Bagh, New Delhi. Even if it is presumed that the property had already been constructed prior to posting of A1 and A2 in the Karol Bagh Zone, no explanation is coming as to why A1 and A2 did not act despite the fact that they had been receiving the complaints about the unauthorized constructions in the months of March and April 2009.
As per prosecution, pursuant to booking of the property vide complaint no. 2867, Ex.PW2/F vide entry dated 28.04.2009, an FIR was registered.
PW2 has proved that this FIR Ex.PW2/B was booked by JE, i.e. A2 on 01.05.2009, whose signatures are present at point A and the same was marked by him to A1, the AE, who signed at point B. PW2 has further proved that pursuant thereto, a show cause notice (D28), Serial no. 5181, dated 01.05.2009 was prepared, which bears the signatures of A1 at point A. PW2 testified that the show cause notice was written in the hand of Jaibir Sherawat (A2), however, the original show notice Ex.PW2/C and its three carbon CC No. 4/2013 Page 55 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 copies are still in this book and the show cause notice was never issued. Perusal of this show cause notice shows that the addressees of the show cause notice are Mukesh and Piyush, 13/28, WEA, Karol Bagh, New Delhi. This proves that A1 and A2 were not interested in taking action against the unauthorized construction in 13/28, WEA, Karol Bagh, New Delhi.
The testimony of PW2 that the aforesaid complaints Ex.PW2/E and Ex.PW2/F and the complaint dated 05.03.2009 (D27, which was seized vide seizure memo Ex.PW5/H from the office of A2) prove that during this period A1 and A2 were AE and JE, respectively, in the Karol Bagh Zone and had knowledge of the aforesaid constructions.
What is the responsibility of Assistant Engineer and Junior Engineer in respect of unauthorized constructions in their jurisdiction.
Prosecution has examined PW2 Manoj Kumar Rana, the Executive Engineer, MCD, Building Department, Karol Bagh Zone, New Delhi. At the cost of repetition, I would like to reproduce his testimony as under :
CC No. 4/2013 Page 56 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 "The primary responsibility of detecting and ascertaining unauthorized construction is that of the Junior Engineer of the area. If any complaints are received by the JE or he detects any unauthorized construction suo moto, as per the provisions of the DMC Act he has to initiate the actions. During the relevant time, the Junior Engineer of the area was also enjoined upon to submit weekly reports on unauthorized construction, if any, in his area that used to be dealt with in the department at different levels upto the steering committee. On detection of unauthorized construction, the JE lodges an FIR u/s 343/344 of the DMC Act and puts a report before the concerned AE. The latter then issues a show cause notice to the owner/ occupier/ builder who is normally given three working days time to reply. In case any reply is received, the AE may also give a personal hearing to the wrong doer and thereafter a second show cause notice issued for demolition whereby the owner/ occupier is given seven working days time to demolish the unauthorized construction failing which the MCD can execute action for demolition. The demolition action is ultimately carried out with the assistance of the local police. All the relevant orders and action taken including demolition are noted down in the U/C file and details of the demolition carried out are also noted down in a separate document called demolition register."
The aforesaid testimony of PW2 is not in dispute and therefore, it can be fairly said that whereas the responsibility of JE is to stop the unauthorized constructions and if it has been already carried out, he is required to book the same and put the matter to AE, who is required to issue a three working days' show cause notice to the builder for reply. I have already mentioned that the new constructions of shops in this residential premises were carried out in the month of July 2008 to March 2009. It is not in dispute that A2 was posted as JE in the Karol Bagh Zone, where the present construction was carried out. A1 was CC No. 4/2013 Page 57 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 the Assistant Engineer from November 2008 as per his own submissions. It is not believable that such large scale constructions and complete conversion of a residential house in a shopping complex could not be noticed by JE. Testimony of PW2, has clearly shown that additions and alterations were going on on the first floor of the premises when he visited the same in last week of May 2009.
Contents of the video cassette I have briefly stated earlier about the contents of cassette. But I would like to elaborate. Prosecution examined PW34 A. D. Tiwari, the Senior Scientific Officer, who videographed the ground floor, first floor, second floor of property no. 13/28, WEA, Karol Bagh, New Delhi.
I have played this video cassette and found that Ground Floor shops are fully constructed. The carpentry work on the First Floor shops was going in full gears. The Second Floor i.e. the roof shows tall beams indicative of the intentions to construct the second floor also. One mixer, which is meant for mixing the building material is also seen lying on the roof. The entire scenario is that there is no trace of a residential building, whereas, on the ground floor and first floor shops CC No. 4/2013 Page 58 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 have been constructed and intentions to carry out constructions on the roof/ second floor are clearly visible. It is also clear from the videography that all the shops had been constructed very recently. It appear that nonaction on part of A1 and A2 till 01.05.2009 (on which the unauthorized construction was booked) and thereafter, nonissuance of the show cause notice to Mukesh Gupta (A6) and Piyush Goyal (A5) is solely aimed that somehow the shops are completed and sold to the new purchasers and the builders are able to wash off their hands from the whole transactions and make money with impunity. This court is entitled to draw an inference from all facts and circumstances as discussed above that non action of A1 and A2 was clearly intended to obtain pecuniary advantage to A5.
All these evidence are enough to prove that A1 and A2 had by abusing their positions as public servants in the capacity of Assistant Engineer and Junior Engineer posted in Karol Bagh Zone obtained pecuniary advantage to A5, who was the Director of M/s Prime Educational Instruments Pvt. Ltd., which owned 13/28, WEA, Karol Bagh, New Delhi by allowing illegal conversion of a residential property into commercial property i.e. a commercial complex meant for shops of mobile instruments. One need not imagine the illegal CC No. 4/2013 Page 59 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 profits earned by A5, a builder, by such illegal conversion of the property without any sanctioned plan, but the pain caused to the gullible purchasers and the damage caused to the town planning can be well understood. Ld. Defence Counsels have argued that the construction was carried out prior to 7.2.2007 and vide a special area notification, statusquo in respect of the properties in Karol Bagh was to be maintained for a period of three years i.e. upto 7.2.2010. It is argued by Ld. Defence Counsels that the shops were constructed prior to 7.2.2007. This argument has no value because I have already held that the shops were constructed in the year 20082009.
Ld. Defence Counsels have referred to Section 6.4.1 of MCD Rules, which permit repairs without any sanctioned plan. The testimony of PW2 and the videography of the site shows total conversion of residential area into shopping complex and by no means the same is covered under the term "repair". I may point out that during examination of PW2, Sh. Dharmesh Sharma, my Ld. Predecessor specifically put a question and PW2 replied as under :
"On Court question : The building was already constructed with slabs which was three storey construction with ground, first and second floor and when I say additions and alternations, I mean internal walls were being constructed on the first floor giving indication that the plan CC No. 4/2013 Page 60 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 was afoot to construct shops."
This itself makes clear that it is by no means a case of just repairs.
I may stress here that non action and omission to act deliberately by a public servant would also amount to abuse of official position.
Thus, I am of the opinion that prosecution has been able to prove successfully that A1 and A2 had by abusing their positions as public servants obtained for A5 huge pecuniary advantage and thereby committed offence under Section 13(1)(d)(ii) of Prevention of Corruption Act 1988. Since A5 was the beneficiary, it can be safely inferred U/s 114 of Indian Evidence Act that he was in conspiracy with A1 and A2. Therefore, A1 and A2 stand convicted under Section 13(1)(d)(ii) of Prevention of Corruption Act 1988. A5 along with A1 & A2 stands convicted under Section 120B IPC read with Section 13(1)(d) of Prevention of Corruption Act 1988.
CC No. 4/2013 Page 61 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 SECOND PART OF THE JUDGEMENT Now I will take up the question of powers of Investigating Officer in respect of taking of voice sample of the accused persons. In Ritesh Sinha Vs. U. P. (2013) Crl. L. J. 1301, Hon'ble Supreme Court of India was faced with the question as to whether taking of voice sample of accused for investigation by police is valid. The Division Bench of Hon'ble Supreme Court agreed on the point that if accused tenders his voice sample voluntarily, the same is not hit by Article 20(3) of Constitution of India. However, Hon'ble Mr. Justice Aftab Alam disagreed on the point that "voice" is "measurement" in terms of Identification of Prisoners Act, 1920 and therefore, he was of the opinion that the Magistrate cannot order an accused to give his voice sample.
It is argued by Sh. S. C. Sharma, Ld. Senior Public Prosecutor that both the judges of Hon'ble Supreme Court agreed that if the accused gives his voice sample during the court of investigation, there is no violation of right under Article 20 of the Constitution. Both the judges agreed that voice sample is like finger print impression, signatures or specimen hand writing of an accused. Ld. Senior Public Prosecutor submitted that Justice Sanjana Prakash Desai observed that CC No. 4/2013 Page 62 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 voice print identification of voice involves measurement of frequency and intensity of sound waves which fell in the ambit of inclusive definition of "measurement" appearing in Identification of Prisoners Act, 1920. However, Hon'ble Mr. Justice Aftab Alam differed and held that it is not a measurement. Therefore, the entire issue was referred to a Bench of three Judges.
I have perused this judgement carefully and I am of the opinion that fundamentally both the judges of Hon'ble Supreme Court agree that taking of voice sample of accused by police during investigation is not violative of Constitution of India. Hon'ble Justice Ranjana Prakash Desai has specifically mentioned that voice prints are like finger prints in that each person has a distinct voice, with characteristic features dictated by vocal cavities and articulators. Justice Aftab Alam has not given a dissenting note on this observation. Question before Hon'ble Supreme Court was as to whether a magistrate can direct an accused to give his voice samples.
If the voice is comparable with handwriting and finger prints, this directly takes us to eleven Judges' Bench of Hon'ble Supreme Court of India in State of Bombay versus Kathi Kalu Oghad, AIR CC No. 4/2013 Page 63 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 1961 SC 1808. It is necessary to note the facts of the said case. Para 2 of the judgement briefly sums up the said facts as under :
"...... Besides other evidence, the prosecution adduced in evidence a chitEx.5alleged to be in his handwriting and said to have been given by him. In order to prove that Ex.5 was in the handwriting of the respondent, the police had obtained from, him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex. 5 was compared with the admitted handwritings on Ex. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question as raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Art. 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused has been taken by the police while he was in police custody, ......"
All the Supreme Court Judges agreed that if accused gives handwriting sample voluntarily to investigation, even during police custody, the same is not violative of Art. 20(3) of the Constitution.
Even if it is presumed that the voice sample does not fall within definition of "measurement" under Identification of Prisoners Act, the comparison of the questioned voice with the voice sample by an expert would be admissible in evidence under Section 9 of Indian Evidence Act, which makes all the facts to be relevant which fix the identity of a person. The minority view in Kathu Kali had given CC No. 4/2013 Page 64 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 different reasons, though concurred with the majority judgement. Hon'ble Judges S. K. Dass, A. K. Sarkar and K. C. Das Gupta, JJ, pin pointed that an accused voluntarily furnishing specimen handwritings is a relevant fact within the meaning of Section 9 and Section 11 of Indian Evidence Act because such specimen handwriting can fix the identity of an offender.
I may point out that if a fact becomes relevant, Investigating Officer is entitled to investigate and collect the same in his investigation. I may further point out that investigation is the exclusive domain of the Investigating Officer and in my opinion he can take the handwritings, blood samples, hair samples and voice samples, etc. without any permission from the magistrate. Though the magistrate would be empowered to order taking of voice identification during investigation only if it is specifically laid down by law.
I have already reproduced the facts of the case before Hon'ble Supreme Court in Kathi Kalu Oghad. The police had collected the specimen handwriting of the accused, who was in police custody. No permission of Magistrate was taken to take the specimen handwriting of the accused. Still Hon'ble Supreme Court of India has clearly held CC No. 4/2013 Page 65 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 that police was empowered to do so, if such specimen handwriting was given by accused voluntarily.
Therefore, even if it is held by larger Bench of Supreme Court of India, on the reference by Division Bench in Ritesh Sinha, that the Magistrate does not have power to direct the accused to give his voice sample, the powers of Investigating Officer to do so remain untrammeled.
I would further like to put my views on this issue. The purpose of taking measurement of a prisoner is very limited one. Primary purpose of the Act is to fix the identity of the person, who has been arrested. Though, the Act also permits taking of measurement of the prisoner for the purpose of investigation. But, the perusal of the Identification of Prisoners Act, 1920 would show that it is applicable only to those persons, who have been arrested. Section 311A Cr.PC empowers a Magistrate to direct a person, who has been arrested, to give his specimen signatures. This means that if an accused is not arrested, the provisions of Identification of Prisoners Act, 1920 and Sec. 311A Cr.PC empowering the Magistrate would not be applicable. In my opinion these provisions are in addition to the powers of the CC No. 4/2013 Page 66 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Investigating Officer and not in abrogation to the same. Investigation as defined in Section 2(h) Cr.PC is a very wide term and the Investigating Officer is empowered to collect any relevant fact and any scientific opinion, if Indian Evidence Act permits it. As held by Hon'ble Supreme Court of India in Kathi Kalu Oghad case, taking of handwriting sample is admissible in evidence under Section 9 of Indian Evidence Act to fix the identification of an accused. Section 9 of Indian Evidence Act makes every fact to be relevant, which establishes identity of any person, whose identity is relevant.
In view of above discussion, I am of the opinion that taking of voice samples is akin to taking of handwriting specimen by the Investigating Officer during investigation and therefore, judgement of Hon'ble Supreme Court of India and Kathi Kalu case would be squarely applicable and taking of voice samples even without the orders of Magistrate would be admissible if given voluntarily.
Did the accused persons give their voice samples voluntarily?
All the accused persons in their statements under Section 313 Cr.PC have taken the defence that they had not given any voice sample. The prosecution has proved beyond doubt by examining PW CC No. 4/2013 Page 67 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 34 A. D. Tiwari, Senior Scientific Officer, who testified that on 07.12.2009, he had recorded voice sample of S. K. Lakra (A1) in presence of witnesses and a memo in this regard was prepared by Investigating Officer, which is Ex.PW24/D. The specimen voice samples of remaining accused persons were taken by the Expert at CFSL in presence of the Investigating Officer (PW36). I would like to reproduce his testimony in this regard as under :
"I have seen the Memorandum dated 30.11.2009 vide which specimen voice of A4 Virender Pal, S/o Sh. Ram Kumar, Beldar was recorded by an export at CFSL in CFSL, Block No. 4, Fifth Floor, Room No. 513, CGO Complex, New Delhi, in my presence. The said Memorandum is now Ex.PW36/H and bears my signatures at point 'A'.
At this stage, a sealed brown color envelope sealed with the seal of court (PAB), mark Ex.S1 is opened. On opening the same, two yellow envelopers are found, one of which contains nothing. Another yellow color envelope, bearing (mark S1) is found containing a CD make 'Pleomax', already Ex.PW25/B along with inlay card in protective cover. The CD bears my signatures at point 'A' and the yellow envelope also bears my signatures at point 'A'. This is the CC No. 4/2013 Page 68 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 same CD in which the specimen voice of A4 Virender Pal was recorded, as mentioned in the Memo dated 30.11.2009. The said yellow envelope is now Ex.PW36/H1.
I have seen the Memorandum dated 30.11.2009 vide which specimen voice of A3 Umesh Parashar, JE, MCD, S/o Sh. Krishan Kumar Parashar was recorded by an expert at CFSL in CFSL, Block No.4, Fifth Floor, Room No. 513, CGO Complex, New Delhi, in my presence. The said Memorandum is now Ex.PW36/I and bears my signatures at point 'A'.
At this stage, a sealed brown color envelope sealed with the seal of court (PAB), mark Ex.S2 is opened. On opening the same, two yellow envelopes are found, one of which contains nothing. Another yellow color envelope, bearing (mark S2) is found containing a CD make 'Pleomax', already Ex.PW25/C alongwith inlay card in protective cover. The CD bears my signatures at point 'A' and the yellow envelope also bears my signatures at point 'A'. This is the same CD in which the specimen voice of A3 Umesh Parashar was recorded, as mentioned in the Memo dated 30.11.2009. The said yellow envelope is now Ex.PW36/I1.
I have seen the memorandum dated 01.12.2009 vide which specimen voice of A2 Jaibir Singh Sehrawat, JE, MCD, S/o Sh. Sahab Singh was recorded by an expert at CFSL in CFSL, Block No. 4, Fifth Floor, Room No. 513, CGO Complex, New Delhi, in my presence. The said Memorandum is now CC No. 4/2013 Page 69 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Ex.PW36/J and bears my signatures at point 'A'.
At this stage, a sealed brown color envelope sealed with the seal of court (PAB), mark Ex.S3 is opened. On opening the same, two yellow envelopes are found, one of which contains nothing. Another yellow color envelope, bearing (mark S3) is found containing a CD make 'Pleomax', already Ex.PW25/D alongwith inlay card in protective cover. The CD bears my signatures at point 'B' and the yellow envelope also bears my signatures at point 'A'. This is the same CD in which the specimen voice of A2 Jaibir Singh Sehrawat was recorded, as mentioned in the Memo dated 01.12.2009. The said yellow envelope is now Ex.PW36/J1.
I have seen the memorandum dated 01.12.2009 vide which specimen voice of A5 Piyush Goel, S/o Sh. P.C. Goel was recorded by an expert at CFSL in CFSL, Block No. 4, Fifth Floor, Room No. 513, CGO Complex, New Delhi, in my presence. The said Memorandum is now Ex.PW36/K and bears my signatures at point 'A'.
At this stage, a sealed brown color envelope sealed with the seal of court (PAB), mark Ex.S4 is opened. On opening the same, two yellow envelopes are found, one of which contains nothing. Another yellow color envelope, bearing (mark S4) is found containing a CD make 'Pleomax', already Ex.PW25/E alongwith inlay card in protective cover. The CD bears my signatures at point 'A' and the yellow CC No. 4/2013 Page 70 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 envelope also bears my signatures at point 'A'. This is the same CD in which the specimen voice of A5 Piyush Goel was recorded, as mentioned in the Memo dated 01.12.2009. The said yellow envelope is now Ex.PW36/K1.
I have seen the memorandum dated 01.12.2009 vide which specimen voice of A6 Mukesh Gupta, S/o Sh. Jai Bhagwan Garg was recorded by an expert at CFSL in CFSL, Block No. 4, Fifth Floor, Room No. 513, CGO Complex, New Delhi, in my presence. The said Memorandum is now Ex.PW36/L and bears my signatures at point 'A'.
At this stage, a sealed brown color envelope sealed with the seal of court (PAB), kar Ex.S5 is opened. On opening the same, two yellow envelopes are found, one of which contains nothing. Another yellow color envelope, bearing (mark S5) is found containing a CD make 'Pleomax', already Ex.PW25/F alongwith inlay card in protective cover. The CD bears my signatures at point 'B' and the yellow envelop also bears my signatures at point 'A'. This is the same CD in which the specimen voice of A6 Mukesh Gupta was recorded, as mentioned in the Memo dated 01.12.2009. The said yellow envelope is no Ex.PW36/L1.
I have seen the memorandum dated 07.12.2009 vide which specimen voice of A1 Suresh Kumar Lakra, S/o Sh. Satbir Singh was recorded by an expert at CFSL in CFSL, Block No. 4, Fifth Floor, Room No. 513, CGO Complex, New Delhi. The CC No. 4/2013 Page 71 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 said Memorandum is already Ex.PW34/D."
The aforesaid testimonies proves beyond doubt that specimen voice samples of all the accused persons were taken at the instance of Investigating Officer during investigation. None of the accused had taken a defence that they were compelled by Investigating Officer to give these voice samples. Therefore, I hold that accused persons had given the voice samples voluntarily.
Whether Deepak Kumar Tanwar (PW25) is a competent Voice Expert?
It is argued by Ld. Defence counsels that Deepak Kumar Tanwar (PW25) is not a notified expert as there is no notification under Section 79A of Information and Technology Act, 2000. I agree that under Section 79A, the Central Government may by notification in official gazette specify any agency as examiner of electronic evidence. However, I may point out that PW25 is not examiner of electronic evidence, hence, Section 79A is not applicable to PW25.
In his testimony PW25 has stated that he is M.Sc. (Physics), M. Phil. (Physics) and has also done a certificate course in Forensic CC No. 4/2013 Page 72 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Science and has also undergone one month's training on speaker identification and other related areas from the University of Trier, Germany. In crossexamination dated 07.08.2013 by Sh. Anil Kumar, Advocate for A2 and A4, he testified that speaker identification is a progressive science. He further testified that due to advancement in computer technology, the accuracy of this science has increased and is not less than the DNA printing and finger printing examination. This part of testimony of PW25 is similar to what Hon'ble Justice Ranjana Prakash Desai in Ritesh Sinha (supra) opined in detail as to how the voice is very specific to individual and what are the new techniques like sound spectrograph machines adopted for voice prints.
Sufficient it to say that PW25 is expert on voice identification and he used all scientific and technologically advanced methods to compare the voices before him.
Whether the evidence of PW25 be relied upon by this court?
Having held that PW25 is an expert, I would like to take up the issue of reliability of his report. There are three major assaults on his report.
CC No. 4/2013 Page 73 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
(i) He did not thoroughly check up the possibility as to whether the questioned documents were tampered or not, as he did not even check the hash value.
(ii) He did not produce the print out of the spectrograph before the court.
(iii) The transcripts before him had already mentioned the names of the speakers, which must have influenced his findings, he being under administrative control of CBI.
I have considered these submissions. On first point, I would say that he has testified that he had generally checked that there was no tampering of the intercepted calls. Secondly, he has testified that he had received the questioned CDs duly sealed with the seal, which matched with the specimen seal impression forwarded and same were found to be intact.
Now, I take up the testimony of PW11 M. C. Kashyap, who intercepted the calls in the two CDs Q1 and Q2. He testified that he had handed over the CDs Q1 and Q2 containing the intercepted calls, which were sealed with the seal of his office and specimen impression of the seal was taken on the seizure memo Ex.PW11/E (D CC No. 4/2013 Page 74 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
2) and vide seizure memo Ex.PW11/G (D8), which also bears the specimen of seal of "SU CBI". The court at the time of examination of PW11 observed that inside the sealed envelopes with the court seal, another CD is taken out bearing seal of SU of CBI.
This evidence means that Q1 and Q2 reached to PW25 in the same condition in which the same were sealed by PW11. Therefore, possibility of intercepted calls having been tampered stands ruled out. Therefore, even if PW25 has not comprehensively checked the question of possibility of tampering of the calls, or he has not checked the hash value, the same does not doubt the prosecution case about the authenticity of Q1 and Q2 being untampered.
Now, question is as to whether PW11 could have himself tampered Q1 and Q2. I am of the opinion that he had no motive to do so. In fact, he was not even the Investigating Officer, who could have been alleged to be zealous to prove his case. Although, he has segregated the calls relevant to the accused persons in the present case, there is no reason why he is indulged in any tampering.
CC No. 4/2013 Page 75 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 I would later on discuss that contents of these intercepted conversations have tallied with the contents in the diary Ex.PW28/A, found from A5. The matching of fact mentioned in the intercepted conversations with the entries of payments in diary Ex.PW28/A, is unmistakable prove of the intercepted calls being true and untampered.
I agree that the print out of the spectrograph should have been proved by the expert. But, even if it has not been produced, it is not enough to disbelieve PW25, who has given his reasons for the opinion as to what spoken words of specimen voices matched with the questioned intercepted calls.
To be more careful, I myself played questioned CDs Q1 and Q2 and the CDs containing specimen voices in my chamber in two laptops. In one laptop, Q1 and Q2 were played and in another laptop, CDs containing specimen voices (S1 to S6) were played. The conversation in calls is continuous and uninterrupted and I found the questioned voices matching with the specimen voices.
CC No. 4/2013 Page 76 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 In these circumstances, I am fully convinced that the report of PW25 can be believed without any hitch and I hold that the voices in Q1 and Q2 stand connected with the accused persons.
Transcripts I have matched randomly the contents of the transcripts and same generally match with the intercepted calls in Q1 and Q2. Moreover, Ld. Defence counsels have not brought out any defect in the transcription. Hence, the same have to be accepted.
Speakers in the Transcripts They can be identified from three factors :
(i) The mobile phones of the numbers attributed to the accused were found from the possession of the accused persons or they were produced by the accused persons themselves (except A1, whose mobile phone could not be recovered.)
(ii) From the internal evidence of conversation because the speakers are mentioning the names of each other in the conversations.
(iii) The evidence of voice expert (PW25).
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Who possesses which mobile?
During investigation the mobile phones of the accused persons were seized.
Mobile Phone of Jaibir Sehrawat (A2) PW36 testified that he effected the search of residence of A2 and recovered a mobile phone on 21.05.2009 vide Search List Ex.PW32/A. The search list shows at serial no.13 one Nokia 2760 IMEI No. 353116024711522, SIM No. 9818802431.
Prosecution examined Sunil Khatri (PW27), who testified that this phone no. 9818802431 is in his name and that he was the tenant of A2 and that this phone number was exclusively used by him i.e. by PW27.
I am of the opinion that PW27 is closely connected with A2 and therefore, he is testifying falsely to save A2. I may point out that this mobile phone was found from the residence of A2 and conversation through this mobile phone was intercepted. The voice of A2 matches with his sample voice as already discussed.
CC No. 4/2013 Page 78 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Mobile Phone of Umesh Parashar (A3) PW36 testified that A3 produced a mobile phone, which was seized vide Seizure Memo dated 25.05.2009, which is Ex.PW36/E. The production cum seizure memo shows only one item i.e. Nokia Mobile hand set Model no. 2600C IMEI No. 355724/02/078368/0 with connection no. 9717788506.
Mobile Phone of Virender Pal (A4) PW36 testified that A4 produced a mobile phone, which was seized vide Seizure Memo dated 26.05.2009, which is Ex.PW36/C. This memo shows one black mobile Nokia model 6060, IMEI No. 357608005567655 with connection no. 9968493939.
Phone of Piyush Goel (A5) The Investigating Officer PW36 testified that during the search of residence of Piyush Goel (A5), various articles including a mobile phone was recovered on 21.05.2009 vide Search List Ex.PW24/A by Insp. Ram Singh. Although, prosecution did not examine Insp. Ram Singh, but, the Seizure was proved by prosecution through PW24 Nagender Mandal, who proved the recovery of the mobile phone from the residence of Piyush Goel on 21.05.2009 vide recovery Memo Ex.PW24/A (D13). Annexure A to this search list shows one Nokia CC No. 4/2013 Page 79 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 mobile, model M85, IMEI No. 356376021342393 with connection no. 9810076110.
Mobile phone of Mukesh Gupta (A6) PW36 further testified that Insp. Surender Malik conducted search of residence of A6 and recovered his mobile on 21.05.2009 vide Search List Ex.PW36/B. The search list show at item no.1, one mobile phone no. 9811229954, make Nokia with IMEI No. 354533016064166. Although, prosecution did not examine Insp. Surender Malik, but, the Seizure was proved by prosecution through PW26, namely, Ms. Seema Garg, who testified that the mobile phone no. 9811229954 belongs to her and that A6 is his brotherinlaw. But, she stated that she never used the said phone. Obviously, she is trying to save A6.
I need not repeat again as to how the voices of the aforesaid accused persons in the calls made through the aforesaid mobile phones matched with their own voice samples.
CC No. 4/2013 Page 80 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Call details Prosecution has examined following witnesses :
(i) PW12 Anuj Bhatia, Nodal Officer, Vodafone Essar Mobile Services Ltd. He proved the call details of mobile phone no. 9811229954 as Ex.PW12/C.
(ii) PW14 R. K. Singh, Nodal Officer, Bharti Airtel Ltd., who proved the call details of mobile phone no. 9717788506 as Ex.PW14/C. He also proved the call details of mobile phone no. 9818802431 and 9810076110 as Ex.PW14/F and Ex.PW14/H.
(iii) PW15 R. K. Soni, Junior Telecom Officer, Tis Hazari Exchange, who proved the call details in respect of mobile phone no.
9968493939, which are Ex.PW15/B. The call details are supported with certificates under Section 65B of Indian Evidence Act, which is Ex.PW15/C1 and Ex.PW15/F. I agree with Ld. Defence counsels that call details proved by PW 12 and PW14 are not supported with certificate under Section 65B of Indian Evidence Act and same are required to be rejected.
Ld. Defence Counsels have tried to find various discrepancies in the certificates under Section 65B of Indian Evidence Act proved by CC No. 4/2013 Page 81 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 PW15, which to my mind are highly hyper technical. I have perused the call details as mentioned in "recorded calls information report"
Ex.PW11/P and Ex.PW11/H, which are D2 and D8 respectively and have also perused the call detail records (CDRs) proved by PW15. Since the details are quite numerous, I have checked the same randomly. I find that there is minor difference of time and duration of the calls but except these minor differences, the particulars given in "recorded call information" Ex.PW11/P and Ex.PW11/H match with CDRs. Therefore, the particulars of Ex.PW11/P and Ex.PW11/H stand proved beyond reasonable doubt.
M. C. Kashyap (PW11) has given two certificates Ex.PW11/I1 (D2) in respect of 67 intercepted calls and Ex.PW11/I2 (D8) in respect of 46 intercepted calls under Section 65B of Indian Evidence Act. This certificate is in respect of intercepted calls.
However, no mobile phone from which A1 used to talk could be recovered.CC No. 4/2013 Page 82 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Discrepancy in the CDRs and "recorded call information reports"
sheet call details Ld. Defence Counsels have drawn my attention to discrepancies in call details and the modified time shown in CDRs and shown in the CDs Q1 and Q2. I find that this is a very minuscule difference of time and in my opinion the same is not indicative of any tempering in the intercepted calls.
The Provisions of Indian Telegraph Act 1885 and Indian Telegraph Rules 1951 It is argued by Ld. Defence Counsel that Indian Telegraph Act is applicable only on the messages as defined under Section 3(3) of Indian Telegraph Act and is not applicable to mobile conversations. I disagree with this submission and I am of the opinion that the same is wide enough to cover the conversations on the mobile. Ld. Defence Counsel has assailed the testimony of PW33 Sunil Kumar., who proved the permission of Home Secretary, who proved the letters Ex.PW11/A, to Ex.PW11/D (D3 to D6) issued by Madhukar Gupta, the then Secretary, Ministry of Home Affairs on the ground that as per Section 419A only in emergent cases interception of messages can be carried out. I am of the opinion that corruption, terrorism, financial frauds CC No. 4/2013 Page 83 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 involving money laundering are covered because interception of their messages cannot wait prior approval of the competent authority. However, the same have to be confirmed by the authority within 7 days. I am of the opinion that once he conversations have been intercepted in emergent case as per Rule 419A, its character as evidence cannot become defunct simply because of non compliance of 419A (2), which enjoins that any order under 419A(1) should be forwarded to Review Committee within 7 working days.
PW11 M. C. Kashyap has testified that D3 is an order dated 12.11.2008 allowing surveillance of five telephone/mobile numbers viz. 9968263934, 9868209370, 9313292841, 9811014145 and 9811229954 for a period of 60 days and the same is Ex.PW11/A. PW11 further testified that D4 is an order dated 10.12.2008 from the Ministry of Home Affairs, New Delhi allowing surveillance of three telephone/mobile numbers viz. 9918802431, 9968493939 and 9811859219 for a period of 60 days and the same is Ex.PW11/B. PW11 further testified that D5 is an order dated 10.01.2009 from the Ministry of Home Affairs, New Delhi allowing Surveillance of CC No. 4/2013 Page 84 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 four telephon/mobile numbers viz. 9811229954, 9873409154, 9999920606d and 9717788506 for a period of 60 days and the same is Ex.PW11/C. PW11 further testified that D6 is an order dated 06.02.2009 from the Ministry of Home Affairs, New Delhi allowing surveillance of two telephone/mobile numbers viz. 9818802431 and 9968493939 for a period of 60 days and the same is Ex.PW11/D. Ld. Defence Counsels have argued that PW11 is not a service provider, therefore, he cannot intercept the calls. I disagree. PW11 is a special unit of CBI meant for intercepting calls and therefore, PW11 takes the character of a service provider.
Conversations which connect the case with diary Ex.PW28/A In the chargesheet, the prosecution has referred to the calls and tried to connect the amount paid by Piyush Goel to the accused persons. I reproduce the same as under :
CC No. 4/2013 Page 85 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Date Amount paid as per the Amount paid as per the taped Daily Diary telephonic conversation 20.11.2008 Rs. 5,00,000/ Piyush Note: As per the entries, a tells Mukesh that he has already paid total amount of Rs. 10.10 Rs. 11 lakhs to MCD people. lakhs had been paid till date 11.12.2008 Rs. 2,00,000/ After the money was arranged, Piyush asked Virender Pal to come tow collect "Kharcha".
17.12.2008 Rs. 1,00,000/ Piyush asked Mukesh to arrange "one
peti". He subsequently, asked
Virender Pal to collect "single gaddi".
24.12.2008 Rs. 1,50,000/ Piyush asked Virender to collect "1 ½
File".
25.12.2008 Rs. 1, 50, 000/ Mukesh asked Piyush to send money
to Parasharw.
06.01.2009 Rs. 2,00,000/ Piyush tells Mukesh that he was
paying Ts. 2 lakhs to Virender Pal.
He also asked Virender Pal to come
his house to collect the money.
13.01.2009 Rs. 5,00, 000/ Piyush asked Virender to collect
"Five" from the shop.
21.01.2009 Rs. 1,50,000/ Piyush asked Jaibir Sehrawat to
whom he would pay "1 1/2".
The Investigating Officer had seized the information report Ex.PW11/F from M. C. Kashyap on 27.07.2009, whereas, another set of calls were seized vide information report Ex.PW11/H on 15.07.2009. These informations mention the serial number of the call, call dates, calling party and called party, etc. CC No. 4/2013 Page 86 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 The call dated 20.11.2008 is Call No. 3 as mentioned in Ex.PW11/F, which is a conversation between Piyush Goel and Mukesh Gupta. I reproduce the relevant portion of the call by translating it in English as under :
"Piyush. 5 and 3 8 lacs have been paid to them
Piyush. And I have already paid Rs.11 lacs to MCD officials...."
The diary Ex.PW28/A mentions a sum of Rs.1,10,000/ on entry dated 27.10.2008 at point Q1; a sum of Rs.1,00,000/ is mentioned at entry dated 07.11.2008 at point Q2; a sum of Rs.3,00,000/ is mentioned at entry dated 17.11.2008 at point Q3; a sum of Rs.5,00,000/ is mentioned at entry dated 20.11.2008 at point Q4.
The recipient in all these entries is shown to be Architect/ MC or Architect Mool Chand. The total amount comes out to be Rs.10,10,000/. As per prosecution, the discussion between Piyush Goel and Mukesh Goel on 20.11.2008 matches with the entry of payment of Rs.5,00,000/ in the diary Ex.PW28/A. Now, I take up the Call No. 18, dated 11.12.2008, which is between Piyush Goel (A5) and Virender Pal (A4). I reproduce the same under :
CC No. 4/2013 Page 87 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 "Piyush In fact I am standing at 13/28 Virender On your hotel?
Piyush Not at hotel but in 13 Block for which you are coming to take Kharcha."
As per prosecution, this "Kharcha" is nothing but payment of Rs.2 lacs, which is mentioned in the diary Ex.PW28/A, which shows an entry dated 11.12.2008, paid to Architect/Mool Chand. Ld. Senior Public Prosecutor has drawn my attention that below it a figure 19.10 is written, which shows that till date an amount of Rs.19,10,000/ has been paid to the accused persons.
Now, I take up Call No. 29, dated 17.12.2008, between Piyush Goel and Mukesh Goel. I reproduce the same as under :
"Piyush Brother arrange one peti as Virender is sitting..."
Ld. Senior Public Prosecutor submits that "one peti" means "one lakh" in business jargon. He has drawn my attention to the entry dated 17.12.2008 in the diary Ex.PW28/A as point QR, which shows a sum of Rs.1,00,000/ against Architect/ Mool Chand.
CC No. 4/2013 Page 88 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Now, I take up the calls described in second bunch of call details chart seized on 15.10.2009, vide seizure memo Ex.PW11/H. Call No. 19, dated 24.12.2008, is a conversation between Piyush Goel and Virender Pal. I reproduce the same as under :
"Piyush Would 1½ files be alright?"
Virender It would be alright Sir."
As per prosecution, the "file" is a code word for "lakh". He has drawn my attention to the entry dated 24.12.2008, which mentions a sum of Rs.1,50,000/ against Architect/ Mool Chand.
Now, I take up Call No. 22, dated 25.12.2008 between Mukesh Goel and Umesh Parashar (A3). I reproduce the same as under :
"Parashar Ask Piyush and send that in my office ......
Mukesh Where should be sent?
Parashar Either send here itself or in the office"
The second call no. 23, dated 25.12.2008 between Mukesh Goel and Umesh Parashar (A3) is as under :
"Parashar Have you told?
Mukesh Yes I had told. Sending, sending just now.
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
Parashar Send within 5 to 10 minutes because I have to
go."
The third call no. 24, dated 25.12.2008 between Mukesh Goel and Piyush Goel (A3) is as under :
"Mukesh Please send. He is waiting there.
Piyush Yes. I will get it collected.
Mukesh He is waiting there ...."
Ld. Senior Public Prosecutor submits that these three calls dated 25.12.2008 show that Umesh Parashar is asking for bribe and Mukesh Goel is helping him by asking Piyush Goel to pay the same to Umesh Parashar. Ld. Senior Public Prosecutor has drawn my attention to the entry dated 25.12.2008 in the diary Ex.PW28/A, where at point Q10, a sum of Rs.1,50,000/ is written against Architect/ Mool Chand.
Now, call no. 30, dated 06.01.2009 between Piyush Goel and Mukesh Goel (A3) is as under :
"Mukesh I have to pay Rs.1,50,000/ to Vinayak. I was left with Rs.3 lacs only ..... out of which Rs.2 lacs are being taken by Birender Piyush This is the thing.
Mukesh Somehow try to avoid Birender.
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
Piyush But he is standing outside the house."
In another call no. 31, between Birender Pal and Piyush Goel, dated 06.01.2009 itself, the conversation is as under :
"Piyush Yes Birender Ji.
Birender I have just reached near the house Sir.
Piyush I have come out of the house but you are not
visible. Where are you?
Birender Sir I am on motorcycle. Just see Sir.
Piyush Now you are seen."
Ld. Senior Public Prosecutor argues that the conversations of two calls show that Mukesh is helping Birender to take the bribe amount from Piyush and Birender Pal had actually reached at the house of Piyush to collect the money. My attention is drawn by Ld. Senior Public Prosecutor to the entry dated 06.01.2009 in diary Ex.PW28/A at point Q12, where a sum of Rs.2 lacs has been mentioned against Architect/ Mool Chand.
Now, I take up call no. 34, dated 13.01.2009 between Piyush and Birender Pal, which is reproduced as under :
"Birender Yes Sir.
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
Piyush Have you seen the shop of chachaji?
Birender Which one Sir?
Piyush From where you had taken the money
earlier.
.......
Piyush You will get five from there.
......
Piyush You will get five. Remaining five I will arrange
after one week.
......"
Ld. Senior Public Prosecutor has drawn my attention to the entry dated 13.01.2009 in diary Ex.PW28/A at point Q13, where an amount of Rs.5 lacs has been mentioned against Mool Chand/ Architect. Below it, 32.10 is written in bracket, which denotes that till that time a sum of Rs.32.10 lacs had been paid to the accused persons, who are employees of MCD.
Now, I take up call no. 43, dated 21.01.2009 between Piyush and Birender Pal. In between the conversation, Birender Pal gives his mobile to Jaibir Sehrawat. Then Piyush talks with Jaibir Sehrawat. I reproduce the relevant portion as under :
"Birender Yes Sir. ......
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CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
Piyush Not much material is available. Only one peti is
there.
Birender One minute. (Birender talks with someone)
Piyush Yes.
Birender I am sitting with Neeraj Bauji.
Piyush ....... I have heard the talks. Sehrawat Ji is with
you. No?
....... I will arrange Rs.50,000/ from my wife. Please take 1½ from me.
.......
Birender One minute. Sehrawat Ji will talk to you Sir.
.......
Piyush Please send this Birender.
Sehrawat ......
Piyush Send, send. I will arrange 1½.
Sehrawat You are scoundrel. You are asking to send
Birender and not inviting me.
Piyush You come........"
Ld. Senior Public Prosecutor has drawn my attention to entry dated 21.01.2009 in diary Ex.PW28/A at point Q14, which shows an amount of Rs.1.5 lacs against Mool Chand/ Architect and in the bracket 33.60 is written, which denotes that an amount of Rs.33.60 lacs has been paid.CC No. 4/2013 Page 93 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Ld. Senior Public Prosecutor submits that although, further amounts of money paid by Piyush Goel are not being heard in the call details, but, since previous entries match with the conversations, it can safely be presumed that entry dated 05.02.2009 at Q15 and 06.02.2009 at Q16 for an amount of Rs.1.50 lacs and Rs.2.50 lacs respectively, must be true. It is submitted by Ld. Senior Public Prosecutor that an amount of Rs.37.60 lacs stands proved to have been paid by Piyush Goel to MCD officials by these entries.
I have carefully considered the submissions of Ld. Senior Public Prosecutor and I fully agree with him on comparison of the contents of the conversation quoted above and the contents of the diary.
I will again mention that on the cover of the diary 13/28 is written in pen, which further corroborates the fact that all these transactions are in respect of premises in question.CC No. 4/2013 Page 94 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 This type of evidence was not available before the other Special Judges but here the contents of call details are directly matching with the entries in the diary recovered from A5. This proves that the conversations are untempered. Further, these conversations clearly depict as to how Umesh Parashar (A3), Mukesh Gupta (A6), Virender Pal (A4), who has been mentioned as Birender were actively conspiring with A5 in procuring bribe money for A2. It appears that "architect Mool Chand" is a code word for "AE MCD", who was Suresh Kumar Lakra at that time.
Although there is no direct conversation between A1 and A5 but his name is frequently being referred to. I would like to refer to a call no. 46 of Ex.PW25/D1. It is a conversation between A1 and A2. A2 refers to the name of Piyush and also states that he had told him for "8 files". A1 says "no no".
Sherawat say "not less then 5 were asked by me". A1 states "yes. Ok ok". This conversation is dated 12.2.2009 as per the recorded call information record. Similarly, in call no. 53 dated 13.2.2009, there is conversation of A1 and A4, wherein A4 states that "he had caught Rs.2 from Piyush". A1 states "yes CC No. 4/2013 Page 95 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 yes". There is a conversation in call no.67 dated 4.4.2009, which is a conversation between A2 and A5. A5 tells Piyush "come immediately at 13/28. Lakraji has come". I may point out that as per Section 10 of Indian Evidence Act, anything said, done or written during the subsistence of conspiracy is a relevant fact. I further refer to call no. 4 dated 24.12.2008 as mentioned in D8, there is conversation between A1 and A2 about the complaint of 13/28. Sherawat tells Lakra that "it is complaint of 13/28 of their friend".
There is a very interesting conversation in call no.20 dated 24.12.2008 between A2 and A6. A2 is telling to A6 that there is a complaint of 28 (i.e. 13/28 property in question) and that he should take out all the details of house tax. A2 also advised A6 to raise 2 rooms on third floor so that the same may be demolished. Mukesh tells that construction at second floor has not started. A2 suggests him that quickly raise second floor and third so that it may be demolished.
I am aware that the mobile phone of A1 was not collected but distinct of A1 in voice sample and the phone clearly connect CC No. 4/2013 Page 96 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 him with the conversations. I am left in no doubt that A1 and A2 were fully involved with A5 and A6 so that A6 raises illegal construction in property no. 13/28. This act was done by them with active involvement and abettment of A3 and A4.
Conclusion If the first part of the judgement and the second party of the judgement are read together, a sordid tale of rapacious abuse of official position by A1 and A2 has come out which led to obtaining pecuniary advantage to A5. A3 was not posted in Karol Bagh Zone. Therefore, he cannot be said to have acted in the capacity of public servant but he was fully involved in conspiracy with A1, A2 and A4 aiding and abetting them in the offence in question. A4 is a public servant posted in the said area and A5 is the builders involved in carrying out the illegal construction. A6 had abetted him to pay bribe money to A1, A 2, A3 and A4.
Accordingly, I convict Suresh Kumar Lakra (A1), Jaibir Sherawat (A2) and Virender Pal (A4) under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption CC No. 4/2013 Page 97 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Act.
I convict all the accused persons under Section 120B read with Section 7, 12 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.
I further convict accused Piyush Goel (A5) under Section 12 of Prevention of Corruption Act.
Announced in the open court on 7.5.2016.
(Vinod Kumar) Special Judge03, CBI PC Act, PHC, New Delhi CC No. 4/2013 Page 98 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 IN THE COURT OF SPECIAL JUDGE03, (PREVENTION OF CORRUPTION ACT) (CBI) PHC, NEW DELHI CC No. 04/13 RC No. 3A/2009/ACUI/ND Central Bureau of Investigation Versus (1) Suresh Kumar Lakra S/o Sh. Satbir Singh Lakra R/o A2/274, Janak Puri, New Delhi (2) Jaibir Sherawat S/o Sh. Sahib Singh R/o Flat No. 61, Pocket24, Sec. 24, Sangam Apptt.
Rohini, New Delhi.
(3) Umesh Parashar
S/o Sh. Krishan Kumar Parashar
R/o 40/8, 3rd Floor,
East Patel Nagar, New Delhi
(4) Virender Pal
S/o Sh. Ram Kumar
R/o H. No. 1632,
Pana Mamurpur,
Pandit Balkishan wali Gali,
Narela, New Delhi
CC No. 4/2013 Page 99 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
(5) Piyush Goel
S/o Sh. Prakash Chand Goel
R/o 14A/42, WEA,
Karol Bagh, New Delhi
(6) Mukesh Gupta
S/o Sh. J. B. Gupta
R/o 55/4439, Raigarpur,
Karol Bagh, New Delhi
ORDER ON SENTENCE
9.5.2016
Presence: Sh. Manoj Shukla, Ld. Sr. P. P. for CBI.
All convicts on bail.
Sh. Javed Hashmi, Advocate for convict No. 1 and 3. Sh. Anil Kumar, Advocate for convict no. 2 and 4.
Sh. Ajay Burman, Advocate for convict no. 5 Dr. Sushil Gupta, Advocate for convict no. 6.
Ld. Senior Public Prosecutor has strongly prayed for full dose of sentence to the convicts in view of the circumstances that the MCD officials and builders have not only indulged in illegal money making but also their act has serious consequence for the town planning of the capital of India.
CC No. 4/2013 Page 100 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 Ld. Defence counsels have, on the other hand, prayed for a reformatory approach in view of the fact that this is their first conviction and that they have to support their old parents, ailing wives and children of young age. Ld. Defence Counsels have filed the copies of the medical records in favour of their submissions. Sh. Ajay Burman, Advocate has filed a separate application submitting that wife of convict Piyush Goel is suffering from Multiple Sclerosis, which is an unpredictable disease of the central nervous system, multiple sclerorsis (MS) can range from relatively benign to somewhat disabling to devastating, as communication between the brain and other parts of the body is disrupted and that there is no cure for this disease. Alongwith the record, a copy of certificate of Dr. (Prof.) Anshu Rohatgi, M.D. (MED.) DNB, DM (Neurology), Senior Consultant Neurologist, Sir Ganga Ram Hospital, New Delhi has been annexed.
I have perused the photocopy of the certificate, dated 09.04.2016 of Dr. Anshu Rohatgi, which states that Smt. Neetu Goyal (i.e. the wife of Piyush Goyal) is under her treatment since April 2012 and that she requires regular medical checkup and investigation as CC No. 4/2013 Page 101 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 this is a serious disabling disease. However, this certificate does not show as to what is the present status of the condition of the patient. From the medical records annexed with the application, no seriousness of condition of Smt. Neetu Goyal is appearing. Therefore, on this ground, it is not possible to take any lenient view.
Ld. Defence counsels for the other convicts have also filed the medical records of the convicts, their parents, wives and children. However, all these are day to day illnesses and cannot be considered as circumstances for taking lenient view.
After weighing the role of all the convicts and kind of evidence obtained against them during trial as well as considering the interest of State and society, I have divided the sentencing in two parts. In first part I will announce the sentence to the convicts of the first part of the judgement. Thereafter, I will announce the sentence to the remaining convicts.
Considering the gravity of offences committed by Suresh Kumar Lakra (A1), Jaibir Sherawat (A2) and Piyush Goyal (A5), I proceed to award the sentences as under :
CC No. 4/2013 Page 102 of 107CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 (1) Suresh Kumar Lakra (Convict No. 1) Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in No. Rigorous default of Imprisonment fine 1 120B IPC r/w Section 7, 12 & 05 years 20,000/ 02 months 13(1)(d) punishable u/s 13 (2) of Prevention of Corruption Act 1988 2 U/s 7 of Prevention of Corruption 05 years 20,000/ 02 months Act 1988 3 13(1)(d) r/w Section 13(2) of 05 years 20,000/ 02 months Prevention of Corruption Act 1988 All the sentences shall run concurrently.
(2) Jaibir Sherawat (Convict No. 2) Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in No. Rigorous default of Imprisonment fine 1 120B IPC r/w Section 7, 12 & 05 years 20,000/ 02 months 13(1)(d) punishable u/s 13 (2) of Prevention of Corruption Act 1988 2 U/s 7 of Prevention of Corruption 05 years 20,000/ 02 months Act 1988 3 13(1)(d) r/w Section 13(2) of 05 years 20,000/ 02 months Prevention of Corruption Act 1988 All the sentences shall run concurrently.
CC No. 4/2013 Page 103 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 (3) Piyush Goel (Convict No. 5) Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in No. Rigorous default of Imprisonment fine 1 120B IPC r/w Section 7, 12 & 05 years 50,000/ 05 months 13(1)(d) punishable u/s 13 (2) of Prevention of Corruption Act 1988 2 U/s 12 of Prevention of 05 years 50,000/ 05 months Corruption Act 1988 All the sentences shall run concurrently.
Now, I take the second set of convicts i.e. Umesh Parashar (A3), Virender Pal (A4) and Mukesh Gupta (A6). What distinguishes them from A1, A2 and A5 is that there is only evidence of intercepted calls against A3, A4 and A6. Hon'ble Supreme Court of India in Ritesh Sinha Vs. State of Uttar Pradesh (2013) CRL. L.J. 1320 was divided on the powers to take specimen voice samples of the accused persons. Therefore, Hon'ble Judges referred the matter to a higher Bench for decision on this issue. The judgement of larger Bench of Hon'ble Supreme Court of India is still awaited. This court is seriously conscious of the fact that in case larger Bench of Hon'ble Supreme Court of India opines against taking of specimen voice CC No. 4/2013 Page 104 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 samples, the evidence of specimen voices of A3, A4 and A6 would have to be rejected. In such a situation, no evidence would be left to identify the voices in the intercepted calls vizaviz A3, A4 and A6, who might earn a verdict of acquittal in appellate court on the basis of expected judgement of the larger Bench. Therefore, these convicts are required to be sentence differently. Accordingly, I proceed to announce the sentences to A3, A4 and A6 as under :
(4) Umesh Parashar (Convict No. 3)
Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in
No. Rigorous default of
Imprisonment fine
1 120B IPC r/w Section 7, 12 & 03 years 1,00,000/ 06 months
13(1)(d) punishable u/s 13 (2)
of Prevention of Corruption Act
1988
All the sentences shall run concurrently.
(5) Virender Pal (Convict No. 4)
Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in
No. Rigorous default of
Imprisonment fine
1 120B IPC r/w Section 7, 12 & 03 years 10,000/ 01 months
13(1)(d) punishable u/s 13 (2) of
Prevention of Corruption Act
CC No. 4/2013 Page 105 of 107
CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016
1988
2 U/s 7 of Prevention of Corruption 03 years 10,000/ 01 months
Act 1988
3 13(1)(d) r/w Section 13(2) of 03 years 10,000/ 01 months
Prevention of Corruption Act
1988
All the sentences shall run concurrently.
(6) Mukesh Gupta (Convict No. 6)
Sr. Offence punishable u/s. Sentence of Fine (Rs.) Sentence in
No. Rigorous default of
Imprisonment fine
1 120B IPC r/w Section 7, 12 & 03 years 1,00,000/ 06 months
13(1)(d) punishable u/s 13 (2)
of Prevention of Corruption Act
1988
All the sentences mentioned above shall run concurrently.
The bail bonds and surety bonds are hereby cancelled and sureties are discharged and convicts are taken to custody to suffer sentences.
Benefit of Section 428 Cr.PC be also given.
Copy of main judgement has already been supplied. Copy CC No. 4/2013 Page 106 of 107 CBI Vs. Suresh Kr. Lakra etc. Judgement dt. 7.5.2016 of order on sentence be supplied free of cost to all the convicts.
File be consigned to Record Room.
Announced in the open court on 9.5.2016.
(Vinod Kumar) Special Judge03, CBI PC Act, PHC, New Delhi CC No. 4/2013 Page 107 of 107