Delhi District Court
Cc 108/11 (Rc 1/2007)-Cbi vs . Ajay Kumar Shrotriya & Ors. 1 Of 56 on 17 August, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 108/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w
13(1)(d) PC Act 1988 and substantive offences thereof.
Unique ID No.02401R0046752009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Ashok Kumar Gupta
S/o Shri N.L. Gupta
R/o D-137, Fateh Nagar, New Delhi.
3. U.S. Gupta
S/o Shri N.L. Gupta
R/o D-137, Fateh Nagar, New Delhi.
4. Amarjeet Singh
S/o Shri Mela Singh
R/o 121, Narang Colony,
Janakpuri, New Delhi.
5. Mahinder Pal Singh
S/o Shri Har Charan Singh
R/o S-1/109, Old Mahavir Nagar,
New Delhi.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 1 of 56
Kamaljeet Kaur (since deceased)
D/o Shri Sohan Singh
R/o D-16, Fateh Nagar, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 17.08.2013
Date of Judgement : 17.08.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW15 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW15/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w 13(2) r/w 13(1)
(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW16/A bearing RC 1/2007 was accordingly registered and investigated by PW16 Inspector N. CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 2 of 56 Mahato. Fifteen separate chargesheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution. Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties has been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
2. In brief, the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW15/A by SI Arvind Kumar, enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE, West Zone, MCD, New Delhi detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 3 of 56
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Dehi
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
However, Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact that notings were false is corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. Enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) (OIB) and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 4 of 56 Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW16 Inspector N. Mahato and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution is that property no. D-16, Fateh Nagar, New Delhi (originally a 200 sq. yds. Plot with some constructed area) was owned by one Sohan Singh son of Tara Singh and he bequeathed his property through Will dated 19.01.1996 to his daughter Smt. Kamaljeet Kaur. Smt. Kamaljeet Kaur sold the ground floor and basement to Ashok Kumar Gupta and U.S. Gupta through Power of Attorney on 06.06.2002. She was also the owner of the first floor of the property and expired in 2004.
It is further the case of prosecution that accused Amarjeet Singh and Mahinder Pal Singh are the builders of the said property from basement to second floor and Kamaljeet Kaur sold two flats to them on 01.09.2001. Accused Amarjeet Singh and Mahinder Pal Singh further sold both the flats owned by them to Smt. Paramjeet Kaur and one Smt. Mamta on 16.10.2002 and 16.07.2002 respectively.
It is further the case of the prosecution that the entire construction in the building is unauthorized and without obtaining any sanctioned plan from MCD.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 5 of 56 The property was accordingly booked on 30.07.2002 for unauthorized construction of basement, ground floor, first floor and second floor vide FIR No. B/UC/WZ/02/350 dated 30.07.2002 (Ex.PW1/A) by Shri U.C. Saxena, JE and a show-cause notice u/s 344 (1) of DMC Act, 1957 dated 01.08.2002 (Ex.PW1/C) was issued. Further notice u/s 343(1) of DMC Act, 1957 dated 07.08.2002 (Ex.PW1/E) was issued under the signatures of Shri D.P. Gupta, AE on proposal by Shri U.C. Saxena, JE to the owner/builder of the property for demolition of the property within 6 days, as the construction had been carried in violation of the building bye-laws. Since the accused failed to respond to the said notices, the property was ordered to be demolished vide demolition order dated 14.08.2002 (Ex.PW1/F). The same was proposed by Shri U.C. Saxena, JE and approved by Shri D.P. Gupta, AE.
It is further alleged that Ajay Kumar Shrotriya, JE did not take any action for demolition in conspiracy with co-accused and recorded a false entry dated 09.01.2003 in the UC file on the back of the demolition order (Ex.PW1/F) to the effect "demolished/punctured the walls of rooms at second floor partly" and the file was further shown to be marked to AE(B) though the same was not put up before him. Further, no entry relating to demolition of said property was made by accused A.K. Shrotriya in the demolition register maintained in the office. It is also alleged that accused Ajay Kumar Shrotriya, in fact, did not report to SHO, P.S. Hari Nagar for police assistance and no charges for causing demolition were raised. It is further the case of CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 6 of 56 prosecution that on 09.01.2003 the demolition drive was carried out in the area of Ashok Nagar as per the records maintained at P.S. Hari Nagar and not at Fateh Nagar.
It is further the case of prosecution that during investigation after the registration of FIR/RC by CBI, property in question was inspected by a team of officers from CPWD and as per recport dated 30.01.2008 (Ex.PW7/A), the entire property was built without getting sanctioned building plan.
4. Charge was framed against accused Ajay Kumar Shrotriya, Ashok Kumar Gupta, U.S. Gupta, Amarjeet Singh and Mahinder Pal Singh u/s 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) along with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Accused Ajay Kumar Shartoriya was further charged for substantive offences u/s 417/465/468/217 IPC and under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined sixteen witnesses, namely, i. Shri Moti Lal ii. Shri Jai Bhagwan iii. Shri Ashok Kumar iv. Shri Dal Chand v. Shri D.P. Gupta vi. Shri Vijay Kumar Kadyan vii. Shri Sanjiv Kapoor viii. Shri Umesh Chand Saxena ix. Shri R.S. Rana x. Shri Lal Chand CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 7 of 56 xi. Shri Jagmohan Swaroop xii. ASI Jag Ram Singh xiii. Smt. Mamta Chandna xiv. Smt. Paramjeet Kaur xv. SI Arvind Kumar xvi. Inspector N. Mahato
(a) PW15 SI Arvind Kumar conducted the preliminary enquiry prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya, JE, West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person. Accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC and in this respect, a letter dated 23.01.2007 (Ex.PW15/A) comprising of four pages was written by CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 8 of 56 him to the then SP Shri A.K. Ohri whose signatures are at point B on all the pages.
(b) PW3 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE vide sanction order Ex.PW3/A.
(c) PW8 Shri Umesh Chand Saxena deposed that he remained posted as JE in MCD West Zone on deputation from DDA from 02.05.2002 till 31.12.2002. Further, FIR dated 30.07.2002 No. B/UC/WZ/02/350 (Ex.PW1/A) was lodged by him in respect of property no. D-16, Fateh Nagar regarding unauthorized construction under his signatures at point A. He further deposed that the concerned AE ordered "issue notices" at point E on FIR (Ex.PW1/A) under his signatures at point C. Further, on the basis of this FIR, a show-cause notice u/s 344 of DMC Act dated 01.08.2002 was ordered to be issued under signatures of the then AE Shri D.P. Gupta at point A and his counter signatures at point B. He further stated that an endorsement was made by him on the back of this notice at point E seeking approval for pasting the notice at site since owner/builder refused to receive the notice. He further deposed that the same was further put up before AE Shri D.P. Gupta for further necessary action whose signatures are at point F. Further, an endorsement was made at point A regarding pasting of the notice at site under his signatures along with the signatures of two witnesses.
He further proved notice u/s 343 of DMC Act (Ex.PW1/E) bearing his signatures at point B along with signatures of the then AE CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 9 of 56 Shri D.P. Gupta at point A. He further stated that an endorsement was made on the back of the notice at point D in his hand seeking permission to paste the notice since owner/builder refused to receive the same and the same also bears signature of the then AE Shri D.P. Gupta at point C. He further deposed that notice Ex.PW1/E further bears an endorsement at point A regarding pasting of the notice at site under his signature along with signatures of two witnesses.
He further proved the demolition order dated 14.08.2002 (Ex.PW1/F) bearing his signatures at point A which was approved by the then AE Shri D.P. Gupta at point B. He also stated that he remained posted in West Zone till 14.08.2002 and the file was handed over to OI(B) on 14.08.2002 and thereafter, he was transferred.
(d) PW5 Shri D.P. Gupta, AE, MCD deposed that he worked as AE(B) in West Zone from November, 2001 till September, 2002 and during that period, he was looking after the work of unauthorized construction and demolitions as reported by the concerned JE of the area. Further, as per procedure, file for demolition was to be taken by the concerned JE from OI(B) as per the programme fixed by the XEN and OI(B) in advance as per monthly schedule and thereafter, after carrying such demolition the file was used to be put up before him for its confirmation and the same was to be marked to concerned OI(B).
He further identified the show cause notice under section 344 of DMC Act dated 01.08.02 (Ex.PW1/C) bearing his signatures at point A issued on the basis of FIR B/UC/WZ/02/350 regarding unauthorized construction at property no. D-16, Fateh Nagar. He also identified his signatures on FIR (Ex.PW1/A) at point C with CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 10 of 56 endorsement/order (issue notices) at point D. He further deposed that endorsement at the back of show cause notice dated 01.08.02 (Ex.PW1/C) was made by the JE concerned Shri Saxena to the effect "I went to site to serve the notice but O/B refuses to receive the notice......". He further stated that the said endorsement at point E was put up before him as per procedure and he put his counter signatures at point F on it and file was thereafter sent back to the JE. He further stated that notice u/s 343 DMC Act dated 07.08.02 bearing his signatures at point A was forwarded back to OI(B) for further action. He further proved the endorsement made by the JE concerned on the said notice to the effect "I went to site to serve the notice but the O/B refuses to receive it and opposed to paste it" at point D and also identified his signatures at point C. He further deposed that demolition order dated 14.08.02 regarding property no. D-16 Fateh Nagar (Ex.PW1/F) bears his signatures at point B. He also stated that there is an endorsement on the back of this demolition order to the effect "demolished / ...... the walls of rooms at SF partly" under the signatures of concerned JE at point X and the same was marked to concerned AE(B). However, the same does not bear the signatures of concerned AE(B) after marking.
He also deposed that he was not present at site at the time of execution of notices u/s 344/343 DMC Act.
(e) PW6 Shri Vijay Kumar Kadyan deposed that during the period May, 2003 to May, 2005, he was posted as Executive Engineer in MCD, West Zone, Rajouri Garden, New Delhi and his duties as Executive Engineer were supervisory in nature which includes closing CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 11 of 56 of missalbandh registers pertaining to registration of FIR of unauthorized construction, sending reports to higher authorities regarding working of the building department, demolition programmes to be undertaken as well as which were executed. Further, he used to forward the reports as put before him.
He further deposed that the action taken report pertained to the details of demolitions, sealing of properties and action taken U/s 460 (A) of DMC Act etc. which were carried during the particular month and the same were forwarded by him to the higher authorities. Further, action taken reports were put up before him by OI(B) and the same were forwarded to higher authorities for further necessary action and intimation.
He further deposed that Action Taken Report (D13) (Ex.PW1/J) for various months from the period May 2003 onwards till May 2005 bears his signatures and missalbandh register (D9) (Ex.PW1/B) also bears his signatures for the period May 2003 onwards till May 2005. He further deposed that the FIR No. B/UC/WZ/02/350 dated 30.07.02 (D3) is entered in Missalbandh register pertaining to the said year and the relevant entry in this regard is available at point A at Sr. No.350 on Missalbandh register (D16) (Ex.PW1/B).
He further deposed that in 2003, Shri Moti Lal, Office Incharge (Building) used to put his signatures before putting the relevant record before him. Further, he identified his initials at point B on Ex.PW1/J. He further deposed that the demolition register (Ex.PW1/H) remained in possession of OI(B). Further, the JE concerned made the entries regarding the demolition carried as per CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 12 of 56 record.
He also stated that as per practice in the office, after the demolition action is taken and the file is placed before the AE, the same is marked to OI(B).
(f) PW1 Shri Moti Lal deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone, MCD and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh register and also used to make entries regarding unauthorized construction in missalbandh registers. Further, during his aforesaid assignment he had made various entries in missalbandh register regarding unauthorized construction maintained in his office.
He further stated that FIR No. B/UC/WZ/02/350 dated 30.07.2002 (Ex.PW1/A) regarding building no. D-16, Fateh Nagar was lodged by the then JE Shri U.C. Saxena. Further, he entered particulars of the FIR in missalbandh register (Ex.PW1/B) at Sr. No. 350 at point A and file was handed over to U.C. Saxena, the then JE.
Further, Shri D.P. Gupta, AE(B) issued show cause notice dated 01.08.02 (Ex.PW1/C) against the FIR dated 30.07.2002 (Ex.PW1/A). He also stated that as per endorsement at point A on the back of Ex.PW1/C, the same was pasted on 01.08.2002 at the premises in the presence of witnesses by Shri U.C. Saxena. Another notice u/s 343 DMC Act was issued on 07.08.2002 for which orders were sought from Shri D.P. Gupta, AE by Shri U.C. Saxena and order to issue notice dated 07.08.2002 (Ex.PW1/D) was issued under the signatures CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 13 of 56 of Shri D.P. Gupta, AE. He further deposed that as per endorsement at point A on Ex.PW1/D, the notice (Ex.PW1/E) was also pasted on the premises.
He further stated that the file was returned to him on 14.08.2002 after the issuance of Demolition Order and entry in respect of issuance of demolition order is available at point A on missalband register at serial No.350.
He further deposed that demolition order (Ex.PW1/F) dated 14.08.2002 was passed in respect of this property under the signatures of Shri U.C. Saxena at point A and confirmed under signatures of Shri D.P. Gupta at point B. He further stated that on the back of demolition order dated 14.08.2002 an endorsement was made at point C dated 09.01.2003 by Shri Ajay Kumar Shrotriya regarding part demolition and the file was marked to AE(B). He further deposed that as per procedure the file was to be returned to him on 09.01.2003 after the issuance of demolition order but the same was not returned.
He also stated that as per movement register (D-8) (Ex.PW-1/G), on 09.01.2003, certain files were taken over by Ajay Kumar Shrotriya vide entry at point A from him for demolition and same were also received back by him on the same day except file of this property.
He further deposed that demolition register (Ex.PW-1/H) was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard. Further, the entries regarding demolition of property No.D-16, Fateh Nagar were not made in the register at point A but other demolitions in various CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 14 of 56 properties carried on by Shri Ajay Kumar Shrotriya have been reflected in demolition register dated 09.01.2003. He further stated that as per practice prevailing in the office, the files should have been handed over to him on the same day but the same was never handed over to him by Ajay Shrotriya after the same were obtained.
He further clarified that the programme for demolition was used to be chalked out by the concerned XEN and the same were communicated to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard to levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. He further deposed that request for 09.01.2003 regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area for Tilak Nagar Area.
He further deposed that Action Taken Report against the unauthorized construction was used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official purposes. He further stated that in 2002-03 ShriVijay Kadyan and Brij Pal Singh, XEN were posted in West Zone. Further, Action Taken Report (Ex.PW-1/J) bears his signatures at point B on page No. 1,4,5,6,7 along with the signatures of the then EE, Shri Kadyan at point A. He further stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register during his official course of duty and the action taken reports were sent to concerned Sr. Officers on monthly basis by him. He further deposed that in the Action Taken CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 15 of 56 Report for the month of January 2003 and February 2003 available in D-13 (Ex.PW-1/J), there is no mention of demolition of property No.D-16, Fateh Nagar which were sent under the signatures of ShriBrij Pal Singh, the then XEN.
(g) PW2 Shri Jai Bhagwan, baildar (MCD), deposed that he remained posted as baildar in MCD from 2002 to 2010 in building Department and also worked under Ajay Kumar Shrotriya. Further, his duties involved demolition of unauthorized structure and pasting of notices. He further deposed that show cause notice under Section 344 (1)/343 of MCD dated 01.08.2002 was pasted at property No.D-16, Fateh Nagar on 01.08.2002 in his presence by the concerned JE and also identified his signatures at point B on the back of the notice Ex.PW-1/C. He further stated that notice dated 07.08.2002 (Ex.PW1/E) was also pasted by the concerned JE on property No.D-16, Fateh Nagar in his presence on 07.08.2002 and the same bears his signatures at point B. He further deposed that he could not recollect as to who was the concerned JE of the area, in which property No. D-16, Fateh Nagar fell and further when he had accompanied Ajay Kumar Shrotriya for demolition purpose. He further stated that he had put his signatures on the endorsement dated 01.08.2002 and 07.08.2002 at the instance of the concerned JE, who had put his signatures on the back of both the notices at point A.
(h) PW4 Shri Dal Chand, Driver (MCD), deposed that on 07.06.2003, he was posted in West Zone, Rajouri Garden, MCD and was deputed to drive vehicle No. DDL 4607 (mini truck make Nissan) CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 16 of 56 which was attached with the building department. Further, the truck was used for carrying labour/police personnel to the places in area where demolition work was to be undertaken and he used to take the vehicle on the place of demolition on the instructions of AE/JE or as deputed. He further deposed that he used to park vehicle near the place of demolition and when the demolition work was finished, he took all the labour/police personnel with him to drop in the office. Further, a log book was maintained to keep the record of plying of vehicle and he was maintaining it for official purpose. He further stated that attested photocopy of log book (D-15) (Ex.PW4/A) was maintained in the office from April, 2002 to May, 2003 and proved entry on page no. 24 dated 09.06.2003 at point A regarding taking of vehicle no. DDL 4607 to Punjabi Bagh police station and from there to East Punjabi Bagh and then back to office. He further deposed that the vehicle was requisitioned by JE Mohd. Ahmed who put his signatures in the entry at point A in column no. 12 and his name as driver was indicated in column no. 15 of the log book in entry dated 09.06.2003. At this stage, it may be observed that the entry proved by this witness does not appear to be relevant to the proceedings in this case.
(i) PW10 Shri Lal Chand posted as Driver in MCD, West Zone, Delhi proved the entry dated 09.01.03 in the log book (Ex.PW10/A).
He deposed that he used to ferry the officials and the police force as and when directed by the officials and used to maintain log book (Ex.PW10/A). In case the truck was requisitioned by a particular officer, the same was reflected and the log book was also CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 17 of 56 countersigned by the officer concerned in the relevant column in the log book. Further, he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 09.01.03. He further stated that the log book was maintained by him for vehicle no. DDL 4607 driven by him on various dates and the entries on various dates on which he was deputed in the vehicle are in his handwriting. He further deposed that entry dated 09.01.03 is in his hand as per which, he had taken the vehicle on the requisition of the then JE Shri Ajay Kumar Shrotriya who visited Police Station Tilak Nagar to take police force for demolition. Further, the entry at point A is in his hand and also bears his signatures at point B and initials of Shri Ajay Kumar Shrotriya at point C. He further stated that later on, he returned back to his office after dropping the police force at PS Tilak Nagar after demolition work.
(j) PW7 Shri Sanjiv Kapoor, Senior Architect (CPWD) and PW11 Shri Jagmohan Swaroop, Retired SE (CPWD) are the witnesses to the inspection and preparation of report which reflected the existing construction in the property in question after the FIR was registered by CBI.
PW7 Shri Sanjiv Kapoor proved the report (Ex.PW7/A) in respect of property no. D-16, Fateh Nagar, New Delhi and identified his signatures at point A, signatures of Shri B.D. Bansal at point B, Shri S.L.S. Yadav at point C and Shri Jagmohan Swaroop at point D on page 2 of the report.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 18 of 56 PW11 Shri Jagmohan Swaroop also deposed on similar lines and identified the signatures of the officials on the report Ex.PW7/A. He further stated that the report Ex.PW7/A also described the permissible construction as per building bye-laws of 1983 and actual coverage at site.
(k) PW9 Shri R.S. Rana, AGEQD proved the report with reference to examination of documents (Ex.PW9/B) comprising of seven pages along with detailed reasons.
He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW9/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW9/B) comprising of seven pages along with detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A on Ex.PW9/B.
(l) PW12 ASI Jag Ram Singh deposed that in 2008 he was posted as HC in PS Tilak Nagar and was performing the duty of Reader to the then SHO. Further, the demolition register was maintained at the PS with respect to the demolition carried by the MCD and the entries in the same were made by Ct. Jacob Mathew who was working under him. He further deposed that demolition CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 19 of 56 register maintained at PS (Ex.PW12/A) contains the record for the period 1999 to August, 2003 and the relevant entries had been made in the register for the year 2002 and 2003 by Ct. Jacob Mathew. Further, he identified the entry dated 09.01.03 in which all columns except column no.4 were filled in by Ct. Jacob Mathew at Sr No. 1 (Point A) which reflects that the police force was requisitioned for carrying out demolition in Tilak Nagar area. The demolition was further carried out in Tilak Nagar area with the help of outside force.
(m)PW13 Smt. Mamta Chandna working as Assistant Manager in Airport Authority of India deposed that she had been staying at D-16, Second Floor, Fateh Nagar, New Delhi since July, 2002 which was purchased in the year 2002 in her name along with her husband Shri Ramesh Kumar from Amarjeet Singh. Further, she identified identified photographs of Amarjeet Singh and Mahinder Pal Singh on Sale Deed (Mark PW13/A) dated 16.07.2002 executed for the purpose of purchase of the said property. She further deposed that no notice was received from MCD in respect of the construction carried in aforesaid property to her knowledge. She also stated that some demolition action had been taken in respect of the construction carried in the property in January, 2003.
This witness was cross-examined by ld. PP for CBI on the ground that the witness resiled from her statement u/s 161 Cr.P.C. However, during cross-examination by ld. PP, she further clarified that demolition action was firstly taken in D-15, Fateh Nagar and, thereafter, in D-16, Fateh Nagar.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 20 of 56
(n) PW14 Smt. Paramjeet Kaur deposed that she had been staying at D-16, Second Floor, Fateh Nagar, New Delhi measuring about 100 sq. yards since October, 2002 which was purchased from Amarjeet Singh along with another person and she further identified accused Amarjeet Singh and M.P. Singh. She also identified the documents which were executed for purpose of sale/purchase of said property i.e. photocopy of GPA dated 16.10.02 along with agreement to sell (Mark PW14/A and PW14/B respectively). She further deposed that she did not recollect if any notice was received from MCD in respect of the construction carried in aforesaid property.
During cross-examination on behalf of accused Ashok Kumar Gupta and U.S. Gupta, she further clarified that MCD officials had demolished a portion of wall in the property but she did not recollect the date.
(o) PW16 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A.K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW16/A).
He further stated that FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW15/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi.
He further stated that during the course of investigation, he CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 21 of 56 obtained the search warrant from Special Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Kumar Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like copy of missalband register (Ex.PW1/B), demolition register (Ex.PW1/H), log book (Ex.PW10/A), attendance register (Ex.PW16/C), demolition register pertaining to PS Hari Nagar (Ex.PW16/D) and action taken report Ex.PW1/J. He further deposed that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW9/A).
He further stated that he issued notices to the concerned witnesses/officials and also recorded the statement of witnesses which were relevant to the case. He also stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW7/A) from the concerned department.
He further deposed that the unauthorized construction file was seized consisting of FIR, notices u/s 343/344 DMC Act and demolition order along with other relevant documents.
Further, he had also joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard. He further deposed that as per CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 22 of 56 investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in accordance with law.
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He further took a categorical stand that Shri Gautam Chand, AE was present at site at the time of demolition action and had left after the partial demolition action was taken. Further, when he reached the office, AE was not available and as such the file must have been given to OI(B) on the same date. He further stated that since the space for entries as per date earlier marked in the demolition register in advance, no space was left/available on that page and, hence, the entry might have been left out inadvertently. He also took a stand that for minor demolitions, no charges were made. He further submitted written statement u/s 313(5) Cr.P.C. and also examined DW1 Shri Pradeep Kumar Mittal present OI(B) in defence.
DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD Delhi proved the tenure and wards assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 01.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW1/X collectively). He further stated that the same was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001 and CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 23 of 56 bears his signatures at point A, signatures of Shri A.K. Meena, EE at point C and Shri R.K. Ailawadi, Superintending Engineer at point B on each page.
All the other accused, namely, Ashok Kumar Gupta, U.S. Gupta, Amarjeet Singh and Mahinder Pal Singh (other than Ajay Kumar Shrotriya) in their statements u/s 313 Cr.P.C also denied the case of prosecution and claimed that they had been falsely implicated. Accused further took a stand that they had neither met Ajay Kumar Shrotriya nor he was known to them. However, no evidence in defence was led on behalf of the accused.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW3/A had been passed by PW3 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 24 of 56 to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11, 114/11 & 117/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the chargesheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 25 of 56 agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
f) It was also contended that it could not be inferred that the proceedings were not conducted by Ajay Kumar Shrotriya as per noting dated 09.01.03 and partial demolition action was not carried out, merely because the file was not reflected by the OI(B) in the 'file movement register'. Reliance was also placed on the cross-examination of PW1 Shri Moti Lal who admitted having missed the making of entries several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 09.01.03 CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 26 of 56 without police force and taken action in this property i.e. D15 Fateh Nagar as well as D16 Fateh Nagar in the presence of the AE Shri Gautam Chand who was also examined in defence as DW2 in CC No.107/11 which has been taken up for arguments along with this case.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 09.01.03 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 19 for a short duration from 07.10.02 to 20.01.03 and the investigating agency had made him as a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri Mohd Ahmad, Krishan Kumar, R.P.S. Nain, S.K. Anand and D.B.S. Hooda (JEs) who were posted before or after him in the same ward and failed to take any action were given clean chit along with all the AEs who were equally responsible to take action but failed to do so. It was further urged that Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 27 of 56 action taken by him ignoring even the act of the JEs/AEs/EE during whose tenure the building had come up but the same had neither been booked nor any action for demolition was taken.
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 09.01.03 the action was taken by him without police force after the scheduled demolition action had been taken in Tilak Nagar area. It was submitted that merely because the demolition had been taken by him in the area of Tilak Nagar with the help of police force as reflected in entry dated 09.01.03 in the demolition register, it could not be assumed that he had no powers to independently proceed in the area in his jurisdiction in Hari Nagar Ward in the property which is situated behind PS Tilak Nagar for taking the action as per law.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 09.01.03 merely because a corresponding entry was not subsequently made in the demolition register though the same was duly reflected in UC file on the back of demolition order.
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 28 of 56 Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that none of the JEs/ AEs/ EE had been booked during whose tenure the unauthorized construction had come up and the same was only subsequently booked by way of FIR on 30.07.02 by Shri U.C. Saxena, JE. It is also submitted that the fact that the construction had come up much prior to than the date of booking of FIR on 30.07.02 is corroborated from the fact that various portions / flats in the property had already been sold prior to registration of FIR by MCD.
Counsels for other accused i.e. Ashok Kumar Gupta, U.S. Gupta, Amarjeet Singh and Mahinder Pal Singh submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular, since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused were known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the accused had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. The partial demolition action was claimed to have been carried in the CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 29 of 56 property in question on 09.01.03 though the service of notices u/s 343/344 DMC Act, 1957 was disputed. Counsel for accused Ashok Kumar Gupta and U.S. Gupta also submitted that there was no evidence on record to show that they were the builders of the property and had purchased the same as bonafide purchaser after the construction in the premises had been raised.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 09.01.03 in the UC file was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 09.01.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record. Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya; Shri G.S. Kaushik, Advocate for accused Ashok Kumar Gupta and U.S. Gupta; Shri R.P. Singh, Advocate for accused Amarjeet Singh and Shri M.P. Singh, Advocate for accused Mahinder Pal Singh, ld. PP for CBI at length and perused the record.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 30 of 56 Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 09.01.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 31 of 56 prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 32 of 56 cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826. CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 33 of 56 "21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 34 of 56
10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 35 of 56 The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11 & 109/11, 117/11 and 114/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No. 92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawal of six other similar cases against Ajay Kumar Shrotriya & others under Section 321 Cr.P.C. (except the present cases CC No 107/11 and 108/11 and with 2 other cases) which are pending consideration before this Court.
11. Keeping in view the principles referred to in the preceding CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 36 of 56 paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
It may also be observed that the property number D15 involved in CC No.107/11 and D16 involved in CC No.108/11 are adjacent and date of issuance of notices u/s 343/344 DMC Act dated 01.08.02 and 07.08.02 along with demolition orders issued in both the cases on 14.08.02 is the same. Even FIR in both the cases was registered by MCD for booking of unauthorized construction on the same date 30.07.02. The alleged demolition action taken by Ajay Kumar Shrotriya in both the cases is also of same date i.e. 09.01.03. As such both the cases have been taken up together for disposal.
Evidence has been led on record in defence whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
Ward No. Name of JE's Tenure of JE's in said Ward
Shri U.C. Saxena 02.07.02 to 14.08.02
Mohd. Ahmed 14.08.02 to 07.10.02
19-20 Shri Ajay Kumar Shrotriya 07.10.02 to 20.01.03
Shri Krishan Kumar 20.01.03 to 30.04.03
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 37 of 56
Shri R.P.S. Nain 30.04.03 to 18.06.03
Shri S.K. Anand 18.06.03 to 08.08.03
Shri D.B.S. Hooda 08.08.03 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted in concerned ward wherein property is located only for a short period from 07.10.02 to 20.01.03. The property in question was booked for unauthorized construction on 30.07.02 by U.C. Saxena, JE. It is reflected on the FIR, booked by MCD that the same was registered "on complaint -on completion" of building. The unauthorized construction is further detailed in the FIR as under:
"Unauthorized construction of basement, ground floor hall, first floor and second floor- six rooms, two bath toilet"
It is pertinent to note that during the entire process of construction, the building was never booked for unauthorized construction and was permitted to come up against the building bye-laws. Further the role of the Junior Engineer, AE and EE posted at aforesaid time has been completely ignored by the investigating agency. Even the period during which the construction has come up has not been proved on record. The ground floor and basement of the building already stood constructed when the same (i.e. half portion of basement and first floor) was respectively sold vide separate Sale Deeds dated 06.06.02 in favour of Ashok Kumar Gupta and U.S. Gupta, both sons of N.L. Gupta (as per the photocopies of sale deeds seized vide memo Ex.PW16/DX1). Further separate GPAs dated 01.09.01 and agreement to Sell had been executed in favour of accused CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 38 of 56 Amarjeet Singh and Mahinder Pal Singh in respect of second floor of the premises with roof rights in respect of separate portions measuring 100 sq. yards by Kamaljeet Kaur (since deceased). The photocopy of General Power of Attorney in respect of western half portion of second floor premises with roof rights along with agreement to sell and receipt was taken into possession vide memo dated 06.11.08 during investigation (Ex.PW16/DX3).
The conspiracy to carry the unauthorized construction must have been in existence between the original owner/builder of the property and the concerned JE/AE posted at aforesaid time. However, the investigating agency does not appear to have taken the aforesaid aspect into consideration and accused Ajay Kumar Shrotriya who was subsequently posted and allegedly took the partial demolition action has been only booked. Smt. Kamaljeet Kaur who was the owner of the premises is stated to have expired prior to investigation.
It may also be noticed at this stage itself that the flats constructed on the second floor in an area of 100 sq. yards each which have been described as the western portion and the eastern portion had been sold by accused Amarjeet Singh and Mahinder Pal Singh vide GPA and agreement to sale dated 16.10.02 in favour of Smt. Paramjeet Kaur w/o Manjeet Singh (PW14) and vide Sale Deed dated 16.07.02 in favour of Smt. Mamta (PW13) but interestingly the aforesaid occupants/purchasers have been cited as witnesses in the present case. However, in the similar circumstances the purchasers of the properties prior to carrying CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 39 of 56 of demolition action in CC No.107/11 which has been taken up along with this case and also in other cases which have come up before this court, have been arrayed as accused allegedly on the assumption that they had entered into conspiracy with Ajay Kumar Shrotriya since the unauthorized construction had not been completely demolished. In case PW13 and PW14 had already purchased the second floor of the premises then they should have been arrayed as accused as done by the Investigating Agency in CC No.107/11 and other cases chargesheeted by them.
It may also be noticed that even after booking of aforesaid property by MCD on 30.07.02 subsequent construction on the third floor appears to have been raised as noticed in the report prepared by CPWD officials prepared on inspection on 30.01.08 (Ex.PW7/A) but the same has not been subsequently booked. However, the investigating agency has not bothered to look into the role of MCD officers during whose tenure the further construction may have come up and was required to be looked into as the same was unauthorized.
12. It may be observed that notices u/s 344 (1) DMC Act, 1957 dated 01.08.02 (Ex.PW2/C) as well as 343 DMC Act dated 07.08.02 (Ex.PW2/D), were issued by Shri U.C. Saxena, JE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Shri U.C. Saxena, JE after obtaining the approval from Shri D.P. Gupta, the then AE. However, it is surprising that even the name of the owner/builder is not reflected in CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 40 of 56 the aforesaid notices and some portions of the building appear to be already sold to different persons much prior to issuance of aforesaid notices. Accused Ajay Kumar Shrotriya does not appear to have any role till the aforesaid stage of service of notices including the passing of demolition order (Ex.PW1/F) which was proposed by Shri U.C. Saxena, JE and approved by Shri D.P. Gupta, AE on 14.08.02.
The investigating agency has only disputed the entry dated 09.01.03 made by Ajay Kumar Shrotriya, JE during his tenure in the ward from 07.10.02 to 20.01.03 on the demolition order whereby partial demolition action was stated to have been carried by him and the endorsement was made to the following effect "demolished/punctured the walls of room of SF partly". The file has been thereafter shown to be marked to AE(B) but does not bear any further endorsement. Also, no corresponding entry appears to have been made on 09.01.03 in the demolition register. The said entry is alleged by prosecution to be concocted without actually carrying the demolition.
Before adverting to aforesaid entry made by Ajay Kumar Shrotriya, it is pertinent to note that no action was taken by Mohd. Ahmed, JE who was posted prior to Ajay Kumar Shrotriya from 14.08.02 to 07.10.02 but his role along with AE concerned has been overlooked by the investigating agency though they failed to take any action for demolition of unauthorized construction. Further, even though the file never stood closed by the aforesaid noting dated 09.01.03 made by Ajay Kumar Shrotriya whereby partial demolition action was taken but the role of the JE/AEs posted after his transfer on 20.01.03 has been CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 41 of 56 also completely overlooked by the investigating agency.
The entire blame and investigation only centres around entry dated 09.01.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that if the unauthorized construction had commenced prior to posting of Ajay Kumar Shrotriya and further demolition action was not taken after his transfer, the conspiracy obviously would also have been with the JE/AE/EE posted during said tenure rather being only confined with Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but it is suffice to point out that there is no evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused who are the purchasers of the different portions of the property and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 09.01.03. The root of the prosecution case as such appears to be on a slippery ground.
13. It is further pertinent to observe that by mere part demolition action dated 09.01.03 the file never stood closed. PW5 Shri D.P. Gupta, the then AE(B), MCD West Zone stated in his cross- examination dated 09.02.12 (page 2) that till the time the demolition action is taken or the unauthorized construction is compounded/regularized, the file is not closed.
Also, PW6 Shri Vijay Kumar Kadyan, the then EE(B) corroborated the above fact in his cross-examination dated 09.02.12 (page 10) that there has to be specific order for closing the file by AE CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 42 of 56 concerned and the file is not closed till the complete action is taken against unauthorized construction or the unauthorized construction is regularized.
Further, PW8 Shri Umesh Chand Saxena, the then JE(B) also stated in his cross-examination dated 09.02.12 (page 2) that till the time unauthorized construction file is closed, the action for demolition can be again taken.
It may be noticed that Ajay Kumar Shrotriya had been transferred from the ward within a period of about 11 days of making of entry dated 09.01.03. Merely because the file has not been further taken up on being marked to AE(B) does not automatically lead to an inference that the proceedings had been forged.
It may be further observed that the prosecuting agency did not bother to examine the concerned AE Shri Gautam Chand who was posted on 09.01.03 in the concerned ward. Prosecution has only examined Shri D.P. Gupta (PW5) the then AE who was posted as per his deposition in West Zone, MCD from 2001 till September, 2002 and had approved the issuance of notices u/s 343/343 DMC Act and the demolition order (Ex.PW2/F). However, he was not posted in the ward on 09.01.03 when the entry of partial demolition action was made by Ajay Kumar Shrotriya and the said fact was confirmed by him in his cross-examination. No explanation has been forthcoming by the investigating agency as to why the AE posted at the relevant time i.e. Shri Gautam Chand was not examined or cited as a witness since he was the relevant official to confirm the demolition action if taken by Ajay Kumar Shrotriya and was also CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 43 of 56 equally responsible for demolition action in the premises in question.
It may also be noticed that Gautam Chand, the then AE has been examined on behalf of accused Ajay Kumar Shrotriya in defence as DW2 in CC No.107/11 which has been taken up for arguments along with the present case. The testimony of DW2 Gautam Chand examined in CC No.107/11 has been relied and referred to by accused Ajay Kumar Shrotriya in the present case though the witness was not separately examined in this case.
DW2 Shri Gautam Chand in his examination-in-chief in CC No.107/11 stated that demolition action could be taken in respect of unauthorized construction in any property even without the unauthorized construction file and also clarified during cross- examination that he had accompanied Ajay Kumar Shrotriya during demolition of D16 Fateh Nagar in which the demolition action was also taken by Ajay Kumar Shrotriya on 09.01.03 under similar circumstances. He also stated that no complaint is to his notice that demolition action had not been carried by Ajay Kumar Shrotriya and also denied that the demolition action had not been taken.
14. The prosecution has next contended that since the demolition action carried on 09.01.03 in D-15, Fateh Nagar (involved in CC No. 107/11) and D-16, Fateh Nagar (involved in CC No.108/11) is not reflected in the demolition register, the entry in unauthorized construction file is fabricated. It is also submitted by prosecution that CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 44 of 56 the visit at D-15 & D-16 Fateh Nagar is not corroborated by the log book.
A bare perusal of entry dated 09.01.03 made in the demolition register reflects that on 09.01.03 the schedule was fixed for demolition at Tilak Nagar by Ajay Kumar Shrotriya, JE and Shri U.C. Saxena, JE. The fact that demolition was carried in Tilak Nagar with the aid of police force is not disputed.
However, Ajay Kumar Shrotriya has taken a categorical stand that he did not visit D-15 & D-16, Fateh Nagar with aid of police force and the action was taken after the demolition action had been completed in the area of P.S. Tilak Nagar. The stand taken by him that he visited D-15 & D-16, Fateh Nagar without police force along with the AE has been supported by Shri Gautam Chand, AE who has been examined in defence as DW2 in CC No.107/11. The testimony of the witness is categorical to the effect that he visited the property in question with JE and that the action could have been taken by the JE even without the police force and the same cannot be discarded. If any such entry was forged, then obviously the concerned AE Shri Gautam Chand should also have been charged by the investigating agency.
It may also be noticed that PW2 Shri Jai Bhagwan, the then Baildar, MCD West Zone also categorically stated in his cross- examination dated 03.04.12 (page 2 para 1) by accused Ashok Kumar Gupta and U.S. Gupta that demolition had been partly carried out in property no. D-16, Fateh Nagar in his presence.
In view of corroboration of demolition action by the AE on CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 45 of 56 09.01.03, it cannot be conclusively held that the entry dated 09.01.03 had been forged by Ajay Kumar Shrotriya merely because a corresponding entry was not made in the demolition register or the file was not taken at site.
It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted, it has come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so for the reason that the conspiracy with co-accused (i.e. occupants/owners of the different portions in the property) has not been proved beyond reasonable doubt.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 46 of 56
15. It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE without entry in the movement register since he did not visit the site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 47 of 56
16. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that during cross-examination of PW1 Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge- sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW1 Moti Lal in his cross-examination dated 02.04.12 page no.6 in this case (i.e.CC No.108/11) to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 48 of 56 entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of PW1 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW1 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW1 Moti Lal dated 02.04.12 on page no.2 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No.C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 4 of the cross- examination dated 02.04.12 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 49 of 56 C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 09.01.03 is forged and the demolition action had not been carried by the JE.
17. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 50 of 56 also been raised in other cases decided by this Court. In CC No. 114/11, Shri Brij Pal Singh, EE was examined by the prosecution and in the aforesaid case, he stated that in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:
"The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW16 Insp. N. Mahato (IO) in the present case (i.e. CC No.108/11) in his cross-examination dated 17.08.12 page 13 that "the demolition charges in respect of action taken by MCD are required to be collected by AE and not by the JE."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 20.01.03 the further action in this regard, if any, could be only taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 51 of 56 entry dated 09.01.03 carrying partial demolition action had been forged.
18. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 09.01.03..
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be inferred that partial demolition action dated 09.01.03 is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 09.01.03. Accused Ajay Kumar Shrotriya could not have taken any further action after his transfer from the ward on 20.01.03 and the responsibility lay on the succeeding officials since the file never stood closed.
It may also be noticed that the report (Ex.PW7/A) prepared by CPWD reflecting the existing construction in 2007/08 does not specify the period during which the construction may have been carried out in the different portions of the property. The exact extent/area of unauthorized construction carried at the time of booking of FIR by MCD and the construction existing earlier has not been specified in CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 52 of 56 the FIR. In the aforesaid context, PW16 Inspector N. Mahato in his cross-examination stated that he did not try to ascertain if the property may have been renovated/repaired after the part demolition. It cannot be ruled out that unauthorized construction removed by way of partial demolition action taken by Ajay Kumar Shrotriya on 09.01.03 may have been repaired by the owner/builder of the property. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 09.01.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised in the property cannot be doubted.
19. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since the accused Ajay Kumar Shrotriya, JE had forged the entry dated 09.01.03 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW16 Inspector N. Mahato during his cross- examination dated 17.08.12 stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW16 admitted in his cross-examination dated 17.08.12 that there was no direct evidence of conspiracy but CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 53 of 56 the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 09.01.03 had been falsely introduced which itself has not been proved beyond reasonable doubt.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 09.01.03 the property of the owner/builder could not have been saved from further demolition action. The action for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 20.01.03.
The testimony of PW13 Smt. Mamta Chandana and PW14 Smt. Parmjeet Kaur who were the purchasers of the second floor of the property is also pertinent to be noticed as it demolishes the prosecution case that partial demolition action had not been taken on 09.01.03 by Ajay Kumar Shrotriya. PW13 Smt. Mamta Chandana who is the purchaser of property vide Sale Deed dated 16.07.02 (Mark PW13/DA) categorically disputed the receipt of notice issued by U.C. Saxena, the earlier JE from MCD in respect of unauthorized construction carried in the premises. She further admitted that demolition action had been carried in respect of construction existing CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 54 of 56 in the premises in January, 2003. The witness was cross-examined by ld.PP for CBI since she did not support the case of prosecution and even in cross-examination categorically stated that a wall had been demolished on the second floor by MCD officials in January, 2003. She also deposed that demolition action had been initially taken in D15 Fateh Nagar and thereafter in the property in question i.e. D16 Fateh Nagar. Similarly, PW14 Smt. Paramjeet Kaur who is the purchaser of the other flat on second floor of the property during cross-examination also admitted that MCD officials had demolished a portion of wall in the property but did not recollect the date. In the facts and circumstances, case of the prosecution that the entry of partial demolition action had been fabricated by Ajay Kumar Shrotriya in furtherance to conspiracy with co-accused is not corroborated by the evidence on record.
20. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 55 of 56 investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored.
21. For the foregoing reasons, the prosecution has failed to bring home the charge against all the accused beyond reasonable doubt. All the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 17th August, 2013 Central District, THC, Delhi. CC 108/11 (RC 1/2007)-CBI vs. Ajay Kumar Shrotriya & Ors. 56 of 56