Delhi District Court
Krishnamurthy vs . State Of Karnataka, (2005) 4 on 23 May, 2017
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
C.C.No. :04/2012
ID No. :28/2016
FIR No. : RCAC2/2004/A/0005
dated 27th September, 2004
U/s. : 13(2) r/w section
13 (1) (e) of Prevention of
Corruption Act, 1988.
In the matter of:
Central Bureau of
Investigation (C.B.I.)
V e r s u s
1. Ajay Kumar Takkar
S/o Sh.Krishan Kumar Takkar
R/o A104, Satyam1, Raheja Complex
Malad (East)
Mumbai400097.
2. Sandhya Takkar
W/o Ajay Kumar Takkar
R/o A104, Satyam1, Raheja Complex
Malad (East)
Mumbai400097. ... Accused persons
Page: 1/323
Date of Institution : 29.12.2007
Date of reserving judgment : 23.02.2017
Date of pronouncement of judgment : 22.05.2017
JUDGMENT
1. Accused Ajay Kumar Takkar has faced trial in the present case for having committed an offence of criminal misconduct as defined under section 13(1)(e) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and punishable under section 13 (2) of PC Act and accused Sandhya Takkar has faced trial in the present case for abetting accused Ajay Kumar Takkar in commission of said offence and thus, have committed an offence punishable under Section 109 IPC read with Section 13(2) and 13(1)
(e) of PC Act.
2. Briefly stated the assertion on which the Page: 2/323 present charge sheet has been filed against the accused persons is as follows :
(i) On the basis of a source information received, CBI registered FIR bearing no. RC AC2/2004/A/0005 dated 27th September, 2004 against accused Ajay Kumar Takkar, the then General Manager, BSNL, Maharashtra Circle, Vasai Distt.Thane, Maharashtra alleging therein that while working in different capacities with BSNL & MTNL at New Delhi & Mumbai, accused had during the period from December 1977 to 2004 acquired assets through corrupt & illegal means, which were disproportionate to his known sources of income and for which he could not satisfactorily account for.
3. The following facts emerged during investigation of the aforementioned FIR (the check period for the investigation was taken to be between 01.04.1994 to 29.09.2004 as it was during this period that accused Ajay Kumar Takkar Page: 3/323 while posted in different capacities was alleged to have acquired huge assets both movable and immovable):
(i) That Sh.Ajay Kumar Takkar had joined Indian Telecom Services on 12.12.1977 and since then had served in different capacities at various places in Bharat Sanchar Nigam Limited (BSNL) and Mahanagar Telecom Nigam Limited (MTNL) including foreign deputation to Saudi Arabia from February 1989 to September 1993. As per the charge sheet, accused Ajay Kumar Takkar got married to Smt.Sandhya Takkar in May, 1982. It is stated that Smt.Sandhya Takkar is a housewife and both accused have two daughters namely Preeti and Aditi.
(ii)During the course of investigation, CBI had taken into account all the immovable properties and the movable assets which accused persons had in their possession in the form of shares, debentures, bonds, saving bank deposits, fixed Page: 4/323 deposits, household goods, KVP and NSC etc. at the beginning of "Check Period".
(iii) While calculating the worth of assets at the start of Check Period, the investigating agency had also taken into account the refunds received by the accused during check period from the investments made before start of the check period. Besides which they had also added the amount received by the accused from foreign remittance, as accused Ajay Kumar Takkar had remained posted in Saudi Arabia on deputation for about 41/2 years before start of the check period.
(iv) The investigating agency similarly had considered the immovable assets held by the accused persons in their separate and joint names and also all the movable assets which they had at the end of the check period.
(v) While calculating the known sources of income of accused persons during the "check period", net salary of accused Ajay Kumar Takkar, GPF Page: 5/323 withdrawals, interest from saving bank deposits, fixed deposits were considered. The investigating agency further considered the income by way of gifts to accused Ajay Kumar Takkar and accused Smt.Sandhya Takkar received by them from their respective fathers and as reflected in their income tax returns. CBI further took into account the income from rent of accused Sandhya Takkar besides adding the income from tuitions and income from KVP maturity, as claimed by her in her income tax returns. Rental income and income from shares of accused Ajay Kumar Takkar was also considered to arrive at the figure of total income of accused persons during the check period.
(vi) The expenditure incurred by accused persons during the check period including those incurred on the maintenance of property, repayment of loan, payment of income tax and on payment of premium of insurance policies, on education, Page: 6/323 foreign trips etc. were considered by the investigating agency along with nonverifiable expenditure.
4. At this stage, it is relevant to mention that for the sake of brevity each and every assertion with respect to nature of assets being held by the accused and his family members and the various expenditures made by them is not being set out in detail herein.
5. After investigation, CBI found accused Ajay Kumar Takkar and Sandhya Takkar in possession of immovable and movable assets and pecuniary resources worth Rs.28,72,201.75/ which were disproportionate to known sources of income of accused Ajay Kumar Takkar for which, accused Ajay Kumar Takkar could not give any satisfactory account. The assets were found to be disproportionate to the extent of 71% of his known sources of income.
6. Sanction to prosecute accused Ajay Kumar Page: 7/323 Takkar was given by Chairman and Managing Director, MTNL. Armed with the sanction order, CBI had filed the present charge sheet.
7. It was also alleged in the charge sheet that Smt.Sandhya Takkar who holds two immovable properties in her own name and two in the joint name of herself and her husband, is also having various joint bank accounts with her husband. It was alleged that there are many fixed deposits in the joint names of accused Ajay Kumar Takkar and accused Sandhya Takkar. It was further alleged that there are significant investments made in her name in shares etc. and, therefore, she had actively abetted Ajay Kumar Takkar in acquisition of disproportionate assets.
CHARGE
8. On the basis of material placed on record, Ld. Predecessor of this Court had framed charge against accused Ajay Kumar Takkar for having Page: 8/323 been found in possession of disproportionate assets worth Rs.28,72,201.75/ (minus Rs.1,86,300/) for which he could not satisfactorily account for and thus, has committed an offence punishable under Section 13(2) read with Section 13(1)(e) of PC Act, 1988 and against accused Sandhya Takkar for having abetted accused Ajay Kumar Takkar in commission of said offence and thus, have committed an offence under Section 109 IPC read with Section 13(2) and 13 (1) (e) of PC Act, 1988.
9. Accused persons pleaded not guilty to the charges framed against them and sought trial.
PROSECUTION EVIDENCE
10. Prosecution in order to prove its case has examined 66 witnesses.
11. The witnesses examined by the prosecution to substantiate their case can be broadly categorized in 08 categories.
Page: 9/323
12. The First category of witnesses examined by the prosecution have deposed regarding the loan taken for purchase of property, acquisition of immovable properties by accused Ajay Kumar Takkar and Sandhya Takkar in Delhi, Noida, Indore and Mumbai. They also produced Original Agreement of Sale dated 22.06.1995 in name of both accused in respect of a flat in Mumbai, Original Lease Deed in respect of plot in Noida, copy of sale deed in favour of Sandhya Takkar dated 05.06.1998 in respect of flat in Indore. These witnesses are as follows: PW1 Sh.Ashok Kumar, UDC, Personal BranchIII, Vikas Sadan, DDA, New Delhi.
PW8 Sh.Kuldeep Singh, Manager
(Property), Greater Noida
Industrial Development
Authority, H168, Chitwan
Estate, Gama1, Greater Noida
City, U.P.
PW9 Sh.Narender Kumar Wadhwa,
Page: 10/323
Director (Admn.) since Retired, R/o J9, Kailash Colony, New Delhi110 048.
PW10 Sh.Rajender Kumar Shah, S/o Sh.Vardhaman Shah, R/o 14, Old Palasia, Indore, M.P., Tax Consultant.
PW11 Sh.Paresh C. Mankad, S/o Sh.Chandravadan Mankad, R/o 303A, Satyam I Building Raheja Complex, National Highway, Malad East, Mumbai97.
PW55 Sh.Aju Ashok, S/o Sh.Ashok Kumar, R/o H.No. 109D, Sector 6, DDA Flats, PhaseII, Dwarka, New Delhi110 075.
PW63 Sh.Manoj Ramesh Bile, S/o Sh.Ramesh Shankar Bile, R/o 5D404, Green Meadows, Lokhandwala Township, Kandivili East, Mumbai400101.
13. The second category of witnesses include the officials of various banks, post office and Club, who have deposed regarding accounts of accused Ajay Kumar Takkar, accused Sandhya Takkar and Page: 11/323 their daughters in their banks, Statements of accounts, saving bank passbooks in their names, fixed deposit accounts, PPF Accounts, an advise of transfer of account, various fixed deposit receipts, operation of locker by accused Sandhya Takkar, vouchers and statement of account of Special Term Deposit Account. These witnesses are as follows: PW2 Sh.P.V.V.Kamath, Senior Manager, Syndicate Bank, Central Accounts Office, Udupi, Karnataka.
PW3 Ms.Martha D'Silva, Dy.Chief Manager (Retired), R/o A6, West Coast, IC Colony, Cross Road No.3, Boriwali West, Mumbai400103.
PW4 Sh. C.B. Kataria, S/o Sh.S.K.Kataria, Manager, Allahabad Bank, Sukharia Circle Branch, Sri Ganga Nagar (Rajasthan), R/o 2P 9, Sadhbhawna Nagar, Sir Ganga Nagar, Rajasthan.
Page: 12/323 PW5 Sh. Lal Singh, Sr.Manager, UCO Bank, Civil Lines, Bareilly.
PW6 Sh.Nain Singh, Sr.Manager, Canara Bank, Circle Office, Bhopal.
PW7 Sh. Virender Kumar, S/o Late Sh.Vidya Rattan, R/o A86, Sector36, Noida, U.P. (Assistant Manager, Indian Bank, Alwar, Rajasthan Branch, Rajasthan).
PW12 Sh.Jeevan Madhav Dalvi, S/o Sh.Madhav Dalvi, R/o 203, Dhanshree Apartments, Vetal Nagar, Hinjewadi, Pune, Maharashtra.
PW13 Sh. V.K. Mahajan, S/o Sh.Kedar Nath Mahajan, R/O House No. 2583, Sector70, Mohali, Punjab.
PW14 Sh. Vivek Nair, S/o Sh.K.Balakrishnan, R/o Flat No.1, Rameshwar Nagar, Khandwa, M.P. and permanent resident of PO Champad via Tellicherry, Page: 13/323 Distt. Kannur, Kerala.
PW15 Sh. V.K. Sikka, S/o Sh.Shadi Lal Sikka, R/o 32, Golden Corner Premises Housing Society, Pali Naka, Bandra, West, Mumbai50.
PW16 Sh. Kevin Miranda, S/o Sh.Aloysius Miranda, R/o C 803, Gagangiri Complex, I.C.Colony Ext., Dhasiar West, Mumbai400 068.
PW17 Sh. S.P. Lamba, S/o late Sh.Harbans Lal Lamba, R/o 32, Park View Apartments, Plot16, Sector12, Dwarka, New Delhi.
PW18 Sh. Rakesh Wadhera, S/o Sh.Tara Chand, C3/3101, Vasant Kunj, New Delhi.
PW23 Sh.Suresh Chand, S/o Sh.Roshan Lal, R/o F74, DDA Flats, New Ranjit Nagar, New Delhi08.
PW32 Sh.Arun Kachru Gaikwad, S/o Sh.Kachru Maruti Page: 14/323 Gaikwad, R/o A304, Nandanvan Madhusudan, CHS Ltd., Dahisar East, Mumbai.
PW42 Sh.R.L.Raina, S/o late M.N.Raina, R/o C502, Satisar Apartment, Plot No.6, Sector7, Dwarka, New Delhi75.
PW50 Sh.B.B.Akali, S/o Sh.Amar Singh Akali, R/o 6/6, Old Rajendra Nagar, New Delhi 60. PW52 Sh.Raghubir Singh Manral, S/o Sh.Raje Singh Manral, R/o A401, Eldeco Apartments, Sector4, Vaishali, Ghaziabad.
PW58 Sh.Anil Hans, S/o late Sh.A.N.Hans, R/o D1/161, Lajpat NagarI, New Delhi 24.
14. The third category of witnesses includes Page: 15/323 the officials, who had deposed with regard to income tax returns and expenditure incurred on education of daughters of accused Ajay Kumar Takkar and accused Sandhya Takkar. These witnesses are as follows: PW22 Sh.Ravish R.Singh, S/o Sh.Ram Sagar Singh, R/o 604, Krishna Kunj, Gokul Dham, Goregaon East, Mumbai63.
PW28 Sh.Achuthan Nair P.K., S/o
Late P.K.Nair, R/o
Chinmaya Mission,
Chinmaya Tapovanam, Post
Box No. 5, Palakkad, Kerala
678001.
PW36 Smt.Usha Raina, W/o
Sh.Pran Nath Raina, R/o
203, Neelgiri Apartments,
Yashodham Enclave,
Goregaon East, Mumbai
400063.
PW38 Mrs.C.T.Chakravarty, W/o
Page: 16/323
Mr.Tapas Chakravarty, R/o
501A, Techno Park1,
Thakur Village, Kandivili
East, Mumbai101.
PW44 Sh.Ajay Ghanshyam Kamble,
S/o Sh.Ghanshyam
C.Kamble, R/o Flat
No.202/6, Vardhman
Gardens, Balkum Road,
Thane West, Distt.Thane,
Maharastra.
PW48 Dr.M.R.Rajwade, S/o
Sh.R.P.Rajwade, R/o 12,
Shekhar Sadan Society,
Subhash Cross Road,
Vileparle East, Mumbai
400057.
15. The fourth category of witnesses includes the officials, who have deposed regarding joining of investigation/participation in search proceedings, preparation of searchmemocum seizure list and inventory of articles found in possession of accused Ajay Kumar Takkar, Page: 17/323 inspection of locker and preparation of list of items found therein. These witnesses are as follows: PW19 Sh.M.M. Gupta, S/o Sh.Jagdish Prashad Gupta, R/o E32, Satikirpa Building, Garoria Nagar, Ghatkopar East, Mumbai 77. PW24 Sh.Kushal Kant, S/o Sh.Kanti Prashad, R/o VPO Kaili, Distt.Meerut, U.P. PW29 Sh.B.D.Sharma, S/o Sh.Har Swaroop Sharma, R/o A4/19, Sector15, Rohini, New Delhi.
PW33 Sh.K.Babu, S/o late V.C.Kochukunju, R/o Flat No.1003, Neptune Residence CHS Limited, Sector22, Komothe, Navi Mumbai.
PW37 Sh.B.R.Virkar, S/o Raja Ram, R/o Flat No.A403, Sai Tower, Near Old MHB Colony, Borivili West, Mumbai.
PW41 Sh.Kamla Prasad, S/o late Govind Ram, R/o 212, BlockA, Page: 18/323 Sector18B, Atulya Apartments, Dwarka, New Delhi78.
PW45 Sh.C.K.Patel, S/o Sh.Kikabhai Patel, R/o Room No. 8, Lalji Nanji Chawl, Dattapata, Borivali East, Mumbai.
16. The fifth category of witnesses examined by the prosecution consists of the officials, who have deposed regarding the investments made by accused Ajay Kumar Takkar and accused Sandhya Takkar regarding shares/debentures, bonds and LIC policies. These witnesses are as follows: PW20 Sh.P.Shankar, S/o late P.S.Parameswaran, R/o 80/55, Bazullah Road, T.Nagar, Chennai17.
PW25 Sh.Devesh Sinha, S/o Sh.Jai Narain Prashad Sinha, R/o E 1101, Neel PadamI, Vaishaili, Ghaziabad.
PW26 Sh.Rakesh Arora, S/o Page: 19/323 Sh.M.L.Arora, R/o G302, Vasundhara Habitat Society, Vasundhara Enclave, Delhi96. PW27 Sh.Gaurav Toshkhani, S/o Sh.S.S.Toshkhani, R/o D8050, Vasant Kunj, New Delhi.
PW31 Sh.Shrikar Shriram Bhattbhatt, S/o Sh.Shriram Bhattbhatt, R/o Ram Vilas, Khedkar Falia, Wadi, Vadodra390017.
PW34 Sh.Rajinder Singh Kohli, S/o Sh.Jagat Singh Kohli, R/o E32 A, Neb Valley, New Delhi 110068.
PW43 Ms.Vasumathi Kumar, W/o Sh.D.Sampath Kumar, R/o 16/6, Subramaniam Colony, Chennai
41. PW46 Sh.M.K.Mondal, S/o Sh.Bimal Mondal, R/o Quarter No.4, LIC Complex, Zonal Training Centre, Road No.4, Kadma, Jamshedpur
5.
PW47 Sh.Ravi Kuddyady, S/o
Page: 20/323
Sh.Vasant Kuddyady, R/o D5,
301, Krishna Kaveri, Link Road, Andheri West, Mumbai.
PW51 Sh.Mukesh Sood, S/o late Amar Nath Sood, R/o 31, Sarabha Nagar Ext., PhaseI, Pakhowal Road, Ludhiana, Punjab.
PW53 Sh.D.Ganesh, S/o Sh.P.S.Dandapani Subramanian Iyer, R/o C205, Balaji Tower, Sector30A, Vashi, Navi Mumbai400705.
PW56 Sh.Manoj Patil, S/o Sh.Bhimsen Kanu Patil, R/o Building No. 52/2445, MHB Colony, Gandhi Nagar, Bandra East, Mumbai51. PW57 Sh.Priyadarshan Waila, S/o Sh.B.D.Waila, R/o 354, Pocket D, Dilshad Garden, Delhi.
PW59 Sh.T.V.S.Prasad,S/o Sh.T.V.N.Rao, R/o B1202, Great Eastern Gardens, LBS Marg, Kanjur Marg West, Mumbai 400078.
PW61 Sh.T.M.Mudaliar, S/o
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Sh.N.Munusamy, R/o H.No.21,
21st Cross, Avvai Nagar, Airport Road, Pondicherry605008.
PW62 Sh.Ajay Kumar Dalal, S/o Sh.D.C.Dalal, R/o 7A/5B, Puran Nagar, Palam Colony, New Delhi45.
17. The sixth category of witnesses includes the officials, who have deposed regarding the original pay bills alongwith summary of pay and allowances in respect of accused Ajay Kumar Takkar, details of TA/DA, LTC, GPF, Medical, nomination details, salary details, supplementary bills of increment arrears, supplementary bills of difference of HRA, list of leave travel concession paid, list of travel bills etc. and property returns of accused. These witnesses are as follows : PW21 Sh. N. Mesiah Dhas, S/o Sh.Nallathambi, R/o 206, Saranath, Vasant Vihar, Thane West, Mumbai400610.
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PW30 Sh.T.V.Rao, S/o T. N.
Anantharamaiah, R/o Flat No.201, Liberty Height Apartment, Bhagya Luxmi Colony, Manikonda, Hyderabad500089.
PW35 Mrs.Shobha Shaligram, W/o Sh.Anil Gajanan Shaligram, R/o Shaligram House, Old Station Road, Thane400601.
PW39 Mrs. P. P. Chavan, W/o Mr.P.D.Chavan, R/o C502, Shivveer Apptts.Sector8, Charkop, Kandivili West, Mumbai67.
PW40 Sh. B. N. Shanbhag, S/o Sh.B.G.Shanbhag, R/o House No.501, Asmita Premium, Naya Nagar Road, Mira Road East, District Thane401 107.
PW54 Ms.Vinita Anand, W/o Sh.Baldev Raj Anand, R/o 4/94, Nirankari Colony, Delhi9.
18. The seventh category of witness is the official, who had deposed regarding sanction for prosecution of accused Ajay Kumar Takkar.
Page: 23/323 Relevant witness is as follows: PW60 Sh.Ram Sharan Prasad Sinha, S/o late Sh.Ganesh Prasad Sinha, R/o W106, 2nd Floor, GK1, New Delhi.
19. The eighth category of witnesses includes the officials, who have deposed regarding the mobile connection of accused Ajay Kumar Takkar and his family members. These witnesses are as follows: -
PW49 Sh.Deepak Tomar, S/o Sh.S.S.Tomar, R/o 237, Sector22, PocketI, Dwarka, New Delhi.
PW66 Sh.C.H.Godse, S/o Sh.H.M.Godse, R/o D202, Balaji CHS, Sector11, Kharghar, Navi Mumbai.
20. Apart from the abovementioned Page: 24/323 witnesses, CBI had examined PW64 Sh.A.B.Chaudhary, who was posted as Inspector of Police in ACUII, CBI, New Delhi in the year 2004 2005 and was initially associated in a search conducted at the residence of accused Ajay Kumar Takkar at Mumbai and after one week, he became the investigating officer of the present case.
21. PW65 Sh.Tanmaya Behera was posted as DSP in AC1, CBI, New Delhi during the years 2005 and 2007. Investigation of this case was handed over to PW65 Sh.Tanmaya Behera on 22.02.2005 by PW64 Sh.A.B.Chaudhary. PW65 Sh.Tanmaya Behera completed the remaining investigation and filed the charge sheet.
22. The depositions of these aforementioned witnesses are not being narrated herein for purposes of brevity and the relevant portions thereof and the documentary evidence produced by them have been referred to wherever necessary later in the judgment.
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23. The evidence led by the aforementioned witnesses was put to accused Ajay Kumar Takkar and accused Sandhya Takkar while being examined under section 313 Cr.P.C. It was stated by accused Ajay Kumar Takkar and accused Sandhya Takkar that he/her husband was working in Mumbai and his father/her fatherinlaw was looking after the affairs about the payment with regard to property i.e. plot no. 128, Sector Delta Part III, Greater Noida Industrial Development Authority, M Block, Delhi and he had made the payments. With regard to deposition of PW11, accused persons stated that his evidence is a hear say.
24. Accused persons further stated that inventory prepared is fudged and contrived document by CBI. Accused persons stated that their daughters were not present at the time of search. Accused persons denied that the list was prepared in their presence. Accused Ajay Kumar Page: 26/323 Takkar and accused Sandhya Takkar stated that the search was not conducted even as per the mandatory guidelines of the CBI manual and no signature even of his wife/her was sought or obtained. Accused persons stated that the documents provided appear to be computer printouts without verification and certificate in terms of Section 65B of the Indian Evidence Act, 1872.
25. Accused Ajay Kumar Takkar and Sandhya Takkar stated that no effort was made by CBI to procure his/her husband's all tax returns for the whole of the check period to foist false allegation against him/her husband. Accused Ajay Kumar Takkar and Sandhya Takkar stated that he/her husband had submitted details as back as in September, 2002, satisfactorily accounting for the assets and income much prior to the registration of FIR in 2004. The FIR in the case was registered on source report and no preliminary inquiry was Page: 27/323 conducted as is mandated by CBI manual as well as by law. Accused persons stated that had preliminary inquiry been conducted in the case, the report submitted to Senior DDG Vigilance, BSNL as back as in September 2002 as stated in Ex. PW30/H, would have been called/requisitioned from Department of Telecommunications in preliminary inquiry or even thereafter during investigation and consequently, there would have been no scope for registering of FIR or filing of charge sheet in the instant case and this clearly shows that the action of CBI was malafide.
26. Accused Ajay Kumar Takkar and Sandhya Takkar stated that though House No. C248, PhaseI, Shekh Sarai, New Delhi was his house/of her husband but his parents/her parents in law only had been living there. Accused stated that the prosecution and the witnesses examined with regard to fees had not adduced any legally Page: 28/323 admissible evidence as to the details of the fees.
27. Accused persons stated that grant of sanction was without application of mind. Accused persons further stated that alleged calculations of CBI at the rate of 1/3rd of gross salary in the charge sheet is incorrect and it should have been taken at the rate of 1/3rd of net salary. Accused stated that they are innocent and honest persons and CBI has framed them in a false case.
Defence Evidence
28. In support of their defence, accused persons have examined DW1 Sh.Vijay Kumar Takkar. DW1 deposed that accused Ajay Kumar Takkar is his elder brother and they are only two brothers and do not have any sister. DW1 deposed that their father expired on 30.09.2010 in a road accident in Delhi. DW1 deposed that between 1994 and 2004, his parents were staying in the house of his brother i.e. accused Ajay Kumar Page: 29/323 Takkar at Delhi and her mother used to go to Mumbai with his brother/accused Ajay Kumar Takkar and his family. DW1 deposed that his brother accused Ajay Kumar Takkar had bought a house at Sheikh Sarai, New Delhi in the year 1983 and his father stayed there since 1983 till his death in 2010. DW1 deposed that his father had various sources of income namely his accumulated savings over a long period, his pension etc. from the Govt.which are continuing even till date, his salaries from Batra Hospital and recurring monthly rental incomes from his residential properties in Delhi. DW1 deposed that his father was a man of good means and all his incomes were shown in his Income Tax Returns.
29. DW1 further deposed that his father was very clear that since he (DW1) has two sons and his brother i.e. accused Ajay Kumar Takkar has two daughters, he had decided that he (DW1) will be the beneficiary of the immovable properties Page: 30/323 because he wanted the properties to go to the male lineage and the monies and liquid assets will flow from time to time during his lifetime to his elder brother i.e. accused Ajay Kumar Takkar. DW1 deposed that during the check period, his father gave away about Rs.25 lacs to Rs.30 lacs to his brother accused Ajay Kumar Takkar and his family by various ways and means for example, he gave about Rs.11 lacs by his various cheques to his brother accused Ajay Kumar Takkar and another Rs.13 lacs or so, in cash, during the check period. DW1 deposed that his father and brother i.e. accused Ajay Kumar Takkar never concealed any fact or family decision from him and he was party to and supporter of all financial decisions so taken jointly. DW1 deposed that his father was also giving monies to the daughters of his brother accused Ajay Kumar Takkar including their educational expenses, household expenses etc. DW1 deposed that the financial help given by his Page: 31/323 father to his brother accused Ajay Kumar Takkar has taken place in his presence, most of the time. DW1 deposed that during the year 2004, the market rent of his brother's house at Sheikh Sarai would have been around Rs.30,000/ to Rs.35,000/ per month.
30. I have heard Sh.B.K.Singh, Ld.Sr.PP. for CBI and Sh.R.K.Handoo and Sh.Aditya Chaudhary, ld.counsels for accused persons. I have also carefully perused the record and the written submissions filed by the respective counsels.
ARGUMENTS On behalf of Accused persons
31. It was submitted by ld.counsel for accused persons that in the present case, prosecution was required to prove that during the check period i.e. 01.04.1994 to 29.09.2004, accused Ajay Kumar Takkar had acquired disproportionate assets of Rs.26,85,901.75/.
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32. Detailed arguments led on record by ld.counsel for accused persons are not being presented herein for the sake of brevity and shall be dealt with under the relevant headings.
33. However, in the nutshell, the main argument of the ld.counsel for accused persons was with regard to legal objections which had vitiated the trial and nonproving of documents.
34. It was submitted that in the present case, sanction under section 19 of the PC Act was not a valid one. Therefore, trial stood vitiated.
35. It was submitted that even the FIR in this case was registered on the basis of a false report and without any preliminary inquiry and this also vitiates the trial.
36. With regard to legal objections, reference was also made by ld.counsel for accused persons to the CBI Manual which was submitted to be binding and mandatory.
37. On merits, it was submitted that search at Page: 33/323 the residence of accused persons was not as per law (i.e. CBI Manual) and, therefore, value of household goods of Rs.2,59,600/ should be reduced from disproportionate assets.
38. It was submitted that nonverifiable expenditure has been wrongly calculated at 1/3rd of the gross salary whereas the same should have been calculated at 1/3rd of the net salary. Accordingly, it was submitted that disproportionate assets would further stand reduced by Rs.5,50,833/.
39. It was submitted that CBI had wrongly discarded the gift deeds in favour of accused Ajay Kumar Takkar amounting to Rs.11,20,000/ on the ground that these gift deeds were not intimated to the department and were prepared later on to claim false income.
40. It was further submitted that father of accused Ajay Kumar Takkar had made payment from his own resources regarding the various gift Page: 34/323 deeds and even his statement was recorded regarding his financial capacity but deliberately his statement was not produced on record.
41. It was further submitted that immovable assets at the end of the check period were never proved as documents produced on record with regard to immovable property were photocopies. Hence, inadmissible in law.
42. It was also submitted that movable assets i.e. balance in the SB Accounts of accused and bank statements were inadmissible in law as they were not having any certificate under the Banker's Book Evidence Act, 1891 and in case of computer print outs, they were not accompanied by any certificate under Section 65B of the Indian Evidence Act, 1872.
43. With regard to various Fixed Deposits, it was submitted that fixed deposit receipts were not proved on record. Hence, amount mentioned therein deserves to be eschewed from Page: 35/323 disproportionate assets.
44. It was submitted that none of the shares/debentures of Four Seasons Farms, Sardar Sarovar Narmada Nigam Ltd. and that of UTI were proved. Hence, amount of shares/debentures is required to be reduced from the disproportionate assets.
45. It was submitted that even the bond of IDBI Bank, Indore of Rs.52,000/ was not proved as no witness from IDBI Bank, Indore was summoned to prove the issuance of bond and only witness of recovery had deposed regarding IDBI bond which does not prove the purchase of bond by accused. Accordingly, it was prayed that value of bond of Rs.52,000/ should be reduced from disproportionate assets.
46. It was further submitted that interest income of Rs.41,162/ was wrongly not added to the income of accused during the check period.
47. It was submitted that amount of interest in Page: 36/323 the SB Account no.5974 of accused Ajay Kumar Takkar in the Bank of India, Mumbai has been shown as Rs.5,629/ whereas PW32 has deposed on oath that between the period from 10.01.1996 to 29.09.2004, total interest of Rs.40,247/ has been paid in SB Account No. 5974.
48. It was submitted that during the check period, total interest of Rs.46,791/ has been credited into the account of accused Ajay Kumar Takkar but only payment of Rs.5,629/ towards interest has been taken into the account. Therefore, interest income of Rs.41,162/ is required to be added to the income of accused Ajay Kumar Takkar and hence, is required to be reduced from disproportionate assets.
49. It was further submitted that expenditure on the maintenance of house property has not been proved as computerized statement/photocopies were produced which were inadmissible in evidence.
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50. Similarly, it was submitted that expenditure on cell phones of accused amounting to Rs.39,522/ was also not proved on record as computerized statement was not accompanied by any certificate under section 65B of the Indian Evidence Act, 1872.
51. It was further submitted that income tax paid by accused Ajay Kumar Takkar of Rs.41,610/ and Rs.62,216/ for the assessment years 2004 2005 and 20032004 respectively need to be reduced as the same was paid on 27.12.2004 i.e. beyond check period.
52. It was submitted that income tax paid by accused Smt.Sandhya Takkar for the assessment years 20032004, 20042005 and for the assessment year prior to 20032004 are required to be reduced from disproportionate assets as they were not put to accused Sandhya Takkar or were paid soon after the check period or were not traceable.
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53. It was also submitted that expenditure on Life Insurance Policies of Rs.2,86,517/ was not proved as original documents with regard to payment were not produced and the statement of premium paid was the computerized statement, not accompanied by any certificate under Section 65B of the Indian Evidence Act, 1872.
54. It was also submitted that expenditure on education of children of accused persons was also not proved. Hence, is required to be reduced from disproportionate assets.
55. It was further submitted that expenditure on foreign trips, expenditure on donation and expenditure on purchase of foreign exchange has not been proved on record as no witness was summoned to prove these amounts. Therefore, said expenditure income on foreign trips is required to be reduced from disproportionate assets.
56. It was submitted that balance in the PPF account at the start of check period was wrongly Page: 39/323 taken as Rs.42,000/ whereas it was Rs.49,132/ as per deposition of PW42 in his cross examination. Therefore, the amount of Rs.7,132/ needs to be reduced from disproportionate assets.
57. It was submitted that foreign remittance of Rs.30,695/ was required to be added to the assets at the start of check period but was wrongly discarded by CBI. Hence, this amount is required to be reduced from the amount of disproportionate assets.
58. It was submitted that income of Rs.26,652/from Amway of accused Sandhya Takkar was not added to her income by CBI and, therefore, this amount is required to be reduced from disproportionate assets.
59. It was also submitted that as per SBI Passbook Ex.PW3/G1, relevant entries regarding income from Kisan Vikas Patra (KVP) have not been malafide taken as income of the public servant. Accordingly, it was prayed that amount of Page: 40/323 Rs.45,560/, Rs.56,280/ and Rs.12,000/ received as income from Kishan Vikas Patra (KVP) be taken as income of accused and same be reduced from disproportionate assets.
60. It was concluded by saying that prosecution has not been able to prove that accused Ajay Kumar Takkar had acquired assets to the tune of Rs.26,85,901.75/ during the check period i.e. 01.04.1994 to 29.09.2004 which was disproportionate to his sources of income. Accordingly, a prayer was made to acquit the accused persons.
On Behalf of CBI
61. Ld.Addl.PP for CBI had submitted that sanction granted in this case does not become invalid just because a draft sanction order was sent by the sanctioning authority. It was submitted that important aspect for a valid sanction was the application of mind and if it is shown that Page: 41/323 sanctioning authority had applied its mind for granting sanction, then the sanction becomes valid.
62. It was submitted that in the present case, as per evidence led on record by PW60 Sh.Ram Sharan Prasad Sinha, who was the sanctioning authority, he had discussed the matter with the Chief Vigilance Officer, prior to granting of sanction which shows that he had applied his mind with regard to allegations made in the draft sanction order and thereafter, had granted sanction. Therefore, sanction was validly granted.
63. It was submitted that there was no mandatory requirement of registering a preliminary inquiry prior to registration of FIR.
64. It was submitted that search carried out at the residence of accused persons was witnessed by two independent witnesses. Therefore, there is no reason to doubt about the same.
65. It was submitted that inventory of articles, found at the residence of accused persons, was Page: 42/323 prepared in the presence of accused persons and the same was duly signed by accused persons. Therefore, the value of household goods found at the residence of accused persons was validly taken into account.
66. It was submitted that nonverifiable expenditure is required to be calculated at 1/3rd of gross salary. It was submitted that some unscrupulous public servant might take very less salary by getting major portion of his salary deducted in saving schemes like GPF, PPF etc. and, therefore, net salary would be quite less and if 1/3rd of net salary is taken as nonverifiable expenditure, it would be very small amount which would not justify the nonverifiable expenditure. Hence, it was submitted that nonverifiable expenditure was taken as 1/3rd of the gross salary.
67. It was further submitted that gift of Rs.11,20,000/ received by accused Ajay Kumar Takkar from his father was rightly discarded by Page: 43/323 CBI as said amount was never intimated to his department and only the amount of gift was taken into account which were reflected in the balance sheet. It was submitted that some of the gift deeds which were discarded by CBI were not contemporaneous with the years of gifting the amount. Hence, were prepared just to claim false income.
68. It was further submitted that interest income, saving income, fixed deposit receipts, shares/debentures, bonds, immovable properties have been proved on record as per law.
69. It was submitted that various bank passbooks, PPF passbooks, fixed deposit receipts were recovered from the residence of accused persons and they were produced during trial. Therefore, there was no requirement of production of certificate under Banker's Book Evidence Act or certificate under Section 65B of the Indian Evidence Act, 1872.
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70. Accordingly, it was submitted that CBI has been able to prove that accused Ajay Kumar Takkar was having disproportionate assets to the tune of Rs.26,85,901.75/ during the period from 01.04.1994 to 29.09.2004.
71. It was further submitted that once CBI had proved the disproportionate assets then it was for accused Ajay Kumar Takkar to have satisfactorily accounted for their possession. However, accused Ajay Kumar Takkar has not been able to offer any satisfactorily explanation with regard to possession of disproportionate assets to the tune of Rs.26,85,901.75/. Accordingly, it was prayed tht accused Ajay Kumar Takkar and Sandhya Takkar be convicted for the offence with which they have been charged.
72. I have considered the rival submissions and have carefully perused the record.
73. As per the case of CBI, disproportionate assets held by accused Ajay Kumar Takkar were Page: 45/323 calculated as under: Assets at the beginning of check period = Rs.21,25,132.34/.
Income during Rs.40,60,895.37p. check period Expenditure Rs.25,14,974.67p. during check period Assets at the end of check period = Rs.65,43,254.79/.
Assets acquired Rs.65,43,254.79/
during check (minus)
period Rs.21,25,132.34/
=
Rs.44,18,122.45p.
Savings Rs.15,45,920.70p.
Disproportionate Rs.28,72,201.75p.
Assets
74. At the stage of framing of charge, ld.Predecessor of this court had accepted the contention of ld.counsel for accused persons that amount of Rs.1,86,300/ of UTI bonds was a Page: 46/323 carryover figure and thus, ordered it to be reduced from disproportionate assets.
75. In nutshell, accused persons were put to trial for disproportionate assets i.e. Rs.28,72,201.75p. minus 1,86,300/ = Rs. 26,85,901.75p.
76. Before proceeding to deal with the evidence brought on record by the prosecution with regard to disproportionate assets, I would like to deal with the two preliminary objections raised by ld.defence counsel regarding legality of trial.
SANCTION
77. In the present case, sanction for prosecution of accused Ajay Kumar Takkar under Section 19 of the PC Act was obtained from competent authority i.e. PW60 Sh.Ram Sharan Prasad Sinha. At the relevant time of taking sanction, PW60 Sh.Ram Sharan Prasad Sinha was posted as CMD, Mahanagar Telecom Nigam Page: 47/323 Limited., New Delhi.
78. PW60 Sh.Ram Sharan Prasad Sinha had deposed that he had granted sanction for prosecution of accused Ajay Kumar Takkar, who was posted as General Manager, Mahanagar Telecom Nigam Limited in 2007 and he had further deposed that he had power to remove accused Ajay Kumar Takkar from services. PW60 Sh.Ram Sharan Prasad Sinha also proved the sanction order Ex.PW60/A.
79. The granting of sanction by PW60 Sh.Ram Sharan Prasad Sinha was challenged by ld.defence counsel on the ground that in the present case, valid sanction has not been granted by PW60 Sh.Ram Sharan Prasad Sinha.
80. It was submitted that as per para 10.28 of the CBI Manual, CBI is required to send SP's report and relevant records to the competent authority and there is no concept of draft sanction order. It was further submitted that it has been admitted by Page: 48/323 PW60 Sh.Ram Sharan Prasad Sinha in his cross examination that he had received copy of draft sanction order Ex.PW60/D2. It was further submitted that sanction was granted on the basis of draft sanction order without seeing the statement and relied upon documents. Therefore, the sanction order was invalid rendering the whole trial void abinitio. It was further admitted by PW60 Sh.Ram Sharan Prasad Sinha in his cross examination that he did not seek any comments from CBI on the representation dated 03.12.2007 Ex.PW60/D1 (colly) of accused Ajay Kumar Takkar and he also admitted that he had no basis of valuation of household goods or of movable/immovable property. It was further submitted that it was also admitted by PW60 Sh.Ram Sharan Prasad Sinha that he proceeded on the assumption that nonverifiable expenditure is 1/3rd of the gross salary and even the gross salary was not mentioned in the sanction order.
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81. It was submitted by ld.defence counsel that all the aforementioned facts which had come in the crossexamination of PW60 Sh.Ram Sharan Prasad Sinha prove that there had been complete nonapplication of mind by PW60 Sh.Ram Sharan Prasad Sinha while granting sanction which renders the sanction to be invalid one.
82. It was further submitted that since sanction was invalid one, therefore, entire trial gets vitiated and accordingly, a prayer was made to acquit accused Ajay Kumar Takkar solely on the ground of there being invalid sanction.
83. The contention of ld.defence counsel that there was invalid sanction granted vide sanction order Ex.PW60/A deserves to be rejected.
84. The only requirement of law on the part of sanctioning authority was that there should be application of mind, at the time of grant of sanction. If the sanctioning authority had applied Page: 50/323 its mind to the facts brought before it and thereafter, had accorded sanction then sanction is valid one even though draft sanction order was sent to the sanctioning authority. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in C.S. Krishnamurthy vs. State of Karnataka, (2005) 4 SCC 81.
85. In the case before the Hon'ble Supreme Court of India, draft sanction order was sent to the sanctioning authority but since the sanction order was very expressive, the Hon'ble Supreme Court of India held that "even if a draft sanction order is sent to the sanctioning authority then also, if there is material on record to show that sanctioning authority had applied its mind to the material sent to it then, the sanction order is valid".
86. It was further held by the Hon'ble Supreme Page: 51/323 Court of India that "if sanction order is very expressive then in that case the argument that particular material was not properly placed before the sanctioning authority and sanctioning authority has not applied its mind, becomes unsustainable".
87. The Hon'ble Supreme Court of India had relied upon the judgment delivered by the Hon'ble Supreme Court of India in Indu Bhushan Chatterjee Vs. State of West Bengal, 1958 Cr.L.J. 279 wherein it was held by the Hon'ble Supreme Court of India in para 9 as under:
9. It is necessary therefore to decide whether the sanction accorded in this case was a valid sanction. The substance of the sanction has already been stated but in order that there may be no misunderstanding we quote that very words of the sanction itself :
"Whereas a complaint was made against Shri Indu Bhusan Chatterjee, Assistant Supervisor, Claims of the B. Page: 52/323 N. Railway (now Eastern Railway) Garden Reach, Calcutta, who looked after the claims cases against the railway of the Vizianagram Section, that the said Indu Bhusan Chatterjee had demanded and on 12th May, 1952, accepted a bribe of Rs. 100 (Rupees one hundred only) from Shri V. S. Doraiswamy of the Commercial Claims Bureau, Vizinagram as a motive or reward for speedy and favourable settlement of the claims cases of the Commercial Claims Bureau and thereby having committed an offence punishable under Section 161 I.P.C. and also the offence of criminal misconduct by the illegal and corrupt use of his official position as a public servant to obtain a pecuniary advantage for himself punishable under S. 5 (2) read with S. 5 (1), clause (c) of the Prevention of Corruption Act II of 1947, I. R. K. Bokil, Chief Commercial Superintendent, Eastern Railway, Calcutta having applied my mind to the facts and circumstances of the case, am satisfied, and am of the opinion that in the interests of justice, Shri Indu Bhusan Chatterjee, Assistant Page: 53/323 Supervisor, Claims, Eastern Railway, Garden Reach, Calcutta be put on his trial in a Court of competent jurisdiction for the offences alleged against him. That as Shri Indu Bhusan Chatterjee, Assistant Supervisor, Claims, Eastern Railway, Garden Reach, Calcutta is removable from his office by me : I therefore by virtue of the powers vested in me by S. 6 ( c) of the Prevention of Corruption Act II of 1947, do hereby accord sanction that Shri Indu Bhusan Chatterjee be prosecuted in a competent Court of law for the offence of having accepted an illegal gratification as a motive or reward for showing favour to Shri V. S. Doraiswamy, in his official functions viz., the settlement of the cases of the Vizianagram Section of Eastern Railway, punishable under S. 161 I. P. C. and for the offence of criminal mis conduct for the corrupt and illegal use of his official position to obtain a pecuniary advantage for himself punishable under S. 5 (2) of the Prevention of Corruption Act (Act II of 1947)."
In our opinion, this sanction clearly states all the facts which concern the Page: 54/323 prosecution case alleged against the appellant with reference to his acceptance of Rs. 100 from Doraiswamy on May 12, 1952, in circumstances which, if established, would constitute offences under S. 161, Indian Penal Code and S. 5 (2) of the Act. The sanction also clearly states that Mr. Bokil had applied his mind and was of the opinion that in the interests of justice the appellant should be prosecuted. The charge framed against the appellant at his trial was with reference to this very incident and none other. What more facts were required to be stated in the sanction itself we are unable to understand. Mr. Bokil in his examinationinchief stated "On the prayer of the police I accorded sanction to the prosecution of one Shri. I. B. Chatterjee who was the Assistant Supervisor of Claims. Before according sanction I went through all relevant papers and was satisfied that in the interest of justice, Sri I. B. Chatterjee should be prosecuted. This is the sanction marked Ex. 6". In cross examination, however, he made the following statement : "This sanction Page: 55/323 Ex. 6 was prepared by the police and it was put before me by the personnel branch of my office. I did not call for any record in connection with this matter from my office. I did not call for the connected claim cases nor did I enquire about the position of those claim cases." The learned Judges in granting the certificate, apparently, were impressed by the statement of Mr. Bokil that Ex. 6 was prepared by the police and put before him by the personnel branch of his office, because the learned Chief Justice observed, "I can hardly imagine the duty of granting the proper sanction being properly discharged by merely putting one's signature on a readymade sanction presented by the police." It seems to us that, Mr. Bokil's statements does not prove that he merely put his signature on a ready made sanction presented by the police. It is true that he did not himself dictate or draft the sanction, but Mr. Bokil has stated in the clearest terms, in his examinationinchief, that before he accorded sanction he went through all the relevant papers. There is no reason to distrust this statement of Mr. Page: 56/323 Bokil, nor has the High Court, while granting the certificate of fitness, done so. He was an officer of his rank in the Railway and must have been fully aware that the responsibility of according to sanction against an official of the Railway subordinate to him lay upon him. It is inconceivable that an officer of the rank of Mr. Bokil would blindly sign a readymade sanction prepared by the police. Apparently, the sanction already drafted contained all the material facts upon which the prosecution was to be launched, if at all, concerning the acceptance of the bribe by the appellant on May 12, 1952. When Ex. 6 was placed before Mr. Bokil other relevant papers were also placed before him. It is significant that Mr. Bokil was not crossexamined as to what the other relevant papers were and in the absence of any question being put to Mr. Bokil we must accept his statement that the papers placed before him were relevant to the only question before him whether he should or should not accord his sanction to the prosecution of the appellant. Mr. Bokil said, and we see Page: 57/323 no reason to distrust his statement, that before he accorded his sanction he went through all these papers and after being satisfied that sanction should be given he accorded his sanction. It is true that he did not call for any record in connection with matter from his office nor did he call for the connected claim cases or find out as to how they stood. It was not for Mr. Bokil to judge the truth of the allegations made against the appellant, by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the ends of justice to accord his sanction.
88. In the matter of Indu Bhushan Chatterjee Vs. State of West Bengal's case (supra), a draft sanction order was placed before the sanctioning authority by the police, who had signed the same. The Hon'ble Supreme Court of India had held that the very fact that sanctioning authority was a Page: 58/323 senior officer, therefore, it is to be presumed that he must have gone through the material on record and through the sanction order and after applying its mind, must have accorded sanction. Therefore, sanction was held to be a valid one.
89. In the light of aforementioned law, now let us see whether the sanction order Ex.PW60/A reflects application of mind on the part of sanctioning authority i.e.PW60 Sh.Ram Sharan Prasad Sinha or not?
90. The sanction order Ex.PW60/A dated 28.12.2007 is running into five pages and it has been specifically mentioned in para 4 of the aforesaid sanction order by PW60 Sh.Ram Sharan Prasad Sinha that he had carefully examined the material placed before him and after examining the same, he considered that accused Ajay Kumar Takkar should be prosecuted in the court of law for the offence under Section 13(2) read with Section 13(1)(e) of the PC Act.
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91. The sanction order Ex.PW60/A specifically mentions the check period i.e. 01.04.1994 to 29.09.2004 and the value of assets at the beginning of the check period, the movable/immovable assets acquired during the check period, the expenditure during the check period and the total income of accused Ajay Kumar Takkar during the check period.
92. After taking into account the aforesaid assets, income and the expenditure, PW60 Sh.Ram Sharan Prasad Sinha in his sanction order had concluded that accused Ajay Kumar Takkar had acquired disproportionate assets to the tune of Rs.28,72,201.75/ for which he was unable to satisfactorily account for. Accordingly, he had granted sanction for his prosecution.
93. Further, during the course of cross examination, PW60 Sh.Ram Sharan Prasad Sinha had also deposed that he had also discussed the matter with the Chief Vigilance Officer before Page: 60/323 granting sanction. Since in this case, sanction order Ex.PW60/A is quite expressive one and since PW60 Sh.Ram Sharan Prasad Sinha had discussed the matter with the Chief Vigilance Officer, prior to granting of sanction, therefore, it is proved beyond reasonable doubt that PW60 Sh.Ram Sharan Prasad Sinha had applied its mind to the material placed before him before granting sanction.
94. Further, PW60 Sh.Ram Sharan Prasad Sinha was working as Chairman and Managing Director, Mahanagar Telecom Nigam Limited, New Delhi at the time when he granted sanction. Therefore, it is not believable that such a senior officer of Mahanagar Telecom Nigam Limited, holding such a responsible position would have granted sanction for prosecution of accused Ajay Kumar Takkar without going through the material placed before him. Therefore, it is proved on record that sanction order Ex.PW60/A was passed Page: 61/323 by PW60 Sh.Ram Sharan Prasad Sinha after applying his mind to the material placed before him.
Registration of FIR without holding of preliminary inquiry.
95. It was submitted by the ld.counsel for accused persons that in the present case, CBI at the behest of persons inimical to the public servant lodged false criminal complaint against him.
96. It was submitted that in absence of any complaint, it was incumbent upon CBI to have conducted suitable preliminary inquiry by some responsible officer to enquire into the allegations made against public servant before lodging the FIR.
97. It was further submitted that holding of preliminary inquiry was mandatory in the light of the judgment of the Hon'ble Supreme Court of India delivered in P.Sirajuddin Vs. State of Page: 62/323 Madras etc., AIR 1971 SC 520 and Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SC
402.
98. It was further submitted that it has come in the crossexamination of PW64 Sh.Amlendu Bhushan Chaudhary, who was the investigating officer of this case, that in the present case, no preliminary inquiry was conducted by the CBI. It was further submitted that even PW65 Sh.Tanmaya Behera, who was the investigating officer, who had filed the charge sheet, admitted in his crossexamination that there is no mention in the charge sheet about the preliminary inquiry having been conducted before registration of the FIR.
99. It was further submitted that nonholding of preliminary inquiry in violation of law laid down by the Hon'ble Supreme Court of India shows the malafide on the part of CBI to foist a false and frivolous case against accused persons and vitiates Page: 63/323 the entire trial. Accordingly, a prayer was made to acquit the accused persons.
100. The contention of ld.counsel for accused persons, even if it is assumed to be correct, does not vitiate trial in the light of the judgment of the Hon'ble Supreme Court of India delivered in Union of India Vs. Prakash P. Hinduja & anr., (2003) 6 SCC 195. In the said judgment, it was held by the Hon'ble Supreme Court of India that "if cognizance is taken on a police report initiated by a breach of mandatory provision relating to investigation then the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have caused miscarriage of justice. It was also observed that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial".
101. Therefore, even assuming that Page: 64/323 investigation in this case was conducted by CBI by violating mandatory provision relating to holding preliminary inquiry then also trial does not get vitiated unless it is shown by accused that some miscarriage of justice has occurred.
102. Ld.defence counsel has not been able to highlight as to how the nonholding of preliminary inquiry has resulted into miscarriage of justice. Therefore, this contention is not acceptable and is accordingly, rejected.
103. Even otherwise, the requirement of holding of preliminary inquiry prior to registration of FIR is not mandatory in each and every case of corruption.
104. The issue with regard to holding of preliminary inquiry prior to registration of FIR had arisen in a disproportionate assets case under Section 13(1)(e) of the PC Act before the Hon'ble Calcutta High Court in the matter of Ziller Page: 65/323 Rahim Vs. SP, CRR No. 2904 of 2013 which was decided vide judgment dated 03.12.2013.
105. The Hon'ble Calcutta High Court after referring to the judgment delivered by the Hon'ble Supreme Court of India in P.Sirajuddin Vs. State of Madras's case (supra) and Ashok Tshering Bhutia Vs. State of Sikkim's case (supra) and after relying upon the judgment of the Hon'ble Supreme Court of India delivered in Lalita Kumari Vs. Govt.of Uttar Pradesh & Ors., (2014) 2, SCC 1 and para 9.1 of CBI Manual had come to the below mentioned conclusion: "Finally, coming to the issue as to the necessity of holding a preliminary enquiry prior to registration of FIR, Mr. Bhattacharjee has strongly relied on P. Sirajuddin (supra) to support his contention that in the absence of preliminary enquiry. registration of first information report in respect of an offence under Section 13(1)(e) of the Prevention of Corruption Act is bad in law. He asserted that failure on the Page: 66/323 part of the accused to satisfactorily account for the properties in his possession is an ingredient of offence and, therefore, an opportunity ought to be given to him prior to registration of the first information report in course of such preliminary enquiry. In P Sirajuddin (supra) the Apex Court while dealing with a case under the Prevention of Corruption Act, inter alia, had observed as follows:
"17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the Page: 67/323 appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti‐Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an Page: 68/323 enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge‐sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge‐sheet is submitted and a full‐scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of Page: 69/323 the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded within terms of the Code of Criminal Procedure by lodging a first information report."
In Ashok Tshering Bhutia (supra) the Apex Court has held as follows:
"6. This Court in P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 SC 520; and State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604 :(1992 AIR SCW 237) has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious mis‐demeanor and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory Page: 70/323 provisions of the Cr.P.C. and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C. However, as the issue is being raised first time before this Court, it is not worth further consideration. More so, the aforesaid observations do not lay down law of universal application." (emphasis supplied) A Constitution Bench in the case of Lalita Kumari (supra), in its judgment dated 11.11.2013 endorsed the ratio in P. Sirajuddin (supra) and held that cases of corruption are ordinarily an exception to the mandatory rule of immediate registration of FIR. The Apex Court has held as follows:‐ "108 In the context of offences relating to corruption, this Court in P. Sirajuddin (supra) expressed the need for a preliminary inquiry before proceeding against public servants."
Finally it laid down the following guidelines:‐ "111. In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the Page: 71/323 information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of Page: 72/323 the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary enquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any Page: 73/323 case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above." (emphasis supplied). The Bench, therefore, held that the necessity to hold preliminary inquiry would depend upon the facts of each case.
In corruption cases preliminary enquiry may be resorted to prior to registration of FIR in appropriate cases particularly when facts are either incomplete or hazy so that a public servant is not unfairly harassed adversely affecting the morale of the person in particular and the cadre in general. However, neither in P Sirajuddin (supra) nor in Lalita Kumari Page: 74/323 (supra), the Apex Court has laid down any inflexible rule of law that registration of FIR straightaway in corruption cases without resorting to preliminary enquiry would vitiate the ensuing prosecution and that the same has to be quashed on that score alone. Ashok Tshering Bhutia (supra) is not a binding precedent of universal application on this issue as would be evident from the observation to that effect in paragraph 6 of the report. Preliminary enquiry has an enabling purpose, that is, to arrive at a reasonable suspicion as to commission of an offence for commencement of investigation. It may be necessary where the source of information is dubious or unknown (e. g. anonymous source) or where facts are incomplete and hazy and does not disclose all ingredients of an offence. However, where the informant is identifiable and his intentions are bonafide and the ingredients of the offence are disclosed, there is no necessity to resort to a preliminary enquiry prior to registration of FIR. In Lalita Kumari (supra) it has been held that mandatory registration of FIR is the Page: 75/323 rule and resorting to preliminary enquiry is an exception. In paragraph 111 (IV) of the report it is laid down that the necessity of such enquiry would depend on the facts of each case. Some species of cases, e. g. corruption cases have been illustratively enumerated as exceptions to the rule. However, such exceptions are prefaced with the expression "may" and not "shall" clearly making it evident that even in those categories discretion is vested in the investigating agency whether to resort to such enquiry prior to registration of FIR or not. The said judgment cannot, therefore, be read as an authority for the proposition that in all cases falling in the aforesaid enumerated exceptions e. g.
corruption cases, holding of preliminary enquiry is a mandatory pre‐requisite and no FIR can be registered even in appropriate cases without resorting to such enquiry. In such legal backdrop, let me consider whether registration of FIR in the instant case without resorting to preliminary enquiry was so unfair, unjust or arbitrary so as to render the resultant prosecution invalid. The factual Page: 76/323 matrix of the case shows that the petitioner was already facing an investigation in respect of an offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988. In course of such investigation, the Investigating Agency conducted a search at the premise of the petitioner. Such search resulted in unravelling of substantial unaccounted for properties in his possession giving rise to a reasonable belief that it would be unlikely for him to satisfactorily account for the same from his known sources of income. Hence, the Investigating Officer of the earlier case without further enquiry lodged a complaint with the Superintendent of Police resulting in the registration of the instant FIR. As the FIR in the present case is a product of and is founded on the investigation in an earlier case, I am of the view that it was redundant to embark on a preliminary enquiry for further verification and a prompt registration of first information report in the instant case cannot be said to be either illegal or so unfair so as to cause prejudice to the petitioner. No doubt the provisions of the CBI Manual which Page: 77/323 are binding on the agency require the latter to register preliminary enquiries in appropriate cases. However, a perusal of such provision would make it amply clear that it is not a sine qua non in all cases. Chapter IX of the CBI Manual relates to preliminary enquiries.
Paragraph 9.1 lays down the cases in which a preliminary enquiry has to be resorted to.
Paragraph 9.1 reads as follows :‐ "When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority. Sometimes the High Courts and Supreme Court also entrust matters to Central Bureau of Investigation for enquiry and submission of report. In such situations also which may be rare, a 'Preliminary Enquiry' may be registered after obtaining orders Page: 78/323 from the Head Office. When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry. It is, therefore, necessary that the SP must carefully analyse material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a Regular Case can be registered. Where material or information available clearly indicates that it would be a case of misconduct and not criminal misconduct, it would be appropriate that the matter is referred to the department at that stage itself by sending a self‐ contained note. In such cases, no Page: 79/323 'Preliminary Enquiry' should be registered. In cases, involving bank and commercial frauds, a reference may be made to the Advisory Board for Banking, Commercial & Financial Frauds for advice before taking up a PE in case it is felt necessary to obtain such advice."
The aforesaid paragraph shows that a preliminary enquiry is to be resorted to when the complaint received or information which is available with the Bureau though may indicate serious misconduct on the part of a public servant, is not adequate to justify registration of regular case under the provision of Section 154 of the Code of Criminal Procedure. However, when information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary enquiry. It is, therefore, clear that in all cases preliminary enquiry is not a mandate prior to registration of a first information report. In a case where facts unravelled in course of an earlier investigation prima facie discloses contours of another Page: 80/323 offence, registration of first information report for investigation of the said offence may not require a preliminary enquiry under the provisions of the CBI Manual. In P. Sirajuddin (supra), a preliminary enquiry was in fact entered into but such enquiry was conducted in an absolutely unfair, unjust and partisan manner and the subsequent criminal proceeding was resultantly quashed. The facts of the instant case, on the other hand, portray a completely different picture. In the instant case, FIR has been registered on the basis of facts unravelled in course of an earlier investigation rendering the purposes of holding preliminary enquiry redundant. That apart, after registration of the first information report, the Investigating Officer issued notice upon the petitioner calling upon the latter to satisfactorily account for the properties which had been found to be in his possession. In spite of receipt of such notice, the petitioner did not respond. Therefore, the manner of registration of the first information report and the subsequent conduct of the Investigating Agency does not Page: 81/323 indicate that the instant case was initiated or conducted in an unfair, unjust or partisan manner as was evident in the facts of P Sirajuddin (supra). Accordingly, I am of the opinion that omission to hold preliminary enquiry in the facts of the instant case was not illegal or the same did not occasion any failure of justice or cause prejudice to the petitioner in any manner whatsoever so as to render the impugned prosecution an abuse of the process of court".
106. Therefore, in the light of the judgment of the Hon'ble Supreme Court of India delivered in Lalita Kumari Vs. Govt.of Uttar Pradesh & Others case (supra) and having regard to the chapter 9 of CBI Manual and particularly para 9.1 of the same, holding of preliminary inquiry in all corruption cases is not mandatory. Where the source information to the CBI is credible and reliable and discloses commission of cognizable offence then CBI can directly register FIR without Page: 82/323 holding preliminary inquiry. Therefore, there was no illegality committed by CBI by not holding a preliminary inquiry in this case. The act of CBI in directly registering the FIR was as per Chapter 9 of CBI Manual and as per the judgment of the Hon'ble Supreme Court of India delivered in Lalita Kumari Vs. Govt.of Uttar Pradesh & Others case (supra).
Search at the residence of accused not as per law.
107. It was submitted by ld.counsel for accused persons that alleged search carried out by the CBI at the house of accused persons on 29.09.2004 is not as per the CBI Manual. It was submitted that as per CBI Manual, whenever in disproportionate case, search is conducted at the residence of a public servant, witnesses should be independent and of the locality where the search is to be Page: 83/323 conducted and if witness of the said locality is not available then only witness from other locality is to be called after placing on record the fact of having made efforts to join witness of a locality.
108. It was further submitted that in the CBI Manual, videography and coloured photographs of residence should be taken and there should be a valuer during search.
109. It was submitted that these are the minimum safeguards provided in CBI Manual for preparing the list of articles found during the course of search at the residence of accused persons.
110. It was further submitted that in the present case, PW19 Sh. M.M. Gupta and PW29 Sh.B.D.Sharma had entered the witness box to prove the inventory of articles Ex.PW19/B found during the alleged search.
111. It was further submitted that both witnesses have claimed that search was conducted Page: 84/323 at the residence of accused persons and inventory was prepared after inquiry from accused Ajay Kumar Takkar regarding year of acquisition, amount and mode of acquisition of articles.
112. It was further submitted that PW29 Sh.B.D.Sharma and PW64 Sh.Amlendu Bhushan Chaudhary have both admitted in their cross examination that no local witness of the area was joined in the search, no videography/photography was done and no valuer was taken for the search though CBI Manual provides for the same.
113. It was submitted that CBI Manual is binding and mandatory as per the judgment of the Hon'ble Supreme Court of India delivered in Vineet Narain and Ors. Vs. Union of India and another, AIR 1998 SC 889(1).
114. It was further submitted that even PW64 Sh.Amlendu Bhushan Chaudhary admitted that search warrant Ex.PW64/D1 (colly) was not endorsed in his name.
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115. It was further submitted that it has come in the evidence of PW64 Sh.Amlendu Bhushan Chaudhary that inventory of articles Ex.PW19/B was prepared in the handwriting of one SI Arun Rawat but the said inventory does not have his name, signature and even SI Arun Rawat has not been examined as a witness in this case. Accordingly, it was submitted that inventory of articles Ex.PW19/B and the value thereof of household goods of Rs.2,59,600/ is inadmissible in evidence and accordingly, same should be deducted from the disproportionate assets.
116. At this stage, I am only dealing with the legality of the search carried out at the residence of accused Ajay Kumar Takkar and admissibility of inventory of articles Ex.PW19/B shall be discussed in the later part of the judgment.
117. There can be no dispute with regard to law laid down by the Hon'ble Supreme Court of India in Vineet Narain and Ors. Vs. Union of India Page: 86/323 and another's case (supra) and with regard to CBI Manual prescribing the mode and the manner of search at the house of a public servant.
118. Admittedly, in the present case, the search at the residence of accused Ajay Kumar Takkar on 29.09.2004 has not been carried out as per the CBI Manual as two witnesses from the locality were not joined, no videography/photography was done and valuer was not joined to witness the search and even search warrant was not endorsed in favour of PW64 Sh.Amlendu Bhushan Chaudhary. Therefore, it can be concluded that search was not carried out as per the provision prescribed by the CBI Manual.
119. Now, the question arises is as to what will be the effect of said search carried out at the residence of accused persons on 29.09.2004 which was in violation of CBI Manual?
120. The answer to this question lies in the judgment of the Hon'ble Supreme Court of India Page: 87/323 delivered in Union of India Vs. Prakash P. Hinduja & another's case (supra).
121. In the said judgment, it was held by the Hon'ble Supreme Court of India that "if cognizance is taken on a police report initiated by the breach of a mandatory provision relating to investigation then the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have caused miscarriage of justice". It was also observed that "an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial".
122. In the light of aforesaid judgment, it was for the accused Ajay Kumar Takkar to establish that due to search being in violation of mandatory provision of CBI Manual, some miscarriage of justice has taken place.
123. Ld.counsel for accused persons could not highlight any miscarriage of justice due to search Page: 88/323 carried out by CBI which was in violation of mandatory provision of CBI Manual.
124. On the contrary, what has come on record is that accused persons have not disputed the search being carried out at their residence on 29.09.2004 in the light of there being no cross examination of PW19 Sh. M.M. Gupta on this aspect.
125. Even the documents seized during the search and the inventory of articles Ex.PW19/B were not disputed or objected to in the cross examination of PW19 Sh. M.M. Gupta.
126. Even in the statement of accused Ajay Kumar Takkar recorded under Section 313 Cr.P.C., the search at the residence of accused Ajay Kumar Takkar on 29.09.2004, recovery of various documents in the form of bank passbooks, fixed deposit receipts, LIC policies were not disputed.
127. Even in the cross examination of PW29 Sh.B.D.Sharma, who was the witness to the search, Page: 89/323 nothing has been put in the cross examination doubting the holding of search on 29.09.2004 or regarding recovery of bank passbooks, fixed deposit receipts, LIC policies from the residence of accused Ajay Kumar Takkar.
128. Further, in the representation dated 03.12.2007 of accused Ajay Kumar Takkar Ex.PW60/D1 (colly) which was addressed to CMD (MTNL), which is an admitted document of accused Ajay Kumar Takkar, accused Ajay Kumar Takkar has himself mentioned about various bank fixed deposits, saving bank account, LIC policies and household goods. Therefore, in the present case, even if search was not carried out as per CBI Manual then also no miscarriage of justice has occurred to accused persons as they have not disputed the search or recovery of various documents from their residence. Therefore, search which has been carried out at the residence of accused persons on 29.09.2004, even though not Page: 90/323 as per the CBI Manual, does not vitiate the trial or effect the legality of documents found at the time of search. This contention of the ld.counsel for accused persons is accordingly, rejected.
129. Now, I shall deal with the various contentions raised by the ld.defence counsel with regard to nonproving of movable/immovable assets at the end of the check period belonging to accused Ajay Kumar Takkar.
Immovable Assets at the end of the Check Period
130. As per the case of the CBI, accused Ajay Kumar Takkar had acquired immovable assets worth Rs.32,33,940/ at the end of the check period i.e. on 29.09.2004.
131. As per the charge sheet, the amount of Rs.3.7 lacs gifted by the father of accused Sandhya Takkar has been taken into account while calculating the value of house at Indore.
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132. Further, while calculating the value of flat at Sector82, Noida, the amount of loan of Rs.6,82,000/ taken from HDFC Bank by accused Ajay Kumar Takkar has also been taken into account and thereafter, the value of immovable assets at the end of the check period amounting to Rs.32,33,940/ has been arrived at in the charge sheet.
133. The total value of the immovable assets acquired during the check period are as follows:
(i) Value of assets at the end of check period = Rs.32,33,940/.
(ii) Value of assets at the beginning of the check period = Rs.2,29,200/. (Value of Flat No. C248, Sheikh Sarai, New Delhi)
(iii) Value of assets acquired during the check period = Rs.30,04,740 A. Flat No.C248, Sheikh Sarai, New Delhi.
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134. As per case of CBI, flat no. C248, Sheikh Sarai, New Delhi was acquired by accused Ajay Kumar Takkar in 1980 and, therefore, the value of the said flat i.e.Rs.2,29,200/ was deducted while calculating the value of assets acquired during the check period.
135. This fact is also admitted by ld.defence counsel in his arguments.
136. The relevant witness examined by the CBI was PW1 Sh.Ashok Kumar, who had produced the complete file with regard to aforementioned flat and in his evidence also, he admitted that said flat was allotted to accused Ajay Kumar Takkar in the year 1980.
137. However, as per file Ex.PW1/A (colly) (D
2) and as per evidence of PW1 Sh.Ashok Kumar, accused Ajay Kumar Takkar had also paid Rs.20,200/ towards conversion charges on 06.12.1999 vide challan no. 589, original of which is part of Ex.PW1/A (colly) (D2).
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138. Further, accused Ajay Kumar Takkar had paid Rs.520/towards ground rent on 19.01.2000 vide challan no. 7171 and Rs.5,513/ also towards ground rent on 17.10.2000 vide challan no. 7172. All the aforesaid three challans in original are part of Ex.PW1/A(colly) (D2). Therefore, amount of Rs.20,200/ + Rs.520/ + Rs.5,513/ i.e. Rs.26,233/was spent by accused Ajay Kumar Takkar during the check period.
139. The said amount of Rs.26,233/ was never taken into account by CBI to have been spent by accused Ajay Kumar Takkar on the aforesaid flat during the check period. Hence, the amount of Rs.26,233/ is required to be added to the disproportionate assets.
B. TypeC, PhaseIV, Sector82, Noida
140. It was submitted by ld.defence counsel that relevant witnesses, who have come to depose regarding the aforesaid flat are PW9 Sh.Narender Page: 94/323 Kumar Wadhwa and PW55 Sh.Aju Ashok. It was submitted that PW9 Sh.Narender Kumar Wadhwa, who was the Director (Admn.) of Central Government Employees Welfare Housing Organization has not proved any document with regard to aforesaid flat or its value thereof.
141. It was further submitted that the file i.e. D 36 contains all the photocopies and all the documents have been given a Mark and hence, have not been proved. It was further submitted that PW55 Sh.Aju Ashok has only proved taking of house loan by accused Ajay Kumar Takkar of Rs.6,82,000/ for purchase of aforesaid flat which CBI has already deducted from the value of the said flat.
142. Ld.defence counsel concluded by submitting that since document regarding purchase price of aforesaid flat has not been proved, therefore, the amount of Rs.5,68,210/ shown as value of the aforementioned flat is Page: 95/323 required to be reduced from disproportionate assets.
143. In order to appreciate the contention of ld.defence counsel, I have carefully perused the charge sheet as well as the statement of PW9 Sh.Narender Kumar Wadhwa and PW55 Sh.Aju Ashok, who have deposed regarding the aforesaid flat and taking of housing loan by accused Ajay Kumar Takkar.
144. As per the charge sheet, the total value of the aforesaid flat is shown as Rs.12,50,210/. However, since accused Ajay Kumar Takkar had taken Rs.6,82,000/ from HDFC Bank, therefore, the value of aforesaid flat was taken as Rs.5,68,210/ after giving the benefit of loan to accused Ajay Kumar Takkar.
145. Taking of housing loan of Rs.6,82,000/ with regard to aforementioned flat has been proved by PW55 Sh.Aju Ashok, who was the Page: 96/323 Deputy Manager (Legal) in HDFC Bank.
146. Further, PW9 Sh.Narender Kumar Wadhwa, Director (Administration) in Central Government Employees Welfare Housing Organization had produced file Ex.PW9/A (D36) which contains the Application Form of accused Ajay Kumar Takkar Mark X, copy of allotment letter with regard to aforementioned flat Mark X1 having value of flat and the payment schedule.
147. The said file Ex.PW9/A also had payment receipts which were marked as Mark X2 to Mark X7.
148. Although it is true that all the aforesaid documents with regard to allotment and payment receipts were photocopies but no objection was taken by the ld.defence counsel at the time when they were tendered in evidence and marked by the court.
149. In the matter of R.V.E. Venkatachala Page: 97/323 Gounder vs Arulmigu Viswesaraswami & V.P., Appeal (civil) 10585 of 1996 decided on 08.10.2003, it was held by the Hon'ble Supreme Court of India that "in case photocopy of a document is filed at the stage of evidence and if no objection is taken by the defence at the time when it was tendered in evidence and marked as exhibit by the court then the same is admissible in evidence". Relevant part of the aforementioned judgment is reproduced as under: The learned counsel for the defendant respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of Page: 98/323 evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an Page: 99/323 objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt Page: 100/323 and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed:
"The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being Page: 101/323 made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention."
Similar is the view expressed by this Court in P.C.Purushothama Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed:
"Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility - see Bhagat Ram V. Khetu Page: 102/323 Ram and Anr. [AIR 1929 PC 110]."
Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.
150. In the present case also, no objection was taken by ld.defence counsel at the time when photocopies of aforementioned documents i.e. Mark X, Mark X1, Mark X2 to Mark X7 part of Ex.PW9/A (D36) were tendered in evidence. Therefore, these photocopies are admissible in evidence and they prove the allotment of flat i.e. Type C, PhaseIV, Sector82, Noida in favour of accused Ajay Kumar Takkar.
151. Further, as per evidence of PW9 Sh.Narender Kumar Wadhwa, total value of Rs.12,40,000/ was paid by accused Ajay Kumar Takkar.
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152. Another fact which proves the ownership of accused Ajay Kumar Takkar with regard to aforesaid flat is accused giving suggestion to PW9 Sh.Narender Kumar Wadhwa regarding taking of loan of Rs.6,82,000/ from HDFC Bank with regard to aforementioned flat.
153. If accused Ajay Kumar Takkar was not the owner of the aforementioned flat, then why he had taken Rs.6,82,000/ from HDFC Bank, has also not been explained by accused Ajay Kumar Takkar. Therefore, from the evidence, which had come on record of PW9 Sh.Narender Kumar Wadhwa and evidence of PW55 Sh.Aju Ashok regarding taking of house loan by accused Ajay Kumar Takkar, it was duly proved on record that accused Ajay Kumar Takkar had bought the aforesaid flat on 25.10.2001 for Rs.12,40,000/and after giving the benefit of Rs.6,82,000/ of housing loan taken from HDFC Bank, the value of the flat comes to Rs.5,58,000/ and not Rs.5,68,210/as mentioned Page: 104/323 in the charge sheet. Therefore, amount of Rs.10,210/ is required to be reduced from disproportionate assets.
C. Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai and Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai.
154. It was submitted by ld.defence counsel with regard to aforesaid flats that as per CBI case, the value of these flats has been taken as Rs.3.5 lacs and Rs.8.75 lacs respectively and they have been shown to have been acquired by accused Sandhya Takkar on 03.09.1995 and by both accused jointly on 28.06.1994 respectively.
155. It was further submitted that relevant witness, who has deposed regarding the aforesaid flat is PW11 Sh.Paresh C.Mankad.
156. It was submitted by ld.defence counsel that PW11 Sh.Paresh C.Mankad has deposed regarding the copy of Agreement to Sell with Page: 105/323 regard to Flat no.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai having purchased by accused Sandhya Takkar for Rs.3.5 lacs.
157. It was further submitted that PW11 Sh.Paresh C.Mankad did not depose regarding the value of Flat no.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai to be Rs.8.75 lacs. It was further submitted that even sellers of these flats have not been called as witnesses. Even Rs.8.75 lacs was never put to accused persons in their statement under section 313 Cr.P.C.
158. It was submitted that since documents were photocopies and were inadmissible in evidence and sellers of these flats have not been produced as witnesses, therefore, the value of these flats has not been proved thereof. Accordingly, it was prayed that amount of Rs.3.5 lacs and Rs.8.75 lacs be reduced from disproportionate assets.
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159. In order to appreciate the contention of the ld.defence counsel, I have carefully perused the charge sheet as well as the statement of PW11 Sh.Paresh C.Mankad. PW11 Sh.Paresh C.Mankad has deposed that Flat no.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai was purchased by accused Sandhya Takkar for Rs.3.5 lacs vide Agreement to Sell dated 03.09.1995 Mark PW11/1 (D37). It was further deposed that Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai was purchased by both accused persons vide copy of instrument of transfer dated 28.06.1994 Mark PW11/2 (D37).
160. It was further deposed to by him that both accused persons had submitted the photocopies of purchase documents of aforementioned flats and had also shown him the originals thereof.
161. The Agreement to Sell Mark PW11/1 (D
37) mentions the cost of Rs.3.5 lacs whereas the copy of instrument of transfer Mark PW11/2 (D Page: 107/323
37) with respect to Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai mentions the value of flat as Rs.8.75 lacs.
162. Although, it is true that both documents i.e. Mark PW11/1 and Mark PW11/2 are photocopies but no objection was taken by ld.defence counsel at the time when they were tendered in evidence. Therefore, in the light of judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P.'s case (supra), these documents are admissible in evidence. Therefore, ownership of accused Sandhya Takkar with respect to Flat no.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai and of both accused in respect of Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai stands proved and it is also proved that above mentioned flats were purchased for Rs.3.5 lacs and Rs.8.75 lacs on 03.09.1995 and 28.06.1994 Page: 108/323 respectively.
163. The ownership of aforesaid flats is also proved by the fact that in the cross examination of said witness, ownership by accused persons was never denied.
164. The contention of ld.defence counsel that value of Flat no.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai of Rs.8.75 lacs was never put to accused persons in their statement under Section 313 Cr.P.C. and hence, cannot be read in evidence, is required to be rejected as instrument of transfer Mark PW11/2 (D37) was duly put to both accused persons and said document specifically mentions the value of flat as Rs.8.75 lacs.
165. Another fact which proves the ownership of Flat no.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai is the statement of immovable property filed by accused Ajay Page: 109/323 Kumar Takkar with his department i.e. Mahanagar Telecom Nigam Limited vide property returns Ex.PW40/M (colly).
166. In the said property returns Ex.PW40/M (colly), accused Ajay Kumar Takkar has mentioned about the purchase of Flat no.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai in June, 1994 in joint name alongwith accused Sandhya Takkar for Rs. 9 lacs. The said property returns in original were produced by PW40 Sh.B.N.Shanbhag and in the crossexamination, accused raised no objection regarding their genuineness and hence, had admitted them.
167. Further, there was no cross examination by accused Ajay Kumar Takkar with regard to his property returns Ex.PW40/M (colly). Therefore, Ex.PW40/M (colly) also stands proved and as per the same, accused Ajay Kumar Takkar was joint owner of Flat no.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai with accused Page: 110/323 Sandhya Takkar.
D. Plot No.M128, Sector Delta, Greater Noida, Industrial Development Area, Distt.Gautam Budh Nagar.
168. It was submitted by ld.defence counsel that relevant witness, who has been examined by CBI with regard to aforesaid property is PW8 Sh.Kuldeep Singh and relevant documents in this regard are D39 and D40.
169. It is submitted that although PW8 Sh.Kuldeep Singh has deposed on oath that plot was allotted for total consideration of Rs.4,27,500/ but the said witness has not deposed as to how this amount was paid i.e. whether by cheque or by cash. It was further submitted that said witness has also deposed regarding few other amounts such as lease rent, stamp duty etc. but none of these payments have been proved. It was submitted that in his cross examination, said Page: 111/323 witness admitted that certain amount was paid in cash but he cannot tell whether cash payment was made to the authority by the father of accused Ajay Kumar Takkar.
170. It was further submitted that while being examined under Section 313 Cr.P.C., accused Ajay Kumar Takkar had stated that his father was looking after the affairs and he had made the payment. Therefore, the amount of Rs.4,27,500/ is required to be deducted from the disproportionate assets.
171. In order to appreciate the contention of the ld.defence counsel, I have carefully perused the charge sheet as well as the statement of PW8 Sh.Kuldeep Singh, witness from Greater Noida Industrial Development Authority. Said witness had produced the original lease deed in favour of accused Ajay Kumar Takkar Ex.PW8/B. In the said lease deed, it is specifically mentioned that plot has been allotted for Rs.4,27,500/ and amount of Page: 112/323 Rs.42,750/ has been paid as one time lease rent.
172. Nothing was brought out in the cross examination of said witness to create a doubt regarding the ownership of property or regarding the payment made by accused Ajay Kumar Takkar with regard to aforementioned property.
173. The ownership of property further stands proved by the property return filed by accused Ajay Kumar Takkar with his department which is Ex.PW30/G wherein accused Ajay Kumar Takkar had himself apprised his department regarding purchase of plot at Greater Noida in January, 2003 for Rs.4.73 lacs. The property return Ex.PW30/G is an admitted document as no cross examination was done of PW30 Sh.T.V.Rao, who produced the same.
174. The contention of ld.defence counsel that the payment of aforesaid plot was paid by father of accused Ajay Kumar Takkar is required to be Page: 113/323 rejected as in the property return Ex.PW30/G, this fact is nowhere mentioned.
175. On the contrary, it is mentioned in the property return Ex.PW30/G that payment has been made by accused Ajay Kumar Takkar.
176. In the light of evidence of PW8 Sh.Kuldeep Singh, original lease deed Ex.PW8/B and property return Ex.PW30/G, it is proved that accused Ajay Kumar Takkar had paid a total sum of Rs.4,27,500/ which is the same as per the charge sheet.
E. Flat No. 6/404, 4th Floor, Green Meadows, Building No. 6, Green Meadows Co operative Housing Society Ltd., Lokhandwala Township, Akurli Road, Kandivali (E), Mumbai.
177. It was contended by ld.defence counsel that value of the aforesaid flat has been taken by the CBI as Rs.7.5 lacs and the relevant witness pertaining to this property is PW63 Sh.Manoj Page: 114/323 Ramesh Bile.
178. It was submitted that PW63 Sh.Manoj Ramesh Bile was the Secretary of the Society where this flat is situated and he had deposed that photocopy of the sale deed dated 22.05.1995 was forwarded by Sh.Uday Mehta, the then Secretary of the society on 09.12.2004. However, Sh.Uday Mehta was never examined as a witness in this case and since PW63 Sh.Manoj Ramesh Bile was not a party or witness to the sale of said flat, therefore, sale deed dated 22.05.1995 was never proved on record.
179. It was further submitted that even the seller was not called as a witness by the CBI.
180. Lastly, it was submitted that even the value of the said flat of Rs.7.5 lacs was not put to accused Ajay Kumar Takkar in his statement under Section 313 Cr.P.C. Accordingly, it was prayed that amount of Rs.7.5 lacs be deducted from the Page: 115/323 disproportionate assets.
181. In order to appreciate the contention of the ld.defence counsel, I have carefully perused the charge sheet as well as the statement of PW63 Sh.Manoj Ramesh Bile, the Secretary of Green Meadows Cooperative Housing Society where the aforesaid flat is situated.
182. PW63 Sh.Manoj Ramesh Bile had produced on record the original Agreement of Sale executed with regard to aforementioned flat between Smt.Gulshan Kumar and both accused persons on 22.06.1995. The said Agreement to Sell is Ex.PW63/C and purchase price has been taken as Rs.7.5 lacs.
183. In the entire crossexamination of PW63 Sh.Manoj Ramesh Bile, no suggestion was given to accused persons denying their ownership of aforesaid flat. Therefore, Agreement to Sell Ex.PW63/C proves the purchase of flat by both Page: 116/323 accused for Rs.7.5 lacs on 22.06.1995.
184. The nonexamination of seller Smt.Gulshan Kumar is not fatal to the prosecution case as accused Ajay Kumar Takkar has himself admitted in his property returns filed with his department i.e. Bharat Sanchar Nigam Ltd. in the year 2002 which is Ex.PW30/F and in the year 2003 which is Ex.PW30/G. In both the aforesaid property returns, accused Ajay Kumar Takkar has himself admitted regarding purchase of aforesaid flat from Smt.Gulshan Kumar in June, 1995 for Rs.7.5 lacs.
185. The property returns Ex.PW30/F and Ex.PW30/G stand proved as PW30 Sh.T.V.Rao was not cross examined with regard to aforesaid property returns.
186. The other contention of ld.defence counsel that the amount of Rs.7.5 lacs cannot be read against accused persons as the said amount was Page: 117/323 not put to accused persons in their statement under Section 313 Cr.P.C., is not acceptable as Agreement to Sell Ex.PW63/C and property returns Ex.PW30/F and Ex.PW30/G were duly put to accused persons while their statement was recorded under Section 313 Cr.P.C. and in all the aforementioned documents, amount of Rs.7.5 lacs was duly mentioned.
187. Since documents were put to accused in their statement under Section 313 Cr.P.C., therefore, whatever was mentioned in the aforementioned documents is deemed to have been put to accused. Therefore, this contention of ld.defence counsel has got no force and is accordingly rejected.
188. In the light of above discussion, CBI had proved that both accused persons had purchased the aforesaid flat for Rs.7.5 lacs on 22.06.1995 and the said amount was correctly mentioned by CBI while calculating the disproportionate assets.
Page: 118/323 F. Flat No. 5E/A, Scheme No.54, Indore.
189. It was submitted by ld.defence counsel that value of the aforesaid property at Indore has been taken as Rs.34,000/ in the charge sheet. It was submitted that the relevant witness, who was examined by CBI in this regard is PW10 Sh.Rajender Kumar Shah. It was further submitted that PW10 Sh.Rajender Kumar Shah did not produce the original documents and all the documents produced on record were photocopies which are inadmissible in evidence.
190. It was further submitted that in his cross examination, PW10 Sh.Rajender Kumar Shah admitted that deal regarding this property was made by Sh.J.C.Talwar , father of accused Sandhya Takkar and this property was gifted from Sh.J.C.Talwar to accused Smt.Sandhya Takkar. It was further submitted that since it has come on record that aforesaid flat was gifted by Sh.J.C.Talwar to accused Sandhya Takkar, Page: 119/323 therefore, this amount of Rs.34,000/ needs to be deducted from the disproportionate assets.
191. In order to appreciate the contention of the ld.defence counsel, I have carefully perused the charge sheet as well as the statement of PW10 Sh.Rajender Kumar Shah.
192. As per the charge sheet, the value of the aforesaid flat was 4,09,000/ and since there were bank entries in the account of Sh.J.C.Talwar of having gifted Rs. 3.75 lacs to accused Sandhya Takkar and amount of Rs.11,000/ was directly paid to the builder, therefore, CBI had deducted the value of assets by Rs.3.75 lacs gifted by Sh.J.C.Talwar to accused Sandhya Takkar and hence, the value of the flat has been taken as Rs.34,000/.
193. PW10 Sh.Rajender Kumar Shah is the witness, who had sold the flat to accused Sandhya Takkar on behalf of seller company McSure Real Estate Ltd. He has also produced the photocopies Page: 120/323 of the sale deed Mark PW10/2 and details of payment Mark PW10/5.
194. The photocopies of the sale deed Mark PW10/2 and details of payment Mark PW10/5 are admissible in evidence as at the time of tendering of these documents, no objection was taken by ld.defence counsel regarding their admissibility, in the light of the judgment delivered by the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P.'s case (supra).
195. Therefore, sale deed Mark PW10/2 proves that the flat was sold to accused Sandhya Takkar and details of payment Mark PW10/5 proves that the same was sold for a total consideration of Rs.4,03,000/.
196. The contention of ld.defence counsel that in his crossexamination, PW10 Sh.Rajender Kumar Shah had admitted that entire payment was made by Sh.J.C.Talwar, father of accused Sandhya Page: 121/323 Takkar with regard to aforesaid flat, is not acceptable as PW10 Sh.Rajender Kumar Shah has no where deposed in his cross examination that payment was made by Sh.J.C.Talwar.
197. PW10 Sh.Rajender Kumar Shah has deposed that Sh.J.C.Talwar had entered into a deal regarding the aforementioned property and he has also made payment through cheques issued from the account of accused Sandhya Takkar.
198. The suggestion that payment as per Mark PW10/5 was made through cheques from the account of accused Sandhya Takkar was made by accused themselves which was admitted to be correct by PW10 Sh.Rajender Kumar Shah. Therefore, the case of accused Sandhya Takkar was that she had made the payment as per Mark 10/5 by way of cheques from her account although cheques were handed over by her father Sh.J.C.Talwar. Therefore, it is no where proved that payment was made by Sh.J.C.Talwar.
Page: 122/323
199. On the contrary, it is proved on record that an amount of Rs.4,03,000/ was paid by accused Sandhya Takkar through cheques from her account. Therefore, evidence of PW10 Sh.Rajender Kumar Shah and document Mark PW10/5 proves that aforesaid flat was purchased by accused Sandhya Takkar in 1998 not for Rs.4,09,000/ but for Rs.4,03,000/ and if amount of Rs.3.75 lacs gifted by Sh.J.C.Talwar as admitted case of CBI is deducted then the value of the flat comes to Rs.28,000/ and not Rs.34,000/ as mentioned in the charge sheet. Therefore, amount of Rs.6,000/ is required to be deducted from disproportionate assets with regard to the aforesaid flat.
200. In the light of aforesaid evidence, it is proved on record that the value of the immovable properties during the check period was as follows: Name of the Value during Value of the Increas Page: 123/323 property the check property e / period as per proved decrea charge sheet during trial. se in the value of the proper ty during the check period as per the eviden ce.
1.Flat No.C Nil Rs.26,233/ Rs.26, 248, Sheikh 233/ Sarai, New (increa Delhi se) 2. TypeC, Rs.5,68,210/ Rs.5,58,000/ 10,210 PhaseIV, / Sector82, (decre Noida ase)
3. Flat No. Rs.3,50,000/ Rs.3,50,000/ Nil.
101, F3/A,
Panchsheel
2, Raheja
Township,
Page: 124/323
Malad
(East),
Mumbai
4. Flat No. Rs.8,75,000/ Rs.8,75,000/ Nil.
104, Satyam1, CHS Ltd., Raheja Complex, Malad (East), Mumbai
5. Plot Rs.4,27,530/ Rs.4,27,530/ Nil No.M128, Sector Delta,, Greater Noida, Industrial Developmen t Area, Distt.Gauta m Budh Nagar
6. Flat Rs.7,50,000/ Rs7,50,000/ Nil No.6/404, 4th Floor, Green Meadows, Page: 125/323 Bldg.no.6, Green Meadows Cooperative Housing Society Ltd., Lokhandwal a Township, Akurli Road, Kandivali (E), Mumbai
7. Flat Rs.34,000/ Rs.28,000/ Rs.6,0 No.5/E/A, 00/ Scheme (decre No.54, ase) Indore Total Rs.30,04,740 Rs.30,14,763 Rs.10, / / 023/ (increa se)
201. Therefore, the value of immovable assets acquired by accused persons during the check period is Rs.30,14,763/ and not Rs.30,04,740/ as claimed by CBI in the charge sheet. Therefore, amount of Rs.10,023/ is required to Page: 126/323 be added to disproportionate assets.
Movable Assets
202. It was submitted by the ld.defence counsel that balance in the saving bank accounts of accused persons has not been proved as per law. It was submitted that the various statements of account produced on record pertaining to banks of accused persons are inadmissible in evidence as they do not carry any certification under the Banker's Book Evidence Act, 1891 and in case of computerized bank statements, no certificate under Section 65B of the Indian Evidence Act, 1872 has been annexed.
203. It was further submitted that as per Section 18 of the PC Act, IO was required to collect the bank statements from the concerned banks but the compliance has not been made as IO had not visited the banks but had sought the information from them. Accordingly, it was submitted that Page: 127/323 statement of bank accounts are inadmissible in evidence.
204. In support of his submission, ld.defence counsel has relied upon the judgment of the Hon'ble Supreme Court of India delivered in Anwar P.V. Vs. P.K.Basheer & Ors., Civil Appeal No.4226/2012 decided on 18.09.2014.
205. In order to appreciate the contention of ld.defence counsel, the evidence led with regard to each bank account of accused persons is dealt with specifically.
SAVING BANK ACCOUNTS I. Account No. 3619, UCO Bank, Sheikh Sarai, New Delhi.
206. As per the charge sheet, there was an amount of Rs.6,379.73p. on 29.09.2004 in the aforementioned account of both accused.
207. To prove the said amount, CBI had examined PW5 Sh.Lal Singh, Senior Manager, UCO Page: 128/323 Bank and PW18 Sh.Rakesh Wadhera, Assistant Manager, UCO Bank, Sheikh Sarai, New Delhi.
208. Both the aforesaid witnesses have deposed regarding computerized statement of account with regard to aforementioned account of accused Mark C. The computer generated statement of account Mark C is not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872. Hence, the said statement of account is inadmissible in evidence.
209. However, during the examination of PW5 and PW18, they were shown two original passbooks and PW5 Sh.Lal Singh had duly identified them to have been issued by their bank and they were exhibited as Ex.PW5/G1 and Ex.PW5/G2 (D21).
210. Further, PW18 Sh.Rakesh Wadhera after seeing the passbooks Ex.PW5/G1 and Ex.PW5/G 2 had specifically deposed that these passbooks pertain to their bank and pertain to saving bank Page: 129/323 account of accused persons.
211. As per the passbook Ex.PW5/G1 (D21), there was an amount of Rs.6,287.73p. as on 31.12.2003 in the Saving Bank Account No. 3619 in the name of both accused persons.
212. Since these two passbooks Ex.PW5/G1 and Ex.PW5/G2 were recovered during search of premises of accused Ajay Kumar Takkar as deposed by PW19 Sh. M.M. Gupta and having regard to the fact that in the crossexamination of PW19 Sh.M.M.Gupta, it was nowhere suggested to PW19 Sh.M.M.Gupta that these passbooks have not been recovered from the house of accused Ajay Kumar Takkar, therefore, these passbooks are admissible in evidence.
213. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record. Hence, it is proved by CBI that Page: 130/323 there was an amount of Rs.6,287.73 p. in the account of accused persons on 31.12.2003.
214. Since the amount of Rs.6,379.73p. is not proved, therefore, benefit of Rs.92/ is required to be given to accused persons.
II. Account No. 11492 , Punjab National Bank, Sheikh Sarai, New Delhi.
215. As per the charge sheet, the present account pertain to both accused and there was an amount of Rs.13,073.51p.
216. In order to prove the aforementioned amount, CBI had examined PW17 Sh.S.P.Lamba, who was working as Senior Manager in PNB, Sheikh Sarai Branch, New Delhi.
217. PW17 Sh.S.P.Lamba was shown two original passbooks of the aforementioned account of accused persons which are Ex.PW17/F and Ex.PW17/G (D32) and he had deposed that these passbooks pertain to PNB, Chirag Delhi Branch.
Page: 131/323
218. Neither any objection was taken with regard to these two passbooks nor anything was brought out in the crossexamination of PW17 Sh.S.P.Lamba regarding these two passbooks. Therefore, they stand proved.
219. Apart from this, said passbooks Ex.PW17/F and Ex.PW17/G (D32) were recovered during the search of house of accused Ajay Kumar Takkar and search witness i.e. PW19 Sh.M.M.Gupta had duly deposed regarding their recovery from house of accused.
220. In the crossexamination of PW19 Sh.M.M.Gupta, no suggestion was given by accused doubting their recovery from his house. Therefore, recovery of passbooks from the house of accused persons stood proved.
221. As per passbook Ex.PW17/G, the amount reflected is Rs.11,386.51p. on 16.04.2003 in the account of both accused.
222. Statement of account forming part of Page: 132/323 Ex.PW17/A (colly) (D240) is not admissible as it is not accompanied by any certificate under The Bankers' Books Evidence Act, 1891. Hence, CBI has been able to prove the amount of Rs.11,386.51p.in the account of accused persons as on 16.04.2003 and not Rs.13,073.51p. as per charge sheet. Therefore, amount of Rs.1,687/ has to be reduced from disproportionate assets.
III. Account No. 19850, Canara Bank, Green Park Extension, New Delhi.
223. As per the charge sheet, both accused were having Rs.13,626.68p. in the said account on 29.09.2004.
224. To prove the aforesaid amount, CBI had examined PW6 Sh.Nain Singh, who was the officer of Canara Bank, Green Park Extension, New Delhi.
225. The said witness had deposed regarding certified copy of computerized statement of account Ex.PW6/C (D20). However, since Page: 133/323 Ex.PW6/C was not certified under The Bankers' Books Evidence Act, 1891 or having requisite certificate under Section 65B of the Indian Evidence Act, 1872, hence, the same is inadmissible in evidence. However, said witness on being shown two original passbooks of accused persons i.e. PW6/I1 and Ex.PW6/I2 (D18), he had exhibited the same.
226. No objection was taken by ld.defence counsel at the time of exhibition of these two passbooks. Even nothing was brought out in the cross examination of PW6 Sh.Nain Singh to create a doubt with regard to these two passbooks. Hence, the said passbooks stood proved.
227. Even otherwise, it was proved on record in the light of evidence of PW19 Sh.M.M.Gupta that aforementioned two passbooks Ex.PW6/I1 and Ex.PW6/I2 (D18) were recovered from the house of accused during the course of search.
228. Accused had not disputed the recovery of Page: 134/323 these two passbooks in the crossexamination of PW19 Sh.M.M.Gupta. Hence, it is an admitted fact that these two passbooks were recovered from the house of accused and pertain to his Saving Bank Account No. 19850.
229. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
230. As per passbook Ex.PW6/I2 (D18), an amount of Rs.10,505.68p. is reflected in the account of accused persons on 19.09.2002. Therefore, CBI has been able to prove the aforementioned amount and not Rs.13,626.68p. as per the charge sheet. Hence, benefit of Rs.3,121/ is to be given to accused persons, by deceasing the same from disproportionate assets.
IV. Account No. 2238, Indian Bank, Nehru Place, New Delhi.
Page: 135/323
231. As per the charge sheet, accused Ajay Kumar Takkar was having Rs.11,406.95/ as on 29.09.2004.
232. In order to prove the aforementioned amount, CBI had examined PW7 Sh.Virender Kumar. PW7 Sh.Virender Kumar was the dealing clerk at Indian Bank, Nehru Place Branch, New Delhi and he had deposed regarding handing over of certified copy of statement of account Ex.PW7/D (D249) to CBI.
233. Ld.defence counsel had objected to the exhibition of said document when the same was tendered in evidence.
234. I have carefully perused Ex.PW7/D (D
249) and it is neither certified under The Bankers' Books Evidence Act, 1891 nor any certificate under Section 65B of the Indian Evidence Act, 1872 is annexed with the same. Therefore, the said statement of account Ex.PW7/D is inadmissible in Page: 136/323 evidence. Hence, CBI had failed to prove the amount of Rs.11,406.95/ in the account of accused on 29.09.2004. Therefore, this amount of Rs.11,406.95p. is required to be reduced from disproportionate assets.
V. Account No. 50212010094818 & 50212010145471, Syndicate Bank, Malad (East), Mumbai.
235. As per the charge sheet, there was an amount of Rs.83,619.08p. as on 29.09.2004 and Rs.65,021.57p. on 01.10.2004 in the account of accused Sandhya Takkar and Preety Takkar.
236. The relevant witness summoned by CBI in this regard was PW12 Sh.Jeevan Madhav Dalvi, who was working as Manager in Syndicate Bank, Malad (East), Mumbai. PW12 Sh.Jeevan Madhav Dalvi had deposed regarding providing of certified copy of computerized statement of account of accused Sandhya Takkar and Preety Takkar which is part of Ex.PW12/A (colly) (D49). The said Page: 137/323 statement of account was objected to by ld.defence counsel at the time of it being tendered in evidence.
237. I have carefully perused Ex.PW12/A (colly). Since statement of account with regard to aforementioned account numbers is a computerized copy, therefore, it was required to be annexed with certificate under Section 65B of the Indian Evidence Act, 1872. However, said statement of account Ex.PW12/A (colly) is not accompanied by any certificate under Section 65B of the Indian Evidence Act, 1872. Hence, it is inadmissible in evidence.
238. However, original passbooks with regard to aforementioned account numbers were recovered during the search at the house of accused Ajay Kumar Takkar and search witness i.e. PW19 Sh.M.M.Gupta had proved their recovery from residence of accused Ajay Kumar Takkar .
239. In the crossexamination of PW19 Page: 138/323 Sh.M.M.Gupta, accused never disputed recovery of passbooks Ex.PW19/MMM (D53) and Ex.PW19/NNN (D52) from his residence during the course of search. Therefore, original passbooks Ex.PW19/MMM (D53) and Ex.PW19/NNN (D
52) are admissible in evidence as they were never disputed to have been recovered from the residence of accused Ajay Kumar Takkar.
240. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
241. As per passbook Ex.PW19/MMM (D53) Preety Takkar was having Rs.65,021.57p. as on 01.07.2004 and as per passbook Ex.PW19/NNN (D52), accused Sandhya Takkar, Preety Takkar and Adity Takkar were having Rs.83,619.08p. as on 23.09.2004 as is mentioned in the charge sheet. Hence, the amount mentioned in the charge Page: 139/323 sheet with respect to aforementioned accounts stands proved by way of original passbooks Ex.PW19/MMM (D53) and Ex.PW19/NNN (D
52).
VI. Account No. 1190020976, SBI, Malad (West), Mumbai.
242. As per the charge sheet, accused Ajay Kumar Takkar and Sandhya Takkar, account holders of the aforementioned account, were having Rs.1,22,863.90p. in their account on 01.10.2004.
243. The relevant witness summoned by CBI in this regard was PW3 Ms.Martha D'Silva. PW3 Ms.Martha D'Silva had deposed regarding certified copy of computerized statement of account Ex.PW3/D. The said statement of account was objected to by ld.defence counsel at the time of it being tendered in evidence.
244. I have carefully perused Ex.PW3/D. Since Page: 140/323 it is a computerized statement of account, therefore, it was required to be annexed with certificate under Section 65B of the Indian Evidence Act, 1872. However, said statement of account Ex.PW3/D is not accompanied by any certificate under Section 65B of the Indian Evidence Act, 1872. Hence, it is inadmissible in evidence.
245. However, PW3 Ms.Martha D'Silva was shown two original Saving Bank passbooks of aforementioned account i.e. Ex.PW3/G1 and Ex.PW3/G2 (D14) and witness identified the same pertaining to their branch.
246. Ld.defence counsel had objected to the said passbooks regarding the mode of proof. However, in the opinion of this court, objections of ld.defence counsel with regard to mode of proof are not tenable as original passbooks were produced before the court.
247. Secondly, these passbooks were recovered Page: 141/323 during the search at the house of accused Ajay Kumar Takkar and search witness i.e. PW19 Sh.M.M.Gupta had proved their recovery from residence of accused Ajay Kumar Takkar.
248. In the crossexamination of PW19 Sh.M.M.Gupta, accused never disputed recovery of passbooks Ex.PW3/G1 and Ex.PW3/G2 (D14) from his residence during the course of search. Therefore, passbooks Ex.PW3/G1 and Ex.PW3/G 2 (D14) are admissible in evidence as they were never disputed to have been recovered from the residence of accused Ajay Kumar Takkar.
249. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
250. As per passbook Ex.PW3/G2 (D14), accused was having Rs.1,22,863.90p. as on 05.07.2004 as is mentioned in the charge sheet.
Page: 142/323 Hence, this amount stands proved.
VII. Account No. 109614, Oriental Bank of Commerce, Goregaon, Mumbai.
251. As per the charge sheet, accused Ajay Kumar Takkar and Sandhya Takkar, account holders of above mentioned account were having Rs.2,52,797.55p. in their account on 29.09.2004.
252. The relevant witness examined by CBI in this regard was PW13 Sh. V.K. Mahajan. PW13 Sh.V.K.Mahajan had deposed regarding copy of computerized statement of account Ex.PW13/I (colly) (D75).
253. Since Ex.PW13/I (colly) was computerized statement of account, therefore, to make it an admissible document, it was required to be accompanied by certificate under Section 65B of the Indian Evidence Act, 1872. However, no such certificate was annexed alongwith said statement of account. Hence, it is admissible in evidence.
Page: 143/323
254. However, PW13 Sh.V.K.Mahajan was shown three original passbooks of aforementioned account which are Ex.PW13/A (colly) (D64) and witness identified the same pertaining to their branch.
255. Even otherwise, since original passbooks were produced, therefore, they are primary evidence. Hence, are admissible in evidence.
256. Secondly, these passbooks were recovered during the search at the house of accused Ajay Kumar Takkar and search witness i.e. PW19 Sh.M.M.Gupta had proved their recovery from residence of accused Ajay Kumar Takkar.
257. In the crossexamination of PW19 Sh.M.M.Gupta, accused never disputed recovery of passbooks Ex.PW13/A (colly) (D64) from his residence during the course of search. Therefore, passbooks Ex.PW13/A (colly)(D64) are admissible in evidence as they were never disputed to have been recovered from the residence of accused Ajay Page: 144/323 Kumar Takkar.
258. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
259. As per passbook Ex.PW13/A (colly), there was an amount of Rs.2,63,944.55p. on 27.08.2004. Therefore, it is proved that during the check period, the accused Ajay Kumar Takkar had acquired Rs.2,63,944.55p. and not Rs.2,52,797.55p.as mentioned in the charge sheet. Hence, disproportionate assets are required to be increased by Rs.11,147/.
VIII. Account No. 5974, Bank of India, Goregaon, Mumbai.
260. As per the charge sheet, there was an amount of Rs.57,839.69p.in the account of accused Ajay Kumar Takkar on 29.09.2004.
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261. The relevant witness examined by CBI in this regard was PW32 Sh.Arun Kachru Gaikwad, who was working as Senior Manager in Bank of India, Mumbai.
262. As per letter Ex.PW32/C (D4), amount in the account of accused has been shown as Rs.57,839.69p. as on 29.09.2004. However, there is no corresponding statement of account to support the said amount. Therefore, I agree with the submission put forward by ld.defence counsel that the said amount has not been proved by CBI on the basis of Ex.PW32/C.
263. However, the said witness was shown four original passbooks of aforementioned account Ex.PW19/C (colly) (D3) and witness identified the same pertaining to their branch.
264. Secondly, these passbooks were recovered during the search at the house of accused Ajay Kumar Takkar and search witness i.e. PW19 Sh.M.M.Gupta had proved their recovery from Page: 146/323 residence of accused Ajay Kumar Takkar.
265. In the crossexamination of PW19 Sh.M.M.Gupta, accused never disputed recovery of passbooks Ex.PW19/C (colly) (D3) from his residence during the course of search. Therefore, passbooks Ex.PW19/C (colly) (D3) are admissible in evidence as they were never disputed to have been recovered from the residence of accused Ajay Kumar Takkar.
266. The aforesaid passbooks were also put to accused in statement under Section 313 Cr.P.C. and in reply, accused had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
267. As per passbook Ex.PW19/C (colly) (D3), there was an amount of Rs.2,32,297.27p. in the account of accused Ajay Kumar Takkar and Sandhya Takkar on 17.08.2004. Therefore, from the passbooks Ex.PW19/C (colly) (D3), what is proved on record is that accused was having Page: 147/323 Rs.2,32,297.27p.on 17.08.2004. The balance in the aforementioned account at the start of the check period was Rs.86,239.07p. as per the charge sheet. Hence, disproportionate assets acquired during the check period is as follows: Rs.2,32,297.27p. Rs.86,239.07p. = Rs.1,46,058.2p.
268. Therefore, the disproportionate assets are required to be increased by Rs.1,46,058.2p.
IX. Account No. 0131050358300, IDBI Bank, Indore Branch and 0131078263100 IDBI Ltd., Indore
269. As per the charge sheet, accused Sandhya Takkar and Vimal Takkar were having an amount of Rs.1,46,446.52/ and Ms.Preety Takkar and Mr.J.C.Talwar were having an amount of Rs.16,565.61p. in the aforementioned accounts.
270. The relevant witness examined by CBI in Page: 148/323 this regard was PW14 Sh. Vivek Nair. PW14 Sh.Vivek Nair had deposed that accused Sandhya Takkar was having an account with them bearing Account No. 0131050358300.
271. The computerized statement of both aforementioned accounts which is part of Ex.PW14/A (D80) do not have any certificate under Section 65B of the Indian Evidence Act, 1872. Hence, the computerized statements of account are inadmissible in evidence.
272. Therefore, the aforementioned amount has not been proved by CBI on record. Accordingly, the amounts of Rs.1,46,446.52/ and Rs.16,565.61p. i.e. Rs.1,63,012.13p. is required to be reduced from disproportionate assets.
X. Account No. 2201503771, ICICI Bank, Mumbai.
273. As per the charge sheet, there was an amount of Rs.34,994/ in the account of accused Page: 149/323 Ajay Kumar Takkar as on 29.09.2004.
274. The relevant witness examined by CBI in this regard was PW16 Sh. Kevin Miranda, Branch Manager, ICICI Bank, Mumbai and he deposed regarding statement of account Ex.PW16/A (colly) which is part of D184. The said computerized statement of aforementioned account do not have any certificate under Section 65B of the Indian Evidence Act, 1872. Hence, the same is inadmissible in evidence and hence the said amount is not proved. Therefore, amount of Rs.34,994/ is required to be reduced from disproportionate assets.
PPF Accounts A. PPF Account No. 01P00901008 of accused Sandhya Takkar with SBI, Malad (West), Mumbai.
275. As per the charge sheet, accused Sandhya Takkar was having an amount of Rs.2,69,000/ in Page: 150/323 the aforementioned PPF account without accrued interest as on 29.09.2004.
276. The relevant witness examined by CBI in this regard is PW3 Ms.Martha D'Silva. PW3 Ms.Martha D'Silva had deposed that accused Sandhya Takkar was having an account with them of PPF bearing Account No. 01P00901008 and she had also provided the computerized statement of account of PPF Account vide Ex.PW3/E and Ex.PW3/I.
277. Ld.defence counsel had objected to the statement of account regarding the mode of proof.
278. Since these computer generated statements were not having required certificate under Section 65B of the Indian Evidence Act, 1872, therefore, were inadmissible and onus was upon CBI to prove the amount in the PPF Account of accused Sandhya Takkar.
279. IO i.e. PW64 Sh.A.B.Chaudhary had produced on record the original PPF passbooks of Page: 151/323 aforementioned account which are Ex.PW64/R and Ex.PW64/S. As per PPF passbook Ex.PW64/R, the amount reflected as on 06.09.2004 is Rs.3,55,178/ and the said amount tallies with the amount reflected in the statement of account Ex.PW3/E and Ex.PW3/I.
280. These passbooks were also put to accused Sandhya Takkar in her statement under Section 313 Cr.P.C. and in reply, accused Sandhya Takkar had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
281. Even during the course of arguments, the amount in the PPF account was not disputed by ld.counsel for accused persons. Therefore, in the light of above discussion and having regard to the PPF passbooks Ex.PW64/R and Ex.PW64/S, CBI had proved on record that accused Sandhya Takkar was having Rs.2,69,000/ in her account without accrued interest as on 29.09.2004.
Page: 152/323 B. PPF Account No. 37, Bank of India, Goregaon (East).
282. As per the charge sheet, accused Ajay Kumar Takkar was having an amount of Rs.2,42,986/ in the aforementioned PPF account without accrued interest as on 29.09.2004.
283. The relevant witness examined by CBI in this regard is PW32 Sh.Arun Kachru Gaikwad. PW32 Sh.Arun Kachru Gaikwad had deposed regarding providing certified copies of statement of accounts of accused Ajay Kumar Takkar as mentioned in the letter Ex.PW32/A (D5).
284. Ld.defence counsel had objected to the statement of account regarding the mode of proof.
285. Since these computer generated statements were not having required certificate under Section 65B of the Indian Evidence Act, 1872, therefore, were inadmissible and onus was upon CBI to prove the amount in the PPF Account of accused Ajay Kumar Takkar.
Page: 153/323
286. IO i.e. PW64 had produced on record the original PPF passbooks of aforementioned account which are Ex.PW64/T and Ex.PW64/Q. As per PPF passbook Ex.PW64/Q, the amount reflected as on 17.08.2004 is Rs. 4,55,914/ and the said amount tallies with the amount reflected in the certified copy of manual details at page no.128 which is part of Ex.PW32/A (D5).
287. These passbooks were also put to accused Ajay Kumar Takkar in his statement under Section 313 Cr.P.C. and in reply, accused Ajay Kumar Takkar had not disputed the recovery of aforesaid passbooks by saying that it is a matter of record.
288. Even during the course of arguments, the amount in the PPF account was not disputed by ld.counsel for accused persons. Therefore, in the light of above discussion and having regard to the PPF passbooks Ex.PW64/T and Ex.PW64/Q, CBI had proved on record that accused Ajay Kumar Takkar was having Rs.2,42,986/without accrued Page: 154/323 interest as on 29.09.2004.
289. It was further contended by ld.defence counsel that balance in the PPF Account of accused Ajay Kumar Takkar in the beginning of check period i.e. 01.04.1994 has been shown as Rs.42,000/ whereas as per admission of PW42 Sh.R.L.Raina, who was Senior Post Master, Sarojini Nagar, Head Post Office, it has come on record that balance in the PPF Account of accused Ajay Kumar Takkar was Rs.49,132/ on 01.04.1994. Accordingly, it was prayed that amount of Rs.7,132/ is required to be reduced from disproportionate assets.
290. The said contention of ld.defence counsel is not acceptable as in the charge sheet, it has been specifically mentioned that amount of Rs.42,000/ taken at the start of the check period in the PPF Account of accused Ajay Kumar Takkar is excluding interest.
291. Even the balance in the PPF Account of Page: 155/323 accused Ajay Kumar Takkar taken at the end of the check period i.e. on 29.09.2004 has been taken without accrued interest.
292. Therefore, CBI had not taken into account any accrued interest at the start of check period or at the end of the check period. The amount of Rs.7,132/ sought to be reduced by ld.defence counsel is accrued interest as per PPF passbook Ex.PW64/T (D215) and even as per admitted document of accused i.e. representation of accused Ajay Kumar Takkar dated 03.12.2007 Ex.PW60/D1 (colly). Therefore, CBI had rightly not added interest income either at the start of the check period or at the end of the check period. This contention of ld.defence counsel is accordingly, rejected.
Fixed Deposits
293. Serial Nos.1 to 10 of page no.21 of the charge sheet give description of FDRs of accused persons of Oriental Bank of Commerce, Branch Page: 156/323 Goregaon (East), Mumbai and Bank of India, Malad (East), Mumbai.
294. The relevant witnesses, who have been examined to prove the aforesaid FDRs were PW19 Sh.M.M.Gupta, PW13 Sh.V.K.Mahajan and PW32 Sh.Arun Kachru Gaikwad.
295. PW19 Sh.M.M.Gupta was the search witness, who had proved the recovery of aforementioned 10 FDRs during the course of search at the residence of accused Ajay Kumar Takkar.
296. In the crossexamination, recovery of 10 aforementioned FDRs was not doubted by the accused.
297. Further, even PW13 Sh.V.K.Mahajan, Chief Manager, Oriental Bank of Commerce, Goregaon Gokul Dham Branch (East), Mumbai had proved that FDRs Ex.PW13/B (D65), Ex.PW13/C (D66), Ex.PW13/D (D67), Ex.PW13/E (D68), Ex.PW13/F (D69) and Ex.PW13/G (D71) pertain Page: 157/323 to their branch and the same were issued in the name of accused persons.
298. No crossexamination was done of PW13 Sh.V.K.Mahajan on this aspect. Therefore, the FDRs stood proved.
299. Even in the statement of accused persons under Section 313 Cr.P.C., accused persons in response to aforementioned FDRs, admitted that they were recovered from his house.
300. PW13 Sh.V.K.Mahajan proved on record that the aforementioned six FDRs were having value as follows which is the same as mentioned in the charge sheet: S.No. FDR Current Exhib Bank No. Value and it FDR amount
1. 155230 Rs.14,000/ Ex.P Oriental W13/ Bank of D (D Commerce,
67) Goregaon, Mumbai
2. 155248 Rs.14,000/ Ex.P Oriental Page: 158/323 W13/ Bank of G (D Commerce,
71) Goregaon, Mumbai
3. 156155 Rs.14,000/ Ex.P Oriental W13/ Bank of E (D Commerce,
68) Goregaon, Mumbai
4. 156023 Rs.5,21,988 Ex.P Oriental / W13/ Bank of C (D Commerce,
66) Goregaon, Mumbai
5. 162261 Rs.26,874/ Ex.P Oriental W13/ Bank of F (D Commerce,
69) Goregaon, Mumbai
6. 162279 Rs.27,945/ Ex.P Oriental W13/ Bank of B (D Commerce,
65) Goregaon, Mumbai
301. As far as other four FDRs of Bank of India were concerned, CBI had examined PW32 Sh.Arun Page: 159/323 Kachru Gaikwad, who was working as Senior Manager in Bank of India, IGIDR Branch, Mumbai.
302. PW32 Sh.Arun Kachru Gaikwad had proved that four original FDRs Ex.PW19/OOO (D
6), Ex.PW19/PPP (D7), Ex.PW19/QQQ (D8) and Ex.PW19/RRR (D9) were issued from their branch and were in the name of accused persons.
303. Accused persons did not cross examine the said witness on this aspect. Hence, the four FDRs in their names were admitted.
304. Further, PW19 Sh.M.M.Gupta had proved recovery of aforesaid four FDRs from the house of accused persons.
305. Even when FDRs were put to accused in 313 Cr.P.C., accused persons had stated that it is a matter of record. Therefore, the evidence led on record by CBI proves that four original FDRs were having value as follows which is the same as mentioned in the chargesheet.
Page: 160/323
S.No. FDR Current Exhibit Bank
No. Value &
FDR
1. 2510 Rs.25,294/ Ex.PW1 Bank of 9/PPP India, (D7) Malad, Mumbai
2. 2511 Rs.25,294/ Ex.PW1 Bank of 9/RRR India, (D9) Malad, Mumbai
3. 3588 Rs.16,000/ Ex.PW1 Bank of 9/OOO India, (D6) Malad, Mumbai
4. 2510 Rs.14,000/ Ex.PW1 Bank of 9/QQQ India, (D8) Malad, Mumbai
306. Serial Nos.22, 23 and 24 of page no.22 of the charge sheet give a description of FDRs of accused persons of Punjab National Bank, Delhi.
307. For proving FDRs of Punjab National Bank, Delhi, CBI had examined PW17 Sh.S.P.Lamba, who Page: 161/323 was working as Senior Manager in Punjab National Bank, Sheikh Sarai Branch, New Delhi.
308. PW17 Sh.S.P.Lamba had proved that original FDRs Ex.PW17/C, Ex.PW17/D and Ex.PW17/E (D33 to D35) were issued from their branch and were in the name of accused Ajay Kumar Takkar and Sandhya Takkar.
309. Accused persons did not cross examine the said witness on this aspect. Hence, the aforementioned FDRs in their names were admitted.
310. Further, PW19 Sh.M.M.Gupta had proved recovery of aforesaid FDRs from the house of accused.
311. Even when FDRs were put to accused in 313 Cr.P.C., accused persons had admitted them by saying that it is a matter of record.
312. During final arguments, FDRs or the amount mentioned therein were not disputed by the ld.defence counsel. Therefore, the evidence Page: 162/323 led on record by CBI proves that original FDRs were having value as per charge sheet as follows: S.No. FDR No. Amount Exhibit Bank
1. 854852 Rs.18,763/ Ex.PW17 Punjab (initial and /C (D33) National FDR) Bank, Chirag Delhi, New Delhi
2. 276075 Rs.20,000/ Ex.PW17 Punjab (initial) /E (D35) National Bank, Current Chirag value: Delhi, Rs.26,639/ New as per Delhi charge sheet and also mentioned in FDR also
3. 824800 Rs.1500/ Ex.PW17 Punjab (initial and /D (D34) National FDR) Bank, Chirag Page: 163/323 Delhi, Delhi
313. Serial Nos.26 and 27 of page no.22 of the charge sheet give a description of FDRs of accused persons of SBI, Malad (West), Mumbai.
314. To prove FDRs of SBI, Malad (West), Mumbai, CBI had examined PW3 Ms.Martha D'Silva, who was working as Deputy Chief Manager with the said bank.
315. PW3 Ms.Martha D'Silva had deposed regarding providing of certified copy of statement of account with respect to two FDRs Ex.PW3/B and Ex.PW3/C in the name of accused persons.
316. Accused persons did not cross examine the said witness on this aspect. Hence, the aforementioned FDRs in their name were admitted.
317. PW19 Sh.M.M.Gupta had proved recovery of two original FDRs Ex.PW19/SSS (D218) and Page: 164/323 Ex.PW19/TTT (D219) from the house of accused persons.
318. In the cross examination of PW19 Sh.M.M.Gupta, said point was not disputed and hence, accused persons admitted that these two FDRs pertain to them. Even when FDRs were put to accused persons in their 313 Cr.P.C. statement, the said fact was admitted by stating that it is a matter of record.
319. It was contended by ld.defence counsel that the aforementioned two FDRs Ex.PW19/SSS (D218) and Ex.PW19/TTT (D219) were never put to the witness from SBI i.e. PW3 Ms.Martha D'Silva, therefore, FDRs Ex.PW19/SSS (D218) and Ex.PW19/TTT (D219) were never proved on record and the statement of account of these FDRs Ex.PW3/B and Ex.PW3/C are certified computer generated statements without any certificate under section 65B of the Indian Evidence Act, 1872. Hence, are inadmissible in evidence. Accordingly, Page: 165/323 it was submitted that the amount of Rs.30,000/ of these two FDRs is required to be deducted.
320. The said contention of ld.defence counsel is required to be rejected as recovery of these two FDRs from the house of accused was never disputed and even in the statement of accused under Section 313 Cr.P.C., it was admitted that these two FDRs in the name of accused persons were recovered from their house.
321. Since FDRs in the name of accused persons were admitted, therefore, the same were not required to be proved by PW3 Ms.Martha D'Silva.
322. Even otherwise, as per representation dated 03.12.2007 Ex.PW60/D1 (colly) given to his department, accused Ajay Kumar Takkar had himself admitted that two FDRs Ex.PW19/SSS (D
218) and Ex.PW19/TTT (D219) were in their name.
323. Hence, it was proved that aforementioned two FDRs Ex.PW19/SSS (D218) and Page: 166/323 Ex.PW19/TTT (D219) were having value as mentioned in the charge sheet.
S.No. FDR No. Amount Exhibit Bank
1. 01292/020 Rs.15,000/ Ex.PW State 976/02 (initial 19/TT Bank of (Receipt amount) T (D India, No.524320) 219) Malad Rs.19,880/ (West), (current Mumbai value as per charge sheet and FDR)
2. 01292/028 Rs.15,000/ Ex.PW State 226/00 (initial 19/SSS Bank of (Receipt amount) (D India, No.524319) 218) Malad Rs.19,880/ (West), (current Mumbai value as per charge sheet and FDR)
324. Serial No.25 of page no.22 of the charge sheet gives a description of FDR of accused Ajay Kumar Takkar of Indian Bank, Nehru Place Branch, Page: 167/323 New Delhi.
325. To prove FDR of Indian Bank, Nehru Place Branch, CBI had examined PW7 Sh. Virender Kumar, who was working as clerk in the Indian Bank, Nehru Place Branch, New Delhi.
326. PW7 Sh.Virender Kumar had proved that the original FDR Ex.PW7/G (D29) was issued from their branch and was in the name of accused Ajay Kumar Takkar.
327. Accused Ajay Kumar Takkar did not cross examine the said witness on this aspect. Hence, the FDR in his name was admitted.
328. Further, PW19 Sh.M.M.Gupta had proved recovery of aforesaid FDR from the house of accused Ajay Kumar Takkar.
329. The contention of ld.defence counsel that initial amount of said FDR of Rs.10,000/ was invested by father of accused Ajay Kumar Takkar is required to be rejected.
330. Although, it was suggested to PW7 Page: 168/323 Sh.Virender Kumar in crossexamination that the said amount was debited from Account No. 919 i.e. account of Sh.K.K.Takkar, father of accused Ajay Kumar Takkar, but the said witness had expressed his ignorance.
331. Even in the statement of accused Ajay Kumar Takkar under section 313 Cr.P.C., said defence was taken up that the amount of Rs.10,000/was deposited by father of accused Sh.K.K.Takkar.
332. However, accused Ajay Kumar Takkar did not lead any evidence to prove his defence. Once the CBI had proved on record the FDR in the name of accused Ajay Kumar Takkar vide Ex.PW7/G (D29), then it was for the accused Ajay Kumar Takkar to have proved that the amount was not invested by him but by his father Sh.K.K.Takkar. However, no defence evidence was led by accused Ajay Kumar Takkar in this regard. Hence, he failed to prove that the amount of Page: 169/323 Rs.10,000/ was invested by his father and not by him.
333. Even otherwise, in his representation dated 03.12.2007 Ex.PW60/D1 (colly), existence of FDR of Indian Bank in name of accused Ajay Kumar Takkar has been admitted and no defence has been taken in the said representation that the amount was paid by his late father Sh.K.K.Takkar. Therefore, this contention is accordingly, rejected. Hence, CBI had proved on record that accused Ajay Kumar Takkar was having one FDR Ex.PW7/G (D
29) having value as follows which is the same as mentioned in the charge sheet.
S.No. FDR No. Amount in Exhibit Bank FDR
1. 0765712 Rs.17,259/ Ex.PW Indian 7/G Bank, (D29) Nehru Place, New Delhi Page: 170/323
334. Serial Nos.11 to 21 of pages 21 and 22 of the charge sheet give description of FDRs of accused persons pertaining to Syndicate Bank, Malad (East), Mumbai and IDBI Bank, Indore.
335. First, I shall take up the FDRs pertaining to Syndicate Bank, Mumbai.
336. The relevant witnesses examined by CBI in this regard were PW12 Sh.Jeevan Madhav Dalvi, who was Manager in Syndicate Bank, Malad (East) and PW64 Sh.Amlendu Bhushan, who was the Inspector of Police in ACUII, CBI, New Delhi in the year 20042005.
337. PW12 Sh.Jeevan Madhav Dalvi has deposed in his examination in chief regarding document Ex.PW12/B (D50) wherein details of 11 FDRs held by accused Sandhya Takkar and Aditi Takkar have been provided in manual form.
338. However, Ex.PW12/B (D50) is not Page: 171/323 accompanied by any certificate under The Bankers' Books Evidence Act, 1891. Hence, Ex.PW12/B (D
50) is inadmissible in evidence.
339. However, nine original FDRs Ex.PW64/C to Ex.PW64/K (D54 to D62) were produced on record and were got exhibited in the examination inchief of PW64 Sh.Amlendu Bhushan Chaudhary. Nothing was brought out in the crossexamination of PW64 Sh.Amlendu Bhushan Chaudhary to doubt the authenticity of these nine FDRs or their recovery from the house of accused Ajay Kumar Takkar during the course of search.
340. Even during the examination of accused under Section 313 Cr.P.C., all these nine FDRs were put to accused and in answer to this incriminating evidence, accused did not deny regarding search or recovery of nine FDRs during the course of search from their house. Therefore, nine FDRs Ex.PW64/C to Ex.PW64/K (D54 to D
62) were proved on record.
Page: 172/323
341. Lastly, the representation dated 03.12.2007 Ex.PW60/D1 (colly) mentions the details of all the 28 FDRs mentioned in the charge sheet alongwith their amount and since Ex.PW60/D1 (colly) is an admitted document of accused Ajay Kumar Takkar, therefore, accused Ajay Kumar Takkar having his 11 FDRs in Syndicate Bank, as per the charge sheet stood proved.
342. The contention of ld.defence counsel that concerned witness from the Syndicate Bank was not examined to prove the authenticity of the FDRs, is not acceptable as even in the absence of concerned witness from Syndicate Bank, various FDRs of Syndicate Bank in the name of accused Ajay Kumar Takkar and his family members stood proved in the light of admitted document Ex.PW60/D1 (colly).
343. Serial No. 28 of page no.22 of the charge sheet gives description of FDR of accused Sandhya Page: 173/323 Takkar and Vimal Talwar, IDBI Bank, Indore.
344. It was contended by the ld.defence counsel that the amount of Rs.26,000/ in the form of FDR in IDBI Bank, Indore has not been proved on record. It was submitted that the relevant witness examined by CBI is PW14 Sh. Vivek Nair.
345. PW14 Sh.Vivek Nair had nowhere proved that any FDR of Rs.26,000/ of IDBI Bank, Indore was in the name of accused Sandhya Takkar. Accordingly, a prayer was made to reduce Rs.26,000/ from disproportionate assets.
346. In order to appreciate the contention of ld.defence counsel, I have carefully perused the evidence of PW14 Sh.Vivek Nair.
347. In the entire evidence of PW14 Sh.Vivek Nair, the factum of any FDR of Rs.26,000/ in the name of accused Sandhya Takkar in IDBI Bank, Indore, has not been deposed to. Hence, evidence of PW14 Sh.Vivek Nair nowhere proves existence of any FDR in IDBI Bank, Indore.
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348. However, accused Ajay Kumar Takkar in his representation dated 03.12.2007 Ex.PW60/D1 (colly) submitted to his department, has himself admitted about existence of FDR of Rs.26,000/in IDBI Bank, Indore. Therefore, FDR of Rs.26,000/ in IDBI Bank, Indore stood proved.
349. In the light of evidence led on record, CBI had proved all 28 fixed deposits as mentioned in the charge sheet to have been acquired by accused persons during the check period.
Shares/Debentures
350. It was submitted by ld.defence counsel that shares/debentures of Four Seasons Farms as mentioned at serial no.20,21 and 22 of page 24 of the charge sheet for value of Rs.45,000/ is required to be reduced from disproportionate assets as no PW was summoned by CBI to prove the aforesaid shares having been purchased by accused Ajay Kumar Takkar during the check Page: 175/323 period.
351. It was further submitted that the shares of Sardar Sarovar Narmada Nigam Ltd. which are at page 25 of the charge sheet at serial no.34 of Rs.10,800/ is required to be reduced from disproportionate assets as it has come in the cross examination of PW62 Sh.Ajay Kumar Dalal, who was Manager in Delhi Branch of MCS Limited that the investment of Rs.10,800/ for purchase of shares of Sardar Sarovar Narmada Nigam Ltd. was made on 11.11.1993 i.e. before the check period. Accordingly, a prayer was made to reduce disproportionate assets by the amount of Rs. 10,800/.
352. Lastly, it was submitted that shares/debentures of UTI at serial nos. 45 to 49 at pages no. 22 to 27 of the charge sheet amounting to Rs.66,685/is required to be reduced from disproportionate assets as no witness was examined to prove the aforementioned allotment Page: 176/323 of shares of UTI in favour of accused Ajay Kumar Takkar.
353. In order to appreciate the contention of ld.defence counsel with regard to shares/debentures alleged to have been acquired during the check period, I have carefully perused the evidence led on record by CBI.
354. The contention of ld.defence counsel that no witness has proved the allotment of shares of Four Seasons Farms to the accused persons is required to be rejected. The CBI had examined PW19 Sh.M.M.Gupta, who was the search witness and as per his deposition, during the course of search at the house of accused Ajay Kumar Takkar, share certificates of Four Seasons Farms were recovered. The said fact is duly mentioned in the search list Ex.PW19/A at serial no.39. The PW19 Sh.M.M.Gupta had exhibited the recovered certificate of Four Seasons Farms vide Ex.PW19/III (colly) having 20 pages. The Ex.PW19/III (colly) Page: 177/323 has five acknowledgements, out of which two are in the name of Preety Takkar and one each in the name of Ajay Takkar, Sandhya Takkar, Aditi Takkar. Further Ex.PW19/III (colly) has original share certificate of the value of Rs.10,000/ each in the name of accused Sandhya Takkar and Ajay Kumar Takkar at pages no.8 and 11 respectively and has original share certificate of the value of Rs.15,000/ each in the name of Preety Takkar and two in the name of Aditi Takkar at pages no.14 and 17 and 20 respectively of Ex.PW19/III (colly). PW19 Sh.M.M.Gupta was not cross examined with regard to recovery of Ex.PW19/III (colly) from the house of accused Ajay Kumar Takkar. The entire document Ex.PW19/III (colly) was put to accused Ajay Kumar Takkar in his statement under Section 313 Cr.P.C. wherein in reply, accused had stated that articles seized vide seizure memo is a matter of record. Therefore, accused never disputed the recovery of share certificate of Four Seasons Farms Page: 178/323 from his house or in the name of his family members vide search list Ex.PW19/A and the five share certificates Ex.PW19/III (colly) having value of Rs.65,000/. Hence, it was proved on record that accused Ajay Kumar Takkar and his family members had purchased shares worth Rs.65,000/ of Four Seasons Farms on 14.07.1996 and 07.07.1996 as per the acknowledgment at page no.1 to 5 of Ex.PW19/III (colly). Since CBI had only taken Rs.45,000/ as value of shares of Four Seasons Farms in chargesheet, therefore, disproportionate assets are required to be increased by Rs.20,000/.
355. Further, I do not agree with the submission put forward by ld.defence counsel with regard to deduction of value of shares of Rs.10,800/ of Sardar Sarovar Narmada Nigam Ltd. and of Rs.66,685/ of UTI from disproportionate assets as disproportionate assets have been calculated by CBI after having deducted the value of Sardar Page: 179/323 Sarovar Narmada Nigam Ltd. and UTI shares as they were purchased prior to the check period.
356. The value of assets (which includes shares of Sardar Sarovar Narmada Nigam Ltd. and UTI at pages 25 and 26 of chargesheet) which were with the accused prior to check period were deducted by CBI from the assets acquired at the end of the check period and, therefore, the amount of disproportionate assets was arrived at.
357. Since benefit of assets acquired prior to check period was given to accused, therefore, this amount of purchase of shares of Sardar Sarovar Narmada Nigam Ltd. and UTI cannot be deducted from disproportionate assets. Hence, this contention of ld.defence counsel is rejected.
Bonds
358. It was submitted by ld.defence counsel that value of bond of IDBI Bank worth Rs.52,000/ at serial no.7 of page 27 of the charge sheet is Page: 180/323 required to be reduced from disproportionate assets as no witness from IDBI Bank was examined to prove the allotment of bond in favour of accused Ajay Kumar Takkar.
359. It was further submitted that although PW19 Sh.M.M.Gupta has exhibited the bond as Ex.PW19/KKK (page no.18) (colly) but PW19 Sh.M.M.Gupta was the search witness and since search was not conducted as per the provisions of CBI Manual, therefore, exhibition of bond Ex.PW19/KKK (page no.18) (colly) is of no value. Accordingly, a prayer was made to reduce the said amount from disproportionate assets.
360. The said contention of ld.defence counsel is not acceptable as the legality of search carried out by CBI in presence of PW19 Sh.M.M.Gupta has already been discussed by this court in aforementioned paras.
361. Further, PW19 Sh.M.M.Gupta, the search witness has duly proved in his evidence regarding Page: 181/323 recovery of bond of IDBI Bank Ex.PW19/KKK (page no.18) (colly) during the course of search at the house of accused Ajay Kumar Takkar.
362. No cross examination was done of the said witness creating a doubt regarding recovery of aforementioned bond from the house of accused Ajay Kumar Takkar.
363. Even during examination of accused Ajay Kumar Takkar under Section 313 Cr.P.C., the aforementioned bond Ex.PW19/KKK (page no.18) (colly) was put to him and in reply to the same, accused Ajay Kumar Takkar admitted that whatever was recovered in search is a matter of record.
364. Therefore, accused Ajay Kumar Takkar did not doubt the recovery of bond of IDBI Bank from his house either in the cross examination of PW19 Sh.M.M.Gupta or while being examined under Section 313 Cr.P.C. Therefore, it was proved on record that accused Ajay Kumar Takkar was Page: 182/323 having bond of IDBI Bank of Rs.52,000/ allotted to him on 09.09.1995 vide Ex.PW19/KKK (page no.18) (colly).
Household goods acquired during the check period.
365. As per the charge sheet, the total value of household goods at the end of the check period was Rs.2,59,600/and the value of the household goods at the beginning of the check period i.e. 01.04.1994 was Rs.88,700/. Therefore, as per case of CBI, accused had acquired household goods worth Rs.1,70,900/ during check period (Rs.2,59,600/ (minus) Rs.88,700/= Rs.1,70,900/).
366. It was contended by the ld.defence counsel that in the present case, search at the house of accused Ajay Kumar Takkar was not conducted as per CBI Manual as no witness from the locality was joined. No videography/photography was done Page: 183/323 and even no valuer was joined during the search.
367. It was further submitted that PW29 Sh.B.D.Sharma, who was witness to the search had admitted that no expert for valuation of household goods accompanied them during search and even no videography was done. He admitted that no witness from locality was joined in the search.
368. It was further submitted that both PW19 Sh.M.M.Gupta and PW29 Sh.B.D.Sharma, who are witness to search had admitted that the year of acquisition, amount and the mode of acquisition of household goods was mentioned in the inventory Ex.PW19/B after asking the same from accused Ajay Kumar Takkar.
369. It was further submitted that at the time of search of house of accused Ajay Kumar Takkar, status of Ajay Kumar Takkar was that of an accused and any disclosure made by accused Ajay Kumar Takkar to the CBI was in violation of Article 20 (3) of the Constitution of India and hence, Page: 184/323 inadmissible.
370. Lastly, it was submitted that in the cross examination of Investigating Officer PW64 Sh.Amlendu Bhushan Chaudhary, it has come on record that CBI had to take action as per CBI Manual and no local witness was joined and no videographer or valuer was taken for search though the CBI Manual provided for the same.
371. It was submitted that PW64 Sh.Amlendu Bhushan Chaudhary also admitted that inventory of articles Ex.PW19/B is in the handwriting of one Arun Rawat SI but the said inventory does not have his name or signatures and even CBI did not examine SI Arun Rawat. Accordingly, it was submitted that since inventory of articles Ex.PW19/B is an inadmissible document, therefore, the value of household goods acquired during the check period be reduced from disproportionate assets.
372. Although in the present case, it has come Page: 185/323 in the evidence of PW19 Sh.M.M.Gupta, PW29 Sh. B.D.Sharma and PW64 Sh.Amlendu Bhushan Chaudhary that search at the house of accused Ajay Kumar Takkar was not carried out as per CBI Manual as witness from the locality was not joined, the valuer was not joined in the search and even no videography was done of the entire search operation, however, still in the opinion of this court, that will not vitiate the search in the light of the judgment of the Hon'ble Supreme Court of India delivered in Union of India Vs. Prakash P. Hinduja & another's case (supra).
373. Therefore, even if search during investigation in this case was conducted by CBI by violating mandatory provisions, then also trial does not get vitiated unless it is shown by accused that some miscarriage of justice has occurred.
374. In the present case, recovery of household goods found during the course of search mentioned in the inventory of articles Ex.PW19/B Page: 186/323 (D215) have not been disputed by accused Ajay Kumar Takkar in the cross examination of PW19 Sh.M.M.Gupta and PW29 Sh.B.D.Sharma, who were search witnesses.
375. Only in the cross examination of PW29 Sh.B.D.Sharma, objection has been taken with regard to value of articles mentioned in Ex.PW19/B (D215).
376. It is an admitted fact by PW19 Sh.M.M.Gupta and PW29 Sh.B.D.Sharma that the valuation of articles mentioned in Ex.PW19/B (D
215) was mentioned on the basis of disclosure made by accused Ajay Kumar Takkar and not on the basis of any independent valuation.
377. During the course of investigation, status of Ajay Kumar Takkar was that of an accused and any statement given by him to the CBI during the course of investigation is inadmissible in the light of Article 20(3) of the Constitution of India. Therefore, the valuation of goods provided by Page: 187/323 accused is required to be ignored. No independent valuation of goods was got done by CBI in this case.
378. However, court cannot lose sight of the fact that the entire list of household goods mentioned in Ex.PW19/B (D215) has been mentioned by accused Ajay Kumar Takkar in his admitted document i.e. representation dated 03.12.2007 Ex.PW60/D1 (colly).
379. In Ex.PW60/D1 (colly) under the heading of "Point No.10" of internal page 24 and 25, accused Ajay Kumar Takkar has himself given the value of household goods during the check period as Rs.1,20,800/.
380. Since CBI had not proved the valuation of household goods, therefore, the admitted value of household goods i.e. Rs.1,20,800/ is required to be taken as per Ex.PW60/D1 (colly) which is an admitted document of accused Ajay Kumar Takkar.
381. If the amount of Rs.1,20,800/ is Page: 188/323 deducted from Rs.1,70,900/ then the amount arrived at of Rs.50,100/ is required to be deducted from disproportionate assets.
Income during the check period.
382. As per the charge sheet, the income of accused persons during the check period has been taken as Rs.40,60,895.37p. and the said income has been calculated by CBI on the basis of salary of accused Ajay Kumar Takkar, GPF withdrawal, saving bank interest, interest of fixed deposits, income of accused Sandhya Takkar, rental income of accused Ajay Kumar Takkar, gifts received by both accused and income from shares.
383. Ld.defence counsel had challenged, during the course of arguments, the noninclusion of amount of Rs.11,20,000/ gifted by father of accused Ajay Kumar Takkar and an amount of Rs.7,44,075/ gifted by father of accused Ajay Kumar Takkar by way of cheques under the income Page: 189/323 of accused Ajay Kumar Takkar.
384. Ld.defence counsel had also challenged the noninclusion of income of accused Sandhya Takkar from Amway of Rs.26,652/ although the same was reflected in her income tax returns.
385. Lastly, it was submitted by ld.defence counsel that income of accused Ajay Kumar Takkar from Kishan Vikas Patra of Rs.45,560/, Rs.56,280/ and Rs.12,000/ be also taken as income of accused Ajay Kumar Takkar and the same be reduced from disproportionate assets.
386. I shall first deal with the ld.defence counsel's contention with regard to noninclusion of gifted money received by accused Ajay Kumar Takkar from his father Sh.K.K.Takkar.
I. Claim of accused Ajay Kumar Takkar regarding noninclusion of gifted money received by him from his father Sh.K.K.Takkar.
387. It was submitted by ld.defence counsel Page: 190/323 that as per case of CBI, six gift deeds were seized during the course of search from the house of accused Ajay Kumar Takkar.
388. It was submitted that these six gift deeds show that an amount of Rs.11,20,000/ was gifted by Sh.K.K.Takkar to accused Ajay Kumar Takkar during the period from 1994 till 2001 but the same had been discarded by CBI on a frivolous plea that the same were got lately prepared to claim false income.
389. It was submitted that CBI has misconstrued the provisions of law with regard to disproportionate assets.
390. It was submitted that in the charge sheet, the reason given by CBI for not considering the gift deeds is the violation of Conduct Rules i.e. non informing the department regarding receipt of gifts and hence, the same were discarded.
391. It was submitted by ld.defence counsel that nonintimation to the department is a matter Page: 191/323 of Conduct Rules and if a public servant can otherwise satisfactorily account for lawful income then the same is required to be considered even though the same was not intimated to the department. In support of his submission, ld.defence counsel has relied upon the judgment of the Delhi High Court delivered in Virender Singh Vs. Central Bureau of Investigation, 2011 (1) JCC 623.
392. It was further submitted that in the present case, Sh.K.K.Takkar, who is father of accused Ajay Kumar Takkar was interrogated by CBI and even his statement was recorded.
393. It was also submitted that Sh.K.K.Takkar had also supplied the documents showing his financial capacity to the CBI but the statement of Sh.K.K.Takkar and the documents supplied by him were suppressed by CBI and were not made part of the charge sheet.
394. It was submitted that initially CBI had Page: 192/323 denied before the Ld.Predecessor of this court on 24.02.2010 that there is no statement of Sh.K.K.Takkar but later on vide orders dated 05.02.2011 and 07.11.2014, statement of Sh.K.K.Takkar and documents seized from him were produced in the court.
395. In the statement of Sh.K.K.Takkar, he had stated to CBI regarding the gifts made to accused Ajay Kumar Takkar. Even CBI had found nothing to nullify, still same were not considered.
396. It was further submitted that PW65 Sh.Tanmaya Behera, who is the investigating officer of this case, had admitted in his cross examination regarding recording of statement of Sh.K.K.Takkar and regarding seizing of documents from him.
397. It was also admitted by PW65 Sh.Tanmaya Behera in his crossexamination that gift deeds were prepared prior to search and the investigating officer did not contact the advocates, whose name Page: 193/323 were mentioned in the stamps put on the gift deeds or the stamp vendors, whose telephone numbers were also mentioned in the gift deeds.
398. It was submitted that accused Ajay Kumar Takkar had also intimated his department as per page 103 to 105 of Ex.PW19/F (colly) with regard to gifts received by him from his father although the same was intimated in response to an inquiry by the department.
399. It was submitted that in the present case, Sh.V.K.Takkar, who is brother of accused Ajay Kumar Takkar was examined as DW1 and in his evidence, he had deposed that Sh.K.K.Takkar was having various sources of income and he had gifted immovable properties to him as he is having two sons whereas liquid assets in the form of money were given to accused Ajay Kumar Takkar, on one occasion or the other, as he has two daughters.
400. It was submitted that DW1 Sh.V.K.Takkar had also deposed on oath that Sh.K.K.Takkar used Page: 194/323 to give money to accused Ajay Kumar Takkar as he was staying in his house.
401. Lastly, it was submitted that it has come in the crossexamination of PW65 Sh.Tanmaya Behera that Sh.K.K.Takkar being father of accused Ajay Kumar Takkar, had not abetted the offence in question. Therefore, gifts given by Sh.K.K.Takkar are required to be considered in favour of accused Ajay Kumar Takkar. Accordingly, a prayer was made to consider the amount of Rs.11,20,000/ gifted by Sh.K.K.Takkar vide six gift deeds and Rs.7,44,075/by way of cheques and accordingly, disproportionate assets be reduced.
402. It is an admitted case of CBI that during the course of search at the house of accused Ajay Kumar Takkar, six gift deeds were recovered. These six gift deeds are part of Ex.PW19/L (colly).
403. As per the charge sheet, only Rs.1,000/ received as gift by accused Ajay Kumar Takkar from his father was considered as the same was Page: 195/323 declared during 19992000 in his income tax returns.
404. As per the charge sheet, four gift deeds of Rs.30,000/ each were received by cheques by accused Ajay Kumar Takkar, accused Sandhya Takkar and their two daughters and the date of gift deeds and the date of cheques almost match each other.
405. As per the charge sheet, since as per Conduct Rules, gifts worth Rs.5,000/or more were required to be intimated to the respective departments and since in this case, gifts were not intimated by accused Ajay Kumar Takkar to his department in violation of Conduct Rules, therefore, the same were discarded.
406. Accordingly, CBI had taken into account Rs.1,000/ as part of income of accused Ajay Kumar Takkar which he has received as gift from his father Sh.K.K.Takkar which is duly reflected in the income tax returns.
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407. Now, the question arises is whether CBI was justified in discarding those gift deeds which had corroborative evidence in the form of cheques on the ground that they were not intimated to the department by accused Ajay Kumar Takkar?
408. The answer to this question lies in the judgment of the Hon'ble Delhi High Court reported as Virender Singh Vs. Central Bureau of Investigation's case (supra) relied upon by ld.defence counsel. The relevant portion of the said judgment, as discussed in paras 24 to 27, is reproduced as under:
24. Thus the expression "known sources of income" is not synonymous with the words "for which the public servant cannot satisfactorily account". The two expressions connote and have different meaning, scope and requirements. While the expression "known sources of income" refers to the sources known to the prosecution, the expression "for which the public servant cannot satisfactorily account" refers to the onus or burden on the accused to satisfactorily explain and account for the Page: 197/323 assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence act applies. Read in this light and background, the explanation to Section 13(1)(e) is merely a procedural Section which seeks to define the expression "known sources of income" as sources known to the prosecution and not to the accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared. The undeclared alleged sources are by their very nature are expected to be known to the accused only and are within his special knowledge. Read in this manner, the explanation to Section 13(1)(e) of the P.C. Act, 1988 is merely procedural and not substantive and it does not create a new offence. The effect of the explanation is to Page: 198/323 clarify and reinforce the existing position and understanding of the expression "known sources of income" i.e. the expression refers to sources known to the prosecution and not sources known to the accused. The second part of the explanation does away with the need and requirement for the prosecution to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out known sources of income of the accused public servant. As noticed above, the first part of the explanation refers to income received from legal/lawful sources. This first part of the expression states the obvious as is clear from the judgment of the Supreme Court in N. Ramakrishnaiah (supra).
25. Thus, the obligation of the accused public servant to satisfactorily account for the assets remains the same under both PC Act, 1947 (after 1964 amendment) and Page: 199/323 under the PC Act,1988. Enactment of Section 13(1)(e) of the PC Act, 1988, which is replacement and pari materia to Section 5(1)(e) of the PC Act, 1947, in this regard makes no distinction. The requirement of law remains the same. The public servant/accused has to account for to the satisfaction of the Court that the assets available with him or his resources for purchase of the assets were not disproportionate to the known sources of his income. The onus in this regard does not undergo any change or modification with the introduction of the Explanation to Section 13(1)(e) of the PC Act, 1988. It is a different matter that a public servant may find it difficult to discharge the said onus unless he has a lawful source of income and the said income has been intimated to the authorities concerned in accordance with law. But the explanation does not enact or create an absolute prohibition/bar to curtail right of the accused public servant to satisfactorily account for the assets. Similarly, the explanation does not alter or change the law on what or which assets the accused/public servant are required to be account for. The assets can be those which have been disclosed and also other assets which have not been disclosed by the public Page: 200/323 servant but there is evidence that the asset are possessed, belongs to or held by the accused public servant. The Law on the said aspect has not undergone a change or altered by introduction of the explanation.
26. Proviso to Section 5(2) PC Act, 1947 gave discretion to Courts to award punishment of less than one year. The proviso is missing and absent in Section 13(2) of the PC Act, 1988. But this aspect is not required to be examined at this stage; while deciding the question whether or not charge should be framed. This aspect can be examined after the trial and if there is conviction, when the order on sentence is passed. To be fair, counsels have not addressed specific arguments in this regard.
27. As noticed above, Section 13(1)(e) of the PC Act, 1988 makes a departure from the principle of criminal jurisprudence that the burden always lies on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. Thus, the legal effect of the Section 13(1)
(e) is that it is for the prosecution to establish that the accused was in possession of property disproportionate to his known Page: 201/323 sources of income but the term „known sources of income‟ will mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. In view of the explanation, the „known sources of income‟ must be legal and declared by the public servant. It is for the accused to account satisfactorily for the money/assets in his hands or the property possessed by him and satisfy the Court that his explanation is worthy of acceptance. Onus in this regard is upon the accused to give satisfactory explanation. Therefore, at this stage, the contention of the petitioners Virender Singh and Naveen Kumar that they have some sources of income, which have not been taken into consideration while deciding the question of disproportionate assets has to be rejected.
409. From the aforementioned judgment, it is clear that the term "known sources of income" as mentioned in Section 13(1)(e) of PC Act is not synonymous with the words "for which the public servant cannot satisfactorily account". The term "known sources of income" refers to the sources Page: 202/323 known to the prosecution and such known sources of income as far as prosecution is concerned is the information furnished by accused to his department under law, rules and orders for the time being applicable to the public servant.
410. Once prosecution has established on record that public servant was having income disproportionate to his known sources of income then it is for accused to satisfactorily account for disproportionate assets.
411. This burden is upon accused under Section 106 of the Indian Evidence Act, 1872 as said facts are within the special knowledge of the concerned public servant. The public servant can satisfactorily explain even though such assets were not disclosed to his department.
412. A public servant may make himself liable for disciplinary proceedings in case of non intimation to the concerned department but if he can "satisfactorily account" for his possession then Page: 203/323 benefit is required to be given to accused public servant.
413. In the light of law discussed hereinabove, let us see whether accused Ajay Kumar Takkar had satisfactorily accounted for gifts received vide six gift deeds which are part of Ex.PW19/L (colly).
414. As far as four gift deeds of Rs.30,000/ each are concerned, which are part of Ex.PW19/L (colly), since CBI during the course of investigation had investigated the source of funds and had found that amount of Rs.30,000/each was gifted through cheques and even entries of cheques were found to be correct and genuine, therefore, CBI wrongly did not take into account the amount of these four gift deeds while calculating the income of accused Ajay Kumar Takkar.
415. The CBI wrongly discarded the amount of these four gift deeds on the wrongful assumption that since they were not part of income tax returns and were not intimated to the department, Page: 204/323 therefore, they cannot be taken into consideration.
416. In the opinion of this court, since accused Ajay Kumar Takkar had satisfactorily accounted for amount of these four gift deeds received by him through cheques from his father Sh.K.K.Takkar, therefore, amount of four gift deeds was required to be considered as income of accused Ajay Kumar Takkar although the same was not intimated to the department. Hence, amount of these four gift deeds of Rs.30,000/ each i.e. Rs.1,20,000/ is required to be added to the income of accused Ajay Kumar Takkar and consequently, is required to be reduced from disproportionate assets.
417. As far as other gift deeds dated 10.01.1996 of Rs.4 lacs and dated 30.08.2001 of Rs.6 lacs are concerned, in the opinion of this court, CBI had rightly discarded the same being sham documents created to claim false income.
418. The reasons for the same are that in the gift deed dated 10.01.1996 which is part of Page: 205/323 Ex.PW19/L (colly) although the year of gifting has been shown as year 1994 for Rs.3 lacs and year 1995 for Rs.1 lac but the gift deed is not contemporaneous with the year of gifting. Therefore, the gift deed prepared on 10.01.1996 was created later on just to claim false income.
419. Secondly, the gift of Rs.4 lacs has been paid in cash with no corroborative evidence to show that donee Sh.K.K.Takkar was having that much amount to gift the same to accused Ajay Kumar Takkar. However, no satisfactory explanation has been brought on record.
420. It was for the accused Ajay Kumar Takkar to satisfactorily explain as to from where Sh.K.K.Takkar had got Rs.4 lacs to gift the same to accused Ajay Kumar Takkar in cash.
421. Thirdly, the reason for disbelieving the gift deed dated 10.01.1996 is that neither an intimation was provided by accused Ajay Kumar Takkar to his department regarding receipt of Rs.4 Page: 206/323 lacs as gift nor the same was disclosed in the income tax returns. Accused Ajay Kumar Takkar has not been satisfactorily account for this lapse.
422. Fourthly, accused Ajay Kumar Takkar has not been able to explain as to why Sh.K.K.Takkar had gifted the amount in cash while in other four gift deeds, he had paid the amount by way of cheques.
423. Lastly, as per document at page 105 of Ex.PW19/F (colly), which was relied upon by ld.defence counsel during the course of arguments, the amount of gift disclosed by accused Ajay Kumar Takkar to his department in May, 2003 was Rs.89,750/.
424. Further, as per another document at page no. 66 of Ex.PW19/F (colly), accused Ajay Kumar Takkar had disclosed that the gifts received by him from his parents was of Rs.89,750/ only.
425. Since as per own documents of accused Ajay Kumar Takkar, which were relied upon during Page: 207/323 the course of arguments i.e. Ex.PW19/F (colly) at page no.105, and as per another document at page 66 which were recovered during the course of search at the house of accused Ajay Kumar Takkar and which have not been disputed in the cross examination of PW19 Sh.M.M.Gupta, total amount of gift which was intimated by accused Ajay Kumar Takkar to his department in May/July, 2003 was Rs.89,750/.
426. If accused Ajay Kumar Takkar had indeed received gift worth Rs.4 lacs then he would have definitely intimated his department in the year 2003 vide aforementioned documents when other gifts duly received from his father Sh.K.K.Takkar were duly intimated.
427. Therefore, from the above discussion, gift worth Rs.4 lacs was rightly discarded.
428. The reasons for discarding the second gift deed dated 30.08.2001 which is part of Ex.PW19/L (colly) is firstly that although the year of gifting Page: 208/323 has been shown as years from 1996 to 2001 for Rs.1 lac each but the gift deed is not contemporaneous with the year of gifting. Therefore, the gift deed prepared on 30.08.2001 was created later on just to claim false income.
429. Secondly, the gift of Rs.6 lacs has been paid in cash with no corroborative evidence to show that donee Sh.K.K.Takkar was having that much amount to gift the same to accused Ajay Kumar Takkar.
430. It was for the accused Ajay Kumar Takkar to satisfactorily explain as to from where Sh.K.K.Takkar had got Rs.6 lacs to gift the same to accused Ajay Kumar Takkar in cash. However, no satisfactory explanation has been brought on record.
431. Thirdly, the reason for disbelieving the gift deed dated 30.08.2001 is that neither an intimation was provided by accused Ajay Kumar Takkar to his department regarding the receipt of Page: 209/323 Rs.6 lacs as gift nor the same was disclosed in the income tax returns. Accused Ajay Kumar Takkar has not satisfactorily accounted for this lapse.
432. Fourthly, accused Ajay Kumar Takkar has not been able to explain as to why Sh.K.K.Takkar had gifted the amount in cash while in other four gift deeds, he had paid the amount by way of cheques.
433. Lastly, as per document at page 105 of Ex.PW19/F (colly), which was relied upon by ld.defence counsel during the course of arguments, the amount of gift disclosed by accused Ajay Kumar Takkar to his department in May, 2003 was around Rs.89,750/.
434. Further, as per another document at page no. 66 of Ex.PW19/F (colly), accused Ajay Kumar Takkar had disclosed that the gifts received by him from his parents was of Rs.89,750/ only.
435. Since as per own documents of accused Ajay Kumar Takkar which were relied upon during Page: 210/323 the course of arguments Ex.PW19/F (colly) at page no.105 and as per another document at page 66 which were recovered during the course of search at the house of accused Ajay Kumar Takkar and which have not been disputed in the cross examination of PW19 Sh.M.M.Gupta, total amount of gift which was intimated by accused Ajay Kumar Takkar to his department in May/July, 2003 was Rs.89,750/.
436. If accused Ajay Kumar Takkar had indeed received gift worth Rs.6 lacs then he would have definitely intimated his department in the year 2003 vide aforementioned documents when other gifts duly received from his father Sh.K.K.Takkar were duly intimated.
437. Therefore, from the above discussion, gift worth Rs.6 lacs was rightly discarded.
438. Nonexamination of Advocate, Stamp Vendor with regard to execution of gift deeds by accused Ajay Kumar Takkar is not fatal to the Page: 211/323 prosecution case. The examination of advocate/stamp vendor could have at the most proved the execution of gift deed but the question would still remain whether consideration mentioned in the gift deeds was genuine or sham one.
439. Even assuming gift deeds were executed by Sh.K.K.Takkar then also the same were required to be discarded in the light of reasons mentioned above.
440. The contention of ld.defence counsel that there was malafide suppression of statement of Sh.K.K.Takkar by CBI is required to be rejected.
441. It is true that CBI had not filed on record the statement recorded of Sh.K.K.Takkar and documents seized from him. It is also true that the same were produced in court only on the orders of the court but that will not make the conduct of CBI to be malafide. PW65 Sh.Tanmaya Behera has provided an explanation in his evidence for not Page: 212/323 doing so.
442. It has come in the crossexamination of PW65 Sh.Tanmaya Behera that statement of Sh.K.K.Takkar and documents seized from him were not made part of the charge sheet as they were not relevant to the prosecution case.
443. In the opinion of this court, the prosecution agency is not bound to make each and every person, who is examined to be a witness. Only those persons, who support the prosecution case and are relevant to the prosecution case, are made witnesses.
444. Therefore, I do not find any malafide on the part of CBI in not filing on record the statement recorded of Sh.K.K.Takkar during the course of investigation.
445. Even otherwise, statement of Sh.K.K.Takkar recorded by CBI could have been only used as per Section 162 of Cr.P.C.in case Sh.K.K.Takkar was examined as a witness.
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446. Further, if CBI had not examined Sh.K.K.Takkar as a witness, then accused Ajay Kumar Takkar could have examined Sh.K.K.Takkar as a witness in support of his defence. However, Sh.K.K.Takkar could not be examined due to his untimely death but still accused Ajay Kumar Takkar could have led on record the corroborative evidence to show that Sh.K.K.Takkar had the income to gift Rs.11,20,000/ to accused Ajay Kumar Takkar. However, no corroborative evidence was led on record by accused Ajay Kumar Takkar. Therefore, on this ground also, two gift deeds cannot be considered to have been executed for consideration.
447. The other contention of ld.defence counsel was that DW1 Sh.V.K.Takkar in his evidence had deposed that Sh.K.K.Takkar was staying in the house of accused Ajay Kumar Takkar at Sheikh Sarai, New Delhi and on account of accused Ajay Kumar Takkar having only two daughters, father of Page: 214/323 Sh.V.K.Takkar DW1 used to give money in lieu of his staying at the house of accused Ajay Kumar Takkar.
448. DW1 Sh.V.K.Takkar was thoroughly cross examined by CBI and during the course of his crossexamination, it had come on record that Sh.K.K.Takkar was having a house at C25, Amar Colony, Lajpat Nagar, New Delhi and CBI had also suggested that Sh.K.K.Takkar had never stayed at the house of accused Ajay Kumar Takkar at Sheikh Sarai, New Delhi but was staying at his own house in Lajpat Nagar.
449. Although the said suggestion was denied by DW1 Sh.V.K.Takkar but no evidence was led on record that Sh.K.K.Takkar had not stayed at his own house in Lajpat Nagar but had stayed at the house of accused Ajay Kumar Takkar in Sheikh Sarai, Delhi from 1994 till 2004 and was giving various amounts as gifts in lieu of rent, which fact is also mentioned in the gift deeds.
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450. DW1 Sh.V.K.Takkar had deposed on oath that Sh.K.K.Takkar was having monthly income of Rs.60,000/ per month and he also used to file his income tax return. Said fact was challenged by CBI in the crossexamination of DW1 Sh.V.K.Takkar. Therefore, onus had shifted upon accused Ajay Kumar Takkar to have proved on record on the preponderance of probabilities, that monthly income of Sh.K.K.Takkar, father of accused Ajay Kumar Takkar was Rs.60,000/per month and the same was being reflected in the income tax returns. However, no such evidence was led on record. Hence, this fact was also not established on the preponderance of probabilities. Therefore, evidence of DW1 Sh.V.K.Takkar also did not prove that Sh.K.K.Takkar was in the financial position to gift Rs.11,20,000/ to accused Ajay Kumar Takkar between the period from 1994 till 2004.
451. The last contention of ld.defence counsel that amount of Rs.7,44,075/, duly intimated by Page: 216/323 accused Ajay Kumar Takkar to his department vide Ex.PW19/F (colly), is also required to be considered, deserves to be rejected. Firstly, the said amount was not intimated to the department by accused Ajay Kumar Takkar when the gifts were allegedly taken by accused Ajay Kumar Takkar and secondly, at page 105 of Ex.PW19/F (colly), which is a document vide which accused Ajay Kumar Takkar had intimated his department during the course of inquiry, there also accused Ajay Kumar Takkar had not claimed that Rs.7,44,075/ was received as gift from his father Sh.K.K.Takkar. On the contrary, it had been shown as loan.
452. Thirdly, this amount of Rs.7,44,075/ was claimed by accused Ajay Kumar Takkar to have been received through cheques but no corroborative evidence was led on record with regard to receipt of payment by cheques from his father Sh.K.K.Takkar. Therefore, CBI rightly did not take into account said amount to have been Page: 217/323 received as gift.
453. In the light of above discussion, accused Ajay Kumar Takkar is required to be given benefit of Rs.1,20,000/ i.e. the amount mentioned in the four gift deeds Ex.PW19/L (colly) as they were wrongly discarded by CBI. Hence, disproportionate assets are required to be reduced by Rs.1,20,000/.
Claim of Rs.41,162/ to be added to the income on account of interest in Saving Bank Account No. 5974 of Bank of India, Mumbai during the check period.
454. Ld.Defence counsel had submitted that as per evidence of PW32 Sh.Arun Kachru Gaikwad, who was the Senior Manager in the Indian Bank of India, Branch Mumbai, Account No. 5974 in their bank of accused Ajay Kumar Takkar was credited with interest amount of Rs.3,629/ + Rs.2,915/ and Rs.40,247/ between the period from 25.08.1994 till 29.09.2004. However, CBI has only Page: 218/323 taken interest income from aforesaid account to be Rs.5,629/ only. Accordingly, it was prayed that amount of Rs.41,162/ be added to the income of accused Ajay Kumar Takkar and consequently, disproportionate assets be reduced by the said amount.
455. In order to appreciate the contention of ld.defence counsel, I have carefully perused the charge sheet and in the charge sheet, interest income, during the check period in Saving Bank Account No. 5974, Bank of India, Mumbai has been shown as Rs.5,629/. However, PW32 Sh.Arun Kachru Gaikwad, Senior Manager, Bank of India, Mumbai, had admitted in his cross examination that interest income in Saving Bank Account No. 5974 was Rs.3,629/ and Rs.2,915/ on account of interest on Fixed Deposits from 25.08.1994 till 10.01.1996. He further admitted that from 10.01.1996 to 29.09.2004, total interest of Rs.40,247/ was paid into Account no. 5974.
Page: 219/323 Therefore, as per admission made by PW32 Sh.Arun Kachru Gaikwad in his crossexamination, total interest paid into Account No. 5974 was Rs.46,791/ and not Rs.5,629/ as claimed by the CBI. Therefore, amount of Rs.41,162/ was wrongly not added in the interest income of accused Ajay Kumar Takkar. Hence, disproportionate assets are required to be reduced by Rs.41,162/.
Noninclusion of income of Rs.26,652/ from Amway of accused Sandhya Takkar.
456. It was submitted by ld.defence counsel that in the charge sheet, the income of accused Sandhya Takkar from Amway Company to the tune of Rs.26,652/ was not included.
457. It was submitted that in the income tax returns for the Financial Year 20032004 Ex.PW44/B (colly), accused Sandhya Takkar had shown her income from Amway as Rs.26,652/ Page: 220/323 and said fact was also admitted by PW65 Sh. Tanmaya Behera in his cross examination that the balance sheet as on 31.03.2003 shows the aforementioned amount. Accordingly, it was prayed that amount of Rs.26,652/ is required to be reduced from disproportionate assets.
458. In order to appreciate the contention of ld.defence counsel, I have carefully perused the evidence of PW44 Sh.Ajay Ghanshyam Kamble and PW65 Sh.Tanmaya Behera. PW44 Sh.Ajay Ghanshyam Kamble has duly exhibited the income tax return of accused Sandhya Takkar for the Financial Year 20032004 as Ex.PW44/B (colly) (D217).
459. In the balance sheet as on 31.03.2003, income from Amway Company has been shown as Rs.26,652/. The investigating Officer i.e. PW65 Sh.Tanmaya Behera had admitted that income of Rs.26,652/ from Amway Company as reflected in the balance sheet, has not been taken towards Page: 221/323 income of accused Sandhya Takkar. Therefore, in the light of income tax return of accused Sandhya Takkar, which was duly proved by PW44 Sh.Ajay Ghanshyam Kamble and the admission made by PW65 Sh.Tanmaya Behera, amount of Rs.26,652/ has not been added in the income of accused Sandhya Takkar. Therefore, the plea of ld.defence counsel is accepted and amount of Rs.26,652/ is required to be reduced from disproportionate assets.
Claim of income from Kisan Vikas Patra (KVP) of accused Ajay Kumar Takkar.
460. It was submitted by ld.defence counsel that in the original SBI Passbook Ex.PW3/G1, which was seized from the house of accused Ajay Kumar Takkar during the course of search, there was an entry of 06.06.1995 showing deposit of Rs.45,560/. Against the said entry in the column of withdrawal, it was mentioned as KVP.
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461. It was submitted that said fact was admitted by PW65 Sh.Tanmaya Behera in his crossexamination.
462. It was further submitted that the said entry was not verified by PW65 Sh.Tanmaya Behera from the books of account of State Bank of India or any other bank as admitted by him in his cross examination. Accordingly, it was prayed that aforementioned amount be reduced from disproportionate assets as it was income of accused Ajay Kumar Takkar from Kisan Vikas Patra (KVP).
463. It was further submitted that in the certified copy of passbook which is part of Ex.PW12/B (colly) (D50) and the certified copy of computer generated statement of Syndicate Bank, which is also part of Ex.PW12/B (colly) (D50), there is entry of 06.06.1995 showing deposit of Rs.56,280/ and an entry of 05.11.1998 showing deposit of Rs.12,000/ respectively with a noting of Kisan Vikas Patra (KVP).
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464. It was submitted that PW65 Sh.Tanmaya Behera in his crossexamination had admitted about the aforementioned fact and had also admitted that at the time of seizing of aforementioned documents, said noting was there.
465. It was submitted that PW65 Sh.Tanmaya Behera also admitted that he had not taken the amount of Rs.56,280/ and Rs.12,000/ into account as income of accused Ajay Kumar Takkar from Kisan Vikas Patra (KVP).
466. Lastly, it was submitted that in the intimation sent to the department by accused Ajay Kumar Takkar Ex.PW19/F (colly), premature withdrawal of Kisan Vikas Patra (KVP) amounting to Rs.1,01,840/has been mentioned but still the said amount was not included in the income of accused Ajay Kumar Takkar. Accordingly, it was prayed that aforementioned amount of Rs.45,560/, Rs.56,280/ and Rs.12,000/on account of income from Kisan Vikas Patra (KVP) be Page: 224/323 added to the income of accused Ajay Kumar Takkar and consequently, aforementioned amounts be reduced from disproportionate assets.
467. In order to appreciate the contention of ld.defence counsel, I have carefully perused the original SBI Passbook Ex.PW3/G1. Although against entry of 06.06.1995 showing deposit of Rs.45,560/, there is a handwritten note of KVP. As per evidence of PW65 Sh.Tanmaya Behera, this entry of KVP was made by accused Ajay Kumar Takkar himself. The said fact was not disputed by accused Ajay Kumar Takkar.
468. Since accused Ajay Kumar Takkar was claiming entry of Rs.45,560/ to be income from Kisan Vikas Patra (KVP) on the basis of handwritten note written by himself, therefore, onus had shifted upon accused Ajay Kumar Takkar to have proved the aforesaid fact.
469. The best evidence which could have proved that the entry of Rs.45,560/ was on Page: 225/323 account of deposit from Kisan Vikas Patra (KVP), was witness from State Bank of India i.e. PW3 Ms.Martha D'Silva.
470. However, in the cross examination of PW3 Ms.Martha D'Silva, no suggestion was put to her that entry of Rs.45,560/ pertains to income from Kisan Vikas Patra (KVP).
471. Even during her crossexamination, accused Ajay Kumar Takkar made no request to PW3 Ms.Martha D'Silva to produce the relevant documents with regard to source of deposit of Rs.45,560/ on 06.06.1995 in his account. Therefore, accused Ajay Kumar Takkar had himself withheld the best evidence i.e. record from the concerned bank even when witness was available for production of the same. Therefore, adverse inference is required to be drawn against accused Ajay Kumar Takkar that in case record was summoned then his claim of amount of Rs.45,560/ being from Kisan Vikas Patra (KVP) Page: 226/323 would not have been established on record.
472. Further, it has also come in the cross examination of PW65 Sh.Tanmaya Behera that entry of Kisan Vikas Patra (KVP) in original SBI Passbook Ex.PW3/G1 was made by accused himself. Therefore, such entry which was made by accused himself cannot be relied upon. If entry was made by a bank official, then the court could have considered the same to be an authentic entry.
473. Even the said income of Rs.45,560/ from Kisan Vikas Patra (KVP) was not informed by accused Ajay Kumar Takkar to his department nor was mentioned by him in his income tax returns.
474. The mentioning of income of Rs.1,01,840/ from premature withdrawal of Kisan Vikas Patra (KVP) in Ex.PW19/F (colly) as Annexure to letter dated 15.05.2003 at page no.153 is in response to some inquiry by the department without there being any corroborative evidence, does not prove the aforementioned entry Page: 227/323 based upon preponderance of probabilities.
475. Hence, in the light of evidence which has come on record since deposit of Rs.45,560/was not proved on record to be income from Kisan Vikas Patra (KVP) by accused on the basis of preponderance of probabilities, no benefit of amount of Rs.45,560/ can be given to accused Ajay Kumar Takkar.
476. In order to appreciate the contention of ld.defence counsel with regard to entry of 06.06.1995 showing deposit of Rs.56,280/ and an entry of 05.11.1998 showing deposit of Rs.12,000/, I have carefully perused the certified photocopy of Syndicate Bank Statement and certified computerized copy of passbook Ex.PW12/B (colly) (D50). Although against entries of 06.06.1995 and 05.11.1998 showing deposits of Rs.56,280/ and Rs.12,000/ respectively, there is a handwritten note of KVP but as per evidence of PW65 Sh.Tanmaya Behera, Page: 228/323 these entries of KVP were made by accused Ajay Kumar Takkar himself. The said fact was not disputed by accused Ajay Kumar Takkar.
477. Since accused Ajay Kumar Takkar was claiming entries of Rs.56,280/ and Rs.12,000/ to be income from Kisan Vikas Patra (KVP), therefore, onus had shifted upon accused Ajay Kumar Takkar to have proved the aforesaid fact.
478. The best evidence which could have proved that the entries of Rs.56,280/ and Rs.12,000/ were on account of deposit from Kisan Vikas Patra (KVP), was witness from Syndicate Bank i.e. PW12 Sh.Jeevan Madhav Dalvi.
479. However, in the cross examination of PW12 Sh.Jeevan Madhav Dalvi, no suggestion was put to him that entries of Rs.56,280/ and Rs.12,000/ pertain to income from Kisan Vikas Patra (KVP).
480. Even during crossexamination of PW12 Sh.Jeevan Madhav Dalvi, accused Ajay Kumar Page: 229/323 Takkar made no request to PW12 Sh.Jeevan Madhav Dalvi to produce the relevant documents with regard to source of deposit of Rs.56,280/ on 06.06.1995 and Rs.12,000/on 05.11.1998 in his account. Therefore, accused Ajay Kumar Takkar had himself withheld the best evidence i.e. record from the concerned bank even when witness was available for production of the same. Therefore, adverse inference is required to be drawn against accused Ajay Kumar Takkar that in case record was summoned then his claim of amount of Rs.56,280/ and Rs.12,000/being from Kisan Vikas Patra (KVP) would not have been established on record.
481. Further, it has also come in the cross examination of PW65 Sh.Tanmaya Behera that entries of Kisan Vikas Patra (KVP) in certified photocopy and certified computerized copy of passbook Ex.PW12/B (colly) (D50) were made by accused himself. Therefore, such entries which Page: 230/323 were made by accused himself cannot be relied upon. If entry was made by a bank official then the court could have considered the same to be an authentic entry.
482. Even the said income of Rs.56,280/ and Rs.12,000/ from Kisan Vikas Patra (KVP) was not informed by accused Ajay Kumar Takkar to his department nor was mentioned by him in his income tax returns.
483. The mentioning of income of Rs.1,01,840/ from premature withdrawal of Kisan Vikas Patra (KVP) in Ex.PW19/F (colly) as Annexure to letter dated 15.05.2003 at page no.153 in response to some inquiry by the department without there being any corroborative evidence, does not prove the aforementioned entry based upon preponderance of probabilities.
484. Even otherwise, certified photocopy of passbook Ex.PW12/B (colly) and certified computerized copy of passbook Ex.PW12/B (colly) Page: 231/323 (D50) are the documents which are inadmissible in evidence as they are not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872 or under The Bankers' Books Evidence Act, 1891. Therefore, contention of ld.defence counsel has got no force and is accordingly rejected.
485. Hence, in the light of evidence which has come on record since deposits of Rs.56,280/ and Rs.12,000/ were not proved on record to be income from Kisan Vikas Patra (KVP) by accused on the basis of preponderance of probabilities, no benefit of amount of Rs.56,280/ and Rs.12,000/ can be given to accused Ajay Kumar Takkar.
Expenditure during the check period.
486. As per the charge sheet, CBI has calculated the total expenditure incurred by accused persons during the check period as Rs.25,14,974.67p.
Page: 232/323 which was on account of expenditure on maintenance of house property, repayment of loan, cell phones, rent paid on account of locker, income tax paid, general insurance, Life Insurance Policies, education of children, foreign trips, donations, purchase of foreign exchange and lastly, expenditure on nonverifiable items calculated at 1/3rd of the gross salary.
487. Ld.defence counsel during the course of arguments had challenged the wrong calculation of expenditure under the various heads which have been dealt with separately as under: I. Claim of calculation of nonverifiable expenditure at 1/3rd of net salary instead of 1/3rd of gross salary as done by the CBI.
488. It was submitted by ld.defence counsel that as per the charge sheet, nonverifiable expenditure on account of kitchen and household expenditure have been taken by CBI at 1/3rd of the gross salary i.e. 11,53,160.67p. arrived at on Page: 233/323 the basis of gross salary of Rs.34,59,482/.
489. It was submitted that CBI has wrongly calculated the nonverifiable expenditure at 1/3rd of the gross salary whereas it should have been calculated at 1/3rd of the net salary.
490. It was submitted that as per circular of CBI No.21/40/99PD(Pt.) dated 29.11.2001, 1/3rd nonverifiable expenditure should be taken of the gross salary only as a last resort and not as a matter of routine. It was further submitted that as per aforesaid circular, the salary used as the base for computing unverifiable expenditure should be taken net of income tax paid.
491. It was further submitted that even the investigating officer i.e. PW65 Sh.Tanmaya Behera had admitted in his crossexamination that amount of income tax, TDS and professional tax (as applicable in Maharashtra) ought to have been deducted from the gross salary before calculating the nonverifiable expenditure.
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492. It was submitted that investigating officer i.e. PW65 Sh.Tanmaya Behera had admitted that an amount of Rs.1,39,738 was deducted towards income tax, Rs.6,73,267/ was deducted towards TDS and Rs.17,930/ was deducted towards the professional tax.
493. It was submitted that even in the case of Sajjan Singh Vs. State of Punjab, 1964 SC 464, the Hon'ble Supreme Court of India had observed that "living expenses should have been taken at 1/3rd of the net income". Accordingly, it was submitted that 1/3rd of the net salary of Rs.26,28,547/ would come to Rs.8,76,182.30p.
494. It was further submitted that as per charge sheet, net salary has been shown as Rs.18,06,983/,therefore, if 1/3rd of net salary is taken then the same comes further down to Rs.6,02,327.66p. Accordingly, a prayer was made to deduct Rs.5,50,833 from disproportionate assets.
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495. In order to appreciate the contention of ld.defence counsel, I have carefully perused the charge sheet and the circular of CBI bearing No.21/40/99PD(Pt.)dated 29.11.2001.
496. As per the charge sheet, CBI has calculated the nonverifiable expenditure at 1/3rd of the gross salary i.e. Rs.11,53,160.67p. which was arrived at on the basis of gross salary of Rs.34,59,482/.
497. In the opinion of this court, CBI has committed a grave mistake by calculating the non verifiable expenditure on the basis of 1/3rd of the gross salary.
498. As per circular of CBI bearing No.21/40/99PD(Pt.)dated 29.11.2001, non verifiable expenditure such as on kitchen, household, clothing etc. should be taken at 1/3rd of the gross salary as a last resort after attempting to quantify the expenses by verification.
499. It is further mentioned in the said circular Page: 236/323 that salary used as the base for computing unverifiable expenditure should be taken net of income tax paid.
500. Further, even the investigating officer i.e. PW65 Sh.Tanmaya Behera had admitted in his crossexamination that nonverifiable expenditure should have been calculated after deducting income tax, TDS and professional tax paid by accused Ajay Kumar Takkar.
501. In the present case, CBI has not made any effort to quantify the expenses separately under the head" kitchen, household and clothing" by verification.
502. Had the same been done and if it was brought on record that nonverifiable expenditures on verification were not matching with 1/3rd expenditure taken of net salary and even the status of accused Ajay Kumar Takkar and his lifestyle was such that expenditure at 1/3rd of net income was not found to be justifiable then in Page: 237/323 that scenario, CBI would have been justified in calculating the nonverifiable expenditure, as a last resort, on the basis of 1/3rd of gross salary.
503. However, in the present case, nothing has been brought on record by the CBI to show that by verification, the expenditure on kitchen, household and clothing etc. was found to be not in consonance with 1/3rd expenditure of the net salary. Therefore, as a last resort, they have to take the same on the basis of 1/3rd of the gross salary.
504. In other words, in the present case, net salary of income tax paid was required to be taken as the base for computing nonverifiable expenditure.
505. As per admission of the investigating officer PW65 Sh.Tanmaya Behera, accused Ajay Kumar Takkar had paid Rs.1,39,738/as income tax, Rs.6,73,267/as TDS and Rs.17,930/as professional tax during the check period. Therefore, the aforementioned amount is required Page: 238/323 to be deducted from gross salary of Rs.34,59,482/.
506. If the said amount is deducted, then the net salary comes to Rs.26,28,547/ and 1/3rd of Rs.26,28,547/ comes to Rs.8,76,182.30p.
507. The contention of ld.defence counsel that expenditure should be calculated at 1/3rd of net salary as mentioned in the charge sheet i.e. of Rs.18,06,983/ is not acceptable because as per circular of CBI bearing No. No.21/40/99 PD(Pt.)dated 29.11.2001, 1/3rd expenditure has to be taken of net of income tax paid.
508. As per the admitted document i.e. summary of Pay and Allowances Ex.PW40/E, GPF ledger extracts Ex.PW40/I, GPF Details Ex.PW40/K (colly) and the salary statement Ex.PW35/E (colly) (D265), net salary which accused Ajay Kumar Takkar was getting was after deduction of income tax and GPF amount of Rs.10,000/.
509. Further, as per aforementioned admitted Page: 239/323 document from December, 1997, deduction towards GPF was Rs.10,000/per month till September, 2004. Therefore, GPF amount which was deducted of around Rs.9 lacs during the check period was not taken into account while calculating the net salary of around Rs.18 lacs as per the charge sheet.
510. Further, as per the circular of CBI bearing No.21/40/99PD(Pt.) dated 29.11.2001, only income tax paid is required to be deducted from the gross salary for the purpose of calculation of nonverifiable expenditure.
511. Therefore, contention of ld.defence counsel to calculate 1/3rd expenditure on the basis of net salary after deduction of GPF contribution, is not acceptable.
512. In the light of above discussion, non verifiable expenditure, in the present case, was required to be calculated on the basis of Rs.26,28,547/ which was net salary during the Page: 240/323 check period after deducting the income tax, TDS and professional tax and 1/3rd of Rs.26,28,547/ comes to Rs.8,76,182.30p.
513. Since CBI has taken 1/3rd expenditure at Rs.11,53,160.67 which was on the basis of wrong calculation (i.e. gross salary), therefore, accused Ajay Kumar Takkar deserves to be given benefit as follows: Rs.11,53,160.67/ - Rs. 8,76,182.30p. = Rs.2,76,978.37p.
514. Hence, this amount of Rs.2,76,978.37p is required to be reduced from disproportionate assets.
I. Expenditure incurred on maintenance of house property.
515. Ld.defence counsel, during the course of arguments, had challenged the expenditure shown in the charge sheet on the maintenance of various immovable properties of accused Ajay Kumar Page: 241/323 Takkar.
516. Submission of ld.defence counsel with regard to each property is being dealt separately hereinbelow.
517. As per the charge sheet, accused Ajay Kumar Takkar incurred expenses to the tune of Rs.5,61,875/on the maintenance of various immovable properties.
IA. Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai and Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai.
518. It was submitted by ld.defence counsel with regard to aforementioned properties that expenditure incurred on maintenance has been shown as Rs.1,32,085/ with regard to flat no.101 and Rs.1,59,516/ with regard to flat no.104.
519. It was submitted that relevant witness examined by CBI in this regard is PW11 Sh.Paresh C. Mankad and documents are D37 and D38.
Page: 242/323 However, maintenance charges with regard to aforementioned two flats, have not been proved as documents produced are either photocopy or computer generated receipts not supported with any certificate under Section 65B of the Indian Evidence Act, 1872.
520. Lastly, it was submitted that even the author of these documents has not been examined. Accordingly, it was prayed that total amount of Rs.2,91,601/on account of maintenance charges of both aforementioned flats be reduced from disproportionate assets.
521. I shall first deal with Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai.
522. As per evidence of PW11 Sh.Paresh C. Mankad, said flat was purchased in the name of accused Sandhya Takkar.
523. PW11 Sh.Paresh C.Mankad vide letter Ex.PW11/A (colly) (D37) had provided a Page: 243/323 computerized statement of account with regard to payment of maintenance charges by cheque/cash by accused Sandhya Takkar amounting to Rs.1,32,085/.
524. Apart from computerized statement of account which is part of Ex.PW11/A (colly), there is no corroborative evidence in the form of receipts produced by PW11 Sh.Paresh C. Mankad with regard to aforementioned payment. The computerized statement of account is a document which is not admissible in evidence as it is not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872 as per judgment of the Hon'ble Supreme Court of India delivered in Anwar P.V. Vs. P.K.Basheer & Others case (supra).
525. If the computerized statement of account is ignored due to it being inadmissible, there is no other evidence on record to prove that accused Sandhya Takkar had deposited Rs.1,32,085/ Page: 244/323 towards maintenance charges of Flat No.101. Hence, CBI had failed to prove that accused Sandhya Takkar had incurred maintenance charges to the tune of Rs.1,32,085/ with regard to Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai. Hence, this amount is required to be reduced from disproportionate assets.
I.B. Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai.
526. As per evidence of PW11 Sh.Paresh C. Mankad, said flat was in the joint name of both accused persons.
527. The said witness had produced maintenance bills raised by the Society with regard to flat no.104 and the same were exhibited as Ex.PW11/B (colly) (D38).
528. Ex.PW11/B (colly) (D38) contains original manual bills till July, 2001 and Page: 245/323 computerized receipts and bills from 09.08.2001 onwards till 05.07.2004.
529. As far as manual bills and receipts are concerned, since they were produced in original, therefore, they are primary evidence and hence, are admissible in evidence.
530. Further, in the opinion of this court, the computerized bills and receipts are admissible in evidence without there being any certificate under Section 65B of the Indian Evidence Act, 1872.
531. It is apparent that although bills were raised on a particular date but receipts of payments were generated on computer as and when payment was made through cash/cheque.
532. Therefore, if for the generation of receipts, computer was being used as a typewriter then, in the opinion of this court, the receipt so generated and duly signed by the Secretary or Manager of the Society, giving details of payments made through cheque/cash will not be required to be Page: 246/323 accompanied by any certificate under Section 65B of the Indian Evidence Act, 1872 as said receipts were never stored in computer to be generated on a later date.
533. There is nothing in the cross examination of PW11 Sh.Paresh C. Mankad to show that computer generated bills and receipts which are part of Ex.PW11/B (colly) (D38) were not generated on the day when the payment was made by accused towards maintenance charges but were generated later on.
534. Therefore, having regard to the computerized payment receipts, this court can draw an inference that they were contemporaneous with the receipt of payment from accused and were not stored in the computer to be generated later on.
535. Further, in the entire crossexamination of PW11 Sh.Paresh C. Mankad, no suggestion was given to PW11 Sh.Paresh C. Mankad by accused Page: 247/323 persons that receipts, manual/computerized which are part of Ex.PW11/B (colly) (D38) are forged and fabricated and payment reflected therein was never paid by accused persons. Therefore, computerized as well as manual receipts which are part of Ex.PW11/B (colly) (D38) stand proved.
536. As per the charge sheet, CBI has taken the manual receipts from 08.05.1996 onwards to calculate the maintenance charges of Rs.1,59,516/. However, as per Ex.PW11/B (colly) (D38), there are various receipts which are prior to 08.05.1996 in the name of accused Ajay Kumar Takkar. There is a receipt dated 26.02.1996 of Rs.2,052/, receipt dated 17.10.1995 of Rs.2,128/, receipt dated 25.09.1995 of Rs.2,056/ and receipt dated 17.04.1995 of Rs.4,553/. Therefore, amount of aforementioned receipts which are in original are required to be added and sum total comes to Rs.10,789/ which is Page: 248/323 required to be added to the maintenance charges.
537. Hence, in the light of aforesaid discussion, CBI has failed to prove the maintenance charges of Rs.1,32,085/ with respect to Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai. Therefore, same are required to be reduced from disproportionate assets.
538. However, maintenance charges of Rs.10,789/ is required to be added in the disproportionate assets on account of maintenance charges of Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai.
539. Therefore, disproportionate assets are required to be reduced as follows with regard to flats no.101 and 104: Rs.1,32,085/ () Rs.10,789/ = Rs.1,21,296/ Page: 249/323 I.C. Maintenance charges on Plot No.M128, Sector Delta, Greater Noida, Industrial Development Area, Distt. Gautam Budh Nagar
540. As per the charge sheet, the maintenance charges with regard to aforementioned plot was to the tune of Rs.1,31,470/.
541. It was submitted by ld.defence counsel that relevant witness summoned by CBI was PW8 Sh.Kuldeep Singh and PW8 Sh.Kuldeep Singh nowhere proves the deposition of aforesaid amount by accused Ajay Kumar Takkar.
542. It was submitted that PW8 Sh.Kuldeep Singh was unable to state in his crossexamination that whether the amount was deposited in cash or otherwise and he also could not tell whether this payment was made by father of accused Ajay Kumar Takkar. Accordingly, a prayer was made to reduce the amount of Rs.1,31,470/ from disproportionate assets.
543. In order to appreciate the contention of Page: 250/323 ld.defence counsel, I have carefully perused the evidence of PW8 Sh.Kuldeep Singh and documents Ex.PW8/A, Ex.PW8/B and Ex.PW8/C.
544. PW8 Sh.Kuldeep Singh posted as Manager (Property), Greater Noida Industrial Development Authority had deposed regarding handing over of original lease deed and the documents to the CBI vide his letter Ex.PW8/A.
545. Original lease deed was got duly exhibited by him vide Ex.PW8/B (D40).
546. The original lease deed Ex.PW8/B (D40) mentions the payment of lease rent of Rs.42,750/ and also about original stamp papers.
547. PW8 Sh.Kuldeep Singh had deposed on oath that accused had deposited Rs.42,750/ towards lease rental, Rs.37,700/ towards stamp duty vide Ex.PW8/B (colly) (D40) and Rs.5,050/ towards registration charges vide Ex.PW8/C (D
40) and apart from that, accused had deposited Page: 251/323 Rs.1,020/ and Rs.18,050/ also. PW8 Sh.Kuldeep Singh further deposed that Rs.4,275/ was deposited on account of late penalty.
548. The amounts of Rs.42,870/, Rs.1,020/, Rs.18,050/ and Rs.4,275/ are duly mentioned in the copy of receipt which are part of Ex.PW8/A (D
39) at pages 29 and 37.
549. Further, carbon copy of receipt of Rs.5,050/ Ex.PW8/C is also part of D40. Further, stamp paper of Rs.37,700/in original are part of Ex.PW8/B (D40).
550. With regard to copies of receipt Ex.PW8/C and other payment receipts as aforementioned, no objection was taken by ld.defence counsel at the time of their tendering in evidence and even in the crossexamination, payment as deposed by PW8 Sh.Kuldeep Singh was never doubted. Hence, copy of receipts are admissible as per judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Page: 252/323 Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P.'s case (supra).
551. Therefore, maintenance charges with regard to Plot No.M128, Sector Delta, Greater Noida, Industrial Development Area, Distt.Gautam Budh Nagar stand proved. As per evidence of PW8 Sh.Kuldeep Singh, maintenance charges paid by accused were Rs.1,13,895/ and not Rs.1,31,470/ as claimed by CBI in the charge sheet. Therefore, amount of Rs.17,575/[Rs.1,31,470/ (minus) Rs.1,13,895/] is required to be reduced from disproportionate assets.
I.D. Flat No. 6/404, Fourth Floor, Green Meadows, Building No.6, Green Meadows Co operative Housing Society Ltd., Lokhandwala, Township, Akurli Road, Kandivali (E), Mumbai.
552. As per the charge sheet, accused had incurred maintenance amount of Rs.94,541/ during the check period.
553. The ld.defence counsel had submitted, Page: 253/323 during the course of arguments that relevant witness summoned by CBI was PW63 Sh.Manoj Ramesh Bile and documents are D42 and D44.
554. It was submitted that PW63 Sh.Manoj Ramesh Bile had produced computerized statement of maintenance bills which were not certified as per The Bankers' Books Evidence Act, 1891 and PW63 Sh.Manoj Ramesh Bile in his crossexamination had admitted that details of payment received has not been attested by any of the office bearer or member of the society. PW63 Sh.Manoj Ramesh Bile also admitted that there is no certificate regarding the correctness of the statements and he also cannot tell as to from which computer, said documents were generated.
555. It was further submitted that PW63 Sh.Manoj Ramesh Bile also admitted that although computerized print out had an endorsement at the bottom "Prepared by Evergreen Creations" but he has no knowledge about Evergreen Creations.
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556. Ld.defence counsel also submitted that PW63 Sh.Manoj Ramesh Bile admitted that he has never received any payment from accused persons.
557. Lastly, it was submitted that amount of Rs.94,541/ was never put to accused while being examined under Section 313 Cr.P.C. Accordingly, a prayer was made to reduce the amount of Rs.94,541/ from disproportionate assets.
558. In order to appreciate the contention of ld.defence counsel, I have carefully perused the evidence of PW63 Sh.Manoj Ramesh Bile and the documents produced i.e. D42 and D44.
559. It is already proved on record that aforementioned property was owned by accused persons.
560. I have carefully perused Ex.PW63/B (D
42) vide which payment received from accused Sandhya Takkar has been duly mentioned in the computerized statement and in the computerized Page: 255/323 receipts.
561. The computerized receipts of payment are from 01.06.2001 till 31.08.2004 i.e.from page no.955 till 993 of Ex.PW63/B (colly) (D42).
562. It is true that computerized maintenance bills/ledger summary are not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872. Therefore, the same are inadmissible in evidence in the light of judgment of the Hon'ble Supreme Court of India delivered in Anwar P.V. Vs. P.K.Basheer & Others case (supra).
563. However, since payment/computerized receipts are having signatures of Uday Mehta on each page at point A duly identified by PW63 Sh.Manoj Ramesh Bile and having regard to the fact that payment receipts are contemporaneous receipts of payments, therefore, in the opinion of this court, no certificate under Section 65B of the Page: 256/323 Indian Evidence Act, 1872 is required to be attached with it as they were prepared from the computer as and when payment was received.
564. All the payment receipts reflect that payment was received from accused Sandhya Takkar through cheque issued from Sangli bank/Syndicate bank.
565. Even assuming that computerized payment receipts are not admissible in evidence, then also CBI has proved the payment of maintenance charges by production of original passbooks of Syndicate Bank which are Ex.PW19/NNN (D52) and Ex.PW19/LLL (D63).
566. Accused persons had never disputed the recovery of aforementioned passbooks during the course of search and PW19 Sh.M.M.Gupta, who was the search witness had duly proved their recovery from the house of accused Ajay Kumar Takkar.
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567. Each and every payment made by accused Sandhya Takkar through cheque of Syndicate Bank, which are mentioned in the computerized receipts are duly reflected in the passbooks Ex.PW19/NNN (D52) and Ex.PW19/LLL (D63) and name of society i.e. Green Meadows Co operative Housing Society is duly mentioned in the passbook against entry of cheques. Once the CBI had led positive evidence showing payment through cheques to Green Meadows Cooperative Housing Society Ltd. as per the passbooks Ex.PW19/NNN (D52) and Ex.PW19/LLL (D63), therefore, onus shifted upon the accused to show that these payments reflected in the passbooks were not towards maintenance charges but on account of some other charges. However, no evidence was led on record by accused. Therefore, passbooks Ex.PW19/NNN (D52) and Ex.PW19/LLL (D63) prove the payment of maintenance charges to the Green Meadows Co Page: 258/323 operative Housing Society Ltd. wherein aforementioned flat is situated.
568. Only payment of Rs.2,000/ which was issued from Sangli Bank on 06.06.2001 (at page no.993 of Ex.PW63/B (D42) has not been proved as there is no corroborative evidence for the same.
569. The contention of ld.defence counsel that amount of Rs.94,541/was not put to accused in his statement under Section 313 Cr.P.C. is not acceptable as documents D42 and D44 were put to accused which contains details of payment and documents i.e. original passbooks Ex.PW19/NNN (D52) and Ex.PW19/LLL (D63) were also put to accused which contains the details of payments made to Green Meadows Society through cheques from the account of accused in Syndicate Bank.
570. In the light of above discussion, only an amount of Rs.2,000/against maintenance charges was not proved by CBI with regard to Page: 259/323 aforementioned flat to have been paid towards maintenance charges during the check period. Hence, amount of Rs.2,000/ is required to be reduced from disproportionate assets.
I.E. Flat No.5/E/A, Scheme No.54, Indore.
571. As per charge sheet, accused had paid Rs.44,263/ on account of maintenance charges with regard to aforementioned property during the check period.
572. Ld.defence counsel had submitted that the relevant witness summoned by CBI in this regard was PW10 Sh.Rajender Kumar Shah and he has only produced photocopies in evidence which were not admissible. Accordingly, a prayer was made to reduce Rs.44,263/ from disproportionate assets.
573. I have perused the evidence of PW10 Page: 260/323 Sh.Rajender Kumar Shah and documents Mark PW10/1 to PW10/5 tendered in evidence by said witness. None of the documents Mark PW10/1 to PW10/5 contain a whisper regarding amount spent by accused on maintenance, conversion charges, car parking etc. as mentioned in the charge sheet.
574. No other witness was examined by CBI to prove the expenditure on maintenance of aforesaid property. Hence, CBI had failed to prove that the amount of Rs.44,263/ was spent by accused Sandhya Takkar on the maintenance of property during the check period. Hence, amount of Rs.44,263/ is required to be reduced from disproportionate assets.
II. Claim for reduction of expenditure on Life Insurance Policies.
575. As per the charge sheet, accused had incurred expenses to the tune of Rs.2,86,517/ Page: 261/323 with regard to premium paid in respect of seven Life Insurance policies.
576. It was submitted by ld.defence counsel that relevant witnesses summoned by CBI with regard to aforementioned Life Insurance policies were PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar and relevant documents produced were D198, D209, D212 and D254.
577. It was submitted by ld.defence counsel that PW46 Sh.M.K.Mondal had deposed only about seven life insurance policies but did not depose regarding premium paid on the seven life insurance policies. Therefore, this witness does not prove the expenditure on life insurance policies.
578. It was further submitted that PW59 Sh.T.V.S.Prasad had produced the statement of premium paid for three policies vide Ex.PW59/A (D254) and remaining three policies vide Ex.PW59/D (D212) but said statements are Page: 262/323 computerized and since they were not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872, therefore, they are inadmissible in evidence.
579. It was further submitted that PW61 Sh.T.M.Mudaliar had only deposed about document Ex.PW59/D (D212) which is otherwise inadmissible in absence of certificate under Section 65B of the Indian Evidence Act, 1872. Hence, none of these witnesses and the documents produced by them prove the payment of premium to the tune of Rs.2,86,517/ on account of life insurance policies mentioned in the charge sheet. Accordingly, a prayer was made to reduce the amount of Rs.2,86,517/ from disproportionate assets.
580. In order to appreciate the contention of ld.defence counsel, I have perused the evidence of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar, who are the witnesses, Page: 263/323 who had appeared from Life Insurance Corporation and the documents produced by them.
581. Only PW59 Sh.T.V.S.Prasad had produced the statement of account with regard to payment of premium with regard to six life insurance policies vide Ex.PW59/A and Ex.PW59/D. However, since Ex.PW59/A and Ex.PW59/D are the computerized statements of premium paid by accused persons and there is no certificate under Section 65B of the Indian Evidence Act, 1872, therefore, documents Ex.PW59/A and Ex.PW59/D are inadmissible in evidence in the light of the judgment of the Hon'ble Supreme Court of India delivered in Anwar P.V. Vs. P.K.Basheer & Others case (supra).
582. However, this court cannot lose sight of the fact that PW46 Sh.M.K.Mondal had deposed about seven life insurance policies procured by accused persons in their names and their family members.
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583. PW46 Sh.M.K.Mondal had proved six life insurance policies after seeing the originals already exhibited as Ex.PW19/AA, Ex.PW19/BB, Ex.PW19/CC, Ex.PW19/X, Ex.PW19/2 and Ex.PW19/Y.
584. With regard to seventh life insurance policy, it was deposed to by PW46 Sh.M.K.Mondal that since said policy had matured, therefore, the sum insured had been paid to accused on 10.11.2005.
585. The said witness was not cross examined by accused. Hence, whatever he had deposed, the same stands admitted by accused. Therefore, PW46 Sh.M.K.Mondal proved that accused persons had taken seven life insurance policies and out of seven life insurance policies, one had matured which is mentioned at serial no. 6 at page 51 of the charge sheet.
586. The six aforementioned life insurance policies were proved to have been recovered Page: 265/323 during the course of search at the house of accused as per evidence of PW19 Sh.M.M.Gupta, who was the search witness.
587. The incriminating evidence which has come on record of PW46 Sh.M.K.Mondal and PW19 Sh.M.M.Gupta with regard to aforementioned six original life insurance policies and one matured life insurance policy were put to accused while they were being examined under Section 313 Cr.P.C. and accused persons did not dispute the recovery of life insurance policies in their names or the receipt of maturity amount.
588. Therefore, the evidence which has come on record proves that accused persons had taken seven life insurance policies, details of which are mentioned in the charge sheet.
589. Since it is proved by PW46 Sh.M.K.Mondal that life insurance policy no. ORD400100020 had matured in 2005 and sum insured was paid to accused Ajay Kumar Takkar on its maturity, Page: 266/323 therefore, this court can presume that accused must have paid yearly premium on the said policy.
590. The reason for the same is that in case, yearly premium is not paid then policy lapses and there is no question of paying the sum insured at the time of maturity.
591. PW46 Sh.M.K.Mondal had also produced the photocopy of matured Life Insurance Policy bearing policy no. ORD400100020 which is A7 of Ex.PW46/A (colly). The copy of the said policy was not objected to by the ld.defence counsel at the time of tendering of evidence and hence, same is admissible in evidence in the light of judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P.'s case (supra).
592. As per document A7 which is part of Ex.PW46/A (colly), yearly premium was required to be paid at the rate of U.S.Dollar 154.40 and the Page: 267/323 said premium was required to be paid from November, 1990 till November, 2004.
593. In this case, the check period is from 01.04.1994 till 29.09.2004, therefore, accused must have paid premium for around 10 years.
594. Since positive evidence had come in the light of deposition of PW46 Sh.M.K.Mondal that policy A7 which is part of Ex.PW46/A (colly) had matured in 2005 and the sum insured was paid to accused Ajay Kumar Takkar, therefore, the court can presume that accused must have paid the premium of Rs.47,240/ during the check period.
595. It was for the accused Ajay Kumar Takkar to have shown that depsite his LIC policy having matured in 2005 and despite he receiving the matured amount, he had not paid yearly premium on the same.
596. However, no evidence was led on record by accused Ajay Kumar Takkar to show that no yearly premium was paid with regard to Page: 268/323 aforementioned policy. Therefore, in the light of evidence which has come on record, the court can presume that accused Ajay Kumar Takkar must have paid the premium and that is why he had received the sum insured at the time of maturity.
597. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527818 Ex.PW19/Y (D225) and as per the said exhibit, said policy was in the name of accused Sandhya Takkar and yearly premium was Rs.2,799/ and premium was required to be paid every year from January, 1995 till January, 2012.
598. Therefore, accused Sandhya Takkar must have paid yearly premium @ Rs.2,799/ for around 10 years during the check period.
599. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their Page: 269/323 statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.2,799/ was paid by accused Sandhya Takkar for 10 years during the check period. Therefore, it is proved that accused Sandhya Takkar had paid yearly premium of Rs.2,799/ for 10 years which comes to Rs.27,990/.
600. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527817 Ex.PW19/CC (D226) and as per the said exhibit, said policy was in the name of accused Sandhya Takkar and yearly premium was Rs.2,979/ and premium was required to be paid every year from January, 1995 till January, 2011.
601. Therefore, accused Sandhya Takkar must have paid yearly premium @ Rs.2,979/ for around 10 years during the check period.
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602. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.2,979/ was paid by accused Sandhya Takkar for 10 years during the check period. Therefore, it is proved that accused Sandhya Takkar had paid yearly premium of Rs.2,979/ for 10 years which comes to Rs.29,790/.
603. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527676 Ex.PW19/BB (D222) and as per the said exhibit, said policy was in the name of accused Ajay Kumar Takkar and yearly premium Page: 271/323 was Rs.4,958/ and premium was required to be paid every year from January, 1995 till January, 2015.
604. Therefore, accused Ajay Kumar Takkar must have paid yearly premium @ Rs.4,958/ for around 10 years during the check period.
605. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.4,958/ was paid by accused Ajay Kumar Takkar for 10 years during the check period. Therefore, it is proved that accused Ajay Kumar Takkar had paid Page: 272/323 yearly premium of Rs.4,958/ for 10 years which comes to Rs.49,580/.
606. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527675 Ex.PW19/2 (D224) and as per the said exhibit, said policy was in the name of accused Ajay Kumar Takkar and yearly premium was Rs.5,463/ and premium was required to be paid every year from January, 1995 till January, 2013.
607. Therefore, accused Ajay Kumar Takkar must have paid yearly premium @ Rs.5,463/ for around 10 years during the check period.
608. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly Page: 273/323 premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.5,463/ was paid by accused Ajay Kumar Takkar for 10 years during the check period. Therefore, it is proved that accused Ajay Kumar Takkar had paid yearly premium of Rs.5,463/ for 10 years which comes to Rs.54,630/.
609. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527673 Ex.PW19/X (D227) and as per the said exhibit, said policy was in the name of Adity Takkar, daughter of accused Ajay Kumar Takkar and yearly premium was Rs.5,174/ and premium was required to be paid every year from January, 1995 till January, 2012.
610. Therefore, accused Ajay Kumar Takkar must have paid yearly premium @ Rs.5,174/ for around 10 years during the check period.
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611. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.5,174/ was paid by accused Ajay Kumar Takkar for 10 years during the check period. Therefore, it is proved that accused Ajay Kumar Takkar had paid yearly premium of Rs.5,174/ for 10 years which comes to Rs.51,740/.
612. Further, I have carefully perused the original Life Insurance Policy bearing No. 900527674 Ex.PW19/AA (D223) and as per the said exhibit, said policy was in the name of Preety Takkar, daugther of accused Ajay Kumar Takkar Page: 275/323 and yearly premium was Rs.4,854/ and premium was required to be paid every year from January, 1995 till January, 2013.
613. Therefore, accused Ajay Kumar Takkar must have paid yearly premium @ Rs.4,854/ for around 10 years during the check period.
614. Accused persons in the crossexamination of PW46 Sh.M.K.Mondal, PW59 Sh.T.V.S.Prasad and PW61 Sh.T.M.Mudaliar had not suggested to them that the aforesaid policy had lapsed due to nonpayment of yearly premium and even in their statements under Section 313 Cr.P.C., accused persons have not disputed the payment of yearly premium as mentioned in the life insurance policies during the check period. Therefore, this court presumes that yearly premium @ Rs.4,854/ was paid by accused Ajay Kumar Takkar for 10 years during the check period. Therefore, it is proved that accused Ajay Kumar Takkar had paid Page: 276/323 yearly premium of Rs.4,854/ for 10 years which comes to Rs.48,540/.
615. Total expenditure incurred by accused persons comes to Rs.3,09,510/ (Rs.47,240/ + Rs.27,990/ + Rs.29,790/ + Rs.49,580/ + Rs.54,630/ + Rs.51,740/ + Rs.48,540/) and not Rs.2,86,517/ as mentioned in the charge sheet. Therefore, an amount of Rs.22,993/ (Rs.3,09,510/ (minus) Rs.2,86,517/) is required to be added to disproportionate assets.
III. Claim for reduction of expenditure incurred on education of children of accused persons.
616. As per the charge sheet, accused persons had incurred expenditure of Rs.1,35,761/on the fees of school/college of their two daughters.
617. The Ld.defence counsel had submitted, during the course of arguments that fees of Rs.13,410/ and Rs.35,758/ mentioned at serial Page: 277/323 no.1 and 4 of page 51 of the charge sheet has not been proved.
618. It was submitted that relevant witness examined by the CBI to this effect was PW36 Smt.Usha Raina, who had deposed in her examinationinchief that fees paid was not calculated by her and she had also admitted that no annexures were sent with the letter Ex.PW36/A to CBI.
619. It was further submitted that PW36 Smt.Usha Raina in her crossexamination had deposed that she cannot comment whether the fees was deposited by grand parents of Preety and Adity Takkar, daughters of accused Ajay Kumar Takkar.
620. Accordingly, it was submitted that deposition of fees of Rs.13,410/ and Rs.35,758/ was not proved on record.
621. In order to appreciate the contention of ld.defence counsel, I have carefully perused the Page: 278/323 evidence of PW36 Smt.Usha Raina, who was working as Principal of Gokuldham High School and Junior College, Goregaon East, Mumbai.
622. PW36 Smt.Usha Raina had deposed on oath that Preety and Adity, who are daughters of Ajay Kumar Takkar, had studied in her school and she had provided to CBI the amount of fees paid on behalf of Preety and Adity for the period from August, 1994 till May, 2002 vide letter Ex.PW36/A.
623. In her crossexamination, PW36 Smt.Usha Raina had deposed that she had herself verified from record about the details of fees and thereby had issued letter Ex.PW36/A.
624. In the entire crossexamination of PW36 Smt.Usha Raina, it was not challenged that amount of fees mentioned in the letter Ex.PW36/A (D234) was not deposited on behalf of Preety and Adity while they were studying in Gokuldham High Page: 279/323 School and Junior College, Goregaon East, Gokuldham, Mumbai.
625. The defence of accused persons during the course of crossexamination of PW36 Smt.Usha Raina was to the extent that fees was not deposited by them but by the grandparents of Preety and Adity.
626. PW36 Smt.Usha Raina could not reply to the defence of accused as she had given the explanation that she had not physically received the fees.
627. Since accused persons had claimed that fees was not deposited by them but by the grand parents of their children, therefore, onus had shifted upon accused persons to have proved the same as this fact was in their specific knowledge. Therefore, as per Section 106 of the Indian Evidence Act, 1872, it was for the accused persons to have discharged the burden by leading evidence in support of their defence that the fees was Page: 280/323 deposited by grand parents and not by them. No evidence was led by accused in this regard.
628. Therefore, this court can presume, having regard to the human conduct that fees of children are normally deposited by the parents.
IV. Claim for reduction of Rs.19,640/ on account of payment of fees as mentioned at serial no.2 of page 51 of the charge sheet with respect to child Preety Takkar.
629. It was submitted by ld.defence counsel that the relevant witness summoned by CBI with regard to fees of Preety Takkar was PW38 Mrs.C.T.Chakravarty and relevant document is D
247.
630. It was submitted that PW38 Mrs.C.T.Chakravarty had admitted in her cross examination that fees of Rs.3,640/ was paid in cash but she does not know as to who has deposited the said fees.
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631. It was submitted that in answer to the said question under Section 313 Cr.P.C., accused Ajay Kumar Takkar had stated that fees of his children was paid by his parents as and when they visit him in Mumbai.
632. It was further submitted that PW38 Mrs.C.T.Chakravarty had admitted that with regard to Rs.16,000/ paid on account of Vocational Course, the receipt was not traceable at the time of supplying documents to CBI. Therefore, said amount was not proved. Accordingly, a prayer was made to reduce the amount of Rs.3,640/ + Rs.16,000/ = Rs. 19,640/ from the disproportionate assets.
633. In order to appreciate the contention of Ld.defence counsel, I have carefully perused the evidence of PW38 Mrs.C.T.Chakravarty and document produced by her i.e. D247.
634. PW38 Mrs.C.T.Chakravarty was working as Principal of Thakur College of Science and Page: 282/323 Commerce, Kandivili East, Mumbai and she had deposed on oath that Preety Takkar, daughter of Ajay Kumar Takkar had studied in her college in the year 1999 and vide letter Ex.PW38/A, she had supplied copies of two school fee receipts Ex.PW38/C and Ex.PW38/D respectively bearing her signatures at point A.
635. PW38 Mrs.C.T.Chakravarty had also admitted in her cross examination that amount vide Ex.PW38/C and Ex.PW38/D was paid in cash but she was unable to tell as to who has deposited the fees.
636. Since PW38 Mrs.C.T.Chakravarty had produced copies of fee receipts Ex.PW38/C and Ex.PW38/D and no objection was taken while they were tendered in evidence, hence, they are admissible in evidence as per judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P.'s case (supra).
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637. As per documents Ex.PW38/C and Ex.PW38/D, fees of Rs.1,840/ and Rs.1,800/ respectively has been deposited on account of school fees of Preety Takkar i.e. total amount of Rs.3,640/ in cash. Hence, deposition of fee of Rs.3,640/ on account of fees stands proved.
638. Since no suggestion was given to PW38 Mrs.C.T.Chakravarty in her crossexamination that school fee in cash was paid by grand parents of Preety Takkar, therefore, taking of this defence at the stage of statement under Section 313 Cr.P.C. or at the stage of final arguments, is an after thought and is required to be rejected.
639. I agree with the contention of ld.defence counsel that PW38 Mrs.C.T.Chakravarty could not prove the deposition of fees of Rs.16,000/ on account of Vocational Course in Computer Science as no supporting document was produced or supplied to CBI.
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640. In the light of above discussion, since amount of Rs.16,000/ on account of fees of Vocational course in Computer Science is not proved on record, therefore, said amount is required to be reduced from disproportionate assets.
V. Claim for addition of Rs.30,695/ to the Foreign Remittances at the beginning of check period.
641. As per the charge sheet, foreign remittance at the start of check period has been taken as Rs.5,88,752/ which accused had saved while on foreign posting in Saudi Arabia from 13.02.1989 to 20.09.1993.
642. It was also mentioned in the charge sheet that accused had made a total investment of Rs.15,36,380.34p. for the assets available at the beginning of the check period and out of this amount, around Rs.12,54,180.34p. was invested during 1989 till 31.03.1994.
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643. CBI had assumed that a big part of the investment had come from savings out of earnings abroad. Accused Ajay Kumar Takkar had claimed savings of Rs.12,14,783/on account of income earned during his posting in abroad but details of account with regard to foreign savings could not be furnished by respective banks on account of they belonging to very old period or on account of account being closed.
644. However, during investigation, scrutinity of various bank accounts revealed that an amount of Rs.5,88,752/ was transferred from foreign remittances bank to other saving bank accounts.
645. Therefore, as per charge sheet, full benefit of foreign savings was given to accused persons by taking assets at the beginning of the check period to have been acquired out of savings of earning from abroad and by giving beneft of Rs.5,88,752/ which was found to be transferred from foreign remittances bank to other saving bank accounts.
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646. Ld.defence counsel had submitted, during the course of arguments that apart from Rs.5,88,752/, an amount of Rs.30,695/ was malafidely not added by the investigating officer in foreign remittance at the start of the check period.
647. It was submitted that at the time of search at the residence of accused Ajay Kumar Takkar, document Ex.PW19/N was recovered and at page 8 of the said document, there were handwriting notes of accused with regard to foreign remittances and at page 8 in the middle portion, it is specifically mentioned that on 07.04.1994, an amount of Rs.30,695/ was received in the Syndicate Bank.
648. It was further submitted that this fact is further corroborated by document Ex.PW19/D which is a bank passbook of Syndicate Bank where this entry is reflected to have been credited in the bank account.
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649. It was further submitted that investigating officer PW65 Sh.Tanmaya Behera had admitted in his crossexamination that altough there is a handwriting in pencil in document Ex.PW19/N and there is an entry of 07.04.1994 with particular "by CC" of Rs.30,695/ in Ex.PW19/D but still he has not taken the same as a foreign remittances because as per him, the source was still unexplained.
650. It was submitted that it was malafide on the part of the investigating officer PW65 Sh.Tanmaya Behera not to have taken the said amount as part of foreign remittances and accordingly, it was prayed that amount of Rs.30,695/ be reduced from disproportionate assets.
651. I have carefully perused the passbook Ex.PW19/D and document Ex.PW19/N page 8 (D
261).
Page: 288/323
652. In the passbook Ex.PW19/D, there is an entry reflected of 07.04.1994 with the remark "by CC" of Rs.30,695/. However, as per page 8 of Ex.PW19/N (colly) (D261), foreign remittances were being transferred by accused into his Hong Kong Bank account and as per handwritten note at page 8 in pencil, an amount of Rs.30,695/ has been transferred from Hong Kong bank to Syndicate Bank, Malad (East), Mumbai.
653. In the opinion of this court, entry dated 07.04.1994 of Rs.30,695/ in the passbook Ex.PW19/D cannot be read as an entry with regard to foreign remittances because in case, the amount was transferred from Hong Kong bank then entry of 07.04.1994 would have given the remark "transferred or transferred from Hong Kong bank".
654. Secondly, any entry made by accused himself i.e. at page 8 of Ex.PW19/N (colly) (D
261) cannot be considered to be an amount transferred on account of foreign remittances Page: 289/323 unless there is a corroborative evidence to support the said entry.
655. The onus to prove the said entry on account of foreign remittances was upon accused Ajay Kumar Takkar as he was claiming the same.
656. Accused Ajay Kumar Takkar could have very well summoned the witness from Hong Kong bank where accused Ajay Kumar Takkar was maintainaing account and amount in foreign currency was being transferred from Saudhi Arabia. The witness from Hong Kong bank could have proved that the amount of Rs.30,695/ was transferred from Hong Kong bank to Syndicate Bank by accused Ajay Kumar Takkar.
657. However, no witness from Hong Kong bank was summoned by accused Ajay Kumar Takkar and since passbook Ex.PW19/D gives no detail that Rs.30,695/ on 07.04.1994 was transferred from Hong Kong bank, therefore, it was nowhere established on the preponderance of Page: 290/323 probabilities that the said amount was transferred due to foreign remittances.
658. The investigating officer PW65 Sh.Tanmaya Behera rightly deposed in his cross examination that no benefit was given of the said amount because source was not explained by accused Ajay Kumar Takkar. Hence, this contention of ld.defence counsel is rejected.
VI. Claim for reduction of expenditure on Cell Phones.
659. As per the charge sheet, accused persons had incurred expenditure on mobile phone to the tune of Rs.39,522/ and charge sheet reflects that mobile phones were of prepaid category in the name of accused Ajay Kumar Takkar and his daughters Adity Takkar and Preety Takkar.
660. It was submitted by ld.defence counsel that relevant witness examined by the CBI in this Page: 291/323 regard are PW49 Sh.Deepak Tomar and PW66 Sh.C.H.Godse.
661. It was submitted that PW49 Sh.Deepak Tomar was examined by CBI as a Nodal Officer on behalf of Sh.Dinesh Desai, who was the Nodal Officer in their Mumbai Office.
662. It was submitted that all the relevant documents of letter Ex.PW49/A (colly) were sent under signatures of Sh.Dinesh Desai but PW49 Sh.Deepak Tomar admitted in his cross examination that he had never worked with Sh.Dinesh Desai and he had never seen him writing or signing. Therefore, contents of letter Ex.PW49/A (colly) were not proved.
663. It was further submitted that PW49 Sh.Deepak Tomar was unable to tell as to how the total amount in respect of three mobile phones mentioned in Ex.PW49/A (colly) were mentioned and he had also admitted that he had never seen the original application form with regard to three Page: 292/323 mobile phones. Therefore, evidence of PW49 Sh.Deepak Tomar do not prove the case of CBI.
664. It was further submitted that other witness examined by CBI was PW66 Sh.C.H.Godse, who was posted as Assistant Nodal Officer in Mumbai.
665. It was submitted that although PW66 Sh.C.H.Godse had identified the signatures of Sh.Dinesh Desai being his superior but he had ad mitted that details of amount with regard to three mobile phone numbers were prepared by him as per computer record. However, since Ex.PW49/A (colly) was not accompanied with any certificate under Section 65B of the Indian Evidence Act, 1872, therefore, the document providing amount was inadmissible. Accordingly, a prayer was made to deduct amount of Rs.35,922/from dispropor tionate assets.
666. In order to consider the submission of ld.defence counsel, I have carefully perused the ev idence of PW49 Sh.Deepak Tomar PW66 Sh.C.H. Page: 293/323 Godse and the document Ex.PW49/A (colly) (D
229).
667. I agree with the submission put forward by ld.defence counsel that Annexure "A" of Ex.PW49/A (colly) is a computerized detail and since the same is not accompanied with any certifi cate under Section 65B of the Indian Evidence Act, therefore, the same is inadmissible in evidence in the light of the judgment of the Hon'ble Supreme Court of India delivered in Anwar P.V. Vs. P.K.Basheer & Others case (supra).
668. Further, in the present case, accused per sons have also challenged the ownership of mobile phone numbers as mentioned in Annexure "A" in the cross examination of PW66 Sh.C.H.Godse. Therefore, onus had shifted upon CBI to prove that the mobile phone numbers mentioned in Annexure "A" of Ex.PW49/A (colly) pertain to accused Ajay Kumar Takkar and his daughters.
Page: 294/323
669. However, the original Application Forms of three mobile phone numbers which could have proved the ownership was never produced. There fore, in the present case, neither the ownership of mobile phone numbers mentioned in Annexure "A" of Ex.PW49/A (colly) has been proved nor the amount mentioned in Annexure "A" of Ex.PW49/A (colly) has been proved by the CBI. Hence, benefit of Rs.39,522/ is to be given to accused persons and said amount stands reduced from dispro portionate assets.
VII. Claim for reduction of expenditure incurred on Foreign trip, donation and purchase of For eign Exchange.
670. As per the case of CBI, accused had in curred expenditure of Rs.46,672/on foreign trip, expenditure of Rs.13,310/ on donation and Rs.11,594/ on purchase of foreign exchange.
671. It was the contention of ld.defence counsel that no witness was examined by CBI to prove the Page: 295/323 aforesaid amounts and neither the same were put to accused persons in their examination under Sec tion 313 Cr.P.C. Accordingly, a prayer was made to reduce the disproportionate assets on account of aforesaid expenditure.
672. In order to appreciate the contention of ld.defence counsel, I have carefully perused the ev idence led on record by CBI.
673. I agree with the submission put forward by ld.defence counsel that no witness has been exam ined by CBI to prove the aforesaid expenditure.
674. The expenditure on foreign trip required the CBI to examine the witness to prove as to which foreign country was visited by accused Ajay Kumar Takkar and what was the cost of air tickets to visit the said country in this regard.
675. Similarly, with regard to expenditure on donation, CBI was required to prove for what pur pose donation was given and by what mode. How Page: 296/323 ever, no witness has been examined in this regard also.
676. Lastly, expenditure on purchase of foreign exchange has also not been proved as no witness was examined in this regard.
677. Therefore, CBI has failed to prove that any expenditure was incurred by accused Ajay Kumar Takkar with regard to foreign trip, donation and purchase of foreign exchange. Hence, amount of ( Rs.46,672/ + Rs.13,310/ + Rs.11,594/ ) = Rs.71,576/ is required to be reduced from dis proportionate assets.
VIII. Claim for reduction of income tax paid by accused Ajay Kumar Takkar amounting to Rs.1,39,738/.
678. As per the charge sheet, accused Ajay Ku mar Takkar had paid income tax of Rs.1,39,738/ apart from income tax deducted from salary for the assessment year 19992000 till 20042005.
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679. It was submitted by ld.defence counsel that income tax amount of Rs.41,610/ for assess ment year 20042005 and income tax amount of Rs.62,216/ for assessment year 20032004 was paid on 27.12.2004 i.e.when the check period had ended on 29.09.2004. Therefore, these two amounts are required to be reduced from dispro portionate assets as expenditure was not made during the check period.
680. It was further submitted that with regard to income tax payment for other assessment years, no income tax returns were produced on record and PW28 Sh.Achuthan Nair P.K. in his crossex amination had also admitted that returns prior to 20032004 were not given to CBI.
681. Even otherwise, the returns for the assess ment year 19992000 till assessment year 2002 2003 were not put to accused persons in their statement under Section 313 Cr.P.C. Accordingly, amount for assessment years 19992000 till 2002 Page: 298/323 2003 of Rs.15,532/, Rs.10,802/, Rs.4,354/ and Rs.5,224/was required to be reduced from dispro portionate assets.
682. In order to appreciate the contention of ld.defence counsel, I have carefully perused the record and the evidence led on record by PW28 Sh.Achuthan Nair P.K. and document produced by him i.e. D216.
683. PW28 Sh.Achuthan Nair P.K. was working as Income Tax Officer, Bandra, Kurla complex, Mumbai and he had proved the filing of income tax return by accused Ajay Kumar Takkar for As sessment Year 20032004 Ex.PW28/A, for Assess ment Year 20042005 Ex.PW28/B and for Assess ment Year 20052006 Ex.PW28/C (D216).
684. PW28 Sh.Achuthan Nair P.K. also admit ted in his cross examination that returns prior to Assessment Year 20032004 were not given to CBI.
685. I have carefully perused the returns for As sessment Years 20032004 Ex.PW28/A and returns Page: 299/323 for the Assessment Year 20042005 Ex.PW28/B as they only pertain to check period and both these returns had been filed on 17.02.2005 and as per receipt attached with Ex.PW28/A, payment of in come tax has been made on 27.12.2004.
686. Since the check period had ended on 29.09.2004 and since expenditure on account of payment of income tax vide Ex.PW28/A and Ex.PW28/B has been made on 27.12.2004 i.e.be yond the check period, therefore, the same could not have been added under the category of expen diture during the check period on account of pay ment of income tax. Hence, amount of Rs.62,216/as mentioned in Ex.PW28/A and Rs.41,610/as mentioned in Ex.PW28/B (Total Rs.1,03,826/) is required to be reduced from disproportionate assets.
687. As far as income tax payment for Assess ment Year 19992000 till 20022003 is concerned, although it is true that in the cross examination of Page: 300/323 PW28 Sh.Achuthan Nair P.K., it has come on record that returns for the aforementioned period was not traceable but still the income tax payment for the aforementioned Assessment Years was proved by CBI in the light of admission made by accused Ajay Kumar Takkar with regard to docu ments recovered from his house during the course of search pertaining to income tax payment with regard to Assessment Year 19992000 till 2002 2003.
688. The entire file containing income tax re turns Ex.PW19/I (colly) (D185) alongwith pay ment receipts and challans for the Assessment Year 19992000 till 20022003 was put to accused Ajay Kumar Takkar for the purpose of admission/denial on 11.04.2014 and each and every document in Ex.PW19/I (colly) (D185) was admitted by ac cused Ajay Kumar Takkar.
689. Since the entire file Ex.PW19/I (colly) (D
185) was admitted by accused Ajay Kumar Takkar, Page: 301/323 therefore, income tax payment for the Assessment Year 19992000 till 20022003 stands proved. As per Ex.PW19/I (colly) (D185), income tax pay ment of Rs.15,532/ for the Assessment Year 2002 2003 is duly mentioned at pages 4,5 and 6 of Ex.PW19/I (colly) which are copies of returns of income and counter foils regarding payment of Self Assessment Tax.
690. Further, at pages no.13 and 14 of Ex.PW19/I (colly), there is payment of Rs.10,802/ for the Assessment Year 20012002 which are in come tax returns and copy of receipt of payment of Self Assessment Tax.
691. Further, at pages no.23 and 24, there is a receipt of payment of Rs.4,354/ for the Assess ment Year 20002001 of income tax which is copy of return and receipt of Self Assessment Tax.
692. Lastly, at pages no.28 and 30, there is pay ment of Rs.5,224/ for the Assessment Year 1999 Page: 302/323 2000 which is the copy of return and receipt of Self Assessment Tax.
693. The aforementioned document Ex.PW19/I (colly) (D185) was also put to accused Ajay Ku mar Takkar in his statement under Section 313 Cr.P.C.
694. Accused Ajay Kumar Takkar admitted the said document Ex.PW19/I (colly) (D185) to have been recovered from his house during the course of search. Therefore, no benefit of income tax paid of Rs.15,532/ for the Assessment Year 2002 2003, Rs.10,802/ for the Assessment Year 20012002, Rs.4,354/ for the Assessment Year 20002001 and Rs.5,224/ for the Assessment Year 19992000 can be given to accused Ajay Kumar Takkar.
Page: 303/323 IX. Claim for reduction of income tax paid by accused Sandhya Takkar amounting to Rs.43,767/.
695. As per the charge sheet, accused Sandhya Takkar had paid income tax of Rs.43,767/during the check period.
696. It was submitted by ld.defence counsel that income tax amount of Rs.14,619/ for assess ment year 20042005 and income tax amount of Rs.17,546/ for assessment year 20032004 was paid on 27.12.2004 i.e.when the check period had ended on 29.09.2004.
697. It was further submitted by ld.defence counsel that amount of Rs.14,619/ has nowhere come in the evidence and has also not been put to accused under section 313 Cr.P.C. Therefore, these two amounts are required to be reduced from dis proportionate assets as expenditure was not made during the check period.
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698. It was further submitted that with regard to income tax payment for other assessment years, no income tax returns were produced on record and PW44 Sh.Ajay Ghanshyam Kamble in his crossexamination had also admitted that income tax returns for the years prior to Assessment Year 20032004 were not given to CBI.
699. Even otherwise, the amount of income tax paid for Assessment Year 19981999 till assess ment year 20022003 were not put to accused per sons in their statement under Section 313 Cr.P.C. Accordingly, amount for Assessment Year 19981999 till 20022003 of Rs. 4,048/, Rs.779/, Rs.4,855/ and Rs.1,920/ was required to be reduced from disproportionate assets.
700. In order to appreciate the contention of ld.defence counsel, I have carefully perused the record and the evidence led on record by PW44 Page: 305/323 Sh.Ajay Ghanshyam Kamble, who was working as Income Tax Officer at Ward 24(2)(2), Mumbai.
701. PW44 Sh.Ajay Ghanshyam Kamble had identified the letter written by him to CBI Ex.PW44/A and he has also proved the sending of duly attached copies of income tax returns for the Assessment Year 20032004 and 20042005 which are Ex.PW44/B (colly) (D217). However, he ad mitted in his cross examination that income tax re turns prior to Assessment Year 20032004 were not supplied as the same were not traceable.
702. I have carefully perused Ex.PW44/B (colly) running into 30 pages of D217 and the same contains income tax return for the Assess ment Year 20042005 showing payment of income tax of Rs.14,619/. Therefore, contention of ld.de fence counsel that amount of Rs.14,619/ has nowhere come in the evidence, is required to be re jected.
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703. I have carefully perused the returns for the Assessment Year 20032004 and 20042005 which are part of Ex.PW44/B (colly) and both returns have been filed on 17.02.2005 and self assessment tax of Rs.17,546/ has been paid on 21.12.2004 whereas amount of Rs.14,619/ for Assessment Year 20042005 has been paid on 21.12.2004 and 16.02.2005 as per bank receipts filed on record.
704. Since income tax for both the returns has been paid after the check period i.e. on 21.12.2004 and 16.02.2005, therefore, they cannot be counted as expenditure incurred on account of income tax during the check period. Hence, amount of Rs. 17,546/ and Rs.14,619/ (Total Rs.32,165/)is required to be reduced from disproportionate assets.
705. As far as income tax payment for Assess ment Year 19981999 till 20022003 is concerned, although it is true that in the cross examination of PW44 Sh.Ajay Ghanshyam Kamble, it has come on Page: 307/323 record that returns for the aforementioned period was not traceable but still the income tax payment for the aforementioned Assessment Years was proved by CBI in the light of admission made by accused Ajay Kumar Takkar and ld.counsel for both accused with regard to documents recovered from his house during the course of search pertain ing to income tax payment with regard to Assess ment Year 19981999 till 20022003.
706. The entire file containing income tax re turns Ex.PW19/O (colly) (D268) alongwith pay ment receipts and challans for the Assessment Year 19981999 till 20022003 was put to accused Ajay Kumar Takkar and counsel for both accused for the purpose of admission/denial on 11.04.2014 and each and every document in Ex.PW19/O (colly) (D268) was admitted by ld.counsel for accused Sandhya Takkar.
707. Since the entire file Ex.PW19/O (colly) (D
268) was admitted by ld.counsel for accused Sand Page: 308/323 hya Takkar, therefore, income tax payment for the Assessment Year 19981999 till 20022003 stands proved. As per Ex.PW19/O (colly) (D268), income tax payment of Rs.1,920/ for the Assessment Year 20022003 is duly mentioned at pages 7 and 8 of Ex.PW19/O (colly) which are copies of returns of income tax and counter foils regarding payment of Self Assessment Tax.
708. Further, at pages no.21 and 22 of Ex.PW19/O (colly), there is payment of Rs.4,855/ for the Assessment Year 20012002 which is duly mentioned in income tax returns and copy of re ceipt of payment of Self Assessment Tax.
709. Further, at pages no.31 and 32 there is a receipt of payment of Rs.779/ for the Assessment Year 20002001 of income tax which is duly men tioned in the copy of return and receipt of Self As sessment Tax.
710. Lastly, at pages no.42 and 43 there is pay ment of Rs.4,048/ for the Assessment Year 1998 Page: 309/323 1999 which is duly mentioned in the copy of re turn and receipt of Self Assessment Tax.
711. The aforementioned document Ex.PW19/O (colly) (D268) was also put to ac cused Sandhya Takkar in her statement under Section 313 Cr.P.C.
712. Accused Sandhya Takkar admitted the said document Ex.PW19/O (colly) (D268) to have been recovered from her house during the course of search. Therefore, no benefit of income tax paid of Rs.1,920/ for the Assessment Year 20022003, Rs.4,855/ for the Assessment Year 20012002, Rs.779/ for the Assessment Year 20002001 and Rs.4,048/ for the Assessment Year 19981999 can be given to accused Ajay Kumar Takkar.
X. Expenditure on repayment of loan.
713. Although in the arguments of ld.defence counsel or the CBI, the said expenditure on the Page: 310/323 repayment of loan has not been questioned but in the opinion of this court, evidence which has come on record shows that the amount of expenditure made by accused Ajay Kumar Takkar on the repayment of loan is quite different to what is mentioned in the charge sheet.
714. As per the charge sheet, accused Ajay Kumar Takkar had incurred expenditure of Rs.78,029/ on account of repayment of loan. However, as per evidence which has come on record i.e. evidence of PW55 Sh.Aju Ashok, who was the Deputy Manager (Legal), HDFC Bank, accused Ajay Kumar Takkar had availed housing loan of Rs.6,82,000/ from HDFC Bank and as per his evidence, till 29.09.2004, accused Ajay Kumar Takkar had repaid Rs.94,041/ as part of principal amount. Accused Ajay Kumar Takkar had not disputed the aforementioned amount regarding repayment of loan as there was no cross examination of PW55 Sh.Aju Ashok. Therefore, it Page: 311/323 is proved on record that accused Ajay Kumar Takkar had incurred expenditure of Rs.94,041/on repayment of housing loan taken from HDFC Bank. Therefore, disproportionate assets are required to be increased by Rs.16,012/ (Rs.94,041/ (minus) Rs.78,029).
715. In the light of above discussion, it has been proved on record, as per evidence discussed hereinabove, that disproportionate assets for which accused Ajay Kumar Takkar was charged with, are required to be reduced /increased as follows: S.No. On Account To be added to To be deducted of DA from DA
1. Flat No. C Rs.26,233/ 248, Sheikh Sarai, New Delhi
2. Type C, Rs.10,210/ PhaseIV, Sector82, Noida Page: 312/323
3. Flat No. Rs.6,000/ 5E/A, Scheme No.54, Indore
4. Account No. Rs.92/ 3619, UCO Bank, Sheikh Sarai, New Delhi.
5. Account No. Rs.1,687/ 11492, Punjab National Bank, Sheikh Sarai, New Delhi.
6. Account No. Rs.3,121/ 19850, Canara Bank, Green Park Extension, New Delhi.
7. Account No. Rs.11,406.95p.
2238, Indian Bank, Nehru Place, New Page: 313/323 Delhi.
8. Account No. Rs.11,147/ 109614, Oriental Bank of Commerce, Goregaon, Mumbai.
9. Account No. Rs.1,46,058.2p.
5974, Bank of India, Goregaon, Mumbai.
10. Account No. Rs.1,63,012.13p.
0131050358 300, IDBI Bank, Indore Branch and 0131078263 100 IDBI Ltd., Indore
11. Account No. Rs.34,994/ 2201503771, ICICI Bank, Mumbai.
Page: 314/323
12. Value of Rs.20,000/ shares of Four Seasons Farms
13. Household Rs.50,100/ goods acquired during the check period.
14. Amount Rs.1,20,000/ mentioned in the four gift deeds
15. Interest in Rs.41,162/ Saving Bank account no.5974 of Bank of India, Mumbai during the check period
16. Income from Rs.26,652/ Amway of accused Sandhya Takkar Page: 315/323
17. On account Rs.2,76,978.37p.
of non verifiable expenditure at 1/3rd of net salary instead of 1/3rd of Gross salary as done by CBI
18. Expenditure Rs.1,32,085/ on maintenance of Flat No. 101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai Page: 316/323
19. Expenditure Rs.10,789/ on maintenance of Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai.
20. Expenditure Rs.17,575/ on maintenance of Plot No. M128, Sector Delta, PartIII, Greater Noida (U.P.)
21. Expenditure Rs.2,000/ on maintenance of Flat No. 6/404, Fourth Floor, Green Page: 317/323 Meadows, Building No.6, Green Meadows Cooperative Housing Society Ltd.
22. Expenditure Rs.44,263/ on maintenance of Flat No. 5E/A, Scheme No.54, Indore
23. On account Rs.22,993/ of Life Insurance Policies
24. Expenditure Rs.16,000/ on account of payment of fees as mentioned at serial no.2 of page 51 of charge sheet with respect to child Page: 318/323 Preety Takkar on account of Vocational Course in Computer Science
25. Expenditure Rs.39,522/ on Cell Phones
26. Expenditure Rs.71,576/ incurred on foreign trip, donation and purchase of foreign exchange
27. Income tax Rs.1,03,826/ paid by accused Ajay Kumar Takkar
28. Income tax Rs.32,165/ paid by accused Sandhya Takkar
29. Repayment Rs.16,012/ Page: 319/323 of Loan Total Rs.2,53,232.2p. Rs.12,04,427.45p.
716. From the aforementioned table, disproportionate assets of Rs.26,85,901.75p. are required to be reduced by the following amount: Rs.12,04,427.45p. () Rs.2,53,232.2 p.
= Rs.9,51,195.25p.
717. Therefore, disproportionate assets which were acquired by accused Ajay Kumar Takkar during the check period i.e. from 01.04.1994 till 29.09.2004 are as follows: Rs.26,85,901.75p. () Rs.9,51,195.25p.
= Rs.17,34,706.5p.
718. The percentage of disproportionate assets acquired by accused Ajay Kumar Takkar during check period can be calculated as follows: Page: 320/323 Income during check period: Rs.40,60,895.37p Disproportionate Assets: Rs.17,34,706.5p.
Percentage: Rs. 17,34,706.5p. X 100 Rs. 40,60,895.37 = 42.7173404 = 43%
719. Therefore, disproportionate assets acquired by accused Ajay Kumar Takkar were to the tune of 43%. of the known sources of his income. Accused Ajay Kumar Takkar had failed to satisfactorily account for source of assets acquired by him during check period.
720. Hence, accused Ajay Kumar Takkar is convicted for the offence under Section 13(2) read with Section 13(1)(e) of the PC Act.
721. As far as accused Sandhya Takkar is concerned, the evidence which has come on record has proved that a large number of assets were acquired in the name of accused Sandhya Takkar.
722. The evidence has proved on record that two immovable properties were acquired in her Page: 321/323 name i.e. Flat No.101, F3/A, Panchseel2, Raheja Township, Malad (East), Mumbai and Flat No.5/E/A, Scheme No.54, Indore and accused Sandhya Takkar was joint owner with accused Ajay Kumar Takkar in two immovable properties i.e. Flat No.104, Satyam1, CHS Ltd.,Raheja Complex, Malad (East), Mumbai and Flat No. 6/404, 4th Floor, Green Meadows, Building No. 6, Green Meadows Cooperative Housing Society Ltd., Lokhandwala Township, Akurli Road, Kandivali (E), Mumbai.
723. The evidence has also proved on record that accused Sandhya Takkar was having many joint Saving Accounts with accused Ajay Kumar Takkar and there were many fixed deposits in the sole name of accused Sandhya Takkar or in the joint name of accused Sandhya Takkar and Ajay Kumar Takkar. It is also proved on record that accused Sandhya Takkar was not employed anywhere and was a house wife.
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724. The aforementioned assets which were acquired by accused Sandhya Takkar either singly or in joint name with accused Ajay Kumar Takkar could not be substantiated on the basis of her separate income tax returns which show incomes of accused Sandhya Takkar from rent and tuitions.
725. Therefore, it is proved on record that accused Sandhya Takkar being wife of accused Ajay Kumar Takkar had intentionally facilitated co accused Ajay Kumar Takkar in the acquisition of disproportionate income. Hence, accused Sandhya Takkar is convicted for abetment of offence under Section 109 IPC read with Section 13(2) and 13 (1) (e) of PC Act.
Announced in the open court Dated: 22.05.2017 (Vikas Dhull) Spl. Judge (PC Act) (CBI)03 Dwarka Courts/New Delhi Page: 323/323