Delhi District Court
Cc No. 27/2008 Cbi vs . S. P. Dubey Page 1 Of 59 on 6 June, 2015
IN THE COURT OF SH. SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 27/2008
ID No. 02401R0083241999
Central Bureau of Investigation (CBI)
Versus
Shankar Prasad Dubey (S. P. Dubey)
s/o Sh. Murlidhar Dubey,
R/o RZ-429, Gali No. 9, Raj Nagar Part-I,
Palam Colony, New Delhi.
Motor Vehicle Inspector (MVI),
Transport Department, NCT of Delhi
5/9, Under Hill Road, Delhi. .... Accused
Case arising out of: FIR No. RC-73(A)/95/CBI/ACB/ND
Date of FIR : 22.08.1995
Date of Institution : 28.04.1997
Date of conclusion of
Final Arguments : 29.05.2015
Date of Judgment : 04.06.2015
CC No. 27/2008 CBI Vs. S. P. Dubey Page 1 of 59
JUDGMENT
FACTS 1.0A surprise check was carried out at inspection pit, Burari, Delhi on 21.08.1995 and a case RC No. 71(A)/95/DLI was registered againt this accused, Motor Vehicle Inspector (MVI) and others. Thereafter, house search of this accused was carried out and assets worth Rs. 22,32,703/- in the shape of FDRs, Kishan Vikas Patras and Indira Vikas Patras, immovable property and household goods were recovered.
1.1The investigation revealed that accused was born on 03.02.1948 and he has family comprising his wife and two children. He joined transport department, Delhi Administration as MVI on 23.05.1989. Prior to his joining this service, he had served with Air Force from 1967 to 31.08.1987 and retired as Sargeant. He was sanctioned pension and other pensionary benefits. The check period was taken from 23.05.1989 to 21.08.1995. His income during check period was found to the tune of Rs. 6,78,976/- and expenditure to the tune of Rs. 2,44,612/- and assets were found to the tune of Rs. 22,32,073/-. The total disproportionate assets were found to the tune of Rs. 17,97,709/- and percentage of disproportionate assets was found to be 265%, more than his known source of income.
1.2The income, expenditure, assets & benefit of assets given to the accused shown in the charge sheet are as follows:-
A: Income of accused during check period Sl. Source of Income Amount in Rs. CC No. 27/2008 CBI Vs. S. P. Dubey Page 2 of 59 No. 1. Salary Income from Transport Department NCT 2,21,375.00 of Delhi. 2. (I) Interest of FDRs No. 396328 Rs. 6,202/ 35,470.00 (II) Interest of FDRs No. 396362 Rs. 11,533/ (III) Interest of FDRs No. 396363 Rs.11,533/ (IV) Interest of FDRs No. 396364 Rs.6,202/ 3. (I) Interest of FDRs Nos./Folio No. Rs.6570/ 1,22,002.00 11/37 (II) Interest of FDRs Nos./Folio Rs.6570/ No. 11/38 (III) Interest of FDRs Nos./Folio Rs.6570/ No. 11/39 (IV) Interest of FDRs Nos./Folio Rs.6570/ No. 11/40 (V) Interest of FDRs Nos./Folio Rs.18565/ No. 11/47
(VI) Interest of FDRs Nos./Folio Rs.18565/ No. 11/48 (VII) Interest of FDRs Nos./Folio Rs.12995/ No. 11/49 CC No. 27/2008 CBI Vs. S. P. Dubey Page 3 of 59 (VIII) Interest of FDRs Nos./Folio Rs.12995/ No. 11/50 (IX) Interest of FDRs Nos./Folio Rs.16301/ No. 11/51 (X) Interest of FDRs Nos./Folio Rs.16301/ No. 11/52
4. Interest on SBI Account No. 33977 PNB, Delhi 2,020.00 Cantt.
5. Interest on FDR No. 848301, SBI New Katni 16,200.00
6. Income from Pension 1989 to 1995(AVG) (As per 67,162.00 SB A/C P3/803)
7. Agricultural Income from the saving of Sh. 1,80,177.00 Murlidhar Dubey (Father)
8. Agricultural Income from the saving of Smt. Raj 22,322.00 Kumar Dubey (mother)
9. Agricultural Income from the saving of Sankar 2,248.00 Prasad Dubey Total 6,78,976.00 B: Expenditure during the check period CC No. 27/2008 CBI Vs. S. P. Dubey Page 4 of 59 Sl. Nature of Expenditure Amount in Rs.
No.
1. Registration Fee of New Telephone 1,000.00
2. Unitek Electronics Palam New Delhi (purchase of 3,650.00 stabilizer).
3. N.I.I.T. Rajouri Garden (As fee of Sunil Kumar) 23,300.00
4. DESU Bill, Feb. 92 to 95 1,836.00
5. DESU Installation charges of K. No. 3,168.00 1503/125796/DL
6. School Fee, Sunil Kumar, Anil Kumar 1620.00
7. LPG Gas Expenditures Gauri Enterprises, Palam 5,059.00 10.08.1990 to 23.08.1995
8. LPG Gas Expenditures Fair Ways Stores, 562.00 Gopinath Bazar, Delhi Cantt. 5.6.1990 to 7.8.1990
9. 30% of total income 2,03,692.00 Total 2,44,612.00 C: Assets Acquired/purchased during the period from 23.05.1989 (the day of joining as MVI in TPT. Deptt. to 21.08.1995 (the day of house search), hence check period from 1989 to 21.08.1995.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 5 of 59Sl. Nature of Asset Acquired/purchased Amount in Rs.
No. CC No. 27/2008 CBI Vs. S. P. Dubey Page 6 of 59
1. House hold goods as per observation memo dated 36,890.00 21/22.8.1995
2. Cash found during search as per memo dated 5,600.00 21/2.8.1995
3. MBDS QWM396328 dt. 7.7.1991 favouring S. 10,000.00 P. Dubey, PNB, Delhi Cantt.
4. MBDS No QWM396362 dt. 19.9.1992 30,000.00 favouring Sh. Sunil Kumar Dubey U/G Manorama, PNB, Delhi Cantt.
5. MBDS No. QWM396363 dt. 19.9.1992 30,000.00 favouring Sh. Anil Kumar Dubey U/G Manorma, PNB, Delhi Cantt.
6. MBDS No. 955632 Folio N o. 11/37 favouring 50,000.00 Anil Kumar Dubey dt. 23.10.1993 Central Bank of India, Majhagwa, MP
7. MBDS No. QWM396364 dt. 13.7.1991 favouring 30,000.00 Sh. Anil Kumar Dubey, PNB Delhi Cantt.
8. MMDC No. 955633 Folio N o. 11/38 favouring 50,000.00 Sh. Sunil Kumar Dubey dt. 23.10.1993
9. MMDC No. 955634 Folio No. 11/39 dt. 50,000.00 23.10.1993 favouring Smt. Manorama Dubey, CC No. 27/2008 CBI Vs. S. P. Dubey Page 7 of 59 Central Bank of India, Majhagawa, MP.
10. MMDC No. 955635 Folio No. 11/40 dt. 50,000.00 23.10.1993 favouring Sh. S. P. Dubey, CBI Majhagawa MP
11. MMDC No. 619613 Folio No. 12/47 dt. 50,000.00 28.12.1992 favouring Anil Kumar and Murlidhar Central Bank of India Majhagawa MP
12. MMDC No. 619614 Folio No. 12/48 dt. 50,000.00 28.12.1992 favouring Sunil Kumar and Murlidhar Dubey, Central Bank of India Majhagawa MP
13. MMDC No. 619615 Folio No. 12/49 dt. 35,000.00 28.12.1992 favouring Anil Kumar and Raj Kumari Central Bank of India, Majhagawa MP.
14. MMDC No. 619616 Folio No. 12/50 dt. 35,000.00 28.12.1992 favouring Sunil Kuamr and Raj Kumari Central Bank of India, Majhagawa, MP
15. MMDC No. 619617 Folio No. 12/51 dt. 30,000.00 14.7.1992 favouring Anil Kuamr and Manorma Central Bank of India, Majhagawa, MP
16. MMDC No. 619618 Folio No. 12/52 dt. 30,000.00 14.7.1992 favouring Sunil Kuamr and Manorma CC No. 27/2008 CBI Vs. S. P. Dubey Page 8 of 59 Central Bank of India, Majhagawa, MP
17. Indira Vikas Patras 1,50,000.00
18. Kishan Vikas Patras 9,32,000.00
19. Bank Balance A/c No. F3/803 (Rs.44,583.00) 57,583.00 Bank Balance A/C No. 17/2704 (Rs.13,000.00)
20. Plot No. 74, Harijan Basti, Palam, New Delhi 2,40,000.00 measuring 115 sqr. Yards purchased from Smt. Mewa Devi on 22.4.1992
21. Plot bearing Khasra No. 64/9/2 measuring 214 52,000.00 sqr. Yards Palam Raj Nagar, New Delhi purchased from Sh. Pawan Kumar on1 8.9.1990.
22. Cost of construction of house at Raj Nagar Palam 2,38,000.00 Colony, New Delhi.
23. Cost of Scooter No. DL IS 4039 10,000.00 Total 22,32,073.00 D: Benefit given to accused of assets purchased from known source of income.
Sl. Nature of asset Amount in Rs.
No.
1. FDR No. 48201 [Purchased from the money 50,000.00
CC No. 27/2008 CBI Vs. S. P. Dubey Page 9 of 59
drawn from his pension account P3/802 SBI,
New Katni]
2. FDR No. 48202 [Purchased from the money 32,000.00
drawn from his pension account P3/802 SBI,
New Katni]
3. Kishan Vikas Patras [Purchased from the 47,000.00
amount received after maturity of NSCs
purchased from Johnsgaj Post Office.]
4. Properties purchased in village Mudwara and 30,854.00
Khirhani (MP) [From the savings of Indian Air Force Service] CHARGE 2.0.Charge was given to the accused for commission of offence punishable under Section 13(2) read with Section 13(1)(e) of PC Act, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution has examined 37 witnesses to prove its case. These witnesses can be classified in following categories:-
(I) Witnesses from transport department (Employer of accused).CC No. 27/2008 CBI Vs. S. P. Dubey Page 10 of 59
(1) PW-14 M.K. Chopra;
(2) PW-29 Rashmi Singh, Deputy Director (Establishment), Govt of NCT, Delhi.
(3) PW-34 Kiran Dhingra, Commissioner-cum-Secretary (Transport);
(II) Witnesses from Air Force (Previous employer of accused) (1) PW-31 Sudhir Singla;
(2) PW-32 A. K. Maliwal;
(III) Witness regarding bank account of accused. (1) PW-2 Suresh Chander Chopra, (SBI Palam Colony); (2) PW-7 D. S. Nimje, (Manager, PNB, Katni Branch, Jabalpur); (3) PW-8 R. C. Kiran, (Dy. Manager, SBI New Katni Branch, Jabalpur); (4) PW-11 Tejinder Ahluwalia, (Sr. Branch Manager, PNB, Gopinath Branch,Delhi Cantt.);
(5) PW-12 Om Prakash Arora (Clerk, PNB, Gopinath branch, Delhi Cantt.);
(6) PW-27 M. N. Khan, (Manager, SBI, New Katni Branch, M.P.); (7) PW-35 Satish Parbhakar (Manager, Central Bank of India, Majha Gaon, District Katni (he handed over specimen signature card & other documents in the handwriting of the accused);
(IV)Witness from MTNL regarding telephone numbers. (1)PW-9 Inder Raj, SBE Establishment, MTNL regarding telephone no. 5620576;
(2)PW-10 Kuldeep Singh, Accounts Officers, MTNL regarding telephone no. 5620576;CC No. 27/2008 CBI Vs. S. P. Dubey Page 11 of 59
(V)Witness regarding transaction done by Manorma Dubey wife of accused (1) PW-1 Pawan Kumar;
(2) PW-16 D. D. Jain, Superintendent, DESU; (3) PW-17 S. K. Goel, UDC, in MLO, HQ, Rajpur Road, regarding registration of Scooter no. DL 1S 4039; (4) PW-19 Gurmeet Singh regarding purchase of scooter no. DL1S 4039; (5) PW-22 Mahender Singh, UDC, Zonal Revenue Official Water regarding water connection at H. No. 64/9/2, Gali No. 9, Raj Nagar, Palam Colony, Delhi;
(6) PW-28 Smt. Mewa, who sold residential plot no. A-74, Palam Village, New Delhi to Manorma Dubey;
(VI) Witness regarding investment in Post Office. (1) PW-3 Manjeet Singh, PRO, Post Office, Mayapuri; (2) PW-30 R. S. Chaudhary, Sub Post Master, Sub Post Office Jabalpur, MP;
(VII)Witness regarding agricultural land of accused and his family members at Tehshil Katani, MP.
(1) PW-33 Munna Lal Patel;
(VIII) IO & other witnesses who joined investigation. (1) PW-5 A. K. Kapoor, Inspector, CBI, ACB; (2) PW-6 Udey Kumar, Asstt. Manager, FCI, who joined raid at Burari. (3) PW-26 Ravinder Kumar, Technical examiner in CVC (did valuation of property no. RZ 429, Gali No. 9, Raj Nagar, Palam, New Delhi of accused);CC No. 27/2008 CBI Vs. S. P. Dubey Page 12 of 59
(4) PW-36 Sh. P. K. Gunwant, Inspector, CBI ACB; (5) PW-37 Azad Singh, Inspector, CBI ACB;
(IX)Other witnesses (1) PW-13 Rajesh Kumar, sold one stabilizer to accused; (2) PW-15 Santosh Kumar Kaul regarding fee paid by Anil Kumar Dubey son of accused at NIIT;
(3) PW-18 Mukesh Bhatt regarding gas connection in the name of accused;
(4) PW-25 Rajesh Mishra, Patwari, Tehshil Dhimera Kherai, District Jabalpur, MP (regarding agricultural land owned by Om Prashad Dikshit.
(X) Family members of accused (1) PW-23 Murli Dhar;
(2) PW-24 Raj Kumari;
Statement of accused & defence evidence 4.0After prosecution closed its evidence, the statement of accused under Section 313 Cr.P.C was recorded wherein he stated that it is a false case and he has been falsely implicated.
4.1In defence evidence accused examined 10 witnesses. DW-1 Bhagwat Prasad Dubey, cousin brother of the accused; DW-2 Yaadvender Singh, Patwari village Nighara Tehshil Badwara, District Katni, MP; DW-3 Pramod Dixit, brother-in-law of accused; DW-4 Sharad Kumar, a farmer of the village Nighara; DW-5 Sergeant K. V. Rajesh from Indian Air Force Record Office; DW-6 Sergent A. K. Yadav, Indian Air Force Central CC No. 27/2008 CBI Vs. S. P. Dubey Page 13 of 59 Accounts Office; DW-7 Sh. Satish Kumar, UDC from MCD House Tax department; DW-8 Mahesh Chand, District Nazir in the office of Collector, Jabalpur, M. P.; DW-9 Manohar Singh Rathore, Record Keeper, Punjab National Bank, Sadar Bazar Branch, Jabalpur; and DW-10 Sh. Kamlesh Pandey Basta Bardat, i.e. Daftri/Record Keeper, Collectorate Office, District Katni, M. P. The contentions raised by both parties.
5.0Heard arguments of Sh. Anil Tanwar, Ld. PP for CBI and Sh. Y. Kahol, Ld. counsel for accused. Perused the record. Ld. PP has submitted that prosecution has been able to prove to the hilt that the accused was having disproportionate assets to the tune of Rs. 17,97,709/- and percentage of disproportionate assets comes out to 265%. It is stated that various MBDS and MMDC were acquired by the accused during the check period though he has failed to explain the source of these purchases but fairly benefit of interest accrued on these instruments to the tune of Rs. 1,22,002/- has been given to the accused at this amount has been taken as his income. It is stated that even agricultural income of the parents of accused has been considered as his income. It has been urged that income of accused earned through his salary before the start of check period cannot be added in his income during the check period as the burden is upon accused to prove that at the beginning of the check period, he was in possession of particular money or assets. It is stated that accused has amassed various assets on the name of his family members comprising his wife and two minor sons and there is no evidence if his family members had any independent source of income. It is stated that four assets worth Rs. 1,60,000/- are not added in the assets of the CC No. 27/2008 CBI Vs. S. P. Dubey Page 14 of 59 accused, as during investigation accused was able to show the source of income of these assets. Ld. PP has also filed written submissions.
5.1Sh. Y. Kahol, ld. counsel for accused submitted that accused has rendered 22 years of service in Indian Air Force and at the time of his discharge from service, he had received one time pensionary benefits and also receiving monthly pension regularly till date. It is urged that it is a fact of common knowledge that in Armed Forces officials get free ration and other articles on heavy discount availing CSD canteen facility. It has been stated that during most of service in Air Force, accused remained posted outstation, as a result of which his family used to be with his parents. It is stated that as a result of that accused was able to save his entire salary. It is contended that deliberately, CBI has calculated agricultural income of accused as well as his parents to the lower side to make a false case. Ld. counsel has further submitted that Sh. Om Prakash Dixit, father-in-law of accused was prosecution witness but having died, he could not be examined but his statement Ex. PW 36/D1 has to be read in evidence. It is stated that on the basis of this statement benefit, whatever accused deserves, needs to be given to him.
5.2Sh. Y. Kahol, has further submitted that while calculating the expenditure, 30% of the total income has been taken as non-verifiable expenditure. It is stated that IO has admitted during his cross- examination that armed force officials even after retirement avail CSD canteen facility but while calculating expenditure, he has ignored this benefit available to the accused. It is further submitted that accused being in government service had facility of school fee reimbursment and the fee paid by him for his children need not be counted in the expenditure. It CC No. 27/2008 CBI Vs. S. P. Dubey Page 15 of 59 has been argued that various MBDS, MMDC, IVP and KVP were purchased by the accused either from his previous savings, his agricultural income or from the agricultural income of his parents. It is stated that same should not be added in the assets of the accused. Ld. defence counsel on behalf of the accused has further urged that even the valuation of the plot at Harijan Basti, Palam and costs of construction of the house at Raj Nagar, Palam Colony has been taken on the higher side. Ld. counsel has also filed comparative chart and written submissions.
5.3Sh. Y. Kahol in support of his contentions has relied upon the following judgments:
(i) Krishnanand Agnihotri Vs. State of M. P. [1977 Crl. Law Journal 566];
(ii) Gunjit Singh Vs. State [62(1996) DLT 202],
(iii) Jastinder Singh Vs. State [2000VII AD (Delhi) 231],
(iv) State of Maharashtra Vs. Pollonji Darbasha Daruwalla [AIR 1988 SC 88],
(v) Ashok Tshering Bhutia Vs. State of Sikkim [2011(2) CCCases (SC) 47] and
(vi) Jaydayal Poddar (deceased) through Lrs & anr. Vs. Bibi Hazra [AIR 1974SC 171].
APPRECIATION OF EVIDENCE INCOME OF ACCUSED 6.0. The Ld. counsel for the accused has not disputed the items no. 1 to 6 under this head, as mentioned in the charge sheet. He is disputing the items no. 7, 8 & 9 contending that agricultural income of accused is CC No. 27/2008 CBI Vs. S. P. Dubey Page 16 of 59 taken on the lower side by the CBI and as per statement of PW-23 and PW-24 it should have been Rs. 4,80,000/-.
6.1. Perused the evidence led by the prosecution to prove the admitted items under this head and the same stands duly proved.
6.2. Ld. PP submitted that statements of PW-22 and PW-24 are not inspiring confidence as they are parents of the accused. It is stated that PW-33 Sh. Munna Lal Patel is the patwari of halka 73/81 Tehshil Katna, Madhya Pradesh, where the property on the basis of which accused is claiming agricultural income is situated. PW-33/A to F are attested copies of khasras mentioning various land holdings on the name of accused and his parents, in the area of village Nigehra. PW-33/G, G-1 to G-6 are the calculations regarding the details of annual income from agricultural land for the period 1990 to 1996 filed by PW-33. As per PW-33 same are in his handwriting, signed by him and also countersigned by Tehshildar. These documents were seized by the I.O. vide seizure memo Ex. PW 33/H. 6.3. On the basis of documents Ex. PW 33/G, G-1 to G-6, the calculations of income during check period pertaining to items no. 7 to 9 are as follows (shown in chart below):-
Sl. No. Year Name of the owner Ex. Income Remarks
1. 198990 Murlidhar PW 33/G 10,193/ As per (father of accused) record Murdhiar is CC No. 27/2008 CBI Vs. S. P. Dubey Page 17 of 59 owning ½ land, total income halved.
2. 199091 do PW 33/G1 21,943/
3. 199192 do PW 33/G2 18,223/
4. 199293 do PW 33/G3 21,530/
5. 199394 do PW 33/G4 24,625/
6. 199495 do PW 33/G5 43,304/
7. 199596 do PW 33/G6 30,055/ Total 1,69,873/
1. 198990 Raj Kumari PW 33/G 2,455/ (mother of accused)
2. 199091 do PW 33/G1 2,420/
3. 199192 do PW 33/G2 691/
4. 199293 do PW 33/G3 620/
5. 199394 do PW 33/G4 2,660/
6. 199495 do PW 33/G5 5,630/
7. 199596 do PW 33/G6 7,536/ Total 22,012/
1. 198990 S.P. Dubey PW 33/G 2,384/ (Accused) CC No. 27/2008 CBI Vs. S. P. Dubey Page 18 of 59
2. 199091 do PW 33/G1 1,565/
3. 199192 do PW 33/G2 4,603/
4. 199293 do PW 33/G3 3,645/
5. 199394 do PW 33/G4 3,220/
6. 199495 do PW 33/G5 4,630/
7. 199596 do PW 33/G6 4,640/ Total 24,687/ Since there are divided by 3 3 owners of the property, his =8229/ income is taken as 1/3rd.
6.4 Ld. defence counsel has claimed landholdings of Murlidhar (PW-23) are much more than taken and considered by CBI.
6.5To prove the land holding of Murlidhar, father of accused, Ld. defence counsel has relied upon statements of DW-1, DW-4 and DW-10.
6.6 The parents of accused are examined as PW-23 and PW-24. PW-23 Sh. Murlidhar has deposed that he was having agricultural land measuring 14-15 acres in village Nighera including land 1½ acres owned by his wife Smt. Raj Kumari. He earned Rs. 80,000/- to Rs. 1,00,000/- yearly from agricultural produce after deducting the expenses. He has no documentary evidence regarding his agricultural income. He has two sons, i.e. accused and Rameshwar Prasad. He has separated Rameshwar Prasad from his family. He has been giving Rs. 60,000/- to CC No. 27/2008 CBI Vs. S. P. Dubey Page 19 of 59 Rs. 70,000/- per year to the accused out of his agricultural income.
6.7 PW-24 Smt. Raj Kumari, mother of the accused has also deposed exactly same facts as deposed by PW-23.
6.8 Both are prosecution witness and Ld. PP cannot contend now that they being parents of accused are not inspiring confidence. Both these witnesses have also been not cross-examined by the prosecution, proving that they have deposed some facts as mentioned by them in their statements recorded under Section 161 Cr.P.C. during investigation.
6.9 DW-1 Bhagwat Prasad Dubey is the cousin brother of the accused.
As per him, in the year 1954 his father Shobha Ram and Murlidhar, father of accused, had jointly purchased land measuring approximately 5½ acres on his name as well as on the name of the accused. They both were minors at that time. He produced original sale deed regrading this land as Ex. DW 1/1. He further deposed that father of accused was also known as Murari. In Jamabandi for the year 1954, his father Shobha Ram and Murari, both sons of Ram Dayal are shown in possession of land measuring 37.40 acres falling in Khasra No. 330, situated in Mauza Nighara, Bandobast No. 550, Halka No. 81. He proved this document as Ex. DW 1/2. He further proved mark DW 1/3 containing 137 sheets, all certified copies of Kishtbandhi Khatoni Gram Form, village Nighara.
6.10 DW-1 further deposed that land measuring 5½ acres and 37.40 acres used to be cultivated by father of accused, who generally retain the income therefrom. Sometime in the year 1969-70, there was partition CC No. 27/2008 CBI Vs. S. P. Dubey Page 20 of 59 between his father and Murlidhar Dubey. This witness was cross- examined by Ld. PP, CBI but nothing has come on record worth mentioning or discrediting his testimony.
6.11 To further support documents Ex. DW 1/3, accused has examined DW-10 Kamlesh Pandey, Basta Bardat (Daftri/Record Keeper) from Collectorate Office district Katni, M. P. This witness appeared with original record pertaining to 1962-63 (Fasli) upto 1989-90 (Fasli). There is specific observation of the court that record produced by this witness have been duly checked by the court and the same is found to be in accordance with the corresponding certified copies which form part of mark DW 1/3.
6.12 Though document DW 1/3 was marked during statement of DW-1 but in view of the statement of DW-10, since the same stands compared with the original by the court, this record accordingly sands duly proved.
6.13 During the course of arguments, proposition which emerges is if Murlidhar had capacity to pay, an amount which he had claimed to have paid while deposing as PW-23 before this court. Ld. defence counsel has claimed Murlidhar with his brother Shobha Ram had total agricultural land measuring 37.40 acres but in the record produced by prosecution, i.e. Ex PW 33/G, G-1 to G-6, his landholding along with his brother Shobha Ram is shown 6.2 Hectares only.
6.14 It is relevant to mention here that 1 Hectare is equal to 10,000 meters which is equal to 2.471 acres.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 21 of 591 Acres is equal to 4840 sq. yards.
6.15 Ex. DW 1/2 is the Jamabandi of land of Shobha Ram and Murari both sons of Ram Dayal. DW-1 has stated that Murlidhar was also known as Murari. As per this document, Murlidhar with his brother Shobha Ram was in possession of land measuring 37.40 acres. His half share comes out to be 18.7 acres, i.e. 07.56 Hectares. Ld. defence counsel has submitted that PW-23 is an illiterate person and has stated that he is having agricultural land measuring 14-15 acres in village Nighara. I agree with the contention raised by Ld. defence counsel that Ex. DW 1/3 corroborate the statement of PW-23 regarding his land holdings. Though DW-1 was cross-examined by Ld. PP but nothing has come on record to discredit the document Ex. DW 1/2 and DW 1/3.
6.16 Ld. defence counsel has further contended that as per Ex. PW 33/G, G-1 to G-6, accused was holding 1/3rd share in the total land measuring 0.43 Hectares, but as per mark DW 1/3, he along with Bhagwat Prasad (DW-1) was holding 05.56 acres of agricultural land. The record mark DW 1/3 as already discussed stands duly proved, as the same being compared by the court with the original produced by DW-10 from the office of Collectorate, District Katni, M. P. As per Ex. DW 1/3, i.e. Kishtbandi Khatoni Village Nighara, land holding, on the name of accused jointly with his cousin Bhagwat Prasad Dubey is shown as 05.56 acres.
6.17 Where two conflicting evidence come on record showing different landholdings of accused, certainly the evidence showing more land to accused needs to be taken.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 22 of 596.18 It is relevant to mention here that as per Ex. PW 33/G, G-1 to G-6 accused is shown holding 1/3rd share in 0.43 Hectares of land. Accordingly, share of accused in this land comes out to be 0.354 acres. Whereas, as per Ex. DW 1/3 his share in the land comes out to be around 2.8 acres.
6.19 PW-23 has deposed that he used to give Rs. 60-70 thousand every year to accused. The check period is from 23.05.1989 to 21.08.1995, i.e. about 6 years & 3 months. Taking Rs. 65,000/- per year, being given by PW-23 to accused, the total amount during the check period comes out to be Rs. 4,33,000/-.
6.20 To further supplement his contention that PW-23 had the capacity to pay money to accused as claimed by him in his deposition, accused has examined DW-4 Sharad Kumar. Who deposed that his fields are adjoining to the fields of the accused. 4 Trees of Mangoes and 7 Trees of Mahua exists in the field of the accused. Initially his father used to look after the said trees and thereafter he started looking after the same. Before 1980, his father used to pay Rs. 1,000/- per annum to Sh. Murlidhar. Between 1980-90, his father started paying Rs. 7,000/- per annum to the father of the accused. To support statement of DW-4, Ld. defence counsel has relied upon Ex. DW 1/3, as per which trees of Mangoes and Mahua are shown on the land in the joint name of the accused.
6.21 The agricultural income of accused in the charge sheet has been CC No. 27/2008 CBI Vs. S. P. Dubey Page 23 of 59 shown as Rs. 2248/- but as discussed in para 5.3 on the basis of documents Ex. PW 33/G, G-1 to G-6, his income comes out to Rs. 8229/-. As discussed earlier, accused has been able to establish on recored that he was holding 2.78 acres of agricultural land instead of 0.354 acres as claimed by prosecution. The land hold by accused is found 8 times more than claimed by prosecution. Accordingly, his agricultural income comes out to Rs. 8229 X 8 = 65,832/-.
6.22 Adding items no. 7 to 9, the total agricultural income of accused comes out Rs. 5,21,154/-. Adding items no. 1 to 6, i.e. Rs. 4,74,229/-, the total income comes to Rs. 9,95,383/-.
Additional Income Claimed before check period invested during check period.
7.0 The accused has claimed following additional income:
Sl. No. Source of income Amount
1. Money received by wife of accused from her father 4,20,000/
2. Onetime pensionary Benefits from Air Force Service 1,04,230/
3. Salary received during service at Air Force (approx) 4,73,692/
4. Money in SB PNB, New Katni Branch 36,660/
5. Money SB account, transferred from SBI Jabalpur MP 51,833/
6. Money in SBI Palam Bank Account no. 76/16335 2,812/
7. Income of accused from agricultural income (approx) 50,000/
CC No. 27/2008 CBI Vs. S. P. Dubey Page 24 of 59
8. Money in SB A/C no. 39937 at PNB Jabalpur, Cantt. 48,020/
Sadar
9. IAF allowance (ration money, JRRA, LRRA etc). 1,76,731/
Total:
7.1 Ld. defence counsel has claimed Rs. 4,20,000/- additional
income to be reckoned being received by wife of accused Smt. Manorma Devi from her father before and during the check period.
7.2 Ld. defence counsel has contended that Ex. PW 36/D1 is the statement of Sh. Onkar Prasad, who is father of Manorma Devi and father-in-law of accused. It is stated that he was cited as prosecution witness but admittedly he died and could not be examined before the court and IO PW-36 has exhibited his statement recorded by him under Section 161 Cr.P.C. It is stated that this statement can be read in evidence in view of the provisions of Section 32 of Indian Evidence Act.
7.3On the other hand, Ld. PP submitted that statement of Sh. Onkar Prasad cannot be read in evidence as he has not come in the witness box and this statement is nothing more than hearsay.
7.4Sh. Onkar Prasad was prosecution witness. I.O. (PW-36) has admitted to have recorded his statement under Section 161 Cr.P.C. Accordingly, if this statement is beneficial to accused in any manner, the same has to be read in evidence in his favour. Moreover, Ld. defence counsel has relied upon documents seized by IO vide seizure memo Ex. PW 25/A to corroborate the statement of Sh. Onkar Prasad.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 25 of 597.5 In his statement Ex. PW 36/D1 Sh. Onkar Prasad has stated that Manorma Dubey is his daughter from first wife. He has about 16-17 acres of land out of which 8-9 acres is irrigated and he had decided to give half of his property to her. He has yearly income, after deducting his expenses on agriculture, worth Rs. 2.50 lacs. He has given Rs. One lac for construction of house which is about 20 years back in cash. Since 8 years, he is giving Rs. 30-40 thousand per year to his daughter in respect of land which he has given to her.
7.6 Ex. PW 25/A is the seizure memo vide which IO (PW-25) had seized kishtbandi of the land of village Hardi in the name of Onkar Prasad son of Jai Ram from Sh. Rajesh Kumar Mishra, Patwari, House No. 97/115, Tehshil Sihora, District Jabalpur, M. P. As per Kishtbandi duly attested by revenue authority, Onkar Prasad was having 4.99 acres irrigated land and 8.59 acres of unirrigated land. During 1995-96, he had income of Rs. 49,000/-, after deducting of the expenses, from this land.
7.7 The Kishtbandi seized by IO vide seizure memo Ex. PW 25/A corroborates the statement of Onkar Prasad Ex. PW 36/D1, establishing his landholding.
7.8 The Kistbandhi of the agricultural land of Sh. Onkar Prasad, father-in- law of accused, establishes his annual income from agricultural to be around Rs. 49,000/-. Whereas in his statement Ex. PW 36/D1 recorded under Section 161 Cr.P.C., he has claimed that he had agricultural income of Rs. 2.50 lacs after deducting expenses per annum. The same CC No. 27/2008 CBI Vs. S. P. Dubey Page 26 of 59 is in contradiction to the record seized by the I.O. vide seizure memo Ex. PW 25/A. However, keeping in view the fact mentioned in Ex. PW 36/D1 that father of Smt. Manorma Devi had decided to give to her half of his property, in my view considering his annual income and other children, he might have been giving her Rs. 10-15 thousands per annum. Liberally construing it in favour of accused, the same is taken as Rs. 15,000/-. Accordingly, for 8 years, it is taken that wife of accused might have received Rs. 1,20,000/- from her father. This amount needs to be reckoned in the income of the accused.
7.9 Ld. defence counsel has further claimed Rs. 1,04,230/- to be reckoned at one time pensionary benefits received by accused from Air Force.
7.10 To establish this amount, Ld. defence counsel has relied upon testimony of PW-31, PW-32 and PW-37. PW-31 Sudhir Singla was Secretary of Group Insurance Society, Subarto Park, New Delhi in the year 1996. He proved letter Ex. PW 31/A, as per which a sum of Rs. 5,317/- was paid to Sargent Shankar Prasad Dubey by the society vide cheque no. 221444 dated 01.09.1987.
7.11 PW-32 A. K. Maliwali was working as Officer In-charge Airman, Air Force, Central Accounts office, New Delhi. He proved Ex. PW 32/A (D-34), as per which Rs. 19,668/- was paid to accused in September 1987, on account of AFPP Fund, final balance. Ex. PW 37/C is the letter written by Sh. P. C. Kundra from Air Force record office to SP CBI dated 18.01.986 mentioning that accused has been paid the following amount at the time of his discharge from service, i.e. 01.08.1987 as per service record held in this office:
CC No. 27/2008 CBI Vs. S. P. Dubey Page 27 of 59 Sl. Head of payment Amount (Rs.)
No.
1. Pension sanctioned per month for leave 705/-
with relief as applicant time to time
2. Death cum retirement gratuity. 18,875/-
3. Commutation Pension. 60,370/-
Total Rs. 79,950/
7.12 Accused has also claimed benefit of salary to the tune of Rs.
4,73,692/- received by him during his service with Air Force. It is
admitted case of the prosecution, moreover from statements of PW 31 and PW-32, it stands established that accused had served in Indian Air Force and was discharged from service on 01.09.1987. To bring home his point, Ld counsel has also relied upon statement of DW-6 Sergeant A. K. Yadav, where he has stated that as per last pay certificate of accused Ex. PW 6/2, his basic pay was Rs. 1510/-.
7.13 The Ld. counsel has submitted that accused has rendered 20 years of service as sergeant armed force soldier and another two years for reserved force. It is stated that during this period, he has earned Rs. 4,73,692/- as salary. It is stated accused mostly remained posted at non- family stations where Air force used to bear his expenses including rationing, whereas his family used to stay with his parents. It is stated as a result of that, accused used to save his entire salary/income.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 28 of 597.14 No evidence has been led by accused to establish the quantum of salary earned by him during this period of 22 years in the Air Force.
7.15The law is settled that in such cases income earned by accused during check period has to be taken into consideration while calculating disproportionate assets. In calculating disproportionate assets, from the assets of the accused found at the end of the check period, assets in possession of the accused at the beginning of the check period needs to be deducted. No doubt accused might have earned salary during his 22 years of service in armed forces. The burden was upon him to establish that where his salary was lying and in which form, at the beginning of the check period. No evidence to this effect was led by the accused.
7.16 The Ld. Defence counsel has relied upon State of Maharashtra Vs. Pollonji Darabshaw Daruwalla (supra), where Apex court has observed that assets spilling over from the anterior period, if their existence is probablized would of course have to be given credit on the income side and would go to reduce the assets and the quantum of disproportion.
7.17 Existence of assets prior to check period can only be probablized by accused by leading evidence. The assets held by accused prior to check period ought to have been in his possession and cannot be assumed on notionality. Accordingly, this income claimed by accused earned from Indian Air Force cannot be reckoned while calculating his disproportionate assets. Moreover, it is relevant to mention here that whatever the amount was lying deposited in his bank accounts has been duly considered under respective heads and further the household assets found in his house CC No. 27/2008 CBI Vs. S. P. Dubey Page 29 of 59 while preparing observation memo Ex. PW 5/D, purchased prior to the check period will also be considered while calculating his assets.
7.18 Regarding the claim made by accused seeking benefit of one time pensionary benefits and the salary received by him from Indian Air Force, Ld. PP has contended that same cannot be considered as income of accused during the check period. It is stated that in charge sheet, benefit of 4 assets was given to accused which he had claimed to have purchased from his income as well as pension from Indian Air force.
7.19 As per charge sheet, accused has been given benefit of following 4 assets:
Sl. Nature of asset Amount in Rs.
No.
1. FDR No. 48201 [Purchased from the money 50,000.00
drawn from his pension account P3/802 SBI,
New Katni]
2. FDR No. 48202 [Purchased from the money 32,000.00
drawn from his pension account P3/802 SBI,
New Katni]
3. Kishan Vikas Patras [Purchased from the 47,000.00
amount received after maturity of NSCs
purchased from Johnsgaj Post Office.]
4. Properties purchased in village Mudwara and 30,854.00
Khirhani (MP) [From the savings of Indian Air CC No. 27/2008 CBI Vs. S. P. Dubey Page 30 of 59 Force Service] 7.20 Keeping in view these facts and the benefit of 4 above mentioned assets given by CBI to accused, this contention of the accused that his one time pensionary benefits and salary received from Air Force be considered as his income, is not tenable.
7.21 Accused has further claimed that amount of Rs. 36,660/- lying in SB account no. 4665 with PNB New Katni Branch was also not considered by CBI and same should be considered.
7.22 PW-7 D. S. Nimje posted as Manager, PNB, Katni Branch, District Jabalpur, on 22.2.1996 was examined by prosecution in this regard. He has filed statement of account of accused as Ex. PW 7/B. As per Ex. PW 7/B on 17.12.1988 accused had balance of Rs. 12,628.75 in his account. Thereafter before the beginning of the check period, there is withdrawal of Rs. 12,500/- by the accused and Rs. 112.10ps was paid as interest. Therefore, accused had negligible balance in this account at the beginning of the check period.
7.23As per Ex. PW 7/B on 13.01.1994, the balance of Rs. 7755.05 was transferred to the account of accused at New Delhi. This amount was transferred to account no. 33977 at Gopi Nath Bazar. As per PW-11 Sr. Branch Manager of PNB, Rs. 7755/- was received by transfer from Katni Branch on the name of accused. From this account two FDRs of Rs. 30,000/- each and two FDRs of Rs. 10,000/- each were issued in the name of accused and his family members. Accused and his family CC No. 27/2008 CBI Vs. S. P. Dubey Page 31 of 59 members invested Rs. 80,000/- for purchasing these FDRs. Ex. PW 11/E is the passbook for this account and Ex. PW 11/F-1 to F-4 are FDRs prepared from this account. The passbook Ex. PW 11/E is only upto 10.12.1994. FDRs Ex. PW 11/F-1 to F-4 were prepared in the month of December, 1994 for one year. Ex. PW 11/A to D are 4 receipts dated 19.09.1992, 07.07.1991, 19.09.1992 and 13.07.1991 for Rs. 30,000/-, Rs. 10,000/-, Rs. 30,000/- and Rs. 10,000/- respectively. FDRs (Ex. PW 11/F-1 to F-4 are for Rs. 14,678/- (on the name of accused), Rs. 37,627/- (on the name of Sunil under guardianship of Manorma Dubey), Rs. 37,627/- (on the name of Anil Kumar) and Rs. 14,688/- (on the name of Anil Kumar another son of accused). Accordingly, these FDRs were got encashed after the check period. It is apparent from this record that the maturity amount of FDRs deposited vide receipts Ex. PW 11/A to D was further put in FDRs. As these FDRs were done within the check period, the same needs to be counted as assets of accused. In the chargesheet in assets, item no. 3, 4, 5 and 7 reflect these four FDRs as assets of the accused. Accused has failed to explain satisfactorily as to how he has calculated this figure of Rs. 36,660/- which he is claiming to be his income. In view of the aforesaid reasons, this figure or any other figure cannot be reached in the income of the accused.
7.24 The accused has further claimed that Rs. 51,833/- was lying deposited in SB account P-3/803 which was a transferred account from SBI Jabalpur, M.P. 7.25 The Ld. PP submits that whatever was the bank balance in this account has been considered in item no. 19 under assets head.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 32 of 597.26 As per charge sheet, in assets head item no. 19, bank balance of Rs. 44,583/- has been taken in account no. P-3/803, New Katni Branch. The balance of Rs. 51,833/-, as claimed by the accused was balance in June, 1988. As per passbook there was balance of Rs. 44,538/- in this account at the just beginning of the check period and same has been considered. (though wrongly as Rs. 44,583/-) under assets head. While discussing assets, this amount will be discussed.
7.27 Ex. PW 8/E is the statement of account of account no. 3/803 of SBI Katni, M.P. in the name of accused. As per which, there was balance of Rs. 44,583/- on 28.07.1995. As per Ld. counsel for accused, monthly pension of accused from Air Force used to be deposited in this account. It is apparent from the perusal of the statement of account that every month, some amount was deposited in this account of the accused. This is income of the accused received from pension. On account of pension received by accused during the check period, income of Rs. 67,162/- has already been reckoned in the charge sheet.
7.28 Accused has further claimed that amount of Rs. 13,000/- lying in RD account no. 17/2704, SBI New Katni Junction, is also income earned by him during the check period and same should also be added in his income. Ex. PW 8/F is the copy of statement of account of this account. As per this statement of account between Sept. 94 to Sept. 95 Rs. 13,000/- was deposited. What is the source of this money deposited in the account of accused, accused has failed to explain. Accordingly, this amount cannot be taken as income of the accused during the check period. It is relevant to mention here that this amount has been taken as assets of the accused, reflected in item no. 19 in assets head.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 33 of 597.29 Accused is claiming additional income of Rs. 2812/- lying in his account at SBI Palam account no. 76/16335. As per PW-2 vide document Ex. PW 2/B, account of accused was received on transfer and new account no. was given to the account holder. At the tme of transfer of account, there was balance of Rs. 417.65ps. As per statement Ex. PW 2/D, the last balance on 18.01.1996 was Rs. 2812/-. As per this record, this account was transferred on 14.09.1990 to SBI Palam Colony. From where money was deposited in this account, the burden was upon the accused to establish, which he has failed to do. Therefore, outstanding balance in this account on the last day of the check period cannot be taken as his income.
7.30Accused has further claimed balance of Rs. 50,000/- to be counted as his income on the basis of agricultural income before the check period stating that same was invested by him during the check period. Whatever is the agricultural income of the accused during the check period has already been taken. If accused had this asset with him before the check period, the burden was upon him to establish it.
7.31Accused has further claimed income of Rs. 48020/-. Ex. PW 12/A is the production-cum-seizure memo containing original account opening form of multi benefit FDR ccount and saving fund account no. 33977 in the name of the accused, produced by clerk of Punjab National Bank, Gopi Nath Bazar, Delhi Cantt. As per copy of statement of account, certain amounts were deposited in this account and in July, 1995, there was balance of Rs. 14,768/-. The burden was upon accused to establish that from where this money had come, which he has failed to explain.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 34 of 59Hence, he does not deserve any benefit from it.
7.32Accused has further claimed benefit of Rs. 1,76,721/- on account of IAF allowances. No details have been given by Ld. counsel for the accused that on what basis, he has arrived at this figure. The contention of the accused seeking one time pensionary benefits has already been denied. Whatever pension accused has received during check period has been duly counted. I find no substance in this benefit claimed by accused.
7.33In view of the aforesaid reasons, accused was entitled to additional income of Rs. 1,20,000/-.
Expenditure 8.0 Accused has not disputed item no.1, i.e. registration fee for new telephone connection of Rs. 1,000/-. PW-9 Sh. Inder Raj has proved the payment of this amount by wife of accused for MTNL connection.
8.1 Accused has disputed item no.2 vide which Rs. 3650/- has been taken as expenditure on account of purchase of stabilizer. PW-13 Sh. Rajesh Kumar has deposed that on 04.04.1995, he had sold, one 6 KVA voltage stabilizer to accused for Rs. 3650/-. During his cross- examination, he has admitted that cost of Bluebird stabilizer is not more than Rs. 2200/-. No document in this regard has been exhibited by the prosecution. Accordingly, as stated by accused cost of stabilizer is taken as Rs. 2200/-.
8.2 Accused has further disputed the fee paid by his son Sunil Kumar (item no.3) to NIIT, Rajouri Garden of Rs. 23,300/- and school fee CC No. 27/2008 CBI Vs. S. P. Dubey Page 35 of 59 paid by his son Anil Kumar (item no.6) of Rs. 1620/- plus Rs. 525/-. The contention raised by ld. defence counsel that accused being retired Air Force Officer and being in government service was entitled to reimbursement of the school fee, is not tenable as no such rule whereby accused was allowed such reimbursement has been filed. If any such reimbursement has been sought by the accused, the same could have been easily proved by summoning the record from the department.
8.3PW-15 Santosh Kumar Kaul, Cashier NIIT has proved the details of the fee paid. Ex. PW 15/D to E are documents regarding fee paid by accused for his son Sunil Kuamr Dubey. As per these documents, fee paid by son of accused is rightly taken as Rs. 23,300/-.
8.4Item no. 4 & 5 are regarding payment of DESU bills between 3rd Feb. 1992 to 1995 and DESU installation charges of K. No. 503/125796/DF. To prove this expenditure, prosecution has examined PW-16 Sh. D. D. Jain. He was working as Accounts Superintendent in DESU, Vikas Puri, New Delhi. D-16/A is production-cum-seizure memo vide which PW-16 had handed over documents regarding electricity connection in the name of Smt. Manorma Dubey. PW 16 has proved Ex. PW 16/D vide which Rs. 1836/- stands paid by Smt. Manorma Dubey against this electricity connection between 1994 to 1995. Ex. PW 16/C is the statement of account of this K. No., as per which accused had paid Rs. 2138/- from Feb. 1992 till July, 1996. As the check period is upto 21.08.1995, the amount paid on account of electricity is taken as Rs. 1800/-. Accordingly, in item no. 4 expenditure of Rs. 1836/- is rightly taken but for item no. 5, amount spent on electricity is Rs. 1800/- instead of Rs. 3168/- (as mentioned in charge sheet).
CC No. 27/2008 CBI Vs. S. P. Dubey Page 36 of 598.5 Ex. PW 37/D is the certificate issued by Principal, Kendriya Vidyalya School No. 1, Sadar Bazar Road, Delhi Cantt. to the I.O. As per annexure of it, accused had paid tuition fee, pupil fund fee of Rs. 1620/- for the period 04.07.1989 to 31.03.1996. The fee paid by accused from 01.05.1995 to 31.03.1996 comes out to be Rs. 435/-. The same being beyond the check period cannot be counted. Accordingly, fee paid by accused for education of his son Sunil Kumar is taken as Rs. 1620-435 = Rs.1185. (Item no.6).
8.6 Ld. defence counsel has further contended that item no. 7 & 8 are on account of LPG expenditure and the same is got covered under non-verifiable expenses.
8.7 As per observation of Apex Court in Sajjan Singh [AIR 1964 SC 464], 1/3rd is deducted on the basis of non-verifiable expenses. The expenses on gas appears to be verifiable. Ex. PW 18/A is the letter by PW-18 Mukesh Bhatt, proprietor of M/s Gauri Enterprises, dealing in LPG connections of Indian Oil. As per this letter accused had deposited total security of Rs. 950/- on 10.08.1990 and had consumed total gas worth Rs. 4108.87ps. Accordingly, this figure in item no. 7, i.e. Rs. 5059/- is rightly taken as expenses of accused during the check period.
8.8 As per IO PW-37, he had collected documents from Sh. Narender Dhingra, proprietor of M/s Fairways Store regarding purchase of gas stove by paying Rs. 562/-. Ex. PW 37/J-1 to J-3 are documents stated to be seized by the IO in this regard. These documents are not CC No. 27/2008 CBI Vs. S. P. Dubey Page 37 of 59 properly proved as the person who had issued these documents and had received payment has not been examined. Therefore, this amount of Rs. 562/- cannot be taken as expenditure made by accused. (Item no.
8) 8.9. Under this head, main expenses attributed to accused is Rs. 2,03,692/-, i.e. 30% of his total income on account of non-verifiable expenses. 1/3rd of the total income is attributed to non-verifiable expenses on the basis of observation made by Hon'ble Apex Court in Sajjan Singh Vs. Punjab (supra) 8.10 Ld. counsel for accused has contended that this is an exorbitant figure taken by prosecution ignoring the fact that accused is retired officer from Air Force and getting various allowances and facilities like medical facility for himself and his dependent as per ECHS Rules, washing allowance, children education allowance, living out ration allowances etc. It is stated that accused is also entitled to CSD canteen facilities even after his retirement. To support his submissions, Ld. counsel has relied upon statement of DW-5 & DW-6, both Air Force officials. DW-5 Sergeant K. V. Rajesh from Indian Air Force Record Office Subarto Park deposed that he has brought the service record of accused. As per which accused retired as Sergeant on 31.08.1987. He being a retired officer of Indian Air force is entitled for medical facilities for himself as well as dependent as per Employees Service Contributory Health Scheme Rules. Air Force Officers are also entitled for daily rationing for himself and even the officials who is on annual leave for two months, he is entitled to ration money. DW-6 Sergent A. K. Yadav, Indian Air Force Central Accounts Office produced last pay certificate of CC No. 27/2008 CBI Vs. S. P. Dubey Page 38 of 59 the accused, as per which his basic pay was Rs. 1510/-. As per him non- commissioned officers are entitled to various allowances besides the basic pay during service and after retirement from Indian Air force, officers are entitled to CSF canteen facilities.
8.11 Normally in view of the observations made by Apex Court in Sajjan Singh (supra), 1/3rd of the total income is deducted on account of non-verifiable expenses. But here CBI has deducted 30% of the total income. There is no doubt that the retired officers of Armed Forces get articles of daily use on discount from CSD canteen. What articles of day to day requirement are available in CSD canteen and at what discount, no such evidence has come on record. I understand that even it was impossible for the accused to bring such evidence on record. In these circumstances, in my view only 20% of the total income needs to be deducted on account of non-verifiable expenses. Accordingly, rounding off the figures, in place of expenditure of Rs. 2,03,692/-, 20% of the total income on account of non-verifiable expenses, i.e., Rs. 1,35,000/-, is taken as non-verifiable expenses. (Item no.9).
8.12 In view of the aforesaid reasons, the total expenses incurred by accused during check period comes out to be Rs. 1,71,380/-.
Assets 9.0 Ld. counsel for the accused has submitted that household goods calculated vide observation memo Ex. PW 5/D is erroneous and even cash of Rs. 5600/- stated to have been recovered vide this observation memo has been counted twice, one in item no.1 and second as item no.2.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 39 of 599.1 Ex. PW 5/B is observation memo prepared by Sh. A. K. Kapoor, Inspector, CBI on 21.08.1995, when he had conducted search at the residence of the accused. As per this memo various house hold articles lying there, year of acquisition and tentative price as told by accused and his family members is found mentioned. The total value of the articles stated to have been acquired by accused within the check period comes out to be Rs. 5800/-.
9.2 Ld. defence counsel has rightly pointed out that as per this memo recovery of Rs. 5600/- is shown to have been recovered from the house of the accused. I thereby agree with accused that household goods in item no. 1 have been wrongly calculated. Instead of Rs. 36,890/-, it should be taken as Rs. 5800/-.
9.3As discussed in above para, this amount is shown to have been recovered from the house of the accused vide observation memo Ex. PW 5/D. Accordingly, the same is rightly counted as asset of the accused.
9.4 Item no. 3 to 16 are 4 MBDS (Multiple Benefit Deposit Scheme) and 10 MMDC (Money Multiplier Deposit Certificate), totalling Rs. 5,30,000/-.
9.5 Ld. defence counsel has urged that these MBDS/MMDC are issued on different names from different bank accounts. Except amount of Rs. 60,000/-in 2 FDRs, rest of the receipts relates either to the wife of the accused jointly with the son or relates to his father or mother. It has been stated that most of the amount in these receipts had been invested much prior to check period from agricultural income/savings and this CC No. 27/2008 CBI Vs. S. P. Dubey Page 40 of 59 version is corroborated by accused in his statement/explanation Ex. PW 37/DA and 37/DB given to IO.
9.6 On the other hand, Ld. PP has submitted that accused was only earning family member. It is stated that neither his wife nor his two sons who were minor had any independent source of income to invest in these schemes. It has been submitted that all these investments were made by accused during check period either on his name or on the name of his sons or on joint name of his sons and wife. It has been contended that MBDS/MMDC mentioned as item no. 6, 8 to 16 were got released by accused during pendency of this trial by the orders of the court. It is stated that factum of these receipts existing on the name of accused or his family members is not disputed.
9.7 Ld. counsel for accused has urged that these MBDS/MMDC were done by the accused from his savings, from his income during the check period and from his income before the check period but IO has not verified the source of these deposits. It is stated that as per settled legal proposition, accused is only required to probabilise his defence and he is not required to bring evidence and prosecution is required to prove beyond reasonable doubt.
9.8 On other hand, ld. PP has contended that no benefit of these probabilities can be given as he has failed to prove the source. It is further contended that accused has not even reported about these deposits to his department and he has also not reflected these figures in his income tax returns. It is vehemently urged that expression "known source of income" has refers to sources known to the prosecution and CC No. 27/2008 CBI Vs. S. P. Dubey Page 41 of 59 what was the source of these receipts is the fact which is especially within the knowledge of the accused and under Section 106 of Indian Evidence Act, accused cannot be escaped from the burden of proving that. In support of his submissions, Ld. PP has relied upon observations made by Apex Court in N. Ramakrishnaiah (dead) thr. Lrs Vs. State of A.P. [2009CRL. L.J. 1767] & State of Madhya Pradesh Vs. Awad Kishore Gupta [2004 CRI.L.J. 598]. The relevant observation made by Apex Court in N. Ramakrishnaiah (Dead) thr. Lrs Vs. State of A.P.(Supra) is reproduced here below:-
"14. ............ Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the explanation appended, the Prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known source of income"
mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. The expression "known source of income has expression reference to sources known to the Prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The Prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
15.The emphasis of the phrase "known sources of income"
in Section 13(1) (e) [Old Section 5(1)(e)] is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his Office or post, commonly knowns as remuneration CC No. 27/2008 CBI Vs. S. P. Dubey Page 42 of 59 or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investments, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
16.The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately case a burden on the account not only to offer a plausible explanation as to how he came by is large wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
9.9. The relevant observation by Apex Court in State of Madhya Pradesh Vs. Awadh Kishore Gupta (Supra) is reproduced below:-
"...........Therefore, it can be said that though 'income' is receipt in the hand of its recipient, every receipt would not [partake into the character of income. Qua the public servant, CC No. 27/2008 CBI Vs. S. P. Dubey Page 43 of 59 whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from [a] his property, or [b] his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the 'known sources of income' of a public servant. The Legislature has advisedly used the expression 'satisfactorily account'. The emphasis must be on the word 'satisfactorily' and the legislature has, thus, deliberately case a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth but also to satisfy the Court that his explanation was worthy of acceptance."
9.10 In view of the observation of Apex Court discussed above, the burden was on the accused to prove source of these MBDS and MMDC done by him on his name and on the name of other family members during check period. Moreover, what was the source of these deposits are facts which are within the special knowledge of the accused but he has failed to satisfactorily explain the source.
9.11 As already discussed, MBDS mentioned in item no. 3,4,5 & 7 are proved by PW-11 as Ex. PW 11/F-1 to F-4. As already discussed, these MBDS for the first time were done in the name of accused, his son and other family members vide deposit receipts Ex. PW 11/A to D, pertaining to the year 1991-92.
9.12 It is admitted case of the accused that various MBDS and MMDC reflected in the charge sheet were got released by him vide different orders by predecessor of this court. The only objection raised by accused is that these were done from agricultural income and most of the CC No. 27/2008 CBI Vs. S. P. Dubey Page 44 of 59 amount in these schemes has been invested much prior to the check period from the agricultural income of his parents.
9.13 As already discussed, burden was entirely on the accused to establish the source of this amount. PW-35 Sh. Satish Parbhakar from Central Bank of India has proved the applications of 10 MMDC as Ex. PW 35/B7, PW 35/B8, PW 35/B10, PW 35/B12, PW 35/B14,PW 35/B15, PW 35/B16, PW 35/B17, PW 35/B19, PW 35/B20. He has further proved the letter Ex. PW 35/B21 given by him to IO containing details of these MMDCs. Since the original deposits schemes mentioned in item no. 6, 8 to 16 are taken by accused from the court, it amounts to admission on the part of accused regarding factum of existence of these receipts.
•D-16 is copy of corresponding receipt of MMDC mentioned at item no. 6, as per which this was done by accused in the name of his son Anil Kumar Dubey on 23.10.1993 for one year and thereafter further extended.
•D-17 is copy of corresponding receipt of MMDC mentioned at item no. 8, on the name of Sunil Kumar son of accused done by accused on 23.10.1993 initially for one year and thereafter further extended.
•D-18 is copy of corresponding receipt of MMDC mentioned at item no. 9, on the name of Manorma Dubey wife of accused dated 23.10.1993.
•D-19 is copy of corresponding receipt of MMDC mentioned at item no. 10, on the name of wife of accused done by accused dated 23.10.1993.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 45 of 59•D-10 is copy of corresponding receipt of MMDC mentioned at item no. 11, again on the name of Anil Kumar son of accused done by accused on 06.09.1994.
•D-11 is copy of corresponding receipt of MMDC mentioned at item no. 12, again on the name of Sunil Kumar son of accused and Murlidhar Dubey father of the accused done by accused on 06.09.1994.
•D-12 is copy of corresponding receipt of MMDC mentioned at item no. 13 in the name of Anil Kumar Dubey son of the accused and Raj Kumari Dubey mother of the accused done on 06.09.1994.
•D-13 is copy of corresponding receipt of MMDC mentioned at item no. 14 in the name of Sunil Kumar Dubey son of the accused and Raj Kumari Dubey mother of the accused done on 06.09.1994.
•D-14 is copy of corresponding receipt of MMDC mentioned at item no. 15 in the name of Anil Kumar Dubey son of the accused and Manorma Dubey wife of the accused done on 06.09.1994.
•D-15 is copy of corresponding receipt of MMDC mentioned at item no. 16 in the name of Sunil Kumar Dubey son of the accused and Manorma Dubey mother of the accused done on 06.09.1994.
9.14 It is relevant to mention here that perusal of various receipts Ex. D-6 to D-9 (Ex. PW 11/F-1 to F-4), D-10 to D-19 reveals that the original amount deposited by accused on his name or in the name of his CC No. 27/2008 CBI Vs. S. P. Dubey Page 46 of 59 family members was the same amount which is mentioned in the charge sheet under assets head. It appears that maturity amount of these instruments was again put in these schemes (MBDS/MMDC).
9.15 It is relevant to mention here that though acquired by accused during the check period but benefit of the interest accrued against these 10 MMDCs, i.e. Rs. 1,22,002/- has been given by CBI to the accused, as this amount has been added in his income. Accordingly Rs. 5,30,000/-, on account of items no. 3 to 16, is rightly taken as assets of accused.
9.16 The accused has also objection in calculating Indira Vikas Patra of Rs. 1,50,000/-, item no. 17 in his assets. It is admitted case of the accused that these instruments were got released by him from this court. It has been submitted on behalf of accused that amount in these instruments was in fact invested by Sh. Murlidhar Dubey, father of the accused from his agricultural income from his savings before the check period and this fact is corroborated by statement/explanation of accused in Ex. PW 37/DA and Ex. PW 37/DB. It has been urged this fact is further proved by DW-3 Pramod Dixit, who is an attesting witness.
9.17 DW-3 Pramod Dixit has deposed that accused is husband of his sister. Father of accused expired about 10 years ago and he has executed the will in the year 1998, which is Ex. DW 3/1. He is also attesting witness of this Will. During cross by Ld. PP, he denied the suggestion that Ex. DW 3/1 is the forged document and does not bear the signature of Sh. Murlidhar Dubey.
9.18 This will was executed in 1998. In this Will, it is found CC No. 27/2008 CBI Vs. S. P. Dubey Page 47 of 59 mentioned that Sh. Murlidhar Dubey had purchased Indira Vikas Patras in the sum of Rs. 1,50,000/- from his agricultural income. This Will get falsified from the statement of Sh. Murlidhar (PW-23) recorded on 20.09.2005. It clearly establishes that Will has been forged by accused to create false defence.
9.19 Ex. PW 37/H-1(D-21) is the list of Indira Vikas Patras. As discussed earlier, even in the statement of IO PW-37, the court has observed that several Indira Vikas Patras were returned to the accused or his family members by the predecessor of this court on various dates and even applications for purchase were also returned to the concerned post office. The face value of these Indira Vikas Patras come out to be Rs. 1,50,000/-. This amount has been rightly taken as assets of the accused.
9.20 Ld. counsel for the accused has also objected to item no. 18, i.e. Kishan Vikas Patras taken as Rs. 9,32,000/- as he has contended that the same were also purchased by the parents of the accused from the savings of agricultural income. It is also stated that accused had also invested the savings during the check period and prior to check period in Kishan Vikas Patras. Ex. PW 5/A is the production-cum-seizure memo (D-15) vide which various Kishan Vikas Patras (KVPs) were seized on 06.03.1996 being produced by PW-3 Sh. Manjit Singh, Public Relation Inspector from the office of Sub Postmaster, Maya Puri Post Office, New Delhi. As per seizure memo of these instruments totaling Rs. 4,19,000/- KVPs were purchased during the check period. As already discussed, the burden was upon the accused to prove the source of purchase of these instruments which he has failed, accordingly same has to be reckoned in CC No. 27/2008 CBI Vs. S. P. Dubey Page 48 of 59 the assets. It is relevant to mention here that out of these Kishan Vikas Patras benefit of Rs. 47,000/- has been given to the accused by the I.O. being satisfied that the same were purchased by the accused from the amount received after maturity amount of NSC's purchased from his income prior to check period. Accordingly, on the basis of Ex. PW 5/A, the total assets has to be counted as Rs. 3,72,000/-.
9.21 Ex. PW 4/A (D-51) was the production-cum-seizure memo dated 07.03.1996. These instruments were produced by PW-4 Kamlesh Kumar Bataish, Public Relation Officer, Post Office Chanakyapuri, New Delhi. It is relevant to mention here that statement of PW-4 could not be concluded, as some original documents could not be produced on the day of his examination before the court. Accordingly, his examination was deferred but thereafter he was never summoned.
9.22However, PW 37/H (D-20) is the list of Kishan Vikas Patras prepared by the IO. Perusal of list reveals that all these instruments were purchased in the name of accused and his family members. The total value of these instruments is Rs. 5,60,000/-. Accordingly, Rs. 9,32,000/- (as per item no. 18) is rightly counted as assets of accused during the check period.
9.23Vide item no. 19, assets of Rs. 57,583/- (account no. P-3/803 = Rs. 44,584/- + account no. 17/2704 = Rs. 13,000/-) was taken. The Ld. counsel for accused submitted that this amount was lying deposited in these accounts of accused but the same should be taken as his income and not as the assets. As already discussed, Rs. 44,583/- was balance in account no. P3/803 of accused at New Katni Branch, MP at the beginning CC No. 27/2008 CBI Vs. S. P. Dubey Page 49 of 59 of check period. Same should have been taken as assets of the accused before the check period. Accordingly, instead of adding this amount in the assets, it needs to be deducted from the total assets of the accused.
9.24As per statement of account Ex. PW 8/F Rs. 13,000/- was deposited in this account between Sept. 94 to Sept. 95. Since accused has failed to explain its source, it is rightly taken as assets of the accused. Accordingly, in item no. 19 only Rs. 13,000/- has to be taken as assets.
9.25 Vide item no. 20 valuation of plot no. 74, Harijan Basti, Palam Colony, New Delhi, measuring 115 sq. yards is taken as Rs. 2,40,000/-. Ld, counsel for the accused has objected to this amount stating that valuation of the plot is Rs. 1,20,000/- and same has been wrongly taken by CBI as Rs. 2,40,000/-. PW-28 Smt. Mewa is the witness examined by the prosecution to prove this asset. She has testified that she was owning and possessing residential plot no. 74, Pala Colony, Harijan Basti, Palam Colony, New Delhi. It was measuring 150 sq. yards. He sold it to Smt. Manorma wife of accused in the year 1992 for Rs. 2,40,000/- on the basis of GPA Ex. PW 28/A and affidavit Ex. PW 28/B. Agreement to sell is Ex. PW 28/C to F and the Will is Ex. PW 24/G. She identified her signature on these documents. Ex. PW 28/G is the affidavit given by PW-28 regrading this plot mentioning the sale price of this plot as Rs. 1,20,000/-. Ex. PW 28/C is the agreement to sell mentioning the price as Rs. 1,20,000/-. Ex. PW 28/D is the payment receipt of Rs.1,20,000/- executed by PW-28. Ex. PW 28/E is the payment receipt executed by PW-28 for having received Rs. 2,40,000/- towards the sale consideration of this plot. Ex. PW 28/F is the bayana receipt dated 14.4.1997 where also CC No. 27/2008 CBI Vs. S. P. Dubey Page 50 of 59 price of the plot is mentioned as Rs. 2,40,000/-. PW-28 has also specifically stated she had sold this plot to Smt. Manorma Devi wife of accused for Rs. 2,40,000/- She was not cross-examined by the accused on the sale price of this property. Accordingly, the sale price of this property is taken as Rs. 2,40,000/- and this amount is rightly added in the assets list.
9.26 In item no. 21, the purchase price of plot bearing khasra no. 64/9/2 measuring 214 sq. yards at Palam, Raj Nagar, New Delhi by Smt. Manorma Devi wife of accused is taken as Rs. 52,000/-. This entry is not disputed by accused. PW-1 Sh. Pawan Kumar is the seller of this plot to Smt. Manorma Devi. He proved GPA, agreement to sell and receipt of payment regrading this plot as Ex. PW 1/A to 1/C. 9.27 The cost of construction (item no.22) of house of accused at Raj Nagar, Palam Colony is taken as Rs. 2,38,000/-. Ld. counsel for the accused has serious objection to this amount stating that accused has done this construction by purchasing the construction material second hand from kabari etc. It is stated that PW-26 who has given valuation report regarding this construction has admitted during his cross- examination that if construction is not got done through contractor, then costs can be reduced as contractor's profit is reduced.
9.28 PW-26 Rajinder Kumar, Superintending Engineer, CPWD has proved his valuation report Ex. PW 26/A regarding this property. He deposed that on the request of CBI on 22.07.1996 he inspected the property no. RZ 429, Gali No. 9, Rajnagar Part-I, New Delhi belonging to accused. During his cross-examination, he has admitted that cost of CC No. 27/2008 CBI Vs. S. P. Dubey Page 51 of 59 construction is calculated taking into plinth area, total area as well as story in the premises. The witness further testified that accused informed that the construction was done in the year 1990 and the cost has been worked out on the rates of the financial year 1990-91.
9.29 As per Ex. PW 26/A in para 7, it is mentioned that accused told that the construction was carried out on self supervision by purchasing the old building material, wooden door frames, shutters, ventilator etc. Rebate @ 11% of the cost of the building was given to accused accepting his submission that he has used old building material. Further rebate at 7.5% of the cost of the building has been considered towards contractor's profit.
9.30 As per this report, cost of the building has been worked out on plinth area rates as on 01.10.1976 by taking rate of Rs. 275/ per sq. meters (for single story) and Rs. 225/- per sq. meters (for 2nd story).
9.31 As per valuation report Ex. PW 26/A, total cost of construction of the building is assessed as Rs. 2,88,952/-. From this amount rebate of Rs. 31,784/- @ 11% is given as accused has stated to have used old wooden shutters frame, ventilators etc. It is a fact of common knowledge that old building material comes considerably cheap in comparison to new one. However, it is also a fact of common knowledge that material whether old or new, labour cost or certain other costs like price of cement etc. remain the same. However, in my view accused deserves 20% rebate on this basis. Similarly, the rebate as contractor profit, In view of this court, should be 15%. The calculation of the costs of construction is as follows:
CC No. 27/2008 CBI Vs. S. P. Dubey Page 52 of 59(i) Total costs of construction as per Ex. PW 26/C :Rs. 2,88,952/-
(ii) Rebate @ 20% on account of old material. (-) :Rs. 57,790/-
Balance Total cost: Rs. 2,31,162/-
(i) Rebate @ 15% on account of contractors profit (-) Rs. 34,674/-
Balance Total : Rs. 1,96,488/-.
9.32 Item no.23, the last item is the cost of scooter DL!S 4039. It is stated on behalf of accused that it was a 2nd hand scooter purchased by him and according to the prevailing market condition, price was not more than Rs. 2,000/-.
9.33 PW-17 and PW-19 are two witnesses examined by the prosecution in this regard. PW-17 Sh. S. K. Goel, was UDC in office of MLO, Head Quarter, Rajpur Road in the year 1996. He had handed over file pertaining to this scooter in the name of wife of the accused to IO.
9.34PW-19 Gurmeet Singh was owner of the scooter. He deposed that he had sold this scooter vide sale letter Ex. PW 19/A to Smt. Manorma Devi. He testified that he is not aware at what price this scooter was sold by his father.
9.35 From the documents brought on record by prosecution, it stands established that the date of registration of this scooter is 14.02.1991 and it was sold to Smt. Manorma Dubey vide form no.29 (Ex. PW 19/A) dated 16.12.1993. This scooter was two years old when purchased by the accused. Keeping in view all these facts, price of the scooter is taken as Rs. 5,000/-.
CC No. 27/2008 CBI Vs. S. P. Dubey Page 53 of 59Conclusion 10.0 PW-34 Smt. Kiran Dhingra, who was working as Commissioner-cum-Secretary (Transport Department), GNCT, Delhi has proved sanction Ex. PW 34/A, being competent authority to remove accused from service.
10.1It is worthwhile to mention here that while calculating disproportionate assets, assets held by accused before check period needs to be calculated and required to be deducted from the assets at the end of the check period. Here in this case, IO PW-37 has not calculated the assets held by the accused before the check period in a specific head. He has not counted 4 assets worth Rs. 1,59,854/- being satisfied that the same were purchased by accused from his known source of income. In addition to that amount of Rs. 44,538/- found deposited in account no. P-3/803 at the beginning of the check period is also required to be deducted from the total assets, being assets held by accused at the beginning of the check period.
10.2In view of the forgoing discussion, for the period during check period, following figures emerge:-
Srl. Head Amount (in Rs.)
No.
A Income proved as per Charge Sheet Rs.9,58,633/-
B Additional Income proved Rs.1,20,000/-
C Total (A+B) Rs.10,78,633/-
D Expenditure during check period Rs.1,71,380/-
CC No. 27/2008 CBI Vs. S. P. Dubey Page 54 of 59
E Savings (C-D) Rs.9,07,253/-
F Assets at the end of the check period Rs.21,29,888/-
G Assets at the beginning of the check Rs.44,538/-
period
H Assets held during the check period Rs.20,85,350/-
(F-G)
I Disproportionate Assets held during Rs.11,78,097/-
check period (H-E)
10.3 Accordingly, percentage of disproportion assets comes out to
be Rs. 109%.
10.4. In view of the aforesaid reasons, it is held that the prosecution has been able to prove its case beyond reasonable doubts. Accordingly, accused is held guilty for commission of offence under Section 13(2) read with Section 13(1)(e) of Prevention of Corruption Act.
Announced in open court ( SANJAY GARG-I ) on this 04th day of June, 2015. SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS,DELHI CC No. 27/2008 CBI Vs. S. P. Dubey Page 55 of 59 IN THE COURT OF SH. SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.CC No. 27/2008
ID No. 02401R0083241999 Central Bureau of Investigation (CBI) Versus Shankar Prasad Dubey (S. P. Dubey) s/o Sh. Murlidhar Dubey, R/o RZ-429, Gali No. 9, Raj Nagar Part-I, Palam Colony, New Delhi.
Motor Vehicle Inspector (MVI), Transport Department, NCT of Delhi 5/9, Under Hill Road, Delhi. .... Convict Case arising out of: FIR No. RC-73(A)/95/CBI/ACB/ND Date of FIR : 22.08.1995 ORDER ON SENTECE 1 Heard Shri Anil Tanwar, ld. PP for CBI & Shri Y. Kahol, ld. Defence Counsel for Convict.
2 Ld. Counsel for Convict submitted that Convict has faced this trial regularly for 18 years, is aged 67 years and suffering from lever ailment. It is stated that the wife of the Convict being aged is suffering from various ailments and CC No. 27/2008 CBI Vs. S. P. Dubey Page 56 of 59 dependent upon him for all purposes. It is stated that convict is ex-serviceman having served Air Force for 20 years. It is urged that keeping in view the the trauma suffered by Convict, he be sentenced to minimum term of imprisonment provided under the Act by taking lenient view.
3 Ld. PP has submitted that keeping in view the facts and circumstances of this case, Convict deserves no leniency and he should be sentenced to the maximum term of imprisonment.
4 Convict has been found in possession of disproportionate assets to the tune of Rs.11,78,097/- i.e. 109% to his known source of income. Convict while service as Motor Vehicle Inspector in Transport Department of GNCT Delhi had been indulging into corruption and amassing ill gotten money.
5 Corruption in day to day public life is on the rise.
There is furore in the society against the corruption in public life. It is a very serious problem and hurdle on the path of progress of this Country. Corruption by public servants has created a sense of insecurity for the common man. Such cases deserve no leniency as a strong message needs to be sent to the Society. The Superior Courts from time to time have observed that a strict approach needs to be adopted in cases of corruption. In the case of State of M.P. Vs. Shambhu Dayal Nagar [(2006) 8 SCC 693], it was inter-alia observed as under :-
"It is difficult to accept the prayer CC No. 27/2008 CBI Vs. S. P. Dubey Page 57 of 59 that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the nation building activities and everyone has to suffer on that count. Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest Officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post."
6 In my view, in Corruption Cases, to send a strong message to the society, Convict deserves to be given harsh punishment. It is matter on record that Convict is facing trial for 18 years and he is an old person of 67 years. In my view, the age of convict and prolonged trial faced by him is certainly a mitigating factor and same needs to be considered while awarding sentence.
8 The maximum sentence provided for the offence CC No. 27/2008 CBI Vs. S. P. Dubey Page 58 of 59 under Section 13(2) P. C. Act is upto 7 years, therefore, keeping in view all the facts & circumstances of this case, Convict is sentenced to R.I. for the period of 3 years and a fine of Rs.1.00 Lac, in default of payment of fine, Convict shall suffer S.I. for 1 year.
9 The amount recovered during search proceedings, being the ill gotten money, be also confiscated to the State, in accordance with law.
Announced in open court ( SANJAY GARG-I ) on this 06th day of June, 2015. SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS,DELHI CC No. 27/2008 CBI Vs. S. P. Dubey Page 59 of 59