Delhi District Court
Cbi vs . Rakesh Kumar Etc. on 30 April, 2014
AC No.18/11/08
RC No.3(E)/07
CBI Vs. Rakesh Kumar Etc.
Date:- 30.4.2014
1
IN THE COURT OF RAJIV MEHRA
SPECIAL JUDGE CBI (PC ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique I.D. No.02402R0002452008
AC No.18/11/08
RC No.3(E)/07
C.B.I.
VERSUS
1. Rakesh Kumar
S/o Late Sh. Jwala Prasad,
R/o 569, Nimri Colony,
Ashok Vihar, Phase-IV,
Delhi-52.
2. Rajender Kaushik
S/o Late Sh. Devki Nandan Kaushik,
R/o 73, Akriti Apartment, IP Extension,
Delhi-92.
3. Rahul Jain
S/o Sh. Rajender Kumar Jain,
R/o I-3, Main Bazar, Laxmi Nagar,
Delhi.
AC No.18/11/08
RC No.3(E)/07
CBI Vs. Rakesh Kumar Etc.
Date:- 30.4.2014
2
JUDGMENT
1. The accused persons namely Rakesh Kumar, Rajinder Kaushik and Rahul Jain have been sent to face trial in this case by CBI for the offences punishable under Section 120-B read with Section 217 and Section 420 IPC and also for the offence under Section 13 (2) read with Section 13(1)(d) PC Act, 1988.
2. This charge sheet has been filed against unauthorised construction in two properties number M-67, Jagat Ram Park, Laxmi Nagar and F-139A, Mangal Bazar, Laxmi Nagar, Delhi.
3. As per the allegations in the charge sheet the construction in the above two property was raised by A3 Rahul Jain a private party/builder without obtaining any building plan from MCD.
4. As per prosecution case both property no. M-67, Jagat Ram Park and F-139A Mangal Bazar, Laxmi Nagar were falling in Ward No.74 and alleged construction in these two properties was raised during the period between from June 2005 to November/December 2005.
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5. According to the prosecution case A1 Rakesh Kumar was Asstt. Engineer, Shahdara South Zone from 15.09.2004 to 30.11.2005 whereas A2 Rajender Kaushik was posted as JE in Ward no. 73-74, Shahdara South Zone, MCD from 15.06.2005 to 26.06.2005 and 01.07.2005 to 15.12.2005.
6. As per prosecution this case has been registered on the basis of a conversion report submitted in preliminary enquiry PE- SIB-2006E-0001 which was registered for conducting enquiry against the allegations of criminal conspiracy by MCD officials for facilitating unauthorised constructions in their respective areas. The enquiry was registered pursuant to the directions dated 20.04.2006 of Hon'ble High Court in Writ Petition (C) 4582/2003 wherein CBI was directed to conduct necessary enquiry into the alleged nexus between MCD officials, builder/owners and politicians which facilitated large scale unauthorized construction in various parts of Delhi.
7. This preliminary enquiry was conducted by Sanjay Dubey in the present case and FIR Ex.PW41/1 was registered on his complaint Ex.PW3/A.
8. In the instant case property No. M-67, Jagat Ram Park and F-139A, Mangal Bazar, Laxmi Nagar, Delhi were identified in the AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 4 complaint EX.PW2/A in which the unauthorized construction was raised by A3 Rahul Jain wherein he was facilitated by A1 Rakesh Kumar, AE (B) and A2 Rajender Kaushik, JE (B) who deliberately did not initiate coercive action in raising of unauthorized construction in two properties by A3 Rahul Jain and the inaction on the part of A1 and A2 caused pecuniary gain to A3 Rahul Jain and other unknown persons.
9. As per prosecution case A3 Rahul Jain purchased property no. F-139/A on 04.04.2005 and carried out unauthorized construction without any building plan sanctioned by MCD in violation of DMC Act/Building Bye-Laws/MCD circulars/Office orders issued by MCD Authorities from time to time. As per prosecution case Rahul Jain raised unauthorized construction at GF, FF, SF, TF in property no. F-139/A, Mangal Bazar, Laxmi Nagar for the purpose of sale of this property. This unauthorized construction according to the allegations in the charge sheet was carried out in the property from June, 2005 to November/December, 2005.
10. As per prosecution case despite having knowledge of unauthorised construction in property no. F-139/A, Mangal Bazar, Laxmi Nagar, A2 Rajender Kaushik, the then JE (B) did not book this unauthorized construction. As per prosecution case JE was AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 5 duty bound to maintain construction watch register/supervise the entire construction carried out in his jurisdiction and to take action against misuse of properties/unauthorized construction in the area.
11. As per prosecution case property no. M-67, Jagat Ram Park, Laxmi Nagar, Delhi was purchased by A3 Rahul Jain on 02.03.2005 and after demolishing the old structure Rahul Jain constructed four flats and parking and one shop without sanctioned building plan of the property and floor was sold by him to different persons.
12. As per prosecution case the property M-67 was booked against unauthorized construction vide file bearing no. 60/B/UC/SH/2005 dated 18.07.2005 by A2 Rajender Kaushik. This property was reported to be booked on completion of construction. A show cause notice was issued by A1 Rakesh Kumar on 18.07.2005 and a self demolition notice was also issued by him on 25.07.2005. Rakesh Kumar AE also passed demolition orders on 04.08.2005. No demolition action could be taken in the property despite the fact that demolition file was handed over for the purpose of demolition on 16.08.2005, 22.09.2005, 18.10.2005 and 16.11.2005 to A2 Rajender Kaushik. No demolition action was carried out at this property at any point of time.
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13. As per prosecution case in charge sheet A1 Rakesh Kumar AE and A2 Rajender Kaushik JE did not initiate sealing action for carrying out demolition action or launched any prosecution against builder Rahul Jain despite having specific complaints of unauthorized construction in the two properties to their knowledge received from Additional Deputy Commissioner of Police which complaint was received in the office of Executive Engineer and was marked to the AE (S) and JE (S) and also further complaints received from the office of ACP, HQ, East District about unauthorized construction.
14. As per prosecution case the complaint in respect of unauthorized construction in property no. M-67 was handed over to A2 Rajender Kaushik on 20.06.2005 but this property was booked by him against unauthorized construction only on 18.07.2005.
15. As per prosecution case A3 Rahul Jain has sold off all the flats and shops in the two properties to the different purchasers.
16. As per prosecution case neither A1 nor A2 conducted any test check against unauthorized construction in the two properties.
17. During investigation IO J.R. Katiyar PW-41 collected AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 7 evidence that Laxmi Nagar area under whose jurisdiction the two properties are covered has been regularized and as such approval of building plan from MCD is mandatory before raising construction.
18. During investigation IO also collected the record of the complaints made against unauthorized construction in the two properties and also the record that despite these complaints marked to A1 and A2 they did not take any coercive action as was required to be taken by them under the law.
19. During investigation IO also collected the record of electricity and water connection which are issued when the property is about to complete or after completion of the construction and according to the prosecution this will prove period of construction in the two properties.
20. During investigation IO collected record to show that property in the area could be constructed by the owner with a maximum height of 12.5 meter but in the present case the properties were of the height of 15.80 meter and 15.90 meter. IO also collected the evidence to show that for getting the building plan sanctioned of the two properties a sum of Rs. 55,821/- would have been given for M-67, Jagat Ram Park and a sum of Rs. 54,406/- would have been given as charges of sanctioned building plan for AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 8 property no.F-139/A, Mangal Bazar, Delhi and as such by raising unauthorized construction without sanctioned plan A3 Rahul Jain in criminal conspiracy with A1 and A2 have caused wrongful loss of revenue to MCD.
21. During investigation IO also collected different circulars and office orders for the regulation of building activities issued by MCD from time to time.
22. The prosecution case is that as per circulars and office orders A1 and A2 were required to make field visits once in 15 days and 7 days respectively but no such visit was made by them in the present case which resulted in unhindered unauthorized construction by A3 Rahul Jain.
23. As per allegations in the charge sheet A1 Rakesh Kumar AE (Building) and A2 Rajinder Kaushik JE (Building) as public servants knowingly disobeyed the direction of law as to the way in which they should have conducted themselves as such public servants thereby intending to save Rahul Jain from legal punishment in connection with unauthorized construction in the two properties.
24. During investigation IO also collected documents AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 9 relating to the purchase of the two properties by A3 Rahul Jain and also documents of sale purchase of different units in the two properties. He also collected the record from the office of Sub Registrar where these documents were registered.
25. The sanction order was obtained for Rajinder Kaushik A2 under Section 19 PC Act, 1988. A1 Rakesh Kumar the then AE (Building) has already been dismissed from service and as such no sanction was obtained for him.
26. The charge against three accused was framed for the offence under Section 120-B IPC read with 420 IPC and section 13(2) read with 13(1)(d) P.C. Act. The two accused namely Rakesh Kumar A1 and Rajender Kaushik A2 were also charged separately for the offence under Section 217/34 IPC and also under Section 13(2) read with Section 13(1)(d) PC Act, 1988. Accused Rahul Jain was separately charged for the offence under Section 420 IPC. All accused pleaded not guilty and claimed trial.
27. To prove its case the prosecution examined in all 41 witnesses. They are:-
- PW-1 Sushil Kumar Superintending Engineer. He submitted letters Ex.PW1/A to PW1/G alongwith the enclosures concerning AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 10 the unauthorized construction in the two properties M-67 and F- 139A.
- PW-2 is Sanjeev Sharma. He was LDC in the office of Ex. Engineer (Building) and was maintaining the dak register, dispatch register, receipt register and other records in the office and confirmed of having received the complaints of unauthorized construction which were marked to A1 and A2 vide entries in the registers.
- PW-3 is Inspector Sanjay Dubey on whose complaint Ex.PW3/A the case was registered.
- PW-4 is V.K. Gaur Head Clerk and at the relevant time he was posted as Office Incharge in Shahdara South Zone maintaining Misalbandh register Ex.PW4/A, file of unauthorized construction of property no. M-67, Jagat Ram Park, Laxmi Nagar and also file movement register Ex.PW4/C by which he has handed over the file of unauthorized construction Ex.PW4/B to A2 Rajinder Kaushik on 16.8.2005, 22.9.2005, and 16.11.2005 for demolition purpose.
- PW-5 is Ram Kumar Gupta Asst. Engineer (Building), Shahdara South Zone. He has deposed about the working procedure being followed in MCD and has also proved the document Ex.PW5/A to Ex.PW5/H. Ex.PW5/A is the Manual of instructions applicable to MCD officials and Ex.PW5/B to Ex.PW5/H are also other related officer order and circulars on the subject matter of unauthorized construction in MCD.
AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 11
- PW-6 is Hare Ram, Head Clerk from the office of Ex. Engineer (Building), Shahdara South Zone who produced the original of the complaints concerning unauthorized construction of the two properties and proved as Ex.PW6/A to PW6/D.
- PW-7 is Mr. M.R. Mittal Ex. Engineer. He has deposed about the letter dated 21.5.2007 Ex.PW7/A being issued by him on behalf of the department to CBI.
- PW-8 is Naresh Kumar Sanctioning Authority of A2.
- PW-9 is Ms. Geeta Sagar and PW-11 Smt. Amita Rani are the witnesses from whom the property bearing no. F-139/A, Laxmi Nagar, Delhi and M-67, Jagat Ram Park, Laxmi Nazgar were purchased by A3 Rahul Jain for consideration against execution of documents.
- PW-10 Yogesh Kumar Gupta, PW-13 Sanjay Jain, PW-14 Uttam Barua, PW-15 Satya Prakash, PW-16 Anil Bagla, PW-17 Sunil Kumar Mittal, PW-18 Abhishek Attrey, PW-19 Satya Narain, PW-35 Sachin Jain are the set of the witnesses who had purchased the different flats and shops in the two properties from A3 Rahul Jain and PW-20 is the purchaser of a flat from PW-15 whereas PW- 12 Dhondi Ram Ghadge had purchased it from PW-20 Durgesh Maheshwari, PW-40 Smt. Sumitra Rani Gupta had purchased her flat from PW-35 Sachin Jain.
- PW-21 Deen Mohd., PW-22 Avnesh Kumar Sharma, PW-26. K.D. Parashar, PW-27 Vidya Ram Sharma and PW-34 Virender AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 12 Kumar are the witnesses to prove the water connections in two properties M-67 and F-139A and record pertaining to Delhi Jal Board has been proved by them.
- PW-28 Hitesh Golash is a witness from BSES and has produced the record of electricity connections in the two properties in the name of A3 Rahul Jain.
- PW-25 Vikram Jeet Singh is Asst. Engineer. He furnished copies of documents Ex.PW5/A to Ex.PW5/H which are circulars of MCD issued from time to time to CBI vide production cum seizure memo Ex.PW25/1.
- PW-29 is Charan Singh Ex. Engineer. He has deposed that construction in the two properties M-67 and F139A, Mangal Bazar is unauthorized and also conveyed to CBI the current status of the two properties alongwith site plan Ex.PW29/1 and Ex.PW29/2. He has also deposed about the loss of Rs. 54,406/- and Rs.55,521/- suffered by MCD in the absence of sanctioned plan in the two properties which are the subject matter of this case and the two properties are of the height of 15.80 meter and 15.90 meter when the permissible limit of the height was 12.5 meter. PW-29 has also deposed about the other facts.
- PW-32 Ajay Rawal and PW-33 Subhash Chand were the registering authority at the relevant time and have proved various documents of sale and purchase of the two properties were registered by them. The same were handed over to CBI by PW-39 AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 13 B.S. Arora
- PW-36 Radha Charan was the SDM Preet Vihar and submitted two reports EX.PW36/1 and PW36/2 to CBI with regard to the two properties being unauthorised construction without sanction plan.
- PW-37 Kusum Khurana is Asst. Accessor and Collector Property Tax Department, MCD.
- PW-38 K.L. Meena was the ACP HQ at the relevant time and furnished the complaints of unauthorised construction to CBI.
- PW-41 is the IO Inspector J.R. Katiyar.
28. In his statement u/s 313 Cr.P.C. A1 claimed that he has performed his duties diligently and never connived with anyone to commit any offence. As per him the property no. M-67 Jagat Ram Park was booked by JE and he took action as required under law. According to him other property F-139A Mangal Bazar, Laxmi Nagar, Delhi was not booked by JE and as such he was not in a position to initiate any action upon the said property. It is stated by him that the complaint regarding unauthorized construction when brought to his notice was marked to concerned JE for necessary action.
29. In his statement u/s 313 Cr.P.C. A2 pleaded his innocence and alleged his false implication at the instance of CBI.
AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 14 As per his statement property no. M-67 Jagat Ram Park was booked by him and FIR was registered on complaint but demolition could not be carried out because of paucity of time as he was never given file of M-67, Jagat Ram Park and other files were marked to him for the purpose of demolition and demolition has been carried out by him as per the priority whereas in other file endorsement has been made that because of paucity of time no demolition carried out.
30. As per him no complaint with regard to the property no. F-139A Mangal Bazar, Laxmi Nagar was marked to him or was received by him from Delhi Police or MCD. It is stated by him that this complaint was for unauthorized construction in property no. F- 139 Mangal Bazar and not regarding property F-139A Mangal Bazar. The stand is that he was overburdened and he was looking after the work of more than one ward with no supporting staff.
31. A2 Rajinder Kaushik also examined two witnesses in defence Sh. Kapil Chaudhary, LDC as D2W1 who produced the house tax assessment files of property no. F-139 and F-139A Mangal Bazar to show that these are two separate properties and Sh. Hari Ram, Office Incharge Building as D2W2 who produced booking files of unauthorized construction on various dates and as per him this is a common practice that demolition action is carried AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 15 out as per the serial number of the file given to JE on that particular date except where there is a court case priority.
32. In his statement u/s 313 Cr.P.C. it has been stated by A3 Rahul Jain that he has been implicated falsely. According to him at the relevant time other properties were also constructed without any sanctioned plan and even now unauthorized construction is being made in Laxmi Nagar area which has not been demolished. He did not lead any evidence in his defence.
33. This Court has heard the Ld.PP for the CBI and also the counsel of the accused at length and have carefully gone through the records.
34. It is submitted by the Ld. PP that A3 Rahul Jain has raised the unauthorized construction in property no. M-67 and F-139A which is disputed and denied by the counsel of A3 Rahul Jain stating that most of the properties in the area of Laxmi Nagar where these two properties are situated is having construction without any sanction plan.
35. The prosecution case is that this unauthorized construction has been carried out by A3 in criminal conspiracy with A1 and A2 working as Asst. Engineer and Jr. Engineer in the area AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 16 at the relevant time who did not take any action to get the construction stopped by taking any action of demolition of these construction in the two properties.
36. This Court will deal in the first instance with the nature of the construction in the two properties.
37. So far as construction in property No.F-139A, Mangal Bazar is concerned it may be noted that this property was purchased by A3 Rahul Jain from PW-9 Geeta Sagar on 4.4.2005 vide document Ex.PW9/1 (D-35).
38. PW9 has deposed that at the time of selling the property to A-3, it was having construction of three rooms at GF and two rooms at FF. It was her ancestral property and construction was old one.
Subsequent Purchasers of flats, shop in F139A, Mangal Bazar, Laxmi Nagar, Delhi.
PW10 Yogesh Gupta. Flat. seizure memo Ex.PW10/1 (D-63), GPA & other documents Ex.PW10/2 to Ex.PW10/7.
PW13 Sanjay Jain. Shop. DL Ex.13/1(D-68, Page629), IGPA AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 17 Ex.PW13/2, electricity bill ExPW13/3.
PW18 Abhishek Attre. Flat. seizure memo Ex.PW18/1 D67(p583-584), sale deed Ex.PW18/2, GPA & other documents colly. Ex.PW18/3, water & electricity connections Ex.PW18/4 & Ex.PW18/5.
PW19 SN Mittal. Flat. Sale deed Ex.PW19/1, Seizure Memo Ex.PW19/2, elec. , water bills Ex.PW19/3.
PW35 Sachin Jain. Flat. Sale deed 9.6.06 Ex.PW32/8 in (D54). Further sold it to Sumitra Rani Gupta. Proved Seizure Memo Ex.PW35/1 (D64), Agreement & IGPA in favour of Sumitra Rani & his I Card as Ex.PW35/2 to Ex.PW35/4.
PW 40 Sumitra Rani Gupta proved seizure memo Ex.PW40/1 (D65) alongwith her property documents collectively Ex.PW40/2(19 sheets) Water Connections in F139A sanctioned when construction almost complete.
39. PW26 KD Prashar ZRO DJB deposed that ExPW26/1 (D36) letter was received from IO for giving detail of water connections in the property. He responded with details vide letter ExPW26/2 (D37). He has deposed that as per annexure to his letter ExPW26/3, 3 connections were allotted in the name of PW-35 Sachin Jain & JK Jain on 18.2.2006.
AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 18 PW-26 deposed that old connection no.5665 reopened on request dt.31.3.06. He also proved his letters to IO with meter reading as Ex.PW 26/12 & Ex.PW 26/13.
40. PW34 Virender Kumar Meter Reader DJB. Stated that old connection no.5665 in F139A was discontinued on 14.6.05 vide endorsement A in Ex.PW 26/13 and reopened on request dt.31.3.06.
M-67, Jagat Ram Park It was purchased by A3 from PW11 Anita Rani on 2.3.2005.
41. PW11 Anita Rani has proved Seizure memo Ex.PW11/1(D56), and other property documents Ex.PW11/2 to Ex.PW11/12. She further deposed that at the time of sale of property to A3 it was having 3 rooms at GF & 1 room at FF. Later on, on visiting the property on 30.5.2007 with CBI officials, she saw 4 flats at 4 stories with parking at GF newly constructed after demolishing old construction.
Subsequent Purchasers of flats & shop in M-67, Jagat Ram Park
42. PW14 Uttam Barua deposed that a flat was purchased by his mother in law Meenu Gomes from A3. He proved Seizure Memo Ex.PW14/1 (D61), other documents Ex.PW14/2 to Ex.PW14/11.
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43. PW 15 Satya Prakash Bagla proved seizure memo Ex.PW15/1 & other documents Ex.Pw15/2 to Ex.PW15/6 of purchase of a flat from A3. As per him he learnt about same being unauthorized construction afterwards. PW-15 sold it through same dealer Giriraj Gupta to PW20 Durgesh Maheshwari in 2006 itself. PW20 Durgesh Maheshwari sold the same flat to PW-12. He proved Seizure Memo Ex.PW20/1 (D-58) and other related documents Ex.PW20/2 & Ex.PW20/3.
44. PW12 Dhondhi Ram Ghadge proved Seizure Memo Ex.PW12/1 and proved other documents Ex.PW12/2 to ExPW12/7.
45. PW16 Anil Bagla proved Seizure Memo ExPW16/1 (D-60) & other documents Ex.PW16/2 to Ex.PW16/27.
46. PW17 Sunil Kr Mittal purchased one shop Shop at the ground floor. He proved the property documents (D-62) Ex.PW17/1 to ExPW17/9.
47. PW32 Ajay Rawal. SDM. Proved certified copies of sale deeds & other regd. Documents executed by PW9 Geeta Sagar qua F139A & PW11 Amita Rani qua M67 alongwith those executed by Rahul Jain in favour of different purchasers of flats/shops in both properties.
48. PW39 BS Arora Dy. Suptd. Tihar Jail posted as Sub AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 20 Registrar-VIII Geeta Colony, Delhi in October 2007 stated that he attested copies of sale deeds & other related regd. documents with his covering letter (D-54) which have been already proved by PW32 to CBI as Ex.PW32/1 to ExPW32/14 Water Connections in M67 sanctioned in name of A3 when construction almost complete
49. PW21 Deen Mohd ZRO has proved 3 connections in the name of Rahul Jain A3 applied on 20.9.05 & sanctioned on 11.11.05. He proved Memo Ex.PW21/1 vide which files of aforesaid connections 71782, 83 & 84 Ex.PW 21/2 to ExPW21/4 were handed over to CBI.
50. It has been stated by PW-21 that usually as & when fresh construction is completed in a property water connection is applied after that.
51. PW22 Avnesh Kr Sharma JE DJB visited property no. M- 67 before issuing of fresh water connections for inspection purpose. He stated that at time of his visit the building was almost complete and was on finishing touch.
52. PW26 KD Prashar ZRO DJB proved ExPW26/1 (D-36) letter received from IO qua detail of water connections. He responded with details vide letter ExPW26/2 (D-37). He has deposed that as per annexure to his letter ExPW26/3, 3 connections were allotted in name AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 21 of A3 on 29.11.05. He deposed that old connection no.11261 reopened on request dt.28.12.05. He proved his letter to IO with meter readings Ex.PW 26/12 & Ex.PW 26/13.
53. PW 27 Vidya Ram Sharma Beldar ZRO deposed that since there was construction in M67 between June 2005 to Dec2005 so old connection was disconnected.
Electricity Connections in both properties
54. PW 28 Hitesh Golash. AM, BSES has proved Seizure Memo Ex.PW28/1 (D-35), with 6 files relating to electricity connection in name of A3 for both properties. The witness also gave details of connections at page130,131 vide Ex.PW28/2 and also proved Applications of A3 Rahul Jain Ex.PW28/3 to ExPW28/8 for electricity connection in the two properties. As per him Has further deposed that the aforesaid applications were recd. on 13.12.2005 and energized on 10.1.2006.
Common Evidence for both properties :
Application of MCD/MPD/Building byelaws to both properties
55. PW1 Sushil Kumar SE was working as EE at the relevant time. CBI asked him informations from time to time which were given by him by letters Ex.PW1/A to Ex.PW1/E . Letter Ex.PW1/A (D-14) AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 22 providing documents, ExPW1/B (D-24) is a letter with regard to both properties inter alia conveying that no building plan was approved by MCD, ExPW1/C (D-25) conveying that construction on both was unauthorized, ExPW1/D (D26) conveying status of existing construction, ExPW1/E (D27) providing certified copies of letter dt.14.6.05 of XEN(B) alongwith another dt.19.5.05 from Addl. DCP-I East informing unauthorized construction in M-67 Jagat Ram Park and also letter dt.22.9.05 of XEN(B) another dt.25.7.05 from Sardar Singh ACP/STF for DCP/STF informing unauthorized construction in F139 Mangal Bazar (Ex.PW6/A to Ex.PW6/D).
56. PW7 MR Mittal, XEN(B) HQ MCD, Delhi. Letter dt.31.5.07(typed as 21.5.07 in deposition) Ex.PW7/A (D-48) wherein at item no.3 he stated that if the properties fall in unauthorized regularized colony sanctioned plan is mandatory as per Section 332 of DMC Act.
57. The prosecution has also examined PW23 RPS Bhatia. Dy. Secy. Home who has deposed qua notification of denotified 155 colonies vide his letter to IO ExPW23/1 (D-55) & notification, letter of CTP & list of colonies ExPW23/2 to Ex PW23/4. He deposed that in the enclosure to Ex PW-23/4 Laxmi Nagar is mentioned at S.No.43 and Jagat Ram Park is mentioned at S.No.45.
58. PW24 VK Bugga Chief Town Planner has deposed qua lal dora/ extended lal dora and proved that letter of IO is Ex.PW24/1 AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 23 dated 24.5.07. He proved his letter dated 24.4.2007 addressed to IO which is Ex.PW24/2 (D-41) vide which he enclosed notification Ex.PW24/3 & list Ex.PW24/4, letter of P. Dinesh to IO Ex.PW24/5 (D-
42), letter of Ministry of Works & Housing Delhi having policy of regularization whereby Laxmi Nagar group of colonies at item 54 was regularized Ex.PW24/6, his letter Ex.PW24/7 to IO conveying layout plan of 26 unauthorized colonies approved by DDA & also that MPD 2001/ Bye laws were applicable in the area, ExPW24/7 Appendix S to item 54.
59. The prosecution has also examined PW30 P Dinesh. Sr.Town Planner. This witness deposed that vide letter Ex.PW24/5 (D-42) to IO it was conveyed that Laxmi Nagar was one of the colonies regularized as per GOI's policy dt.16.2.77 Ex.PW24/6 & that residential structures were to be regularized by submitting building plans to MCD.
60. PW31 Sunil Kumar Mehra Sr. Town Planner proved letter Ex.PW31/1 (D-45) vide which he conveyed that both the properties were part of regularization plan for Laxmi Nagar group of colonies.
61. The prosecution has also examined PW36 Radha Charan, Director Rajiv Gandhi Hospital Lakshadweep. He was working as SDM Preet Vihar in 2007. On the request of IO this witness submitted his reports Ex.PW36/1 & Ex.PW36/2 qua chain of ownership transfer of premises in both properties, also stating in item D that A3 AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 24 constructed 5 stories each in both properties & sold to different persons, not approved construction, map/document was shown by inhabitants, the properties come under jurisdiction of MCD for approval of construction being regularized colony.
62. PW29 Charan Singh XEN proved plans of existing construction at both properties dt.6.7.07 Ex.PW29/1 & Ex.PW29/2 which were sent to IO by PW1 with his letter Ex.PW1/D (D-26). He deposed that construction in both properties was unauthorized and was 2 years old apprx. He proved extracts of Misal Band Register as Ex.PW29/3 (D-15), Extract of Individual Acknowledgement Register of JE Rajinder Kaushik Ex.PW29/4 (D-17). PW-29 also proved letters dated 5.10.07 Ex.PW29/5 & ExPW29/6 (D-31) conveying permissible number of floors as 3, permissible height as 12.50 meters charges as per 2004-05 i.e. Rs.54406/- & 55821/- payable to MCD for sanction of plan & present heights i.e. 15.80 & 15.90 meters qua F139A & M67. PW-29 deposed that the matter pertained to unauthorized regularized colony & was to be sent to MCD for issuance of NOC if everything was found in order.
63. So prosecution has brought sufficient unimpeachable evidence on record to show that the construction in the two properties has been changed from the original construction when the same were purchased by A3 from PW9 and PW11 and at that time there was old construction. The construction has been raised AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 25 by A3 Rahul Jain and these flats and shops in the two properties have been purchased by PW10, PW12 to PW20 and also PW35 and PW40 for consideration against documents of sale either as a direct purchaser from A3 Rahul Jain or as subsequent purchaser from other buyer of the flat in the two properties. A3 Rahul Jain has not controverted this fact in his statement under Section 313 Cr.P.C which gives a further support to the prosecution case on this point of raising unauthorized construction by him in two properties M-67 Jagat Ram Park and F-139A, Mangal Bazar, Laxmi Nagar Delhi.
64. The prosecution witnesses and documents as referred above proves it beyond doubt that sanction plan was mandatory for raising the construction in the two properties under subject herein and they were also subjected to building bye-laws, rules and regulations for raising construction.
65. The construction has been raised by A3 without sanction plan. Even in his statement u/S 313 Cr.PC A3 nowhere has controverted the fact that he was having the sanction plan for raising the construction in the two properties.
66. Since the properties M-67, Jagat Ram Park, Laxmi Nagar and F-139-A, Mangal Bazar, Laxmi Nagar were falling in the area of unauthorized regularized colony construction could have AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 26 been raised only after obtaining sanctioned plan from MCD.
67. This concludes the first question on the point that A3 has raised unauthorized construction in the two properties no. F-139/A Mangal Bazar and M-67 Jagat Ram Park, Laxmi Nagar.
68. This Court now will deal with the second question about the involvement of A1 and A2 in raising unauthorized construction by A3 in the two properties one by one.
69. A1 and A2 were posted as AE and JE in the area during relevant time. In support of this fact the prosecution has proved the ward wise duty register D-22 Ex.PW41/5 showing the duties of EE, AE and JE in the different wards from 01.01.1999 to 08.03.2007.
70. The prosecution has examined PW38 K.L. Meena, Retd. ACP. He has proved the police complaints by way of two lists of properties of unauthorized constructions in the area as Ex.PW38/2 which were sent by him to the IO alongwith forwarding letter Ex.PW38/1 which according to him were referred to MCD vide Ex.PW38/4.
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71. The prosecution case is that these police complaints through the office of DC and SE were received in the office of XEN from where they were dispatched to the concerned AE(S) and JE (S) for further action. In support of this fact prosecution has examined PW2 Sanjeev Kumar the concerned clerk in the office of the XEN (B) who has proved that he was maintaining the receipt register D-16 and also Dak dispatch register D-18 and individual acknowledgment register of JE D-17.
72. PW2 has deposed that police complaint of unauthorized construction with list of 30 properties were received by him in the office from the office of SE which was entered by him in Dak receipt register D-16 on 31.05.2005 through entry no.2261 and it was marked to all AE (s). As per the witness through Dak dispatch register D-18 meant for entering the details of dak dispatch from their office vide entry no.1180 it has been dispatched to all AE (S) on 14.6.2005. As per PW-2 this complaint was received by A2 Rajinder Kaushik in his Individual Acknowledgment Register through entry Mark Y4 in the register Ex.PW2/C on 20.6.2005.
73. As per PW2 the complaint of special task force dated 25.07.2005 from the office of Deputy Commissioner, Delhi Police was also received in the office from the office of SE. It was AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 28 regarding unauthorized construction in 17 properties including property no. F-139, Mangal Bazar and relevant entry of the same is 3201 which is in his handwriting in the receipt register Ex.PW2/A. As per PW2 the complaint was circulated to all AE (S) through Dak dispatch register vide entry no. 1822 dated 22.9.2005 at point Z1 and this complaint was also marked to JE vide entry encircled portion Y5 on 19.7.2005 in Individual Acknowledgment Register Ex.PW2/C.
74. It is submitted by the counsel for A1 and A2 that they did not receive any complaint as attributed to them through the statement of PW-2.
75. To supports his case the prosecution has also examined PW-4 V.K. Gaur who was posted as Office Incharge, Shahdara South Zone, MCD during the relevant year. He was maintaining Misalband register (D-15) for the period from 2005-2006 which is proved by him as Ex.PW4/A. As per PW-4 the entry in the register was made by him on the basis of FIR registered by J.E. PW-4 has also proved the unauthorized construction file as Ex.PW4/B in respect of property no. M-67 Jagat Ram Park (D-20). As per him this unauthorized construction file Ex.PW4/B was having FIR recorded by A2 in respect of property no. M-67, Jagat Ram Park, the show cause notice dated 18.7.2005 issued by AE Rakesh AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 29 Kumar and also recommendation of JE dated 25.7.2005 for demolition whereupon demolition notice was issued by A1 Rakesh Kumar and A1 Rakesh Kumar has also passed the demolition order.
76. As per PW-4 there is no entry of booking of property no. F-139A, Mangal Bazar in Misalbandh register Ex.PW4/A for unauthorized construction during the period from 1.4.2005 to 31.3.2006.
77. The prosecution has also examined PW-5 Ram Kumar Gupta. He was posted as Asst. Engineer. He has deposed about the procedure of demolition of unauthorized construction and has also proved the officer order and circulars as Ex.PW5/A to Ex.PW5/H on the subject.
78. Ex.PW5/A is an office order dated 16.12.2003 of MCD - Manual of instruction on unauthorized construction requiring that any person wants to raise construction has to take prior permission under the Act and in case of contravention of the same FIR to be prepared by JE at the site of construction and to be placed before AE on the very same day and a show cause notice will be served by JE u/S 344 under the signature of AE. A simultaneous action for prosecution be initiated. It provides that after the expiry of the AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 30 period of 7 days of show cause notice served upon the owner /builder/occupier AE will serve him with an order of demolition u/S 343 and separate action for sealing u/S 345 be also initiated . It also provide that test check to be applied by various officers for unauthorized construction as mentioned in earlier office order no. 458/Addl. CM (E)/2001 dated 4.7.2001.
79. Ex.PW5/B is a circular no. D/167/EE/(B) HQ/99 dated 22.3.99 dealing with the subject of working of building department under new set up and as per this circular para 3 relied upon by the prosecution it is required that in case of action against the unauthorized construction AE Building will carry out the test check of 40% of unauthorized construction booked in his jurisdiction and EE Building will carry out the test check of 20% whereas JE Building to make a complete inspection of the area within 3 days, 7 days and 10 days respectively to ensure all effective actions.
80. Ex.PW5/E is an office order D/476/ Addl.(E)/2001 dated 20.8.2001 requiring that it is mandatory for JE to carry out inspection every fortnightly and AE incharge and EE will carry out test check to the extent of 40% and 20% respectively. Para 2 of this office circular dealing with action against unauthorized construction requires that test check to be conducted by JE in 7 days, by AE in 15 days and by EE in 30 days.
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81. It is submitted by the Ld. PP that despite having received the police complaints which were marked to A1 and A2 through Dak Dispatch Register and Individual Acknowledgment Register of A2 Rajinder Kaushik no action was taken by them regarding unauthorized construction. It is submitted that both A1 and A2 were in conspiracy with A3 and facilitated him in raising the unauthorized construction in the two property.
82. It is submitted by the Ld. PP that the complaint concerning unauthorized construction in M-67, Jagat Ram Park was marked to A1 through Dak Dispatch Register on 14.6.2005 and it was received by A2 through Individual Acknowledgment Register on 20.6.2005 as proved by PW-2. FIR about unauthorized construction was registered on 18.7.2005 by A2.
83. It is submitted by the Ld. PP that police complaint of unauthorized construction of property F139-A, Mangal Bazar was marked to all AE (S) including A1 through Dak Dispatch Register and it was also marked to A2 Rajinder Kaushik through Individual Acknowledgment Register but no action at all was taken against such unauthorized construction by either of them.
84. It is submitted by the counsel for A1 that there is no AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 32 evidence against A1 in the case at all. It is submitted that no police complaint was received by A1 concerning unauthorized construction in property no. F-139A whereas in the matter of unauthorized construction in property no. M-67, Jagat Ram Park as and when this fact was brought to the notice by JE by booking the unauthorized construction in the property, immediate action was taken without delay by serving the notice and demolition order. It is submitted nothing more is required on the part of concerned AE under the office order and rules issued in the department from time to time.
85. It is submitted that whole case of the prosecution against A1 is based on assumptions (i) that the police complaints have been served upon A1 concerning unauthorized construction in the two properties and he deliberately avoided visiting the site.
(ii) it was his duty to conduct test check upto 40% as per Ex.PW5/A to Ex.PW5/E which he deliberately omitted to perform to facilitate A3 to complete the unauthorized construction and (iii) upon having received the police complaints he would have taken the steps to get the unauthorized construction stopped and also recommend further penal action as required in procedure given in office orders Ex.PW5/A to Ex.PW5/D dealing with the subject and A1 since being in conspiracy with A2 and A3 deliberately flouted the instructions and did not take any such action .
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86. It is submitted by the counsel for A1 that as required under the office orders and circular proved as Ex.PW5/A to Ex.PW5/D dealing with unauthorized construction , A1 has immediately issued the show cause notice after registration of the FIR concerning unauthorized construction in property no. M-67, Jagat Ram Park. It is submitted that thereafter he has also issued the demolition notice and order and nothing more was required to be done on his part..
87. It is submitted that since the unauthorized construction in property no. F-139A was never brought to his notice hence there was no possibility of taking any action in respect of the said property by him.
88. It may be noticed that in cross examination on 10.9.2013 IO PW-41 in the last para of his cross examination admitted that he did not find any direct evidence against A1 except the complaints which were marked to him by EE who in turn marked it to JE.
89. The evidence of PW-2 Sanjeev Sharma to show that complaints were dispatched cannot be considered as sufficient to prove the fact of receiving the same by A1 on his own strength AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 34 alone. The dak dispatch register is the document maintained in the office of PW-2 certifying that complaints have been sent to all AE (S). It can not be considered as the actual proof of service when the service of the complaint is disputed by the officer. The prosecution has no other evidence other than the statement of PW- 2 to prove the service of the complaint upon A1. The dak dispatch register nowhere has any signature or handwriting of A1 confirming of receiving the complaint by him. In view of this position the submission of Ld. PP about the service of the police complaints upon A1 when A1 is disputing the same is only to be rejected.
90. Under the office order Ex.PW5/A to Ex.PW5/E if AE is having the responsibility of 40% of test check then it is also the responsibility of concerned Ex. Engineer to have a test check to the extent of 20%. Ex. Engineer is not an accused in this case. Nothing has been brought to show that EE conducted any test check as required on his part in Circulars and office orders Ex.PW5/A to Ex.PW5/D. The police complaints were marked to A1 and A2 from the office of Ex. Engineer as deposed by PW-2 and also corroborated by PW-6. In view of this position even Ex. Engineer should also be presumed of having knowledge of the complaints against unauthorized construction in the two properties.
91. In the present case under circulars Ex.PW5/A to AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 35 Ex.PW5/D the role of AE would start only after the property is booked through FIR by the concerned JE . A1 has taken coercive action in respect of property no. M-67 but no action has been taken for F-139A for the reason of not booking of the property by JE. If EE is not being prosecuted then role of AE is also at parity with him and in absence of any direct evidence he cannot be prosecuted for the reason only that he failed to conduct a test check of 40% as was required on his part under office orders and circulars Ex.PW5/A to Ex.PW5/D. The CBI cannot be selective in prosecuting A1 for the same part/responsibility but taking no action against Ex. Engineer.
92. There is no other evidence against A1 to show that he was involved with A2 and A3 in any manner concerning the unauthorized construction in property no. F-139A and M-67.
93. In absence of any other incriminating evidence against A1 coming on record as admitted by IO himself he is given benefit of doubt of his being in league with A2 and A3 regarding unauthorized construction in the two subjected properties.
94. A2 is also been prosecuted for the offences u/S 217 IPC and also for the offence under Section 13 (1) (2) read with 13 (1)
(d) PC Act, 1988.
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95. Section 217 IPC deals with the offecne of public servant disobeying direction of law with intent to save persons from punishment or property from forfeiture.
96. Once the charge under Section 120-B does not stand against A1 he is also to be acquitted for the charge under Section 217 IPC. The essential requirement to prove a charge under Section 217 IPC is that a dishonest intention should be there on the part of a public servant to save person from punishment or property forfeiture by disobeying direction of law.
97. In the present case the prosecution has failed to prove that there is any knowing disobedience of any direction of law and purpose of the same was to save A3 from punishment. The argument of Ld. PP that under office orders and rules Ex.PW5/A to Ex.PW5/E A1 was duty bound to conduct test check upto the extent of 40% which he failed to perform to benefit A3 in raising unauthorized construction is only to be rejected for the reason of absence of any evidence to support the same.
98. Similarly there is no evidence collected by the IO to show any connection between A1 and A3 to prove the charge u/S 13 (2) read with Section 13 (1) (d) PC Act. There is no evidence AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 37 nor there is any allegation in the charge sheet to show any money transaction involving A1. There is no evidence collected by the IO to prove that A1 deliberately to benefit A3 in raising the unauthorized construction in the two properties has misconducted himself by abusing his office. The involvement of A1 is based on presumption that under the office orders and circulars Ex.PW5/A to Ex.PW5/E he was to test check the unauthorized construction upto 40% which he failed to do and according to the prosecution this was not so done by him to benefit A3. The presumption is far fetched in absence of any other evidence to support the same. This piece of evidence alone when prosecution failed to prove the charge of conspiracy against A1 will not be sufficient to prove the charge under Section 13 (2) read with Section 13 (1) (d) against him.
99. This Court now deals with the role of A2 and the evidence against him.
100. The prosecution case against A2 Rajinder Kaushik is that he did not book property no. F-139A, Mangal Bazar, Laxmi Nagar despite there being police complaints nor he did take any demolition action against unauthorized construction in property no. M-67, Jagat Ram Park, Laxmi Nagar, Delhi though it was booked by him and this action of him was deliberately taken to facilitate A3 AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 38 to complete unauthorized construction in the two properties.
101. In support the CBI is relying upon the evidence that police complaints regarding unauthorized construction in property no. F-139 was marked to A2 Vide register Ex.PW2/C in his own Individual Acknowledgement Register vide entry at point Y5 and it was received by A2 on 19.7.2005 whereas the other complaint dated 19.5.2005 regarding unauthorized construction in property no. M-67, Jagat Ram Park was marked to him vide entry in his own Individual Acknowledgment register on 20.6.2005 against entry at portion Y4 in his own Individual Acknowledgment Register Ex.PW2/C.
102. Counsel for A2 has been seriously disputing the correctness of these entries submitting that complaints were never received by A2 nor the initials as claimed to be of A2 are of him.
103. In the present case IO admittedly has not collected any specimen signatures or handwriting of either of the accused including A2 for comparison. In view of this position the statement of PW-2 alone that complaints were marked and received by A2 against his initials will not be sufficient to prove the fact that the complaints were actually received by A2.
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104. The prosecution case against A2 is that there was unauthorized construction in the two properties No. F-139A and M- 67 and it was for the A2 being JE in the area to detect such construction under the office orders and circulars proved as Ex.PW5/A to Ex.PW5/E. It is for him to detect 100% of unauthorized construction. As per prosecution case A2 Rajinder Kaushik since was in league with A3, turned a blind eye to such unauthorized construction in the two properties which facilitated A3 to complete the construction.
105. The accused A2 Rajinder Kaushik at the relevant time was looking after the work of Ward No.73 and 74 and as per the statement of PW-29 Charan Singh Ex. Engineer it is not possible for a Jr. Engineer to detect 100% unauthorized construction if he is looking after the work of multiple wards.
106. In view of this position the non detection of unauthorized construction in absence of any evidence proving the involvement of A2 cannot be construed a criminal offence of conspiracy.
107. The IO in cross examination has admitted that he has not collected any call details of the phone of the accused persons to show any nexus between them.
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108. The whole case of the prosecution is based on the presumption that A2 working as JE was required to detect 100% unauthorized construction as per the office orders and circulars Ex.PW5/A to Ex.PW5/E. This presumption is not sufficient proof to discharge the burden upon the prosecution in absence of any other evidence in the case to impute A2 with any criminal liability for the reason of his failing to take any action of detection of unauthorized construction in property no. F-139A, Mangal Bazar, Laxmi Nagar.
109. The further case of the prosecution is that because of the conspiracy, no action of demolition has been taken by A2 in respect of unauthorized construction in property no. M-67, Jagat Ram Park, Laxmi Nagar though the property was booked by him on 18.7.2005 and demolition order was issued by AE for 25.7.2005.
110. The case of the prosecution is that unauthorized construction file Ex.PW4/B of property no. M-67 was given to A2 for demolition on 16.8.2005, 29.9.2005, 18.10.2005 and 16.11.2005 vide movement register Ex.PW4/C but no demolition action in the property was taken by A2 as he was in league with A3 Rahul Jain.
111. Accused Rajinder Kaushik has examined D2W2 Hare Ram, Office Incharge Building to show that the accused was given more than one file for demolition action alongwith demolition file of AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 41 unauthorized construction M-67 was given to him on different dates. D2W2 has proved the files as Ex.D2W2/1 to Ex.D2W2/10.
112. It is submitted by the counsel for the accused that when the file of unauthorized construction Ex.PW4/B property no. M-67 was given to him for demolition on the four dates as claimed by the prosecution, the demolition could not be taken out in property no. M-67 for the reason of paucity of time as the accused was busy in demolition in other properties and for that reason no demolition could have been take by him in M-67, Jagat Ram, Laxmi Nagar, Delhi.
113. Ex.PW41/12 D-30 is the letter of Sushil Kumar EE (B) giving detailed information. As per this document on 16.8.2005 demolition action was taken in property no. 24 Gyan Kunj and this property was involved in Court case. On 22.9.2005 the demolition action was taken in property no.21, Gyan Kunj. This property was not involved in court case. On 18.10.2005 demolition action was taken in property no. N-60 Narain Nagar, Laxmi Nagar. This property was not involved in any Court case whereas on 16.11.2005 the demolition action was taken in property no.20 Gyan Kunj. The Court case regarding this property was disposed of on 7.4.2005.
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114. It may also be seen from the document Ex.PW4/B D-20 that in respect of property no. M-67 after the endorsement was made by concerned JE that action could not be taken due to shortage of time, the endorsement has been made by concerned AE (B) with remarks 'Try Again'.
115. It may be seen from the statement of PW-1 it is come on record that the demolition is carried out as per priority given to Court cases, VIP refrences, commercial building and residential building. The same is the position as reflected in document Ex.PW5/G. The report Ex.PW41/12 thus shows that on the four dates on 16.8.2005, 22.9.2005, 18.10.2005 and 16.11.2005 demolition action has been taken by A2 in respect of one or the other property.
116. In the present case the report Ex.PW41/12 (D-30) would show that this is not the case that no demolition action has been taken in any of the properties. This demolition action has to be carried out only during office hours by taking police force. There is nothing to suggest on record that accused Rajinder Kaushik did not take demolition action in property no. M-67, Jagat Ram Park intentionally and deliberately and in connivance with Rahul Jain. The record would show that it was in routine that demolition of unauthorized construction in a property, if not taken on any given AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 43 day, were being passover for the future dates. No criminality can be attached to because of not taking any demolition action against a property in the absence of other evidence on record.
117. There is nothing on record in the present case to attract the charge under Section 120-B against A2. The whole prosecution case is based on presumptions. There is no evidence of service of any complaint of property no. F-139A upon A2. There is no evidence to suggest that the complaint of unauthorized construction in property no. M-67, Jagat Ram Park. was served upon A2 on 20.6.2005. The prosecution case is that A2 deliberately booked this property on 18.7.2005 after the construction was complete in the property. However, there is no evidence to prove that service of the complaint was made upon A2 only on 20.6.2005. A2 since denying his initials on his acknowledgment register, in absence of any specimen handwriting for comparison, the statement of PW-2 Sanjeev Sharma is not sufficient to prove that complaint was served upon A2 on 20.6.2005. The burden is upon the prosecution to prove the charge. The prosecution has failed to discharge this burden that A2 was involved in conspiracy with A3 Rahul Jain in raising unauthorized construction in two properties.
118. The charge of criminal conspiracy has to be proved by the prosecution like any other offence by adducing evidence which AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 44 prove the charge of conspiracy beyond reasonable doubt. The direct evidence is seldom available. The offence of criminal conspiracy in such situation to be proved by the prosecution by circumstantial evidence. The law is well settled that each and every circumstance must be proved by legal and admissible evidence and they must prove a complete chain of such circumstances. The suspicion howsoever grave it may be cannot take the place of the legal proof and prosecution is duty bound to prove each and every circumstance in the chain of circumstances so as to complete the chain. In the present case the chain of prosecution evidence is not complete and is breaking in between and as such the evidence cannot be considered as sufficient to prove the charge of criminal conspiracy against A2.
119. For the above said reasons even charge for the offence under Section 217 IPC would fail against A2. There is nothing to suggest on record that there is any willful disobedience of any direction of law to save A3 from punishment.
120. The prosecution in the present case has charged the accused with the offence u/S 13 (1) (d) PC Act. Nothing has been brought by the prosecution on record to show that accused Rajinder Kaushik has obtained any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 45 a public servant. There is no evidence to prove the charge of his being in conspiracy with other accused or is committing the offence u/S 13 (1) (d). The prosecution is trying to prove the case with the help of the presumption which is not available to the prosecution to prove the charge under Section 13 (1) (d) PC Act and to prove this charge the prosecution has to prove the case beyond reasonable doubt as rightly submitted by the defence counsel.
121. In the present circumstances there is no complaint against A3 by any of the purchaser of flats and shops in the two properties and as such no charge u/S 420 IPC can be taken as proved against him.
122. It is submitted by the defence counsel that present is a case of violation of MCD Act and its bye laws concerning unauthorized construction. It is submitted that in A.K. Ganju Vs. CBI Criminal MC No.2384/11, 30.11.11 and 3800/11 decided on 22.11.2013 it has been held that CBI is not competent to investigate the cases involving unauthorized construction in Delhi and as such Hon'ble High Court had quashed the case of the petitioners .
123. This Court has gone through the judgment of A.K. Ganju case (Supra). The judgment in the said case is a fact AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 46 based judgment. The Hon'ble High Court in this case found that there is no evidence to support the prosecution case under PC Act and rest of the offences are for the violation of MCD Act which have not been notified to the CBI for investigation under Section 3 of PC Act and as such the charge sheet was quashed.
124. In view of this position the judgment of A.K. Ganju case (Supra) not be of any help to the case of the defence. It does not bar the prosecution in the matter of unauthorized construction if there is evidence to support the charge under PC Act.
125. Although prosecution has proved unauthorized construction in property no. M-67, Jagat Ram Park and F-139A, Mangal Bazar by A3 but prosecution has failed to prove the charge of criminal conspiracy against A1, A2 with A3 in raising such unauthorized construction by him in the two properties bearing no. F-139A, Mangal Bazar, Laxmi Nagar, Delhi and M-67, Jagat Ram Park, Laxmi Nagar, Delhi. All the accused are acquitted of the charge of criminal conspiracy.
126. The prosecution failed to prove the charge u/S 217 IPC against A1 and A2.
127. No charge is proved under Section 13 (2) read with 13 AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 47 (1) (d) PC Act against A1 and A2.
128. No charge is also proved against A3 under Section 420 IPC.
129. All accused are acquitted of all the charges. File be consigned to record room.
Dictated and announced in the open Court on 30.4.2014.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI AC No.18/11/08 RC No.3(E)/07 CBI Vs. Rakesh Kumar Etc. Date:- 30.4.2014 48