Delhi District Court
Cc No.111/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 30 April, 2013
1
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 111/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and Section 13(2)
r/w 13(1)(d) of PC Act, 1988 & Substantive Offences
thereof.
Unique ID No. 02401R0046782009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Satish Aggarwal
S/o Shri N.L. Aggarwal
R/o A-5/11, Paschim Vihar,
New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 30.04.2013
Date of Judgement : 30.04.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
2other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW13 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW13/A) was forwarded to Superintendent of Police, CBI EOU- VI for registration of FIR u/s 120B IPC r/w 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW14/A bearing RC 1/2007 was accordingly registered and investigated by PW14 Inspector N. Mahato. Fifteen separate charge- sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution. Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but a clean chit has been given to many other officials involved.
2. In brief the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
3may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW13/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10) 4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12) WZ-406R, Janak Park, New Delhi
13) B-3/84, Paschim Vihar, New Delhi
14) A-5/11, Paschim Vihar, New Dehi
15) Shop No.19, New Market, Ramesh Nagar, New Delhi.
However, Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition order passed in respective files. The fact that notings were false was corroborated by entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. The enquiry also revealed that CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
4unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Building) (OIB) and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place. The documents are also alleged to have been forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place and as such abused his official position to cause undue pecuniary advantage for himself or other private persons. Recommendation was accordingly made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI the case was further investigated by PW14 Insp. N. Mahato and chargesheet (Ex.PW14/C) was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution is that property No. A-5/11, Paschim Vihar, New Delhi measuring about 172 Sq. Mtr. owned/possessed by Shri Satish Aggarwal was booked vide FIR No.B/UC/WZ/03/26 dated 17.01.2003 (Ex.PW2/A) by Ajay Kumar Shrotriya, JE, MCD in view of deviation / excess coverage against sanctioned building plan no.144/B/WZ/99 dated 29.04.99 at GF, FF, SF and unauthorized construction in the shape of one drawing room, two bed rooms, one kitchen, toilet at third floor. It was also endorsed on the top of FIR Ex.PW2/A "old and occupied; on complaint". Further an endorsement was made on the FIR by Shri A.P. Sharma, AE for issuing notices u/s 343 and 344 DMC Act on 17.01.03 itself and pursuant to same notice U/s 344 (1)/343 of DMC Act, 1957 dated 17.01.03 (Ex.PW2/C) was issued under the signatures of Shri A.P. Sharma, AE.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
5The notice was served by way of affixation by Shri Ajay Kumar Shrotriya on 17.01.2003 itself after obtaining the orders from the AE as the notice could not be served to the owner Shri Satish Gupta in view of his refusal to receive the same. The notice was served by affixation in presence of the witnesses Ramesh and Chiranji (Baildars, MCD). It is further the case of prosecution that since the owner Satish Aggarwal failed to show cause to notice dated 17.01.03, it was proposed by Shri Ajay Kumar Shrotriya, JE for issuing notice u/s 343(1) of DMC Act which was approved by the AE Shri A.P. Sharma on 23.01.03. Further a notice u/s 343(1) of DMC Act, 1957 was issued on 23.01.2003 under the signatures of Shri A.P. Sharma, AE to Shri Satish Aggarwal (owner/builder) of the property for demolition of the property within 6 days as the construction had been carried in violation of the building bye-laws. The aforesaid notice was further served by way of affixation by Shri Ajay Kumar Shrotriya, JE in presence of the witnesses Umesh Singh (PW3) and Hari Shankar Yadav (PW4) (Baildars in MCD) after procuring orders from the AE(B) since Satish Aggarwal is alleged to have refused to receive the notice.
It is further the case of prosecution that as the accused Satish Aggarwal failed to respond to the said notices, a demolition order dated 31.01.03 was proposed by Shri Ajay Kumar Shrotriya, JE and approved by Shri A.P. Sharma, AE.
Thereafter the case of prosecution is that Ajay Kumar Shrotriya fraudulently and dishonestly made an entry dated 31.03.2003 on the demolition order showing to have carried out partial demolition of CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
6property in question and also made an entry on the demolition order dated 31.03.03 to the effect "punctured roof of room at third floor partly and complete demolition action could not be taken due to non- availability of police force". The entry is alleged to have been made to save the property from demolition. It is alleged that the aforesaid entry was false since the UC file was not received by Shri Ajay Kumar Shrotriya, JE on 31.03.03 from the OI(B) and as per record of PS Paschim Vihar no police was provided for demolition of property no. A5/11 Paschim Vihar. Further, it was also recorded in the demolition register maintained at PS Paschim Vihar in entry dated 31.03.03 that MCD staff had not reported. The prosecution further alleged the entry to be false since demolition charges had not been raised for causing demolition of the said property and also the monthly statement of demolition for the month of March, 2003 did not refer to the demolition of the property in question.
During the course of investigation, the property was further got investigated by team of officers from CPWD and a report Ex.PW8/A was prepared reflecting the existing construction at site in an inspection carried after the registration of FIR in 2007.
4. Charge was framed against accused Ajay Kumar Shrotriya and Satish Aggarwal u/s 120(B) r/w (Section 417/465/468/217 IPC and Section 13(2) alongwith Section 13(1)(d) of the Prevention of Corruption Act, 1988). Accused Ajay Kumar Shartoriya was further charged for substantive offences u/s 417/465/468/217 IPC and u/s 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
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75. In support of its case, prosecution examined the following fourteen witnesses:
i. Shri Ashok Kumar (the then Vice Chairman, DDA)
ii. Shri Moti Lal (the then OI(B), MCD)
iii. Shri Umesh Singh (Baildar, MCD)
iv. Shri Hari Shankar Yadav (Baildar, MCD)
v. SI Madan Lal
vi. Shri R.S. Rana (AGEQD)
vii. Shri A.P. Sharma (the then AE, MCD)
viii. Shri B.D. Bansal (SE, CPWD)
ix. Shri Sanjiv Kapoor (Senior Architect, CPWD)
x. Shri Lal Chand (Driver, MCD)
xi. Shri Brij Pal Singh (Executive Engineer, MCD)
xii. Shri Dal Chand (Driver, MCD)
xiii. SI Arvind Kumar (CBI)
xiv. Insp. N. Mahato (IO, CBI)
(a) PW13 SI Arvind Kumar conducted the preliminary enquiry
prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry (PE) was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined along with the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
8record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person. Accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC and in this respect, a letter dated 23.01.2007 (Ex.PW13/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri whose signatures are at point B on all the pages.
(b) PW1 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) proved the sanction order Ex.PW1/A whereby sanction was accorded u/s 19 of the P.C. Act for prosecution of accused Ajay Kumar Shrotriya, JE.
(c) PW8 Shri B.D. Bansal, SE(P) and PW9 Shri Sanjiv Kapoor, Senior Architect CPWD, are the witnesses to the inspection and preparation of report as to existing construction in the property in question after the FIR was registered by CBI in 2007. The said witnesses proved the report Ex.PW8/A prepared on inspection of the property no. A5/11 Paschim Vihar.
PW8 B.D. Bansal proved the report Ex.PW8/A and identified his signatures on the report at point C along with signatures of Shri Jag CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
9Mohan Swaroop at point A and signatures of Shri D.C. Gupta at point B. He further clarified that the report Ex.PW8/A also describes the permissible construction as per building bye-laws of 1983 and actual coverage at site.
PW9 Shri Sanjiv Kapoor also deposed on similar lines.
(d) PW7 Shri A.P. Sharma, the then AE(B) deposed that he had worked as AE (B) from November, 2002 till March, 2005 in Rajouri Garden Zone in MCD. Further, he was working in the supervisory capacity over the unauthorized construction in the Zone, which used to be reported by the concerned JE of the area and action on such properties was to be taken under DMC Act.
He further stated that FIR with respect to unauthorized construction in property no.A5/11, Paschim Vihar vide FIR dated 17.01.03 was issued under the signatures of Ajay Kumar Shrotriya at point A and the FIR (Ex.PW2/A) also bears his endorsement at point C with his signatures on the same date "issue notice u/s 343 and 344 of DMC Act".
He further stated that notice u/s 344(1) of DMC Act dated 17.01.03 (Ex.PW2/C) was issued under his signatures at point A on the basis of FIR dated 17.01.03. He also proved his signatures on the noting on the back of notice at point E against the endorsement at point C granting permission for pasting of the notice as sought by Ajay Kumar Shrotriya. He further proved the notice u/s 343 of DMC Act CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
10issued under his signatures at point A and bearing endorsement by the concerned JE seeking permission for pasting it. He also stated that as per record, both the notices have noting of JE Ajay Kumar Shrotriya regarding their pasting on the premises in the presence of witnesses.
He further stated that on non receipt of any response to the notices u/s 343 and 344 DMC Act from the occupant/ owners/ builder of the building in question, the JE concerned procures order for carrying out demolition on the premises.
He further stated that the demolition order dated 31.01.03 (Ex.PW2/E) bears his signatures at point C along with his endorsement "demolish as per law". He also stated that thereafter, the file was marked to OI(B) West Zone.
He also clarified that programme for carrying out demolition is fixed on monthly basis by the EE concerned. Further requisition for police force is sent to the concerned officers and as per scheduled programme, concerned JE of the area takes file of the particular property wherein the demolition is to be carried from OI(B). He further stated that the demolition is carried as scheduled in the presence of JE; and AE may also be present during the process of demolition. Further, JE concerned approaches to the PS for obtaining the police assistance on the date fixed for demolition.
He further stated that after the police force is obtained, the JE concerned takes action against the property and further reports to the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
11AE. Further, the report given by JE on record regarding action taken is considered as correct. Further, in case the demolition could not be carried out or partly carried, the further orders are accordingly passed by the AE and the file is marked to OI(B).
He further proved the endorsement by Ajay Kumar Shrotriya on 31.03.03 on order of demolition at point D to the effect "punctured the roof of room at third floor partly and complete demolition could not be conducted due to non availability of police force". He also stated that on the basis of the aforesaid report, he had further ordered at point E to the effect "try again" and thereafter, the file was marked to OI(B). He also clarified that he had not visited the property in question along with Ajay Kumar Shrotriya.
He further stated that there is further endorsement made by him on the back of demolition order at point G dated 22.07.03 "try again"
since the action could not be taken due to shortage of time as reported by JE concerned and the file was marked to OI(B).
(e) PW3 Shri Umesh Singh and PW4 Shri Hari Shankar are witnesses to service of notices u/s 343/ 344 DMC Act.
PW3 Shri Umesh Singh deposed that he was posted in MCD West Zone in 1999-2000 as beldar and as per his duties, he used to accompany the JE concerned to the properties wherein unauthorized construction may have been carried for purpose of service of notices under the DMC Act. He further deposed that he was posted as beldar in CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
12West Zone during the tenure of Shri Ajay Kumar Shrotriya. Further, the notices were handed over to the owner/builder, if present at spot and in the absence of the same the notices were pasted as per the directions of the JE concerned.
He further identified his signatures at point A on the back of notice u/s 343 of DMC Act (Ex.PW2/D) and stated that he had affixed the aforesaid notice on the building. He further deposed that the owner/builder of the property was not available and as such the notice was affixed as per instructions of Shri Ajay Kumar Shrotriya.
PW4 Shri Hari Shankar Yadav deposed that in 2001-2003 he was working as Baildar in the area of West Zone, MCD. Further, his duties included pasting / serving of notices and demolishing the unauthorized construction and same used to be done at the instance of concerned JE. He further stated that notice u/s 343 DMC Act dated 23.01.03 (Ex.PW2/D) bears his signatures at point X and signatures of Shri Ajay Kumar Shrotriya at point Y. He also stated that the notices are usually pasted on the entrance of building and he had pasted the notice on the address reflected on the notice at the instructions of Shri Ajay Kumar Shrotriya.
(f) PW2 Shri Moti Lal, the then Officer In-charge (Building) MCD deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
13missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers. Further, during his aforesaid assignment he had made various entries in missalbandh registers regarding unauthorized construction maintained in his office. Further, FIR No. B/UC/WZ/03/26 dated 17.01.03 (Ex.PW2/A) regarding property no.A5/11, Paschim Vihar was lodged by the then JE Ajay Shrotriya under his signatures at point A. He identified his initials at point B and endorsement by Shri A.P. Sharma, AE at point C on FIR to the effect "issue notice u/s 343 and 344 DMC Act and take necessary action as per DMC Act" on Ex.PW2/A. He further stated that he had entered particulars of the FIR in missalbandh register (Ex.PW-2/B) at Sr. No.26 at point A and file was handed over to Shri A.K. Shrotriya, the then JE. He further stated that Shri A.P. Sharma, the then AE(B) had issued show cause notice (Ex.PW2/C) u/s 344/343 DMC Act dated 17.01.03.
He further deposed that on the same date, permission for pasting was sought by the concerned JE Shri Ajay Kumar Shrotriya at point A on Ex.PW2/C. Further, on the same date after seeking permission for pasting of the notice, the same was pasted at site by Ajay Kumar Shrotriya in the presence of witnesses and report bears signatures of Shri A.K. Shrotriya at point E. He further deposed that the order to issue second notice under Section 343 (1) of DMC Act dated 23.01.03 (Ex.PW2/D) was procured by JE Shri A.K. Shrotriya from AE Shri A.P. Sharma which bears signatures of Shri A.P. Sharma, AE at point A. Further, entry of this CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
14second show notice was also reflected in Missalbandh Register at point X against entry dated 23.01.03.
He further stated that permission to paste the notice Ex.PW2/D was sought on 23.01.03 by Shri A.K.Shrotriya vide endorsement at point E on the back of Ex.PW2/D. Further, the endorsement was countersigned by AE Shri A.P. Sharma at point F. He further stated that there is another endorsement in respect of pasting of the said notice on 17.01.03 at point F on Ex.PW2/D under the signatures of Shri A.K.Shrotriya.
He further deposed that demolition order dated 31.01.03 (Ex.PW2/E) was passed in respect of property in question under the signatures of Shri A.K.Shrotriya at point A and the same bears signatures of Shri A.P. Sharma at point B. Further, an endorsement was made at point C by A.P. Sharma "demolish as per law".
He further stated that there is an endorsement at point D on Ex.PW2/E under the signatures of Shri A.K. Shrotriya "punctured the roof of third floor partly and complete demolition action could not be conducted due to non-availability of police force". Further, the file was put up before AE Shri A.P. Sharma who remarked "try again" under his signatures at point E and thereafter, the file was marked to him. He further deposed that there is also an endorsement at point F by the then JE Shri Suleman "action could not be taken due to shortage of time". Further, an endorsement dated 22.07.03 was made by concerned AE A.P. Sharma at point C "try again" and the file was marked to him.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
15He further stated that as per movement register (Ex.PW-2/F), on 31.03.2003, no file pertaining to property in question was taken over by Ajay Kumar Shrotriya whereas three files pertaining to property no. J-128 RBI Colony, J-143 RBI Colony and BG 7/146 Paschim Vihar were taken by Shri A.K.Shrotriya and the same were received back. Further, entry in this respect is dated 19.02.03 at point A in movement register.
He further stated that demolition register (Ex.PW-2/G), maintained by him during his tenure in the office, was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard in the register maintained for this purpose. He further proved the entries dated 31.03.03 made in the demolition register by Shri Ajay Kumar Shrotriya wherein action was alleged to have been taken. He also stated that it is also reflected against entry dated 31.03.03 that no force was available.
He further deposed that as per rule the above said file should be handed over back to him on the same day on the arrangement of police force for demolition but the same was never handed over to him by Ajay Shrotriya. Further, the files regarding record of unauthorized building remained in his custody.
He further stated that the programme for demolition was used to be chalked out by the concerned XEN and the same was communicated CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
16to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard of levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. He further stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area.
He further deposed that Action Taken Report against the unauthorized construction was used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official purposes. He also stated that Shri Vijay Kadyan and Brij Pal Singh were posted as XEN in West Zone in the year 2002-03.
He further proved Action Taken Report (Ex.PW2/H) bearing his signatures at point B on page No. 1,4,5,6,7 along with the signatures of the then EE, Shri Kadyan at point A. He also stated that page no. 8 & 9 of the report and report for the month of March 2003 is under the signatures of Shri B. P. Singh, EE at point A. He also stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register which was maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him. Further he used to send Action Taken Reports on the basis of demolition register and missalbandh CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
17register for the concerned period and after verifying from the records and used to submit Action Taken Report before XEN for forwarding it of higher officials.
He further proved letter dated 24.02.03 (Ex.PW2/i) whereby Deputy Commissioner of Police was requested to provide police force for 31.03.03 for Paschim Vihar area under the signatures of Shri B. P. Singh, the then EE (Building).
He also stated that the duty to return the file was of the JE/AE who took over the possession of the file and normally the file used to be returned on the same day after the action had been taken. He further stated that the file was to be again taken by JE in case the action was to be again/ subsequently taken. He also stated that the file pertaining to property in question was not entered in the movement register on 31.03.03 for any action for demolition. Further, the file pertaining to property No. A5/11 Paschim Vihar was not taken by Ajay Shrotriya, JE on said date and the same were also received on same date, i.e. 31.03.03.
(g) PW11 Shri Brij Pal Singh, Executive Engineer, Central Zone, MCD deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, Rajouri Garden, New Delhi and during that period he was looking after building department in the supervisory/administrative capacity. He further deposed that the office was maintaining missalbandh register through OI(B) on daily basis in CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
18which entries regarding unauthorized construction were maintained on the basis of feed back given by the concerned JE/AE of the area. Further, the missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures.
He also stated that monthly report was used to be sent to the higher authorities for their information regarding day to day working and monthly progress. Further, programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for the intimation to concerned police station for the requisition of police force for the assistance in carrying out the demolition.
He further deposed that while sending monthly report to higher authorities it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/ sealing actions carried out during the previous month and booking of properties under 345 (A) of DMC Act and action taken against the properties under Section 344 of DMC Act. Further, all the information used to be provided by OI(B) and the same was countersigned by him (EE) for sending it to the higher authorities.
He further deposed that the Action Taken Report (Ex.PW2/H) for the period January to May 2003 except February 2003; April 2002 to December 2002 except October 2002 were sent by him under his signatures at point A. Further, the reports were forwarded by him and the same were put up before him by the concerned OI(B) Shri Moti Lal CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
19which were prepared on the basis of original demolition register and all the ATRs were used to be annexed with particulars about demolition carried out in the previous month.
He clarified that as per procedure, an entry regarding particular demolition is made in UC file. The same is put up before concerned AE and after its due ratification by the AE, the UC file goes back to OI(B).
He further stated that as per UC file (D-3) and its demolition order available on page 5 (Ex.PW2/E), there is marking of concerned file to AE(B) in entry available at point C dated 31.01.2003 along with comments "demolish as per policy" and the file was marked to OI(B). He further deposed that there is another entry regarding demolition on demolition order dated 31.03.2003 at point D which shows that demolition was partly carried out and the file was marked to AE(B) who commented at point E "try again" and the file was marked to OI(B). He further proved entry dated 22.07.2003 at point G by concerned AE whereby endorsement was made"try again" on the comments of concerned JE at point F and the file was marked to AE(B).
He further stated that as per Action Taken Report for the month of March 2003 (Ex.PW2/H), there is no mention of demolition of property No.5/11 Paschim Vihar. He also stated that the Action Taken Reports were sent by Mr. Moti Lal, O.I. (B) on the basis of demolition register and missalbandh register for the concerned period and after verifying from the records on monthly basis.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
20(h) PW10 Shri Lal Chand posted as Driver in MCD West Zone, Delhi deposed that he used to ferry the officials and the police force as and when directed and used to maintain log book (Ex.PW10/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column in the log book. Further, he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 31.03.2003. He further stated that the log book was maintained by him for vehicle no. DDL 4607 driven by him on various dates and the entries on various dates on which he was deputed in the vehicle are in his handwriting.
He further stated that as per entry at point A dated 31.03.2003 which is in his hand, he had taken vehicle on the requisition of the then JE Shri Ajay Kumar Shrotriya who visited Police Station Paschim Vihar to take police force for demolition. The same bears his signatures at point B and initials of Shri Ajay Kumar Shrotriya at point C. Further, later on, they returned back without carrying out demolition because police force was not made available to them by concerned police authorities. Further, the entry shows his signature at point A and signature of the then JE at point B. He further deposed that the entry in the log book dated 22.07.2003 on page 166 at point A is in the hand of his successor Dal Chand. He also identified signatures of Dal Chand at point B against this entry. He further deposed that as per said entry, vehicle was CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
21requisitioned by the then JE Shri Suleman Khan who went to PS Paschim Vihar and reportedly came back.
PW12 Shri Dal Chand further proved the aforesaid entry dated 22.07.03 in his handwriting and bearing his signatures.
(i) PW5 SI Madan Lal deposed that in June, 2008 he was posted as ASI in PS Pashim Vihar, New Delhi and had produced two documents before CBI, description of which is mentioned in receipt memo (Ex.PW5/A). He further stated that one of the said documents is daily diary register for 31.1.03, 31.3.03 and 27.7.03 (Mark PW5/B). He also proved photocopy of demolition register maintained at PS Paschim Vihar as Ex.PW5/C, which bears his signatures at point A.
(k) PW6 Shri R.S. Rana, AGEQD proved the report (Ex.PW6/B) comprising of seven pages alongwith detailed reasons. He further stated that the same bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD who had also examined the case independently and came to the same conclusion.
(l) PW14 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A. K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW14/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW13/A) CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
22vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department West Zone of MCD New Delhi. He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like copies of missalbandh register (Ex.PW2/B), demolition register (Ex.PW2/G), log book (Ex.PW10/A), attendance register of JEs (Ex.PW14/B) and action taken report Ex.PW2/H. He also stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW6/A) and also the report (Ex.PW6/B) was thereafter obtained. He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW8/A) from the concerned department.
He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/ 344 DMC Act and demolition order along with other relevant documents. Further, he had also joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
23documents were collected in this regard. Further, he collected the demolition register pertaining to PS Paschim Vihar Ex.PW5/C. He further deposed that as per investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.
6. In his statement u/s 313 Cr.P.C. accused Satish Aggarwal denied the case of prosecution and stated that he is innocent and has been falsely implicated in this case. He further took a stand that he was unaware of affixation of notices Ex.PW2/C & Ex.PW2/D. He further admitted that demolition action had been carried in the premises by Ajay Kumar Shrotriya alongwith other team members. He also stated that the construction had been commenced as per the sanctioned building plan obtained from MCD and construction, if any, beyond the permissible area stands regularised. He also denied having known Ajay Kumar Shrotriya prior to the demolition action taken in property in question. However, no evidence was led in defence by him.
Similarly, accused Ajay Kumar Shrotriya also denied the case of the prosecution and submitted that he had falsely implicated. With respect to entry dated 31.03.03 he took a specific stand that the demolition team had gone to the spot for the second time without police force and official vehicle as per the directions of EE since there was notice for vacation of premises No. B3/84, Paschim Vihar and the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
24demolition was to be carried out on or before 31.03.03 which fact was admitted by one of the prosecution witnesses, namely, Ramesh (baildar) in his statement u/s 161 Cr.P.C in CC No.117/11 but the witness had been dropped by the prosecution. Accused also filed written statement u/s 313(5) Cr.P.C and also led evidence in defence.
DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD Delhi produced the record in respect of postings and wards assigned to Junior Engineers during the period 03.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW1/X collectively) which was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001.
He also produced a chart indicating the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03 bearing his signatures at point A alongwith Shri A.K. Meena, EE(B) at point B and Shri R.K. Ailwaadi, SE at point C. He further deposed that the chart has been prepared on the basis of Area Distribution Register and office records.
During cross-examination, he further produced the details of the wards and attached colonies during the period 2002/03 (Ex.DW1/Z1). Also, the details of the officers i.e. DC/SE/EE/AE/JE who were posted during tenure of Ajay Kumar Shrotriya, JE at the time of booking of the property (Ex.DW1/Z2) compiled in 08 sheets was produced by him which included the name of the officer posted prior to and after the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
25tenure of Ajay Kumar Shrotriya in the concerned relevant wards.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW1/A had been passed by PW1 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was also submitted that prosecution case is demolished CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.26
since Ramesh baildar had admitted the carrying of demolition in the property in question in his statement recorded u/s 161 Cr.P.C. in CC No.117/11 and the same had been deliberately suppressed by prosecution in the present case.
f) It was also contended that the conduct of the proceedings on 31.03.03 by Ajay Kumar Shrotriya stands proved by the fact that the noting dated 31.03.03 is also endorsed by Shri A.P. Sharma, AE on the same date and it could not be assumed that demolition action had not been taken merely because the file was not reflected by the OI(B) in the 'file movement register'. Reliance was also placed on the cross-examination of PW2 Shri Moti Lal who admitted having missed the making of entries several cases due to overload of work in the file movement register and other record wherein demolition had been carried.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 31.03.03 without police force since the force was not made available due to arrangements at Kirti Nagar. Further, as per the directions of EE there was notice for vacation of premises No. B3/84, Paschim Vihar and the demolition was to be carried out on or before 31.03.03 which fact was admitted by one of the prosecution witnesses, namely, Ramesh (baildar) in his statement u/s 161 Cr.P.C in CC No.117/11 but the witness had been dropped by the prosecution.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
27h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 31.03.03 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried by the owner/builder in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the ward for a short duration from 02.12.02 to till 31.03.03 and the investigating agency had made him as a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action.
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 31.03.03 he had to return back after initially visiting the police station alongwith official vehicle since the police force was not made available as an arrangement had been made at Kirti Nagar as reflected from Ex.DW4/A proved in CC No.109/11. A copy of the same was referred and filed during course of arguments since arguments in CC No.109/11 have also been taken up alongwith this case as the entry dated 31.03.03 in respect of action taken in property no. B3/84, Paschim Vihar is also challenged by the prosecution in aforesaid case.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on the date CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
28of the concerned entry (i.e. 31.03.03).
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
Counsel for co-accused Satish Aggarwal owner of the property in question also submitted that there could not have been any conspiracy, since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that Satish Aggarwal was known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the accused Satish Aggarwal had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. He further admitted that the partial demolition action had been carried in the property in question on 31.03.03.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 31.03.03 in the demolition register was falsely made in conspiracy in order to help accused Satish Aggarwal and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
29It was also submitted that the entry dated 31.03.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record. Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri Pujya Kumar Singh, Advocate for accused Satish Aggarwal, ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 31.03.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused Satish Aggarwal and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
30take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.31
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
32to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court 826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.33
accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
34Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
35Evidence has been led on record in defence whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward has been revealed for the period 2002-03 as under:
Ward No. Name of JE's Tenure of JE's in said Ward
Shri Vinod Sharma 02.07.02 to 23.10.02
Shri Anil Aggarwal 23.10.02 to 02.12.02
25-26 Shri Ajay Kumar Shrotriya 02.12.02 to 31.03.03
Shri Anil Aggarwal 31.03.03 to 30.04.03
Mohd. Ahmed 30.04.03 to 18.06.03
Shri Suleman Khan 18.06.03 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted only for a short period from 02.12.02 to 31.03.03 during which he had booked the unauthorized construction in the property in question as well as partial demolition action was shown to have been taken on 31.03.03, though the demolition action is disputed by the prosecution.
It cannot be lost sight of that the building is reflected to be 'old and occupied' as per the endorsement made on the top of the FIR Ex.PW2/A and unauthorized construction is stated to be by way of deviation/excess coverage against sanctioned building plan dated 29.04.99. Obviously, the unauthorized portion of the building must have come up over some period of time and the registration of unauthorized construction by way of FIR Ex.PW2/A was only made by Ajay Kumar Shrotriya, JE during his short tenure w.e.f. 02.12.02. It is also pertinent to note that the investigating agency has not taken up any case against the officials posted prior to Ajay Kumar Shrotriya, JE who CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
36may have simply ignored the carrying of the unauthorized construction which had been booked only by Ajay Kumar Shrotriya, JE.
The further action by way of issuance of notices u/s 344 (1) dated 17.01.03 Ex.PW2/C as well as notice u/s 343 DMC Act dated 23.01.03 Ex.PW2/D was taken as per procedure and is not disputed by prosecution. Even otherwise, the proceedings taken up by Ajay Kumar Shrotriya w.r.t. issuance of the aforesaid notices cannot be doubted since the notices have been duly issued under the signatures of the then AE Shri A.P. Sharma and the execution of the same is also supported by the prosecution witnesses i.e. the baildars who had accompanied for purpose of execution of notices. Thereafter, even the passing of the 'demolition order dated 31.01.03' Ex.PW2/E is not disputed by the prosecution which was proposed by Ajay Kumar Shrotriya, JE and approved by Shri A.P. Sharma, the then AE.
The prosecution has only disputed the entry dated 31.03.03 made by Ajay Kumar Shrotriya, JE in the UC file as well as on the demolition register whereby partial demolition action was stated to have been carried by him and the endorsement was made to the following effect "punctured the roof of room at third floor partly and complete demolition action could not be conducted due to non-availability of police force". It is pertinent to note that the aforesaid entry dated 31.03.03 in UC file is duly countersigned by the AE (B) dated 31.03.03 and he also endorsed "try again" and the file was marked to OI(B). The dealing of the file by the AE(B) on the same date i.e. 31.03.03 duly reflects that the file was taken by Ajay Kumar CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
37Shrotriya, JE and also dealt by the higher officials i.e. the AE on the same date. In view of above, the case of the prosecution that the file was not received by Ajay Kumar Shrotriya, JE from the OI(B) since the same is not reflected in the file movement register by OI(B) stands completely demolished. It cannot be presumed as contended by ld. PP that even the AE had subsequently pre-dated and signed the noting showing the demolition action by Ajay Kumar Shrotriya, JE. Had this been the eventuality then there was no occasion for the investigation agency to give a clean chit to AE(B) who has not been arrayed as a accused. The root of the prosecution case stands dented at this stage itself.
It is also pertinent to further observe that by mere part demolition action dated 31.03.03 the file never stood closed since it was recorded by AE(B) in his noting dated 31.03.03 to "try again"
and the file was further taken up on 22.07.03 by the successor JE who had made noting dated 22.07.03 to the effect that action could not be taken due to shortage of time which was further endorsed by the AE with the noting "try again" dated 22.07.03. The said fact clearly reflects that investigating agency has clearly ignored the role of the subsequent JEs and AEs who failed to take up the file for further demolition action but only cornered Ajay Kumar Shrotriya, JE disputing the 'partial demolition' carried on 31.03.03 with oblique motive.
12. Prosecution has next taken a stand that entry dated 31.03.03 made in the demolition register and UC file is forged and wrongly CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.38
introduced by Ajay Kumar Shrotriya, JE since no police force was available on aforesaid date and he could not have proceeded to carry the demolition on his own. It has also been contended that since the movement of the file is not reflected in the file movement register, the file was not taken up as per procedure and the entry of demolition has been fabricated later on. It is further submitted that the demolition action had not been carried as the same is not reflected in the 'action taken report' for the corresponding month which is prepared by the OI(B) and also since the 'demolition charges' had not been claimed by the JE.
In order to consider the contentions raised by ld. PP for CBI, it may be appropriate to refer to the entry dated 31.03.03 made in the 'demolition register' as well as the connected circumstances to assess if it is proved by the prosecution that the partial demolition action had not been taken up as reflected in the aforesaid entry dated 31.03.03 in the demolition register maintained by MCD.
A bare perusal of entry dated 31.03.03 made in the demolition register reflects that on 31.03.03 the schedule was fixed for demotion at Paschim Vihar under jurisdiction of Ajay Kumar Shrotriya, JE and also demolition programme was fixed in this regard. The fact that Ajay Kumar Shrotriya had visited PS Paschim Vihar is corroborated by the log book relied by the prosecution which reflects as per deposition of PW10 Shri Lal Chand that on 31.03.03 the vehicle was taken on requisition of Ajay Kumar Shrotriya, JE who visited PS Paschim Vihar to take police force for demolition and later on they returned back CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.39
without carrying out demolition because police force was not made available by police authorities. The fact that demolition was not initially carried on 31.03.03 with aid of police force despite reporting at PS Paschim Vihar is not disputed by Ajay Kumar Shrotriya, JE but it is pointed out that it is wrongly reflected in the demolition register maintained at PS Paschim Vihar to the effect 'MCD staff not reported' since the prosecution has intentionally not brought out the noting dated 31.03.03 made by woman ASI Nirmala on letter dated 24.02.03 Ex.DW4/A to the effect that due to arrangements at Kirti Nagar the force is unavailable. The said letter proved as Ex.DW4/A in CC No. 109/11 and cannot be doubted. As such it has been brought on record that the demolition action could not be taken because of the non- availability of force on visit to PS Paschim Vihar and it was wrongly shown in the register maintained at PS to the effect that MCD staff had not reported. The aforesaid register maintained at PS Paschim Vihar as relied by prosecution to contend that MCD staff had not reported at PS does not further the case of prosecution.
13. It is further the categorical stand taken by Ajay Kumar Shrotriya, JE that there is no bar to take demolition action without police force if the same is feasible and the properties mentioned in entry dated 31.03.03 in the demolition register maintained by MCD were visited thereafter along with staff.
It may also be noticed that it has come in evidence of PW7 Shri A.P. Sharma, AE that the demolition action can be taken even without police assistance and in case the official truck of MCD is not available CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.40
the JE and the subordinate staff can go for action in the property as per their convenience. PW11 Shri Brij Pal Singh in this regard also admitted in cross-examination that there was no requirement to forward the request for requisition again on the date fixed for demolition action and the demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction.
In view of above, merely because the JE visited the property without the police aid which is even duly reflected in entry dated 31.03.03 in the UC file, it cannot be presumed that the entry was forged or the partial demolition had not been carried out as inferred by the Investigating Agency.
In the aforesaid aspect, it may also be noted that the demolition action is stated to have been taken in four properties on 31.03.03 by Ajay Kumar Shrotriya, JE i.e. B-3/404 Paschim Vihar, A 1/64 Paschim Vihar, A-5/11 Paschim Vihar and B-3/84 Paschim Vihar (the property in question). The prosecution has disputed the demolition entry in respect of B-3/84 Paschim Vihar which is the property involved in CC No. 109/11 and has been taken up for arguments along with the present case but has not filed any charge-sheets in respect of demolition action carried in B-3/404 and A-1/64 Paschim Vihar. This reflects that demolition action in B-3/404 and A-1/64 Paschim Vihar is not disputed by investigating agency even though the files of the aforesaid properties were not shown in the file movement register.
It is also imperative to point out that mere reflection of CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.41
movement files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs /AEs for any other proceedings without recording in the file movement register. In the aforesaid circumstances, the possession of the UC file being obtained by JE after return from PS Paschim Vihar without entry in the demolition register cannot be ruled out and no adverse inference can be drawn merely because the movement of file was not reflected in the movement register. Also moreso for the reason that file was dealt by AE Sh. A.P. Sharma on 31.03.03 as proved on record.
It may also be mentioned that only the attested copies of file movement register have been produced by the prosecution and the original register has not been brought on record.
14. The taking of the demolition action in the property in question is also evident from the statement of witness Ramesh recorded u/s 161 Cr.P.C. in CC No.117/11 pertaining to property no. 15A/11 Tilak Nagar which has not been filed in the present case by the investigating agency. The reason why the same has been supreessed in the present case is obvious as the same does not support the case of the prosecution. The said statement of Ramesh CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.42
recorded under section 161 Cr.P.C. in CC No. 117/2011 was duly put to the investigating officer during cross-examination and admitted by him, wherein it is categorically recorded by the IO that on 31.03.03 said Ramesh, baildar had accompanied Ajay Kumar Shrotriya, JE along with 2/ 3 baildars to property no. A5/11 Paschim Vihar where some portion of a room of third floor were demolished without assistant of police force. There is absolutely no explanation by the IO as to why the aforesaid statement given by Ramesh Kumar and recorded by him u/s 161 Cr.P.C. was ignored to arrive at an inference that the demolition had not been carried in property no.A5/11 Paschim Vihar. The aforesaid aspect clearly demolishes the prosecution case that entry regarding part demolition had been forged by Ajay Kumar Shrotriya, JE. The fact that the demolition action was taken in the property is also admitted by co-accused Satish Aggarwal in response to Q.No.106 of the statement recorded u/s 313 Cr.P.C.
15. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that the during cross-examination of PW2, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.43
which may be due to negligence or oversight by OI(B) but were not disputed or charge-sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW2 Moti Lal in his cross-examination dated 24.02.12 page no.6 para 2 to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of PW2 Moti Lal, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW2 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW2 Moti Lal dated 24.02.12 on page no.2 para 3 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no.23, Punjabi Bagh for 17.10.02 (pertaining to property No.C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.44
aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He has also admitted on page 4, "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report, I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 31.03.03 is forged and the demolition action had not been carried by the JE.
16. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
45job of OI(B) to prepare the letter of demand / bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter / bill is sent to the owner / builder under the signatures of AE. It is also contended that counsel for accused that JE has in fact no role to play in recovery of said charges.
To assess the aforesaid contention, it may be noticed that PW11 Shri Brij Pal Singh, the then AE stated in cross-examination dated 01.05.12 (page 4 para 1) to the effect:
"The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
It was also admitted by PW14 Insp. N. Mahato (IO) in his cross- examination dated 23.08.12 page 13 para 2 that "the demolition charges in respect of action taken by MCD are required to be collected by AE and not by the JE." In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 31.03.03 the further action in this regard if any could be only taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 31.03.03 carrying partial demolition action had been forged.
17. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
46construction reflected in the report leads to inference that the demolition action had not been carried on 31.03.03.
On the other hand, learned counsel for accused Ajay Kumar Shrotriya has pointed out that merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 31.03.03. It is further submitted that Ajay Kumar Shrotriya could not have taken any further action if the repairs had been carried after his transfer from the ward on 01.04.03.
At the outset, it may be noticed that the report prepared by CPWD reflecting the construction in 2007/08 does not specify the period of construction of property. Merely because the property also consisted of unauthorized constructed portion in 2008, it cannot be presumed that no demolition action had been taken on 31.03.03. In the aforesaid context, it may also be noticed that the evidence on record does not prove that the entry dated 31.03.03 regarding partial demolition action had been forged as already discussed above. Also the subsequent repair / renovation of the demolished portion cannot be ruled out in the intervening period from 31.03.03 till the inspection of the property in the year 2008 by CPWD. It has also come up in cross- examination of PW14 Insp. N. Mahato (IO) on 24.07.12 (page 9 para 2) that he did not try to ascertain if the property may have been renovated / repaired after the part demolition. In view of above, on the basis of construction found existing during investigation by CPWD in CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
472008, it cannot be conclusively inferred that demolition action had not been taken on 31.03.03.
18. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since the accused Ajay Kumar Shrotriya, JE had forged the entry dated 31.03.03 to benefit the owner/ builder (Satish Aggarwal).
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show the meeting of the accused during the relevant period or passing of gratification. PW14 Insp. N. Mahato during his cross-examination dated 23.08.12 categorical admitted that the owner of the property had informed him that Ajay Kumar Shrotriya, JE had not met him during 2002-03 and further the IO did not verify from any other witness in case Ajay Kumar Shrotriya, JE had met the owner of the property. The inference as to conspiracy has been drawn merely on the presumption that the entries dated 31.03.03 had been falsely introduced which itself has not been proved beyond reasonable doubt. For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 31.03.03 the property of the owner/ builder could not have been saved from further demolition action since it was categorically endorsed by the AE on noting dated 31.03.03 to the effect "try again". The action for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
48other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 31.03.03 and the UC file was also further taken up on 22.07.03.
I am, therefore, of the considered view that the circumstances relied by prosecution do not establish if the entry dated 31.03.03 had been made by Ajay Kumar Shrotriya, JE in conspiracy with co-accused Satish Aggarwal.
19. Ld. PP for CBI also contended that the entry dated 31.03.03 appears to be forged since attendance had not been marked by Ajay Kumar Shrotriya in the attendance register from 24.03.03 to 31.03.03 and as such an adverse inference is to be drawn against him.
The said contention has been opposed by ld. Counsel for accused Ajay Kumar Shrotriya and it has been pointed out that if the officer/JE was on field duty, the attendance may have been missed to be marked but the conduct of proceedings cannot be disputed since the proceedings stand corroborated by AE, as the file was marked to AE on 31.03.03 and was also initialed by the AE. Further the JE had also initialed the log book whereby he had visited PS Paschim Vihar on 31.03.03 and is corroborated by Dal Chand (driver).
In the aforesaid facts and circumstances, I am of the considered view that the adverse inference cannot be drawn merely because the attendance register was not initialed by Ajay Kumar Shrotriya on 31.03.03 since he was on field duty as proved by the proceedings conducted on 31.03.03 and attendant circumstances.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
4920. I am constrained to point out that the investigating agency at its whims and fancies carried the investigation to only fix Ajay Kumar Shrotriya ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE, EE and SE without bothering to investigate their role.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question. The number of cases involving unauthorized construction and failure to take requisite action is far larger but investigation has been simply confined by the investigating agency to 15 cases pertaining to Ajay Kumar Shrotriya.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
50of subordinate officers was deliberately ignored.
21. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 30th April, 2013 Central District, THC, Delhi.
CC No.111/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.