Delhi District Court
That Of "Krishnanand Agnihotri vs State Of Mp, Reported In Air on 16 March, 2011
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT) - 02 : DELHI.
RC No.57(A)/1998
CC No. 41/2001
CBI
VS
VIJENDER DAHIYA,
JE (BUILDING), MCD, DELHI
R/O C1A/14A, MAIN PANKHA ROAD,
JANAKPURI, NEW DELHI.
PRESENT ADDRESS:
VIJENDER DAHIYA,
S/O LATE SH. JAI SINGH,
R/O A2 BLOCK,
147, 1 FLOOR,
st
PANKHA ROAD,
JANAKPURI, NEW DELHI.
Date of Institution :18.06.2001.
Date of Arguments :10.03.2011.
Date of Judgment :16.03.2011.
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JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 18.06.2001.
2. Brief facts as per the case of prosecution are that initially a case vide RC No. 57(A)/98DLI dated 05.10.1998 was registered against Sh. Vijender Dahiya, JE, Municipal Corporation of Delhi, on the basis reliable source information alleging therein that Sh. Vijender Dahiya, while working as JE (Building), MCD from December, 1988 to September, 1998 has acquired huge assets disproportionate to his known sources of income of Rs.5.30 lacs approximately received by way of salary from MCD.
3. During the investigation, it has come to light that Sh. Vijender Dahiya joined MCD in December, 1988 as Junior Engineer 3 and earned income of Rs.3,73,834/ during the period December, 1988 to September,1998 in the form of salary from MCD and he had no immovable or movable assets in his own name before joining MCD. His wife Smt. Kavita Dahiya was working with M/S. Unicom Enterprises and has earned income of Rs.72,000/ as salary and total interest earned Rs.14,072/ from different bank accounts in the name of his family members and himself.
4. It has further revealed that the wife of Sh. Vijender Dahiya namely Kavita Dahiya received an amount of Rs.13,75,000/ in March, 1998 from Sh. Shamsher Singh, through cheque dated 30.03.1998 for the sale of Property No. A1/88, Janakpuri, New Delhi. Thus Sh. Vijender Dahiya acquired income of Rs.18,35,506/ during the said check period.
5. It has revealed that Vijender Dahiya has maintained 4 different accounts in his name and in the name of his family members during December,1988 to September, 1998 and details of the balance in different bank accounts are (i) Balance in SB Account No. 9647, Syndicate Bank, Janak Puri, New Delhi in the name of Sh. Vijender DahiyaRs.4,37,536/ (ii)Balance in SB Account No. 23046, Indian Bank, Janak Puri, New Delhi in the name of Sh. Vijender DahiyaRs. 1,26,113/, (iii) Balance in SB Account No. 3686, Central Bank of India, Janak Puri, New Delhi in the name of Smt. Kavita DahiyaRs. 1,00,014/ (iv) balance in SB Account No. 17990, in Punjab National Bank, Bhikaji Cama Place, New Delhi in the name of Smt. Kavita DahiyaRs.1,09,817/ (v) balance in the Account No. 17991, Punjab National Bank, Bhikaji Cama Place, New Delhi in the name of Baby Komal Rs.1,378/. Thus the total balance is Rs.7,74,858/.
6. It has further revealed that Sh. Vijender Dahiya had also invested 5 Rs.1,68,964/ in the FDR's in the name of Smt. Kavita Dahiya and father in law Sh. Hanumant Singh at Central Bank of India, Nangal Dewat Branch. The details of the same are (i) Account No. 20/133 for an amount of Rs.20,000/ in the name of Smt. Kavita Dahiya and Sh. Hanumant Singh (father in law of accused.), (ii) Account No. 25/326 for an amount of Rs.16,250/ in the name of Smt. Kavita Dahiya and Sh. Hanumant Singh, (iii)Account No. 25/333 for an amount of Rs. 46,275/ in the name of Smt. Kavita Dahiya and Sh. Hanumant Singh
(iv) Account No. 25/417 for an amount of Rs.62,000/ in the name of Smt. Kavita Dahiya and Sh. Hanumant Singh (v) Account No. 26/72 for an amount of Rs.8,000/ in the name of Smt. Kavita Dahiya and Sh. Hanumant Singh.
7. It has also revealed that Sh. Vijender Dahiya had made an investment of Rs.50,000/ in the name of his daughter Baby Komal in 6 the form of UTI Certificate in 199293 and Vijender Dahiya is in possession of vehicle No. DL6CC3773 in benami name of Sh. Harsh Kapoor which was purchased at the cost of Rs.2,13,739/ from M/S. Bagga Link Motors (P) Ltd. on 29.01.1998 as well as Vijender Dahiya had given a loan of Rs.27,500/ to Sh. Baljeet Yadav during August, 1998.
8. It has also revealed that during the search on 06.10.1998 at C1, A/14A, Janak Puri, New Delhi residence of Sh. Vijender Dahiya, a cash of Rs.30,000/ was seized and it was observed that Sh. Dahiya was in possession of household articles worth Rs.1,38,228/. Thus Vijender Dahiya was found in possession of total assets to the tune of Rs.14,03,289/.
9. It has further revealed that Vijender Dahiya had purchased a property no. A1/88, Janakpuri, New Delhi, in the name of his wife 7 Smt. Kavita Dahiya from Sh. Surjeet Narula and Mrs. Santosh Narula in March, 1995 for a cost of Rs.7,10,000/ and spent Rs.10,14,000/ towards the construction of the same during 19951997 March and also paid house tax Rs.19,104/ to MCD in 1998 for the said house. He also incurred an expenditure of Rs.20,173/ towards the education of his daughter and further made payment of Rs.5,300/ to Uttam College, Janakpuri for education of his wife. He also made payment of Rs.10,000/ and Rs.6,260/ for the membership of Janakpuri Club and Harinagar Sports Complex respectively. He also purchased water filter from M/S. Eureka Forbs for Rs.8,230/ Besides this the non verifiable miscellaneous house hold expenses have been calculated rd at the rate of 1/3 of his salary Rs.3,73,834/ which comes out to be Rs.1,24,611/. Thus the total expenses incurred by Sh. Vijender Dahiya during check period are Rs.19,17,678/.
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10. As per the charge sheet, accused Vijender Dahiya had an income st of Rs.18,35,506/ during the check period i.e. from 1 December,1988 th to 6 October, 1998. Against this income, he had acquired assets worth Rs. 14,03,289/ during the check period. He had also spent Rs. 19,17,678/ during the check period. Therefore, the total assets and expenditure of Vijender Dahiya during the check period are worth Rs. 33,20,967/, which shows that against an income of Rs.18,35,506/, Vijender Dahiya had acquired disproportionate assets worth Rs. 14,85,461/ which is 80.92% in excess of known income of Sh. Vijender Dahiya, which constitute the commission of offence punishable under Section 13(2) read with Section 13(1) (e) of Prevention of Corruption Act, 1988. The IO accordingly prayed that accused Vijender Dahiya, Junior Engineer, Municipal Corporation of Delhi, Government of NCT of Delhi be tried for the offence punishable 9 under Section 13(2) read with Section 13 (1) (e) of PC Act, 1988.
11. Accused was summoned to appear in the court. He was supplied the copies of the documents.
12. After hearing the accused and his counsel, vide separate order dated 17.07.2003 for framing of charge, on 22.08.2003 charge was framed against accused Vijender Dahiya under Section 13(2) read with Section 13(1) (e) of PC Act to which he pleaded not guilty and case was put to trial. Thereafter, vide Criminal Revision Petition No. 693/2003, accused went to Hon'ble High Court of Delhi for setting aside the order dated 17.07.2003 and 22.08.2003.
13. Vide order dated 22.01.2004, the Hon'ble Mr. Justice R. S. Sodhi, deem is appropriate to set aside the impugned order dated 17.07.2003 and remand the matter for reconsideration of the material placed by the prosecution agency and frame charge afresh in 10 accordance with law.
14. Vide separate order dated 18.01.2005, charge for the offence punishable under Section 13(2) read with Section 13(1) (e) of PC Act is made out against accused, to which he pleaded not guilty and case was put to the trial.
15. To bring home the charge, CBI examined 17 witnesses.
PW1 is Sh. Satender Tomar, Intelligence Officer, who deposed that he joined as independent witness during house search of house bearing NO. C1A/14A, Janak Puri, New Delhi, of the accused Vijender Dahiya in this case. He has also identified his signatures on Observation Memo Ex. PW1/A, Memo Ex. PW1/B to the fact that one Baljeet Yadav took loan of Rs.27,500/ from accused Vijender Dahiya during August, 1998, Search cum Seizure Memo Ex.
11 PW1/C. PW2 is Sandeep Gupta, Chartered Accountant, who deposed that he know the accused as his client. He has identified his signatures at point A on Authority Letter Ex. PW2/A, which was written by him on 22.07.1998. He has further deposed that the same was written by him at the directions of Mr. Harsh Kapur. He also know Harsh Kapur being a business man. He was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C. PW3 is Sh. Jaggan Lal Meena, ITO, Income Tax Office, who deposed that he joined as independent witness during house search of the accused Vijender Dahiya in this case. He has also identified his signatures on Observation Memo 12 Ex. PW1/A, Memo Ex. PW1/B to the fact that one Baljeet Yadav took loan of Rs.27,500/ from accused Vijender Dahiya during August, 1998, Search cum Seizure Memo Ex. PW1/C. PW4 is Sh. R. K. Ahuja (Retd.), Branch Manager, has identified his signatures on letter Ex. PW4/A vide which information regarding FDRs and statement of accounts of saving bank account No. 3686 was given to CBI. He has also identified his signatures on Letter Ex. PW4/B which was forwarded to CBI as well as the account statement Ex. PW4/C. He has also documents Ex. PW4/D to F vide which documents Ex, PW4/G1 to G7 mentioned therein were handed over to Sh. D. K. Barik, DSP, CBI, from the original record of the bank.
13 PW5 Sh. S. S. Harit, Addl. Secretary, PWD, has proved the Sanction Ex. PW5/A for prosecution of accused Vijender Dahiya.
PW6 is Sh. V. N. Jaitley, Sr. Manager, who has proved that vide receipt Ex. PW6/A, he provided statement of account No. 17991 in the name of Komal under Guardianship of Vijender Dahiya for the period 01.06.1997 to 10.08.2000. Documents provided by him are Ex. PW6/B1 to B4 under his seal and signatures at point A on all the pages. He has further deposed that the record was prepared from the computer in which the record was maintained of the above said account and the contents are correct as the same were maintained during the ordinary course of business in day to day working.
14 PW7 is R. Ramanathan, MVI, has proved that file Ex. PW7/B in respect of Vehicle no. DL6CC3773 was seized by Sh. D. K. Barik, DSP, vide productioncumseizure Memo Ex. PW7/A. As per record, the original owner of the vehicle was Harsh Kapoor who subsequently transferred the same in the name of Sh. Sushil Kumar s/o Sh. Ved Parkash on 28.10.1999.
PW8 is Sh. S. Eswaran Potti, Sr. Branch Manager, Syndicate Bank, who proved that original account opening form of account No. 9647 Ex. PW8/C in the name of Vijender Dahiya and statement of account Ex. PW8/B of this account was seized by Sh. D. K. Barik, DSP, vide seizure Memo Ex. PW8/A. Vide letter Ex. PW8/D the information was provided to CBI regarding the introducer of 15 the above said account.
PW9 B. M. Lal, Sales Tax Officer, has stated that he handed over the documents related to property No. A1/88, Janak Puri, vide seizure Memo Ex. PW9/A. He has further stated that the photocopy of the documents handed over by him to CBI were also attested by him and are collectively Ex. PW9/B1 to B41. As per the documents, property was in the name of Smt. Kavita, wife of Vijender Singh, R/o A1/88, Janak Puri, New Delhi.
PW10 is Sh. H. K. Lal, who has proved that the photocopies of the documents Ex. PW10/B1 to B5 pertaining to property no. A1/88, Janak Puri, were seized from him vide seizure Memo Ex. PW10/A. He has further stated that an amount of Rs.19,104/ was received as house tax vide cheque no.
16 607374 dated 31.03.1998 from Smt. Kavita. the demand raised for tax is also included in the documents. PW11 Sh. Prakash Ahuja, Government Approved Valuer, has proved his valuation report Ex. PW11/A regarding property no. A1/88, Janak Puri, New Delhi. As per his report, the total valuation of the property was Rs.10,14,000/ at that time.
PW12 Sh. P. K. Dabas, Superintendent, has stated that he handed over the photocopies of documents like GPA, Sale Deed etc. Ex. PW12/B1 to B10 (10 sheets) relating to property NO. A1/88, Janak Puri vide memo Ex. PW12/A. PW13 Sh. M. John, Assistant Secretary, State Transport Authority has deposed that for pollution check of the vehicle, the physical presence of the vehicle is necessary and the 17 vehicle no. DL6C C3773 pollution was checked on 18.10.1999 as per the papers available in the file Ex. PW7/B. He has further deposed that when the transferee submitted the fee for transfer of the vehicle, the vehicle was in the custody of CBI. The fee for transfer was deposited on 28.10.1999 as per the receipt and RC was issued on 29.10.1999.
PW14 Sh. Ramnish, Additional SP, CBI has deposed that on 05.10.1998 FIR Ex. PW14/A was marked to him by the then SP Sh. H. C. Awasthi. on the basis of FIR, a search was conducted at the residence of Vijender Dahiya at C1A/14A, Main Pankha Road, Janakpuri, New Delhi, in the presence of two independent witnesses Sh. J. L. Meena and Satender Tomar from Income Tax Department. During the 18 search, an observation memo Ex. PW1/A was prepared reflecting the year of acquisition and cost of articles/goods observed during house search. He has further deposed that during house search certain documents /articles, one Maruti Car and a cash of Rs.30,000/ was seized and the same were mentioned in Memo Ex. PW1/C. He has also identified his signatures on Ex. PW1/C. He has further deposed that during searches, the disclosure of one person by the name of Baljeet Yadav, was prepared vide memo Ex. PW1/B, in which he disclosed that during August, 1998 he took the loan of Rs.27,500/ from accused Vijender Dahiya which was yet to be returned. PW14 has further stated that Ex. PW1/A was prepared by Sh. R. L. Bhatt on his direction. Thereafter, the investigation of the case was transferred to 19 Sh. D. K. Barik, Dy. SP, CBI.
PW14 further deposed that in continuation of the searches conducted at Janakpuri premises of the accused, another search was conducted at F16, Double Storey, Mehar Chand Market, Lodhi Colony, New Delhi, vide search cum seizure memo Ex. PW14/B. Some documents mentioned in Ex. PW14/B were seized in the presence of independent witnesses Sh. J. L. Meena and Sh. Satender Tomar as well as the accused.
PW15 Inspector R. L. Bhatt in his deposition has admitted the preparation of Observation Memo Ex. PW1/A on the directions of PW14 Sh. Ramnish, Additional SP, CBI. He has also identified his signatures on Observation Memo Ex. PW1/A, Disclosure Memo Ex. PW1/B and Search Cum 20 Seizure Memo Ex. PW1/C. PW16 Sh. D. K. Barik, Dy. SP, has deposed that during the year 19982000, case RC57/98 was entrusted to him for further investigation. During further investigation, he seized documents relating to vehicle No. DL6CC 3773 Ex. PW7/B, which were seized vide memo Ex. PW7/A, he also seized some documents from the Principal of St. Francs DSales Senior Secondary School vide letter Ex. PW16/A. He also seized House Tax File Ex. PW9/B141 vide memo Ex. PW9/A. He also seized General Power of Attorney Ex. PW16/D and Sale Deed Ex. PW16/E vide memo Ex.
PW16/C. He also received the details of account mentioned in Ex. PW4/A vide letter no. PW4/B. The details of the account No. 3686 is Ex. PW4/C. 21 PW16 has further deposed that he also received the details of SP account No. 23046 vide letter Ex. PW16/F under the signatures of Sr. Manager of Union Bank. He also seized documents vide memo Ex. PW4/B. The details of account mentioned in Letter Ex. PW4/F were also received by him. He also received the details of account from Punjab National Bank, Bhikaji Cama Place, New Delhi, vide letter Ex. PW16/G. He also received some documents from the respective departments which were admitted by the accused during trial. He also obtained Sanction for prosecution of the accused from competent authority and filed the charge sheet before the court after investigation.
PW17 Inspector Anil Kumar has identified his signatures on Observation Memo Ex. PW1/A, Disclosure Memo Ex.
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PW1/B, Search Cum Seizure Memo Ex. PW1/C, Search cum Seizure Memo Ex. PW14/B. He has deposed that on the instructions of DSP Ramnish, he also seized files relating to Income Tax return pertaining to Nafe Singh, Smt. Kavita Dhaiya, Smt. Pyari Devi and Ms. Komal Dhaiya from Sh. Arun Gupta, Chartered Accountant vide Production cum Seizure Memo Ex.P1.
16. After closing the Prosecution Evidence, all the incriminating evidence was put to the accused for his explanation under Section 313 Cr. P. C. It is submitted by the accused he is innocent and falsely implicated in the present case. He has ancestral agricultural land and other properties. It is further submitted that his wife and her parental family are rich persons as well as his mother has been receiving pension. it is further submitted that due credit of his precheck period 23 income has not been given. The gifts and other articles bestowed upon his wife and children from time to time by his parentinlaw has not been shown correctly.
17. In defence, accused examined four witnesses.
DW1 is Sh. Bikram Jeet Narula, who has stated that the property bearing No. A1/88, Janak Puri, New Delhi, was owned by his wife Santosh Narula and his son Surjeet Narula, having purchased in the year 1994. The agreement to sell was executed in their favour and the GPA was executed in his favour. The said property was sold in the year 1995 to Ms. Kavita wife of Sh. Vijender Dahiya for sale consideration amount of Rs.7,10,000/. The sale consideration amount was received in the form of two pay orders from Ms. Kavita. He has identified his signatures on 24 GPA Mark DW1/A. He has also identified the receipt Mark DW1/B, which reflects the consideration amount of Rs. 7,10,000/ received by his wife and his son by virtue of two pay orders bearing No. 312755 dated 14.03.1995 for Rs. 3,57,900/ and 312754 dated 14.03.1995 for Rs.3,52,500/ both issued by PNB, Bhikaji Cama Palace, New Delhi, given by Smt. Kavita.
He has further deposed that the above property was built up in single storey i.e. Ground Floor only and when the property was sold to Smt. Kavita, it was built up only single storey. DW2 is Raja Som Sehrawat, who is the brother in law of accused Vijender Dahiya. He has deposed that accused Vijender Dahiya married to his sister Kavita in the year February, 1989. He has deposed that his father late Sh.
25 Hanumant Singh was serving between 1958 to 1962 in Ministry of Food Affairs and in 1962, he joined the Indian Airlines and in 1990, he retired from the post of Superintendent from Office of Indian Airlines. The source of income of his father was salary from his employment and income from ancestral agricultural land which was about 70 bighas at village Nangal Dewat, Delhi.
He has further deposed that he does not own or possess any agricultural land in village Nangal Dewat since their land was acquired by Airport Authority of India. The compensation was awarded to his father in phases from 1972 till 1992. The amount of compensation received, was distributed by his father amongst the siblings. Some amount was deposited by his father in bank account of his sister in 26 village Nangal Dewat.
DW2 has also seen the Ex. PW4/A, Central Bank of India, Nagal Dewal, which reflected FDR made by his father and his sister. since he hold the papers of his father and he will search for FDR detailed in this document and he can bring the same. He has also seen Ex. PW4/C, which is ledger account of his sister's bank account no. 3686 with Central Bank of India, which reflects repeated clearing entries of Rs. 7,500/, which is pertains to rent proceeds received by his sister from M/S. Bharat Airtel Services having its office at Okhla, Industrial Area. He used to go to Okhla Office of Airtel and used to collect cheque on behalf of his sister. He used to give this cheque to his father, who since expired, who used to fill up pay in slip and either his father or he used 27 to deposit these cheques in the bank. This Rs.75,00/ was rental from Antina installed by Airtel. DW2 has also brought the original pass book of account no. 3686 with Central Bank of India, Nagal Devat Branch of his sister.
He has also seen Ex. PW4/G1 to G3, which are Account Opening documents of his sister pertaining to her account no. 3686. Document Ex. PW4/G2 reflects the signature of his father at point A and B. His father had an account with this bank with the number 3589. He gave introduction for opening the bank account by his sister. He has also seen Ex. PW4/G3, which is joint FDR application form in the name of his father and sister with Central Bank of India, Nangal Dewat. Ex. PW4/G4, G5, G6 and G7, also reflect the signature of his father at point A, vide these 28 documents his father made FDR in the joint name of his sister and himself. Ex. PW4/G and G7 are in the handwriting of his father and both of these documents reflect the cash detail written by his father deposited by him for making FDR. His sister got married in the year 1989 with the accused. valuable including jewellery, scooter etc. were bestowed upon his sister by his father on the occasion of marriage of his sister with the accused.
He has further deposed that his father expired on 01.10.2008, hence the original of the FDR's shown in the document was earlier with his father but now the same are with him, which is prepared by them.
DW2 also brought the original five FDRs before the court, which bears the signatures of his father at point X on the 29 reverse of each of the FDR Ex. DW2/A1 to A5. He has further deposed that his sister had a house in Janak Puri, bearing no. A1/88, which was sold by her. He and his father helped her in obtaining No Objection Certificate from Income Tax Department. He has seen the photocopy Form 34A Mark DW2/Y in the name of his sister. The original of the certificate was tendered to the SubRegistrar alongwith the Sale Deed when the Sale Deed was produced for registration. He also identified the Sale Deed Ex. PW16/B, which was executed by his sister and the same also contains the details of obtaining the Income Tax Clearance by his sister at the relevant time. The sale consideration in the sum of Rs.13,75,000/, and the same was sold to Sh. Shamsher Singh.
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He has further deposed that he was not called by the CBI Officer in the present case for the purposes of any investigation. However, they have visited at their house to meet his father as he was old and sick person.
He has brought the original documents showing his father's th employment since 1955. The first letter is of 27 November, 1957 of Ministry of Agricultural Ex. DW2/B, second letter is of 28.02.1962 issued by Ministry of Food and Agricultural Ex. DW2/C, whereby his father was relieved to join duties with Indian Airlines, third letter is of 26.02.1962, is the appointment letter of his father issued by Indian Airlines Corporation to work as Typist Ex. DW2/D. DW2 has also brought the original court decree dated 08.05.1994, passed by the court of Sh. R. K. Jain, the then 31 SubJudge, Delhi, with respect to suit no. 688/93 Ex. DW2/E. He has also brought the original certificate Ex. DW2/F dated 22.01.2001 issued by office of ADM, South West, detailing the area of the land held by his grandfather Sh. Kishan S/o Siriya in village Nagal Devat.
He has also brought the original certificate Ex. DW2/G dated 14.10.1998 issued by Deputy Commissioner, LA Branch, Kapashera, detailing the area of the land held by his grandfather Sh. Kishan S/o Siriya in village Nagal Devat. DW3 is Sh. Nand Kishore, who has deposed that he is a Jeweller by occupation. He has identified the Mark DW3/A, which is gold receipt dated 11.02.1995, vide which 8 bangles jewellery was purchased by his firm M/S. N. K. Jewellers P. 32 Ltd. for the value of Rs.99,975/ and the payment was made to the seller Smt. Piari Devi as per cheque no. 826683, Canara Bank, New Delhi. He has also identified the Mark DW3/B, which gold receipt voucher dated 11.02.1995, vide which one gold tagri was purchased by his firm M/S. N. K. Jewellers P. Ltd. for the value of Rs.50,224/ and the payment was made to the seller Smt. Piari Devi as per cheque no. 863595, Canara Bank, New Delhi. He has also identified the Mark DW3/C, which is gold receipt voucher dated 30.12.1994, vide which 8 gold bangles were purchased by his firm M/S. N. K. Jewellers P. Ltd. for the value of Rs.1,00,002/ and the payment was made to the seller Smt. Kavita Dahiya Devi as per cheque no. 863519, dated 30.12.1994 Mark DW3/D, of Canara Bank, New 33 Delhi.
DW4 is Arun Gupta, who is Chartered Accountant by occupation. He know accused Vijender Dahiya as he used to file the Income Tax Returns of accused.
He identified the document Ex. P1 now Ex. DW4/A, which is production cum seizure Memo, vide which four income tax return files namley Nafe Singh, Kavita Dahiya, Pyari Devi and Komal Dahiya were handed over to Sh. Anil Kumar Singh, an officer of CBI. After seeing the document, witness has stated that the above said four files are in judicial file and the same are Ex. PW16/DX, Ex. PW16/DX1, Ex. PW16/DX2 and Ex. PW16/DX3. As the documents produced at the time of filing of returns, the Income was computed and the balance sheet was also prepared and the 34 returns were filed into the Income Tax Department. The Income Tax returns filed with the department were well assessed vide the Orders of the Income Tax Department.
18. After conclusion of the evidence, I have heard final arguments of Learned PP for CBI and Learned Defence Counsel of the accused and perused the record. I have also perused the written arguments filed by learned counsel for the accused. During the investigation, the prosecution collected evidence and on the basis of which they calculated the income of the accused, the assets acquired by the accused and the expenditure incurred by the accused and on the basis of the evidence collected the prosecution alleged that the accused had acquired Disproportionate Assets worth Rs. 14,85,461/. The details in this regard as stated in the charge sheet is as under: 35 A. TOTAL INCOME AND OTHER RECEIPTS DURING THE CHECK PERIOD.
S.No. Source of Income Amount
1 Salary received by the accused from MCD Rs.3,73,834=00
during the period December, 1988 to
September, 1998.
2 Salary received by Smt. Kavita Dahiya wife Rs. 72,000=00
of the accused during the check period
while working with M/S. Unicon
Enterprises.
3 Interest earned from different Bank Rs. 14,072=00
Accounts in the name of the Accused and
his family members.
4 Sale Consideration received by wife of the Rs.13,75,000=00
accused on selling property no. A1/88,
Janak Puri, New Delhi.
Total Income of the accused and his Rs.18,34,906=00 family members during the check period.
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B. DETAILS OF ASSETS
1. Immovable assets - Nil.
2. Movable Assets
S.No. Details of Assets Amount.
1 SB Account No. 9647 Syndicate Bank, Rs.4,37,536=00
Janakpuri, in the name of the accused.
2 SB Account No. 23046 Indian Bank, Rs.1,26,113=00
Janakpuri, in the name of the accused.
3 SB account NO. 3686 Central Bank of Rs.1,00,014=00
India, Nangal Dawat, in the name of the
Smt. Kavita Dahiha wife of accused.
4 SB account NO. 17990 Punjab National Rs.1,09,817=00
Bank, Bhikaji Cama Place, in the name of
the Smt. Kavita Dahiya wife of accused.
5 SB account NO. 17991 Punjab National Rs.1,378=00
Bank, Bhikaji Cama Place, in the name
of Baby Komal.
6 Five FDRs for a total sum of Rs. Rs.1,68,964=00
1,68,964/ in the name of Smt. Kavita
Dahiya (w/o the accused) and Sh.
Hanumant Singh (fatherinlaw of the
accused) detailed as under:
(i) A/c No. 20/133 Rs.20,000=00
(ii)A/c No. 25/326 Rs.16,250=00
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(iii)A/c No. 25/333 Rs.46,275=00
(iv)A/c No. 25/417 Rs.62,000=00
(v)A/c No. 26/72 Rs. 8,000=00
7 Investment in the name of Baby Komal Rs.50,000=00
(daughter of the accused) in the form of
UTI certificate in 199293.
8 Vehicle No. DL6CC 3773 purchased by Rs.2,13,739=00
accused Benami in the name of Sh.
Harish Kapoor from M/s Bagga Link
Motors (P) Ltd. on 29.01.1998
9 Loan given to Sh. Baljeet Yadav Rs. 27,500=00
10 Cash recovered from the residence of the Rs. 30,000=00
accused
11 Household articles worth Rs.1,38,228=00
TOTAL ASSETS Rs.15,55,814=00
C. TOTAL EXPENSES INCURRED BY THE ACCUSED DURING THE CHECK PERIOD.
S.NO Details of Expenditure Amount (Rs.).
1 Purchase of Property No. A1/88, Rs. 7,10,000=00 Janakpuri, New Delhi, in March, 1995.
38 2 Towards Construction of House at A1/88, Rs.10,14,000=00 Janakpuri, New Delhi during 199597 3 House tax paid to MCD in 1999 Rs. 19,104=00 4 Towards education of his daughter Rs. 20,173=00 5 Paid to Uttam College, Janakpuri for Rs. 5,300=00 education of wife 6 Membership of Janakpuri Club Rs. 10,000=00 7 Membership of Hari Nagar Sports Rs. 6,260=00 Complex 8 Purchase of water filter from M/s Eureka Rs. 8,230=00 Forbes 9 Nonverifiable miscellaneous household Rs. 1,24,611=00 rd expenses calculated at the rate of 1/3 of the total salary of the accused of Rs.
373834/
TOTAL EXPENDITURE Rs. 19,17,678=00
39
19. As per the case set up by the CBI, the total income and other receipts of the accused Vijender Dahiya during the check period is Rs. 18,35,506/. However, the breakups provided to arrive at the said figure if added brings the total income of accused Vijender Dahiya as Rs.18,34,906/ instead of Rs.18,35,506/. Similarly, the value in terms of money of the immovable and movable assets of the accused Vijender Dahiya, as per the CBI, is Rs.14,03,289/. However, the breakup provided to arrive at the said figure if added gives the total as Rs.15,55,814/ instead of 14,03,289/. Therefore, I have taken into account the income of the accused Vijender Dahiya as Rs.18,34,906/ and the assets of the accused as Rs.15,55,814/. So far as the total expenses amounting to Rs.19,17,678/ taken by the CBI, is concerned, there is no mathematical error in the calculation.
20. Now, the income and acquired assets as detailed above if added 40 amounted to Rs.33,90,720/ (Rs.18,34,906/ + Rs.15,55,814/) and when subtracted from the total expenditure i.e. Rs.19,17,678/, the figure arrived at was Rs.14,73,042/ instead of Rs.14,85461/ which was termed as disproportionate assets allegedly acquired by the accused and which came to 80.27% instead of 80.92% in excess of known income of the accused.
21. Keeping in view the fact that the allegation of Assets Disproportionate to the income of the accused emanates from the difference existing between the income and assets taken together from the expenditure incurred during the check period. In this situation, I deem it appropriate to analyze the expenditure details as alleged by the prosecution. The notable expenditure is towards construction of house in plot no. A1/88, Janak Puri, New Delhi, during 19951997. To prove this expenditure, the prosecution relies upon on Ex. PW11/A 41 the contents of which show that the same has been prepared by Mr. Prakash Ahuja, valuer / architector and it gives the valuation regarding st the cost of construction of the ground floor and the 1 floor during 199597 March. The perusal of the details of Ex. PW11/A shows that the Valuation was made from Sh. Prakash Ahuja for the purpose of "Property Tax". According to the Valuation Report Ex. PW11/A, the owner of the property bearing No. A1/88, Janak Puri, Delhi is Smt. Kanta Devi and that it is this owner at whose instance the valuation was done and it is this owner who had supplied the facts and informations and instructed Sh. Prakash Ahuja to assess the property. Admittedly, Ex. PW11/A does not bear the date on the last page where Sh. Prakash Ahuja had signed, however, there is a date appearing to be of 20.02.1998 and on which there is an overwriting by pen of the letter 2 in the day column. Sh. Prakash Ahuja entered the 42 witness box as PW11 and identified his signatures on the said report at point A and testified that the total valuation of the property was Rs. 10,14,000/ and it was made by him at the instructions of the owner. In cross examination, he stated that the name of the owner mentioned in his report is Kanta Devi and her husband's name is not mentioned. He admitted having signed on only on the last page without mentioning the date. He admitted in his cross examination that the rates which he has taken into consideration are adopted for estimating cost of new construction related to CPWD, PWD or other Government Institutions. He also admitted that on the basis of this plinth area rate, tenders for Government Contracts are invited and that the tender of such contracts may be at higher or lower rates. He further testified that for assessment of plinth area rates, standardized building materials are indicated to be used or that if inferior material is used the cost of 43 construction would be less if calculated as per plinth area rate. He admitted the fact that he had not ascertained the quality of the material used and that his report is based on the narration of Smt. Kanta Devi, the owner. Under the heading of "Technical Details" in his report Ex. PW11/A, he has not mentioned the quality of the building material used. Therefore, from the entire report what can be gathered is that for a particular area, applying the CPWD rates the cost of constructions would be the rate multiplied by the area. How this rate can be made applicable has not been mentioned except for a mere statement on the last page that for these type of buildings CPWD rates are applied. Therefore, this report by no stretch of imagination can be said to be an inference based on actual assessment. Moreover, it is not stated in the report as to why and for what reason the owner was not asked to submit the details of the construction carried out by her 44 i.e. payment made by her to the contractor or to purchase building material etc. and it is also not indicating as to whether the valuer made any endeavour to ask for these records and the reason why the same was not supplied.
22. The prosecution had made efforts to procure records from the House Tax Department, MCD and the records received from there which were seized vide seizure memo Ex. PW9/A contains the Inspection Reports, Assessment of Rateable Value as well as Assessment of the Payable Property Tax. Amongst those documents is the Assessment done by the MCD as regards enhancement of the rate able value on the basis of the inspection report which is marked as D12 and according to which the property comprised of ground floor st and 1 floor as per the inspection carried out on 15.02.1998. As per the said document, the rate able value was reassessed w.e.f.
45 01.04.1973 at Rs.2,51,940/ on the basis of standard monthly rent of Rs.24,700/ and the payable house tax was worked out at Rs.2,600/. This document is numbered as page 38 and 39 of Ex. PW9/B which contains pages 1 to 41. The next document at page 40 is the order regarding the assessed rate able value at Rs.2,60,000/ w.e.f. 01.04.1997. The name of the Assessee has been shown as Sh. Satya Pal Siroha and the name of the Present Property Occupier (PPO) is shown as Smt. Kavita Devi. This enhancement of the rateable value to Rs.2,60,000/ on the basis of the Inspection carried out on 15.02.1998 as per the MCD rules has to be on the basis of a detailed order which is however, not made available by the prosecution. Moreover, the assessment of the rateable value of the previous year i.e. with effect from 01.04.1989 is available at page 19 of Ex. PW9/B which is a detailed order regarding the enhancement of the rate able 46 value based on the standard rent. The assessment of the enhancement of the rateable value at internal page 38 of Ex. PW9/B shows that it is based on the monthly rent calculated at the rate of 24,700/. Therefore, it is clear that the enhancement of the rateable value and the amount of property tax to be paid by the Assessee or the PPO is based on the standard rent as calculated by the MCD and has nothing to do with the cost of construction of the building. In that event it is difficult to accept the fact that the owner of the property approached the valuer for getting the property valued for the purposes of property tax as mentioned in Ex. PW11/A. Besides the fact that the person who according to the valuer had approached him to get the property valued namely Kanta Devi is neither the owner nor the PPO as per the MCD records. The valuer has also not indicated in his report Ex. PW11/A as to how and on the basis of which records he 47 affirmed the fact that the owner of the property for which he was required to give the assessment was Smt. Kanta Devi.
23. PW16 Dy. SP, CBI D. K. Barik in his cross examination conducted on 06.05.2008 deposed that no statement of witness under Section 161 Cr. P. C. was recorded by him reflecting that the accused had spent a sum of Rs. 10,14,000/ towards the cost of the construction of the house at A1/88, Janak Puri, Delhi during the year 199597 as found mentioned in the charge sheet. He however, volunteered that Ex. PW11/A was the valuation report and that he had evaluated the cost of the construction of the said house in the charge sheet. He further testified that Ex. PW11/A showed the name of the owner as Smt. Kanta Devi which according to him was a typographical mistake admittedly not made by him and that it was made by the person who had typed the report. He however, admitted that there was no 48 mentioned in the charge sheet that Ex. PW11/A contained a typographical error of the name of the owner or that statement of any witness under Section 161 Cr. P. C. was recorded to that effect. He volunteered in his cross examination that this document was seized from the residence of the accused by the previous Investigation Officer who conducted the search. He admitted the fact that Ex. PW11/A nowhere contained either the signatures of the Kanta Devi or any other person except CBI Witness and signature of Sh. Prakash Ahuja on the last page of the document. He admitted the fact that there was no statement of Sh. Prakash Ahuja under Section 161 Cr. P. C. at all and there existed no mention of this fact in any statement filed before the Court with the charge sheet. He proceeded to depose in his cross examination that the Valuation Report Ex. PW11/A is part of Item No. 8 of Ex. PW1/C. He denied the suggestion that the said valuation 49 report Ex. PW11/A was recovered from the house of the accused. A specific question was asked to him in cross examination to tell about each of the page constituting 35 pages so mentioned as item no. 8 in Ex. PW1/C, to which he replied that out of these 35 pages, all are not cited as relied upon documents except the valuation report Ex. PW11/A and that without going through the rest of the documents it would be difficult to comment.
24. Admittedly, PW16 Dy. SP Sh. D. K. Barik was not in anyway associated with the case when the search was conducted at the residence of the accused on 06.10.1998 and that at that time the concerned person who was Incharge of the entire search operation was PW14 Sh. Ramnish, who was then Dy. SP CBI. A perusal of the deposition of PW14 shows that the search was conducted in the presence of two independent witnesses on 06.10.1998 namely Sh. J.
50 L. Meena and Sh. Satender Tomar from the Income Tax Department. As per the deposition of PW14, during house search certain documents / articles, one Maruti Car and cash of Rs.30,000/ was seized whereas cash of Rs.33,480/ was observed and that the details of the documents / articles were mentioned in the Memo Ex. PW1/C bearing his signatures at point X. Perusal of Ex. PW1/C would show that the same does not contain any reference of the valuation report Ex. PW11/A and all that it says against item no. 8 is quoted as under
"a bunch of loose papers containing pages 1 to 35 pertaining to property no. C1A/14A, Janak Puri, A1/88, Ababdi known as Janak Puri, WZ250, Najafgarh Road, Uttam Nagar."
25. Therefore, admittedly, there is no details at item no. 8 of any valuation report Ex. PW11/A having been seized from the house of the accused. As per the statement of PW16 Dy. SP D. K. Barik out of 51 these pages 1 to 35 shown at item no. 8 in Ex. PW1/C only according to him the relied document was the valuation report Ex. PW11/A. PW16 has not cared to place on record the remaining documents since had it been done, there was a possibility of ascertaining as to which were those documents which in all comprised of 35 pages and of which Ex. PW11/A was a part thereof. It is also difficult to comprehend as to why CBI chose to rely upon on this document when as per the details against item no. 8 in Ex. PW1/C there was mention of documents pertaining to property no. A1/88, Janak Puri, Delhi, which was subject matter of the charge sheet. As such there is a serious doubt cast upon the testimony of PW16 to the effect that the valuation report Ex. PW11/A was one of the document which was seized vide Ex. PW1/C and mentioned at item no. 8.
26. It would be necessary to examine the testimony of PW1 Sh.
52 Satender Tomar who according to PW14 Sh. Ramnish, Additional SP, was part of the search team which conducted the search of the house of the accused on 06.10.1998. PW1 in his deposition before the Court, has stated that he appended his signatures at point A on Ex. PW1/C and also on all the papers which were seized in the search. In his cross examination, he deposed that he could not tell who had written Ex. PW1/C and also could not tell the designation of the writer of Ex. PW1/C. Sh. J. L. Meena deposing as PW3 testified that some papers, cash and other material and Maruti Car were seized vide memo Ex. PW1/C and that he had signed the same at point B, after satisfying himself that whatever he had witnessed was recorded in the memo. If Ex. PW1/C compared and examined alongwith Ex. PW11/A it would show that Ex. PW11/A though according to the prosecution was seized on the day of the search i.e. on 06.10.1998 53 with the search team being headed by PW14 Sh. Ramnish, Additional SP. PW11/A contains the signatures of two persons i.e. PW1 and PW3. PW1 has signed on all the pages of Ex. PW1/C with blue ink pen but his signatures on each page of Ex. PW11/A is with the pen with black ink. Moreover, the ink used in the pen by which PW3 has appended his signatures on each page of Ex. PW1/C is different from the ink used by PW3 to append his signatures on each page of Ex. PW11/A. Therefore, I find merit in the contention in defence of the accused that this valuation report Ex. PW11/A was not collected by the CBI from his residence at the time of the search conducted on 06.10.1998 and that it has been obtained and incorporated by the CBI later on. Therefore, no credence can be attached to the valuation report Ex. PW11/A and the allegation of the CBI that the accused spent Rs.10,14,000/ on construction of property no. A1/88, Janak 54 Puri, Delhi, based only on this report fails. I, therefore, hold that the prosecution has failed to prove that the accused spent Rs.10,14,000/ in raising construction on property no. A1/88, Janak Puri, Delhi.
27. The Prosecution has included vehicle no. DL6C C3773 which is a Maruti Car as one of the Asset of the accused and has valued the same at Rs.2,13,739/. The case of the Prosecution is that the said car was seized in front of the house of the accused where it was parked on 06.10.1998 i.e. the date of search. The Prosecution in the course of investigation seized the entire file of the said car which is Ex. PW7/B vide seizure memo Ex. PW7/A from the office of the State Transport Authority (STA), Under Hill Road, Delhi. PW7 Sh. R. Ramanathan, MVI was examined by the Prosecution who stated that as per the records, the original owner of the car was Sh. Harsh Kapoor and the RC was subsequently transferred in the name of Sh. Sushil Kumar on 55 28.10.1999. PW13 Sh. M. John, Assistant Secretary, STA, deposed that in the RC, inadvertently the name was written as Sh. Sunil Kumar and which was subsequently corrected as Sh. Sushil Kumar. PW13 further deposed that as per the records, the pollution check of the car was done on 18.10.1999. He further deposed that the transferee i.e. Sh. Sushil Kumar submitted the transfer fees on 28.10.1999 and at that time the vehicle was in the custody of the CBI and the RC was issued in the name of Sh. Sushil Kumar on 29.10.1999. From the records collectively exhibited as Ex. PW7/B, there is a pollution certificate dated 18.10.1999 and there is an Insurance Cover Note of the car issued in the name of Sh. Sushil Kumar for the period 05.04.1999 to 04.04.2000. The documents collectively exhibited as Ex. PW7/B, also contains a First Information Report under Section 155 Cr. P. C. dated 17.09.1999, regarding missing of Q. C. Lock of the 56 Car No.DL6C C3773. This report was recorded as DD No. 40 at 12.10 PM on 17.09.1999. During the course of testimony of PW2 Sh. Sandeep Gupta, who had turned hostile, a suggestion was put by the learned APP that he had stated before the CBI that the accused had told him that the car had not been transferred in the name of the accused which the accused had purchased from Sh. Harsh Kapoor, which he denied the same. As per the version of PW14 Sh. Ramnish, Additional SP, the documents of the car had been seized from the house of the accused and that the accused had told him that he had purchased the vehicle but the documents had not been transferred in his name. PW14 admitted the fact that no memo was prepared and that he did not record the statement of the person in whose name the documents were registered to confirm the factum of sale. PW16 Sh. D. K. Barik, in his deposition has stated that he could not find any 57 person by the name of Sh. Harsh Kapoor at the relevant time and therefore no statement of Sh. Harsh Kapoor was recorded and that he had recorded the statement of Sh. Sushil Kumar as Ex. PW16/DA.
28. Therefore, from the evidence led by the Prosecution, what is gathered is that as per the Prosecution, the car was purchased by Sh. Harsh Kapoor and the accused purchased the car from Sh. Harsh Kapoor but did not get it transferred in his name and the car was used by him and was seized during the course of search on 06.10.1998. However, in the statement of accused recorded under Section 313 Cr. P. C., it was put to him that he had purchased the car benami in the name of Sh. Harsh Kapoor which the accused had denied. This question apparently is contrary to the Prosecution evidence since it has nowhere come in the evidence that the accused had purchased the car benami in the name of Sh. Harsh Kapoor.
58
29. The records collectively exhibited as Ex. PW7/B, reveal certain startling facts. The records contain a Pollution Certificate dated 18.10.1999 though as per the case of the CBI the car was seized on 06.10.1998 and was released from the custody of the CBI after the order of the Court dated 13.07.2000. PW13 in his testimony confirmed the fact that for the purpose of pollution check, the physical presence of the vehicle is a must. It is difficult to comprehend as to how the vehicle though as per the records being in the custody of the CBI since 06.10.1998 could be physically present for pollution check on 18.10.1999 when as per the records it was released to Sh. Sushil Kumar by the CBI pursuant to the order dated 13.07.2000 of this Court.
30. The records collectively exhibited as Ex. PW7/B also contains the First Information Report Under Section 155 Cr. P. C. made before the 59 police on 17.09.1999 regarding theft of the Q. C. Lock of the car, which also on the face of the record appears to be improbable since as per the CBI the vehicle was in its custody since 06.10.1998 and was released pursuant to the order dated 13.07.2000. PW13 M. John, Assistant Secretary, State Transport Authority, in his testimony confirmed the fact that for the purpose of pollution check, the physical presence of the vehicle is a must. It is difficult to comprehend as to how the vehicle though as per the records being in the custody of the CBI since 06.10.1998 could be physically present for pollution check on 18.10.1999 when as per the records it was released to Sh. Sushil Kumar by the CBI pursuant to the order dated 13.07.2000 of this Court.
31. The records collectively exhibited as Ex. PW7/B also contains the First Information Report Under Section 155 Cr. P. C. made before the 60 police on 17.09.1999 regarding theft of the Q. C. Lock of the car, which also on the face of the record appears to be improbable because as per the CBI the vehicle was in its custody since 06.10.1998 and was released pursuant to the order dated 13.07.2000.
32. In this factual matrix, if we analyze the statement of PW3 Sh. Jagan Lal Meena, who stated that the car was parked on the road in front of the house of the accused and there were other cars parked also on the road and that he did not remember whether CBI Officials pointed out that they were seizing the car parked outside the house of the accused, a big question mark is raised as to whether the car was at all seized by the CBI on 06.10.1998. I do not consider necessary to go further into this controversy since admittedly as per the records the RC of the car stood transferred in the name of Sh. Sushil Kumar on 29.10.1999 on the strength of documents by the STA which showed 61 that the car was purchased by Sh. Sushil Kumar from the original owner Sh. Harsh Kapoor. The Insurance Cover Note for the Insurance Coverage period 04.04.1999 to 03.04.2000 in the name of Sh. Sushil Kumar in respect of the car, which is one of the documents forming part of Ex. PW7/B, goes to show that Sh. Sushil Kumar had the custody and the possession of the car much prior to 04.04.1999.
33. Sh. Sushil Kumar was not produced in the witness box by the CBI and instead his statement recorded under Section 161 Cr. P. C. was exhibited as Ex. PW16/DA during the course of testimony of PW16 Sh. D. K. Barik. At this stage, it would be necessary to advert to the order dated 03.05.2005 of this Court on the application of Sh. Sushil Kumar for discharge of Superdaginama. This Court while allowing the application observed that neither the vehicle was the case property nor Sh. Sushil Kumar has been cited as a witness and that both, the 62 accused as well as Sh. Sushil Kumar had undertaken not to raise any objection or dispute in respect of the said vehicle and that Sh. Sushil Kumar admitted his statement recorded under Section 161 Cr. P. C. and this factum was also admitted by the accused and that there was no chance of examination of Sh. Sushil Kumar in court being not cited as Prosecution witness.
34. It would be necessary to examine the statement of Sh. Sushil Kumar recorded under Section 161 Cr. P. C. Ex. PW16/DA, which states that he had purchased the car from Sh. Harsh Kapoor and that he had paid the consideration amount of Rs.1,50,000/ in three installments and that he was doing the business of Sale and Purchase of old vehicles. He further stated that he was the close friend of the accused and that since the wife of the accused was hospitalized at that time, he had left his vehicle with the accused as he had gone to 63 Patiala and that all the papers of the vehicle was lying in the vehicle. He further deposed that on the date when the vehicle was seized, he was in Patiala to attend "Team Trial for Indian Camp" as he was also a National Judo Coach and General Secretary of Judo Sangh of Delhi.
35. The car being in the custody of the accused, would not ipso facto amount to presuming that it was owned by the accused. The evidence on record shows that the original owner of the car was Sh. Harsh Kapoor and the same was purchased from him by Sh. Sushil Kumar upon which the RC was transferred in the name of Sh. Sushil Kumar by the STA on 29.10.1999. There is no evidence on record to even remotely show the existence of any benami transaction at the instance of the accused and this is not even existing in the line of evidence of CBI which on the contrary proceeds on the premise that the accused though having purchased the car from Sh. Harsh Kapoor had not got 64 transferred the same in his name. Purchasing for consideration from original owner and benami purchase in the name of any person are two different concepts altogether. Therefore, in my considered view, the CBI has not been able to conclusively established that the car was purchased by the accused and therefore, was his asset.
36. So far as the concept of the benami transaction is concerned, the Apex Court in a series of decisions have laid down the guidelines in finding out the benami nature of a transaction. The leading case is that of "Krishnanand Agnihotri Vs State of MP, reported in AIR 1977 SC 796, where it was held "It is well settled that the burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character 65 which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof".
This view was reiterated by the Hon'ble Supreme Court in the case of "M.Krishna Reddy Vs State Deputy Superintendent of Police, Hyderabad" reported in 1992 (2) Crimes 1197 (SC).
37. When the facts of the present case are tested in the light of the principle laid down in the above case, the case of benami transaction alleged by the prosecution has to fail. The natural 66 corollary, therefore, would be that the amount of Rs. 2,13,739/ which has been taken as the value of the car cannot be shown as part of asset of the accused and this amount therefore, ought to be deducted from the list of assets of the accused as formulated by the CBI.
38. Now coming to the Five FDRs for a total amount of Rs.
1,68,964/ in the joint name of Smt. Kavita Dahiya wife of the accused and Sh. Hanumant Singh, father in law of the accused, the CBI has taken to be the asset of the accused. From the entire evidence of the CBI, the basis on which these FDRs have been taken to form part of assets of the accused is answered in the testimony of PW16 Sh. D. K. Barik, who has simply stated that since he did not get any proper explanation from the accused in respect of the five FDRs for a total amount of Rs.1,68,964/ in his 67 wisdom he considered appropriate to treat this amount to be the assets of the accused. This logic is not only absurd but would not even remotely appeal to any man of reasonable prudence as the deposits in the form of the FDRs are documentary and facts regarding the manner in which it has been deposited can be gathered from the records.
39. From the records, it is revealed that vide Ex. PW4/A, the CBI had seized the records pertaining to the FDRs. As per the testimony of PW4 Sh. R. K. Ahuja, the Time Deposit Account is in the joint name of the wife and the father in law of the accused. As per his testimony, one time deposit of Rs.20,000/ was made in the year 1992 and the same was renewed from time to time and the last renewal number was 25/319 with the reinvested amount as Rs. 36,439/. As per his testimony, the MMDC Account No. 25/326 was 68 a cash deposit of Rs.16,250/ by Smt. Kavita Dahiya and Sh. Hanumant Singh and the time deposit no. 25/333 for Rs.46,275/ was reinvested amount originating from old FDR whose details were not available in the Court record. According to PW4, the records would be available in the Bank and that the deposits bears the signature of Smt. Kavita Dahiya and Sh. Hanumant Singh as depositors. According to PW4, the records showed that the time deposit bearing no. 25/417 of Rs.62,000/ was deposited in cash by Sh. Hanumant Singh and the deposit was in the joint name. similarly, the time deposit number 26/72 of Rs.8,000/ was paid in cash by Sh. Hanumant Singh in the joint name with his daughter. PW4 admitted the suggestion that as per Banking practice anybody could make time deposit by making deposit of money and could include the name of any person as joint holder of the said deposit 69 alongwith him. There was no dispute about the fact that the documents were seized from the Bank and therefore, summoning of only the then Bank Manager, who had since retired and that too without the records from the Bank is not understandable. There is no explanation also by the CBI as to why the other records as regards the FDRs which were available in the Bank at the relevant time were not seized particularly when those records would have revealed the complete background behind the deposits. Admittedly, as per the testimony of PW4 Sh. R. K. Ahuja, the complete records were available in the Bank at the relevant time. No endeavour was made by the IO to find out the details behind the said deposit as those documents would have been proof of the fact as to who had made the said deposits and made it to remain in the joint name of Smt. Kavita Dahiya and Sh. Hanumant Singh. On the contrary, 70 according to the IO, he proceeded to seek an explanation in this regard from the accused and finding no plausible answer presumed it to be the asset of the accused.
40. The accused in his defence has examined his brother in law Sh. Raja Som Sharawat as DW2, who has deposed that the amount in the FDRs had been deposited by his father in Central Bank of India, and that the entire amount was contributed by his father. He further deposed that till his father's death on 01.10.2008, the original FDRs were with his father and after his death, remained with him. He identified the signatures of his father on all the Five FDRs. He further deposed that he was not called by the CBI for the purposes of the investigation, however, the CBI Officials had visited his house to meet his father, who was at that time an old and sick person. The original FDRs were produced by DW2 and exhibited 71 on record as DW2/A1 to A5.
41. DW2 also proved on record the Appointment Letters of his father vide Ex. DW2/B, Ex. DW2/C and Ex. DW2/D. He also proved on record the Succession granted by the Court vide Ex. DW2/E as regards the debts and securities of the deceased father Sh. Hanumant Singh in favour of both his sons which were in the form of FDRs for a total amount over Rs. 1 lacs. DW2 also proved on record the certificates Ex. DW2/F and Ex. DW2/G issued by the Land Acquiring Authority regarding the compensation released in respect of the ancestral land acquired in village Nagal Devat vide Award No. 23/7374. From all these records, it stands proved that the Sh. Hanumant Singh, father in law of accused was a man of sufficient mean and had the capacity to make investment in the form of FDRs. The original FDRs were produced by DW2 during the 72 course of his testimony. Nothing has come forth in the cross examination of DW2 and the only suggestion put to him by the learned PP for CBI was regarding his brother not being employed with Quwait Airways since 1986 to 2006 and not being in service of Canadian Government and that wife of Suresh was not a teacher in the private school and that the accused had not been able to offer a proper explanation during interrogation as regards the FDRs.
42. There is sufficient evidence on record to safely conclude that the investment in the form of five FDRs for a total amount of Rs. 1,68,964/ was done by Sh. Hanumant Singh, the father in law of the accused and had made it in the joint name with his daughter Smt. Kavita Dahiya on either or survivor basis. Therefore, the amount as regard the five FDRs i.e. Rs.1,68,964/ can not be taken to be the asset of the accused and the CBI has wrongly included this amount in 73 the asset of the accused.
43. The CBI has also included an amount of Rs.27,500/ as asset of the accused on the premise that this amount was given by the accused as loan to one Sh. Baljeet Yadav. As per the case of the Prosecution, Sh. Baljeet Yadav happened to come to the residence of the accused on the day when the search was in progress i.e. on 06.10.1998 and that Sh. Baljeet Yadav being questioned regarding the purpose of his visit had disclosed that he was known to the accused and that he used to borrow money from the accused from time to time and that of late he had borrowed a sum of Rs.27,500/ from the accused. Surprisingly, Sh. Baljeet Yadav has not been produced as a Prosecution witness and has not therefore entered the witness box. The accused has denied the presence of Sh. Baljeet Yadav in his house on the day of the search and has also denied the 74 fact that Sh. Baljeet Yadav had ever borrowed any money from him. The onus was on the prosecution to prove this fact and best witness in this regard would have been Sh. Baljeet Yadav himself. Despite the case of the prosecution that the statement of Sh. Baljeet Yadav was recorded on the date of the search i.e. on 06.10.1998, it was incumbent on the part of the CBI to have produced Sh. Baljeet Yadav in the witness box to prove the factum of any loan transaction between him and the accused. Having not done so, the accused had been prevented from questioning the veracity being attached to the statement of Sh. Baljeet Yadav, by the CBI. Therefore, in my considered view, the CBI has failed to prove that the accused had advanced a loan of Rs.27,500/ to Sh. Baljeet Yadav. Therefore, this amount of Rs.27,500/ has been wrongly included in the details of the assets of the accused.
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44. The CBI has also included a sum of Rs.30,000/ in the list of the assets of the accused on the premise that this amount was recovered in cash from the house of the accused during the search conducted on 06.10.1998. As per the testimony of PW3 Jaggan Lal Meena, on the date of the search, an amount of Rs.22,000/ was recovered from the possession of the mother of the accused, Rs. 3,000/ from the possession of the accused and Rs.8,000/ from the possession of the wife of the accused. Therefore, admittedly as per PW3 Jaggan Lal Meena, the mother of the accused was present in the house on 06.10.1998 when the search was conducted. PW1 Satender Tomar has also testified that during the search on 06.10.1998, which started from 7.00 AM, besides the accused, his wife, his mother and child were present. PW14 Ramnish, Additional SP, on the contrary, denies in cross examination, the presence of the 76 mother of the accused or recovery of Rs.22,000/ from the almirah of the mother of the accused. PW14 Ramnish, Additional SP, also denied the suggestion that the mother of the accused had told the CBI Officials that this amount of Rs.22,000/ was her pension amount which she was getting monthly. From the documentary evidence on record i.e the Income Tax Returns of the mother of the accused Smt. Piyari Devi, vide Ex. PW16/DX2, it is revealed that Smt. Piyari Devi was having her own source of income and was being assessed for Income Tax since the year 199192. The Income Tax returns also clearly shows that Smt. Piyari Devi, the mother of the accused was having sufficient means and therefore, the possibility of she being in possession of a sum of Rs.22,000/ was neither improbable nor surprising. As such, the recovery of Rs.22,000/ from the almirah of the mother of the accused cannot be said that it was not her money.
77 It was therefore, unfair and unjustified on the part of the CBI to have included this amount as asset of the accused. Therefore, I have no hesitation to hold that out of the total amount of Rs.30,000/ an amount of Rs.22,000/ has been wrongly included as asset of the accused.
45. Now coming to the total income of the accused as computed by the CBI is Rs.18,35,506/, the same includes only a sum of Rs. 72,000/ as salary earned by the wife of the accused during the check period. However, from the evidence and documents on record, in Ex. PW4/C, repeated entries of Rs.7,500/ is seen in the Saving Bank Accounts No.3686 with Central Bank of India, in the name of Smt. Kavita Dahiya. These entries relates to payment received by cheque. PW4 R. K. Ahuja, in his evidence categorically stated that on the day when the documents collectively exhibited as Ex. PW4/C was seized 78 by CBI, the Bank was having the relevant records containing the details of the entries of amounts debited and credited in the said account. The accused has examined his brother in law Raja Sehrawat as DW2 who has categorically deposed that the recurring credit entries of Rs.7,500/ in the account no. 3686 of his sister Kavita Dahiya with Central Bank of India, was rent being earned by her and paid by Airtel Okhla for the antenna installed by Airtel. The said recurring entries of Rs.7,500/ per month is for 23 months, which would amount to Rs.1,72,500/. The Income Tax Returns of Smt. Kavita Dahiya, which is Ex. PW16/DX3 reflects this amount as Income earned by Smt. Kavita Dahiya on account of interest. The said income has been duly accounted by her in her Income Tax returns as this income is from the period November, 1996 to September, 1998. As such, I found no reason as to why this income of Rs.1,72,500/ 79 should not be included in the total income earned by Smt. Kavita Dahiya during the check period. I am, therefore, of the considered view that this income of Rs.1,72,500/ should be included in the income of Smt. Kavita Dahiya, and this amount should be included in the income of the accused and his family members, which would become Rs.20,07,406/.
46. On the basis of my above findings, the details of income of the accused and his family members would be as under: A. TOTAL INCOME AND OTHER RECEIPTS DURING THE CHECK PERIOD.
S.No. Source of Income Amount
1 Salary received by the accused from MCD Rs.3,73,834=00
during the period December, 1988 to
September, 1998.
2 Salary received by Smt. Kavita Dahiya wife Rs. 72,000=00
of the accused during the check period
while working with M/S. Unicon
Enterprises.
80
3 Rental Income at the rate of Rs.7,500/ per Rs.1,72,500=00
month received by Smt. Kavita Dahiya with
effect from November, 1996 for a period of
23 months till September, 1998.
4 Interest earned from different Bank Rs. 14,072=00
Accounts in the name of the Accused and
his family members.
5 Sale Consideration received by wife of the Rs.13,75,000=00
accused on selling property no. A1/88,
Janak Puri, New Delhi.
Total Income of the accused and his Rs.20,07,406=00
family members during the check
period.
47. As regards the total assets possessed by the accused, on the basis of my above findings, the total amount towards five FDRs i.e. Rs.1,68,964/, the cost of the vehicle Rs.2,13,739/, loan given to Sh. Baljeet Yadav i.e. Rs.27,500/ and an amount of Rs.22,000/ from the total cash of Rs.30,000/ recovered from the residence of the accused has to be excluded. Accordingly, the total assets of the 81 accused would be considered to be as detailed herein under: B. DETAILS OF ASSETS
1. Immovable assets - Nil.
2. Movable Assets S.NO. Details of Assets Amount.
1 SB Account No. 9647 Syndicate Bank, Rs.4,37,536=00 Janakpuri, in the name of the accused.
2 SB Account No. 23046 Indian Bank, Rs.1,26,113=00 Janakpuri, in the name of the accused.
3 SB account NO. 3686 Central Bank of Rs.1,00,014=00 India, Nangal Dawat, in the name of the Smt. Kavita Dahiha wife of accused.
4 SB account NO. 17990 Punjab National Rs.1,09,817=00 Bank, Bhikaji Cama Place, in the name of the Smt. Kavita Dahiya wife of accused.
5 SB account NO. 17991 Punjab National Rs.1,378=00 Bank, Bhikaji Cama Place, in the name of Baby Komal.
6 Investment in the name of Baby Komal Rs.50,000=00 (daughter of the accused) in the form of UTI certificate in 199293.
Cash recovered from the residence of the Rs .8,000=00
accused
8 Household articles worth Rs.1,38,228=00
TOTAL ASSETS Rs.9,71,086=00
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48. My above findings would also reduce the total expenses incurred by the accused during the check period as the expenses towards construction of house no. A1/88, Janak Puri, New Delhi, during the year 199597 amounting to Rs.10,14,000/ has to be excluded. Accordingly, the total expenses incurred by the accused during the check period would amount to Rs.9,03,678/ the details of which are as under: C. TOTAL EXPENSES INCURRED BY THE ACCUSED DURING THE CHECK PERIOD.
S.NO. Details of Expenditure Amount (Rs.).
1 Purchase of Property No. A1/88, Rs. 7,10,000=00
Janakpuri, New Delhi, in March, 1995.
2 House tax paid to MCD in 1999 Rs. 19,104=00
3 Towards education of his daughter Rs. 20,173=00
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4 Paid to Uttam College, Janakpuri for Rs. 5,300=00
education of wife
5 Membership of Janakpuri Club Rs. 10,000=00
6 Membership of Hari Nagar Sports Rs. 6,260=00
Complex
7 Purchase of water filter from M/s Eureka Rs. 8,230=00
Forbes
8 Nonverifiable miscellaneous household Rs. 1,24,611=00
rd
expenses calculated at the rate of 1/3 of
the total salary of the accused of Rs.
373834/
TOTAL EXPENDITURE Rs. 9,03,678=00
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49. On the basis of the above details, the total of the assets and expenditure would become Rs.9,71,086/ + Rs.9,03,678/ = Rs. 18,74,764/. Since the income of the accused and his family on the basis of my findings is Rs.20,07,406/, therefore, there is no asset or expenditure of the accused which is Disproportionate to the source of income.
50. Last but not the least is the question, whether there was a valid and a proper Sanction. In this regard, the evidence on record is the testimony of PW5 Sh. S. S. Harit, who was then the Deputy Commissioner, West Zone, on deputation. In his testimony, he deposed that he was competent to take disciplinary action and remove JE of MCD and that in his such capacity, he had granted Sanction for prosecution of accused vide Sanction Order Ex. PW5/A. According to him, he had perused the statement of the witnesses and 85 documents put up before him and had got prepared the Sanction Order by dictating the same on the basis of the material perused by him and after due application of mind. In his cross examination, PW5 admitted that the sanction order does not reflect in whom the ownership of the vehicle vested at that time and that there was no mentioned of the income tax return filed by the wife and mother of the accused or that from where the valuation report had been recovered. To a specific question, PW5 answered in the affirmative and admitted that the Sanction Order was based on S.P.'s report, calendar of events and evidence and draft sanction orders as available in the sanction file brought in the court. Immediately upon such admission having been made, the Ld. Senior PP for CBI requested to re examine PW5 who on reexamination deposed that he had also perused other documents as statement of witnesses produced before 86 him before grant of sanction but the same was not available in the Office File brought by Sh. R. S. Yadav, ALO (Vigilance Department), and that the sanction order had been dictated by him with assistance of the draft sanction order sent by CBI. In his cross examination, PW5 admitted that vide document Ex. PW5/DA, documents were to be produced before the Competent Authority as and when directed and that thereafter the sanction order Ex.PW5/A was sent to the CBI alongwith covering letter Ex.PW5/DB. PW5 further admitted in his cross examination that there existed no communication between MCD and CBI for production of documents. He also admitted that Ex.PW5/DC was the copy of the draft sanction order.
51. The sanction order Ex. PW5/A when compared with the draft sanction order Ex.PW5/DC, it would be evident that PW5/A is a verbatim of Ex.PW5/DC and neither a word has been added or 87 deleted. The only difference is that at the place where "Name & Designation" has been written on the last two paragraphs of page 3 of the draft sanction order Ex. PW5/DC, in the sanction order Ex.PW5/A this space has been filled up by typing "S.S. HARIT".
52. In the present case, the draft sanction order of the CBI has been exhibited during trial as Ex.PW5/DC. The details of the material documents, which might have been produced before the Sanctioning Authority and the Sanctioning Authority, which might have been taken into consideration has not been disclosed by PW5 when he entered the witness box except to the fact that his order was based on S.P.'s report., calendar of events and evidence and draft sanction order which was available on the Sanction File. He tried to improve his statement upon reexamination but it was of no avail since the documents which he was talking about was admittedly not there on 88 the sanction file. On the other hand, the sum and substance of the testimony of PW5 shows that he was simply asked to sign the draft sanction order, however, instead of doing that he got the draft sanction order of CBI retyped verbatim and on the last two paragraphs on the last page he simply put his name.
53. From the totality of the facts and circumstances, there is no element of doubt that the proforma of the sanction in the form of draft sanction order was supplied by the CBI and it was got retyped with no change at all except for incorporating the name of PW5 at two places on the last two paragraphs where in the draft sanction order it was written "Name & Designation".
54. There is nothing to indicate that the Sanctioning Authority had gone through all the relevant papers and the documents at the time of 89 granting of Sanction. PW5 also admitted that vide document Ex.PW5/DA, documents were to be produced before the Competent Authority as and when directed and that there was no communication between MCD and CBI for production of documents. Therefore, it is difficult to believe that there was any material placed on record before PW5 to enable him to apply his mind and accord Sanction.
55. There is clear indication of total nonapplication of mind on the part of the Sanctioning Authority. The sanction order Ex.PW5/A by no stretch of imagination can be said to be a legal and valid Sanction Order. Therefore, the prosecution of the Accused is bad for want of legal and valid sanction.
56. Consequent upon decision on most of the points in favour of accused Vijender Dahiya and against the CBI, it is held that prosecution has not succeeded in proving the commission of offence 90 punishable under Section 13(2) read with Section 13(1) (e) of Prevention of Corruption Act, 1988.
57. Therefore, accused Vijender Dahiya is acquitted of the substantive offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (e) Prevention of Corruption Act. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 16.03.2011.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI 91 CC NO.41/01 CBI VS. VIJENDER DAHIYA.
16.03.2011 Present: Sh. S. K. Jain, Ld. Special PP for CBI.
Accused Vijender Dahiya is present on bail with counsel Sh. H. K. Sharma, Advocate.
Vide separate judgment announced of even date on separate sheets, accused Vijender Dahiya is acquitted of the substantive offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1)
(e) Prevention of Corruption Act.
As accused Vijender Dahiya is acquitted but to secure his presence, in case, States files an appeal, Vijender Dahiya is admitted to bail on furnishing a Personal Bond in the sum of Rs.50,000/ with one surety in the like amount as per provisions of Section 437A of Cr. P. C. Personal Bond and Surety Bond furnished and accepted.
Vijender Dahiya is admitted to bail till 15.09.2011. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/16.03.2011.