Delhi District Court
Cc 116/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Anr. 1 on 7 September, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 116/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No.02401R0046862009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats,
Loni Road, Delhi.
2. A.S. Bhasin
S/o Shri R.S. Bhasin
R/o B-18, Hill View Apartment,
Vasant Vihar, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 07.09.2013
Date of Judgement : 07.09.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 1 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Sh. Brij Pal Singh, Executive Engineer, West Zone, MCD and other 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 PW10 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW10/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 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.PW11/A bearing RC 1/2007 was accordingly registered and investigated by PW11 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 only illusory investigation has been conducted giving a clean chit to many other officials involved.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 2
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 may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW10/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.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 3 pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the 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. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was 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 PW11 Inspector N. Mahato and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution is that property no. C-16, Vikaspuri, New Delhi measuring about 329 sq. mts. plot was purchased by Shri A. S. Bhasin from Shri Rohit son of Shri Yukti Prakash r/o C-16, Vikaspuri, New Delhi on 06.04.2002.
The property was booked on completion /on complaint for unauthorized construction vide FIR No. B/UC/WZ/03/58 dated CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 4 03.02.2003 (Ex.PW4/A) by Shri Ajay Kumar Shrotriya, JE. The unauthorized construction is described in the FIR as deviation/ excess coverage against SBP No. 289/B/WZ/01 dated 02.11.01 and the building was found constructed on GF, FF, SF and TF. Further, an endorsement was made by Shri Gautam Chand, AE on the FIR to "issue notice" for the purpose of taking further action against the unauthorized construction.
Thereafter, a show-cause notice dated 03.02.2003 u/s 344 DMC Act, 1957 (Ex.PW3/A) was issued to the owner/builder to stop the construction which was served by way of affixation by Shri Ajay Shrotriya, JE on 04.02.03. Since no reply was received to notice dated 03.02.03, another notice u/s 343 DMC Act, 1957 dated 10.02.2003 (Ex.PW3/B) was issued under the signatures of Shri Gautam Chand, the AE (B) to the owner/builder of the said property directing to take action for demolition of the property within six days as unauthorized construction had been raised against the building bye-laws. The aforesaid notice was also served by way of affixation by Shri Ajay Shrotriya, JE on 11.02.03.
As no response was received to the aforesaid notices, a demolition order dated 18.02.03 (Ex.PW4/F) was passed by Shri Gautam Chand, AE on the proposal put by Shri Ajay Kumar Shrotriya, JE.
It is further the case of prosecution that the demolition action was fixed for 12.03.2003 in the area of Vikaspuri but Ajay Kumar Shrotriya, JE made a note in the file that demolition action could not be taken due to non-availability of police force. The file was further marked to AE and Shri Gautam Chand, AE remarked "try again".
It is next the case of prosecution that Ajay Kumar Shrotriya CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 5 fraudulently and dishonestly made an entry dated 27.02.03 in the demolition register to the effect "removed the chhajja at TF partly"
and thereby showing to have carried out demolition at premises in question but did not raise any charges for demolition. Further, no entry relating to the demolition of the property was made in the Unauthorized Construction file of the property. It is also alleged that the entry did not exist at the time of preparation of monthly statement of demolition for the month of February, 2003 which was prepared by office-in-charge (Building). Also the demolition action was not reflected in the monthly action taken report prepared in the department. It is also the case of prosecution that the log book of the vehicle maintained by the department showed that the vehicle was out of order. Also, file of property in question was not received by Ajay Kumar Shrotriya from OI(B) on 27.02.03 for carrying demolition action. Investigation further disclosed that on 27.02.03 the demolition action was fixed within the jurisdiction of PS Hari Nagar as per the entry dated 27.02.03 made in demolition register.
It is further the case of prosecution that during investigation the property in question was inspected by team of officers from CPWD and vide report dated 09.01.08 it was observed that the property consisted unauthorized coverage in the side setback area at FF, SF and TF. Further, the GF with basement was being used as bank. It was also observed that actual FAR is 283.3 against the permissible FAR of 150%. The FF, SF and TF were also stated to be used for commercial purpose.
It is alleged that the aforesaid demolition was not carried in CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 6 conspiracy with co-accused A.S. Bhasin and thereby Ajay Kumar Shrotriya abused his official position as public servant.
4. Charge was framed against accused Ajay Kumar Shrotriya and A.S. Bhasin under Section 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) alongwith Section 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences under Section 417/465/468/217 IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined eleven witnesses, namely:
PW1 Shri S.S. Rana, CPWD PW2 Shri Ashok Kumar, Vice Chairman, DDA PW3 Shri Umesh Singh (Baildar) PW4 Shri Moti Lal, OI(B) PW5 Shri Vijay Kumar Kadyan, EE PW6 Shri R.S. Rana, AGEQD PW7 Shri Gautam Chand, AE PW8 Shri Himanshu Pandey, CPWD PW9 Shri Lal Chand (Driver, MCD) PW10 SI Arvind Kumar (CBI) PW11 Inspector N. Mahato, IO
(a) PW10 SI Arvind Kumar conducted the preliminary enquiry prior to registration of FIR. He deposed that he remained posted in CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 7 EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry 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 by him along with the record 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. He further stated that accused Ajay Kumar Shrotriya being a public servant abused his official position to cause undue pecuniary advantage for himself or other private persons and 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. Further, in this respect, a letter dated 23.01.2007 (Ex.PW10/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri.
(b) PW2 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE and proved the sanction order Ex.PW2/A.
(c) PW8 Shri Himanshu Pandey, the then Executive Engineer, CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 8 CPWD and PW1 Shri S.S. Rana, the then Dy. Architect, CPWD proved the report Ex.PW1/A along with plans which was prepared on inspection of property no. C-16 Vikaspuri, New Delhi. The report further reflects the permissible construction as per building bye-laws of 1983 and construction existing at site in the year 2008.
(d) PW7 Shri Gautam Chand, AE deposed that he remained posted as AE in MCD West Zone, Rajouri Garden, Building Department from Oct. 2002 to July, 2004. Further, he identified signatures of Ajay Kumar Sharotriya at point B on FIR dated 03.02.03 (Ex.PW4/A) regarding unauthorized construction at C-16, Vikaspuri and his signatures at point A alongwith endorsement "issue notice".
He further stated that notice u/s 344 (1) DMC Act dated 03.02.03 (Ex.PW3/A) was issued on the basis of FIR dated 03.02.03 under his signatures. Further, the same also bears endorsement at the back of notice at point A under the signatures of Shri Ajay Kumar Sharotriya regarding refusal of taking notice by owner/builder and for permission for pasting the same.
He further stated that he approved order to issue notice u/s 343(1) of DMC Act dated 10.02.03 (Ex.PW4/D) at the request of Shri Ajay Kumar Sharotriya. Further, he identified his signatures on notice issued on 10.02.03 U/s 343 (1) of DMC Act (Ex.PW3/B), and endorsement under signatures of Ajay Kumar Sharotriya at point A to the effect "I went to site to serve the notice to the owner/ builder but he refused to serve the same. If agreed the same may be pasted at site".
He further stated that both the show cause notices dated 03.02.03 and 10.02.03 were taken by Ajay Kumar Sharotriya for CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 9 service to the owner/occupier of the property and bear endorsement at point B respectively made by Ajay Kumar Sharotriya as to the pasting of the aforesaid notices.
He further proved demolition order dated 18.02.03 ( Ex.PW4/F) issued for demolition action in property No. C-16, Vikaspuri under the signatures of Ajay Kumar Sharotriya at point A and also identified his signatures at point B. He further stated that OI(B) makes the demolition programme in consultation with EE for taking the action against the unauthorized construction in the area and intimation in this regard is also given to the SHO of PS concerned through DCP for requisition of police force to carry out demolition in the particular area and making arrangement for police force. Further, on the date on which the demolition action is fixed the file is collected by the JE from OI(B) and after the action is taken the file is handed back to OI(B). He further stated that the report as to the action taken is reported on the demolition order or in the unauthorized construction file and is also put up before the AE concerned and thereafter, the file is handed back to OI(B).
He further proved endorsement made on the demolition order dated 18.02.03 (Ex.PW4/F) at point C made on 12.03.03 by Ajay Kumar Sharotriya on 12.03.03 to the effect that "demolition action could not be taken due to non-availability of police force". He further stated that a noting beneath the same was made by him under his signatures at point D to the effect "try again" and thereafter, the file was marked to OI(B). He also deposed that there are further endorsements from 30.07.03 to 20.11.03 on demolition order Ex.PW4/F during which period demolition action could not be taken due to various reasons and on each date the file was put up before him CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 10 by the concerned JE.
He also stated that action taken report for the month of February, 2003 and March 2003, Ex. PW-4/H did not refer to demolition of property No. C-16, Vikaspuri. However, demolition register (Ex.PW4/E) shows entry dated 27.02.03 with regard to part demolition of C-16 Vikaspuri to the effect "remove the Chajja at TF partly". He further stated that as per noting on unauthorized construction file, the file was not placed before him on 27.02.03 though as per entry in demolition register the demolition was carried out as referred in the entry in the demolition register.
(e) PW4 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, missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers. He further stated that 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/03/58 dated 03.02.03 (Ex.PW4/A) was lodged in respect of property no. C-16/ Vikaspuri under the signatures of the then JE A.K. Sharotriya at point B and an endorsement was made by Shri Gautam Chand, AE at point A "issue notice". Further, he had entered particulars of the said building in missalbandh register (Ex.PW-4/B) at Sr. No. 58 in his hand.
He further stated that a show cause notice u/s 344 DMC Act dated 03.02.03 (Ex.PW3/A) was issued and an endorsement, was CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 11 recorded by Ajay Kumar Sharotriya to the effect "I went to site to serve the notice but he refused to receive the same and if permitted the same may be pasted at site". Thereafter, further an endorsement was made at point B on the back of Ex.PW3/A regarding pasting of said notice by A.K. Sharotriya at the premises in the presence of two witnesses.
He further deposed that order to issue second notice u/s 343 of DMC Act dated 10.02.03 was procured by A.K. Sharotriya, JE as per Ex.PW4/D and on the basis of same notice u/s 343(1) of DMC Act dated 10.02.03 was issued under signatures of Sh. Gautam Chand (AE)(Ex.PW3/B). Further, entries regarding issuance of both show cause notices were reflected in missalband register at serial No.58. He further stated that an endorsement was also made on the second show cause notice dated 10.2.03 (Ex.PW3/B) to the effect of pasting of notice on 11.2.03 at the premises under the signatures of Sh. A.K. Sharotriya at point B in the presence of witnesses seeking permission to paste the same.
He further proved demolition order dated 18.02.03 (Ex.PW4/F) bearing the signatures of Sh. A.K.Sharotriya at point A and of Shri Gautam Chand at point B. He further stated that on the order for demolition dated 18.02.03 (Ex.PW4/F), an endorsement was made at point C by Ajay Kumar Sharotriya on 12.03.03 to the effect "demolition action could not conducted due to non-availability of police force". Further, the same was countersigned under the signatures of AE Sh. Gautam Chand with remarks "try again" and thereafter, the file was marked to OI(B). He further deposed that as per other endorsements dated 30.07.03, 25.09.03, 20.11.03, 06.12.04 and 10.01.05 on Ex.PW4/F (demolition order) the demolition could CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 12 not be carried out and all the said entries are under signatures of various JEs who were posted on concerned dates.
He further stated that the demolition register (Ex.PW4/E) maintained by him during his tenure was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard in the register. Further, with reference to file no.B/UC/WZ/03/58 dated 3.2.03 in the entry dated 12.03.03 in the demolition register it was reflected therein "no force". He further stated as per entry dated 12.03.03, programme was fixed in Vikaspuri area and demolition programme was to be carried under the supervision of Sh. D.B.S. Huda, JE.
He also stated that as per rule, the UC file should be handed over to him on the same day on the arrangement of police force for demolition but the file was neither taken over, nor handed over to him by Ajay Sharotriya. Also, as per movement register (Ex.PW4/G) the files pertaining to other 9 properties were handed over to Sh. D.B.S. Huda, JE on 12.03.03 and file of property no.C-16 Vikaspuri was not taken by Ajay Kumar Shrotriya on 12.03.03.
He also clarified that the programme for demolition was used to be chalked out by the concerned XEN and the same were communicated to 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 also stated that he had never sent any letter to owner / occupier of property No.C-16, Vikaspuri for the demand of demolition charges. He further stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area. Further, CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 13 action taken report against the unauthorized construction was prepared by him on the basis of demolition register which is usually written by the concerned JE. He further proved the Action Taken Report Ex.PW4/H bearing his signatures at point B (on page No. 1,4,5,6,7) along with the signatures of the then EE, Sh. Kadyan at point A. He further stated that he used to prepare the 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, there was no reference in ATR for the month of March 2003 (Ex.PW4/1) with respect to demolition action in respect of property no.C-16 Vikaspuri which was bearing the signatures of Brij Pal Singh. He also stated that there is no entry of any type of demolition in the missalbandh register against the property no. C-16 Vikaspuri at Sr. No. 58 at point A and the entries are only with respect to registration of FIR and issuance of Show Cause Notice / demolition order.
He further clarified 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. Further, the file was to be again taken by JE in case the action was to be again/ subsequently taken.
He further stated that vide letter dated 24.02.03 (Ex.PW4/J), Deputy Commissioner of Police was requested for issuing necessary directions for arrangement of police force for carrying out demolition in different areas and the same bears the signatures of Shri B.P. Singh, EE. Further a request was made vide aforesaid letter for making arrangement of police force on 12.03.03 in area of Vikaspuri.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 14
(f) PW5 Shri Vijay Kumar Kadyan, deposed that during the period May, 2003 to May, 2005, he was posted as Executive Engineer in MCD, West Zone, Rajouri Garden, New Delhi and his duties as Executive Engineer were supervisory in nature which includes closing of missalbandh registers pertaining to registration of FIR of unauthorized construction, sending reports to higher authorities regarding working of the building department, demolition programmes to be undertaken as well as which were executed.
He further stated that the action taken report pertained to the details of demolitions, sealing of properties and action taken on unauthorized construction which were carried during the particular month and the same were forwarded by him to higher authorities. Further, the action taken report were put up before him by OI (Office In charge building) and which were forwarded to higher authorities for further necessary action and intimation.
He further proved on Action Taken Report Ex.PW4/H, Missalbandh register Ex.PW4/B and stated that reports for the period May 2003 onwards till May 2005 bear his signatures.
He further stated that the FIR No. B/UC/WZ/03/58 dated 03.02.03 ( D-3) is entered in Missalbandh register pertaining to the said year but does not bear his signatures as it pertains to the period prior to his posting. Further, the relevant entry in this regard was available at point A on Missalbandh register( D-16) (collectively Ex. PW-4/B). He further stated that in 2003 Shri Moti Lal was Office Incharge Building and used to put his signatures before putting the relevant record before him. Further, he identified initials at point B on the pages of Action Taken Report (Ex.PW4/H).
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 15 He further stated that demolition register (Ex.PW4/B) remained in possession of OIB. However, the JE concerned made the enteries regarding the demolition carried as per record in the said register.
(g) PW3 Shri Umesh Singh, witness to service of notices u/s 343/ 344 DMC Act, deposed that he remained posted as baildar in MCD in West Zone during tenure of Ajay Kumar Sharotriya. Further, he used to accompany the JE concerned for purpose of service of notices under DMC Act. He further stated that the notices for service issued under DMC Act were handed over to the owner/builder, if present at spot and in their absence the notices were pasted as per the directions of the JE concerned.
He further clarified that as per procedure, he used to visit the concerned property alongwith the JE and used to sign the notice after affixation as per the directions of JE.
He further stated that show cause notice u/s 344 DMC Act dated 03.02.2003 (Ex.PW3/A) was affixed on the property in question and bears his signatures at point A. Further, show cause notice u/s 343 DMC Act dated 10.02.2003 (Ex.PW3/B) was also affixed on the property in question and bears his signatures at point A.
(h) PW9 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 by the officers and used to maintain log book of the vehicle (Ex.PW9/A). Further, in case the truck was requisitioned by a particular officer, the same was also reflected and the log book was also countersigned by the officer concerned in the relevant column in the log book. He further stated that he had given his statement with CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 16 respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 12.03.03.
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 the dates on which he was deputed in the vehicle are in his handwriting. Further, entry dated 12.03.03 is in his hand and he had taken the vehicle on the requisition by Dilbagh Singh Huda, the then JE who visited Police Station Vikaspuri to take police force for demolition but the same was not available and the vehicle was taken back to the office after inspecting some sites. He also stated that aforesaid the entry is in his hand and bears his signatures at point A and initials of Shri D.B.S. Huda at point B. He further stated that entry dated 27.02.03 at point F is in his hand and on aforesaid date, he had taken the vehicle to Subhash Nagar workshop for repair due to some defect and took it back to West Zone office. Further, the vehicle was booked on that day in the name of Ajay Kumar Sharotriya, which bears his signatures at point A and that of Ajay Kumar Sharotriya at point B. (I) PW6 Shri R.S. Rana GEQD 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 at point A who had also examined the case independently and came to the same conclusion.
(j) PW11 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 17 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.PW11/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW10/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Sharotriya 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 Shri Ajay Sharotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD. The said documents include missalband register (Ex.PW4/B), demolition register (Ex.PW4/E), log book (Ex.PW9/A), attendance register (Ex.PW11/C). Further, 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). Also, the report (Ex.PW6/B) was thereafter obtained.
He further stated that he issued notices to the concerned witnesses/ officials and also recorded the statement of witnesses which were relevant to the case. Further, 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.PW1/A) from the concerned department.
He also stated that the unauthorized construction file was CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 18 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 wheresoever required, wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard. He further stated that demolition register maintained at PS Tilak Nagar Ex.PW7/A in CC No.93/11 was also seized. Also, documents pertaining to ownership of property no.C-16, Vikaspuri were produced by A.S. Bhasin (Mark PW11/E).
He further stated that as per investigation, accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in accordance with law.
6. In his statement u/s 313 Cr.P.C., accused Ajay Kumar Shrotriya denied the case of prosecution that the entries have been forged or demolition action was wrongly shown in papers. He further took a stand that Vikaspuri area was divided in two parts and he had visited the area in his ward and Shri Hooda, JE had visited the area falling in his ward. He also stated that the file had been handed over to him on 12.03.03 by the OI(B) and was returned on the same date. He further took a stand that as per policy, no charges were made for minor demolitions and as such, the same were not claimed since there was minor demolition of chhajja partly at third floor. He also stated that the duty to reflect the entries in the action taken report on the basis of demolition register was of OI(B) and he could not be held responsible for the same. Further, he stated that entries in the missalband register were maintained by OI(B) and he could not be held CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 19 responsible if the record was not properly maintained in the missalband register. He further took a stand that on 27.02.03 since the truck was out of order, he had visited the site by personal vehicle. He also stated that the file might not have been taken alongwith at the time of demolition on 27.02.03 and demolition action could be carried even without carrying the file. He further denied any conspiracy or fabrication of records and also claimed that investigation had not been fairly conducted and he had been made a scapegoat. However, no evidence was led in defence after seeking an opportunity.
Similarly, accused A.S. Bhasin denied the case of prosecution. He took a stand that he was not aware as to the service of the notices issued under section 344/343 DMC Act or passing of the demolition order. He further stated that it was not within his knowledge as to the entry made in the demolition register on 27.02.03. He also claimed that he was not the owner of ground floor and basement in C16 Vikaspuri and he had not rented it out to anyone. He further stated that he was only the owner of first, second and third floor of the property and the construction in the premises had been regularized by MCD.
Accused A.S. Bhasin further examined himself as DW1 in defence and also summoned DW2 Shri P.K. Sharma, Assistant Engineer (Building) West Zone, MCD in defence to prove the relevant record pertaining to C16 Vikaspuri, New Delhi.
DW1 A.S. Bhasin deposed that he was not the owner of basement and ground floor of premises no. C16, Vikaspuri and had never rented the CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 20 same. He further disputed the report prepared by CPWD and stated that FAR of the property is much more than shown by the CPWD officials. He also took a stand that construction in property stands regularized and proved the receipt depositing the charges as Ex.DW1/A. He also took a stand that construction of first, second and third floor had been carried in different phases and had only been completed in the year 2006/07.
DW2 Shri P.K. Sharma, Assistant Engineer (Building), West Zone, MCD proved the application dated 26.09.07 filed by A.S. Bhasin for regularization of building plan Ex.DW2/A, the copy of regularized plan filed on behalf of accused Ex.DW2/B. He also stated that the regularization was only for first, second and third floor and not for the ground floor and basement in the premises. During cross examination, he further proved the copy of sanctioned plan in respect of aforesaid property in the year 1982 (Ex.DW2/DX1), the addition/alteration plan which was sanctioned on 28.11.01 (Ex.DW2/DX2), the circulars issued for consideration of regularization by MCD (Ex.DW2/DX collectively).
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.PW2/A had been passed by PW2 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 21 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 vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11, 114/11, 117/11, 107/11 & 108/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the chargesheet bearing CC CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 22 No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
f) It was also contended that it could not be inferred that the proceedings were not conducted by Ajay Kumar Shrotriya as per noting dated 27.02.03 and partial demolition action was not carried out, 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 PW4 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.
It was also submitted that the action taken on 12.03.03 could not be doubted since the file had been duly marked to CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 23 AE(B) Shri Gautam Chand on 12.03.03 itself and he had endorsed by remarking "try again". It was submitted that in case the file had not been taken, there could not have been any occasion for placing the file before AE(B) on 12.03.03 which was further marked to OI(B) by AE(B).
It was also submitted that the file was even thereafter taken up for further action on several dates by different JEs i.e. 30.07.03, 25.09.03, 20.11.03, 06.12.04 and 10.01.05 as per notings made in the UC file on Ex.PW4/F and the file never stood closed by mere entry dated 27.02.03 made in the demolition register whereby partial demolition action was taken by Ajay Kumar Shrotriya. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Ajay Kumar Shrotriya as per aforesaid notings for failing to take further demolition action.
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 27.02.03 without police force and taken action in the properties reflected in the demolition register i.e. C16, Vikaspuri, New Delhi; 32/15, Tilak Nagar; WZ-150B, Krishna Park; 4 Tilak Nagar and 34/5 Mukherjee Park. It was also contended that the prosecuting agency has not challenged the demolition action taken in 32/15 Tilak Nagar and 34/5 Mukherjee Park which were also taken on the aforesaid date without police force.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 24
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 27.02.03 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 of the portion which had been partially demolished in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No.47-48 for a short duration from 02.12.02 to 31.03.03 and 02.04.03 to 29.05.03 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. It was also pointed out that Shri Vinod Sharma, Shri Anil Aggarwal, Shri S.K. Anand, Shri R.P.S. Nain and Shri D.B.S. Hooda (JEs) who were posted before or after him in the same ward and failed to take any action were given clean chit along with all the AEs who were equally responsible to take action but failed to do so. It was further urged that Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him ignoring even the act of the JEs/AEs/EE during whose tenure the building had come up but the same had neither been booked nor any action for demolition was taken.
j) It was also contended that there was no requirement CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 25 or procedure that demolition action could not be carried without obtaining the police force and in fact on 27.02.03 the action was taken by him without police force.
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 27.02.03 merely because a corresponding entry was not made in the unauthorized construction file. It was submitted that the UC file never stood closed by a mere entry of partial demolition action which was taken and reflected in the demolition register and was missed to be mentioned in the UC file.
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.
m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that none of the JEs/AEs/EE had been booked during whose tenure the unauthorized construction had come up and the same was only subsequently booked by accused Ajay Kumar Shrotriya by way of FIR on 03.02.03. It is also submitted that the fact that the construction had come up much prior to the date of booking of FIR on 03.02.03 as the existence of GF, FF, 2nd Floor and 3rd Floor is duly reflected CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 26 in the FIR and it was noticed that there was deviation/excess coverage against sanctioned building plan.
Counsels for accused A.S. Bhasin submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular 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 the accused 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 A.S. Bhasin had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. Even, the partial demolition action claimed to have been carried in the property in question on 27.02.03 was disputed alongwith service of notices u/s 343/344 DMC Act, 1957. It was also contended that the IO did not fairly investigate the case since A.S. Bhasin is only the owner in respect of 1st, 2nd and 3rd floor in the premises and the basement and the ground floor were owned by Shri Rohit s/o Yukti Prakash and the same was further disposed to some other person. Counsel for accused further submitted that even vide photocopy of sale deed dated 06.04.02 handed over during investigation, the property sold by Rohit s/o Yukti Prakash in favour of accused A.S. Bhasin included the entire 1st floor of the property alongwith right to construct any area on 1st floor, 2nd CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 27 floor and subsequent terraces. Further, the clauses under sale deed clearly reflected that the property was already partly constructed comprising of basement, ground floor and first floor in the year 1982.
It is also contended by the counsel that the plans for the construction in the year 2001 had been applied by the vendor Rohit Kumar s/o Yukti Prakash as deposed by DW2 Shri P.K. Sharma on the basis of MCD records. Counsel for accused further supported the stand of accused Ajay Kumar Shrotriya that the part demolition in the property had been carried on 27.02.03. It was also claimed that the FAR in the report Ex.PW1/A has been wrongly reflected by CPWD and the same was much more and the construction stood regularized.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 27.02.03 in the demolition register was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused 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. It was also submitted that the entry dated 27.02.03 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.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 28
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri H.S. Dhawan, Advocate for accused A.S. Bhasin and 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 27.02.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused 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 take 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 29 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) 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.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 30
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 to 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 31 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 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 32 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 Kumar 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 33 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.
It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11 & 109/11, 117/11, 114/11, 107/11 and 108/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawal of six cases against Ajay Kumar Sharotriya & others under Section 321 Cr.P.C. which includes the present case but the same were declined as the applications were not filed in four other similar cases based on analogous evidence CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 34 and were contested by prosecution.
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.
Evidence has been led on record in defence in several cases including CC No.107/11 whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
Sh. Vinod Sharma 02072002 to 23102002
Sh. Anil Aggarwal 23102002 to 02122002
Sh. Ajay Kumar Shrotriya 02122002 to 31032003
Ward No. Sh. Anil Aggarwal 31032003 to 01042003
4748
Sh. S K Anand 01042003 to 02042003
Sh. Ajay Kumar Shrotriya 02042003 to 29052003
Sh. R P S Nain 29052003 to 18062003
Sh. D B S Hooda 18062003 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted in concerned ward wherein property is located only for a short period from 02.12.02 to 31.03.03 and 02.04.03 to 29.05.03. The CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 35 property in question was booked for unauthorized construction on 03.02.03 "on completion/complain" by Ajay Kumar Shrotriya. The second and third floor had already come up and no action appears to have been taken by the JE posted prior to Ajay Kumar Shrotriya for booking of the property. The basement, ground and first floor are also stated to be existing at the time of the purchase of first floor alongwith roof rights by A.S. Bhasin vide sale deed dated 06.04.02 (Mark PW11/E).
It is pertinent to note that the period during which the construction of basement, ground, first, second and third floor had come up has not been reflected in the investigation. Part of building i.e. basement, ground and first floor already stood constructed even prior to the year 2002 as reflected from the sale deed (Mark PW11/E). During the entire process of construction of second and third floor prior to posting of Ajay Kumar Shrotriya, the building was never booked for unauthorized construction and the role of the Junior Engineer, AE and EE posted at aforesaid time has been completely ignored by the investigating agency. Even the conspiracy to carry the unauthorized construction must have been in existence between the original owner/builder of the property and the concerned JE/AE posted at aforesaid time but the investigating agency does not appear to have taken the aforesaid aspect into consideration.
12. It may next be observed that notices u/s 344 (1) DMC Act, 1957 dated 03.02.03 (Ex.PW3/A) as well as 343 DMC Act dated 10.02.03 (Ex.PW3/B) were issued under the signatures of Gautam Chand, AE (PW7) as per record of MCD. The aforesaid notices were CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 36 further served on the owner/builder of the property by way of affixation by Shri Ajay Kumar Shrotriya, JE after obtaining the approval from Shri Gautam Chand, the then AE. The demolition order was thereafter passed on 18.02.03 as proposed by Ajay Kumar Shrotriya and approved by Shri Gautam Chand, AE (PW7). The proceedings till aforesaid stage have not been disputed by the investigating agency.
The investigating agency has only disputed entry dated 27.02.03 made by Ajay Kumar Shrotriya in demolition register whereby partial demolition action is reflected and entry dated 12.03.03 made by him in UC file whereby it was observed on the demolition order (Ex.PW4/F) to the effect "demolition action could not be taken due to non availability of police force". The case of the prosecution is that the aforesaid entry dated 12.03.03 made in UC file on Ex.PW4/F has been wrongly made since the demolition action was fixed at PS Vikaspuri under D.B.S. Hooda, JE on 12.03.03. Further, it was recorded in the log book maintained for official vehicle at West Zone MCD that truck was taken from West Zone to PS Vikaspuri and since the police force was not available, the vehicle returned to West Zone after seeing several sites and the entry was countersigned by the concerned JE Shri Dil Bagh Singh Hooda.
At the outset, it may be observed that so far as aforesaid entry dated 12.03.03 in the UC file is concerned, the proceedings undertaken on aforesaid date as per UC file cannot be disputed since the non availability of police force itself is confirmed by entry dated 12.03.03 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 37 wherein it is reflected that the police force was not available. The fact that the proceedings were taken on the aforesaid date by Ajay Kumar Shrotriya cannot be doubted since the file was marked on 12.03.03 to the AE(B) Shri Gautam Chand who remarked on the noting "try again". In case the file had not been handed over by OI(B), the aforesaid noting by Ajay Kumar Shrotriya, JE and further observations by AE(B) could not have been recorded on 12.03.03. As such, the stand of the prosecution that the file was not handed over by OI(B) on 12.03.03 does not find corroboration from record. Even otherwise, no complaint was made by OI(B), in case the file was not handed over by him to JE on 12.03.03. The investigating agency has also not chargesheeted Gautam Chand, AE in case the proceedings on 12.03.03 were fabricated by accused Ajay Kumar Shrotriya, JE in connivance with AE. In the facts and circumstances, the prosecution has failed to prove that the proceedings on 12.03.03 were fabricated by Ajay Kumar Shrotriya, JE.
13. The investigating agency has further disputed the entry dated 27.02.03 made by Ajay Kumar Shrotriya, JE in demolition register during his tenure in the ward from 02.12.02 to 31.03.03 and 02.04.03 to 29.05.03 whereby partial demolition action was stated to have been carried by him and noting was made to the effect "removed the chhajja at TF partly" though no corresponding entry was made in the unauthorized construction file. The said entry dated 27.02.03 is CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 38 alleged by prosecution to be concocted without actually carrying the demolition.
The entire blame and investigation by prosecution only centres around entry dated 27.02.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that if the unauthorized construction had commenced prior to posting of Ajay Kumar Shrotriya and further demolition action was not taken after his transfer, the conspiracy obviously would also have been with the JE/AE/EE posted during said tenure rather being only confined with Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but it is suffice to point out that there is no conclusive evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused A.S. Bhasin and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 27.02.03. The root of the prosecution case as such appears to be on a slippery ground.
It may also be observed that on 27.02.03 Ajay Kumar Shrotriya had taken partial demolition action in property no. 32/15 Tilak Nagar and 34/5 Mukherjee Park without police force but the investigating agency has not disputed or challenged the action taken by him in aforesaid properties. There is no reason to presume that he could have legally taken action without police force in aforesaid properties but could not have taken the same in C16, Vikaspuri (i.e the property in question).
It is also pertinent to observe that by mere part demolition action dated 27.02.03 recorded in the demolition register, the file CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 39 never stood closed. PW7 Shri Gautam Chand, the then AE(B), MCD West Zone also stated in his cross-examination dated 09.05.12 that JE cannot close the unauthorized construction file. He also specifically stated in cross-examination dated 09.05.12 on page 2 that he had accompanied Ajay Kumar Shrotriya for purpose of demolition as per entry dated 27.02.03 in the demolition register. He further clarified that the entry may have been missed in the UC file due to oversight or pressure of work. He further stated during cross- examination dated 16.07.12 on page 4 that the labourers alongwith the MCD staff can also travel by private vehicle to the property in case the government vehicle is not available. The stand taken by Ajay Kumar Shrotriya that he visited the property in question without police force, cannot be discarded in view of corroboration by PW7 Shri Gautam Chand, AE.
It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted, it has come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 40 said case.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so for the reason that the conspiracy with co-accused has not been proved beyond reasonable doubt.
Also, PW5 Shri Vijay Kumar Kadyan, the then EE(B) also corroborated the above fact in his cross-examination dated 03.04.12 (page 4) that file is not closed by mere part demolition and complete unauthorized construction is to be removed within the purview of Building Bye-laws.
It may also be noticed that PW Vijay Kumar Kadyan examined in other cases including CC No.107/11 deposed that there has to be specific order for closing the file by AE concerned and the file is not closed till the complete action is taken against unauthorized construction or the unauthorized construction is regularized. He also therein stated that JE is not the officer authorized to close the file and the same is closed by AE.
The testimony of other JEs examined on behalf of prosecution in other cases is also to similar effect. PW7 Shri Umesh Chand Saxena, the then JE(B) in CC No.107/11 also stated in his cross- examination dated 19.04.12 (page 4) in aforesaid case that till the time unauthorized construction file is closed, the action for demolition CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 41 can be again taken.
In the light of evidence led on record, it can be safely inferred that the unauthorized construction file never stood closed by the aforesaid noting dated 27.02.03 made by Ajay Kumar Shrotriya in the demolition register whereby partial demolition action was taken. It is also pertinent to note that the file after his transfer from aforesaid ward has been regularly taken up for further demolition action in the property but the role of the JE/AEs posted after his transfer has been completely overlooked by the investigating agency though they failed to take any further action. Thus, on the basis of aforesaid entry, it cannot be concluded in the facts and circumstances that the proceedings had been fabricated by Ajay Kumar Shrotriya.
14. It is also imperative to point out that mere reflection of movement of 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. The possession of the UC file being obtained by JE without entry in the movement register since he did not visit the CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 42 site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
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 during cross-examination of PW4 Moti Lal {the then Officer Incharge (Buildings)}, 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 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 43 admitted by PW4 Moti Lal in his cross-examination dated 03.04.12 page no.14 in the present case (i.e. CC No.116/11) 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 PW4 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW4 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW4 Moti Lal dated 03.04.2012 on page no.10 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 44 Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the 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 also admitted on page 11-12 of the cross- examination dated 03.04.2012 to the effect "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 a 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 27.02.03 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 45 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 job 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 by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has also been raised in other cases decided by this Court. In CC No. 114/11, Shri Brij Pal Singh, EE was examined by the prosecution and in the aforesaid case, he stated in cross-examination dated 30.04.12 (page 3 and 4 ) 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."
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 46 It was also admitted by PW11 Insp. N. Mahato (IO) in the present case (i.e.CC No.116/11) in his cross-examination dated 23.08.12 page 9 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 also be taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 27.02.03 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 construction reflected in the report leads to inference that the demolition action had not been carried on 27.02.03.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but 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 inferred that partial demolition action dated 27.02.03 is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 27.02.03. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 47 27.02.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised in the property cannot be doubted.
18. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 27.02.03 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW11 Inspector N. Mahato during his cross- examination dated 07.08.12 (page 18) stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW11 admitted in his cross- examination dated 07.08.12 on page 18 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 27.02.03 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 CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 48 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 27.02.03 the property of the owner/ builder could not have been saved from further demolition action. The duty for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 31.03.03. The unauthorized construction file was also taken for demolition action on various dates as per notings recorded on Ex.PW4/F by different officers (JE/AE) though the demolition action was not taken. If any such conspiracy existed, then the officers posted after transfer of Ajay Kumar Shrotriya were also equally responsible for failing to take demolition action but have not been chargesheeted by the investigating agency.
In the facts and circumstances and evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish conspiracy beyond reasonable doubt or if the entry dated 27.02.03 had been concocted by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
19. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation 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,SE and DC without bothering to investigate their role.
The premier investigating agency (CBI) was expected to CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 49 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 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 of subordinate officers was deliberately ignored.
20. 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 07th September, 2013 Central District, THC, Delhi. CC 116/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 50