Delhi District Court
Cbi vs 1 Sh. Netrapal Singh S/O Sh. Sukhbir ... on 3 September, 2012
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No. 08/05
CBI Vs 1 Sh. Netrapal Singh s/o Sh. Sukhbir Singh,
r/o House No.170, Gali No.4, Durgapuri
Extension, Shahdara, Delhi-93, Section
Officer (Horticulture ) MCD, Horticulture
Department, Delhi Govt.
R. C No. 18(A) /2000/CBI/ACB/ND
Under Section U/s13 (2) r/w 13 (1) (e) P C Act, 1988
Date of Institution of
case: 31.5.2005
Arguments concluded on 22.8.2012
Date of Order 29.8.2012
Judgment:
Facts of the case
Brief facts of the case according to prosecution are that accused Netra Pal Singh, Section Officer in Horticulture Department of MCD, Delhi while posted in various capacities from the year 1978-79 onwards had indulged in corrupt and illegal activities and has amassed huge assets to the tune of Rs.30,55,000/- which are disproportionate to his known sources of income. He has also lent around Rs.12,00,000/- to M/s Bisht Saree House, situated at 100 Foota Road, Shahdara, Delhi. During investigation searches were conducted at the residential premises of Sh. Netra Pal Singh and documents relating to various properties purchased by him in his own name and in the name of his family members, bank pass books, Re-Investment Plan Certificates, NSCs etc. and cash worth C C No.08/05 1/122 Rs.2,35,930/- + Rs.72,400/- = Rs.3,08,330/- were observed.
During investigation, it was revealed that accused was born on 16.3.1951 in Village Gohrni, Post Office Shamli, Distt. Muzaffar Nagar, UP. His qualification is B.SC (Agriculture). He joined the service in Horticulture Department of MCD on 26.08.78 as "Chaudhary" in the pay scale of Rs.260-400. He was promoted as Section Officer(Hort.) w.e.f.1.3.83 in the pay scale of Rs.425-700 and his present scale is Rs.5500-9000 w.e.f. 1.3.2000. Accused was married in the year 1971 with Bimlesh, who is a house wife, without any independent source of income. The accused has one son and two daughters namely Vipin Chauhan, Vinita Chauhan and Sarika Chauhan. The son of accused Vipin Chauhan and daughter Vinita Chauhan were undergoing computer training and diploma in Electronic Engineering at Bangalore at the time of investigation of the case. Ms. Sarika Chauhan passed her BA Examination in the year 2000. None of the children had started earning as yet. During investigation, it was revealed that Sh. Netra Pal Singh started acquiring assets from the year 1984 onwards as such check period has been taken from 1.1.84 to 24.2.2000 i.e. the date of search. 2 The details of assets, savings, ancestral property agricultural income etc. before the check period, expenditures incurred during the check period and assets acquired have been mentioned in the charge sheet.
3 Earlier a charge sheet was filed against accused Sh. Netra Pal Singh U/s13 (2) r/w 13 (1) (e) P C Act, 1988 for alleged possession of disproportionate assets to the tune of Rs.41,64,779/- before this court. However, vide order dt. 3.5.2005 accused was C C No.08/05 2/122 discharged on the ground that the prosecution have not considered savings/assets prior to check period. It was also observed that benefit of the service prior to check period has not been given to the accused. Hence, further investigation was carried out and in that regard a notice was issued to the accused and he was thoroughly examined on this issue. During further investigation an amount of Rs.8,42,016/- was found as savings/assets prior to check period and benefit of the said amount was given to the accused. Even after considering the said amount, the disproportionate assets of accused were assessed to the tune of Rs. Rs.33,22,763,00 for which accused could not give any satisfactory explanation. Thus, fresh charge sheet U/s13 (2) r/w 13 (1) (e) P C Act, 1988 was being filed against the accused.
4 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 23.3.06 my Ld. Predecessor framed charge against accused Netra Pal Singh for the offence punishable U/s 13 (2) r/w 13 (1) (e) P C Act, 1988. Accused pleaded not guilty to the charge and claimed trial, hence, this trial. PROSECUTION EVEIDENCE.
5 Prosecution in order to prove its case has produced following witnesses:
PW-1, Sh. Vinod Kumar Sharma has proved Observation Memo Ex PW1/A, Proceedings Ex PW1/B, Seizure memo Ex PW1/C, Personal Search memo Ex PW1/D, various documents regarding registration of properties Ex PW1/E1 to Ex PW1/E35, FDRs dt. 4.6.97, 27.5.97, 27.4.92 and 27.4.92 Ex PW1/F1 to Ex C C No.08/05 3/122 PW1/F4, Two FDRs dt. 11.10.99 Ex PW1/G1 and Ex PW1/G2, FDRs documents D28,29, 31, 32,33 and 35 Ex PW1/H1 to Ex PW1/H6, pay in slips D47, 48, 51, 52, 57 (2), 63, 65 (2) Ex PW1/I-1 to Ex PW1/I-9, receipt Ex PW1/J, cash memos issued by R K Automobiles Ex PW1/K1 to Ex PW1/K3, and documents D77/1 to D77/41 Ex PW1/1 to Ex PW1/L41.
PW2 Sh. Rajbir Sharma has proved photo copy of cheque Ex. PW2/A and also proved the documents already proved by PW1.
PW3 Sh. Sushil Kumar Sharma has proved Observation Memo Ex PW3/A and Search cum Seizure memo Ex PW3/B. PW4 Sh. Manohar Lal Arora has proved copy of attested application form Ex PW4/A and attested copy of NSC Ex PW4/B. PW5 Sh. Radhey Shyam has proved letter dt. 27.11.01 Ex PW5/A, attested photocopies of the applications in respect of NSCs for Rs.5,000 and Rs.10,000/- Ex PW5/B and Ex PW5/C. PW6 Sh. Dharamvir Singh has proved the documents already proved by PW1.
PW7 Ramesh Chander has proved Search cum Seizure memo Ex PW7/A, one red cover pocket diary Ex PW7/B, one green colour address diary Ex PW7/C, one big colour address diary Ex PW7/D, one brown colour address diary Ex PW7/E and one copy Ex PW7F.
PW8 Sh. Manoj Kumar Gaur has proved communication Ex PW8/A and also proved the documents already proved byPW1.
PW9 Sh. Suresh Chand Gupta has deposed orally. He has not proved any document.
PW10 Smt. Sudesh Kumari has proved account opening form of Kishan Pal Ex PW10/A, statement of account of Sarika Chauhan C C No.08/05 4/122 account no.1306 Ex PW10/B, statement of account of Bimlesh Chauhan account no.732 Ex PW10/C, statement of account of Vipin Chauhan account no.1308 Ex PW10/D and also proved the documents already proved byPW1.
PW11 Sh. Jagdish Chander Sharma has deposed orally. He has not proved any document.
PW12 Sh. Shioji Ram has proved Production cum Seizure memo Ex PW12/A, details regarding deposit with the name of holder, period of deposit amount of deposit and number of deposit receipt Ex PW12/B, letter addressed to bank for renewal of deposits Ex PW12/C, Account opening form of Vipin Chauhan bearing ledger folio No.171/11 Ex PW12/D, Account opening form of Vipin Chauhan bearing ledger folio No.108/11 Ex PW12/E, Account opening form of Netra Pal Singh bearing ledger folio No.213/15 Ex PW12/F, Account opening form of Netra Pal Singh bearing ledger folio No.38/16 Ex PW12/H, Account opening form of Vipin Chauhan bearing ledger folio No.143/9 Ex PW12/J, copy of ledger sheet folio No. 171/11, duly certified by him Ex PW12/K, ledger sheet from which the balance brought forward in Ex PW12/K, is Ex PW12/K-A, ledger sheet from which the balance brought forward in Ex PW12/K,A is Ex PW12/K-B, copy of ledger sheet folio No. 108/11, duly certified by him Ex PW12/ L, ledger sheet from which the balance brought forward in Ex PW12/L is Ex PW12/LA, copies of ledger sheet which have been handed over by him to the CBI were duly certified by him are Ex PW12/M-1 to M-1 and also proved the documents already proved by PW1.
PW13 Sh. Gopi Chandra has proved details of payment in C C No.08/05 5/122 respect of telephone No.2299480 Ex PW13/A. PW14 Sh. Ramesh Vashist Advocate has proved the documents already proved by PW1.
PW15 Sh. Ravinder Gaur has proved Production cum seizure memo Ex PW15/A, application of account No. 3669 Ex PW15/B, photocopy of ledger giving statement of account from 16.4.90 to 31.3.2001 Ex PW15/C-1 to C-3, application of account no. 3524 ExPW15/D and photocopy of ledger giving statement of account from 6.1.90 to 31.3.2001 Ex PW15/E-1 to E-3.
PW16 Sh. Ranbir Singh has proved Production cum seizure memo Ex PW16/A. PW17 Izhar Ahmed has proved communication Ex PW17/A giving details of demand raised and property tax paid in respect of property No.170, Durgapuri Extension.
PW18 Sh. P P Singh has deposed orally. He has not proved any document.
PW19 Jog Raj has proved his statement Ex PW19/X. PW20 Vijender Singh has proved his statement Ex PW20/X. PW21 Sh. Jagpal Singh has proved account opening form of accounts No. 3524, 1193,1194 for the deposit under the reinvestment plan deposit scheme Ex PW21/A to Ex PW21/C. PW22 Sh. C M Goswami has proved the documents already proved by PW1.
PW23 Sh. Ved Parkash Karanwal has proved the documents already proved by PW1.
PW24 Sh. B K Sharma has deposed orally. He has not proved any document.
C C No.08/05 6/122PW25 Sh. Shyam Singh has deposed orally. He has not proved any document.
PW26 Sh. Dinesh Kumar has proved statement of account No.7745 Ex PW26/A. PW27 Sh. Mahavir Singh has proved Seizure Memo Ex PW27/A, application form in respect of account No. 1445 Ex PW27/B, application form in respect of account No. 1357 Ex PW27/C, duly attested copies of ledger in respect of account No. 1357, seized by CBI Ex PW27/D, duly attested copies of ledger in respect of account No. 1585, Ex PW27/E, duly attested copies of ledger in respect of account No. 1445, Ex PW27/F, Production cum Seizure memo Ex PW24/G, duly attested copies of ledger in respect of account No. 1193, seized by CBI Ex PW27/H and duly attested copies of ledger in respect of account No. 1194, seized by CBI Ex PW27/I. PW28 Ganga Ram has deposed orally. He has not proved any document.
PW29 Sh. Amar Singh has proved photocopy of application form Ex PW29/A. PW30 Sh. Pawan Kumar Sharma has proved report Ex PW30/A. PW31 Sh. Inderjeet Singh has proved the documents already proved by PW1.
PW32Sh. Bhim Singh has proved the documents already proved by PW1.
PW33 Sh. A N Singh has proved statement regarding payment which was given to CBI Ex PW33/A. C C No.08/05 7/122 PW34 Sh. S C Bhalla has proved FIR/RC Ex PW34/A, intimation of arrest of accused Ex PW34/B, communication Ex PW34/C and report Ex PW34/D and also proved the documents already proved by other witnesses.
PW35 Sh. S L Bansal has proved sanction order Dt. 30.5.05 Ex PW35/A for prosecution of accused Netra Pal Singh.
PW36 Sh. Sushil Kumar Bhanot has proved cheque Ex P42/1 and pay in slip Ex P-42/2.
PW37 Sh. Tulsi Dass has proved salary details of accused Netrapal Singh w.e.f. 1.2.85 to 30.4.2000 except for the period 1.4.90 to 11.5.93 for which period accused was posted in South Zone, Ex PW37/A. PW38 Sh. Ram Mehar has proved his statement Ex PW38/X and also proved the documents already proved by other witnesses.
PW39 Sh. Sher Singh Bisht has proved the documents already proved by other witnesses.
PW40 Sh. Charanjeet Ahlmad has deposed orally. He has not proved any document.
PW41 Sh. Gulshan Kumar, Special Judge, Electricity Board, Tis Hazari has proved ordersheet dt. 3.12.2001 ExPW41/A, statement of witness Sher Singh Bisht Ex PW41/B, his certificate Ex PW41/C, application of IO Ex PW41/D and his endorsement Ex PW41/E. PW42 Sh. Sushil Kumar Sharma has deposed orally. He has not proved any document.
PW43 Sh. Rajinder Krishan Sharma has proved the documents already proved by other witnesses.
C C No.08/05 8/122PW44 Sh. Pradeep Kumar Verma has deposed orally. He has not proved any document.
PW45 Dr. Girish B M has proved communication Ex PW45/A. PW46 Dr. Brijvir Singh has proved letter Ex PW46/A and also proved the documents already proved by other witnesses. DEFENCE OF ACCUSED AND DEFENCE EVIDENCE 6 Statements of accused U/s 313 Cr PC recorded wherein he has denied all the allegations made against him and evidence produced by the prosecution .He has stated that he is innocent. He has been falsely implicated in this case. His total actual income was not considered by CBI 7 In his defence accused has examined the following witnesses:
DW1 Sh. Chander Pal Singh, DW2 Jai Singh Dhanna, DW3 Sh. Ishwar Bansal have deposed orally. They have not produced any documents.
DW4 Sh. Tapan Kumar has proved receipt dt. 28.11.08 of the premium paid for the LIC Ex DW4/A. DW5 Sh. Kirpal Singh has proved Report Card of his Daughter Sweta Panwar Ex DW5/A. DW6 Sh. Manoj has proved service of TV Ex DW6/A DW7 Sh. Mahavir Prasad Kalawatia has proved his ration card Ex DW7/A, letter from LIC Ex DW7/B, intimation letter Ex DW7/C and copy of covering letter Ex DW7/D. DW8 Sh. Ranjit Singh has proved relevant pages of pass book of account No. 6387 Ex DW8/A, Gift deed Ex DW8/B and demand C C No.08/05 9/122 draft Ex DW8/C. DW-9 Sh. Mange Ram has proved receipt No.25571 containing the details of sale and purchase of animal Ex DW9/A. DW-10 Sh. Pappu has proved receipt Nos.14607 & 14608 containing the details of sale and purchase of animal Ex DW10/A & PW10/B respectively.
DW-11 Sh. Subhash has proved receipt Nos.22820 & 22819 containing the details of sale and purchase of animal Ex DW11/A & PW11/B respectively.
DW12Sh. Narender Pathak has proved Kishan Bahi of Agricultural land owned by him and his wife Ex DW12/A and Ex DW12/B, copy of licence Ex DW12/C, copy of receipt No. 31 book no.2063 dt. 26.12.2011 Ex DW12/D and receipt Ex DW12/E. DW13 Sh. Daley Singh has proved report Ex DW13/A, notice Ex DW13/B and receipts Ex. DW13/C, Ex DW13/D and Ex.PW13/E. DW-14 Sh. Brij Vir Singh has proved receipt Nos.21570 & 22259 containing the details of sale and purchase of animal Ex DW14/A & PW14/B respectively.
DW15 Sh. Parveen Kumar has proved his identity card Ex DW15/A. DW-16 Sh. Ajay Kumar has proved receipt No.18437 containing the details of sale and purchase of animal Ex DW16/A. DW-17 Sh. Chander Pal @ Chandu has proved receipt No.18436 containing the details of sale and purchase of animal Ex DW17/A. DW-18 Sh. Anil Kumar has proved family settlement dt.C C No.08/05 10/122
15.7.80 Ex DW18/A. DW-19 Sh. Prempal has proved the documents already proved by other witnesses.
DW-20 Sh. Kale Khan has proved the documents already proved by other witnesses.
DW-21 Sh. Phool Singh has deposed orally. He has not proved any document.
DW22 Sh. Jawahar Lal has proved Gift Deed Ex DW22/A, list of item of goods Ex DW22/B DW-23 Sh.Rambir has deposed orally. He has not proved any document.
DW-24 Smt. Bimlesh has deposed orally. She has not proved any document.
PROSECUTION ARGUMENTS 8 Ld. Special Procecutor Sh. Navin Mata argued that accused during the admission & denial has admitted several documents filed by prosecution and has also admitted large number of entries in his statement U/s 313 Cr.PC. Ld. SPP further argued that prosecution has produced 46 witnesses and proved all the relevant documents on the judicial file. Prosecution has also proved sanction granted by PW35 Sh. S L Bansal for the prosecution of accused in this case. Ld. SPP referring the statement of prosecution witnesses and documents proved by the prosecution argued that prosecution has proved its case beyond reasonable doubts. Ld. SPP argued that accused has produced 24 witnesses in his defence evidence to prove his alleged rental and agricultural income as well as income from the sale of animals and 400 Popular Trees. He has C C No.08/05 11/122 also argued that accused tried to prove that his relatives had gifted him as well as to his wife a huge amount and claimed benefit of the same in his income. It is argued that all these witnesses are his close relatives, friends and subordinates. They are neither trustworthy nor reliable. Accused has concocted his defence to save himself in this case with the help of his relatives, friends and subordinates. Neither accused nor his wife had shown the alleged gifts in their favour and their rental as well as agricultural income in their income tax returns. Accused Netrapal is a public servant who was the then working as Section Officer in MCD. Delhi. According to CCS Conduct Rules 18 which is also applicable to the MCD employees vide notification published in Delhi Gazette Part IV (extra-ordinary) dated 4.4.59 vide Min. of Home Affairs Notification No. 40/11/59, has to inform his department about sale/purchase of movable/immovable properties in his name or in the name of any of his dependant family members and has also to inform receipt of any gift etc. in his name or in the name of his dependant family members but he has not informed his department about the alleged receipt of gifts from his relatives and huge rental/agricultural income. It is argued that in these circumstances defence of accused is neither trustworthy nor reliable/ truthful rather contradictory to the stand of accused. It is argued that accused may be convicted. DEFENCE ARGUMENTS 9 Ld. Defence Counsel Sh. H S Sharma argued that prosecution in charge sheet has submitted that saving/assets of accused prior to the check period found to be worth Rs.8,42,016 and benefit of this amount has been given to him but under the column of assets C C No.08/05 12/122 acquired by accused during the check period only a benefit of Rs.3,72,400/- has been given. It is argued by Ld. Defence Counsel that expenditure and assets of accused during the check period has been wrongly calculated. Ld. Defence Counsel referring the statement of DW1 to 24 argued that accused was having huge income from rent and agriculture and by selling of animals hold by him. He had earned Rs.2 lac by selling 400 popular trees. His father in law Sh. Ranjit Singh, DW8 had gifted him as well as his wife a huge amount. Father in law of his son DW22 Jawahar Lal had also gifted Rs.4 lac for purchasing car on Sagai Ceremony and Rs.2,85,000/- for purchasing shop in the name of Vipin Chauhan. DW1 and 2 had rendered financial help for the higher education of Vipin Chauhan and Sarika Chauhan in MVJ Engineering College, Bangalore. Prosecution has not given benefit of all these receipts to the accused. It is argued that accused has been falsely implicated in this case, hence he may be acquitted.
ADMISSION AND DENIAL OF DOCUMENTS 10 After framing of charge admission denial of the documents filed by prosecution was conducted u/s 294 Cr PC. During the admission denial accused has admitted the following documents:
Documents Exhibits on admission
D19 Ex P1
D 20 Ex P2
D 21 Ex P3
D 43 (pages 1 to 3)Ex P 4, P5 and P6
D 44 )1to 6) Ex P 7
C C No.08/05 13/122
D 45/1-2 Ex P8
D 80/1-7 Ex P9 to P 15
D 81/1 and 2 Ex P 16
D12/1-6 Ex P 17 to P 20
D 30 Ex P 21
D 34 Ex P22
D 36 Ex P23
D 41 Ex P 24
D 46 Ex P25
D 49 Ex P 26
D50 Ex P 27
D 53 Ex P 28
D 54 Ex P 29
D66 Ex P30
D 68 Ex P 31
D 72 Ex P 32
D 75 Ex P 33 and P 34
D 83 Ex P 35 and P 36
D 55 Ex P 37/1 and P 37/2
D 58 Ex P 38/1 and Ex P38/2
D 59 Ex P 39/1 and Ex P39/2
D 60 Ex P 40/1 and Ex P40/2
D 61 Ex P 41/1 and Ex P41/2
D 64 Ex P42/1 and Ex P42/2
CHECK PERIOD
11 According to prosecution accused Netrapal Singh had
C C No.08/05 14/122
joined the service in Horticulture Department of MCD on 26.8.78 as 'Chaudhary' in the pay scale of Rs.260-400. He was promoted as Section Officer w.e.f. 1.3.83 in the pay scale of Rs.425-700. According to prosecution he had started acquiring assets after joining his service in MCD. Because of his acquiring maximum assets during the period 1.1.84 to 24.2.2000 check period has been taken from 1.1.84 to 24.2.2000.
SANCTION AND PUBLIC SERVANT:
12 It is undisputed fact that accused Netrapal had joined the Horticulture Department of MCD as 'Chaudhary' on 26.8.78 and he was promoted as Section Officer w.e.f. 1.3.83. Thus, he was working as Section Officer on 24.4.2000 at the time of registration of this RC against him, therefore he was a public servant . Even this fact has not been disputed on behalf of accused during the trial and at the time of addressing final arguments. Thus it is proved beyond reasonable doubt that on 24.4.2000 when this RC was registered against him , he was a public servant.
13 Prosecution, in order to prove sanction for the prosecution of accused has produced PW35 Sh. S L Bansal. He has deposed that in the month of May, 2005 he was working as Addl. Commissioner, MCD, therefore, by virtue of his post as Addl. Commissioner, MCD, he was competent to remove accused Netrapal who was the then working as Section Officer in Horticulture Department. He had accorded sanction for the prosecution of accused Netrapal in this case after satisfying himself from the record that a primafacie case was made out against him.
He has identified his signatures on the sanction order Ex PW35/A at C C No.08/05 15/122 point A. He has been cross examined in detail on behalf of accused. In his cross examination this witness has deposed that he had not verified the correctness of the documents produced before him as it was not in his jurisdiction. Contents of table of disproportionate assets mentioned in the Sanction Order were provided by CBI. He had not verified the salary earned by accused during the check period or prior to check period. He has denied the suggestion that he had granted the sanction without applying his mind in a routine manner. He has also denied the suggestion given to him that he was not a competent authority to accord the sanction. He has also denied the suggestion that accused was not holding disproportionate assets to his known sources of income.
14 Nothing such has come out in the cross examination of this witness to disbelieve his evidence. From the perusal of sanction order it is clear that it is a detailed order running in 7 sheets, containing relevant facts with reference to various documents/evidence against the accused on the file. A perusal of this order reflects that sanctioning authority has passed this order after due application of his mind.
15 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so C C No.08/05 16/122 appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
16 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima- facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
17 In view of above discussion, this Court is of opinion that prosecution has proved a valid sanction for the prosecution of C C No.08/05 17/122 accused Netrapal in this case.
ASSETS ACQUIRED BY ACCUSED BEFORE THE CHECK PERIOD 18 According to prosecution, accused was having household articles worth Rs.40,000/- before the check period. However, this fact has been denied on behalf of accused. It is argued by Ld. Defence Counsel referring Ex PW 1/A (DS-2) Observation Cum Search Memo of house No. 170, Gali No.4, Durgapuri Extension, Shahdara, Delhi that articles mentioned at serial No.12, 15, 35, 94, 151 and 152 are the only household articles benefit of which has been given as the household articles owned by accused prior to check period. It is argued that these articles are valued about Rs.2,500/- only hence benefit of Rs.37,500/- may be given to accused. Ld. SPP could not explain as to how the benefit of Rs.40,000/- on account of household article hold by accused prior to check period has been given to him, by the prosecution. In these circumstances this court is of opinion that accused is entitle for the benefit of Rs.37,500/- on this account.
19 According to prosecution, accused had earned Rs. 2,46,400/- w.e.f. 1970 to 1983 from agricultural land. It has not been disputed on behalf of accused during the course of argument. 20 According to prosecution, accused had acquired a plot of 150 sq. yards in the name of his wife Smt. Bimlesh in sum of Rs.6,000/- prior to check period. It has not been disputed on behalf of accused during the arguments.
21 According to prosecution, Smt. Bimlesh wife of C C No.08/05 18/122 accused Netrapal Singh had received a sum of Rs.40,000/- vide Ex PW 1/E-4 as loan from her father Sh. Ranjeet Singh, prior to check period. It has not been disputed on behalf of accused during the arguments.
22 According to prosecution, accused had salary income of Rs.40,000/- w.e.f. 26.8.78 to 31.12.83. It has not been disputed on behalf of accused during the arguments.
23 According to prosecution, accused was having 5 ½ Gramin bigha Agricultural Land in Vill. Gohrini, Tehsil Shamli, Distt. Mujaffar Nagar, UP in his own name. It has not been disputed on behalf of accused during the arguments. 24 Ld. Defence Counsel argued that prosecution in the charge sheet has submitted that accused was having total assets wroth equivalent to Rs.8,42,016/- prior to check period but under the head Assets/saving prior to check period only a benefit of Rs.3,72,400/- has been given, hence accused should be given a benefit of Rs,4,09,416 under this head. I have perused the charge sheet wherein it is specifically mentioned as follows:
"As observed by the Ld. Court further investigation was carried out and in that regard a notice was issued to the accused and he was thoroughly examined on this issue. Further investigation is carried out on the income/savings/assets prior to check period as claimed by the accused in his statement. During further investigation an amount of Rs.8,42,016/- is found as savings/assets prior to check period and benefit of said amount has been given to the accused."
25 It is correct that under the head Assets/saving prior to check period only a benefit of Rs.3,72,400/- has been given. Ld. C C No.08/05 19/122 SPP could not given satisfactory explanation as to how the benefit of Rs.8,42,016/- has been given to accused qua his assets/savings prior to check period. Thus, in these circumstances accused is entitle for a benefit of Rs.4,69,616/- on this account.
26 In view of above discussion this court is of opinion that assets/savings of accused prior to check period comes to Rs.8,79,516/- (Rs.3,72,400 + Rs.37,500/- + 4,69,616/-).
DETAILS OF INCOME AND OTHER RECEIPTS BY ACCUSED IN HIS OWN NAME AND IN THE NAME OF HIS WIFE AND FAMILY MEMBERS DURING THE CHECK PERIOD.
27 Prosecution from the statement of PW11 Jagdish Chander Sharma, PW16 Ranbir Singh, PW37 Tulsi Dass and PW42 Sushil Kumar Sharma coupled with the documents Ex P-8, P9, P15, Ex.P-16 and P-17 and Ex PW37/A has proved that accused had earned income from the salary w.e.f. 1.1.84 to 30.4.2000 to the tune of Rs.7,90,107/- . Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-20), thus it is proved beyond reasonable doubts that accused had earned income from the salary w.e.f. 1.1.84 to 30.4.2000 to the tune of Rs.7,90,107/- .
28 Prosecution from the statement of PW15 Sh. Ravinder Gaur, coupled with the documents Ex P-24 (D-41, admitted during admission and denial) has proved that accused had earned an interest of Rs.8734/- from account No.7744 in his name in Vijaya Bank, Loni Road, Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-21), thus it is proved beyond reasonable doubts that accused had earned an interest C C No.08/05 20/122 of Rs.8734/- from account No.7744 in his name in Vijaya Bank, Loni Road, Shahdara, during the check period. 29 Prosecution from the statement of PW15 Sh. Ravinder Gaur and from the statement of PW26 Dinesh Kumar coupled with the document Ex PW26/A (D-42, admitted during admission and denial) has proved that Smt. Bimlesh wife of accused had earned an interest of Rs.7452/- from account No.7745 in her name in Vijaya Bank, Loni Road, Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and further clarified that this amount was earned by his wife as an interest but not by him. (Q-22). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife having no sufficient independent source of her income to save the principle amount on which this interest was granted, thus it is proved beyond reasonable doubts that accused had earned an interest of 7452/- from account No.7745 which was in the name of his wife in Vijaya Bank, Loni Road, Shahdara, during the check period.
30 Prosecution from the statement of PW10 Sudesh Kumar, coupled with the document Ex P-23 (D-36/1, admitted during admission and denial) has proved that accused had earned an interest of Rs.5449/- from account No.957 in his name in Delhi State Cooperative Bank Ltd. Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-
23), thus it is proved beyond reasonable doubts that accused had earned an interest of Rs.5449/- from account No.957 in his name in Delhi State Cooperative Bank Ltd. Shahdara, during the check C C No.08/05 21/122 period.
31 Prosecution from the statement of PW10 Sudesh Kumar coupled with the document Ex PW10/C (D-38) has proved that Smt. Bimlesh wife of accused had earned an interest of Rs.14,906/- from account No.732 in her name in Delhi State Cooperative Bank Ltd. Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and further clarified that this amount was earned by his wife as an interest but not by him. (Q-24). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife having no sufficient independent source of her income to save the principle amount on which this interest was granted, thus it is proved beyond reasonable doubts that accused had earned an interest of Rs.14,906/- from account No.732 which was in the name of his wife in Delhi State Cooperative Bank Ltd. Shahdara, during the check period.
32 Prosecution from the statement of PW10 Sudesh Kumar coupled with the document Ex PW10/D (D-40) has proved that Sh. Vipin Chauhan son of accused had earned an interest of Rs.620/- from account No.1308 in his name in Delhi State Cooperative Bank Ltd. Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and further clarified that this amount was earned by his son as an interest but not by him. (Q-25). Prosecution has taken the assets/income of all the family members of accused in this case, moreover at the relevant time Vipin Chauhan was a minor and pursuing his studies and having no independent source of his income, thus it is proved beyond reasonable doubts that C C No.08/05 22/122 accused had earned an interest of Rs.620/- from account No.1308 which was in the name of his son in Delhi State Cooperative Bank Ltd. Shahdara, during the check period.
33 Prosecution from the statement of PW10 Sudesh Kumar coupled with the document Ex PW10/B (D-37) has proved that Sarika Chauhan daughter of accused had earned an interest of Rs.620/- from account No.1306 in her name in Delhi State Cooperative Bank Ltd. Shahdara, during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and further clarified that this amount was earned by his daughter as an interest but not by him. (Q-26). Prosecution has taken the assets/income of all the family members of accused in this case, moreover at the relevant time Sarika Chauhan was a minor and pursuing her studies and having no independent source of her income, thus it is proved beyond reasonable doubts that accused had earned an interest of Rs.620/- from account No.1306 which was in the name of his daughter in Delhi State Cooperative Bank Ltd. Shahdara, during the check period.
34 According to prosecution accused had let out flat No. HIG/201, Gaursons, Shalimar Extn.II, Sahibabad UP to one Ms. Kataria w/o Dr. Vijay Kataria, at a monthly rent of Rs.3,000/- and earned rental income of Rs.48,000- w.e.f. 1.1.99 to April, 2000. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-
27).
35 Prosecution from the statement of PW25 Sh. Shyam Singh has proved that accused had rental income of Rs.48,000/-
C C No.08/05 23/122during the check period from first floor of house No. 170 Durgapuri Extension, Delhi. Accused in his statement U/s 313 Cr PC has admitted that Shyam Singh was his tenant on the first floor but has claimed that he had earned a total income of Rs.72,000/-, thus he has claimed a benefit of Rs.24,000/- in his income. (Q-28). Ld. SPP could not explain as to why accused is not entitled for this benefit when the prosecution itself has admitted his tenancy. In these circumstances accused is entitle for the benefit of Rs.24,000/- in his income.
36 Prosecution from the statement of PW44 Sh. Pardeep Kumar Verma has proved that accused received a cheque No.381786 dt. 13.3.99 Syndicate Bank, Baghpat vide letter Ex P-32 (D-72 admitted during admission & denial) from LIC for an amount of Rs.7650/- during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct.(Q-29). Thus it is proved beyond reasonable doubts that accused had received an amount of Rs.7650/- from LIC in his own name.
37 Prosecution has proved that cheque No.912775 as mentioned in pay in slip Ex P-25 (D-46 admitted during admission & denial ) of Indian Bank Pinna, Distt. Muzaffar Nagar, UP for a sum of Rs.50,000/- was received by accused and deposited in his account No. 7744, Vijaya Bank on 16.8.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and clarified that this cheque was received by his wife Smt. Bimlesh and not by him. (Q-30). Explanation given by accused is absolutely wrong because this cheque was deposited in the account No. 7744, Vijaya Bank, Loni Road, Shahdara in the name of C C No.08/05 24/122 Netrapal Singh, thus it is proved beyond reasonable doubts that accused had received this cheque in his own name and deposited in his account No.7744.
38 Prosecution has proved that cheque No.912773 as mentioned in pay in slip Ex PW1/I-1 (D-47) of Indian Bank Pinna, Distt. Muzaffar Nagar, UP for a sum of Rs.40,000/- dt. 19.9.97 in the name of Bimlesh was received and deposited in account No. 7745, Vijaya Bank on 19.9.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and clarified that this cheque was received by his wife Smt. Bimlesh and not by him. (Q-31). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife, there was no requirement of her own to borrow/receive this amount. No explanation given by accused as to why, how and in what circumstances she had received this amount, however prosecution has given him benefit of this amount in his income.
39 Prosecution has proved that cheque No.912791 as mentioned in pay in slip Ex PW1/I-2 (D-48) of Indian Bank Pinna, Distt. Muzaffar Nagar, UP for a sum of Rs.30,000/- in the name of Bimlesh was received and deposited in account No. 7745, Vijaya Bank on 15.10.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and clarified that this cheque was received by his wife Smt. Bimlesh and not by him. (Q-32). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife, there was no requirement of her own C C No.08/05 25/122 to borrow/receive this amount. No explanation given by accused as to why, how and in what circumstances she had received this amount, however prosecution has given him benefit of this amount in his income.
40 Prosecution has proved that cheque No.0808562 as mentioned in pay in slip Ex P-26 (D-49 admitted during admission & denial ) of PNB, Hanuman Chowk, Muzaffar Nagar, UP for a sum of Rs.40,000/- was received by accused in his own name and deposited in his account No. 7744, Vijaya Bank on 15.10.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q33). Prosecution has given him benefit of this amount in his income, though accused has not explained as to why, how and in what circumstances he had received this cheque. 41 Prosecution has proved that cheque No.912786 as mentioned in pay in slip Ex P-27 (D-50 admitted during admission & denial ) of Indian Bank Pinna, Distt. Muzaffar Nagar, UP for a sum of Rs.30,000/- was received by accused in his own name and deposited in his account No. 7744, Vijaya Bank on 15.10.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q34). Prosecution has given him benefit of this amount in his income, though accused has not explained as to why, how and in what circumstances he had received this cheque. 42 According to prosecution cheque No.912790 of Indian Bank Pinna, Distt. Muzaffar Nagar, UP for a sum of Rs.30,000/- was received by accused in his own name and deposited in his account during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-35). Prosecution has given him benefit of C C No.08/05 26/122 this amount in his income, though accused has not explained as to why, how and in what circumstances he had received this cheque. (prosecution has not produced or proved this cheque on the file). 43 Prosecution has proved that cheque No.867195 as mentioned in pay in slip Ex PW1/I-3 (D-51) of PNB Shamali, UP for a sum of Rs.50,000/- in the name of Bimlesh was received and deposited in account No. 7745, Vijaya Bank on 5.11.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and clarified that this cheque was received by his wife Smt. Bimlesh and not by him. (Q-36). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife, there was no requirement of her own to borrow/receive this amount. No explanation given by accused as to why, how and in what circumstances she had received this amount, however prosecution has given him benefit of this amount in his income. 44 Prosecution has proved that cheque No.438002 as mentioned in pay in slip Ex PW1/I-4 (D-52) of Indian Bank, Pinna Distt. Muzaffar Nagar, UP for a sum of Rs.45,000/- in the name of Bimlesh was received and deposited in account No. 7745, Vijaya Bank on 16.4.98 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct and clarified that this cheque was received by his wife Smt. Bimlesh and not by him. (Q-37). Prosecution has taken the assets/income of all the family members of accused in this case, moreover wife of accused at the relevant time was a housewife, there was no requirement of her own to borrow/receive this amount. No explanation given by accused as C C No.08/05 27/122 to why, how and in what circumstances she had received this amount, however prosecution has given him benefit of this amount in his income.
45 Prosecution has proved that cheque No.867196 as mentioned in pay in slip Ex P-28 (D-53 admitted during admission and denial) of PNB, Shamali,UP for a sum of Rs.50,000/- was received by accused in his own name and deposited in his account No.7744 in Vijaya Bank, Loni Road, Shahdara on 5.11.97 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-38). Prosecution has given him benefit of this amount in his income, though accused has not explained as to why, how and in what circumstances he had received this cheque. 46 Prosecution has proved that cheque No.438003 of Indian Bank, Pinna Distt. Muzzafarnagar, UP as mentioned in pay in slip Ex P-29 (D-54)for a sum of Rs.45,000/- was received by accused in his own name and deposited in his account No.7744 in Vijaya Bank, Loni Road, Shahdara on 16.4.98 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-39). Prosecution has given him benefit of this amount in his income, though accused has not explained as to why, how and in what circumstances he had received this cheque. 47 According to prosecution cheque No.998345 of Canara Bank, Muzaffar Nagar, UP for a sum of Rs.50,000/- was received by accused in his own name and deposited in his account during the check period. Accused in his statement U/s 313 Cr PC has admitted it correct. (Q-40). Prosecution has given him benefit of this amount in his income, though accused has not explained as to why, how and C C No.08/05 28/122 in what circumstances he had received this cheque. (prosecution has not produced or proved this cheque on the file). 48 Prosecution from the statement of PW30 Sh. Pawan Kumar Sharma coupled with Ex PW30/A has proved that accused had agricultural income @ Rs.3200/- per bigha per year from his 5 ½ Gramin Bigha agricultural land in Vill. Gohrini, Tehsil Shamli from 1984 to 2000 at a rate of Rs.3,200/- per bigha, per year (average income Rs.4200/- per year - average expenditure Rs.1,000/- per bigha per year) Accused in his statement U/s 313 Cr PC has admitted it correct.(Q-41). Ld. Defence Counsel argued that in question No.41 of statement of accused U/s 313 Cr PC agricultural income is mentioned as Rs.17,600/- per bigha per year . It is only a typographical error which is clear from the statement of PW30 Sh. Pawan Kumar Sharma coupled with Ex PW30/A which is the detail of income and expenditure of agricultural land with regard to cultivation of 5 ½ Gramin Bigha agricultural land. Thus it is proved beyond reasonable doubts that accused had total agricultural income from his 5 ½ Gramin Bigha agricultural land of Rs.2,81,600/- (3200 x 5 ½ = Rs.17,600/- per year x 16 years= Rs.2,81,600/) during the check period. However, in column No. 23 under the head of income and other receipts in charge sheet agriculture income from 5 ½ Gramin Bigha is mentioned as Rs.2,99,200/- which is only due to mathematical error. In view of above discussion this court is of opinion that total agricultural income of accused qua his 5 ½ bigha agricultural land comes to Rs.2,81,600/-, thus his income will be reduced by Rs.17,600/-. 49 Ld. Defence Counsel referring the statement of DW1 to C C No.08/05 29/122 24 argued that accused was having huge income from rent and agriculture,and by selling of animals hold by him. He had earned Rs.2 lac by selling 400 popular trees. His father in law Sh. Ranjit Singh, DW8 had gifted him as well as his wife a huge amount. Father in law of his son DW22 Jawahar Lal had also gifted Rs.4 lac for purchasing car on Sagai Ceremony and Rs.2,85,000/- for purchasing shop in the name of Vipin Chauhan. DW1 and 2 had rendered financial help for the higher education of Vipin Chauhan and Sarika Chauhan in MVJ Engineering College, Bangalore. Prosecution has not given benefit of all receipts to the accused. 50 Under Section 13 (1) (e) expression "known sources of income" does not mean sources known to accused. Burden is cast on the accused not only to offer plausible explanation as to acquisition of large wealth but also to satisfy the court that explanation given is worthy of acceptance.
51 Hon'ble Supreme Court in State of Madhya Pradesh Vs. Avadh Kishore Gupta, AIR 2004, Supreme Court 521 has defined income as under:
"The Phrase "known Sources of income" in S.13 (1) (e) (old Sec,. 5 (i) (e)) has clearly the emphasis on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" as itself, is elastic and has a wide connotation. Whatever comes in or is received, is income But, however, wide the income and connotation of term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment and having further a source which may or may not yield a regular C C No.08/05 30/122 revenue. This essential characterstic are vital in understanding the terms"income". Therefore, it can be said that, though, "income" is receipt in the hand of its recipient, every receipt would not be partake into the character of income. Qua the public servant, whatever returns he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant will be in regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or GAINS OF GRAFT, CRIME OR IMMORAL SECRETIONS by persons primafacie would not be receipt from the "known source of income" of a public servant.
52 Under the new Act of 1988 accused has to explain to the satisfaction of the court with regard to the pecuniary resources or property disproportionate to his known sources of income while under the old Act of 1947 accused had to give only a plausible explanation in this regard after the prosecution proved its case. 53 Clause (e) of Sec. 13 (1) which corresponds to clause
(e) of Sec. 5 (1) has also been drastically amended. Under the new clause, the earlier concept 'known sources of income' has undergone a radical change. As per the explanation given under the new clause the prosecution is relieved of the burden of investigating into 'source of income' of an accused person to a large extent, as it is stated in the explanation that 'known sources of income' means income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any Law, Rules, or Orders for the time being applicable to a public servant. Definition of the expression "known sources of income" has been added to remove any ambiguity.
54 Hon'ble Supreme Court in a latest authority N C C No.08/05 31/122 Ramakrishnaiah (dead) through LRS. Vs. State of A.P. 2009 III AD (S.C.) 239, in this regard has held as follows:
"The emphasis of the phrase "known sources of income" in Section 13 (1) (e) (old Section 5 (1)
(e) is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary.
The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he get of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance".
55 As per the explanation the 'known sources of income' of the public servant for the purpose of satisfying the court, should be "any lawful source". Besides being the lawful source the explanation further enjoins that receipt of such income should C C No.08/05 32/122 have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time.
56 Ld. Defence Counsel argued that prosecution has to prove its case beyond reasonable doubt while accused has to prove his defence by prudence of probability. There is no dispute with this preposition of law but the witnesses produced by defence should be reliable, trustworthy and truithful.
57 In case under Prevention of Corruption Act, if two views are possible then view favorable to eradicate corruption is to be adopted . In this regard in a latest judgment Subramaniam Swami Vs Dr Man Mohan Singh & Ors , 2012 IIAD(S.C) 155, Hon'ble Supreme has held as follows:
" Today, corruption in our country not only poses a grave danger to the concept of constitutional governances, it also threatens the very foundation of India democracy and the Rule of Law. The Magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption . This is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
58 This court will appreciate the evidence produced by accused in his defence to prove his rental income/agricultural income/ income by selling of animals and tress and receipts of gifts by his relatives and financial help rendered by DW1 and 2 C C No.08/05 33/122 for pursuing studies by son and daughter of accused, in the light of above discussed legal preposition.
59 Ld. Defence Counsel referring the statement of DW18 Sh. Anil Kumar, DW19 Sh. Prempal, DW21 Sh. Phool Singh and DW-23 Sh. Rambir and Ex DW18/A argued that father of accused was holding 72 bigha agricultural land in village Ghorni who on 15.7.80 had executed a Family Settlement Deed Ex DW18/A whereby he had given 14 bighas land to each of his four sons and kept 16 bigha land for himself. It is argued that prosecution has not given benefit of agricultural income received by accused from above referred14 bigha agricultural land at a rate of Rs.3,200/- per bigha which comes to Rs.8,73,600/- (14 x32 x19 ½ =Rs.8,73,600/-). 60 Ld. Defence Counsel further argued that two brothers of accused had appeared in the witness box as DW18 and DW19 who have fully supported the factum of family settlement. He has further argued that accused was getting the land cultivated through one Phool Singh to whom he has produced in the witness box as DW21. 61 I have carefully gone through the Family Settlement Deed Ex DW18/A which is executed on a stamp paper of Rs.2/-. It has been written in Hindi bearing signatures of Sukhbir Singh in Urdu at point A. It is not mentioned who had written this document. This Deed does not bear signatures of any of the four sons of Sukhbir Singh. It has not been attested by any of the attesting witness. It has got attested from some Notary Public whose stamps is affixed on it. It does not bear any register number of the Notary Public who had attested it. No particular Khasra No. of land has been mentioned in this family settlement Ex DXW18/A. It C C No.08/05 34/122 is unbelievable that a person is making family settlement vide which he was giving his agricultural land to his sons but is not mentioning specific khasra No./particulars of the land given to each of his son. Without allocating specific khasra No. of agricultural land it was not possible to execute the alleged family settlement because it was impossible for the allottees to specify the land allotted to them then how can they cultivate their land. This family settlement alleged to be executed in Delhi. Stamp Paper has also been purchased from Delhi, which is clear from the stamp affixed on the back of it. It has also been notarised in Delhi while the land was situated in Village Ghorni, Mujaffar Nagar, UP. As the land was situated in Distt. Muzzafarnagar, UP, hence the alleged Family Settlement Deed should have been executed under the Territorial Jurisdiction of Village Ghorni, Distt. Muzzafarnagar, UP.
62 This partition deed is an unregistered document. It has not even been got scribed by a Deed writer or an advocate. No mutation of the agricultural land was affected in the revenue record according to this Family Settlement Deed after the execution of the alleged Family Settlement. Even accused has not informed about acquisition of 14 bigha land vide alleged settlement Deed Ex DW18/A in the year 1980 or thereafter till the registration of this case to his department as required Under C CS Rules (18) Even DW18 Anil Kumar who is a public servant has admitted that he had not informed about acquisition of 14 bigha of land under this family settlement to his department but only declared 5 bigha land which was in his name. DW23 who according to him is a friend of Netrapal Singh has deposed in his cross examination that family C C No.08/05 35/122 settlement deed was not executed in his presence but he was informed by one Phool Singh with regard to execution of this Family Settlement Deed. It is the admitted case of accused that agricultural land was mutated after the death of Sukhbir Singh in the year 2005. PW30 Sh. Pawan Kumar Sharma in this regard has specifically deposed as follows:
"After the death of late Sukhbir Singh said 72 bigha of land has been entered in the name of his four sons which includes Netrapal Singh."
63 In view of above discussion this court is of opinion that the alleged family settlement deed Ex DW18/A is a sham, concocted document prepared with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitle for any benefit of income from 14 bigha agricultural land allegedly received him vide Family Settlement Deed Ex DW18/A. 64 Ld. Defence Counsel referring the statement of DW12, 18, 19, 20 and PW30 Pawan Kumar Sharma and Ex DW12/E argued that accused had planted 400 popular trees which were sold by accused during the check period in sum of Rs.2 lac. 65 I have gone through the statement of DW12 Narender Kumar Pathak who had deposed that he had gone to the house of Netrapal Singh on 14.10.96 from where he had gone to his field and after seeing the trees in his field he had purchased 400 Popular Trees jointly with Kale Khan in two lacs and paid the total cost of Rs.2 lac. Relevant portion of his deposition is as under:
"As we are in the business of purchasing and selling wood, I came to know in the wood Mandi in Simbhavali Distt Ghaziabad UP that the trees are to be sold in village Goharani Distt C C No.08/05 36/122 Muzaffar Nagar UP. I went in village Goharani on 14.10.1996 at the house of Sh Netrapal Singh . Thereafter I went at the fields of Netrapal Singh with him and seen the trees of popular standing in the fields of Netrapal Singh. After seeing the trees I talked to Netrapal Singh to purchase 400 popular trees of the width of more than 36 inch. I offered him Rs.2 lacs for the said 400 popular trees to which Netrapal Singh agreed . Therefore I purchased those 400 popular trees jointly with Sh Kale Khan S/O Sh Babu R/O village Chachrai, Jhagirabad Distt Bullandshar UP from Sh Netrapal Singh in a sum of Rs.2 lacs. Thereafter a number of popular trees also remained standing in the fields of Netrapal Singh apart from these 400 popular trees. I paid the total costs of Rs.Two lacs of these 400 trees to Sh Netrapal Singh in cash. Out of this amount of Two lacs Kale Khan had given about 50-60 thousand and rest of the amount was paid by me . A receipt of this amount was executed by me and Sh Kale Khan, the original receipt is Ex DW12/E. Thereafter we got these trees cut off from the fields of Netrapal Singh and sold those in the market."
66 In his cross examination this witness has deposed as follows:
"It is incorrect to suggest that no such transaction of purchase of 400 popular trees from Sh Netrapal Singh took place as such I am unable to produce sale or purchase bill(s) in respect of this transaction and or other transaction. I do not have any electricity connection to run the said Aara Mahcine. Volunteered I am the said Aara machine by diesel" engine. .......
67 He has further deposed in his cross examination as follows:
" It is incorrect to suggest that no transaction was ever took place as such I am unable to produce any bill / document in respect of transportation of trees from the fields to my Aara Machine. The said trees were sold at our Aara machine in a small quantity to different persons. I C C No.08/05 37/122 am not an income tax assesses hence I am not filing any income tax return . It is incorrect to suggest that no transaction was ever took place as such I am not filing any income tax return . It is incorrect to suggest that I am deposing falsely at the instance of accused Netrapal Singh. It is incorrect to suggest that Ex DW12/E is prepared by me and accused Netrapal Singh recently and the same is false document . It is further incorrect to suggest that said receipt is antedated and is fabricated one. It is incorrect to suggest that during 1996 there was a recession in respect of popular trees and there was no regular buyer in the market in respect of popular trees. I had not seen any the documents of ownership of the land of accused when I went to purchase the said popular trees from him. It is incorrect to suggest that I am deposing falsely."
68 According to DW12 Narender Pal he has purchased these trees jointly with Kale Khan who has appeared in the witness box as DW20. I have a4lso gone through his deposition. Relevant portion of his statement is as under:
"On 14.10.1996 alongwith Narender Pathak had jointly purchased 400 Popular Trees from Netrapal Singh for a total sum of Rs. 2 lacs out of which I had paid Rs. 50,000/- and Sh. Narender Pathak paid Rs. 1,50,000/- . In this deal I was the partner of Narender Pathak for 25%. The said popular trees were standing in the fields of Netrapal Singh in village Goharni , Distt. Mujaffarnagar, UP. On the same day I had given Rs. 50,000/- to Narender Pathak . I had given Rs. 50,000/- to Narender Pathak but I do not know when the total amount of Rs. Two lac was paid by Narender Pathak to Netrapal. The receipt of the payment of Rs. Two lacs already Ex DW12/E was prepared on the same day by Sh. Narender Pathak in his own handwriting. Narender Pathak had signed this receipt in my presence. I have signed this receipt and it bears my signature at point 'A'."
69 In his cross examination this witness has deposed as C C No.08/05 38/122 follows:
"I went alone to purchase the trees from the accused Netrapal Singh. Documents Ex DW12/E was written in my presence. I had signed the said receipt at the Ara Machine of Narender Pathak which is situated at Chachrai Road, Jahangirabad. It is wrong to suggest that the revenue stamps were not affixed on the receipt Ex DW12/E when I had signed it. (Court Observation - It is correct that some portion of word 'Ka' is under the revenue stamp). It is incorrect to suggest that Ex DW12/E is fabricated documents. It is incorrect to suggest that this documents is prepared at the instance of Narender Pathak and accused Netrapal Singh and I was asked to sign this documents . It is incorrect to suggest that no transaction had taken place".....
..... " I do not remember the date when I went to purchase the tree. I do not know who had purchased the stamp paper on which the receipt Ex DW12/E was made but I had seen it with Sh. Narender Pathak. I do not have any bank account. No receipt of payment to labour was made. No other documents was prepared in respect of this transaction. It is incorrect to suggest that I am unable to produce any documents as no transaction had taken place. The distance between the fields of Netrapal Singh and the Ara Machine of Narender Pathak is approximately 100 kilometers and both places are located in different districts i.e. District Mujaffar Nagar and District Bulanshahar."
70 I have also gone through Ex DW-12/E which is the receipt executed with regard to the payment of Rs.2 lac to Netrapal Singh by Kale Khan and Narender Pal. in consideration of purchasing of 400 Popular Trees executed on 14.10.96. It has been executed on a stamp paper of Rs.5/- It also bears two revenue stamp of Re. 1 each. This stamp paper has been purchased on 13.10.96 as per stamp on the back of it.
71 From the above quoted deposition of DW12 and DW20 it is apparent that both these witnesses had gone on 14.10.96 to the house of Netrapal for purchasing the trees. Thus, it was not certain C C No.08/05 39/122 on 14.10.96 whether the deal was certainly struck or not. Thus, how DW12 had purchased the stamp paper on 13.10.96 for getting the receipt executed. According to Ex DW12/A amount of Rs.2 lac was paid in cash to Netrapal on 14.10.96 itself. It is again surprising when the deal was not struck how DW12 and DW20 had carried with them such a huge amount of Rs.2 lac in cash. 72 PW30 Pawan Kumar Sharma has been cross examined on behalf of accused. In his cross examination he has deposed that Netrapal had sold 400 Popular Trees in the year 1997. Relevant portion of his cross examination is as under;
" Netrapal Singh had also planted Popular trees in the said agricultural land. These popular tree were 400 in total number. Accused Netrapal had sold the said 400 Trees in the year 1997."
73 According to DW12 and DW20 they had purchased the 400 Popular Trees on 14.10.96 but according to PW30 Netrapal had sold 400 Popular Trees in the year 1997. This fact has appeared in the cross examination of PW30 on behalf of accused himself. Not even a suggestion has been given to PW30 on behalf of accused that trees were not sold in 1997 but the same were sold on 14.10.96 vide receipt Ex. DW12/A. This fact also corroborates that entire story is a concocted one.
74 Accused Netrapal had not produced any documentary evidence as to in which bank account he had deposited such a huge amount of Rs.2 lac or where he had invested the same. He has not shown the receipt of this amount in his Income Tax Returns. He has not informed receipt of Rs.2 lac in cash by him to his department. According to CCS Conduct Rules (18), every Govt. servant has to C C No.08/05 40/122 inform his department with regard to any transaction of more than Rs.20,000/-. Had it been a genuine transaction accused would not have accepted heavy amount of Rs. 2lac in cash. He would have taken this amount by cheque or DD particularly when there is evidence on the judicial file that he was in habit of advancing loan to various persons in cash and to receive that loan amount back by way of cheque or DDs.
75 In view of above discussion this court is of opinion that the alleged Receipt Ex DW12/A is a sham, concocted document prepared with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitle for any benefit of income from the alleged sale of 400 Popular Trees allegedly received by him vide Receipt Ex DW12/A. 76 Ld. Defence Counsel argued that accused had a house at village Ghorni Distt. Muzzafarnagar, UP having 8 rooms which he had let out at a rent of Rs.600/- per month, per room w.e.f. 1.1.84 to April, 2000 and had a total rental income of Rs.9,40,800/- during the check period. DW18 Anil Kumar , brother of accused had deposed that Netrapal Singh had let out 8 rooms to the tenants in the year 1980, the rent of one room was Rs.600/- which remained for long time. Relevant portion of his examination in chief is as under:
"Netrapal Singh is also having a house in our village Goharni in which there are 8 rooms which are four at the ground floor and four at the first floor. Netra pal Singh has let out all the said 8 rooms to the tenants. In the year 1980 the rent of one room was about 600/- which remained for a long time."
77 DW19 Prem Pal, other brother of accused Netrapal has C C No.08/05 41/122 also corroborated this version. Relevant portion of his version in this regard is as under:
"Netrapal Singh is also having a house in our village Goharni in which there are 8 rooms which are four at the ground floor and four at the first floor. Netra pal Singh has let out all the said 8 rooms to the tenants. In the year 1980 the rent of one room was about 600/- which remained for a long time."
78 DW21 Phool Singh has also corroborated it. Relevant portion of his deposition is as under:
"I had heard that Sh. Netrapal Singh has let out the rooms of his said house for Rs. 600/- per month per room in the year 1980 but I do not know what rent he was charging from his tenants later on. "
80 PW30 Pawan Kumar Sharma, Patwari of village in his cross examination has also admitted that Netrapal was having a big house in the village and had let out 8 rooms at a rate of Rs.600/- per month. Relevant portion of his statement, in this regard is as under:
"Accused Netra Pal Singh also has a big house in village Ghorani. There are eight rooms in the said house. Netra Pal Singh has rented out the said rooms. It is correct that the rent of one room may be Rs. 600/- per month of the said rooms of the house of Netra Pal Singh."
81 PW30 Pawan Kumar was Patwari of the village. He couldhave deposed about the agricultural land. He had no occasion to depose about the residential house of accused and rate of rent. Thus his deposition in this regard is also not trustworthy and truthful.
82 According to Netrapal he had let out these rooms w.e.f. 1.1.84 but according to DW18, DW19 and DW21 these C C No.08/05 42/122 rooms were let out from 1980. Prosecution has shown the agriculture income of Rs.2,46,400/- and salary income Rs.40,000/- of accused during the pre-check period. Accused has not disputed both these entries. Moreover accused has not claimed any rental income during the pre-check period. Had these 8 rooms would have let out in the year 1980 accused must have claimed benefit of such rental income qua the pre check period i.e. w.e.f. 1980 to 1984 but he has not asked for the same which clearly proves that DW18, 19 and 21 are deposing wrongly being the brother and servant of accused. It is in evidence that Ghorni was a small village having no industry etc. thus there was no occasion for persons to pay such a heavy rent of Rs.600/- per month per room in the year 1980 or 1984.
83 According to accused he has charged the rent of eight rooms at the rate ofRs.600/- pm per room from 1984 to 2000, though accused with regard to his houses in Delhi has claimed that he had increased the rate of rent every three years. Thus his version about the letting out 8 rooms at a flat rate of Rs.600/- pm wef 1984 to 2000 again appears to be false.
84 According to the above version of accused he was having annual rental income of 57,600/- atleast wef 1984 besides the alleged rental income from this house accused was also having salary income as well as agricultural income and income from interest on his huge bank deposits. According to income tax Act, annual income upto Rs.15,000/- was exempted from income tax w.e.f. assessment year 1983-84 to 1985-86 and annual income upto Rs. 18000/- was exempted from income tax wef assessment year C C No.08/05 43/122 1986 -87 to 1990-91 and annual income upto 22,000/- was exempted from income tax wef assessment year 1991-92 to 1994-95, and annual income upto 35,000/- was exempted from income tax wef assessment year 1994-95 to 1998-99 , and annual income upto 50,000/- was exempted from income tax wef assessment year 1999- 2000 to 2000-2001.
85 It is the admitted case of accused that he is not showing any rental income in his income tax assessment and not paying any income tax on rental income . It is also argue on behalf of accused that agricultural income is exempted from income from income tax . It is correct but an income tax assessee has first to disclose his agricultural income in his income tax return and thereafter has to claim exemption, but accused has not shown even his agricultural income in the income tax return nor claim any exemption on agricultural income which again falsify his claim. Particularly, in the facts and circumstances of this case where accused is managing cheques, DDs from his relatives as Gift and from various other persons which shows that he was trying hard to increase his capital to justify his ill gotten money . Accused has not informed his department about the alleged rental income from his house situated at village Ghorni, UP.
86 Ld Defence counsel has also argued that if accused has not paid the income tax he can be prosecuted for the violation of provision of income tax Act but cannot be punished in this case. There is no question of awarding punishment to accused before this Court for not paying income tax on the rental income but his conduct of not disclosing his rental income to Income Tax Authority and not C C No.08/05 44/122 paying income tax falsify his claim of having such a heavy rental income .
87 PW9 Sh Suresh Chand Gupta Head Clerk MCD has deposed that employees of Group A and B of MCD are required to file annual return of immovable property held/acquired inherited leased mortgage and gifted etc in his own name or in the name of any family members . Accused Neterpal falls under the category of B group employee. As per record he has not filed any return of his immovable property. Entire deposition of PW 9 in this regard is as under:
" I joined MCD in the year 1979 as LDC and was transferred to Central Establishment Department MCD in June 2001 as a Head Clerk. I am posted in property Return Cell of Central Establishment Department where the employees of group A and B are required to file an annual return of immovable property showing the details of immovable property held/acquired, inherited, lease, mortgage and gifted etc. in his own name or in the name of any family or in any person. Such returns are required to be submitted in the month of January, every year.
The accused Netrapal Singh falls under the category of B Group Employee i.e. 5500-175-9000 at that point of time. As per record of our branch Sh. Netrapal Singh has not filed any immovable property return which he is required to file as per CCS Conduct Rules.
XXXXX on behalf of accused by Sharma I am having no knowledge of the property, if any, own or possessed by accused prior to joining service or acquired during the service. I am official person dealing with the official file only. i have no personal knowledge about the assets of accused. According to report available to me accused has not file any return of the property possessed by him. As accused has not filed any return of his property in the office hence we have no record of this property during his service. I have not brought record inthis C C No.08/05 45/122 regard as no such record is available."
88 PW 42 Sh. Sushil Kumar Sharma has deposed that computation of income tax done by accounts Department on declaration of income tax forms. There is provision in income tax declaration form to declare the income other than salaried income. He has proved income tax declaration form filed by accused which are Ex P-9 to P-15 which has also been admitted by accused in his admission / denial. He has also deposed that accused has not disclosed any income other than salaried income. Relevant portion of his statement is as under :
" I am working in MCD since 1983.
In the year 1997 I was promoted as UDC and in the year 1999 I was promoted as Accountant. Computation of income tax is done by accounts department on the declaration of income tax forms duly counter signed by controlling officer of individual. There is a provision in the Income Tax Declaration form to declare his income other than salary. I have seen Declaration Form of the year 1993-94, 1998-99 and 1999-2000 in respect of the employee Sh. Netrapal Singh whom I can identify if shown to me. (Accused Netrapal Singh is exempted from personal appearance and his identity is not disputed by his counsel) In the year 1993-94 as per Declaration Forms of Income tax which are already Ex.P-9 and P10. There was no tax liability. After perusal of Income Tax Declaration Form Ex P9 and P10 there is no income other than salary. For the year 1998-99 there is tax liability of Rs. 806/- as per Income Tax Declaration Form Ex P11 and P12. After perusal of Income Tax Declaration Form Ex P11 and P12 there is no income other than salary.
For the year 1999-2000 there is tax liability of Rs. 5890/- as per Income Tax Declaration Form Ex P13 and P14. After perusal of Income Tax Declaration Form Ex P13 and P14 there is no income other than salary.
For the year 2000-2001 form No.16 Ex P-15 C C No.08/05 46/122 which was also handed over to CBI tax liability comes to Rs. 2160/-. As per Form No.16 Ex P15 there is no income other than salary. Ex P 9 to P15 were duly attested by Mr. Harish Talwar, the then Dy. Chief Accountant of Karol Bagh Zone, MCD and same bears his signatures at point A. Ex P9 to P14 are for the declaration of income tax alongwith the calculation/computation of income tax for the year 1993-94, 1998-99 and 1999-2000."
89 PW11 Jagdish Chander Sharma has deposed that in the year 2001 he had prepared the salary details of accused Ex -16 and P-17 ( Admitted during admission/ denial U/S 294 Cr P C ) . During this period accused has not intimated regarding purchase / acquisition/ disposing of any movable and immovable property except the purchase of one motor cycle. 90 Entire deposition of PW 11 Jagdish Chand Sharma is as under :
"In the year 2001 I was working as a LDC in MCD Horticulture Department, Karol Bagh, New Delhi. In the year 2001 after perusal of the record the detail recording salary of the accused Netrapal Singh was prepared by me the same has alreadybeen exhibited as P-16 and P-17. exhibited) which bears my initial at point A. During this period accused Netrapal Singhhad not intimated regarding purchase/acquisition or disposing etc. of any movable or immovable property either in his own name or in the name of his family members exccept the purchase of one Motor Cycle. Before the preparation of the report Ex P-16 and P17 we had perused the service book and personal file of the accused Netrapal Singh.
XXX on behalf of accused It is correct that that CBI had made inquiries from me in its CBI office at CGO Complex. I do not remember the exact date. I have not prepared Ex P16 and P17. Service book and personal file of accused was seized by CBI officer and I had been shown the same in CGO Complex. I have no personal knowledge Ex P16 and P17 as it has been prepared by some other clerk from the record."C C No.08/05 47/122
91 Ld. Defence Counsel referring the statements of DW9 Mange Ram, DW 10 Pappu, DW11 Subhash, DW14 Brijveer Singh, DW16 Ajay Kumar and DW17 Sh. Chander Pal argued that during the check period accused had an income of Rs.1,38,000/- by selling animals. Ld. Defence Counsel argued that accused had also produced the receipts of the sale of animals which are Ex DW9/A, DW10/A and B, Ex.DW11/ A and B, Ex DW14/A and B, Ex. DW16/A and DW17/A. 92 I have gone through the statements of all these DWs and Ex DW9/A, DW10/A and B, Ex.DW11/ A and B, Ex DW14/A and B, Ex. DW16/A and DW17/A. According to DW9/A one he buffalo was sold on 4.1.96 to Mange Ram in consideration of Rs.8,000/-. According to Ex DW10/A and DW10/B two Oxes were sold to Pappu on 18.2.96 in sum of Rs.12,000/- and Rs.10,000/-, Thus, according to accused he had earned Rs.30,000/- by sale of animals in the financial year 1995-96.
93 According to Ex DW11/A and DW11/B two buffaloes were sold to Subhash on 7.3.91 in sum of Rs.16,000/- and Rs.10,000/-, Thus, according to accused he had earned Rs.26,000/- by sale of animals in the financial year 1990-91. 94 According to Ex DW14/A and DW14/B two buffaloes were sold to Brijveer on 11.1.85 in sum of Rs.18,000/- and Rs.15,000/-, Thus, according to accused he had earned Rs.33,000/- by sale of animals in the financial year 1984-85. 95 According to Ex DW16/A one buffalo was sold to Ajay Kumar on 29.4.99 in sum of Rs.18,000/-. Thus, according to accused he had earned Rs.18,000/- by sale of animal in the financial C C No.08/05 48/122 year 1999-2000.
96 According to Ex DW17/A one buffalo was sold to Chandu on 29.4.99 in sum of Rs.22,000/-. Thus, according to accused he had earned Rs.22,000/- by sale of animal in the financial year 1999-2000.
97 All the receipts Ex. DW9/A, Ex. DW10/A and B, Ex.DW11/ A and B, Ex DW14/A and B, Ex. DW16/A and Ex. DW17/A do not bear any revenue stamp of Re. one as prescribed under Stamp Act. Without having proper revenue stamps these receipts are inadmissible in evidence. Accused has neither shown the receipts of amount in his income tax returns in the relevant assessment years nor he has informed his department about the receipt of the amount or sale of the animals. Accused has not claimed benefit of the income from alleged sale of animals during the investigation.
98 In view of above discussion this court is of opinion that DW9 Mange Ram, DW 10 Pappu, DW11 Subhash, DW14 Brijveer Singh, DW16 Ajay Kumar and DW17 Sh. Chander Pal are not trustworthy, reliable and truthful witnesses. They are procured witnesses by the accused and the alleged Receipts Ex. DW9/A, Ex. DW10/A and B, Ex.DW11/ A and B, Ex DW14/A and B, Ex. DW16/A and Ex. DW17/A are sham, concocted documents prepared with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitle for any benefit of income from sale of animals allegedly received by him vide Receipts Ex. DW9/A, Ex. DW10/A and B, Ex.DW11/ A and B, Ex DW14/A and B, Ex. DW16/A and Ex. DW17/A. C C No.08/05 49/122 99 A specific question No.52 has been put to accused with regard to fact that he belongs to group B employees and was required to file an annual return showing details of movable/ immovable properties acquired by him to which he has not denied stating that it is a matter of record. Question No.53 has also been put to him in his statement U/s 313 Cr PC stating that it is in evidence against him that he had not intimated department regarding acquisition of movable/ immovable property, lease etc. to which he has denied stating that it is incorrect. Question No.52, 53 and answers given to the same by accused are as under:
"Q.52. It is in evidence against you of PW9, PW42, (Ex P-9 to P-15) 'B' Group employee i.e. 5500-175-9000 and you were reqired to file an annual return showing details of movable/ immovable properties held/acquired, inherited, leased, mortgaged and gifted etc. in your name or in the name of any family member in the month of January every year. However, records reveal that you have not filed any return. What have you to say?
Ans: It is matter of record.
Q.53. It is in evidence against you in the statement of PW11, (Ex P-16 & P-17) that during the relevant period you had not intimated regarding purchase/acquisition or disposing etc. of any movable or immovable property either in your own name or in the name of your family members exept the purchase of one motor cycle. What have you to say?
Ans: It is incorrect."
100 According to prosecution accused was in habit of advancing loan to different persons through his relatives in cash and thereafter he used to receive back the amount by way of cheque, in order to legalise his ill gotten money. According to Ld. Defence C C No.08/05 50/122 Counsel these allegations are baseless. Prosecution has not produced any witness to prove that accused had himself given or advanced loan to anyone. Ld. Defence Counsel has claimed total benefit of Rs.5,81,250/- on this account.
101 Prosecution, in order to prove this fact has produced PW2 Rajbir Sharma, PW6 Dharamvir Singh, PW18, Sh. P P Singh, PW22 C M Goswami, PW24 B K Sharma, PW29 Amar Singh, PW36 Sushil Kumar, PW 46 Dr. Brijveer Singh. Prosecution has also produced PW19 Jog Raj, PW20 Bijender Singh, PW25 Sham Singh and PW28 Ganga Ram to prove these fact but all these witnesses have not supported the case of prosecution and declared hostile. Ld. Defence Counsel has also claimed the benefit of amount advanced to these witnesses.
102 I have carefully gone through the statement of all the above referred witnesses. PW2 Rajbir Singh has deposed that he knows one shyam Singh. C M Goswami and Prem Pal Singh are also known to him as they are working in his department. He had arranged loan of Rs.10,000/- to C M Goswami and a loan of Rs.10 to 15,000/- to Prem Pal from Netrapal through Shyam Singh. Amount was paid to them in cash but the amount was returned to Netrapal through Cheque. Relevant portion of his statement in this regard is as under:
"I know the accused Netra pal Singh who is present in court today. The witness has correctly identified the accused. I had borrowed money from accused Netra Pal Singh on 3-4 occasions. I know Shyam Singh Controller, C M Goswami, Asstt. Engineer and Prem Pal Singh, Asstt. Operator who were my colleagues in I P Power Station. C M Goswami and Prem Pal Singh had requested me for C C No.08/05 51/122 financial help. I requested Shyam Singh to arrange money for Sh. Goswami and Sh. Prem Pal Singh. Shyam Singh informed me that he can arrange money on the condition that it will be paid in cash but will be returned by way of cheque in the name of Netra Pal accused. Sh. Goswami and Prem Pal Singh agreed to take loan on the condition put by Shyam Singh. Accordingly, Shyam Singh arranged Rs. 20,000/- for C M Goswami and Rs. 10,000/- for Prem Pal Singh in cash from Netra Pal Singh who was relation of Shyam Singh who was working as JE in MCD. The above stated money was paid to C M Goswami and Prem Singh by Sh. Shyam Singh through me. After 2/3 months the money was returned by cheque by Sh. Goswami and Sh. Prem Pal Singh in the name of Payee's account Netra Pal Singh and I handed over the said cheque to Sh. Shyam Singh. I had taken the loan from Netra Pal Singh which was arranged by Shyam Singh on 4-5 occasion. In some occasion the money was returned by cash and in some occasion the money was returned by account payee's cheque. I have seen the photo copies of the cheque which are Ex P 39/1 and Ex P 40/1, Ex P41/1 (these documents are admitted by the accused). My wife is not working. I had also returned some amount of loan through the cheque issued from the account of my wife to Netra Pal Singh. The photo copy of the said cheque is Ex PW 2/A. I identify signatures of my wife at point A on Ex PW2/A. I identify signatures of Sh. C M Goswami as we have been working together and has seen him writing and signing. I identify signatures of Sh. C M Goswami on photo copy of the cheque Ex PW1/I-5 at point B. (objected to). I had also returned part of the loan to accused Netra Pal through an account payee's cheque obtained from I Hussain who was also working with me. I identify photo copy of the said cheque which was returned to the accused by me. The same is Ex PW1/I-7 which bears signatures of I Hussain at point B. (objected to on the ground that it is only a photo copy. The Ld. Special PP submits that only the photo copy of the cheque had been seized during search of the house of the accused)"C C No.08/05 52/122
103 In his cross examination this witness has deposed as follows:
"Amount was returned to Netrapal through cheques but I do not remember the dates. I had taken loan from Netrapal amounting to Rs.10/15/20,000/- and returned the same after 01/02 months by cheques once of amount of Rs.20,000/-."
104 This witness has proved cheques Ex P-39/1 to 41/1 for an amount of Rs.25,000/-, Rs.10,000/- and Rs.10,000/-. All these cheques were deposited in the saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch vide pay in slips Ex P-39/2, P-40/2 and P-41/2. He had also proved photo copy of cheque Ex PW2/A which was issued by his wife Sudha Rani for an amount of Rs.22,000/- in favour of accused Netrapal. He has also proved photocopy of cheque Ex PW1/I-5 which is photocopy of cheque issued by C M Goswami in the name of Netrapal for an amount of Rs.20,000/-. Prosecution has also proved pay in slip of this cheque Ex PW 1/I-6 vide which this cheque was deposited in saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch. 105 Prosecution has produced C M Goswami in the witness box as PW22 who has deposed as follows:
"The aforesaid house was purchased by me. I do not remember the exact time when the said flat was purchased by me. When I was buying the house I took the help of Sh. Rajbir Sharma, one of my colleague and I took a loan of Rs. 20,000.- in cash on no interest. I paid back the said amount of Rs. 20,000/- by way of cheque as Sh. Rajbir Sharma requested me to issue a cheque. Cheque Ex.PW1/E5 was issued by me and it bears my signatures at point C."C C No.08/05 53/122
106 In his cross examinat5ion this witness has deposed as follows:
" I do not remember the date, month and year when I had given cheque Ex PW1/E5 to Rajbir Sharma. I do not know the name of father of Rajbir Sharma and address of Rajbir Sharma. I had never gone to his house. I had given the cheque Ex PW1/E5 to him in his office. I had filled the amount in word and number in the cheque and put my signatures. I had not filled the name of payee."
107 This witness has also proved photocopy of cheque Ex PW 1/I-7 for an amount of Rs.25,000/- issued by I Hassan in the name of Netrapal.
108 PW6 Dharamvir Singh has deposed that he had taken loan of Rs.10,000/- in cash from Rajbir and returned that amount vide cheque Ex PW 1/F-8 for an amount of Rs.10,000/- in favour of Netrapal. Prosecution has also proved pay in slip of this cheque Ex PW1/I-9 vide which this cheque was deposited in saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch. Deposition of PW6 is as under:
"I had taken a loan of Rs.10,000/- from Rajbir, a friend of mine while I was making repairs of my house, sometimes in the ends of 1997 or beginning of 1998. The said amount of loan was returned by me to Sh. Rajbir through cheque No. 022260 dt. 14.4.98 for Rs.10,000/- issued in favour of Netrapal Singh. The said cheque is Ex PW1/F-8. It bears my signatures at point A. I do not know Netrapal Singh accused present in the court. I do not have any dealings with him. I had returned the money by cheque at the request of Sh. Rajbir Singh.
In his cross examination he has deposed as follows:C C No.08/05 54/122
The body of the cheque Ex PW1/F-8 is filled in my hand writing. I had never taken any money from accused Netrapal Singh. Rajbir Singh had told me that he was to hand over the cheque to some of his friend and then asked me to fill in the name of Netrapal Singh."
109 PW18 P P Singh has deposed that he had taken loan of Rs.10,000/- in chash from Rajbir and returned that amount vide cheque Ex P-38/1 in the name of Netrapal as requested by Rajbir Sharma. Prosecution has also proved pay in slip of this cheque Ex P-38/2 vide which this cheque was deposited in saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch. Deposition of PW18 is as under:
"Since January 1990 I am working in IP Power Station earlier known as DVB. During 1998 I needed some amount for personal use and I made a request to Sh Rajbir Sharma for making arrangement of some amount. Sh Rajbir Sharma gave me Rs 10,000/- in cash and in lieu of that amount I paid back the said amount by way of cheque in the name of Neterpal Singh as requested by Sh Rajbir Sharma. The said cheque has already been Ex P-38/1 which bears my signatures at point A."
110 PW24 Sh. B K Sharma has deposed that he was in need of financial help, hence on his request his colleague Shyam Singh arranged him Rs.5,000/- and Rs.1,250/- in cash which he had paid vide cheque Ex P-30. He had filled the amount in word and figure in his own handwriting but name was not filled up by him. He had given the cheque Ex P-30 for an amount of Rs.6,250/- to Shyam Singh. Entire statement of PW24 B K Sharma is as under:
C C No.08/05 55/122"Ex P-30 bears my signatures at point A. During the year 1996, 1997 and 1998 I was working as controller in Delhi Vindyut Board. In the year 1996-97 I needed some financial help. At my request Sh. Shyam Singh, my colleague arranged Rs.5,000/-for my personal use and Rs. 1250/- for repair of my scooter. I paid back the said amount vide cheque Ex P-30. I filled up the amount in words and figure in my own hand but the name was not filled up by me. Sh. Shyam Singh was the tenant of Sh. Netra Pal Singh accused who is present in court today ( witness has correctly identified the accused). I received the said amount in cash but returned back the said amount by way of cheque at the request of Sh. Shyam Singh.
In his cross examination he has deposed as follows:
I had given the cheque Ex P-30 to Shyam Singh."
111 PW29 Amar Singh has deposed that his son and son of Netrapal were studying in MVJ Engineering College, Bangalore. They were friends. He had borrowed Rs.20,000/- in cash from Netrapal through his son in cash and repaid the same vide bank draft which was purchased vide application Ex PW29/A. Deposition of PW29, in this regard is as under:
"My son Ramandeep Singh and son of Netra Pal accused present in court were studying in the same M V J Engineering College at Bangalore and there they became friends and because of their friendship an amount of Rs. 20,000/-was taken or borrowed from accused Netra Pal Singh through my son for my brother Mr. Harminder Singh who urgently needed money for his business in Delhi. After sometime the same amount of Rs. 20,000/- was returned to Mr. Netra pal by way of bank draft which was sent to him from Chandigarh where I was in job. I have purchased that D D from SBI, Punjab University Branch, Chandigarh. Photo copy of application form C C No.08/05 56/122 bears my signatures at point A which I identify on Ex PW29/A"
112 In his cross examination this witness has deposed as follows:
"The money of Rs. 20,000/- was not paid in my presence, however my son had brought that money from the house of Netra Pal. My son had told me that he had brought the money from Netra Pal. It is wrong to suggest that accused Netra Pal Singh had not given Rs. 20,000/- to my son. It is wrong to suggest that I had given Rs. 20,000/- to accused Netra Pal as loan. As my brother suffered total loss in his business hence he had not returned that amount to me. It is wrong to suggest that my brother Harminder Singh had not taken loan of Rs. 20,000/-."
113 Prosecution has produced PW36 Sushil Kumar who had deposed that he had borrowed Rs.10,000/- in cash from Shyam Singh, who was his colleague as interest free loan. Shyam Singh had asked him to refund the loan by cheque in the name of Netrapal Singh who was his co-brother (Sadu). Accordingly he had issued cheque Ex P-42/1 in the name of Netrapal. Prosecution has also proved pay in slip of this cheque Ex P-42/2 vide which this cheque was deposited in saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch.
114 In this regard relevant portion of deposition of PW36 Sushil Kumar is as under:
" In the year 1990 I joined Delhi Vidyut Board. Since then I am posted at Indraprastha Power House, IP Estate, New Delhi. I borrowed Rs. 10,000/- from Shyam Singh who was working with C C No.08/05 57/122 me in Indraprastha Power House which was interest free loan. The loan was given in cash and this amount was received by me in cash in January, February of 1998. Shyam Singh asked me to refund the loan by way of a cheque in the name of Netra Pal Singh who is co brother (Saddhu) of Shyam Singh from whom he had taken the aforesaid amount. Accordingly, I issued a cheque in the name of Netra Pal Singh. Cheque which was issued by me is already exhibited as Ex P-42/1 which bears my signatures at point A. The pay in slip Ex P42/2 is in the handwriting of Shyam Singh by way of which the aforesaid cheque was deposited in the bank."
115 Prosecution has produced PW46 Dr. Brijvir Singh who had deposed that he had borrowed Rs.50,000/- in cash from Netrapal and returned the same by cheque Ex P-37/1 dt. 1.11.98 in the name of Netrapal. Prosecution has also proved pay in slip of this cheque Ex P-37/2 vide which this cheque was deposited in saving bank account no. 7744 in the name of Netrapal, Vijay Bank, Loni Road, Shahdara Branch. This witness has also proved letter written by him to Netrapal Ex PW46/A which was recovered from the house of accused Netrapal during the search. Even in this letter he had thanked Netrapal for advancing loan to him.
116 In this regard relevant portion of deposition of PW46 Dr. Brijpal Singh is as under:
"I am retired as Sr Professor Haryana Agriculture University Hissar . After retirement I resided for a short period in a tenanted property at Chandigarh . The accused Neterpal Singh present in the Court( correctly identified ) is related to me i e he is husband of my wife cousin sister.
In the year about 1997 I applied for a plot at Panchkula with HUDA . After my retirement I needed some financial help accordingly the accused C C No.08/05 58/122 Neterpal Singh had given me a loan of Rs.50,000/- in cash . Since the plot was not allotted to us therefore I had written a letter to Sh Neterpal Singh for his cooperation, the letter is Ex PW46/A which is in my own hand writing and bears my signatures at point A. I issued a cheque No.639039 dt 1.11.98 from my account No.12713/43 SBI Panchkula in the name of the accused Neterpal Singh accordingly sent the same to Neterpal Singh, the same is already Ex as PW37/1 which bears the impression of my signatures at point A."
117 In his cross examination, in this regard he has deposed as follows:
" It is incorrect to suggest that the said cheque No.639039 Ex PW37/1 was given by me to Sh Neterpal Singh as loan which he had asked from me."....
...... "It is incorret to suggest that in the year 1997 I was earning handsomely and my son was employed therefore I was not having any requirement of loan. It is further incorrect to suggest that I have not borrowed any alleged amount of Rs.50,000/- from Sh Neterpal Singh in the year 1997. It is further incorrect to suggest that the said cheque Ex PW37/1 was given by me to Neterpal Singh as a loan. I do not remember the year marriage of accused, however from the date of his marriage I am related with him as co-brother. I do not remember as to how much letters I had written to the accused since his marriage till date. It is incorrect to suggest that I had not written any letter to the accused. Vol . I had written the said letter Ex PW46/A to the accused. It is incorrect to suggest that I had never dispatched the alleged letter Ex PW46/A to the accused. It is further incorrect to suggest that the said letter has been written by me in the office of CBI on asking of CBI officer. It is incorrect to suggest that I am deposing falsely."
118 Ld. Defence Counsel referring the statement of DW8 Ranjit Singh and Ex DW8/B argued that father in law of accused had gifted Rs.2 lac to her daughter Smt. Bimlesh w/o Netrapal on C C No.08/05 59/122 15.7.92. I have gone through the statement of DW8 Ranjit Singh Ex DW8/B which is executed on a stamp paper of Rs.50/- dt. 13.7.92. The alleged gift deed ExDW8/B does not bear signatures of any attesting witness. It has not been scribed by any Deed Writer but has allegedly written by Ranjit Singh, himself. It is mentioned in the Gift Deed that amount was being paid to fulfill the requirement of Smt. Bimlesh daughter of Ranjit Singh. As discussed above, it is already proved on the file that minor son of Bimlesh Sh. Vipin Kumar was having huge amount in his bank account amounting to Rs.5,44,389/- and an amount of Rs.2 lac in the name of minor daughter Sarika Chauhan. Netrapal Singh, husband of Bimlesh was also having huge amount in his various bank accounts, FDRs, RIPs, NSCs then how can it be accepted that Bimlesh was in need of money.
119 DW8 has also proved his saving bank account pass book Ex DW8/A which does not reflect withdrawal of an amount of Rs.2,00,000/- round about 15.7.92. DW8 has not disclosed as to how he was having an amount of Rs.2,00,000/- in cash and why he had not paid such a huge amount to his daughter Bimlesh by a negotiable instrument. According to the provision of Income Tax Act either doner had to pay gift tax or the gifted amount is to be considered as receipt in the hand of donee on which tax is to be paid. No such receipt of tax either by donner or donee has been produced or proved on the judicial file. As per CCS Conduct rules accused has to inform his department about the receipt of Rs.2,00,000/- by his wife but accused has not informed his department about the alleged receipt of Rs.2,00,000/- in cash by his wife by way of gift from her C C No.08/05 60/122 father.
120 In view of above discussion this court is of opinion that the alleged gift deed Ex DW8/B is a sham, concocted document prepared with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitle for any benefit of Rs.2,00,000/- vide alleged gift deed Ex DW8/B. 121 Ld. Defence Counsel referring the statement of DW8 Ranjit Singh argued that father in law of accused had gifted him Rs.50,000/- each in cash on 27.5.92 and on 16.6.94 after withdrawing this amount from his account No.6387, Indian Bank, Pinna . He has also proved his pass book Ex PW8/A. I have perused the passbook an amount of Rs.50863/- were credited by way of transfer in his account on 16.6.94 itself prior to which he was having a balance of Rs.2289/- only in his account. An amount of Rs.50,000/- was withdrawn " to self" on 16.6.94 itself. From the above discussion it is proved even DW 8 was transferring amount to his daughter by alleged gift deed and accused Netrapal Singh was also receiving amount from various persons/ relatives by way of cheque and drafts. But surprisingly enough this amount of Rs.50,000/- was allegedly received by him in cash. Had it been a genuine payment to Neterpal by DW8 he would have transfer it by way of cheque or DD.
122 As per CCS Conduct rules accused has to inform his department about the receipt of alleged Rs.50,000/- each in cash on 27.5.92 and on 16.6.94 by him but neither he has informed his department nor he has shown this amount in his income tax return for the relevant year.
C C No.08/05 61/122123 In view of above discussion this court is of opinion that the alleged payments of Rs.50,000/- each in cash on 27.5.92 and on 16.6.94 are the sham transactions shown with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitled for the benefit of Rs.1,00,000/- as claimed by him. 124 Ld. Defence Counsel referring the statement of DW 22 Jawhar Lal argued that on 22.4.2000 he had given an amount of Rs.4,00,000/- in cash for purchasing a car which may be gifted to Vipin Chauhan, son of accused Neterpal, in his marriage with his daughter. Search of the residential premises of accused 170,Gali No. 4 Durgapuri Extension was conducted on 25.4.2000 but vide observation memo Ex PW1/C ( D-3) only an amount of Rs. 2,35,930/- was observed out of which Rs.2,20,000/- was seized. It is the admitted case of accused that he had not purchased the car for which the alleged amount of Rs.4,00,000/- was given. Had a total amount of Rs.4,00,000/- was received by accused Netrapal from DW22 on 22.4.2000 then entire amount should have been recovered during the search of his premises. Accused has not given any explanation how the remaining amount out of Rs.4,00,000/- was spent by him after receiving the same on 22.4.2000 till 25.4.2000. Accused has not given any reasons as to why he had accepted such a huge amount in cash particularly when he is receiving amount from various persons or relatives by way of cheques and DDs. 125 As per CCS Conduct rules accused has to inform his department about the receipt of alleged Rs.4,00,000/- in cash on 22.4.2000 from DW 22 by by him but neither he has informed his department nor he has shown this amount in his income tax return C C No.08/05 62/122 for the relevant year. Had it been a genuine transaction accused must have shown atleast receipt of Rs. 4,00,000/-, after the registration of this case on 24.4.2000 against him in his income tax return for the assessment year 2000-2001 to justify the genuinity of receipt of Rs.4,00,000/-
126 In view of above discussion this court is of opinion that the alleged receipt of Rs. 4,00,000/- by accused on 22.4.2000 is an after thought concocted defence of accused with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitled for the alleged benefit of Rs.4,00,000/- as claimed by him.
127 Ld. Defence Counsel argued that Smt. Bimlesh appeared in the witness box as DW24 and has deposed that she was giving tuition to 10/11 children and was charging an amount of Rs.150/- to Rs.200/- from each child during the check period. Thus, she had earned about Rs.84,000/- during the check period benefit of which has not been given to the accused in his income by the prosecution.
128 I have carefully gone through the statement of DW24 Smt. Bimlesh. In her examination in chief in this regard, she has deposed as follows:
"Since my marriage I am working as house wife, however, I was providing tuition to small children of class 1st and 2nd since 1983 to 1990."
129 In her cross examination, in this regard, she has deposed as follows:
C C No.08/05 63/122"I was giving tuitions to 10/11 children. I was given tuition of Hindi and English. I was charging an amount of Rs.150/- or Rs.200/- from every child. It is incorrect to suggest that I am deposing falsely in this regard."
130 If her version is taken as correct than she must be having an income of Rs.1,500/- to Rs.2,000/- per month from her tuition business. Besides it she has claimed that she is also having rental income from various tenants from house no.170 Durgapuri Extension and house No.272, Durgapuri Extension, Shahdara and house No.114 Durgapuri Extension, Shahdara, named Tapan Kumar, Shyam Singh, Kirpal Singh, Ishwar Bansal, Ram Mehar, Parveen Kumar. She is also having income from interest as she is having huge amount in her various bank accounts. Thus, If her total income from rent , tuition and interest clubbed together it will be much above the income tax exemption limit, therefore, she is supposed to file her individual income tax returns but she is neither income tax payee nor filing her individual income tax returns which shows that her claim with regard to her earnings from tuition etc. is false. 131 In view of above discussion this court is of opinion that her claim with regard to her earnings from tuition etc. is an after thought concocted defence taken by her to save her husband who is accused in this case, with the intention to justify the ill gotten money of accused. In view of above discussion accused is not entitled for the alleged income of Rs. 84,000/- from tuition during the check period, as claimed by her.
132 It is argued by Ld. Defence Counsel that PW38 Ram C C No.08/05 64/122 Mehar Singh, DW6 Manoj Kumar and DW15 Parveen Kumar were living as tenants in premises no.114 Durgapuri Extension and paying rent to Smt. Bimlesh but no benefit has been given of their rental income hence a benefit of Rs.1,14,000/-, Rs.82,300 /- and Rs.81,200/- respectively may be given to accused. Search of premises No.114 Durgapuri Extension was conducted on 25.4.2000 vide search memo Ex. PW3/B in presence of Manoj Kumar who has stated that he, Parveen Kumar and Ram Mehra were residing in this premises and Netrapal Singh was not charging any rent from them. Ram Mehar and Praveen are the nephew (Bhanja) of accused Netrapal. Prosecution has proved search cum seizure memo Ex PW3/B. Manoj Kumar has appeared in the witness box as DW6 wherein he has admitted that he was a subordinate of accused Netrapal in Horticulture Department, MCD. He was also confronted with Ex PW 3/B on which he has admitted his signatures but has not challenged its correctness. Relevant portion of his cross examination is as under:
"I have seen Ex PW3/A it was prepared in my presence and it bears my signatures at point PZ on all the three pages . I have seen Ex PW3/B it was prepared in my presence and it bears my signatures at point PZ on all the four pages . I am serving in MCD since 1988. I never intimated to my department that I was living as a tenant in the house of Netrapal."......
........" It is correct that I was working under the subordination of accused in MCD Horticulture."
133 Accused Netrapal had not intimated his department about the alleged rental income nor accused or his wife had shown C C No.08/05 65/122 the alleged rental income in their income tax returns. In view of above discussion authenticity and correctness of Ex PW 3/B is proved beyond reasonable doubts. Thus, this court is of opinion that Ram Mehar, Manoj and Praveen were not paying any rent to Netrapal or his wife hence accused is not entitled for any benefit of their alleged rental income.
134 Ld. Defence Counsel argued that DW5 Kirpal Singh was also living as tenant in house No.272 Durgapuri Extension,w.e.f. January, 1994 to April, 2000 and had paid a rent of Rs.98,000/- but prosecution has not given benefit of this rental income to accused. Accused has produced Kirpal Singh as DW5 who in his examination in chief has deposed that he was living as a tenant in house No.272 Gali No.4, Durgapuri Extension at a rent of Rs.1,000/- per month since January, 1994. Thereafter he had enhanced the rate of rent at Rs.1,500/- w.e.f. January, 1997 and further enhanced rent to Rs.2,000/- per month w.e.f. January, 2000. In his cross examination he has deposed as follows:
"Netra Pal Singh is my brother in law ( Husband of my sister ) I have not brought any rent receipt as I do not have any rent receipt . It is incorrect to suggest that I am not able to produce any rent receipt as I never lived as a tenant in the said house. I do not have any rent agreement for the said property. It is incorrect to suggest that I am able to produce any rent agreement of the said property as I never lived as tenant therein. I have no ration card issued at the said property i e H. No.272 Gali No.4 Durga Puri Extension Shahdara Delhi. It is incorrect to suggest that I am not able to produce any ration card as I never lived as a tenant in the said house. Vol. My elder brother Bhim Singh was living in Durga Puri Extension but at present I C C No.08/05 66/122 do not remember his said address and he had a ration card at the address of his house and I got included my name in his ration card. It is wrong to suggest that only for the purpose of getting my daughter admitted in the said school I gave the address of Netra Pal Singh in the school whereas I was not residing in his house as tenant. It is further wrong to suggest that I am deposing falsely. It is further wrong to suggest that I never paid any rent to Netra Pal Singh. I am serving in MCD since 1988. I never intimated to my department that I was living as a tenant in the house of Netrapal. It is further incorrect to suggest that I did not intimate to my department about the same as I was not living as a tenant in his house."
135 From the above quoted cross examination of DW5 Kirpal Singh it is proved that he is the real brother of wife of accused Netrapal. He is serving in MCD. He had not intimated his department that he was living as a tenant in the house of Netrapal. He has not produced any rent agreement or rent receipt. Netrapal has never shown any rental income in his income tax returns from this premises. In view of above discussion this court is of opinion that he is a procured witness and his deposition with regard to living tenant and paying rent to Netrapal Singh is an after thought concocted defence taken by accused, who is his brother in law, is to justify his ill gotten money. In view of above discussion accused is not entitled for the alleged rental income of Rs.98,000/- from Kirpal Singh.
136 Ld. Defence Counsel argued that DW4 Tapan Kumar was also living as tenant in house No.170 Durgapuri Extension,w.e.f. November, 1983 to April, 2000 and had paid a rent of Rs.1,60,200/- but prosecution has not given benefit of this rental C C No.08/05 67/122 income to accused. Accused has produced Tapan Kumar as DW4 who in his examination in chief has deposed that he was living as a tenant in house No. 170, Durgapuri Extension at a rent of Rs.400/- per month since November, 1983. Thereafter he had enhanced the rate of rent at Rs.500/- w.e.f. Nov. 1987 and further enhanced rent to Rs.600/- per month from November, 1990, thereafter enhanced the rent to Rs.1,000/- from w.e.f. November, 1992, thereafter enhanced the rent to Rs.1,200/- w.e.f. November, 1995 and thereafter enhanced the rent to Rs.1,800/- w.e.f. November, 1998. In his cross examination he has deposed as follows:
" I have not brought any rent receipt as I do not have any rent receipt . Vol as nobody used to issue rent receipt in those days in said area. It is incorrect to suggest that I am not able to produce any rent receipt as I never lived as a tenant in the said house. I do not have any rent agreement for the said property. It is incorrect to suggest that I am not able to produce any rent agreement of the said property as I never lived as tenant therein. I do not have any copy of ration card issued at the said property i e H. No.170 Gali No.4 Durga Puri Extension Shahdara Delhi. Vol I had a ration card in my name at the said property while I was living there as a tenant. Now I have ration card at the new address where I am living at present but today I have not brought the same . It is incorrect to suggest that I am not able to produce any copy of Ration card as I never lived as a tenant in the said house."
137 He has further deposed in his cross examination, as follows:
" I have not brought any documentary proof regarding the address of my wife 170 Gali No.4 Durga Puri Extension Shahdara Delhi from the school. It is incorrect to suggest that I am not producing any school record of my wife showing the aforesaid address as I never lived there as a tenant of Sh Netrapal Singh".C C No.08/05 68/122
138 Accused himself has produced DW13 Daley Singh who has proved Inspection Report dt. 26.11.85 with regard to property No.170 Durgapuri Extension, Shahdara, New Delhi in which name of only one tenant O P Sharma is mentioned. Name of Tapan Kumar is not mentioned as tenant in this house while he is claiming to be a tenant in this house since November,1983. He has not produced any rent agreement or rent receipt. Netrapal or his wife has never shown any rental income in his income tax returns from this premises. Netrapal Singh has also not intimated his department about letting out this premises to Tapan Kumar and the alleged rental income. Netrapal has not claimed the benefit of alleged rental income in the head of Assets acquired before the check period.
139 In view of above discussion this court is of opinion that he is a procured witness and his deposition with regard to living as tenant w.e.f. November, 1983 and paying rent to Netrapal Singh is an after thought concocted defence taken by accused, to justify his ill gotten money. In view of above discussion accused is not entitled for the alleged rental income of Rs.1,60,200/- from Tapan Kumar. 140 Ld. Defence Counsel argued that DW7 Mahavir Prasad was also living as tenant in house No.170 Durgapuri Extension, w.e.f. February, 1997 to April, 2000 and had paid a rent of Rs.63,200/- but prosecution has not given benefit of this rental income to accused. Accused has produced Mahavir Prasad as DW7 who in his examination in chief has deposed that he was living as a tenant in house No. 170, Durgapuri Extension at a rent of Rs.1,600/- per month since February, 1997. In his cross examination he had C C No.08/05 69/122 admitted that no rent agreement was executed. He is not having any rent receipt . Netrapal or his wife has never shown any rental income in their income tax returns from this premises. Netrapal Singh has also not intimated his department about letting out this premises to Mahavir Prasad and the alleged rental income. 141 In view of above discussion this court is of opinion that he is a procured witness and his deposition with regard to living as tenant and paying rent to Netrapal Singh is an after thought concocted defence taken by accused, to justify his ill gotten money. In view of above discussion accused is not entitled for the alleged rental income of Rs.63,200/- from Mahavir Prasad. 142 Ld. Defence Counsel argued that DW3 Ishwar Bansal was also living as tenant in house No.272 Durgapuri Extension,w.e.f. January, 1994 to April, 2000 and had paid a rent of Rs.98,000/- but prosecution has not given benefit of this rental income to accused. Accused has produced Ishwar Bansal as DW3 who in his examination in chief has deposed that he was living as a tenant in house No. 272, Durgapuri Extension at a rent of Rs.1,000/- per month since January, 1994. Thereafter, rent was increased to Rs. 1,500/- per month w.e.f. January 1997 and Rs.2,000/- w.e.f. December, 2002. He was paying rent to Smt. Bimlesh. In his cross examination he had admitted that no rent agreement was executed. He is not having any rent receipt or ration card. Netrapal or his wife has never shown any rental income in their income tax returns from this premises. Netrapal Singh has also not intimated his department about letting out this premises to Ishwar Bansal and the alleged rental income.
C C No.08/05 70/122143 In view of above discussion this court is of opinion that he is a procured witness and his deposition with regard to living tenant and paying rent to Netrapal Singh is an after thought concocted defence taken by accused, to justify his ill gotten money. In view of above discussion accused is not entitled for the alleged rental income of Rs.98,000/- from Ishwar Bansal. 144 In view of above discussion this court is of opinion that prosecution has proved total income of accused as Rs.20,69,538/- instead of Rs.20,63,138/- as shown in the charge sheet. Thus accused is entitle for overall benefit of Rs.6400/- in his income during the check period.
EXPENDITURE MADE BY ACCUSED DURING THE CHECK PERIOD.
145 Prosecution from the statement of PW34 has assessed the non verifiable household expenses of accused and his family member,s during the check period, as Rs.2,63,369/- being 1/3rd of the net carry on salary of accused i.e. Rs.7,90,107/- from 1.1.84 to 30.4.2000 i.e. during the check period. Accused in his statement U/s 313 Cr PC has denied and stated it to be incorrect. (Q-42). Accused has not given any reason as to how it is incorrect and has not produced any evidence to contradict it. Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab, AIR 1964, SC page 464 has held that upto 1/3rd gross salaried income of a person can be assessed as living expenses. In these circumstances this court is of opinion that prosecution has rightly assessed Rs.2,63,369/- as non verifiable household/living expenses of accused and his family members.
C C No.08/05 71/122146 Prosecution has proved that accused had paid Rs. 1838/- (Rs938 + Rs.900) to UP State Electricity Board for installation of new electricity connection in House No. HIG/201 Gaur Enclave, Shalimar Garden, Distt., Ghaziabad on 6.1.99 i.e. during the check period. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-43).
147 Prosecution from the statement of PW3 coupled with Ex PW3/A (D-71) has proved that accused had incurred expenses of Rs.42,106/- on telephone charges in respect of telephone No.2299480 in the name of Vipin Chauhan i.e. his son during the check period. Accused in his statement U/s 313 Cr PC has stated it to be incorrect and clarified that telephone bills were paid by his son Vipin Chauhan. (Q-44). Accused has produced as many as 24 witnesses in his defence but has not produced his son Vipin Chauhan to prove that he had paid the telephone bills in question. Accused has not produced any documentary evidence like cheque/draft vide which Vipin Chauhan has paid these bills. Moreover, during the relevant period for which these bills pertains to Vipin Chauhan was having no independent source of earning. In these circumstances explanation given by accused that this expenditure of Rs.42,106/- on account of telephone bills was made by his son is not acceptable. 148 Prosecution from the statement of PW44 Sh. Pardeep Kumar Verma coupled with Ex P-32 (D-72 admitted during admission & denial ) has proved that accused had paid Rs.35,772/- towards his LIC policy No. 250221849 maintained in LIC Baghpat Branch, during the check period. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-45).
C C No.08/05 72/122149 Prosecution from the statement of PW33 Sh. A N Singh coupled with Ex PW33/A (D-73) has proved that accused had paid Rs.2500/- towards maintenance charges in respect of flat No.201 Gaur Enclave, Shalimar Garden Extn. II, Ghaziabad w.e.f. October,1999 to February, 2000 during the check period. Accused in his statement U/s 313 Cr PC has denied it and stated that maintenance charges were paid by his tenant. (Q-46). This amount was paid to the Society vide Ex PW33/A which is in the name of accused himself. No suggestion has been given to PW33 that this amount was paid by the tenant. Accused has not produced the alleged tenant in the witness box in his defence to prove that he had paid this amount. In these circumstances explanation given by accused that this amount was paid by his tenant, is not acceptable. This amount was paid by accused himself.
150 Prosecution from the statement of PW17 Sh. Izhar Ahmed coupled with Ex P-W17/A (D-69 admitted during admission & denial ) has proved that accused had deposited Rs.13,847/- on account of property tax in respect of property No.170 Durgapuri Extension, New Delhi, during the check period. Accused in his statement U/s 313 Cr PC has admitted it as correct, though according to accused this house belongs to his wife. (Q-47) 151 Prosecution from the statement PW 45 Dr Harish B M coupled with Ex P-W45/A (D-64 ) has proved that accused had paid a total sum of Rs.1,02,914/- on account fee of his son Vipin Chauhan in MVJ College Engineering, Bangalore. Amount of Rs. 26,752/-, 25,252/- 25,450/- and 25,460/ was paid as fee for the academic year 1994-95, 1995-96, 1996-97 and 1999-2000 C C No.08/05 73/122 respectively as Ex PW45/A. 152 Prosecution from the statement of PW 45 Dr Harish B M coupled with Ex P-W45/A (D-64 ) has proved that accused had paid a total sum of Rs.1,04998/- on account fee of his daughter Ms Vinita Chauhan in MVJ College Engineering, Bangalore. Amount of Rs. 28,625/-, 25,453/-, 25,460/- and 25,460/- was paid as fee for the academic year 1996-97, 1997-98, 1998-99 and 1999-2000 respectively as Ex PW45/A. 153 Accused in his statement U/S 313 Cr P C has denied it by stating that " It is incorrect". (Q-48 and Q-49) . However accused has not given any explanation as to why and how it is incorrect. 154 However accused in his defence evidence produced DW1 Chander Pal son of his sister who has deposed that he had paid tuition fees of Vipin Chauhan which was approximately 12,000/- / 12,500/- per semester for the academic years 1994-95, 1995-96, 1996-97 and 1999-2000, total amounting to Rs.1,02,914/- . He has also deposed that he had paid the tuition fees as he was in job and was having agricultural land also . He has also deposed that on few occasions he had taken money from his father to pay the fee of Vipin Chaouhan. In his cross examination he has admitted that he was having three sons . He has not helped any other of his maternal uncle . He had specifically deposed that he had rendered this help because Neterpal Singh asked him if he can financially help for the study of his children. Relevant portion of his statement in this regard is as under:
"I did not help the children of other maternal uncles and mausi as some of them were married and C C No.08/05 74/122 other had already studied. It is a fact that I did not extend any financial help to my other maternal uncles and mausi. Sh. Netrapal Singh asked me that if possible, extend me some financial help for the study of my children. It is a custom in society that financial help is not being asked from daughter/sister side i.e. the maternal side. Vol. As my maternal grandfather had extended a lot of help to us so in turn I helped my maternal uncle Netrapal Singh by paying fees for his son Vipin Chauhan. It is incorrect to suggest that just to save my Mama from the prosecution of this case I am making false statement. I have not brought any statement of account for the said period as i have paid the said tuition fees in cash. I have no documentary evidence in respect of amount paid by me for the tuition fees of Vipin Chauhan. Vol. as it was paid in cash and I was also receiving my salary in cash. Since on some of the occasion I paid the tuition fees of Vipin Chauhan by taking money from my father. During 1994 to 2000 I was not paying income tax so I was not filing income tax returns. I did not inform the department where I was working that I paid the fees of Rs.26,752/- for Sh. Vipin Chauhan in 1994-95 and the same is my reply for the period 1995-96 about Rs.25,252/- for 1996-97 about Rs.25,450/- and for 1999-2000 about Rs.25,460/-."
155 Accused has also produced DW 2 Jai Singh Dhama, brother of his wife as DW2 who has deposed that he had paid tuition fees of Vinita Chauhan which was approximately 25/26,000/- per semester for the academic year 1996-97 to 1999-2000 as per ex PW45/A. Relevant portion of his statement is as under:
" I had paid the tuition fee of said college for Vinita Chauhan approximately Rs.25,000/- or Rs.26,000/- per semester wise."
156 The above version given by DW2 is factually incorrect because fee of Vinita round about 25,000/-/ 26,000/- per academic year as per PW 45/A and not per semester. It is a matter of common experience that there is two semesters in every academic year.
C C No.08/05 75/122157 In his cross examination DW 2 has deposed that he had rendered the financial help because Neterpal has requested him to extend financial help for the study of his children. He has also admitted that he has not rendered any financial help for the study of the children of his other sisters and brother . He has also admitted that he is not having any documentary evidence in this regard and has not informed his department with regard to payment of the above said facts: Relevant portion of his cross examination is as under:
"I have four sons and one daughter. I have one brouther and three sisters and I am the eldest one. My brother has two sons and one daughter. My sister who is eldest in sister has three sons and two daughters, my second no. sister has two sons and my youngest sister has three daughters. I did not help financially for the children of my brother and sisters, however I have extended help to my sister of second no. for the construction of her house. It is custom of society that generally the financial help is not being taken from daughters/ sister but in need brothers and sisters can financially help each other. Sh. Netrapal Singh had requested me to extend some financial help for the study of his children. During 1996 to 2000 I was residing in East Jyoti Nagar, Shahdara in my own house. It is correct that I have no documentary evidence in respect of the fee of Ms. Vinita Chauhan paid by me. I do not remember whether during period 1996-2000 I was filing income tax returns or not. I did not inform the income tax department about the said amount of tuition fees of Ms. Vinita Chauhan paid by me. I did not inform the department where I was working that I paid the fee of Rs.28,625/- for Ms. Vinita Chauhan in 1996-97 and the same is my reply for the period 1997-98 about Rs.25,453/- for 1998-99 about Rs.25,460/- and for 1999-2000 about Rs.25,460/-. It is incorrect to suggest that I am deposing falsely, therefore, I am unable to show any documentary evidence regarding my payment made C C No.08/05 76/122 by me and intimated to my department. I have no record of agricultural income Vol. The said agricultural land is in my name in revenue record and whatever proceeds I am receiving from the land I used to send the same in the village itself."
158 Prosecution has proved on the judicial file that Vipin Chauhan was having various term deposits account /RIP account in his name wef 1992 to 1997 . Details of which are as follows:
AMOUNT DATE D NO. EXHIBITS 57904/- 25.7.95 83/5 PW12/D. 73390/- 27.4.92 83/7 PW12/E. 57904/- 25.7.95 83/23 PW12/K. 55191/- 25.7.95 83/22 PW12/KA. 50000/- 22.1.94 83/21 PW12/KB. 1,00000/- 25.5.93 83/17 PW12/H. 50,000/- 27.4.92 83/24 PW12/LA. 1,00000/- 25.5.94 83/40 PW12/M-15. 159 Thus prosecution has proved that at the relevant time
when Vipin Chauhan was studying in MJV Engineering College, Bangalore during the academic year w.e.f. 1994-95 to 1999-2000 he was having above referred amount totaling Rs.5,44,389/- in his bank account though he was a student and having no independent source of his income.
160 Similarly prosecution has proved that Vinita was having Rs.2,00,000/- in her reinvestment plan Deposit Account , Muzaffar Nagar Districts Cooperative Bank on 27.5.95 Ex PW21/A ( D-86/2) in her name .
C C No.08/05 77/122161 Thus prosecution has proved that at the relevant time when Vinita was studying in MJV Engineering College, Bangalore during the academic year wef 1994-95 to 1999-2000 she was having above referred amount of Rs.2,00,000/- in her bank account though she was a student and having no independent source of her income. 162 Prosecution has proved on the judicial file that Smt Bimlesh was having Rs 50,000/- in term deposit account maintained in Indian Bank Pinna, Muzaffarnagar on 22.1.94, Ex PW19/M-9 in her name .
163 In addition to above prosecution has also proved that accused Neterpal was having Fixed deposit/ terms deposits/RIP. NSCs/ balance in saving accounts ( Ex P1 , P-2, P-3, P-32 and P-
24)running in lacs at the relevant time i e the academic year 1994- 1995 to 1999-2000.
164 From the above discussions it is proved beyond reasonable doubt that accused Netrapal was not in financial need as to ask for the assistance of any of his relative to finance the study expenses of his son Vipin Chauhan and daughter Vinita Chauhan. 165 In view of above discussion this Court is of opinion that evidence of DW1 and DW2 is neither reliable, nor trustworthy / truthful . These are procured witnesses being the close relatives of accused . They have been produced by the accused in the witness box to justify his ill-gotten money.
166 Prosecution from the statement of PW34 Sh. S C Bhalla coupled with Ex PW1/K-1 to K-3 (D-75/2) has proved that accused had spent an amount of Rs.7609/- on account of maintenance charges of motor cycle No. DL-5S-B-3177, during the check period.
C C No.08/05 78/122Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-50).
167 Prosecution from the statement of PW30 Sh. Pawan Kumar coupled with Ex PW30/A (D-75/2) has proved that accused had made expenditure on cultivation of 5 ½ Gramin Bigha land in village Gohrini @ Rs.1,000/- per bigha per year during the check period i.e. w.e.f. 1984 to 2000. Accused in his statement U/s 313 Cr PC has denied it (Q-51). However, accused has not given any explanation as to why this amount is not correct. PW30 has been cross examined at length on behalf of accused but not even a suggestion has been given to this witness that expenses of Rs.1,000/- per bigha per year for the cultivation of 5 ½ bigha is wrong or excessive. Moreover accused has not given his figure of expenditure for cultivation of this land. PW30 Sh Pawan Kumar has prepared the details of earning and expenditure of accused Netrapal Singh with regard to cultivation of 5 ½ Gramin Bigha Land which is Ex PW30/A wherein he has specifically mentioned Rs.1,000/- per year as cultivation expenses. In these circumstances this court is of opinion that prosecution has proved the cultivation charges @ Rs.1000/- per bigha per year i.e. Rs.5,500/- per year for cultivation of 5 ½ bigha agricultural land. Thus, total expenditure for the cultivation of 5 ½ bigha of agricultural land w.e.f. 1984 to 2000 comes to Rs.5,500/- x 16 = Rs. 88,000/-., however, in the charge sheet at serial No. 10 under the head of expenditure during the check period, expenditure has been assessed as Rs.17,000/- which is because of mathematical error. In view of above discussion this court is of opinion that prosecution has proved total cultivation C C No.08/05 79/122 expenses of Rs.88,000/- w.e.f 1984 to 2000, thus expenditure of accused will increase by Rs.71,000/-.
168 Thus, prosecution has proved that accused had incurred a total expenditure on him as well as on his family members for an amount of Rs.6,92,953/- instead of an amount of Rs.5,91,953/-during the check period, as shown in the chargesheet.
DETAILS OF ASSETS ACQUIRED BY ACCUSED IN HIS OWN NAME AS WELL AS HIS FAMILY MEMBERS 169 Prosecution from the statement of PW 1Vinod Kumar Sharma and PW34 Sh. S C Bhalla coupled with Ex PW1/E-1 to E-8 (D-9 & D-34) has proved that accused had spent an amount of Rs.2,00,000/- on the construction of a plot of 150 sq. yards bearing house No.170 Durgapuri Extension in the name of his wife, Smt. Bimlesh during 1980 to 1986. Accused in his statement U/s 313 Cr PC has denied it (Q-5). It is argued by Ld. Defence Counsel that cost of construction of house No.170 Durgapuri Extension, is wrongly included because this house was constructed prior to check period. Accused has produced DW13 Daley Singh, Head Clerk, MCD Assessment and Collection Department, Shahdara Zone who has proved Ex DW13/A, according to him on 18.12.85, survey of that property was conducted and rateable value of the same was fixed at Rs.6,990/- from 1.4.85. He has further deposed that whatever constructed structure was found at the site the same has been mentioned on the reverse side of Ex. DW13/A. In his cross examination he has deposed that initially house tax of this property was Rs.46/- in the year 1979, thereafter rateable value of the C C No.08/05 80/122 property was enhanced to Rs.6,990/- and house tax was assessed on this rateable value w.e.f. 1.4.85. Rateable value was enhanced because of addition of construction. Relevant portion of his examination in chief, in this regard is as under:
"
I have brought the summoned record of original file of the house tax of the property bearing No.170 ( Old No.1449/77-A) Durga Puri Extension Shahdara Delhi-93. On 18.12.85 the survey of said property was conducted by Assistant Assessment and Collector vide his report Ex DW13/A. In the year 1985 the ratable value of the said property was valued at Rs.6990/- levied from 1.4.1985. The house tax was assessed at the said property before the date of survey.
At the time of survey whatever constructed structure was found at the site, the same has been mentioned on the reverse side of Ex DW13/A which is encircled as at point X wherein the value of the entire construction has been mentioned. Vide notice dated 25.12.85 the owner of the said property was asked to pay the house tax for the year 1985-86 . The notice is Ex DW13/B. No objection against the said notice was filed by the house owner , the ratable value was fixed at the rate of Rs.6990/- wef 1.4.85."
170 In his cross examination he has stated as follows:
"The survey in respect of the aforesaid property bearing No.170 Durga Puri Extension Shahdara was conducted on 4.12.1985 by the Surveyor of MCD Department North Zone Shahdara. As per the report Ex DW13/A . The said property was assessed vide Ex DW13/A i e assessment order dated 1.4.85 and the same was duly assessed by Assistant Accessors and Collector on 18.12.85. The column No.4 contains the details i e Present Renovation and changes- i e two room, one kitchen , one store , Varandah and gallary on ground floor , three room one kitchen ,Varandah and gallary on first floor. Initially house tax was fixed at Rs.46/- in the year 1979 thereafter thereafter ratable C C No.08/05 81/122 of the property was enhanced to Rs.6990/- and the house tax was assessed on this ratable value wef 1.4.85. Ratable value was enhanced because of the enhancement of rate and enhancement/ addition of construction. The property at the time of survey was self occupied . I have been shown a notice dated 22.01.93 which is Ex DW13/DX having the same ratable value i e Rs.6990/- . The receipt Ex DW13/D is in respect of year 1980-81 and the house tax for the year 1980-81 calculated as Rs.46/- was paid vide the said receipt. It is correct if the property is let out the house tax shall be charged at enhance rates. Vol the ratable value shall remain same."
171 I have also gone through the Survey Report Ex DW13/A. On the back of it description of the old as well as addition is mentioned. On the ground floor there is addition of one room, 2 latrines, one store and passage is mentioned. On the first floor, additions of two rooms, bathroom, latrine and two kitchen is also mentioned. On the ground floor one tenant O P Sharma is shown at a rate of Rs.100/- per month. Accused has also proved the receipt of house tax paid by him for this property for the year 1980-81 which is Ex DW13/D. According to which he had paid a house tax of Rs.46/- only. He has also produced house tax bill Ex DW13/C . According to which total house tax of Rs.276/- was demanded for the year 1979-80 to 1984-85. An amount of Rs.993/- was demanded for the year 1985-86 and an amount of Rs.828/- was demanded for the year 1986-87, thus a total amount of Rs.2,097/- was demanded. Accused had paid an amount of Rs.2,051/- after availing a benefit of Rs. 46/- on account of payment before due date. It proves beyond reasonable doubt that house tax upto the year 1984-85 was Rs.46/- only, thereafter house tax was increased to Rs.993/- which shows that there must be additional construction. In these circumstances C C No.08/05 82/122 accused is not entitled for the benefit of Rs.2,00,000/- on the ground that house No.170 Durgapuri Extension, Shahdara was constructed prior to the check period.
172 Prosecution from the statement of PW1 Vinod Kumar Sharma, PW14 Ramesh Vashisht Advocate and PW31 Sh.Inderjeet Singh coupled with Ex PW1/E-9 to E-12 (D-10) has proved that accused had spent an amount of Rs.1,10,000/- during the check period for purchasing a plot of 50 sq. yards in Khasra No.467 Durgapuri Extension for constructing a house. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-6). 173 Prosecution from the statement of PW1 Vinod Kumar Sharma, coupled with Ex PW1/E-13 to E-20 (D-11) has proved that accused had acquired a plot of 100 sq. yards in the name of his wife Smt. Bimlesh on 12.2.92 in sum of Rs.1,65,000/- in Khasra No.472, Durgapuri Extension, Delhi. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-7).
174 Prosecution from the statement of PW1 Vinod Kumar Sharma and PW32 Sh. Bhim Singh coupled with Ex PW1/E-21 to E- 24 (D-12) has proved that accused had acquired a plot of 100 sq. yards in his own name bearing plot No.4/A Shanti Nagar, Delhi during the check period, in consideration of Rs.65,000/-. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-8). 175 Prosecution from the statement of PW1 Vinod Kumar Sharma coupled with Ex PW1/E-25 to E-31 (D-13) has proved that accused had acquired a plot of 100 sq. yards in the name of his wife Smt. Bimlesh on 27.10.95 in Shanti Nagar, Delhi in consideration of Rs.60,000/-. Accused in his statement U/s 313 Cr PC has admitted it C C No.08/05 83/122 as correct. (Q-9).
176 Prosecution from the statement of PW1 Vinod Kumar Sharma and PW23 Sh. Ved Prakash coupled with Ex PW1/E-29 to E-31 (D-14) has proved that accused had acquired a plot of 200 sq. yards in the name of his wife Smt. Bimlesh on 18.4.90 in consideration of Rs.1,25,000/-. Accused in his statement U/s 313 Cr PC has denied it as incorrect and clarified that his wife Bimlesh had purchased this plot jointly with Prem Pal and paid only 50% of the consideration amount. (Q-10). Prosecution has considered the assets acquired by accused as well as his family members in this case. Morever, Smt. Bimlesh, wife of accused, was a housewife having no independent source of income to purchase this plot even in sum of Rs.62,500/-. Actually accused has purchased this plot in the name of his wife. However, it is proved on the file that this plot was purchased in the name of Prem Pal and Bimlesh thus, explanation of the accused to the extent that his wife had paid half consideration amount of Rs.62,500/- only is acceptable, therefore, accused is entitle for the benefit of Rs.62,500/- qua this entry. 177 Prosecution from the statement of PW1 Vinod Kumar Sharma and PW8 Sh. Manoj Kumar Gaur coupled with Ex PW1/E- 32 and Ex PW8/A (D-15) has proved that accused had acquired a flat No.201 in Shalimar Bagh Extn. II, Sahibabad UP on 24.12.1988 in his own name, in consideration of Rs.6,25,000/-. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q-11). 178 Prosecution from the statement of PW8 Sh. Manoj Kumar Gaur coupled with Ex PW1/E-33 to E-35 and Ex PW8/A (D-16) has proved that accused had spent an amount of C C No.08/05 84/122 Rs.3,70,000/- for purchasing shop No. S-131 in Gaur Plaza in the year 1999 in the name of his son Vipin Chauhan. . Accused in his statement U/s 313 Cr PC has denied it as incorrect and has not given any clarification as to why it is incorrect. (Q12). 179 It is argued on behalf of accused that amount for purchasing of this shop by DW 22 Jawahar Lal father in law and DW24 Smt Bimlesh, mother of Vipin Chauhan. DW24 Smt Bimlesh has deposed that she had paid an amount of Rs.85,000/- for the purchasing of shop in question in the name of her son out of the amount of Rs.1,25,000/-given to her by her father in the year 1997-
98. 180 DW22 Jawahar Lal has deposed that he has seattled the marriage of his daughter Seema with Vipin Chauhan in Jan 1999 who was pursuing his engineering course from Bangalore . In the month of June 1999 he had spoken to accused Neterpal that now a days there number of unemployed engineer hence it will be better if some shops be purchased for Vipin to secure his future. Thereafter Netrapal had told him that one shop is available in Gaursons Plaza in sum of Rs.3,70,000/-. Neterpal had told him that his wife will contribute Rs.85,0000/- and remaining amount of Rs.2,85,000/- was given by him to Neterpal on 28.7.99 for purchasing the shop. This witness has further deposed that he had prepared a gift deed dated 28.7.99 Ex DW22/A in favour of Vipin Chauhan.
181 I have gone through the Gift Deed Ex DW22/A vide which an amount of Rs.2,85,000/- was allegedly gifted by DW 22 Jawahar Lal to Vipin Chauhan, his prospective son in law on 28.7.99. It also bears attestation/ signatures of notary public however C C No.08/05 85/122 it has not been got inscribed by any Deed Writer. In this gift deed it is mentioned that an amount of Rs.2,85,000/-was given as gift to Vipin Chauhan as cash but it is not mentioned that this amount was given for purchasing a shop .
182 When DW22 Jawhar Lal was so particular in giving the alleged gift amount to his prospective son in law Vipin that executed a gift deed also, he should have given the amount by bank draft or cheque to set at rest all the controversy. It is worth important to mention here that his gift deed was produced by DW22 himself in this Court while this gift deed should be in possession of Vipin Chauhan to whom DW22 allegedly gifted the amount. 183 According to the provision of Income Tax Act Section 56(2).7 any gift more than of Rs.50,000/- is taxable and tax 184 Payment of this shop was given in three installment of Rs.50,000/- 14.9.99 , Rs.85,000/- on 2.8.99 and 2,35,000/- on 2,8,99. ( Ex PW1/E-33 to PW1/E-35) If DW 22 had gifted an amount of Rs.2,85,000/- in lump sum on 28.7.99 then the same should had been paid on the same day or the next date but the alleged amount of Rs.85,000/- and 2,35,000/- on 2.8.99 by two different slips. 185 In view of above discussion it is apparent that this gift deed is a concocted document prepared with the intention to justify the ill gotten money of accused.
186 PW8 Sh. Manoj Kumar, in this regard has specifically deposed that he had received the payment in respect of Shop No.S- 131 Ground Floor Gaur Plaza from Netrapal and had issued receipt of Rs.50,000/-, Rs.85,000/- and Rs.2,35,000/- Ex PW1/E-33 to Ex PW1/E-35 in respect of shop No. S-131 after receiving the payment C C No.08/05 86/122 from accused Netrapal. This witness has been cross examined on behalf of accused Netrapal. In his cross examination this witness has specifically deposed that he has sold this shop to Netrpal and it may be possible that he had obtained receipt in the name of somebody else. He did not know Vipin Chauhan. This witness has categorically deposed that he had struck the deal of this shop with accused Netrapal only. Entire cross examination of this witness on behalf of accused is as under:
"I had sold the shop to Netrapal Siungh accused. I had sold the shop to accused Netrapal. It may be possible that he obtained receipt in thename of somebody else. I do not know Vipin Chauhan. I had met Netrapal at the time of deal with regard to properties struck. Deal was struck off with him alone. We issued receipts of payment either in the name of applicant or somebody else name according to the desire of the purchaser. I do not know from where the accused had arranged the amount of cash payment. It is incorrect to suggest that shop was sold to Vipin Chauhan and payment was made by him. It is incorrect to suggest that I am deposing falsely."
187 Prosecution from the statement of PW1 Vinod Kumar Sharna and PW34 Sh. S C Bhalla coupled with Ex PW1/A and Ex PW1/B (D-2) has proved that accused had acquired various household articles valuing Rs.3,69,176/- during the check period which were observed in his house during the search on 25.4.2000. Accused has claimed that articles valued Rs.97,511/- belong to his son which were received as gift in his marriage, therefore, after giving the benefit of the same, accused was found to acquire household articles worth Rs.2,71,665/-, during the check period.
C C No.08/05 87/122Accused in his statement U/s 313 Cr PC has denied it as incorrect and has not given any clarification as to why it is incorrect. (Q13). 188 It is argued on behalf of accused that father in law of the son of accused had given various articles prior to the date of search for the Sagai Ceremony. Prosecution has allegedly given the benefit of Rs.97,511/- in item No.9 in the detail of assets of accused but in the Observation Memo Ex PW1/A no such entry has been shown. Ld. SPP referring entries No. 33, 34, 43, 52,53, 55, 61, 69 to 74, 86, 92 and 96 argued that benefit qua these entries has been given to accused on account of the gifts received from the father in law of his son.
189 In view of above discussion there is no merit in this argument. Accused has been duly given benefit of the gifts received by him from the father in law of his son.
190 Prosecution from the statement of PW1 Vinod Kumar Sharma and PW3 Sh.Sushil Kumar and PW38 Sh. Ram Mehar coupled with Ex PW1/C and Ex PW 3/B(D-3 & D-5) has proved that cash to the tune of Rs.2,35,930/- and Rs.72,400/- were recovered in cash from the possession of accused, during the search. Accused in his statement U/s 313 Cr PC has denied it as incorrect and has not given any clarification as to why it is incorrect. (Q14). 191 Ld. Defence Counsel argued that Rs.72,400/- had been recovered from the search of premises No.114, Durgapuri Extension which was in possession of Ram Mehar. Prosecution has not produced any evidence to prove that the alleged amount was ever paid by accused Netrapal to Ram Mehar or it belonged to Netrapal.
C C No.08/05 88/122It is correct that this amount was recovered from the premises which was the then occupied by Ram Mehar and prosecution has not produced any evidence to connect this amount with accused Netrapal hence accused is entitled for the benefit of Rs.72,400/- in his assets.
192 Prosecution from the statement of PW1 Vinod Kumar Sharma coupled with Ex PW1/B(D-2) has proved that gold jewellery weighing 422 gram was observed value of which was assessed at Rs.1,85,680/- @ Rs.440/-, however, accused has claimed that gold jewellery weighing 200 grams was either ancestral or gifted to him , therefore, benefit of the same was given to accused and value of the remaining jewellery was assessed at Rs.97,680/- during the search. Accused in his statement U/s 313 Cr PC has denied it as incorrect and has not given any clarification as to why it is incorrect. (Q15).
193 Ld. Defence Counsel referring the statement of DW8 Ranjit Singh, father in law of accused and DW24 Smt. Bimlesh wife of accused argued that the entire gold and silver jewellery was given to the wife of accused by her father Sh. Ranjit Singh, therefore, accused is entitled for the benefit of Rs.97,680/-. Out of the 422 gram gold jewellery benefit of 200 gram jewllery was given to the accused by the IO as deposed by him in his statement. IO has also deposed that at that time accused had not claimed any other benefit qua the jewellery therefore he had got assessed the cost of gold jewellery of 222 gram at the rate of 440 per gram and assessed the total value of the same as Rs.97,680/- in these circumstances, accused is not entitled for any benefit qua this entry.
C C No.08/05 89/122194 Prosecution from the statement of PW2 Rajbir Singh coupled with Ex P39/1 to P41/1 , PW7 Ramesh Chander coupled with Ex PW7/A, PW19 Jog Raj, PW20 Vijender Singh, PW28 Ganga Ram, PW39 Sh. Sher Singh Bisht, PW40 Charanjeet Singh, PW41 Sh. Gulshan Kumar ADJ coupled with Ex PW41/A to Ex PW41/D(D-18) has proved that accused had advanced an amount of Rs.6,50,000/- and Rs.34,000/- to M/s Bisht Saree Centre through its proprietor Sher Singh Bisht, during the check period. Accused in his statement U/s 313 Cr PC has denied it as incorrect and has not given any clarification as to why it is incorrect. (Q16 and Q17). 195 Ld Defence counsel argued that Sher Singh Bhist has appeared in the witness box as PW39 and has not supported the case of prosecution at all. He has deposed that Neterpal used to run committee and he had used about 1,50,000/- to 2,00,000/- committee of Neterpal and had returned that money . He has denied of taking of Rs. 6 to 7 lac from Neterpal .
196 I have carefully gone through the statement of PW39 Sher Singh he has admitted that CBI had seized diary / note book Ex PW7/B to F from his shop . He has admitted that his statement U/S 164 Cr P C was recorded and admitted his signatures on the same which is Ex PW41/B. He has specifically admitted that he had made his statement Ex PW41/B voluntarily before the Magistrate. Relevant deposition in cross examination is as under :
"CBI team had visited my house and shop somewhere about 2000. I do not remember their name. They might be 4/5 persons. They had interrogated me. They had seized dairies Ex.C C No.08/05 90/122
PW7/B, C,D,E and F from my shop. Whatever CBI had seized from me were the above mentioned dairies however number of dairy I do not remember. CBI had asked me whetheer Neterpal his share in the shop/building. I had told CBI that Neteerpal Singh has no share in my shop. CBI had checked all the books of my shop. CBI had also asked me if I had taken some money from Neterpal Singh. I disclosed to CBI that Neterpal Singh used to run committees and I had used about 1.50 lacs to 2.00 lac of the committee of Neterpal. I also told CBI that I had returned this money to Neterpal. It is incorrect to suggest that Neterpal was not running any committee and I never used money of his committees as stated above by me. CBI had told that they have information that I have taken 6 to 7 lacs rupees from Neteerpal Singh. I told CBI that their information is wrong and I have not taken 6/7 lacs rupees from Neterpal Singh. Nothing else had been asked by CBI to me. My statement was recorded by the CBI in my house. CBI had once call me at their office but I do not remember date month and year. I was not again called by the CBI in their office. I do not remember whether CBI had called somewhere else. I used to maintain account with regard to running of my business. I had not borrowed money from anyone for running my busienss. I had deposed before CBI that I had taken Rs. 8.5 lac has loan from Neterpal when I was threated to be hanged up and down in Lal Quilla. Actually I had not borrowed Rs. 8.5 lac from Neterpal. I had made entries with regard to using of 1.5 to 2 lacs of committee of Neterpal in the dairies.
At this stage witness has been shown daires Ex. PW7/B to F. After seeing dairy Ex. PW7/C the witness states that page no. 35 there is an entry in the name of Neterpal pertaining to 30.2.96 and above is name "50" is written. This 50 reflects as Rs. 50,000/-. It is also mentioned against the name of Neterpal 3.5 which meant the date only and not Rs. 3.5 lacs. It is incorrect to suggest that 50 is not showing Rs. 50,000/-. I do not remember whether the besides going to CBI office once and besides the visit of CBI at my shop /house I had gone somewhere else or not. Now I do not remember the date month and years when I had appeared before a C C No.08/05 91/122 Magistrate for recording of my statement. Now, I do not remember whether I had gone myself to the Court for giving my statement or CBI had taken me. I must have gone to the Court for about a year or so after the recording of statement by the CBI at my r esidence. Magistrate had interrogated/made inquiries from me in his chamber at the time of recording of my statement. I had not told the Magistrate that I had borrowed Rs. 8.5 from the accused. I had signed my statement recorded by the Magistrate. Now I do not remember whether in that statement fact of borrowing of Rs. 8.5 lac by me from Neterpal was mentioned or not. Now I do not remember whether CBI officer was present in the Court not when I had gone to the Court to make my statement. I had not taken my I card to the Court to show I am the Sher Singh. Now I do not remember what I had deposed the Magistrate.
At this stage Ld. SPP made a request for re examine the witness to confronted him with the dairies.
Request allowed.
It is correct that below the figure "50"
infront of Neterpal figure 3.5 00 has been written and in front of it dt. 30.2.96 is written. It is also correct that under this figure "1" is written and after a "," ( comma) dated 29.4.96 has been written. It is also correct that at on the reverse of page No.24, Ex. PW7/D there are two entries against the name of Neterpal of figure "50" each having dated 15.11.91 and 1.11 written against both these entries however both these entries have been struck off and these entries must be about Rs. 50,000/- each which were taken by me and return to Neteerpal. There is r eference at page No.75 of payment of installment of 4820 but it was about the share of the committee in Ex. PW7/E in front of name of Neterpal. ( Objected to as re examine is not opened the fill the lacuna left in examination in chief) Objection over rule as the controversy/ambiguity with regard to entry in the dairy arise during the cross examination. Similarly there is entry of 4978 against the name of Neterpal but this is also with regard to payment of installment of committee. In Ex. PW7/B at page No.36, 138 and 139 there are entries of regular account of Neterpal Singh with regard to purchase of cloth of Neterpal C C No.08/05 92/122 Singh from my shop.
XXXXXX on behalf of accused.
3.5 00 at page no. 35 of Ex. PW7/C is not the with regard of paise/money. The entries of 50 on This page and two entries 50 each in other page referred by me above were with regard to Rs. 50,000/- each obtained/used by me from the committees of Neterpal. I used to organized these committee."
197 Sh Gulshan Kumar Ld M M who has recorded the statement of Sher Singh Bhist U/S 164 Cr P C has appeared in the witness box as PW41 and deposed that witness has voluntarily made his statement without any coercion, pressure or threat and he had correctly recorded his statement . Relevant portion of his statement is as under:
" Statement is Ex PW41/B ( Two sheets ) . I had correctly recorded the statement of witness as deposed by him after satisfying myself that he was making statement voluntarily without coercion, pressure or force. After recording the statement I have given my certificate in this regard which is Ex PW41/C."
198 I have also gone through the statement of Sher Singh Bhist recorded U/S 164 Cr P C by PW 41 in which he has specifically deposed that he had taken a loan of Rs.8,50,000/- out of which he had paid about Rs.2,00,000/- and he had to pay an amount of Rs.6,50,000/- .
199 I have also gone through the statement of this witness recorded U/S 161 Cr PC by the IO Sh S C Bhalla wherein he has also stated that he had taken a total loan of Rs.8,50,000/- from C C No.08/05 93/122 Neterpal and returned amount of about Rs.2,00,000/- . An amount of Rs.6,50,000/- was a balance towards him. Sh S C Bhalla IO of this case has appeared in the witness box as PW34 and has deposed that he had correctly recorded the statement U/S 161 Cr P C. 200 It is correct that this witness has not supported the case of prosecution on this point .He was declared hostile on the request of prosecutor . Sher Singh Bhist in his statement in this Court has deposed that he knew accused Neterpal Singh since 1990 and had used the money of Neterpal . Wife of accused Smt Bimlesh had appeared in the witness box as DW24 and deposed that she used to purchase cloths from Bhist Saree House of Sher Singh Bhist . Thus it is proved that this witness was having close relation with accused and his family members. In such circumstances, his not supporting the case of prosecution appears to be natural .
201 Hon'ble Supreme Court in similar circumstances has observed that where the Judicial Magistrate who had recorded the statement of witness U/S 164 Cr P C and IO who had recorded the statement of witness U/S 161 Cr PC, have depsoed in the Court that they have recorded the statement correctly then their evidence can be relied upon .
202 It is held as follows in para No.36 Mahesh Vs State of Maharashtra , 2008 III AD SC-365 has held as follows:
" Shri Prabhakar (PW17) Special Judicial Magistrate on 05.04.1988 recorded the C C No.08/05 94/122 statements of PW Nilkanth, PW Laxmibai, PW Archana and PW Rupesh U/S 164 Cr P C . On 06.04.1988, the Special Judicial Magistrate recorded the statements of PW Prakash - the complainant . Copies of statement were placed on record ( Ex1.79, Ext.80, Ext.81, Ext.82, and Ext.83) respectively. The Special Judicial Magistrate denied the suggestion of the defence that he had prepared the statements of the said witnesses on the basis of the statements recorded by the police. PW Prakash, PW Laxmi, and PW Nilkanth could not explain any reason why the Special Judicial Magistrate was interested to record the portion of their statements incorrectly in which they had named the appellant as an author of the crime. The testimony of the Investigating Officer also would not facto give rise to doubt its credibility when the same was not shaken in cross examination and he has no animus against the appellant to frame him in a false case. Merely because Pws-1,2,3 and 15did not support the prosecution case when they were examined in the Court, that would not, in the circumstances, lead to the conclusion that the appellant was innocent. The Investigating Officer and the Special Judicial Mag both have categorically stated that they had correctly recorded the statement of Pws-1,2,3 and 15 U/S 161 Cr P C and Section 164 Cr P C respectively. The testimony of Investigating Officer and Special Judicial Magistrate in no circumstances and for no good reason could be disbelieved and discredited and we, accordingly, accept their evidence its entitely without any hesitation."
203 Hon'ble Supreme Court in a latest authority Bhagwan Dass Vs State ( NCT) of Delhi , AIR 2011 SC-1863, in such circumstances where a witness has turned hostile, has held that his statement given to police can be taken into consideration. Observation of Hon'ble Supreme Court in this regard is as under:
" Criminal P.C (2 of 1974), S. 162(1), Proviso-C C No.08/05 95/122
Evidence Act ( 1 of 1872), S.3- Statement of Police - Hostile witness- Mother of accused stated before police that her son ( the accused ) had told her that he had killed deceased- But, when she was confronted with this statement in Court she resiled from her earlier statement and was declared hostile- Her subsequent denial in Court is not believable because she obviously had afterthoughts and wanted to save her son ( the accused ) from punishment Statement to police can be taken into consideration in view of proviso to S.162(1) Cr P C -It is duty of Court to separate grain from chaff- Maxim "falsus in uno falsus in omnibus" has no application in India."
204 In view of above discussion this Court is of opinin that prosecution has proved beyond reasonable doubt that Sher Singh has taken Rs.6,50,000/-as loan from accused Neterpal Singh.
205 However it is correct that PW 19 Jograj Singh who has deposed in his statement U/s 161 Cr P C that he had taken a total loan of Rs.20,000/- from Neterpal, out of which he has returned Rs.6,000/- and had to pay an amount of Rs.14,000/- to Neterpal , PW 20 Virender who has stated in his statement U/S 161 Cr P C that he had taken a loan of Rs.10,000/- from Neterpal out of which he has paid Rs.2,000/- and had to pay an amount of Rs.8,000/- to Neterpal and PW28 Ganga Ram had stated in his statement U/S 161 C r P C that he had taken a loan of Rs.15,000/- from Neterpal, have turned hostile and has not supported the case of prosecution at all. IO has not got recorded their statement U/s 164 Cr P C . Prosecution has not produced any evidence in support of its case on this point. In these circumstances, accused is entitled for the benefit of Rs.37,000/-
C C No.08/05 96/122qua these witnesses.
206 Ld Defence counsel has also argued that PW 25 Shyam Singh has also turned hostile . He had not taken loan himself but he was arranging loan to other persons known to him from accused Neterpal. Prosecution has produced PW2 ,PW6,PW18, PW22,PW24, PW29, PW36 and PW46 out of whom to some loan was arranged by Shyam Singh from Neterpal but such persons had returned the money by cheque or DD in the name of accused Neterpal which is proved by the prosecution as discussed above in this judgment, hence accused is not entitled for any benefit qua the turning of PW Shyam Singh hostile.
207 Prosecution from the statement of PW1 Vinod Kumar Sharma, PW4 Manohar Lal Arora, PW5 Radhey Shyam, PW10 Sudesh Kumari and PW12 Shioji Ram, PW15 Ravinder Gaur, PW21 Jagpal Singh, PW27 Mahavir Singh coupled with (to be typed from question No.18 of S/A) has proved that accused had invested a total sum of Rs.14,64,555/- in his own name and in the name of his family members in FDRs, NSCs, RIPs, Janpriya Investment during the check period. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q18).
208 Prosecution from the statement of PW10 Sudesh Kumari and PW12 Sheoji Ram and PW26 Dinesh Kumar coupled with documents Ex PW21/A to Ex PW12/N-17, Ex P-23, 24, 35, 36 and Ex PW10/B to Ex PW10/D, Ex PW26/A has proved that accused had a balance of Rs.2,47,718/- in different accounts in his name and in the name of his family members, during the check C C No.08/05 97/122 period. Accused in his statement U/s 313 Cr PC has admitted it as correct. (Q19).
209 From the above discussion it is clear that prosecution has proved total assets of accused at the end of check period of Rs.46,22,048/- instead of Rs.47,93,948/- shown in the chargesheet.
210 From the above discussion prosecution has proved as follows:
i) Assets before the check period Rs.8,79,516.00
ii) Total income during check period Rs.20,69,538.00
iii) Total expenditure '' '' '' Rs.06,92,953.00
iv) Likely savings (income- Expenditure) Rs.13,76,585.00
v) Total assets during check period Rs.46,22,048.00
211 According to the provisions of Section 13 (1) (e) of P C Act, 1988 income derived from Property acquired from unknown source cannot be added to the income of accused. If a particular property is acquired out of the unknown source of income, the income derived thereon cannot be shown as the income of the accused. If a property is acquired from unknown sources of income and the income derived therefrom is a substantial amount if added to the income of accused, it will be difficult to come to the correct conclusion as regards the disproportionate assets.
212 Thus, from the above definition of income given by our C C No.08/05 98/122 Hon'ble Supreme Court GAINS OF GRAFT, CRIME OR IMMORAL SECRETIONS would not be receipt from the known sources of income of a public servant.
213 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceties must yield to realistic appraisal."
214 Prevention of Corruption Act is a Social legislation enacted with a view to curb illegal activities of public servants, hence it should be liberally construed so as to advance its objects. In this regard Our Hon'ble Supreme Court in Ram Singh Vs State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
" Prevention of Corruption Act, 1988- Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused-- Interpretation of Statutes--Particular statutes or provisions-- Penal statute - Social Legislation-- Interpretation of."
215 In view of above discussion prosecution has proved its case beyond reasonable doubts that accused Netrapal was found in possession of disproportionate assets at the end of check period worth Rs. 23,65,947/- ( total assets held by accused at the end of check period {46,22,048} - assets prior to check period [8,79,516] C C No.08/05 99/122 + total savings during the check period [13,76,585] =23,65,947 ) to his known sources of earnings which he could not account for to the satisfaction of this court, therefore, accused Netrapal is held guilty for the offence punishable U/s 13 (2) r/w Sec. 13 (1) (e) of Prevention of Corruption Act, 1988.
216 Ordered accordingly.
Announced in open court ( V K MAHESHWARI ) Dt. 29.08.2012 SPECIAL JUDGE: DELH C C No.08/05 100/122 IN THE COURT OF SH. V K MAHESHWARI :SPECIAL JUDGE; TIS HAZARI DELHI Corruption Case No. 08/05 CBI Vs 1 Sh. Netrapal Singh s/o Sh. Sukhbir Singh, r/o House No.170, Gali No.4, Durgapuri Extension, Shahdara, Delhi-93, Section
Officer (Horticulture ) MCD, Horticulture Department, Delhi Govt.
R.C No. 18(A) /2000/CBI/ACB/ND ORDER ON SENTENCE: 1 Vide separate detailed judgment dated 29.8.2012
accused Netrapal Singh was convicted for the offence punishable U/s 13 (2) r/w Sec. 13 (1) (e) of Prevention of Corruption Act, 1988. 2 Arguments on sentence heard. Ld. Defence counsel has submitted that accused is 62 years old. His wife is 60 years old. She is suffering from diabetes and hypertension. Accused is having one unmarried daughter. He is not the previous convict. He is not involved in any other criminal case. In these circumstances, lenient view may be taken against him.
3 Ld. SPP for CBI, Sh. N Matta argued that as per finding of this court convict Netrapal has been found in possession of disproportionate assets worth Rs. 23,65,947/-, at the end of check period, to his known sources of earnings which he could not C C No.08/05 101/122 account for to the satisfaction of this court. He has not only accumulated huge assets by illegal means but also has tried his best to justify his illegal act by producing fake, fictitious and concocted evidence in this case. Keeping in view the deterrent theory of punishment, he should be awarded maximum punishment and heavy fine may also be imposed on him in terms of the provision of Section 16 of PC Act. Disproportionate assets accumulated by him may be confiscated to the State.
4 Economic offences are more serious and grave than the other criminal offences like murder etc. Hon'ble Supreme Court in State of Gujrat Vs. Mohan Lal Jitamalji Porwal and another AIR 1987 Supreme Court 1321 in this regard, has held as follows:
"Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The community or the State is not a person non-grata whose cause may be treated with disdata. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committee in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with any eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice C C No.08/05 102/122 in an even handed manner without fear of criticism from the quarter which view white colour crime with the permissive eye unmindful of the damage done to the National economy and national interest.
5 Hon'ble Supreme Court in Balkrishna Chhaganlal Soni Vs State of West Bengal (1974) 3 SSC 567 has observed that social and ecnomic offences stood on a graver footing in respect of punishment and if judicial institutions were not to be cynically viewed by the community, the Courts must help the process of conviction."
6 Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime i.e. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against social interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 7 In Sewaka Perumal Vs State of T N AIR 1991 SC 1463 Hon'ble Supreme Court has held as follows:
" Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such C C No.08/05 103/122 serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
8 Prosecution has proved that convict had accumulated disproportionate assets worth Rs. 23,65,947/- to his known sources of earnings, acquisition of which he could not satisfactorily explain to the satisfaction of this court. One of the most effective measure to check the corruption is that corrupt public servants should not be allowed to reap the benefit of the crop of corruption sowed by them using the corrupt means, therefore, the assets worth equivalent to Rs. 23,65,947/- accumulated by the convict by illegal means are hereby forfeited to the State. Convict is directed not to sale, alienate, transfer, mortgage or dispose of such assets which are in his name or in the name of any of his family members, in any manner. He is further directed not to withdraw any amount from such saving bank accounts and not to get encashed FDR/RIP/term deposits/NSCs etc. involved in this case to the effect of Rs.23,65,947/- ( Mirza Iqbal Hussain Vs State of UP AIR 1983 S C-60 AND K Ponnuswamy Vs State of T.N, AIR 2001 Supreme Court 2464).
9 It is correct that convict has produced fake, fictitious and concocted evidence in this court to justify his disproportionate assets to his known sources of income. After considering all the arguments raised in this court and considering the gravity and seriousness of the matter, convict Netrapal is sentenced C C No.08/05 104/122 to undergo four years RI along with a fine of Rs.2,00,000/- (Rs.two lac only) I D one year S I, U/S 13 (2) R/w Section 13(1) (e) of P C Act 1988.
10 Reader of this court is directed to supply a copy of judgment dt. 29.8.2012 and this order on sentence to the convict free of cost. File be consigned to RR.
Announced in open court ( V K MAHESHWARI)
on 3rd September, 2012 SPECIAL JUDGE; DELHI
C C No.08/05 105/122