Delhi District Court
Cbi vs . 1 Darshan Singh, (A-1) on 1 April, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 37/2011
RC 5 (A)/2005/ACU-IV/CBI
U/s 109 IPC & 13(2) r/w 13(1)(e) of PC Act.
Unique case I.D. No.02406R1035692007
CBI Vs. 1 Darshan Singh, (A-1)
Son of late Sh. Atma Singh,
Resident of House No.1162, Sector 33-C,
Chandigarh.
2 Gurmukh Singh, (A-2)
Son of late Sh. Ratan Singh,
Resident of Mohalla Dalchini, Sirhind City,
District Fatehgarh Sahib,
Punjab.
3 Smt. Amar Kaur, (A-3)
Wife of Sh. Darshan Singh,
Resident of House No.1162, Sector 33-C,
Chandigarh.
4 Pradeep Jain, (A-4)
Son of Late Sh. Gowardhan Jain,
Resident of D-962, New Friends Colony,
New Delhi.
Date of Institution : 31.12.2007
Date of framing of charge : 04. 09.2010
Date on which case was received on
Transfer by this Court : 01.11.2011
Date of conclusion of arguments : 25.03.2014
Date of Judgment : 01.04.2014
Memo of Appearance
Ms. Jyotsna Sharma, Learned Sr. PP for CBI.
Sh. Sudhir Pandey, Learned Counsel for Accused Darshan Singh, Amar Kaur
and Pradeep Jain.
Sh. Satish Tamta, Learned Counsel for Accused Gurmukh Singh.
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JUDGMENT
VERSION OF PROSECUTION 1.0 Accused Darshan Singh (A-1) had joined as Section Officer (Electrical) under Executive Engineer (Electrical and Mechanical Division), Agartala, Tripura on 05.10.1960 and after serving in various capacities, he was absorbed in PWD Department of Arunachal Pradesh. He rose to a high position and eventually was given additional charge of Chief Engineer (Power), Arunachal Pradesh on 31.08.1992.
1.1 His wife Amar Kaur (A-3) did not have any income and she was merely a house wife. Sh. Gurmukh Singh (A-2) happens to be brother of Smt. Amar Kaur. He retired from Indian Army in the year 1987.
1.2 A-1 while posted and functioning as Chief Engineer, Department of Power, Arunachal Pradesh amassed assets disproportionate to the known sources of his income and of his family members. He awarded contracts worth several crores to various parties and received huge commission from the contractors.
1.3 Accused Pradeep Jain (A-4), a private person, acted as conduit for A-1 in his such illegal activities. A-1 acquired movable as well as immovable assets in his name as well as in the name of companies M/s K R A Estates Pvt. Ltd and M/s Badridham Tea Company Pvt. Ltd. A-2 & A-3 actively and intentionally aided A-1 as these two companies i.e. M/s K.R.A. Estates Pvt. Ltd. and M/s Badridham Tea Company Pvt. Ltd. had been created on papers for the sole purpose of siphoning off ill gotten money of A-1. Accused Pradeep Jain (A-4) also knowingly and intentionally aided A-1 and helped him in amassing assets and also concealing the same.
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1.4 Bank accounts in the names of M/s Arunachal Traders, M/s North
East Trade and Industries, M/s Sarah and Company, M/s Lotus Equipments Pvt. Ltd. and M/s Power Equipments were also opened and huge cash deposits were made therein and all such accounts were in fact being operated by A-1 and money was transferred from these accounts in a very clever manner.
1.5 FIR i.e. RC No. 5(A)/2005/CBI/ACU-IV was registered on 29.09.2005 for amassing assets disproportionate to the known sources of income.
1.6 Comprehensive investigation was carried out and after thorough investigation, CBI came up with the conclusion that A-1 and his family members were found in possession of disproportionate assets to the tune of Rs. 68,67,146/-. Keeping in mind the acquisitive tendency, check period was taken from 01.01.1991 to 31.12.1997. It will also not be out of place to mention here that A-1 was suspended by the Government of Arunachal Pradesh on 21.07.1995 and was dismissed on 30.12.1997.
1.7 Since according to CBI, two companies i.e. to M/s K.R.A. Estates and M/s Badridham Tea Company Ltd had been dishonestly created on papers by A-1 in which he pumped in his ill gotten money, while calculating the disproportionate assets, CBI considered their assets, income and expenses. CBI also considered the transactions related to Darshan Singh HUF and also the acquisitive activities related to Ms. Kamaljeet Kaur (daughter of accused Darshan Singh and Amar Kaur).
1.8 According to CBI, during the investigation, accused could not satisfactorily explain about the acquisition of numerous assets. Following chart would explain the extent of disproportionate assets:-
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Amount in Rs.
A Assets at the beginning of check period i. e. 1.1.91 12,03,938
B Assets at the end of check period i.e. 31.12.97 1,09,57,840
C Assets acquired during the check period 97,53,902
D Expenditure during the check period 9,28,640
E Total assets and expenses of he check period 1,06,82,542
F Income during the check period 38,15,396
G Extent of disproportionate Assets (E - F) 68,67,146
COGNIZANCE AND CHARGES
2.0 Charge sheet was filed in the court on 31.12.2007 and cognizance
was taken by the court on 20.02.2008 and all the accused were accordingly ordered to be summoned.
2.1 A-1 was charged u/s 13 (1)(e) r/w 13 (2) of Prevention of Corruption Act. He pleaded not guilty and claimed trial. All the remaining three accused persons were charged u/s 109 IPC r/w 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act and they also pleaded not guilty and claimed trial.
PROSECUTION WITNESSES 3.0 Prosecution was directed to adduce its evidence and has examined 62 witnesses.
3.1 Witnesses can be classified as under:-
(i) Witnesses related to M/s Badri Dham Tea Company:-
PW6 Sh. Upender Kapoor (official of M/s Swani Motors Pvt. Ltd. Ludhiana). PW12 Sh. Pyara Singh (Reader to Tehsildar, Kharar, Mohali). PW13 Sh. Mit Singh Benipal.
PW14 Ms. Gurmel Kaur (Seller) PW22 Sh. Ramesh Lal Raj (office of Sub-Registrar Kharar, Mohali, Punjab). PW29 Sh. Moi Angu (alleged share-holder) PW40 Sh. Satpal Singh (seller of land) PW48 Sh. Tapak Tali (alleged share-holder).
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(ii) Witnesses related to M/s K.R.A. Estates Pvt. Ltd.
PW1 Jagdish Kumar Arora (seller of H. No. 1162, Sector-33C, Chandigarh) PW2 Smt. Jasbir Kaur (seller of SCO,Site No. 165, Sector -34C, Chandigarh) PW3Smt. Manjeet Kaur (seller of SCO, 165, Sector -34C, Chandigarh). PW25 Sh. Lal Singh (alleged share-holder). PW26 Sh. Gurcharan Singh (alleged share-holder). PW37 Sh. Gurmukh Singh (office of Sub-Registrar, UT, Chandigarh). PW46 Smt. Harjeet Kaur (alleged share-holder).
(iii) Bank Officials:
PW4 Sh. Tejbir Singh Chawla (official from Bank of Punjab). PW5 Sh. V.K. Jain (official from Bank of India). PW21 Sh. S.P. Singh (official from Haryana State Cooperative Apex Bank). PW23 Sh. Gurcharan Singh (official from Oriental Bank of Commerce). PW30 Sh. Jiban Krishan Sarkar (official from State Bank of India). PW33 Sh. H. Subhash Chandra Shetty (official from Vijaya Bank). PW34 Sh. Gurcharan Singh (official from State Bank of India). PW36 Sh. Ravi Kumar Kapoor (official from Bank of India). PW42 Sh. R.K. Joshi (official from Punjab National Bank). PW43 Sh. Babukutty Zacharia (official from Central Bank of India). PW55 Sh. Surjit Singh (official from Punjab & Sind Bank). PW60 Sh. Anant Ram (official from Central Bank of India).
(iv) Witnesses related to expenditure:
PW16 Sh. Paras Ram Pal (for proving Telephone expenses). PW17 Sh. Budh Ram (for proving electricity charges). PW20 Sh. Jagjit Singh (for proving electricity charges). PW31 Mrs. Simran Jeet Kaur (for proving School-fee). PW32 Sh. Ashwani Lakhanpal (for proving School-fee)
(v) Witnesses related to acquisition:
PW7 Sh. S.D.Gakhar (for proving purchase of Refrigerator). PW8 Sh. Avtar Singh (for proving sale deed in favour of Darshan Singh). PW9 Sh. Baljeet Singh (Registry Clerk, Sub Registrar, Fatehgarh Sahib). PW10 Sh. Om Prakash (for proving sale deed in favour of Gurmukh Singh). PW11 Sh. Arvind Kumar (Tehsildar, Fatehgarh Sahib). PW15 Sh. Rajender Kumar (for proving receipts of Sunny Scooty). PW18 Ms. Dipika Tiwari (purchaser of flat from Darshan Singh). PW19 Sh. O.P. Mehta (for proving acquisition of flat in Connaught Place) PW24 Sh. Anil Kumar (for proving LIC Policies). PW28 Sh. Tayam Siram (seller of Maruti Car to Darshan Singh). PW35 Sh. Vishal Gupta (for proving purchase of Aqua Guard)
(vi) General:
PW41 Sh. Pawan Kumar Soni (Chartered Accountant). PW44 Sh. Bhagwan Singh (acquaintance of Darshan Singh) PW49 Sh. Suresh Chandra Verma (Chartered Accountant). PW54 Sh. Dinesh Kumar Aggarwalla (Assistant of S.C. Verma, CA).
CC No. 37/2011 CBI Vs. Darshan Singh etc 5 of 95 PW58 Sh. Sanjeev Jain (search witness).
PW59 Sh. Mahender Singh (search witness).
(vii) Investigation-related officials:-
PW27 Sh. K. Ananda Rao (Registrar of Companies). PW38 Sh. Sher Singh (official from Sub Registrar Mehrauli, Delhi). PW39 Sh. Chappy Rajneesh (official from SDO, Estate Office, Chandigarh). PW45 Sh. Rajesh Kumar Gupta (Valuer).
PW47 Sh. V.N. Jadhav (official from Sub Registrar, Aurangabad). PW50 Sh. Rokom Bado (for proving salary details of Darshan Singh). PW51 Sh. Narayan Das (official from Income Tax Department). PW52 Sh. Tapadir Dutta (official from Income Tax Department). PW53 Sh. Javed Siraj (search team member).
PW56 Sh. K.P. Balachandran (official, Govt of Arunachal Pradesh). PW57 Sh. Ini Lego (for proving salary details of Darshan Singh). PW61 Sh. M.K.Tiwari (Part investigating officer). PW62 Inspector A.K. Saini (Investigating officer).
STATEMENTS OF ACCUSED AND THEIR DEFENCE
4.0 All the accused in their respective statements u/s 313 Cr.P.C. pleaded innocence.
4.1 A-1 and his wife A-3 claimed that they had been falsely implicated. They both also desired to file written statements u/s 313 (5) Cr. PC. However, they did not file the same.
4.2 A-2, in his statement u/s 313 Cr. P.C., claimed that he had been falsely implicated by CBI. According to him, his father died in 1991 and left all his properties in his name. He also claimed that he came into contact of one Mr. Verma in Dibrugarh who asked him to sign some blank papers and he accordingly signed some blank papers and denied some of the documents pertaining to M/s K.R.A. Estates and M/s Badridham Tea Company. He, however, admitted his signatures on relevant sale deeds pertaining to such companies. According to him, these companies were of Mr. Verma only and Mr. Verma was their whole sole incharge. He also claimed that he had invested a sum of Rs. 5 lacs in M/s Badridham Tea Company.
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4.3 A-4 Pradeep Jain also claimed that he had been falsely implicated
and no case was made out against him. He also desired to lead evidence in his defence.
4.4 A-1 and A-3 examined DW1 Sh. Raj Kumar Aggarwala (Income Tax Practitioner from Dibrugarh), DW4 Sh. Surender Singh (for proving income of Amar Kaur), DW5 Sh. Ranjit Singh (for proving income of Amar Kaur), DW6 Sh. Pratap Singh (for showing construction cost with respect to Kothi No. 1162/33 C and SCO 165/34 C, Chandigarh), DW7 Sh. Rajbir Singh (for showing construction cost of Kothi No. 1162/33 C, Chandigarh). A-1 Darshan Singh and A-2 Gurmukh Singh also entered into witness box u/s 315 Cr.P.C. and got themselves examined as DW2 and DW3 respectively.
4.5 No other evidence in defence was brought on record.
4.6 It would be also important to mention here that A-1 and his wife A-3 also wanted to prove certain record. CBI was also directed to provide necessary assistance to the court and CBI ascertained the correctness of some of the official documents and these were accordingly exhibited as under:-
Sl. No. Particulars of documents Dated Exhibit No. 1 Notice of demand 01.07.96 Ex.DW2/A 2 Assessment order 01.07.96 Ex.DW2/B 3 Notice of demand 27.02.2001 Ex.DW2/C 4 Assessment order 27.02.2001 Ex.DW2/D 5 Notice of demand 27.02.2001 Ex.DW2/E 6 Assessment order 27.02.2001 Ex.DW2/F 7 Assessment order 31.03.97 Ex.DW2/G 8 Notice of demand 01.07.96 Ex.DW2/H 9 Assessment order 01.07.96 Ex.DW2/I 10 Assessment order 17.7.96 Ex.DW2/J CC No. 37/2011 CBI Vs. Darshan Singh etc 7 of 95 4.7 One copy of order dated 14.02.2013 passed by Guwahati High Court, Ita Nagar branch in Writ Petition No. 36 (AP) of 2007 was also placed on record by A-1.
4.8 Besides aforesaid documents, defence had also requested CBI to place on record Enquiry Report No. CMRH/INQ/1/96 dated 04.08.1997 pertaining to accused Darshan Singh and also testimony of five department witnesses and one defence witness Ashok Kumar. Certified copies thereof were obtained from the office of Chief Secretary, Government of Arunachal Pradesh, Ita Nagar and CBI placed on record the aforesaid Enquiry Report as well as the statements of witnesses.
RIVAL CONTENTIONS 5.0 Ms. Jyotsna Sharma, Ld. PP for CBI has vehemently contended that prosecution has been able to prove its case to the hilt. She has argued that A-2 Gurmukh Singh and A-3 Amar Kaur did not have any money or knowledge to carry on any such business related to M/s Badridham Tea Company and M/s K.R.A. Estates Pvt. Ltd. According to her, A-1 had amassed illegal worth by resorting to illegal means and devised novel method of concealing such income. He took help of his two closest possible relatives and made them paper- directors. According to her, both these companies were shown in existence on papers only and the investment was made in the aforesaid two companies with the help of ill gotten money of A-1 and simultaneously it was portrayed as if the investment in the form of shares had been made by some genuine persons. However, the comprehensive investigation revealed that the alleged persons, who had applied for the shares had actually never applied for any share and if the veil was to be lifted, it would become very much apparent that these shell companies had actually received money from A-1 and none else.
CC No. 37/2011 CBI Vs. Darshan Singh etc 8 of 95 5.1 According to Ms. Sharma, A-1 pumped in of his ill gotten money in
said two companies with the active aid and assistance of A-2 and A-3 and A-1 was able to amass such huge worth through businessman i.e. A-4 Pradeep Jain who acted as conduit for him and, therefore, there is clear and active participation of A-1, A-3 and A-4 and they all intentionally aided and abetted A-1.
5.2 Sh. Satish Tamta, Ld. Defence counsel for A-2 has contended that A-2 Gurmukh Singh has been falsely implicated. He has also pointed out that there is defect and infirmity in the framing of charges. He has not disputed that A-2 was director in both the companies M/s Badridham Tea Company and M/s K.R.A. Estates Pvt. Ltd but supplemented that A-2 had not committed any illegality and was not part of any conspiracy and did not abet commission of any offence in any manner whatsoever. It has been argued that even otherwise the relationship between A-1 and A-2 was very delicate in nature and Sh. Verma, Chartered Accountant was calling the shots and A-2 signed wherever he was asked by Sh. Verma in this regard. It has also been argued that documents have not been proved in accordance with law and CBI did not collect any evidence in order to ascertain as to what was the income and assets of Gurmukh Singh prior to check period. It has also been argued that both the companies were working and operational and even the investigation officer admitted so and that A-2 has been falsely implicated merely due to the fact that he was close relative of A-1.
5.3 Sh. Sudhir Pandey, Ld. Defence counsel for A-1 and A-3 has contended that no case is made out against both of them. According to him, for the purposes of computation of income, assets and expenses in such type of matters related to disproportionate assets, CBI was totally unjustified in taking into consideration the assets, income and expenditure of said two companies M/s Badridham Tea Company and M/s K.R.A. Estates Pvt. Ltd with which A-1 had no concern of any nature whatsoever. It has also been argued that various important aspects related to income have been ignored and the construction cost CC No. 37/2011 CBI Vs. Darshan Singh etc 9 of 95 has been shown excessive and exaggerated. It has been argued that prosecution has deliberately held back the material evidence with ulterior motive.
5.4 Sh. Pandey has also defended A-4 Pradeep Jain and it has been asserted by him that that there is not even an iota of evidence on record to prove his complicity in the matter.
5.5 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
EVALUATION OF EVIDENCE 6.0 Possession of disproportionate assets itself constitutes an offence of criminal misconduct and essentially such offence is based on the unstated presumption that such assets must have been acquired by corrupt or illegal means or by abuse of official position. No further proof or mens rea is required to be established. Offence of being found in possession of disproportionate assets is, therefore, unusual and peculiar in nature. Ingredients of the offence under Section 13(1) (e) of the 1988 Act are as under:-
(i) the accused is a public servant;
(ii) resources or properties found in his possession are disproportionate to his known sources of income.
6.1 After primary onus is discharged by the prosecution, it is for the accused to account satisfactorily for the assets in question and to establish that such assets were in complete synchronization with his income and not beyond. Undeniably, legal burden of proof placed on the accused is not as onerous as that of the prosecution. However, it is not just throwing some doubt on the prosecution version. The legislature has deliberately used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". It CC No. 37/2011 CBI Vs. Darshan Singh etc 10 of 95 implies that the accused has to satisfy the court that his explanation is worthy of acceptance. Word 'satisfactorily' means something which is plausible, credible and reasonable. Thus explanation coming from the side of accused has to be a forceful one. Reference be made to State of MP Vs. Awadh Kishore Gupta 2004(1) SCC 691, wherein it has been observed that legislature has advisedly used the expression "satisfactorily account" and 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. Thus such burden has to be discharged in a satisfactory manner.
6.2 It may look as if such procedure was contrary to the principles of criminal jurisprudence where the burden of proof is always on the prosecution and never shifts to the accused. However, in view of Section 106 of Evidence Act in matters "especially within the knowledge of the accused", such procedure has to be adopted. The prosecution cannot be expected to know the private affairs of a public servant related to acquisition of assets and source thereof and, therefore, it is for accused to explain about the possession.
6.3 There are invariably three important aspects for consideration i.e. acquisition of assets, expenditure, income and additional income in such type of matters related to disproportionate assets. I would be dealing with these aspects one by one. However, before that it is very necessary and crucial to evaluate as to whether said two companies i.e. M/s Badridham Tea Company and M/s K.R.A. Estates Pvt. Ltd can be said to be of A-1or not. Because, once it is so established, only then the acquisition, income and expenditure related to these two companies can be fastened upon A-1.
6.4 According to Ms. Sharma, invariably any public servant chooses his close confidents in whom he can confide and in whose name(s), he can make benami investment. Close relatives are evidently the safest most harbour for CC No. 37/2011 CBI Vs. Darshan Singh etc 11 of 95 concealing such ill-gotten properties/ money of any public servant. In the present case, wife and brother-in-law of accused Darshan Singh obliged him by becoming paper directors and thereby they both facilitated commission of offence. As per defence, whereas, such companies were very much functional and accused Darshan Singh had no concern with those and his such relatives cannot be dubbed as accused(s) merely because of such relationship.
6.5 In the case of P. NALLAMMAL VS. STATE 1999 CRI LJ 3967 SC, a question arose before the Apex Court as to whether a non-public servant is liable to be prosecuted along with public servant for the offence under Section 109, I.P.C. read with Section 13(1)(e) of the Act and the answer was in affirmative holding that if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter 6.6 Abetment" is defined in Section 107 of the Penal Code as under:
Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
6.7 Sec 107 IPC speaks of aiding, abetting, conspiracy or intention which can only be gathered from the bunch of circumstances. There will not be always direct, specific and tangible evidence for proving abetment and conspiracy. Burden of showing that a particular acquisition is benami in nature lies on the person asserting so. In the present case, it is prosecution which has come up with such assertion. However, such burden can be discharged by prosecution by showing circumstances fairly raising an inference to such effect.
CC No. 37/2011 CBI Vs. Darshan Singh etc 12 of 95 In the case of Krishnanand Agnihotri Vs. State of MP AIR 1977 SC 796, it has been very aptly observed that the essence of benami is the intention of the party and not, unoften, such intention is shrouded in a thick veil which cannot be pierced through easily.
WHETHER M/S K.R.A. ESTATE PVT. LTD. AND M/S BADRI DHAM TEA COMPANY WERE ACTUALLY CREATED BY ACCUSED DARSHAN SINGH TO LAUNDER HIS ILL-GOTTEN WEALTH.
7.0 Indubitably, it's a case related to acquiring of assets disproportionate to the income from known sources. A-1 Darshan Singh is the lone public servant in the present matter. Check period is from 01.01.1991 to 31.10.1997 and as per the charge-sheet, such check period was decided on the basis of acquisitive tendency on the part of accused Darshan Singh. According to the allegations levelled in the charge-sheet, Darshan Singh had acquired various movable & immovable assets in his name and the name of Darshan Singh HUF and in the names of the aforesaid two companies. Naturally, therefore, while calculating various movable and immovable assets, income and expenditure, prosecution kept in mind all the related entries related to aforesaid two companies also.
7.1 Sh. Pandey has, at the very outset, contended that CBI was wholly unjustified in taking in stock any asset, expenditure or income related to those two alien companies. According to him, accused Darshan Singh was neither a director nor a shareholder in those two companies and for totally inexplicable reasons, acquisition of assets of those two companies has also been fastened upon accused Darshan Singh. On the contrary, Ms. Sharma has stressed that these two companies were actually owned and controlled by accused Darshan Singh who even went to the extent of falsifying the records and tried to mislead everyone by portraying that some genuine members had applied for shares of those two companies but when comprehensive investigation was carried out, it stood revealed that such alleged members had rather never applied for allotment CC No. 37/2011 CBI Vs. Darshan Singh etc 13 of 95 of any share and their names were reflected merely on the papers. She has contended that since they had never applied for shares, there was no occasion for them to have paid any money for buying the shares. According to her, money was actually poured in by accused Darshan Singh who had amassed illegal wealth by misusing his office. He took active help of his chartered accountant, who created companies on papers, and of his two closest relatives/confidants i.e. Amar Kaur (wife) and Gurmukh Singh (brother-in-law) and they were put at the helm of the affairs of those two companies but on papers only. It has also been argued that their stand before the Court also indicates that they did not know even a bit about those two companies. Thus, they both had intentionally aided and abetted the commission of offence in question.
7.2 It will be important to mention that prosecution has examined such chartered accountant i.e. PW49 Sh. Suresh Chand Verma. His father was an Income Tax Advocate who expired in 1995. He has also identified accused Darshan Singh, his wife as well as Gurmukh Singh. He deposed that he was having his separate firm of chartered accountancy in the name of M/s Suresh C. Verma & Company and his father was dealing and handling IT matters of Darshan Singh, his HUF and other family members and after the death of his father, he started handling all such matters. He has also deposed that auditor's reports with respect to M/s K.R.A. Estates and for M/s Badri Dham Tea Company for various period had been prepared by his office.
7.3 It is not in dispute that M/s Badridham Tea Company P. Ltd. was a company registered with Office of Registrar of Companies, North-Eastern Region. Its registration number is 002388. Similarly, M/s K.R.A. Estates is also registered with aforesaid Office of Registrar of Companies and is having registration number as 003453.
7.4 I have also very minutely seen various documents related to aforesaid companies. PW27 K. Ananda Rao was posted as Registrar of CC No. 37/2011 CBI Vs. Darshan Singh etc 14 of 95 Companies, North-Eastern Region in 2007 and he has graced the witness box and has proved his letter Ex. PW27/A (D-44). He had sent the related information related to said two companies to CBI. Copy of Certificate of Incorporation of M/s Badridham Tea Company has been proved as Ex. PW27/B (part of D-44), Memorandum of Association as Ex. PW27/C and Articles of Association as Ex. PW27/D. It is also not in dispute that initially, one Sh. Sawar Mal Modi and his six brothers were the directors of said company. Particulars thereof are found contained in Ex. PW27/F (D-44). Sh. Sawar Mal Modi and his one brother Narain Prasad Modi were holding 31 equity shares apiece. Such company was incorporated in 1985.
7.5 Certificate of Incorporation of M/s K.R.A. Estate has been proved as Ex. PW49/H. Memorandum of Association has been proved as Ex. PW49/I (D-46). This company was incorporated in the year 1990.
7.6 PW49 Sh. Verma has also deposed that Darshan Singh and Gurmukh Singh had approached his father and requested him to buy companies on urgent basis for their business. As regards M/s Badridham Tea Company, even as per Mr. Verma, it was owned by one of his clients i.e. late Sh. Sanwar Mal Modi and his family and there was no business in aforesaid company and they wanted to dispose it of or wind it up and it was eventually acquired by Darshan Singh, Amar Kaur and Gurmukh Singh. Though M/s Badridham Tea Company was incorporated in the year 1985 yet it is admitted even by the defence that it was subsequently acquired by accused Gurmukh Singh and accused Amar Kaur.
7.7 Said company kept on submitting balance-sheets and Annual Returns for the various period with the Registrar of Companies from time to time and certified copies thereof were forwarded to CBI by PW27 Sh. K. Ananda Rao vide his letter Ex. PW27/G. There is no dispute that record produced before the Court in this regard is as per the record available in the office of ROC and is duly CC No. 37/2011 CBI Vs. Darshan Singh etc 15 of 95 certified.
7.8 There are some basic differences between private company and public limited company. These differences relate to minimum paid up capital, minimum number of members, transferability of shares, number of Directors, statutory meeting and other special privileges. Private company may have two Directors to manage the affairs of the company and the maximum number of members/share-holders in a private company is restricted to 50. There is also complete restriction of transferability of shares and any such private company cannot invite subscription of shares from general public. However, that does mean that any such private limited company is not obliged to maintain the record. The details of the share holdings of said two companies is as under:
List of shareholders of M/s K.R.A. Estate Pvt. Ltd.
S. Name of share holder Share held Amount per share Total investment No. 1 Amar Kaur 6000 Rs. 10 Rs. 60,000.00 2 Bibi Kesar Kaur 5100 Rs. 10 Rs. 51,000.00 3 Gurmukh Singh 5100 Rs. 10 Rs. 51,000.00 4 M/s R.P. Singh & Other 11820 Rs. 10 Rs. 1,18,200.00 5 M/s Gujral & Others 7000 Rs. 10 Rs. 70,000.00 6 Lal Singh & Others 10400 Rs. 10 Rs. 1,04,000.00 7 Kanwaljit Kaur 9000 Rs. 10 Rs. 90,000.00 8 Bachani Kaur 5000 Rs. 10 Rs. 50,000.00 9 Jaswant Singh 5000 Rs. 10 Rs. 50,000.00 10 Harjeet Kaur 5000 Rs. 10 Rs. 50,000.00 11 Hardeep Singh 5000 Rs. 10 Rs. 50,000.00 12 Sher Singh 5000 Rs. 10 Rs. 50,000.00 13 Gurmeet Kaur 5000 Rs. 10 Rs. 50,000.00 14 Kuldeep Singh 5000 Rs. 10 Rs. 50,000.00 15 Gursharan Kaur 5000 Rs. 10 Rs. 50,000.00 16 Lal Singh 5000 Rs. 10 Rs. 50,000.00 17 Phupender Singh 5000 Rs. 10 Rs. 50,000.00 18 Pinki Kaur 5000 Rs. 10 Rs. 50,000.00 19 Kakar Singh 5000 Rs. 10 Rs. 50,000.00 CC No. 37/2011 CBI Vs. Darshan Singh etc 16 of 95 20 Mohender Singh 5000 Rs. 10 Rs. 50,000.00 21 Gurmeet Kaur 5000 Rs. 10 Rs. 50,000.00 22 Balwinder Singh 5000 Rs. 10 Rs. 50,000.00 23 Meva Singh 5000 Rs. 10 Rs. 50,000.00 24 Surjeet Kaur 5000 Rs. 10 Rs. 50,000.00 25 Sukhbinder Kaur 5000 Rs. 10 Rs. 50,000.00 26 Onkar Singh 5000 Rs. 10 Rs. 50,000.00 27 Pritpal Singh 3780 Rs. 10 Rs. 37,800.00 28 Birender Singh 6800 Rs. 10 Rs. 68,000.00 Total Rs. 16,00,000.00 List of shareholders of M/s Badri Dham Tea Company Pvt. Ltd.
S. Name of share holder Share held Amount per share Total investment No. 1 Sanwar Mal Modi 31 Rs. 100 Rs. 3,100.00 2 Narayan Prasad Modi 31 Rs. 100 Rs. 3,100.00 3 Nabum Rebia 500 Rs. 100 Rs. 50,000.00 4 Tana Tanya 500 Rs. 100 Rs. 50,000.00 5 Nabam Epa 500 Rs. 100 Rs. 50,000.00 6 Tem Rakap 500 Rs. 100 Rs. 50,000.00 7 Sanjoy Tassar 500 Rs. 100 Rs. 50,000.00 8 Byabang Jagat 500 Rs. 100 Rs. 50,000.00 9 Nibia Tare 500 Rs. 100 Rs. 50,000.00 10 Nabum Damsap 500 Rs. 100 Rs. 50,000.00 11 Yapa Kamki 500 Rs. 100 Rs. 50,000.00 12 Pokba Kamki 500 Rs. 100 Rs. 50,000.00 13 Nyato Kamki 500 Rs. 100 Rs. 50,000.00 14 Moi Angu 500 Rs. 100 Rs. 50,000.00 15 Karken Dini 500 Rs. 100 Rs. 50,000.00 16 Tajir Tali 500 Rs. 100 Rs. 50,000.00 17 Chigam Angu 500 Rs. 100 Rs. 50,000.00 18 Tapak Tali 200 Rs. 100 Rs. 20,000.00 19 Goetar Tali 300 Rs. 100 Rs. 30,000.00 Total Rs. 8,00,000.00 7.9 As far as M/s K.R.A Estates Pvt. Ltd. is concerned, it is perceptible that accused Gurmukh Singh and Bibi Kesar Kaur (mother of accused Darshan CC No. 37/2011 CBI Vs. Darshan Singh etc 17 of 95 Singh) were the initials Directors. Reference in this regard be made to Ex. PW49/K (D-46). They were appointed Directors on 19.07.1990 and accused Amar Kaur was inducted as Director the following day. I have also minutely observed the address details of the share-holders in said company and it is noticed that most of the share-holders are from Garun, District Ropar, Punjab. Accused Darshan Singh also hails from said village only. Few other share- holders are from Mandi Govind Garh, Punjab and District Pathgarh, Punjab. Ms. Kanwaljeet Kaur (daughter of accused Darshan Singh) was also having stake in the company as share-holder. One Sh. Lal Singh is also shown as share-holder and his name is mentioned at serial no. 16. Interestingly, he happens to be the real younger brother of accused Darshan Singh who remained posted as Engineer in Satluj Yamuna Canal Project. He, however, point-blank denied having purchased any share in any such company of accused Gurmukh Singh. He categorically deposed that he did not have any connection with M/s K.R.A. Estates Pvt. Ltd. It was suggested to him that he was share-holder in said company and was deposing falsely because of strained relationship between him and accused Darshan Singh and under the influence of CBI. However, defence has not elaborated any further. No material has been placed on record which may even remotely indicate that there was any sort of animosity between said witness and accused persons. He is a retired government official and it has not been explained by defence as to why this witness would depose falsely under influence of CBI more so when he is a close relative of accused. Similarly, PW26 Gurcharan Singh happens to be cousin brother of accused Darshan Singh. He has also deposed that he never purchased any share in any of the company of accused Gurmukh Singh and did not know anything about M/s K.R.A. Estates Pvt. Ltd. and had no connection with any such company. Similar type of bald suggestion was given to him. Again, defence has utterly failed to bring on record any material which may show that relationship between said witness and accused persons was sour. To the similar extent is the testimony of PW46 Harjeet Kaur who deposed that she did not know anything about any such company and neither she nor her husband Jaswant Singh nor her son Hardeep CC No. 37/2011 CBI Vs. Darshan Singh etc 18 of 95 Singh had purchased any share in such company. Undoubtedly, in her cross- examination, she claimed that she was a housewife and she did not know much about purchase of shares. However, defence cannot be permitted to dig out any advantage out of that as defence has failed to elucidate as to why she would depose falsely.
7.10 There is no dispute that accused Amar Kaur and Gurmukh Singh were the Directors of said company. I have seen the stand taken by them in their respective statements u/s 313 Cr.P.C. Accused Amar Kaur was asked about M/s K.R.A. Estates Pvt. Ltd. and M/s Badri Dham Tea Company and in response to Question Number 97, she merely claimed that it was matter of record. When she was asked as to why PW25, PW26 and PW28 had deposed that they had not acquired any share in M/s K.R.A. Estates Pvt. Ltd. She merely claimed that they had deposed falsely. Her various answers also indicate that she is trying to pass on the buck on to Mr. S.C. Verma, Chartered Accountant. When she was asked about the various documents and Annual Returns, details of share-holding pertaining to M/s K.R.A. Estates Pvt. Ltd., she claimed that these were matter of record. Her such answer was recorded against Question Number 79.
7.11 It will be also important to note here that defence had examined DW1 Sh. Raj Kumar Aggarwal. He happens to be an associate of Sh. R.C. Verma, Advocate (father of PW49 S.C. Verma) and he also admitted in his examination-in-chief itself that Gurmukh Singh and Bibi Kesar Kaur were the initial Directors and later on Amar Kaur became Director in said company. He also claimed that balance-sheets were prepared by their office. He also made reference to the gross income of said company for various assessment years and in his cross-examination he also categorically deposed that there was no significant business in M/s K.R.A. Estates Pvt. Ltd. and there was only rental income from the property situated in Chandigarh. Thus, statement of defence witness seems detrimental to defence only. No one would seek any share in any such company where there is no business or no income from business.
CC No. 37/2011 CBI Vs. Darshan Singh etc 19 of 95 7.12 As regards M/s Badri Dham Tea Company, which was subsequently acquired, accused Amar Kaur and accused Gurmukh Singh became its Directors in said company only on 11.09.1993. It has also come on record that it was virtually a dead company and the previous Directors were having total share-holding of 62 shares but after the aforesaid company was acquired by concerned accused(s), the share-holding rose from 62 to 8062. Thus, 8000 shares were allotted in no time by the company after induction of Amar Kaur & Gurmukh Singh as Directors. Such Return, showing increased shareholding for the first time, was filed when accused Amar Kaur and Gurmukh Singh had already acquired the same. As regards share-holders of M/s Badri Dham Tea Company, most of the share-holders are from Arunachal Pradesh. I have seen the testimony of PW29 Moi Angu. He was doing contract work in PWD in Ita Nagar and he deposed that he never applied or purchased any share in M/s Badri Dham Tea Company. His name is found mentioned at serial no. 14 and he had allegedly purchased 500 shares having face value of Rs. 100/- each. PW48 Sh. Tapak Tali was also in the business of supply of electric goods. He also knew accused Darshan Singh and he also deposed that neither he himself nor any of his family members had ever applied for any share in M/s Badri Dham Tea Company. He was shown the list of share-holding wherein names of his three relatives were also mentioned as share-holders:
7.13 He reiterated that neither he nor his such relatives had ever applied for any share. He deposed that perhaps accused Darshan Singh had mentioned those names as he knew him and his family members. He also deposed that since they had never applied for any share, there was no occasion for making any payment for purchasing such shares. Again, except for giving bald suggestion, no material has been placed on record by defence to drive home the point that there was some reason or motive for PW48 Tapak Tali to have deposed falsely against accused. It has not been explained by the defence as to why an acquaintance of Darshan Singh would depose falsely against him.
CC No. 37/2011 CBI Vs. Darshan Singh etc 20 of 95 7.14 Undoubtedly, all the share-holders have not been produced before the Court. However, entire record must be with the accused persons. Accused Gurmukh Singh and accused Amar Kaur were the Directors. They must be maintaining and keeping the entire record with them. They could have very easily placed the same on record. After all, if anyone has to apply for share, request cannot be verbal in nature. There has to be an application in writing.
There has to be some identity proof of applicant as well. There has to be corresponding payment either in cash or by way of cheque/draft. If at all, such share-holders had, in fact, applied for the shares, both the aforesaid Directors i.e. accused Gurmukh Singh and Amar Kaur would have certainly placed on record any such application or payment proof. Nothing of that sort was even attempted. Since such material, which evidently could have been with these directors, has been withheld, it has to be necessarily inferred that there was no application at all from any such share-holder.
7.15 Share-holding is substantial. I have already noticed above that the total investment, by way of share-holding in M/s K.R.A. Estates Pvt. Ltd. was to the tune of Rs. 16 lacs and in M/s Badri Dham Tea Company, it was to the tune of Rs. 8 lacs. All of a sudden, share-holding increased in M/s Badri Dham Tea Company once said company was acquired by accused Gurmukh Singh and Amar Kaur. Similarly, qua share-holding in M/s K.R.A. Estates Pvt. Ltd., apparently names of alleged share-holders have been created on papers only. No material has been placed on record by the aforesaid two companies, allegedly owned by accused Gurmukh Singh and Amar Kaur, which may even remotely indicate that share-holders were actual and genuine share-holders.
7.16 I have also carefully gone through the testimony of PW49 S.C. Verma as well as his cross-examination and nothing material has surfaced even in cross-examination which may create any doubt in the case projected and set up by the prosecution. His testimony clearly indicates that accused Darshan Singh had also approached them for acquiring companies for their business.
CC No. 37/2011 CBI Vs. Darshan Singh etc 21 of 95 Darshan Singh was a public servant. He knew that he could not have shown his own name on papers for the purposes of running such companies and he, therefore, took help of his Chartered Accountant and got created and acquired Companies in the names of his two said co-accused. If he had no concern with respect to these two companies, there was no reason for him to have approached Mr. Verma for acquiring Companies for business purpose. Accused Gurmukh Singh has also entered into witness box as DW3 and he admitted that he was Director of M/s K.R.A. Estates Pvt. Ltd. & M/s Badri Dham Tea Company. Surprisingly, he does not know as to what was his own share-holding in those companies. He does not have any knowledge about Companies Act either. He also does not know as to what was the minimum share-holding for a Director. He, in his cross-examination, claimed that he had received Rs. 10-12 lacs as inheritance from his father and received Rs. 1 lac at the time of his retirement from Army but fact remains that no proof in this regard was furnished by him. He also deposed that he did not understand the contents of ITR or balance-sheet and he presumed the same to be correct and he used to give documents to his CA as per his demand. Thus as per these two directors, It was Mr. Verma who was controlling these companies. However, it is factually wrong. All the assets, acquired through these companies, are with accused and not with Mr. Verma. Nothing of that sort was either suggested to PW 49 Sh. S.C. Verma son of Sh. R.C. Verma. R.C. Verma died in 1995 and these assets still continue to be with accused. Moreover, merely because, returns were prepared by Chartered Accountant, such CA cannot be said to be the owners of these companies.
7.17 I have already noticed above that as per PW49 Sh. Verma, accused Darshan Singh also used to go there and it becomes very much apparent that from the material placed on record by prosecution and in light of my aforesaid discussion that these two companies are nothing but shell companies used for kite flying. The testimony of the alleged share-holders also confirms the same and, therefore, the acquisition of assets by these two companies has to be assumed as acquisition of accused Darshan Singh. It has CC No. 37/2011 CBI Vs. Darshan Singh etc 22 of 95 to be, therefore, necessarily inferred that the investment amount for their shares had also come from none other than accused Darshan Singh.
INCOME OF DARSHAN SINGH AND HIS FAMILY MEMBERS DURING CHECK PERIOD 01.01.1991 TO 31.12.1997.
8.0 Following is the chart related to income of Darshan Singh and his family members during check period 01.01.1991 to 31.12.1997:-
Sl. Description Amount as Amount as Relevant Remarks, if any N. per charge per defence PW (Defence contention) sheet (in (in Rs) Rs) Sh. Darshan Singh 1 Net Salary 631244 PW50 Benefit of TA/ DA not PW57 given as per defence 2 Interest on PPF A/c 146737 146737 PW30 No contention raised No.30, SBI, Ita Nagar by defence.
3 Interest on SB A/c No. 24510 24510 PW30 No contention raised 1109 SBI, Ita Nagar by defence. 4 Interest on 9 FDRs/ 35028 35028 PW4 Disputed STDRs (9-11-96 to 11.9.97) premature encashed Interest on 19 FDRs/ 94107 STDRs for Rs. 50,000/- Interest on one FDR/ 5800 STDRs for Rs. 40,000/- 5 Interest on SB A/c No. 3506 3506 PW36 No contention raised 20797 (1.1.91 to by defence. 12.7.96) 6 Interest on SB A/c No. 10701 10701 PW62 No contention raised 1754/18, Central Bank by defence. of India, Ita Nagar (4.5.92 to 4.6.96) 7 Income from sale of 175000 175000 PW18 No contention raised Flat No.759, Ground PW38 by defence. Floor, Vikas Kunj, PW62 Vikaspuri, New Delhi 8 Interest on 10 41589 41589 PW30 No contention raised CC No. 37/2011 CBI Vs. Darshan Singh etc 23 of 95 FDRs/STDRs issued by defence. by SBI Ita Nagar (21.4.97 to 31.12.97) 9 Income from sale 290000 440000 PW47 Consideration amount proceeds of plot No. of Rs.1.50 lacs 7,8 & 9 CTS at regarding sale deed Aurangabad no. 3881 dt. 28.10.97 not considered by CBI Ms. Kamaljeet Kaur 10 Interest income of Ms. 5547 5547 PW30 No contention raised Kamaljit Kaur of SB by defence. A/c No. 18/1443 Smt. Amar Kaur 11 PPF A/c No. 10/1645 100 100 PW34 No contention raised (29.2.96 to 31.12.97) by defence. 12 SB A/c No.1, 9072 PW21 Not proved. Haryana State Cooperative Apex Bank Chandigarh (9.12.94 to 17.5.95) 13 SB A/c No. 498, 5197 PW21 Disputed by defence Haryana State Cooperative Apex Bank, Chandigarh (22.5.95 to 31.12.97) 14 Income from house 132000 336000 PW52 As per defence, rate property from 1.4.95 of rent was Rs.5000 to 31.12.97 (33 per month and the months @ Rs.4000 property was on rent per month as all along for the entire mentioned in ITR) check period i.e. for 84 months. 15 Agricultural income PW52 As per defence, the F.Y. 1995-96 28230 entire income has not been considered F.Y. 1996-97 11960 F.Y. 1997-98 7236 (for 1.4.97 to 31.12.97) 15A Additional Income of PW52 A per defence, various Amar Kaur as per other additional ITRs Income of Amar Kaur as per ITRs has not been considered. Darshan Singh (HUF) 16 PPF 10/1690, SBI, 7200 7200 PW34 No contention made Chandigarh (24.5.96 by defence. CC No. 37/2011 CBI Vs. Darshan Singh etc 24 of 95 to 31.12.97) 17 SB A/c No.157, 23146 23146 PW21 No contention made Haryana State by defence. Cooperative Apex Bank, Chandigarh (28.3.94 to 31.12.97) 18 SB A/c No. 352, 5043 5043 PW23 No contention made Oriental Bank of by defence. Commence, Fatehgarh Sahib (20.1.96 to 31.12.97) 19 SB A/c No.5149, 5179 5179 PW33 No contention made Vijaya Bank, Ita Nagar by defence. (5.6.96 to 26.12.97) 20 SB A/c No.1508, 7324 7324 PW33 No contention made Vijaya Bank, Ita Nagar by defence. (1.1.91 to 31.12.97) 21 Rental income on 819337 1298760 Downplayed by CBI account of Flat No.4- as per defence C, 13th Floor, Vijaya contention. Building, 17 Bara Khamba Road, N. Delhi (1.10.92 to 31.12.97) M/s K. R. A. Estate Pvt. Ltd. 22 Profit on sale of share 11806 PW49 Downplayed by CBI as per ITR (A.Y. as per defence 1992-93) contention. 23 Profit on sale of share 15780 PW49 Downplayed by CBI as per ITR (A.Y. PW52 as per defence 1993-94) contention. 24 Rent from house 52500 PW49 Downplayed by CBI property as per ITR PW52 as per defence (A.Y. 1994-95) contention. 25 Rent from house 210000 PW49 Downplayed by CBI property as per ITR as per defence (A.Y. 1995-96) contention. 26 Rent from house 210000 PW49 Downplayed by CBI property as per ITR as per defence (A.Y. 1996-97) contention. 27 Rent from house 210000 PW49 Downplayed by CBI property as per ITR as per defence (A.Y. 1997-98) contention. 28 Rent from house 210000 PW49 Downplayed by CBI property as per ITR 70000 PW52 as per defence (A.Y. 1998-99) (Lease contention. Rent) CC No. 37/2011 CBI Vs. Darshan Singh etc 25 of 95 M/s Badridham Tea company Pvt. Ltd. 29 Business income as 14396 14396 PW41 Defence does not per ITR (A.Y. 1996-97) PW49 dispute though income not proved by Agricultural income as CBI. per ITR (A.Y.1996-97) 94702 94702 30 Business income as 5141 5141 PW41 Downplayed by CBI per ITR (A.Y. 1997-98) PW49 as per defence PW52 contention. Agricultural income as per ITR (A.Y.1997-98) 80968 80968 31 Business income as 15906 15906 PW41 Downplayed by CBI per ITR (A.Y. 1998-99) PW49 as per defence PW52 contention. Agricultural income as per ITR (A.Y.1998-99) 86145 86145 32 Income in shape of 1200 PW62 Not proved by CBI. dividend against share of Tai Industries Ltd. 33 Income in shape of 665 Not proved by CBI. interest and dividend against share of Anil Special Steel Industries Ltd., Jaipur 34 Income in shape of 1050 PW62 Not proved by CBI. interest and dividend against share of Balurghat Technologies Ltd 35 Income in shape of 334 Not proved by CBI. interest and dividend against share of Titagarh Industries ltd. Total 3815396 8.1 It will be interesting to mention here that defence has not raised
much eye brows with respect to most of the items/heads falling under income.
Needless to say that it is the bounden duty of prosecution to prove its case. Naturally, in order to find out whether the assets are disproportionate or not to the known sources of income, prosecution is under obligation to prove all the heads of income as well. Normally, defence, in such type of matters, does not raise much dispute with respect to the income aspect of the case but that does not mean that prosecution is absolved of its duty. I would, however, supplement CC No. 37/2011 CBI Vs. Darshan Singh etc 26 of 95 that in case for one reason or the other, any particular item related to income is not proved by the prosecution, then, in order to ensure that there is no injustice to the defence, court has no other option but to presume any such item/head of income as proved. Fact remains that in case defence wants to assert that such income head has been deliberately down-played, it can always substantiate such assertion by adducing necessary evidence.
8.2 As regards item no.1, the net salary of accused Darshan Singh has been claimed as Rs.6,31,244/-.
8.3 Reference be made to testimony of PW50 Sh. Rokombado who was working in the Department of Power and his duty was to prepare the pay bills of the staff. He is the one who had prepared the details regarding the pay drawn by accused Darshan Singh for the period 01.01.1991 to February 1993 while Darshan Singh was posted as SE (Electrical). According to him, total salary comes to Rs.127352. Chart has been proved as Ex. PW50/A (D-74). I have seen this chart which takes care of DA as well. Net salary has been calculated after necessary deduction related to GPF etc. PW57 Sh. Ini Lego has proved the salary details for the subsequent period. These details are as under:-
Sl. No. Period Salary
1 March 93 to December 93 Rs. 65,592/-
2 January 94 to December 94 Rs. 79,675/-
3 January 95 to January 96 Rs. 1,01,706/-
4 February 96 to December 96 Rs. 1,07,026/-
5 January 97 to December 97 Rs. 1,20,594/-
Total Rs. 4,74,593/-
8.4 Thus the total salary during the check period comes to Rs.
6,01,945/-.
8.5 Investigating Agency, as is usually experienced by the court, has
not thrown any light about the mismatch in the figure. However, in order to CC No. 37/2011 CBI Vs. Darshan Singh etc 27 of 95 eliminate any element of prejudice to the defence, I hold the net salary drawn by accused Darshan Singh during the check period as Rs. 6,31,244/-.
8.6 I would like to supplement here that during the course of arguments, a bald suggestion was made by defence that no benefit related to TA and DA were taken into consideration. As far as DA is concerned, it is categorically mentioned in the details proved before the court. As regards TA, I would only like to comment that travelling allowance is more in the shape of reimbursement and it presupposes the expenditure incurred on the part of any such government servant. Reference in this regard be also made to R. Janki Raman Vs. State (2006) 1 SCC 697 wherein it has been categorically observed that travelling allowance is ordinarily meant to compensate the concerned official for his out of pocket expenses incidental to the journeys performed by him for official tours and is not a source of income though it is open to the government servant to lead any evidence to show that he had saved something out of the travelling allowance and then it is for the Court to accept or not whether there was any such actual saving. Accused has not elaborated in any manner whatsoever as to what expenditure was made by him in this regard and what was the reimbursement. Defence cannot extract and benefit by bald and unsubstantiated assertion.
8.7 As regards item no. 2, 3, 8 and 10, reference be made to the testimony of PW30 Sh. J.K. Sarkar. He was posted as AGM, SBI, Ita Nagar, Arunachal Pradesh in 2007 and has proved the relevant documents. Various documents with respect to the PPF account no.30 of accused Darshan Singh, saving bank passbooks of Darshan Singh related to SB account no. 14/1109 and various vouchers related to 10 STRs have been proved by the prosecution. It, however, seems that no document related to interest income earned by Ms. Kamaljeet Kaur pertaining to SB account No. 18/1443 has been placed on record except for her passbook Ex. PW30/E (D-80). However, no contention has been raised by the defence with respect to aforesaid heads of income.
CC No. 37/2011 CBI Vs. Darshan Singh etc 28 of 95 8.8 As regards item no.4, reference be made to the testimony of PW4 Sh. Tejvir Singh Chawla, official from Bank of Punjab, Sector 35 C, Chandigarh. He had handed over the relevant documents to CBI and has proved documents Ex. PW4/A to PW4/D which are contained in D-30 to D-33. As per aforesaid item no.4, the accused was having 29 FDRs having principal amount of Rs.50000/- each. These matured during the check period itself and the total interest earned is found to be Rs. 1,34,935/-. Such head, therefore, stands proved.
8.9 As regards item no. 5, 6 and 7 as well, there is no argument as such coming from the side of defence. I have seen the testimony of related witnesses and also the documents proved by them. PW36 Ravi Kumar Kapoor has proved the requisite statements related to SB account no.20797 of accused Darshan Singh which he had with Bank of India, main branch, Chandigarh. Such statement has been proved as Ex. PW36/B and there is no dispute regarding the accrual of interest from time to time. As regards item no.6, the concerned official from Central Bank of India has not graced the witness box and prosecution has attempted to prove the relevant entry through investigating officer i.e. Inspector A.K. Saini which was not the right approach. However, since defence has not raised any contention, the aforesaid interest income under item no.6 also stands proved. As regards income from sale of flat situated in Vikas Kunj, Vikas Puri, New Delhi, again the aforesaid fact stands proved in light of testimony of PW18 Ms. Dipika Tiwari who deposed that she had purchased the flat from accused Darshan Singh in 1996 for a sum of Rs.1.75 lacs.
8.10 As regards item no. 9, I have seen seizure memo D-7. It talks about seizing three different sale deeds i.e. Sale Deed No. 3879 dated 28.10.1997 for Rs. 1,12,000/-; Sale Deed No. 3880 dated 28.10.1997 for Rs. 1,99,000/- and Sale Deed No. 3881 dated 28.10.1997 for Rs. 1,50,000/. However, only two sale deeds have been placed on record.
CC No. 37/2011 CBI Vs. Darshan Singh etc 29 of 95 8.11 Learned Prosecutor has stated that accused had three plots i.e. Plot No. 7, Plot No. 8 & Plot No. 9 in CTS, Aurangabad and all three aforesaid plots were sold vide two sale deeds only i.e. Sale Deed No. 3879 & Sale Deed No. 3880 and, therefore, it really does not matter even if third sale deed has not been placed before the Court. She also states that perhaps such sale deed had nothing to do with the present matter or present parties and if accused had any grudge or special knowledge, he could have brought the requisite material on record to demonstrate that he had any other property besides the aforesaid three plots.
8.12 Undoubtedly, all the sale deeds are of same date and CBI should not have abruptly withheld Sale Deed No. 3881. No explanation has come from the side of IO either as to how sale deed no. 3881 dated 28.10.1997 was not pertaining to the present matter. According to defence, sale consideration with respect to two sale deeds landed in saving account no. 1209 of Kanwaljeet Kaur as maintained with Haryana State Cooperative Apex Bank, Chandigarh and the sale consideration with respect to third sale deed landed in saving bank account no. 157 maintained by Darshan Singh HUF with the same bank of Chandigarh.
8.13 CBI has taken into account the income earned through interest accrual with respect to the aforesaid SB Account No. 157 but it is not explained as to why 'statement of account' of such bank account has not been placed on record. I have seen testimony of PW21 S.P. Singh who has proved the related documents pertaining to said branch of Chandigarh and during recording of his testimony, learned Prosecutor had made a request for deferring the examination as some of the relevant documents were not on record. However, such request was declined. Be that as it may, even till date prosecution has not thrown any light with respect to the 'statement of account' pertaining to SB Account No. 157 of Darshan Singh HUF with Haryana State Cooperative Apex Bank, Chandigarh.
CC No. 37/2011 CBI Vs. Darshan Singh etc 30 of 95 8.14 I have also seen the testimony of PW47 V.N. Jadhav who was posted as Sub-Registrar with the concerned Circle of Aurangabad. He has also proved only two sale deeds no. 3879 & 3880. He has not made any reference about sale deed no. 3881. Interestingly, accused also did not ask any question from him regarding such third sale deed.
8.15 Accused Darshan Singh admits that he owned three properties in that area i.e. Plot No. 7, Plot No. 8 & Plot No. 9. I have seen Sale Deed No. 3879 & 3880 and their respective site plans and it becomes very much evident that all the three plots i.e. Plot No. 7, 8 & 9, owned by accused, were sold vide the aforesaid two sale deeds. Now, if accused wants me to believe that he owned any other property or plot then the burden is on him to first show that he owned any such property or plot and thereafter it is also required for him to show that he sold any such other property during the check period and thereby entitled to take the benefit of the sale proceeds as forming part of his income. Merely because the statement of account has not been placed on record by the prosecution and merely because the third sale deed i.e. Sale Deed No. 3881 has not been made part of the challan, it cannot be automatically inferred that accused owned any other property/plot. After all the accused himself could have also produced the relevant record or could have summoned the official from the office of concerned Sub-Registrar. He could have also examined his own banker. Nothing of that sort was done by him. Defence is found talking in air and trying to dig out some advantage out of non-submission of third sale deed by CBI. Such bald assertion coming from the side of defence is liable to be rejected out-rightly.
8.16 As regards item no.11 and 16, reference be made to the testimony of PW34 Gurcharan Singh concerned official from SBI, Sector 7 branch, Chandigarh. He has proved the relevant documents i.e. Ex. PW34/A to PW34/C and has also deposed about the accrual of interest. No argument has been raised with respect to the aforesaid heads of income even from the side of CC No. 37/2011 CBI Vs. Darshan Singh etc 31 of 95 defence.
8.17 As regards item no. 12, Sh. Pandey has drawn my attention towards the fact that no statement related to said account i.e. SB Account No. 1 of accused Amar Kaur with Haryana State Cooperative Apex Bank, Chandigarh has been placed on record. Suffice it to say that even in the absence of such statement of account or any evidence on that score, I assume the interest income as Rs. 9,072/- so that no prejudice is caused to the defence.
8.18 As regards Item No. 13, according to Sh. Pandey, prosecution has not bothered to show as to how there was income under aforesaid head related to SB Account No. 448 maintained by accused Amar Kaur with Haryana State Cooperative Apex Bank, Chandigarh. In this regard, it would be useful to see statement of account as contained in D-39. Such statement of account has been proved as Ex. PW21/C. PW21 Sh. S.P. Singh has graced the witness box and has proved the statement of account. Prosecution should have extracted the details regarding such income during the trial stage itself and now, at such belated stage, Court has no option but to itself see the statement minutely. When such statement was scrutinized, it was found that there were interest accruals on various dates starting from 30.06.1995 till 27.12.1997. These are of Rs. 137+499+366+282+243+290+ 799+969+885+521+206. Total comes to Rs. 4,297/-. It is agonizing to note that job, which was meant for prosecution, has been left to the Court. Prosecution should have proved during the trial as regards the various interests accruals and the manner of arriving at such magical figure of Rs. 5,197/-. It was not difficult job but prosecution took the matter very casually and did not prove the entries in the desired manner. Fact, however, remains that aforesaid entries clearly indicate income from accrual of interest from time to time during the check period. Accordingly, interest income under said head is held as Rs. 5,197/-.
CC No. 37/2011 CBI Vs. Darshan Singh etc 32 of 95 8.19 Coming to item no. 14, as per CBI, the prosecution has correctly ascertained the rental income as Rs.1,32,000/- for the period 01.04.95 to 31.12.97. According to CBI, these details have been collected from ITRs of Ms. Amar Kaur who owned property no. 1281, Sector-33 C, Chandigarh. As per Ms. Sharma, though the rate of rent was Rs.5000/- per month, the assessee herself had declared in ITRs that she had spent Rs.1000/- per month as expenses towards such tenanted premises and, therefore, effective rate of rent was Rs. 4000/- per month and, therefore, the total rental income for the aforesaid period of 33 months would be Rs.1,32,000/-
8.20 As per Sh. Pandey, the property was acquired by Ms. Amar Kaur in the year 1983 and was on rent all along. According to defence, even during the check period, accused was posted in Ita Nagar and, therefore, such property had been rented out. During the course of arguments, Sh. Pandey has not disputed that if the expenses at the rate of Rs.1000/- are taken into consideration, the effective rental income would be at the rate of Rs.4000/- per month yet, he has strongly disputed the period on which such house was on rent. Sh. Pandey has contended that such property remained on rent all along and prosecution has deliberately not placed on record ITRs of the previous period. My attention has been drawn towards letter Ex. PW52/D (D48, page 1577) wherein even the concerned ITO admitted that ITRs for the previous period were not available being pretty old.
8.21 PW52 Sh. T. Dutt has entered into witness box and has proved said letter Ex. PW52/D. He also admitted in his cross examination that whatever income from whatever source has been mentioned in such ITRs was accepted in the assessment.
8.22 During the course of arguments, Sh. Pandey also stated that though the prosecution itself failed to place on record the previous ITRs, the accused himself had also written letters to the concerned ITO for producing the CC No. 37/2011 CBI Vs. Darshan Singh etc 33 of 95 same before the court but to no avail. Sh. Pandey has also supplemented that prosecution had also, during the investigation, caught hold of one such tenant i.e. LW46 Avtar Singh but for the reasons best known to the prosecution, such witness was not examined during the trial. Ms. Sharma has, however, countered the aforesaid arguments by claiming that such witness was given up primarily due to the fact that his testimony was not concerning the check period.
8.23 Be that as it may fact remains that onus was on CBI to prove such income. It had believed the amount/income mentioned in ITRs and should have made efforts to collect ITRs of previous period as well. No sincere effort in this regards seems to have been made. Moreover, the concerned tenant should have also been examined. Onus shifts on to the accused only when initial burden is lawfully and properly discharged by the prosecution. Undoubtedly, Amar Kaur could have also substantiated her claim by making specific deposition before the court or by examining any such previous tenant but nonetheless, the previous ITRs should have been placed on record by none other than CBI and since these have not been placed on record, I am inclined to pass on benefit to defence. Accordingly, I assume that premises were on rent for the entire check period and the effective rent was Rs. 4000 pm. The total rental income thus comes to Rs. 3,36,000/-.
8.24 Sh. Pandey, as regards item no. 15, has contended that prosecution does not have any qualm that Amar Kaur was having agricultural income. Sh. Pandey has contended that prosecution has not deliberately collected all the ITRs for the entire check period and if collected, not placed on record so that there is a serious prejudice to the defence.
8.25 I have seen three ITRs of accused Amar Kaur which are contained in D-50.
CC No. 37/2011 CBI Vs. Darshan Singh etc 34 of 95 8.26 For the year ending 31.3.96, Amar Kaur had agricultural income of Rs.28230/- as per ITR Ex. PW52/H. For the year ending 31.3.97, she had agricultural income of Rs.11960/- as per ITR Ex. PW52/G. The last entry related to agricultural income (year ending 31.3.98) is shown as Rs.9650/- in Ex. PW52/F and since the check period was only up to 31.12.97, on proportionate basis, such income has been considered as Rs.7236.
8.27 Sh. Pandey has, however, contended that Amar Kaur had agricultural income even for the previous period and it was duty of the prosecution to have placed on record all ITRs. Naturally, if proper effort was made, even the old ITRS could have been placed on record by the prosecution. Undoubtedly, even the defence has not bothered to examine any witness on this score. Amar Kaur herself has not entered into witness box. Her husband i.e. accused Darshan Singh, when entered into witness box, did not whisper even a single word regarding there being any agricultural income accruing to accused Amar Kaur for any such previous period.
8.28 Fact, however, remains that prosecution has set up its case on the premises that she had agricultural income. In such a situation, even if the defence and their witnesses have failed to supply the details as to where she had such agricultural land would, really speaking, have no value.
8.29 I have seen letter contained in D-50. It is only a photocopy and the original letter is placed in D-48 which has been proved as Ex. PW52/D. Prosecution cannot disown the contents of said letter wherein it is clearly written that the Returns of the previous years were not available as those were pretty old records. There is no statement or assertion from the side of prosecution that Amar Kaur had not been filing any return for the previous years. Sh. Pandey has thus argued that the agricultural income may be presumed, in the same proportion, for the previous years also. As already noticed above, such agricultural income was Rs.28230 as on 31.3.96. The previous period means CC No. 37/2011 CBI Vs. Darshan Singh etc 35 of 95 full four years and three months. On rough calculation, I am inclined to pass on the benefit to the accused Amar Kaur holding that she must have received annual agricultural income of Rs. 25000 for such previous period and, therefore, her additional agricultural income is held as Rs.1,06,250.
8.30 On a very careful perusal of income of accused Amar Kaur for the assessment year 1996-97 which has been proved as Ex. PW52/H, it also becomes apparent that even Kamaljeet Kaur (daughter of accused Darshan Singh and Amar Kaur) had share of agricultural income which is mentioned as Rs.11520. Such income has been clubbed with the income of accused Amar Kaur as per the details mentioned in the ITR and, therefore I am also inclined to pass on the benefit of additional agricultural income accruing in the name of minor daughter Kamaljeet Kaur. Thus the total agricultural income for Amar Kaur comes to Rs. 165196 (106250+ 11520+ 28230+ 11960+ 7236).
8.31 Coming to item no. 15A, ITRs of accused Amar Kaur as contained in D-50 are required to be seen again. According to Sh. Pandey, there was additional income which has not been considered by the prosecution. I have carefully gone through all the three aforesaid ITRs and, in fact, there is mention of various other income accruing to accused Amar Kaur which probably have not been taken into account by the prosecution. These are as under:
S. No. For the year ending 31.03.1996 Amount
(Assessment Year 1996-97 as per ITR Ex. PW52/H) in Rupees
1 Income from M/s Matharu Steels 25,231/-
2 Income from other sources 7,856/-
3 Profit by sale of fixed assets 19,100/-
Total 52,187/-
S. No. For the year ending 31.03.1997 Amount
(Assessment Year 1997-98 as per ITR Ex. PW52/G) in Rupees
1 Income from M/s Matharu Steels 5,397/-
2 Income from M/s Badri Dham Car Service 7,435/-
3 IT Refund 1,507/-
CC No. 37/2011 CBI Vs. Darshan Singh etc 36 of 95
4 Income from other sources 51,842/-
Total 66,181/-
S. No. For the year ending 31.03.1998 Amount Proportionate income
(Assessment Year 1998-99 as per ITR in Rupees for 9 months
Ex. PW52/F) (Amount in Rupees)
1 Total Income from M/s Matharu Steels 5,326/- 3,995/-
2 Total other income 12,426/- 9,320/-
Total 13,315/-
Thus, total additional income under aforesaid head stands proved as Rs. 52,187.00 + Rs. 66,181.00 + Rs. 13,315.00 = Rs. 1,31,683/-.
8.32 Items no. 16 to 21 deal with the income received by accused Darshan Singh (HUF). I have already made reference regarding item no.16. As regards item no. 17 to 20, defence has not raised any contention. I have also seen the testimony of the concerned witnesses and the documents proved by them. PW21 Sh. S.P. Singh is the retired bank official from said branch of Haryana State Cooperative Apex Bank and from careful perusal of his testimony and the documents proved by him, somehow I have not been able to find out any document related to SB account No. 157. Since there is no defence contention to the contrary, I presume interest income of Rs.23146/- from said account. As regards item no. 18, I have seen testimony of PW23 Sh. Gurcharan Singh. He has proved the account opening form as well as statement of account of SB account No.352 owned by accused Darshan Singh. But prosecution has not bothered to elaborate the exact interest accrual by accused in the check period. I have seen such statement which has been proved as Ex. PW23/C and there are interest accrual entries of Rs.4427+616=5043. I have also seen the testimony of PW33 Sh. H. Subhash Chandra Shetty concerned official from Vijaya Bank, Ita Nagar and the documents proved by him with respect to SB account No.5149 of Darshan Singh and SB account No.1508 of Ms. Kamaljeet Kaur. No argument has been raised with respect to the accrual of interest with respect to the aforesaid two accounts either.
CC No. 37/2011 CBI Vs. Darshan Singh etc 37 of 95 8.33 In connection with item no. 21, according to prosecution, Darshan Singh HUF had rental income of Rs. 8,19,337/- as Flat No. 4C, 13 th Floor, Vijaya Building, Barakhamba Road, New Delhi for the period 01.10.1992 to 31.12.1997. Interestingly, neither prosecution nor defence has been able to assist the Court with respect to aforesaid head of income. Prosecution has not even attempted to elaborate as to who was the tenant with respect to the aforesaid tenanted premises and what was the rate of rent. On careful perusal of the entire record, it was felt that perhaps PW9 Sh. O.P. Mehta and PW21 Sh. S.P. Singh would have thrown some light but even their testimony does not serve any purpose. Said flat was purchased by Darshan Singh HUF through Gujral Estate Pvt. Ltd. It seems that earlier as per the flat buyers' agreement, Darshan Singh HUF was sold Flat No. 9 situated in the same building but later on there was a supplementary agreement and instead of Flat No. 9, Flat No. 4C was transferred in the name of Darshan Singh HUF. Such agreement has been proved as Ex. PW19/C (D-10). Physical possession of such flat was taken by Darshan Singh on 01.10.1992 as per letter Ex. PW19/D (part of D-10).
8.34 Darshan Singh HUF was having Saving Bank Account No. 157 in Haryana State Cooperative Apex Bank, Chandigarh and during investigation, Sh. S.P. Singh the then Branch Manager had made reference to various deposit entries in the aforesaid account and it seems to me that these entries pertained to rental income of said Flat No. 4C. When these entries were totaled, amount came to Rs. 7,22,127/-. Fact, however, remains that when PW21 S.P. Singh entered into witness box, no document related to statement of account no. 157 of Darshan Singh HUF was shown to him. So much so, no such document seems to be part of judicial record or part of relied upon documents. PW21 Sh. Singh, therefore, did not make any reference to any such entry related to aforesaid account no. 157. Thus, this head does not stand proved in any manner whatsoever. Curiously, the defence proposition is also in the air only. Sh. Pandey has merely claimed rental income to be Rs. 12,98,760/- without elaborating as to how he arrived at such figure. It has not been apprised as to CC No. 37/2011 CBI Vs. Darshan Singh etc 38 of 95 who was the tenant and what was the rate of rent. Darshan Singh has also not attempted to place on record ITRs of Darshan Singh HUF. Even in his statement u/s 313 Cr.P.C. and when Darshan Singh entered into witness box as DW2, no elaboration on this score was made by him.
8.35 Faced with the aforesaid position, at this juncture, the Court has virtually no option but to accept the rental income as reflected in the charge- sheet. Since defence wants the Court to assume such income much more, onus was on the defence which it has miserably failed to discharge.
8.36 As regards heads of income contained under item No. 22 to 28 pertaining to M/s KRA Estates Pvt Ltd, though it has been claimed that accused Darshan Singh had no concern with the aforesaid concern, yet it has been additionally and in alternate contended that the various other incomes, as mentioned in ITRs of M/s KRA Estates Pvt Ltd have not been even otherwise considered by the prosecution. I have seen the entire bunch of ITRs as contained in D49. These have been proved by PW52 Sh. T. Dutta.
8.37 As regards item No. 22, income of Rs. 11,806/- has been shown at page 1627 and no other income has been shown. As regards item No. 23, reference be made to page 1665.
8.38 As regards item No.24, reference be made to page no. 1695 where the rental income has been shown as Rs. 52,500/-. It will be important to mention that though the lessee had shown expenditure of Rs. 10,500/- (1/5th of the rental income) towards repairs but for some mysterious reasons, CBI has considered the rental income in toto. At this stage, even the court does not have any option but to go by the figure of income as mentioned in the income details lest there is any prejudice to defence.
CC No. 37/2011 CBI Vs. Darshan Singh etc 39 of 95 8.39 As regards item No. 25, reference be made to page no. 1713 where the rental income has been shown as Rs. 2,10,000/-. However, two other heads of income i.e. share of profit from partnership firm and other income have not been considered. I, therefore, grant benefit of these two heads which comes to Rs.23606 (21798+1808).
8.40 Similarly, for item No. 26, though the rental income is reflected as Rs. 2,10,000/- at page No.1743, yet there is additional income of Rs. 12,616/- as profit from partnership firm. Benefit in this regard is passed on to the defence.
8.41 In the similar manner, for item No.27 and 28, additional income of Rs. 2,699/- and Rs, 2,663/-, which have not been taken into consideration by CBI, the benefit is accordingly passed on to the defence.
8.42 Let me now come to item No. 29 to 35 related to income of M/s Badridham Tea Company Pvt Ltd:
8.43 It is interesting to note that ITR for assessment year 1996-97 of M/s Badridham Tea Company Pvt Ltd has not been placed on record and, therefore, there is no substantiation to prove income as mentioned under item No.29.
However, the figure mentioned therein has to be assumed in favour of defence.
8.44 As regards item No.30, the agricultural income has been shown as Rs. 80,968/- in Ex. PW49/W (D82) but the business income has been wrongly shown as Rs. 5,141/-. In fact, the business income is Rs. 86,190/- and due to miscalculation or oversight, the CBI has taken the business income as Rs. 5,141/- after deducting the agricultural income. It was not proper method of calculation and, therefore, the business income under item No. 30 is held as Rs. 86,190/-.
CC No. 37/2011 CBI Vs. Darshan Singh etc 40 of 95 8.45 Applying the same analogy and as per the details contained in Ex. PW49/Z, the business income which has been taken as Rs. 15,906/- is held as Rs. 1,02,051/-.
8.46 No further argument has been advanced by defence as regards item No.32 to 35, though, Sh. Pandey has reasserted that these have not been proved by the prosecution in any manner whatsoever.
(A) IMMOVABLE ASSETS AS ON 01.01.1991
Sl. Name of the property Amount as per Amount as Rele- Remarks
No. charge sheet per defence vant
(in Rs.) (in Rs.) PW
1 House no.1281, Sector 33C, 216000 216000 PW37 No contention
Chandigarh purchased on PW62 raised by
8.11.1983 in the name of defence.
Smt. Amar Kaur.
2 Plot no. 7 & 8 CTS 19164 19164 PW47 No contention
Shahnoor wad Aurandabad PW62 raised by
(Maharastra) in the name of defence.
Ms. Kanwaljeet Kaur.
3 Flat no. 759, Ground Floor, 130987 130987 PW18 No contention
Vikas Kunj, N. Delhi in the PW38 raised by
name of Darshan Singh PW62 defence.
purchased in 1986.
4 Flat no. 4-C, 13th Floor 599963 614754 PW19 No contention
Vijaya Building, 17 raised by
Barakhambha Road, New defence.
Delhi in the name of Sh.
Darshan Singh (HUF)
Total 966114
ADDITIONAL IMMOVABLE ASSETS AS ON 01.01.1991 AS PER DEFENCE Sl Description Amount (in Rs.) Relevant PW No. 4A Plot No.9 of CTS Shahnoor 8000 PW47 4B Flat No.F4/3, 2nd Floor, Chetla 84673 Housing Complex,CIT School, New Alipur Road, Kolkatta (Acquired by Darshan Singh HUF) CC No. 37/2011 CBI Vs. Darshan Singh etc 41 of 95 4C Property situated at Sauiripur Mahajan 22000 Cooperative Group Housing Society, Delhi (Acquired by Darshan Singh HUF) 9.0 As regards all the four aforesaid immovable assets (mentioned in upper table), not much has been debated by the defence. As regards, item no. 2, though Sh. Pandey tried to agitate that Plot No. 9 CTS, Shahnoor wad, Aurangabad, Maharashtra has probably not been considered yet careful perusal of the record nullifies his such apprehension. There are three separate sale deeds contained in D-4. These sale deeds have been collectively exhibited as Ex. PW62/A and each plot was purchased for Rs. 7000/-. Concerned official from the office of Sub Registrar has though not been summoned and it was not appropriate to have proved the aforesaid sale deeds through investigating officer, yet since defence has not raised any real contention and since the sale deeds pertain to all the three aforesaid plots, there is nothing further left to adjudicate with respect to the aforesaid item no. 2.
9.1 My foregoing discussion automatically takes care of additional immovable asset as on 01.01.1991 as reflected against item no. 4A.
9.2 As regards item no. 4, as per CBI, Flat No. 4C was purchased for Rs. 5,99,963/- and according to defence, acquisition cost was Rs. 6,14,754/-. In this regard I have seen Ex. PW19/A (part of D-10) and the acquisition cost (as per the expenditure made till 01.01.1991), in fact, comes to Rs. 5,99,963/- (5,92,933 + 458 + 547 + 6,025). Thus, the figure alleged by CBI is held as correct figure.
9.3 As regards, one more flat as reflected in the aforesaid table at serial no. 4B, Sh. Pandey has contended that such flat had been acquired by accused Darshan Singh HUF before the check period but was disposed of in 1996 i.e. during the check period. Such assertion has not been substantiated in CC No. 37/2011 CBI Vs. Darshan Singh etc 42 of 95 any manner whatsoever and no proof has either been shown. No document, even namesake, has been placed on record which may show or justify any such acquisition or disposal of property. Such item, therefore, does not stands proved.
9.4 Qua alleged item no. 4C, according to defence, one property situated at Souripur, Mahajan Cooperative Group Housing Society, Delhi was applied for by Darshan Singh HUF before check period but it was never allotted and rather money i.e. earnest amount of Rs. 22,000/- was refunded during check period. In this regard my attention has been drawn towards ITRs contained in D-51. In ITR of accused Darshan Singh for 1992-93, in assets column property described as Souripur, Mahajan Group Housing Society is mentioned and amount of Rs.22000/- is also mentioned against the column. Such asset is found mentioned in the subsequent returns but said property is not mentioned in ITR (year ending 31.03.97) which has been proved as Ex. PW49/S. Sh. Pandey states that as per information which he had received from accused Darshan Singh, accused Darshan Singh had received the refund of Rs.22000/- in cash. It has also been, therefore, claimed that such amount of Rs.22000/- be at least counted as additional income. Ld. PP for CBI has, on the other hand, contended that it would be hardly believable that such society would refund the amount in cash and moreover since the accused has not bothered to place on record any document to such effect, such additional income should not be considered at all. Undoubtedly, there is reference of one such asset having worth of Rs.22000/- in the documents filed by CBI and in the last such return related to the check period, such asset is not found to be there and, therefore, in order to be fair to the defence, let me assume that he had received the refund of Rs. 22000/- during the check period. Such amount of Rs. 22,000/- be, therefore, transposed as additional income.
CC No. 37/2011 CBI Vs. Darshan Singh etc 43 of 95 (B) MOVABLE ASSETS AS ON 01.01.1991 Sl. Movable Assets Amount as Amount as Relevant Remarks/ De-
No. per charge per defence PW fence con-
sheet (in Rs.) tentions
(in Rs.)
1 Credit balance as on 1.1.91 in 15052 15052 PW30 No contention
SB A/c No.1109, SBI, Ita Na- raised by de-
gar in the name of Darshan fence.
Singh
2 Credit balance as on 1.1.91 in 100572 100572 PW30 No contention
PPF A/c No. 30, SBI, Ita Na- raised by de-
gar, Arunachal Pradesh in the fence.
name of Darshan Singh
3 As per inventory memo dated 64600 40000 PW58 Disputed
30.9.2005 of household items PW60
prepared at the time of search PW61
of house no.1162, Sector 33C,
Chandigarh
4 Credit balance as on 1-1-91 in 11156 11156 PW36 No contention
SB A/c No.20797 maintained raised by
in the name of Darshan Singh defence.
in Bank of India, Chandigarh
5 Credit balance in SB A/c No. 43,522 43522 PW33 No contention
1508 maintained in the name raised by
of Darshan Singh (HUF) defence.
opened on 29.6.86 in Vijaya
Bank Ita Nagar
6 Credit balance in SB A/c No. 2922 2922 PW30 No contention
18/1443 maintained in the raised by
name of Ms. Kamaljit Kaur in defence.
SBI, Ita Nagar
Total 237824
9.5 As regards item no. 1, 2, 4, 5 & 6, no dispute has been raised by
the defence and, therefore, there is no real necessity of minutely scrutinizing these items. Suffice it to say that the concerned witness has entered into witness box and relevant documents have also been proved.
9.6 As regards item no. 3, according to prosecution, the worth of the household items was Rs. 64,600/- but as per the defence, worth was only Rs. 40,000/-. However, during course of the arguments, Sh. Pandey did not dispute CC No. 37/2011 CBI Vs. Darshan Singh etc 44 of 95 the amount as reflected in the charge-sheet. Inventory memo in this regard has been proved as Ex. PW58/A (D-2) and the year of acquisition, price of the articles acquired and even the mode of acquisition has been mentioned. Following items are found to have been acquired even before 01.01.1991:-
S. No. Name of Articles Cost in rupees
1 Briefcases 3,600
2 Iron Trunks 600
3 Stereo 600
4 Steel Almirah 350
5 Washing Machine 13,500
6 Sewing Machine 250
7 Iron Trunk 600
8 TV 13,000
9 Dressing Table 500
10 Wooden Box 500
11 Cooking Gas 1,000
12 Camera 3,000
13 Jewellery Articles 27100
Total 64,600.00
9.7 Since the defence has also not disputed the worth of such assets,
the same stands proved.
9.8 I have also seen the statement of account which Ms. Kamaljeet
Kaur (minor) held with Vijaya Bank, Ita Nagar branch. Relevant statement of accused of such account No.1099 was sent to CBI vide letter Ex. PW33/A (D-20). Such statement has also been proved as Ex. PW33/C by Sh. H. Subhash Chandra Shetty. Such account was opened on 30.7.84 and was closed on 30.8.96 but surprisingly the credit balance in said saving account as on 01.01.91 has not been considered by the prosecution. If I have been able to read the statement correctly, there was balance of Rs. 30,831.31 lying in said bank and it has to be assumed as movable asset of accused Darshan Singh (being her guardian) as on 01.01.91.
CC No. 37/2011 CBI Vs. Darshan Singh etc 45 of 95 9.9 Similarly, my attention has been drawn by defence towards testimony of PW42 Sh. R.K. Joshi, concerned official from PNB, Sector-17 B, Chandigarh branch where Darshan Singh (HUF) was having account No.58401. Said witness has categorically deposed that there was net credit balance of Rs. 17170.10 in said account as on 01.01.91. Statement of account has also been proved by him as Ex. PW42/B (part of D-81). It seems to me that due to some inadvertence or oversight, such asset has not been considered by the prosecution. Therefore, said amount of Rs. 17,170 is also considered as part of movable asset held by Darshan Singh (HUF) as on 01.01.91.
ADDITIONAL MOVABLE ASSETS AS ON 1.1.91 AS PER DEFENCE 9.10 According to Sh. Pandey, CBI has not deliberately collected various ITRs for the relevant period related to start of check period and as per such ITRs of accused Darshan Singh, accused Darshan Singh (HUF) and Ms. Kamaljeet Kaur, there were movable assets at the start of check period which have not been considered anywhere. Sh. Pandey has contended that prosecution should have gathered all the material during the investigation stage and prosecution did not deliberately do so to the great disadvantage of defence. It has been argued that accused Darshan Singh was possessing various FDs in his own name as well as in the name of Darshan Singh HUF and his daughter Ms. Kanwaljeet Kaur which can be very well deciphered and, therefore, requisite benefit should be extended to accused Darshan Singh. Sh. Pandey has contended that accused Darshan Singh was already possessing FDRs worth Rs. 85,288/- and these were never taken into consideration by CBI when the movable assets as on 01.01.1991 were noticed. In this regard, heavy reliance has been placed upon the testimony of PW33 Sh. H. Subhash Chander, official of Vijaya Bank. Sh. Pandey has contended that accused Darshan Singh was already having FDRs with him which were reinvested with the same Branch of Vijaya Bank i.e. Ita Nagar Branch from time to time and eventually the matured amount was transferred to Bank of Punjab where accused was having his Account No. CC No. 37/2011 CBI Vs. Darshan Singh etc 46 of 95 16033603. Reference in this regard has also been made to Ex. PW33/E (D-22) and also on one letter dated 18.10.1996 written by Vijaya Bank to the Branch Manager, Bank of Punjab which is contained in D-34 and is somehow unproved.
9.11 As per the material brought on record, it seems that accused Darshan Singh was having two separate FDRs i.e. FDR of Rs. 2,82,933/- under Account No. 91/96 (048360) and FDR of Rs. 11,33,292/- under Account No. 91/96 (048361) and the proceeds under these two FDRs were transmitted to Account No. 16033603 which the accused Darshan Singh had with Bank of Punjab, Chandigarh as per his instructions only. These details can be easily deciphered from Ex. PW33/E (D-22) and accused's own letter dated 03.10.1996 as contained in D-22. According to Sh. Pandey, accused Darshan Singh was having these FDRs even prior to the check period and he kept on reinvesting the money from time to time as per the maturity date (s) and CBI has not considered the amount under aforesaid FDRs while calculating the assets as on 01.01.1991.
9.12 Defence has placed strong reliance upon the ITRs filed by accused Darshan Singh HUF, Darshan Singh himself and of his daughter Ms. Kanwaljeet Kaur for the year ending 31.03.1991. These ITRs are naturally very important because check period starts from 01.01.1991. Accused Darshan Singh made a statement before the Court that these were correct record. CBI was asked to confirm about the authenticity of these documents on urgent and priority basis. CBI did a splendid job by confirming about the authenticity of documents related to Darshan Singh and Darshan Singh HUF in no time but could not confirm about the documents related to Kanwaljeet Kaur as documents in the office of ITO were still being searched. Be that as it may, if these ITRs are taken on their face value, it would become very much evident that accused Darshan Singh, Darshan Singh HUF and Ms. Kanwaljeet Kaur were having assets as per the description given herein below:-
CC No. 37/2011 CBI Vs. Darshan Singh etc 47 of 95 Sl. No. Name of Holder and description Amount (in Rs.) 6A Ms. Kamaljeet Kaur
(i)Shares 100000
(ii)FDRs 238385
(iii)Cash in hand 19617 6B Darshan Singh (HUF)
(i)Shares 25000
(ii)FDRs 85288
(iii)Cash in hand 12009
(iv)Cows/live stock 18700 6C Darshan Singh
(i)Shares 10000
(ii)FDRs 275174
(iii)Cash in hand 165298
(iv) KVPs 20000
(v) NSCs 58755 9.13 Undoubtedly, it was the duty of the prosecution to have collected all these documents during the investigation stage itself. FIR was registered in the year 2005 and the case was filed in the Court on 31.12.2007 and it seems to me that casual or namesake effort was made by the concerned IO and when concerned Income Tax Office informed that previous record, being pretty old, was not available, investigating agency believed such version and did not make any further endeavor. Undoubtedly, accused Darshan Singh himself entered into witness box. He also examined DW1 Sh. R.K. Aggarwal in his defence and either accused himself or his such witness should have made reference about these ITRs. Fact, however, remains that as per defence, these documents were traced out very recently and, therefore, could be placed on record very belatedly.
In fact, these surfaced only during the course of final arguments. Defence has contended that entries mentioned in the aforesaid Returns go on to show that accused Darshan Singh was possessing various other assets as on 01.01.1991 and these have been deliberately left out by the prosecution.
CC No. 37/2011 CBI Vs. Darshan Singh etc 48 of 95 9.14 Accused Darshan Singh is presently 72 years of age and joined as Section Officer (Electrical) way back in the year 1960. It would be, therefore, not believable that he would not be possessing any FDR or cash in hand as on 01.01.1991. I have taken note of his movable assets as on 01.01.1991 as alleged by the prosecution and there is no reference of any cash in hand or share or even FDRs. These Returns are of 1991 and since prosecution has itself believed various subsequent Returns filed by Darshan Singh and Darshan Singh HU, logically speaking, there should not be any impediment in believing the assets mentioned in these ITRs.
9.15 As regards Ms. Kanwaljeet Kaur as per item 6A above, she was having Rs. 19,617/- as cash and bank balance and prosecution has already claimed in the charge-sheet that she was having a sum of Rs. 2,922/- in her SBI, Ita Nagar Branch account and, therefore, aforesaid amount is required to be deducted and accordingly further benefit of Rs. 16,695/- (19,617.00 - 2,922.00) is given. As regards shares and FD, I am inclined to pass on the benefit to her as per the details already extracted above.
9.16 However, as regards item 6B 'cash in hand and in bank' shown as Rs. 12,009/- as possessed by Darshan Singh HUF, value reflected in the charge- sheet is much more i.e. Rs. 43,522/- and, therefore, no further benefit of cash in hand and in bank of Rs. 12,009/- can be extended to the accused. However, no FDR or share possessed by Darshan Singh HUF have been considered and, therefore, benefit, as per the details mentioned in ITR, is extended.
9.17 As regards item 6C, component of cash held by accused Darshan Singh, which has been stated as Rs. 1,65,298/- in the ITR ending 31.03.1991, contains the amount in hand and as well lying in the bank. As per prosecution, accused Darshan Singh was already having credit balance of Rs. 1,26,780/- (15,052.00 + 1,00572.00 + 11,156.00). Accused, therefore, cannot be permitted to have double advantage and since the aforesaid component talks about cash CC No. 37/2011 CBI Vs. Darshan Singh etc 49 of 95 in hand as well cash lying in the bank, accused is granted additional benefit of Rs. 38,519/- only (1,65,299.00 - 1,26,780.00). However, benefit of FDRs and shares as mentioned in such ITR is extended to accused.
9.18 Sh. Pandey has contended that as per these ITRs accused was possessing various National Saving Certificates (NSCs) and Kishan Vikas Patra (KVP) and prosecution has not considered the same. Though ideally, it was for the accused to have examined some official from the concerned post office and though accused himself should have also deposed about these holdings yet in order to be totally fair to the accused, I extend benefit of these holdings to accused Darshan Singh as per details reflected in said ITR for the year ending 31.03.1991 IMMOVABLE ASSETS AS ON 31.12.1997 Sl Name of the property Amount as per Amount as Relevant Remarks/ No charge sheet per defence PW Defence (in Rs.) (in Rs.) contention Smt. Amar Kaur 1 House No.1281, Sector-33 216000 216000 PW37 No contention C, Chandigarh in the name PW62 raised by of Mrs. Amar Kaur w/o defence Darshan Singh purchased on 8.11.83 Shri Darshan Singh (HUF) 2 One Bigha, 14 Biswas 425000 425000 PW8 No contention agricultural land at G. T. PW9 raised by Road, Sirhind defence 3 One Bigha, 15 Biswas 425000 425000 PW8 No contention agricultural land at G. T. PW9 raised by Road, Sirhind defence 4 One Bigha, 15 Biswas 319000 319000 PW8 No contention agricultural land at G. T. PW9 raised by Road, Sirhind defence 5 Flat No.4-C, 13th Floor, 623213 623213 PW19 No contention Vijaya Building, 17 raised by Barakhamba Road, New defence Delhi in the name of Darshan Singh CC No. 37/2011 CBI Vs. Darshan Singh etc 50 of 95 M/s K. R. A. Estates Pvt. Ltd.
6 House No.1162, 3032700 PW1 Acquisition is
Sector-33C, Chandigarh PW37 by company
purchased in June, 1991 PW45 with the help
for Rs.10,35,000.00 and of its own
constructed during the money and
period March,1993 to April, construction
1995 for Rs.19,97,700.00 cost is taken
very high
7 Shop-cum-office site No. 1577900 PW2 Acquisition is
165, Sector-34-C, PW3 by company
Chandigarh purchased on PW37 with the help
22.6.92 for Rs.9,78,500.00 PW45 of its own
and constructed during the PW62 money and
period 8/93 to 11/93 for Rs. construction
5,99,400.00 cost is taken
very high
M/s Badridham Tea Co. (P) Ltd.
8 Plot and one room at 219375 PW10 Acquisition is
Bahmanmajra, Sirhind city PW11 by company
with the help
of its own
money and
cannot be
considered in
the present
case
9 Land 19 Kanal & 15 Marla 223750 PW12 Same as
at village Jhanjeri, Tehsil PW13 above
Kharar, District Ropar, PW14
Punjab
10 Land 16 Kanal at village 223750 PW12 Same as
Jhanjheri, Tehsil Khara, PW13 above
District Ropar, Punjab PW14
11 Land 12 Kanal 3 Marlas 174250 PW22 Same as
village Sawara, Tehsil PW40 above
Kharar, District Ropar,
Punjab
12 Land 12 Kanal 3 Marlas 174250 PW22 Same as
vilalge Sawara, Tehsil PW40 above
Kharar, District Ropar,
Punjab
13 Land 12 Kanal 3 Marlas 174250 PW22 Same as
village Sawara, Tehsil PW40 above
Kharar, District Ropar,
Punjab
Total Immovable Assets 7808438
CC No. 37/2011 CBI Vs. Darshan Singh etc 51 of 95
10.0 As regards item no. 1 to 4, defence has not addressed any
argument and does not perhaps dispute the acquisition of the aforesaid immovable assets.
10.1 I have also gone through the testimony of related witnesses. Immovable property mentioned at item no. 1 and 5 were already possessed by the accused as on 01.01.91.
10.2 As regards pieces of agricultural land mentioned under item no.2, 3 and 4, I have seen the testimony of PW8 Sh. Avtar Singh. His father Sh. Shyam Singh was the owner of those three pieces of agricultural land and as per PW8 Sh. Avtar Singh, his father had sold the same to Sh. Darshan Singh vide sale deeds Ex. PW8/A to PW8/C (D-13). Such fact is not in dispute. Certified copies of these sale deeds were obtained from the office of concerned Sub Registrar of Fateh Garh Sahib and PW9 Sh. Baljit Singh, Registry Clerk of such office had handed over these copies to CBI and he has also proved the production memo Ex. PW9/A (part of D-13). Acquisition cost comprises of the actual sale consideration as well as the stamp fee which had been borne by the buyer.
10.3 As regards flat no. 4C, Vijaya Building, 17 Barakhamba Road as mentioned under item No.5, the acquisition cost has been (as on 01.01.91) assessed as Rs.599963/- and according to CBI, the acquisition cost as on 31.12.97 was Rs.623213. It seems to me that one particular expenditure item falling under Sl. No.12 has been re-considered. There cannot be and there should not be any double jeopardy. Expenditure, if any, in this regard would be considered under item no. 12 of expenditure and, therefore, cost of the flat even as on 31.12.97 remains unaltered i.e. Rs.5,99,963/-.
10.4 As regards acquisition of properties by said two companies i.e. M/s KRA Estates Pvt Ltd and M/s Badri Dham Tea Company Pvt Ltd, there is no CC No. 37/2011 CBI Vs. Darshan Singh etc 52 of 95 dispute from the side of defence that the properties were acquired. Sh. Pandey has, however, contended that the construction cost with respect to house no. 1162/33-C, Chandigarh and for SCO site No. 165/34-C has been taken exceedingly high by CBI. His argument is confined to the aforesaid aspect related to the construction cost only.
10.5 According to CBI, house no. 1162/33-C, Chandigarh was got constructed during March, 1993 to April 1995 and the construction cost was Rs. 1997700/-. As regards SCO site No. 165/34-C, Chandigarh, construction cost incurred between August 1993 and November 1993 has been alleged to be Rs. 599400/-. Ms. Sharma has drawn my attention towards testimony of PW45 Rajesh Kumar Gupta. He was posted as Junior Engineer in the Valuation Office of Income Tax Department, Chandigarh. According to his deposition, he and another Junior Engineer Prabhjeet Singh were deputed to go to the aforesaid properties along with to CBI officials and assessee for valuation thereof. PW45 Rajesh Gupta further deposed that with respect to property No. 1162/33-C, Chandigarh, they had gone there on 03.01.2007 and accused Darshan Singh had told them that he had purchased a built up property when it was having ground floor only and the had himself got the ground floor renovated and constructed first floor. He also told that after 2-3 years, one servant quarter on the rear portion was also got constructed. Said two engineers, as regards construction cost, reached the following conclusion:-
(i) Ground floor renovation, first floor construction and partly second floor, all constructed from March 1993 to April 1995 = Rs. 19,97,700/-.
(ii) Servant quarter constructed between 1999 & 2000 = Rs. 1,17,400/-.
10.6 Naturally, the second entry has been ignored by CBI being beyond the check period. Report has been proved as Ex. PW45/A which is found to be signed by PW45 Rajesh Gupta as well as by Sh. Hardeep Singh, valuation officer.
CC No. 37/2011 CBI Vs. Darshan Singh etc 53 of 95 10.7 Similarly, as regards SCO 165/34-C, Chandigarh, report has been proved as Ex. PW45/C and construction cost was assessed as Rs.599400/-.
10.8 I have seen both the valuation reports. Value has been assessed taking into consideration various technical details. I have also seen the abstract of cost and the other various details mentioned in such reports along with necessary annexures. PW45 Sh. Gupta has also deposed that reports were prepared primarily keeping in mind the plinth area rates along with cost index of relevant time, extra addition as evident from the spot inspection like wood-work related to almirah etc. marble flooring, sanitary fittings, tiles, rolling shutter, grill, section windows, underground sump, wire gauge shutters, pelmet, RCC coffer slabs, marble slab linings on the walls etc. 10.9 PW45 Sh. Gupta was grilled by defence and it was suggested to him that he had given a wrong and exaggerated report at the instance of CBI. However, except for putting bald suggestions, defence has not bothered to apprise the court as to on what basis these reports can be said to be incorrect or exaggerated. Defence has not examined their own valuer. Defence has also not attempted to apprise the court as to why the procedure adopted by concerned Engineer was inept or wrong.
10.10 These two properties were owned by M/s KRA Estates Pvt Ltd. I have seen the balance sheets of the relevant years.
10.11 As per the balance sheet (containing information as on 31.03.94), the value of the house No. 1162/33-C, Chandigarh has been shown as Rs. 1035000/-. For the previous year also, the value was same. However, as per the balance sheet (containing information as on 31.03.95), the value of the house stood increased from Rs.1035000 to 3185930/-. Thus there was escalation of price by more than Rs.20 lacs.
CC No. 37/2011 CBI Vs. Darshan Singh etc 54 of 95 10.12 Similarly, with respect to SCO 165/34-C, Chandigarh, the value was initially shown as Rs.978500/- which jumped to Rs. 1589785/- as on 31.03.95. Thereafter, there was no change in the aforesaid two values as would be apparent from the balance sheets containing information as on 31.03.96.
10.13 It is important to mention that accused Gurmukh Singh, when testified as DW3, was shown such valuation-related information appearing in the balance sheet and he admitted that such balance sheet (as on 31.03.95 exhibited as Ex. DW3/P1 (part of D46)) was containing his signatures. He, however, failed to tell anything about the details of the cost mentioned with respect to the aforesaid two properties.
10.14 It will be also important to mention that according to accused Gurmukh Singh, the construction was raised by him and he had made the payment with respect to such construction. His such stand does not appear to be correct. It was not his personal property. These properties were owned by M/s KRA Estates Pvt Ltd and surprisingly no expenses towards construction have been shown in the relevant balance sheets. Construction was admittedly carried out but the question remains as to what was the cost of construction.
10.15 According to accused Gurmukh Singh, one Sh. Pratap was the contractor and woodwork was done by one Sh. Raghubir Singh and he also placed on record various bills Mark DW3/A (252 pages). In order to substantiate said fact, defence also examined such contractor i.e. DW6 Sh. Pratap Singh and DW7 Sh. Raghubir Singh.
10.16 DW6 Sh. Pratap Singh has deposed that he knew accused Gurmukh Singh and said kothi was renovated by him and shop-cum-office was completely constructed by him and he received payments towards such renovation and construction through cheques. I take a little pause here. If the CC No. 37/2011 CBI Vs. Darshan Singh etc 55 of 95 payment was by cheques, the defence could have substantiated the same by calling the concerned bank officials. Nothing of that sort has been done. DW6 Sh. Pratap Singh also does not know whether the cheque had been issued by Gurmukh Singh in his personal capacity or as representative of any company. He also does not recall as to what amount was received and tentatively claimed that it must have been as per the bill raised and the payment would be of Rs. one lac for SCO and Rs. 2 ½ lacs to Rs. 3 lacs for kothi. He has also made reference to various bills and has identified his signatures on such bills which are Ex. DW6/A to Ex. DW6/C3. In his cross examination, he admitted that he was illiterate. He admitted that he had not brought any passbook or bank statement showing that he had received payments through cheque.
10.17 DW7 Sh. Raghubir Singh has deposed that he had done woodwork for said kothi situated in Sector 33 and has proved his bill Ex. DW7/A and claimed that he had received Rs. one lac towards such woodwork. He also claimed that such cheque was issued by Gurmukh Singh. He also failed to substantiate the same as no bank record was shown by him either. I have seen all such bills and defence wants me to believe that the construction cost of house No. 1162/33 C, Chandigarh was Rs.980510.31 and the construction cost of SCO 165/34 C was Rs.454701.31 and, therefore the total construction cost was Rs. 1435212/-. All these bills were placed on record by the defence at a very belated stage. They never tried to confront PW45 Sh. R.K. Gupta with these bills. Even if the bills are assumed to be genuine, it would not automatically mean that the construction cost was limited to the amount as mentioned in those bills only.
10.18 On rough estimate, the total construction cost with respect to both the aforesaid properties is Rs.25 lacs approximately as per prosecution and according to defence such total construction cost is Rs.14 lacs approximately. Defence contention does not seem to be worthy of any merit in view of my foregoing discussion.
CC No. 37/2011 CBI Vs. Darshan Singh etc 56 of 95 10.19 I cannot be, however, oblivious of the fact that no rebate of 10% has been given to the assessee which is generally given in the cases of self supervision in cases of such construction activities. Accused Gurmukh Singh perhaps remained present at the sites at the time of construction and, therefore, I am inclined to pass on the benefit of 10%.
10.20 Thus the total cost for house No. 1162/33 C, Chandigarh would be as under:-
(i) Acquisition cost = 1035000/-
(ii) Construction cost = 1997700-199770 (10% of construction cost) = 1797930
Total : 1035000 + 1797930 = 2832930
10.21 As regards SCO site No. 165/34 C, Chandigarh, value would be as
under:
(i) Acquisition cost = 978500/-
(ii) Construction cost = 599400-59940 (10% of construction cost) = 539460
Total: 978500 + 539460 = 1517960
10.22 As regards the other properties acquired by M/s Badri Dham Tea
Company Pvt Ltd as mentioned under item no. 8 to 13, there does not seem to be any dispute with respect to the cost of acquisition. Moreover, I have seen the testimony of concerned witnesses i.e. PW10 Sh. Om Prakash, PW11 Sh. Arvind Kumar, PW12 Sh. Payara Singh, PW13 Sh. Mit Singh, PW14 Sh. Gurmail Singh, PW22 Sh. Ramesh Lal and PW40 Sh. Satpal Singh and also the documents proved by them and since there is no dispute with respect to the cost of acquisition, there is no real requirement of discussing their evidence in detail.
CC No. 37/2011 CBI Vs. Darshan Singh etc 57 of 95 (B) MOVABLE ASSETS AS ON 31.12.1997 Sl. Description Amount as per Amount as per Relevant Remarks/ No charge sheet defence PW Defence . (in Rs.) (in Rs.) contention Darshan Singh 1 Credit balance in PPF A/c 283758 283758 PW30 No No.30, SBI Ita Nagar, contention Arunachal Pradesh raised by defence 2 Credit balance in SB A/c 52285 52285 PW30 No No.1109 SBI, Ita Nagar contention raised by defence 3 Ten (10) FDRs bearing No. 400000 400000 PW30 No 850135 to 850144 dated contention 21.4.97 issued by SBI, Ita raised by Nagar against cheque no. defence 141647 dated 21.4.97 of SB A/c No.1109 4 Credit balance as on 4333 4333 PW4 No 31.12.97 in SB A/c No. contention 16033603 Centurian Bank raised by of Punjab, Sector-35, defence Chandigarh 5 20 Nos. of FDRs bearing 990000 990000 PW4 No No.96/125142 to contention 96/125161 issued on raised by 9.11.96 by Centurion Bank defence of Punjab, Sector-35, Chandigarh from SB A/c No.16033603 6 Investment in equity shares 121630 Not proved of different companies, by CBI detail of which is enclosed as Annexure "A" with this charge sheet 7 Maruti 800 No.AR-01,5096 80000 80000 PW28 No purchased by Darshan PW33 contention Singh on 24.2.97 against raised by cheque no.06 defence B/95A-0121266 dated 24.2.97 8 Household items as per 121300 PW58 Disputed by inventory memo dated PW60 defence 30.9.2005 prepared at the PW61 time of search of house No. 1162, Sector-33C, CC No. 37/2011 CBI Vs. Darshan Singh etc 58 of 95 Chandigarh 9 Premium of LIC policy No. 224127 PW24 Disputed by 44073561 and 440071746 defence in the name of Darshan Singh 10 Credit balance in RD A/c 45000 PW21 Not proved No.129, Haryana State by CBI. Cooperative Apex Bank Ltd. Chandigarh in the name of Darshan Singh Darshan Singh (HUF) 11 Credit balance in the PPF 127200 127200 PW34 No A/c No.10/1690 in SBI, contention Sector-8C, Chandigarh raised by defence 12 Credit balance in SB A/c 11066 PW21 Not proved No.157, Haryana State by CBI. Cooperative Apex Bank Ltd. Sector-34 C, Chandigarh 13 Credit balance in SB A/c 28005 28005 PW23 No No.352, OBC, Fatehgarh contention Sahib, opened on 20.1.96 raised by defence 14 Credit balance in SB A/c 314209 314209 PW33 No No.5149, Vijaya Bank, Ita contention Nagar raised by defence Smt. Amar Kaur 15 Credit balance in the PPF 127312 127312 PW34 No A/c No.1645, SBI, contention Sector-8C, Chandigarh raised by defence 16 Credit balance in A/c No. 13791 13791 PW21 No 498, Haryana State contention Cooperative Bank Ltd., raised by Sector-34 C, Chandigarh defence Ms. kamaljit Kaur 17 Credit balance in SB A/c 12201 PW21 Not proved No.1209, Haryana State by CBI. Cooperative Apex Bank Ltd., Sector-34 C, Chandigarh M/s Badridham Tea Company Pvt. Ltd. 18 Maruti 800, Model 1996 in 188664 188664 PW6 Not admitted the name of M/s Badridham Tea Co. Ltd. Bassi Road, Sirhind, Fatehgarh Sahib. CC No. 37/2011 CBI Vs. Darshan Singh etc 59 of 95 M/s K. R. A. Estate Pvt. Ltd. 19 Current Account No. 1 4521 4521 PW21 No Haryana Cooperative Apex contention Bank Ltd. opened on raised by 21.3.94 by Gurmukh Singh defence. and Smt. Amar Kaur Total 3149402 10.23 As regards item no. 1, 2 & 3, reference be made to testimony of
PW30 Sh. J.K. Sarkar who has proved the relevant documents. Prosecution has proceeded on the premises that there was balance of Rs. 2,83,758/- in the PPF Account of Darshan Singh. However, testimony of PW30 Sh. Sarkar indicates that credit balance in said account, as on 31.12.1997, was Rs. 3,16,809.33. Prosecution has not attempted to offer any enlightenment as to why lesser amount was shown in the charge-sheet. At this stage, despite there being specific unrebutted evidence on record, I cannot enhance the figure to the disadvantage of the accused and, therefore, the credit balance in PPF Account No. 30 under item no. 1 is held as Rs. 2,83,758/-. As regards item no. 2, defence has not raised any dispute but I would again not eschew any word in commenting that CBI has not bothered to suitably clarify the aforesaid balance amount. There should have been clear-cut extraction of the amount from the mouth of PW30 Sh. Sarkar. Prosecution, however, felt satisfied by merely proving on record the saving account passbooks of accused Darshan Singh. This was not the right approach at all. These passbooks have been proved as Ex. PW30/C1 to C5 and I have seen the entries maintained in passbook Ex. PW30/C5 and it becomes apparent that as on 31.12.1997, there was net credit balance of Rs. 52,285.42 in aforesaid saving bank account no. 1109 of Darshan Singh. Said item stands proved accordingly.
10.24 As against item no. 3, that there were 10 FDRs worth Rs. 4 lacs. Reference be made to Ex. PW30/F. Accused Darshan Singh himself had requested for preparation of 10 STDRs of Rs. 40,000/- each and the amount of CC No. 37/2011 CBI Vs. Darshan Singh etc 60 of 95 Rs. 4 lacs was debited from his saving bank account on 21.04.1997. I have seen aforesaid cheque Ex. PW30/F and slips/vouchers contained in Ex. PW30/G and needless to say that aforesaid item has been proved.
10.25 As regards item no. 4, reference be made to testimony of PW4 Tejbir Singh Chawla. Again, CBI has, through Mr. Chawla, proved statement of account of Darshan Singh for saving bank account no. 16033603 but not bothered to explain the statement and to apprise the Court about the exact credit balance as on 31.12.1997. Again, job has been left to the Court. I have seen Ex. PW4/C and as per the said statement of account, credit balance under said saving account as on 31.12.1997 is found to be Rs. 4,333/-. Said item also stands duly proved.
10.26 As regard item no. 5, there is no dispute from the side of defence. The relevant details have been duly proved by the prosecution. I have seen letter Ex. PW4/D (D-33). Details of 20 FDRs, which were having closure date beyond the check period have been mentioned in D-33 and these FDRs are from FD No. 96/25142 to 96/25161. This item also stands proved.
10.27 As regards item no. 6, it becomes apparent that share certificates have not been proved by prosecution in any manner whatsoever. One paper was annexed with the charge-sheet and in such annexure, details of the shares held by Darshan Singh during check period were mentioned but these details have not been proved in accordance with law. On careful perusal of the entire, it is also clear that prosecution had submitted additional documents which were taken on record. Reference be made to AD-2 which contains various share certificates but these have not been proved by the prosecution. However, defence does not dispute that the shares worth Rs. 35000/-, which belonged to Darshan Singh and Darshan Singh HUF and which were there at the start of check period, were there even at the end of check period.
CC No. 37/2011 CBI Vs. Darshan Singh etc 61 of 95 10.28 I have seen testimony of PW53 Sh. Javed Siraj, SP/CBI. He had carried out the search of H. No. 1162, Sector-33C, Chandigarh on 13.06.2001. It will be also important to mention that said house was searched again on 30.09.2005.
10.29 First search dated 13.06.2001 is by CBI/ACU-V in RC 1A/2001 ACU-II whereas second search dated 30.09.2005 is by CBI ACU-IV in RC 5A/2005-ACU-IV. First search list has been proved as Ex. PW53/A and second search list has been proved as Ex. PW58/C but prosecution has not bothered to throw any light with respect to previous case FIR i.e. RC 1A/2001 ACU-II.
10.30 Be that as it may, fact remains that it is not understandable as to how, when and from where these share certificates were seized. Worth of these shares is accordingly restricted to Rs. 35000/- as admitted by defence.
10.31 As regards item no. 7, there is no dispute from the side of defence. I have also seen the testimony of PW28 Sh. Tayam Siram who had sold his Maruti car to Darshan Singh in 1997 for Rs. 80,000/-.
10.32 As regards item no. 8, defence has disputed regarding the worth of household items. It is not in dispute that the house of accused was searched on 30.09.2005. I have already made reference to such inventory memo. Various articles, as acquired by purchase before 31.12.1997, are as under:-
S. No. Description of Articles Date of acquisition Price of article in rupees 1 Double bed (wooden) 1995 10,000.00 2 Dressing Table 1995 4,000.00 3 T.V. Stand (wooden) 1995 1,000.00 4 Ceiling Fan 1995 600.00 5 Geyser (Johnson) 25 ltrs. 1995 1,500.00 6 12 Briefcases (VIP, Aristocrat) 1995 3,600.00 7 3 Iron box 1980 600.00 CC No. 37/2011 CBI Vs. Darshan Singh etc 62 of 95 8 Double Bed (wooden) 1995 10,000.00 9 Dressing Table (wooden) 1995 2,000.00 10 Study Table 1997 3,500.00 11 Stereo System (National) 1976 600.00 12 Ceiling Fan 1995 600.00 13 Steel Almirah 1975 350.00 14 Washing Machine (automatic) 1982 13,500.00 15 Sewing Machine 1980 250.00 16 Ceiling Fan 1995 600.00 17 3 Iron Trunks 1978 600.00 18 Wooden Box 1995 1,200.00 19 TV 20" (BPL) 1990 13,000.00 20 Ceiling Fan 1995 600.00 21 Sofa Set (eight seater) 1995 40,000.00 22 Dining Set (eight chairs) 1995 25,000.00 23 Show case (wooden) 1995 5,000.00 24 Crockery 1995 5,000.00 25 Two Ceiling Fans 1995 1,200.00 26 Dressing Table 1978 500.00 27 Wooden Box 1978 500.00 28 Ceiling Fan 1995 600.00 29 Geyser (25 litres) 1995 1,500.00 30 Fridge BPL 230 ltrs 1997 14,500.00 31 Ceiling Fan 1995 600.00 32 Cooking Gas 1982 1,000.00 33 Ceiling Fan 1995 600.00 34 Bed 1995 700.00 35 Camera (Yashica) 1985 3,000.00 36 Two Bangles (gold 45 gms) 1981-82 3,000.00 37 Necklace Set (gold 110 gms) 1981-82 8,000.00 38 One Bangle (Gold 25 gms) 1981-82 1,600.00 39 Two chains (gold 85 gms) 1974 6,000.00 40 Ear-rings three set (gold 110 gms) 1974 8,500.00 Total 1,94,900.00 10.33 However, since worth of the assets, as per charge-sheet is Rs.
1,21,300/-, I restrict myself to the same so that there is no injustice to the defence.
CC No. 37/2011 CBI Vs. Darshan Singh etc 63 of 95 10.34 Such search list/inventory memo has been duly proved by the prosecution and I do not find any reason to hold that year of acquisition or cost thereof has been mentioned by CBI arbitrarily or without consulting the accused. Mere bald suggestion would not take the case of defence anywhere and, therefore, worth of household articles is held as Rs. 1,21,300.
10.35 As regards item no. 9, reference be made to testimony of PW24 Sh. Anil Kumar, concerned official from LIC, Chandigarh. He has made mention regarding policy no. 440073561, a pension policy, in the name of Darshan Singh which commenced on 28.03.1989 and matured in March, 1999 and total premium paid by policy holder between January, 1991 to December, 1997 was Rs. 1,48,533. Second policy i.e. marriage endowment policy was having no. 440071746. It was in the name of Darshan Singh and it commenced on 01.10.1989 and matured in October, 1999 and total premium paid by policy holder between January, 1991 to December, 1997 was Rs. 75,593/-. Relevant documents have been proved as Ex. PW24/A to PW24/C. 10.36 As regards item no. 10, no statement of account pertaining to RD No. 129 allegedly in the name of accused Darshan Singh has been placed on record. I have seen various documents contained in D-37 to D-42 and there is no document related to aforesaid RC Account No. 129. I have seen the testimony of PW21 S.P. Singh earlier also. He has not made any reference regarding any such RD Account No. 129. Such item, therefore, does not stand proved.
10.37 As regards item no. 11, reference be made to the testimony of PW34 Sh. Gurcharan Singh. It becomes apparent that Darshan Singh HUF was having PPF Account No. 10/1690 with SBI, Sector-7C, Madhya Marg, Chandigarh Branch and as on 31.12.1993, there was credit balance of Rs. 1,27,200/-. Statement of account has been proved as Ex. PW34/B. Such item, therefore, stands proved. His testimony also takes care of another PPF Account CC No. 37/2011 CBI Vs. Darshan Singh etc 64 of 95 No. 1645 which was in the name of Amar Kaur with same Branch. Such statement of account has been proved as Ex. PW34/C and as per said statement, credit balance, as on 31.12.1997, was Rs. 1,27,312/-. Thus, item no. 15 also stands proved as projected in challan.
10.38 As regards, item no. 12, it is already noticed above that prosecution has not placed on record any document related to SB Account No. 157 held by Darshan Singh HUF with Haryana State Cooperative Apex Bank, Chandigarh and, therefore, item no. 12 does not stand proved.
10.39 As regards item no. 13, reference be made to the testimony of PW23 Sh. Gurcharan Singh. Accused Darshan Singh was having SB Account No. 352 with OBC, Fatehgarh Sahib Branch. Such account was opened on 20.1.1996. Account opening form has been proved as Ex. PW23/B (D-43). However, this account is not found in the name of Darshan Singh HUF. Rather it is in the name of Darshan Singh. A careful perusal of the statement of account would show that there was credit balance of Rs. 28,004.65 as on 31.12.1997 and, therefore, said credit balance stands proved though account was in the name of Darshan Singh and not Darshan Singh HUF.
10.40 As regards item no. 14, reference be made to the testimony of PW33 H. Subhash Chandra Shetty. His testimony, again, indicates that Saving Bank Account No. 5149 was in the name of Darshan Singh and not Darshan Singh HUF. However, the credit balance as on 31.12.1997 is found to be Rs. 3,14,209.31 as per Ex PW 33/B (D-20) and, therefore, said item stands proved.
10.41 As regards item no. 16, PW21 S.P. Singh has made reference to SB Account No. 498 in the name of accused Amar Kaur and as per statement of account Ex. PW21/C (D-39), as on 31.12.1997, there was credit balance of Rs. 13,790.59 and, therefore, the amount as mentioned in the charge-sheet stands proved.
CC No. 37/2011 CBI Vs. Darshan Singh etc 65 of 95 10.42 As regards item no. 17, PW21 S.P. Singh has though deposed that as per seizure memo Ex. PW21/F (D-40), he had also handed over certified copy of statement of account no. 1209 but fact remains that no such statement is found to be on record. Except for the account opening form, nothing has been placed on record. Account opening form has been proved as Ex. PW21/D (D-41) but that by itself would not prove the credit balance as on 31.12.1997 and, therefore, item no. 17 does not stand proved.
10.43 As regards item no. 18, reference be made to the testimony of PW6 Sh. Upender who categorically deposed that Maruti car had been sold to M/s Badri Dham Tea Company for Rs. 1,88,664.55. Such sale is found to be with the check period and such acquisition stands proved.
10.44 As regards item no. 19, reference be again made to the testimony of PW21 Sh. S.P. Singh. Current Account statement of M/s K.R.A. Estates Pvt. Ltd. has been proved as Ex. PW21/I and the credit balance as on 31.12.1997 is found to be Rs. 4,521.30. Such item stands proved accordingly.
EXPENDITURE OF DARSHAN SINGH AND HIS FAMILY MEMBERS DURING CHECK PERIOD 1.1.91 TO 31.12.97 Sl.No Description of expenditure Amount as Amount Relevant Remarks/ . per charge as per PW Defence sheet (in defence Contention Rs.) (in Rs.) 1 Non verifiable household 208310 Disputed in expenditure @ 1/3rd of net Salary toto by of Sh. Darshan Singh defence 2 Electricity consumption charges 54119 54119 PW17 No in respect of house No.1162, contention Sector-33 C, Chandigarh for the raised by period March, 1991 to December, defence.
1997 3 Telephone charges of landline 23078 23078 PW16 No No.2660325 in the name of Mrs. contention CC No. 37/2011 CBI Vs. Darshan Singh etc 66 of 95 Amar Kaur installed at house No. raised by 1162, Sector-33C, Chandigarh for defence. the period October 1996 to December 1997 4 Water charges w.e.f. January 9127 9127 PW20 No 1991 to December 1997 of house contention no.1162, Sector-33-C, raised by Chandigarh defence. 5 Polishing of furniture at her 55900 Disputed in residence by Smt. Amar Kaur toto by defence and even otherwise not proved by CBI 6 (i) Income tax deposited in the 206157 198305 PW52 As per name of KRA Estate Ltd. during defence, the period 1.4.91 to 31.3.98 not calculated (ii) Income tax deposited in the properly. name of Badridham Tea 27750 27750 Company Pvt. Ltd. during the period 1.4.95 to 31.3.98 (iii) Income tax paid by Smt. Amar Kaur during period from 1.4.95 to 23031 23031 31.3.98 (iv) Income tax paid by Darshan Singh during period from 1.4.92 220224 220224 to 31.3.98 7 Purchase of Onida Colour TV 18500 Not proved by CBI 8 Purchase of Bajaj Scooty from 12004 12004 PW15 No Hind Motors, Chandigarh vide contention receipt no. 8958 dt.9.8.95 raised by defence. 9 Purchase of Electric Chimney 5500 Not proved by CBI 10 Purchase of BPL frost free 18750 18750 PW7 No Refrigerator from Pinky Radios contention SCO 369, 35 B, Chandigarh raised by defence. 11 Purchase of Bajaj Sunny from 10182 10182 PW15 No Hind Motors, Chandigarh vide contention receipt no. 7759 dt. 10.8.93 raised by defence. 12 Payments made to M/s Gujral 19650 6600 PW19 Disputed by Estate Pvt. Ltd. 28 Barakhamba PW62 defence Road, New Delhi as Sinking charges, Insurance Charges, CC No. 37/2011 CBI Vs. Darshan Singh etc 67 of 95 House Tax and Ground Rent on account of Flat No.4-C, 13th Floor, Vijaya Building, 17 Barakhamba Road, New Delhi 13 Expenditure on education of Ms. 10578 10578 PW31 No Kamaljit Kaur PW32 contention raised by defence. 14 Purchase of aquaguard from 5780 5780 PW35 No Eureka Forbes Ltd. SCO 14, contention Sector 7C, Chandigarh raised by defence. Total 928640 11.0 As regards item no.1, prosecution has taken 1/3rd of salary as non-verifiable expenditure (towards household and other miscellaneous
expenditure) and such amount has been accordingly calculated as Rs.208310/-.
11.1 In such type of disproportionate assets matters, 1/3rd amount of the income is assumed to be spent on household expenditure. This is done in terms of case of Sajjan Singh Vs. State of Punjab AIR 1964SC 464 where it is observed that taking the most liberal view, it was not possible for any reasonable man to say that assets to the extent of Rs. 1,20,000/- was anything but disproportionate to a net income of Rs. 1,03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses.
11.2 As per one circular No. 21/40/99-PD(Pt.) dated 29.11.2001 issued by CBI, instructions have been issued for standardizing procedure for investigation into the assessment of wealth possessed by public servant and it has been prescribed that non-variable expenditure such as on kitchen, household, clothing etc should be taken as 1/3rd of salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification. It is also mentioned that electricity and water charges are also not to be computed separately when unverifiable expenditure is computed in the above mentioned manner. But the other expenses such as education, telephone, CC No. 37/2011 CBI Vs. Darshan Singh etc 68 of 95 pleasure trip etc should be calculated as per the information or actual bills. According to defence, there was not much expenditure as most of the times Darshan Singh lived alone in Ita Nagar. This rather prompted prosecutor to remark that in such a situation, the expenditure would be rather more as two separate house-holds were being maintained. However, keeping in mind the aforesaid judgment of Apex Court, I am inclined to assume the non-verifiable expenditure as 1/3rd of the net salary.
11.3 Net salary of accused Darshan Singh has been held to be Rs. 631244/- and non-verifiable household expenditure, therefore, comes to Rs. 208310/-.
11.4 As regards item No. 2 and 4, though no contention has been raised by the defence, yet fact remains that in view of the aforesaid circular of CBI, I would not be able to take into consideration any such expenditure towards item no.2 and 4.
11.5 As regards item no.3, reference be made to the testimony of PW16 Sh. Paras Ram Pal. He has categorically deposed that telephone no. 2660325 had been installed in the name of Ms. Amar Kaur at house No. 1162, Sector 33- C, Chandigarh and payment with respect to telephone bills for period October 1996 to December 1997 were furnished to CBI vide letter Ex. PW16/A (D-16) and total payment was Rs.23078/-. There must have been expenses for the previous period also and accused should feel touch fortunate that since the records were not kept properly by the concerned telephone department of BSNL, the records for the period from 01.01.1991 to 30.09.1996 were not made available to CBI and, therefore, these expenses have not been taken into consideration.
11.6 As regards item no. 5, even Ld. Prosecutor had to admit that such item has not been proved as no witness of prosecution has thrown any light with CC No. 37/2011 CBI Vs. Darshan Singh etc 69 of 95 respect to any such expenditure towards polishing of furniture. Such item, therefore, does not stand proved.
11.7 As regards Item No. 6 (i), as per CBI, M/s K.R.A. Estates Pvt. Ltd. had deposited total income tax of Rs. 2,06,157/- from 01.04.1991 to 31.03.1998.
11.8 Again prosecution has left the entire computation job to the Court. It has not provided required breakup. Finding no other option, Court had to again minutely go through the relevant ITRs in order to find out whether the aforesaid amount was actually spent or not.
11.9 ITRs are contained in D-48 & D-49 and following Tax deposits are found made by said company:
S. No. ITR for Assessment Year Tax Amount deposited Exhibit Number (in rupees) 1 1991-92 8,190/- PW52/E 2 1992-93 10,737/- PW49/F 3 1993-94 10,914/- PW52/B 4 1994-95 19,000/- PW49/B 5 1995-96 46,464/- PW49/C 6 1996-97 51,000/- PW49/D 7 1997-98 52,000/- PW49/E Total 1,98,305/-
11.10 Thus, total expenditure under aforesaid head stands proved as Rs.
1,98,305/- instead of Rs. 2,06,157/-.
11.11 As regards item No.6 (ii), following details have been proved by the prosecution:-
Sl. No. ITR for assessment year Tax amount deposited (in Rs.) Exhibit No. 1 1997-98 7959 PW49/V D82 CC No. 37/2011 CBI Vs. Darshan Singh etc 70 of 95 11.12 ITR beyond the check period cannot be considered. I have not been able to find out ITR of M/s Badri Dham Tea Company Pvt Ltd for the previous assessment years and, therefore, expenditure under item no. 6 (ii) stands proved only as Rs.7959/-.
11.13 As regards item no. 6 (iii), following chart would show the details proved by the prosecution:-
Sl. No. ITR for assessment year Tax amount deposited (in Rs.) Exhibit No. 1 1997-98 2289 PW52/G, D-50 2 1996-97 17611 PW52/H, D-50 11.14 Thus the total expenses comes to Rs. 19,900/-.
11.15 As regards item No. 6 (iv), according to prosecution, accused Darshan Singh had paid total tax of Rs.220224/- during the check period.
Related ITRs filed by accused Darshan Singh are contained in D-51 and have been proved as Ex. PW49/N to PW49/T. Even PW51 Sh. Narayan Das, official from Income Tax Department, Ward North Lakhimpur has deposed about the authenticity of these ITRs. Defence has not disputed the aforesaid expenditure amount and, therefore, the amount shown under item No. 6 (iv) stands proved.
11.16 Item No. 7 and 9 have not been proved by the prosecution in any manner whatsoever. Neither any witness has deposed anything about this expenditure nor has any document been proved.
11.17 As regards item No. 8, 10 and 11, defence has not raised any contention. I have also seen the testimony of PW15 Sh. Rajender Kumar who has proved expenditure related to purchase of scooty and scooter in the name of Ms. Kamaljeet Kaur. These purchases are during check period only. As regards purchase of BPL refrigerator, PW7 Sh. S.D. Gakhar has proved relevant bill as Ex. PW7/A (D-70).
CC No. 37/2011 CBI Vs. Darshan Singh etc 71 of 95 11.18 As regards item no. 12, prosecution has been able to show the payment made by Darshan Singh (HUF) of Rs.14352/- on 20.05.97 in terms of receipt Ex. PW62/D (D-10) and also payment of Rs.6600/- made by Darshan Singh (HUF) on 17.05.93 vide receipt Ex. PW19/F (D-10). Total comes to Rs. 20952/-.
11.19 PW19 is the concerned witness from M/s Gujral Estate Pvt Ltd. It will be important to mention that he has also proved one letter Ex. PW19/A and he had made available the requisite information to CBI and as per the details mentioned therein, the following payments were received from Darshan Singh (HUF) during the check period:-
Sl. No. Date Particulars Amount (in Rs.)
1 28.1.1993 Ground rent 3600
2 17.5.1993 House tax, service charges 6600
3 3.9.1993 Legal charges 750
4 24.1.1994 Ground rent, house tax, service charges 12300
11.20 The total thereof comes to Rs.23250/-. However, since the
prosecution has, it seems, not bothered to take into consideration the expenditure of Rs.3600/- towards ground rent. I, therefore, now at such a belated stage, cannot consider the aforesaid expenditure to the detriment of the defence. The expenditure is, therefore, held as Rs.19650/-.
11.21 As regards item no.13, there is no dispute from the side of defence regarding expenditure made towards the education of Ms. Kamaljeet Kaur. Prosecution has also examined two witnesses on this score i.e. PW31 Ms. Simran Jeet Kaur (official from Government Senior Secondary School, Sector-33-D, Chandigarh) and PW32 Sh. Ashwani Lakhanpal (official from S.C. Public School, Sector-32, Chandigarh).
CC No. 37/2011 CBI Vs. Darshan Singh etc 72 of 95 11.22 As regards item no. 14, PW35 Sh. Vishal Gupta, official from M/s Eureka Forbes Ltd, Chandigarh has proved the expenditure amount as Rs. 5780/-. I have also seen invoices Ex. PW35/A (D-67). Total expenditure amount comes to Rs.5780 (4800+980). Such expenditure amount also stands proved CONTROVERSY SURROUNDING TRANSACTION OF RS. 20 LACS 12.0 As per CBI, accused Darshan Singh had been managing various bank accounts opened in the name of non existing/bogus companies and he was pumping in his ill gotten money in all such accounts as well. Such accounts are of M/s North Eastern Trade & Industries Pvt Ltd, M/s Arunachal Traders, M/s Sarah & Company and M/s Lotus Products Pvt Ltd.
12.1 As far as M/s Sarah & Company is concerned, no light has been thrown by the prosecution as to who was the owner/proprietor of such account. I have come across one letter Ex. PW62/G (D24). It is written by concerned official of Vijaya Bank, Ita Nagar branch to CBI whereby account opening forms of M/s North Eastern Trade & Industries Pvt Ltd, M/s Sarah & Company and M/s Lotus Products Pvt Ltd were forwarded to CBI. Statement of account of M/s Lotus Products Pvt Ltd has been proved as Mark PW54/A. Statement of account of M/s North Eastern Trades & Industries Pvt Ltd has been proved as Ex. PW54/B and statement of account of M/s Arunachal Traders has been proved as Ex. PW44/C. However, no document pertaining to M/s Sarah & Company has been placed on record. During the course of arguments, even the prosecutor confirmed the aforesaid fact.
12.2 As per CBI, there is one glaring transaction on record which clearly indicates that accused Darshan Singh was controlling the aforesaid accounts and using those accounts to screen his ill gotten money. My attention has been drawn towards the testimony of PW44 Sh. Bhagwan Singh. He is the one who CC No. 37/2011 CBI Vs. Darshan Singh etc 73 of 95 had opened account with Vijaya Bank, Ita Nagar under the name and style of M/s Arunachal Traders. He deposed before the court that he had opened the firm in the name of M/s Arunachal Traders and his firm was dealing in electrical work and was awarded with contract. He also knew Sh. Darshan Singh, Chief Engineer who was posted at Ita Nagar and he was introduced to him by one Trilok Singh. He further deposed that he had opened account in the name of said firm M/s Arunachal Traders with Vijaya Bank, Ita Nagar as Darshan Singh had instructed Trilok Singh in this regard and in turn, Trilok Singh took him to the bank and account was got opened. He further deposed that cheque book was issued and Trilok Singh had obtained his signatures on some blank cheques and then such blank signed cheques were given to Darshan Singh. He also deposed that there was no transaction in the said bank account related to M/s Arunachal Traders. He questioned Trilok Singh as to why his signatures, on blank cheques, had been obtained and also demanded those blank cheques back from Trilok Singh. He claimed that Trilok Singh then talked to Darshan Singh and cheque book was returned but those blank signed cheques were not returned. He then was asked by Darshan Singh to close the bank account which he did. He reiterated before the court that he did not do any transaction in the said firm and he had merely signed the blank cheques.
12.3 Ld. PP has claimed that a sum of Rs.20 lacs was electronically transferred from the said account of Vijaya Bank of Ita Nagar. Darshan Singh was having account no. 18510 with Bara Khamba Road branch of Vijaya Bank of New Delhi and said amount of Rs.20 lacs was electronically transferred in said account and was withdrawn by accused Darshan Singh by self cheque on 30.11.1994. Such cheque has been proved as Ex. DW2/P1 (D75).
12.4 Ms. Sharma has contended that in light of the categoric testimony of PW44 Bhagwan Singh, it becomes apparent that accused Darshan Singh was responsible for all the deposit entries in Ita Nagar branch as well because Bhagwan Singh never had any concern with any transaction done in said bank CC No. 37/2011 CBI Vs. Darshan Singh etc 74 of 95 account and he was rather coerced to sign blank cheques. It was a ploy to conceal the ill gotten money and the amount was later got electronically transferred and was eventually withdrawn by accused in Delhi on 30.11.1994.
12.5 Sh. Pandey has countered the aforesaid contention. According to him, accused Darshan Singh wanted to sell his two properties i.e. one property situated in Vijaya Building, Bara Khamba Road and one property of Vikas Puri and, therefore, he entered into an agreement to sell with Sh. Bhagwan Singh who had shown desire to purchase the same and it was only because of said agreement that Bhagwan Singh had electronically transferred a sum of Rs.20 lacs which was eventually withdrawn by Darshan Singh.
12.6 Sh. Pandey has supplemented that since the deal did not materialize, accused Darshan Singh returned that withdrawn cash amount of Rs. 20 lacs to Bhagwan Singh and, therefore, prosecution cannot dig out any sort of advantage or mileage or show any sort of criminality on the part of Darshan Singh alleged to be emanating from such transaction.
12.7 Sh. Pandey has also strongly relied upon the assessment order in this regard. My attention has been drawn towards assessment order Ex. DW2/F passed by Sh. R.N. Dey, ITO, North Lakhimpur Ward and as per such assessment order dated 27.02.2001 for assessment year 1994-95, same Sh. Bhagwan Singh had appeared in those income tax proceedings on 13.2.2001 and stated that his firm M/s Arunachal Traders had paid Rs.20 lacs to Darshan Singh & Others for purchasing a flat in Delhi but as the matter was not finalized, the amount was received back later.
12.8 Sh. Pandey has thus contended that Bhagwan Singh had made a correct statement before the income tax department and his deposition made before the court has no value as it has been procured by CBI exercising undue influence. He has claimed that proceedings conducted by income tax CC No. 37/2011 CBI Vs. Darshan Singh etc 75 of 95 department cannot be ignored at all and have greater persuasive value. 12.9 I, however, do not find any merit in such defence contention. Reasons are many. Firstly, there is no agreement showing any such alleged transaction regarding sale. It's not a case of small amount. A sum of Rs .20 lacs is a big amount in today's context and was even bigger in 1994. Immoveable properties are not sold or purchased in such a casual manner. Secondly, accused Darshan Singh was a Public Servant. He was, therefore, bound by conduct rules. He should not have ventured into any such transaction without prior permission of his department. Accused has not placed any material which may suggest that he had sought any permission on this score from his department. Thirdly and more surprisingly, it is not explained as to why accused Darshan Singh allegedly returned such hefty amount in cash without even bothering to have any receipt from Bhagwan Singh.
12.10 As already noticed above, said Bhagwan Singh has specifically deposed before the court that he never entered into any such transaction with accused Darshan Singh. Moreover, he was made to sign and he claimed that he had not carried out any such transaction at all. He seems to have no concern with such firm M/s Arunachal Traders. Undoubtedly, he stated something different in IT proceedings but that does not mean that his said version is true and whatever he has deposed before this court is untrue.
12.11 In the case of STATE OF BIHAR V. LALU PRASAD 2008 CRI. L. J. 2433 PATNA, a case related to Disproportionate assets, it has been held that findings of Income-Tax Appellate Tribunal were not binding upon criminal Court and could not be held to be conclusive on ground that returns were filed much earlier than registration of FIR. Reliance was also placed on EMPEROR V. KHWAJA NAZIR AHMAD, AIR 1945 PRIVY COUNCIL 18, wherein it has been held as follows :-
"It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same and similar allegations ..... it is the duty of a criminal CC No. 37/2011 CBI Vs. Darshan Singh etc 76 of 95 Court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it."
12.12 Non-examination of Trilok Singh cannot be said to be fatal more so in the backdrop of the convincing testimony of Bhagwan Singh. Defence also cannot be permitted to dig out any benefit from document Ex DW2/A. It is undated letter and moreover, defence did not think it appropriate to have confronted Bhagwan Singh with the same. After all, Bhagwan Singh is allegedly author of the same and it was, therefore, incumbent on the part of defence to have shown the same to him in cross examination. Moreover, as per suggestions put to him by accused Darshan Singh, Darshan Singh returned amount in cash whereas when Darshan Singh entered in witness box, he claimed that amount was returned by way of self-cheque after 20-25 days. Defence also cannot extract any benefit by claiming that the intention was bonafide as the amount was transferred electronically in the bank of accused Darshan Singh. Criminality lies in withdrawing and misappropriating such money and not in receiving per se though receipt of such big amount without there being any genuine transaction is itself indicative of malafide intentions.
12.13 Thus in the absence of any agreement as such and proper proof of return of money, non-informing the Department about any such transaction and the convincing deposition made by Bhagwan Singh, I do not agree to the defence theory at all.
12.14 Learned PP has contended that testimony of PW54 Dinesh Aggarwal and of PW44 Bhagwan Singh clearly indicates that accused Darshan Singh was calling shots and was controlling various bogus accounts opening in Ita Nagar under the name of M/s North-East Trade & Industries Ltd., M/s Lotus Products Pvt. Ltd. and M/s Sarah & Company. She has contended that ill-gotten money was transferred by Darshan Singh in such accounts and was CC No. 37/2011 CBI Vs. Darshan Singh etc 77 of 95 subsequently got transferred to his own account or withdrawn illegally. I have seen the deposition of PW54 Dinesh Kumar Aggarwala and he has also categorically deposed that he was made Director in M/s North-East Trade & Industries Pvt. Ltd and M/s Lotus Products by Sh. S.C. Verma. He has not been cross-examined at all.
12.15 Undoubtedly, there are shadowy cash deposit entries in such accounts but prosecution should have explained the entries properly. Deposit slips related to such cash deposits were never collected during the investigation and were never placed on record either. Prosecution should have also taken the specimen handwriting of accused Darshan Singh and should have sent the same to CFSL in order to have a clear-cut opinion whether any such deposit slip was also containing his handwriting in order to at least connect him with these accounts.
12.16 Accused Darshan Singh, being public servant, was required to file Property Returns on annual basis. He never submitted any Return as is apparent from letter Ex. PW56/A (D-74). Sh. Pandey has contended that merely because such Returns were not filed, it cannot be assumed that acquisition was illegal or that accused Amar Kaur was not working anywhere. I am, however, not impressed with such argument at all. If the intentions of accused were actually bonafide, he should have submitted the Returns on regular basis and should have reflected all the acquisition - whether by himself or by Darshan Singh HUF or by the two companies in which his wife was Director- to his department regularly and punctually.
12.17 Defence has also relied upon one judgment of Apex Court cited as Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402. I have seen aforesaid judgment very carefully and in that case, accused had not submitted the returns in his department in the prescribed form and he disclosed his assets on a plain paper pursuant to the directions by superior authority and it was in CC No. 37/2011 CBI Vs. Darshan Singh etc 78 of 95 those peculiar circumstances that it was held by the Apex Court that non filing of returns in prescribed form may render accused liable for disciplinary proceedings under service jurisprudence but that by itself would not be a ground for rejection of such paper in toto in a criminal proceeding under PC Act that too without examining the contents thereof and accused should not be fastened with criminal liability for non compliance of such service rules which were not rules of evidence. Defence cannot dig out any advantage from aforesaid judgment as in the present case, he never submitted any return either in prescribed form or on a plain paper. Merely, because department has not taken any action against the accused for not filing property returns in the department, defence cannot be permitted to claim that the court also cannot look into any of acquisition of assets. It would be too fanciful to say that since the department has not taken any initiative now even the criminal court can also not look into the aspect of acquisition.
INVOLVEMENT OF ACCUSED PRADEEP JAIN 13.0 As far as accused Pradeep Jain is concerned, he has been charge- sheeted with the following allegations:-
(i) He acted as a conduit for Darshan Singh when Darshan Singh as Chief Engineer (Power) had awarded contracts worth rupees several crores to various parties and had received huge commission from the contractors.
(ii) He abetted the offences committed by Darshan Singh by laundering his ill-gotten money in acquiring shares of M/s Amethi Textiles Ltd.
(iii) He had actively and intentionally abetted Darshan Singh by introducing opening of SB Account No. 11653/12408 in the name of Darshan Singh in Indian Overseas Bank, Parliament Street, New Delhi on 29.03.1994 and also for SB Account No. 18510 in Vijaya Bank, Barakhamba Road, New Delhi.
(iv) Lastly, various bank accounts were opened by accused Darshan Singh in which huge amount had been deposited in cash CC No. 37/2011 CBI Vs. Darshan Singh etc 79 of 95 from which huge amount had been transferred to the account of M/s Amethi Textiles Ltd.
13.1 Unfortunately, allegations have not been proved in any manner whatsoever.
13.2 PW49 S.C. Verma, Chartered Accountant has not supported the case of prosecution with respect to the role and involvement of accused Pradeep Jain. He merely claimed that he had heard that Pradeep Jain was very influential businessman of Arunachal Pradesh and he also learnt from his certain income tax sources that such Pradeep Jain used to create companies to transfer huge money from Arunachal Pradesh to his companies. He deposed that he could not say whether he (Pradeep Jain) knew accused Darshan Singh or not. Hearsay evidence has no credibility or sanctity. He took a somersault from his previous statement made during investigation. This witness was, therefore, cross-examined by the prosecution but despite such cross-examination, he did not support the case of prosecution and did not say even a single incriminating word against accused Pradeep Jain. Moreover, there is nothing before me which may show that he was an active and influential businessman of Arunachal Pradesh or that he was instrumental in getting any contract for any contractor through accused Darshan Singh. There is also nothing on record which may show that there was any sort of connection between accused Darshan Singh and Pradeep Jain. Moreover, even if it is assumed that they knew each other that by itself would not attract any criminality.
13.3 House of accused Pradeep Jain was searched by CBI and seizure memo has been proved as Ex. PW55/A (AD-4). However, none of the related documents, which were taken into possession under such memo, are part of the judicial record. Prosecution has also only attempted to show that accused Pradeep Jain was having one company M/s Amethi Textiles Ltd. which was later renamed as M/s Runeecha Textiles Ltd. I have also seen various documents related to some other companies like M/s North-East Trade & Industries Ltd., M/s CC No. 37/2011 CBI Vs. Darshan Singh etc 80 of 95 Lotus Products Pvt. Ltd. and M/s Sarah & Company. Whatever documents, in this regard have been placed on record, do not directly or indirectly link accused Pradeep Jain in any manner whatsoever. Prosecution has not bothered to place on record any bank statement related to M/s Amethi Textiles Ltd. Prosecution has also not taken any pain to prove seizure memo D-79 vide which various vouchers were seized from Vijaya Bank. Moreover, vouchers, so seized, have not even been made part of the record.
13.4 Undoubtedly, as per Ex. PW62/N (D-73), it might appear as if Pradeep Jain had introduced the aforesaid account which had been opened by accused Darshan Singh with Indian Overseas Bank, Parliament Street but fact remains that no witness has stated that such introducer Pradeep Jain is the same Pradeep Jain who is facing trial as an accused in the present case. Even if it is assumed that accused Pradeep Jain was introducer of such account, such fact by itself would not take the case of prosecution anywhere qua accused Pradeep Jain. No statement of account pertaining to such Indian Overseas bank account has been placed on record. Even with respect to the other saving account no. 18510 which accused had with Vijay Bank, Barakhamba Road, New Delhi, even account opening form has not been placed on record. In view of my foregoing discussion, it becomes very much evident and palpable that there is nothing on record to show that accused Pradeep Jain had any role to play or that he had abetted the commission of offences in any manner.
OTHER DEFENCE CONTENTIONS 14.0 It has been stressed by Sh. Pandey that CBI committed an error by straightway registering FIR without formally lodging any preliminary inquiry. In this regard, it would be useful to refer to a very recent judgment delivered by Apex Court in the case of Lalita Kumari Vs. Government of UP & Others (Writ Petition Criminal (Criminal)) 68/2008 and in aforesaid judgment dated 12.11.2013, a five judges bench of Apex Court has laid down that registration or CC No. 37/2011 CBI Vs. Darshan Singh etc 81 of 95 non registration of FIR necessarily depends upon the information given to the police. If such information discloses commission of cognizable office, registration of an FIR is mandatory but if no cognizable offence is made out from the information so received, the FIR need not be registered immediately and police can conduct a sort of preliminary verification or inquiry for the limited purposes of ascertaining as to whether a cognizable offence has been committed or not. Thus at the stage of registration of FIR, it has to be merely seen whether the information ex facie discloses the commission of a cognizable offence or not. Undoubtedly, in said judgment, it has been also observed that preliminary inquiry may be made in corruption cases but it has also been supplemented that holding of preliminary inquiry would depend upon the facts and circumstances of each case. In the present case, FIR has been proved as Ex. PW62/V (D-1). It was registered on 22.09.2005 on the basis of reliable source information. Information, so received, is found to be very exhaustive. The facts and figures related to acquisition of assets -movable and immovable, income and expenditure have been specifically mentioned in such information and the extent of disproportionate assets has been claimed to be of more than Rs.70 lacs and in view of such specific information, to my mind, CBI did not commit any irregularity or illegality by straightway registering FIR. Moreover, accused Darshan Singh was already under scanner as CBI had already registered an FIR against him way back in 2001.
14.1 Sh. Pandey has also claimed that check period has not been selected properly. According to him, as per the allegations levelled in the charge-sheet, accused had amassed huge wealth while he was posted as Chief Engineer but the check period is from 01.01.1991 to 31.121997 whereas he had become Chief Engineer in the year 1993 only and after his suspension in 1995, there was no question of his involvement in the official business. Undoubtedly, accused Darshan Singh was never Chief Engineer for the entire check period but fact remains that check period has been taken by CBI primarily keeping in mind the acquisitive activities. Investigating agency, in such matters, is free to decide CC No. 37/2011 CBI Vs. Darshan Singh etc 82 of 95 on the check period but it needs to be kept in mind that in such type of cases, as an exception to the general rule, the burden is substantial on the accused and, therefore, while selecting such period, CBI should concentrate and focus on such segment where there is actually volatile activity or unexplained acquisitive transaction. Be that it may, accused cannot be permitted to raise any grudge about selection of such check period.
14.2 It has also been argued by Sh. Pandey that testimony of PW49 Sh. S.C. Verma cannot be pressed into service as any professional communication made to him cannot be disclosed by him without express consent of his client. Reliance has been placed on Sec 126 of Indian Evidence Act, 1872. My attention has also been drawn to Council of ICAI Vs. Mani S Abraham AIR 2000 Ker 212 in order to claim that even chartered accountant stands covered in such section. Even if it is assumed for a moment that any charted accountant cannot disclose the information, being privileged information, it seems that even such charted accountant was privy to certain things which were not legal per se. He knew that accused Darshan Singh wanted to acquire defunct companies. He arranged for those. He never verified the information in the desired manner. He also seemed to know that there was no genuine share holder and no share application money as such. He also seems to be abettor to some extent. Such chartered accountant should feel himself fortunate that he has been spared by CBI.
14.3 Sh. Pandey has drawn my attention towards the fact that accused was made to undergo departmental inquiry and nothing surfaced during such departmental inquiry and such fact is having direct bearing over the criminal case as well. However, I do not find any merit in such contention. Inquiry report has been placed on record. A perusal of the same would clearly indicate that such inquiry was in respect of alleged irregularities on the part of accused Darshan Singh in connection with various supply orders. One charge could not be substantiated. One charge was dropped and two charges were found partially CC No. 37/2011 CBI Vs. Darshan Singh etc 83 of 95 substantiated. Inquiry report is of 04.08.1997. However, disciplinary authority disagreed with the findings given by inquiry officer and accused was asked to submit his representation/objections. Finally, the disciplinary authority decided to dismiss accused Darshan Singh with immediate effect vide order dated 30.12.1997. It is also not in dispute that accused challenged his said dismissal order and vide order dated 14.02.2013 passed by Guwahati High Court, Ita Nagar Branch in Writ Appeal No. 36 (AP) of 2007, such dismissal order dated 30.12.1997 was set aside and there was direction to proceed with the matter afresh. In such a situation, even otherwise, defence cannot dig out any advantage from the aforesaid disciplinary proceedings. It will not be out of place mention here that defence itself has relied upon one judgment cited as Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry (2005) 10 SCC 471 wherein it has been observed that proceedings in criminal case and departmental case can go simultaneously except where these two proceedings are based on same set of facts and evidence is common. Here, whereas situation is not akin and the aspect of having assets disproportionate to the known sources of income was never an issue in the departmental proceedings 14.4 It will not be out of place to mention that charge-sheet talks about notification issued under Section 6 of Delhi Special Police Establishment Act 1946 by the Government of Arunachal Pradesh and also regarding notification issued by Central Government u/s 5 of DSPE Act. CBI did not place on record these two notifications. Court can, however, take judicial notice of these notifications. I have called for and seen the contents of notification no. VIG-54/96/104 dated 22.03.2005 issued by Government of Arunachal Pradesh as well as notification no. S.O.1118 (E) dated 11.08.2005 published in Gazette of India and it becomes apparent that CBI was competent to investigate the present matter in view of said notifications.
14.5 I have already given benefit with respect to various heads of income to accused Amar Kaur. Her ITRs have already been considered in this CC No. 37/2011 CBI Vs. Darshan Singh etc 84 of 95 regard. I have seen the testimony of DW4 Sh. Surender Singh and it becomes very much apparent that he has no knowledge whatsoever regarding any further additional income earned by Amar Kaur. DW5 Ranjeet Singh happens to be a close relative of accused Darshan Singh and Amar Kaur. However, he has also given evasive answer with respect to any income which Amar Kaur allegedly had from the business run under the name and style of M/s Jagat Steal Rolling Mill. Moreover, even defence has not bothered to specify the exact quantum of such income. Be that as it may, as already noted above, ITRs have already been considered as per their face value. Here, I would also like to additionally comment that defence has also examined DW1 Raj Kumar Aggarwala, Income Tax Practitioner. He used to work under Sh. Ram Chander Verma, Advocate and his son Sh. Suresh Chander Verma, CA. Though in his examination-in-chief, he claimed that balance-sheets regarding M/s K.R.A. Estates and M/s Badri Dham Tea Company used to be prepared as per the information made available by Amar Kaur and Gurmukh Singh yet it was found during recording of his testimony that he was carrying two pages with him and was giving deposition with the help of the same. These pages were retained on record and were marked as Mark DW1/P1. Thus, defence cannot dig out much advantage from his testimony either.
14.6 It has also been claimed that Amar Kaur was not a housewife and investigating agency did not properly scrutinize the documents and if the documents had been properly evaluated, it would have learnt that she was having income from business as well as from agriculture and rental. As far as interest income, rental income and agriculture income are concerned, these can be earned while sitting in the house. Probably, CBI only wanted to indicate that she was not going anywhere for work and in that particular context, she has been labelled as a housewife. Be that as it may, it hardly makes any difference as I have taken into account her various alleged income emanating from business, rent and agriculture.
CC No. 37/2011 CBI Vs. Darshan Singh etc 85 of 95 14.7 Sh. Tamta, while fully agreeing with the defence contentions raised by Sh. Pandey, has also supplemented that accused Gurmukh Singh has unnecessarily been dragged into this litigation. It has been argued that he retired from Army and was doing his own business and he has been roped in merely because he was a close relative of accused Darshan Singh. It has also been argued that income and assets of Gurmukh Singh, prior to check period, have not been deliberately taken into account. He has also argued that even cross- examination of IO would suggest that these two companies were very much functional companies and were not, therefore, paper companies.
14.8 I have already considered the evidence of some of the share- holders who categorically denied that they had applied for any share in the companies. As already noticed above, the onus was on the Directors of the companies to show that their companies were very much into business. No material has been placed on record either by Gurmukh Singh or by Amar Kaur to show that there was any business in any of these two companies. Even if there was some namesake business in these two companies, I cannot be oblivious of the fact that substantial money, which these companies had received, was by way of share applications money but the evidence of some of the alleged share- holders speaks to the contrary. Accused Gurmukh Singh has also not placed on record any material which may show that these share-holders had in fact applied for the shares and had made the payment as well.
14.9 It has also been argued from the side of defence that the documents have not been proved in accordance with law. Undoubtedly, it is the prime duty of prosecution to prove the documents in accordance with law and secondary evidence can be led with the permission of the Court as per the provision contained under Indian Evidence Act. However, at the same time, defence has not been able to show that any such document was containing any information which was incorrect or false. Technical aspects should not be permitted to throttle and strangle substantial justice.
CC No. 37/2011 CBI Vs. Darshan Singh etc 86 of 95 14.10 I also do not find anything unacceptable in the wordings used in the charge which may suggest that any prejudice had been caused to the defence. Sh. Tamta has contended that charge has not been framed in the proper manner. However, I do not find any error in the charge and moreover, only that error, which results in failure of justice or which causes serious prejudice to the defence, is liable to be considered. No such error has been pointed out.
14.11 Defence has also contended that the independent income of accused Gurmukh Singh has not been considered anywhere. According to Sh. Tamta, he had retired from Army and inherited good fortune which should have been considered by the prosecution. I, however, do not find any merit in such contention. For the purposes of ascertaining the disproportionate assets, CBI has included the income of accused Darshan Singh, his wife and his daughter. Accused Gurmukh Singh as well as Amar Kaur had abetted the commission of offence by becoming directors in shell companies wherein the ill gotten money of accused Darshan Singh was pumped in. Income of those companies has been considered by the prosecution in view of that uncharacteristic context and background, though fact remains that any income generated through such ill gotten money should not have been considered at all. Be that it may, prosecution was fully justified in not bothering itself to see or assess the individual income earned or individual expenses incurred by accused Gurmukh Singh.
14.12 Defence has also placed reliance upon State of MP Vs. Awadh Kishore Gupta (supra). I have gone through the aforesaid judgment and I am not able to understand as to in what context defence wants to use the aforesaid citation. In that case, Gwalior Bench of Madhya Pradesh High Court had quashed the proceedings when the case was at the stage of investigation holding that nothing substantial had been collected despite consuming considerable time and also keeping in mind the explanation about the assets given by the accused. However, when the matter was taken to Supreme Court, CC No. 37/2011 CBI Vs. Darshan Singh etc 87 of 95 such order was set aside holding that since investigation was underway, it was impermissible to look into the material, the acceptability of which was essential a matter for trial.
CONCLUSION 15.0 In view of my foregoing discussion, the various entries related to income, assets and expenditure stand proved as under:-
INCOME Sl. N. Description Amount as Amount per charge Proved sheet (in Rs) during trial 1 Net Salary 631244 631244 2 Interest on PPF A/c No. 30, SBI, Ita 146737 146737 Nagar 3 Interest on SB A/c No.1109 SBI, Ita 24510 24510 Nagar 4 Interest on FDRs/ 134935 134935 5 Interest on SB A/c No.20797 3506 3506 6 Interest on SB A/c No.1754/18, Ita Nagar. 10701 10701 7 Income from sale of Flat No.759 175000 175000 Vikaspuri, New Delhi 8 Interest on 10 FDRs/STDRs, SBI Ita 41589 41589 Nagar.
9 Income from sale plot No. 7, 8 & 9 CTS, 290000 290000 Aurangabad 10 Interest income of Ms. Kamaljit Kaur of 5547 5547 SB A/c No. 18/1443 11 PPF A/c No. 10/1645 (29.2.96 to 100 100 31.12.97) 12 SB A/c No.1, Haryana State Cooperative 9072 9072 Apex Bank Chandigarh 13 SB A/c No. 498, Haryana State 5197 5197 Cooperative Apex Bank, Chandigarh 14 Income from house property from 1.4.95 132000 336000 to 31.12.97 (33 months @ Rs.4000 per month as mentioned in ITR) 15 Agricultural income F.Y. 1995-96 47426 165196 15A Additional Income of Amar Kaur as per 131683 ITRs CC No. 37/2011 CBI Vs. Darshan Singh etc 88 of 95 16 PPF 10/1690, SBI, Chandigarh (24.5.96 7200 7200 to 31.12.97) 17 SB A/c No.157, Haryana State 23146 23146 Cooperative Apex Bank, Chandigarh (28.3.94 to 31.12.97) 18 SB A/c No. 352, OBC Fatehgarh Sahib. 5043 5043 19 SB A/c No.5149, Vijaya Bank, Ita Nagar 5179 5179 20 SB A/c No.1508, Vijaya Bank, Ita Nagar 7324 7324 21 Rental income of Flat No.4-C,Vijaya 819337 819337 Building, New Delhi.
22 Profit on sale of share 11806 11806 23 Profit on sale of share 15780 15780 24 Rent from house 52500 52500 25 Rent from house property as per ITR 210000 233606 (A.Y. 1995-96) 26 Rent from house 210000 222616 27 Rent from house 210000 212699 28 Rent from house 280000 282663 29 Business income 14396 14396 Agricultural income 94702 94702 30 Business income 5141 86190 Agricultural income 80968 80968 31 Business income 15906 102051 Agricultural income 86145 86145 32 Dividend income of share of Tai 1200 1200 Industries Ltd.
33 Interest & dividend Income of share of 665 665 Anil Special Steel Industries Ltd., Jaipur 34 Interest dividend income against share of 1050 1050 Balurghat Technologies Ltd 35 Interest dividend income against share of 334 334 Titagarh Industries ltd.
36 Transposed Income qua return of 22000 earnest money Total 3815386 4499617 CC No. 37/2011 CBI Vs. Darshan Singh etc 89 of 95 IMMOVEABLE ASSETS AS ON 01.01.91 Sl. Name of the property Amount as per charge Amount proved No. sheet (in Rs.) during trial 1 HN.1281, Sector 33C, 216000 216000 Chandigarh. 2 Plot no. 7 & 8 CTS 19164 19164 Shahnoor wad Aurandabad. 3 Flat no. 759, Vikas Puri, 130987 130987 New Delhi. 4 Flat No. 4-C, Vijaya 599963 599963 Building. Total 966114 966114 Sl Description Amount (in Rs.) Amount Proved No. during Trial 4A Plot No.9 of CTS 8000 0 Shahnoor (Already covered in item no.2 above) 4B Flat No.F4/3, 2nd Floor, 84673 0 Chetla Housing Complex, Kolkatta 4C Property situated at 22000 0 Sauiripur Mahajan CGHS, Delhi ( Sum of Rs. 22000 Transposed as Income) Moveable Assets as on 01.01.1991 Sl. Movable Assets Amount as per Amount No. charge sheet proved during trial (in Rs.) ( In Rs.) 1 Balance in SB A/c No.1109 15052 15052 2 Balance in PPF A/c No. 30, SBI. 100572 100572 3 Household items 64600 64600 4 Balance in SB A/c No.20797 11156 11156 Chandigarh CC No. 37/2011 CBI Vs. Darshan Singh etc 90 of 95 5 Credit balance in SB A/c No. 1508 43,522 43,522 6 Credit balance in SB A/c No. 2922 2922 18/1443 6A Account of Ms. Kamaljeet Kaur 30831 (minor) held with Vijaya Bank, Ita Nagar branch. 6B HUF account with PNB, 17170 Chandigarh Total 237824 285825 ADDITIONAL MOVABLE ASSETS AS ON 1.1.91 AS PER DEFENCE Sl. Name of Holder and Amount As per Amount No. description Defence proved (in Rs.) (in Rs.) 6A Ms. Kamaljeet Kaur (i) Shares 100000 100000 (ii) FDRs 238385 238385 (iii) Cash in hand 19617 16695 6B Darshan Singh (HUF) (i) Shares 25000 25000 (ii) FDRs 85288 85288 (iii) Cash in hand 12009 (iv) Cows/livestock 18700 18700 6C Darshan Singh (i) Shares 10000 10000 (ii) FDRs 275174 275174 (iii) Cash in hand 165298 38519 (iv)KVPs 20000 20000 (v) NSCs 58755 58755 Total 1028226 886616 Immoveable Assets as on 31.12.1997 SlNo. Name of the property Amount as per Amount charge sheet proved (in Rs.) during trial 1 HN 1281, Sector-33 C, 216000 216000 Chandigarh. 2 One Bigha, 14 Biswas 425000 425000 agricultural land at G. T. Road, Sirhind CC No. 37/2011 CBI Vs. Darshan Singh etc 91 of 95 3 One Bigha, 15 Biswas 425000 425000 agricultural land at G. T. Road, Sirhind 4 One Bigha, 15 Biswas 319000 319000 agricultural land at G. T. Road, Sirhind 5 Flat No.4-C, Vijaya 623213 599963 Building, 6 House No.1162, 3032700 2832930 Sector-33C, Chandigarh 7 SCO Site No.165, 1577900 1517960 Sector-34-C, Chandigarh. 8 Plot and one room at 219375 219375 Bahmanmajra, Sirhind city 9 Land 19 Kanal & 15 Marla 223750 223750 at village Jhanjeri, Punjab 10 Land 16 Kanal at village 223750 223750 Jhanjheri, Tehsil Khara, District Ropar, Punjab 11 Land 12 Kanal 3 Marlas 174250 174250 village Sawara, Tehsil Kharar, District Ropar, Punjab 12 Land 12 Kanal 3 Marlas 174250 174250 vilalge Sawara, Tehsil Kharar, District Ropar, Punjab 13 Land 12 Kanal 3 Marlas 174250 174250 village Sawara, Tehsil Kharar, District Ropar, Punjab Total Immovable Assets 7808438 7525478 Moveable Assets as on 31.12.1997 Sl.No. Description Amount Amount as per proved charge during trial sheet (in Rs.) (in Rs.) 1 Credit balance in PPF A/c No.30. 283758 283758 2 Credit balance in SB A/c No. 52285 52285 1109. 3 Ten (10) FDRs bearing No. 400000 400000 850135 to 850144 CC No. 37/2011 CBI Vs. Darshan Singh etc 92 of 95 4 Credit balance in SB A/c No. 4333 4333 16033603 5 20 Nos. of FDRs 990000 990000 6 Investment in equity shares 121630 35000 7 Maruti 800 No. AR-01,5096 80000 80000 8 Household items 121300 121300 9 Premium of LIC policy No. 224127 224126 44073561 and 440071746 10 Credit balance in RD A/c No.129, 45000 11 Credit balance in the PPF A/c 127200 127200 12 Credit balance in SB A/c No.157. 11066 13 Credit balance in SB A/c No.352. 28005 28005 14 Credit balance in SB A/c No. 314209 314209 5149 15 Credit balance in the PPF A/c 127312 127312 No.1645 16 Credit balance in A/c No.498 13791 13791 17 Credit balance in SB A/c No. 12201 1209 18 Maruti 800, Model 1996 188664 188664 19 Current Account No. 1 4521 4521 Total 3149402 2994504 EXPENDITURE Description of expenditure Amount Amount as per proved charge during trial sheet Sl.No. (in Rs.) (in Rs.) Non verifiable household expenditure @ 1/3rd of net 1 Salary 208310 208310 2 Electricity consumption charges 54119 3 Telephone charges 23078 23078 4 Water charges 9127 5 Polishing of furniture 55900 (i) Income tax deposited in the 6 name of KRA Estate Ltd. 206157 198305 (ii) Income tax deposited in the 27750 7959 CC No. 37/2011 CBI Vs. Darshan Singh etc 93 of 95 name of Badridham Tea Company Pvt. Ltd. (iii) Income tax paid by Smt. Amar Kaur. 23031 19900 (iv) Income tax paid by Darshan Singh 220224 220224 7 Purchase of Onida Colour TV 18500 8 Purchase of Bajaj Scooty. 12004 12004 9 Purchase of Electric Chimney 5500 10 BPL Refrigerator 18750 18750 11 Purchase of Bajaj Sunny 10182 10182 Payments made to M/s Gujral Estate Pvt. Ltd. 28 Barakhamba 12 Road, New Delhi 19650 19650 Expenditure on education of Ms. 13 Kamaljeet Kaur 10578 10578 14 Purchase of aquaguard 5780 5780 Total 928640 754720 DISPROPORTIONATE ASSETS Description Amount Amount (As per Challan) ( As proved) A Assets at the beginning of check period i. e. 1.1.91 1203938 2138555 B Assets at the end of check period i.e. 31.12.97 10957840 10519982 C Assets acquired during the check period 9753902 8381427 D Expenditure during the check period 928640 746152 E Total assets and expenses of the check period 10682542 9127579 F Income during the check period 3815396 4499617 G Extent of disproportionate Assets (E - F) 6867146 4627962 15.1 In the case of KRISHNANAND AGNIHOTRI (supra), it has been
held that a margin of 10% of the income of the accused should be given for the purpose of determination of disproportionate assets held by him and even if I apply said principle, accused cannot get rid of this case as further benefit of 4.62 lacs will not absolve him at all.
CC No. 37/2011 CBI Vs. Darshan Singh etc 94 of 95 15.2 Thus, in view of my foregoing discussion, A-4 Pradeep Jain is acquitted of all charges for want of sufficient evidence.
15.3 It, however, stands proved that accused Darshan Singh was found in possession of assets disproportionate to his known sources of income which is a misconduct punishable under Prevention of Corruption Act. Such extent of disproportionate assets, after giving him benefit of 10%, is found to be of Rs. 4165166/-.
15.4 Accused Darshan Singh (A-1) is accordingly held guilty and convicted u/s 13(1) (e) read with sec 13(2) of Prevention of Corruption Act.
15.5 His wife i.e. A-3 Amar Kaur and his brother-in-law i.e. A-2 Gurmukh Singh intentionally aided and abetted him in commission of such offence and, therefore, they both are held guilty u/s 109 IPC r/w 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act.
Announced in the open Court On this 1st April of 2014.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 37/2011 CBI Vs. Darshan Singh etc 95 of 95 CC No. 37/2011 CBI Vs. Darshan Singh and Others Wednesday, April 02 2014 Present: Ms. Jyotsna Sharma, learned PP for CBI.
Convicts Darshan Singh, Amar Kaur and Gurmukh Singh.
Acquitted- accused Pradeep Jain.
Sh. Satish Tamta, learned defence counsel for convict Gurmukh Singh.
Sh. Sudhir Pandey, learned defence counsel for convicts Darshan Singh and Amar Kaur.
1 Acquitted- accused Pradeep Jain has furnished personal bond and surety bond in a sum of Rs. 25,000/- each u/s 437-A Cr.P.C. Accepted.
2 Heard arguments on sentence.
3 Ms. Sharma has contended that convicts do not deserve any compassion. According to her, Convict Darshan Singh rose to a very responsible position and amassed wealth ostensibly by abusing his office and then in a very ingenious and cunning manner acquired numerous assets through shell companies in which he made his wife and brother-in-law paper-directors so that his misdeeds never came to forefront. She has also contended that Court should exercise its power and should confiscate these assets which have been evidently acquired with the help of ill-gotten money.
4 Sh. Pandey has, on the other hand, prayed for a lenient view. According to him, Darshan Singh never indulged in any corrupt practice and remained fully honest and upright during his career. It has been argued that it was his efforts that brought electrification to the remotest of the areas of Arunachal Pradesh. It has been re-stressed by him that his wife and brother-in- law were having their own independent income and they were actually running CC No. 37/2011 CBI Vs. Darshan Singh etc 96 of 95 those companies i.e. M/s K R A Estates Pvt. Ltd and M/s Badridham Tea Company Pvt. Ltd. and these companies, genuinely and by legal means, acquired properties with which convict Darshan Singh had no concern at all. Sh. Tamta has also prayed for a very sympathetic view. He has also reiterated that Gurmukh Singh was a Director in these companies which were very much functional and operational. He has also contended that convict Gurmukh Singh has two school-going children and his wife and children are totally dependent upon him. Sh. Pandey has also contended that Amar Kaur is confined to wheel- chair and is more than 75 years of age and, therefore, she should be shown maximum mercy. Thus, both the defence counsels have prayed that sympathetic view be taken keeping in mind the aforesaid facts, agony of trial already undergone by all of them and also the old age and poor health of all the convicts.
5 I have given my thoughtful consideration to the rival contentions.
6 Corruption is becoming a pain in the neck which has jeopardized the growth of our nation. Those holding responsible positions are primarily required to lead from the front and set high standards for others. Problem arises when they start accumulating wealth in an illegal and astute manner. Their such act definitely sends a wrong message to their subordinates who are also somewhat tempted to emulate them. Therefore, such insincere officials are required to be dealt with stern hands.
7 Any public servant is required to notify his employer about the properties possessed by him at the time of his joining and same is required to be updated annually. Objective is that such employer, at least, knows as to whether any property, movable or immovable, has been acquired by him and if yes, how? I would rather stretch this principle and philosophy further. If intentions of any such public servant are bonafide then even if such immovable properties are acquired by their close family members or by companies in which they have CC No. 37/2011 CBI Vs. Darshan Singh etc 97 of 95 major stake, such public servant should not even keep quiet about any such acquisition either.
8 In the present case, convict Darshan Singh never gave any information to his employer. Extent of assets disproportionate is found to be far above the ground. I need not remind myself that check period was upto 31.12.1997 and thus the worth of disproportionate assets has to relate back to that day. If that is kept in mind then, naturally, it's not a petite amount.
9 Confiscation of property is not, normally, in vogue for want of any specific provision under Prevention of Corruption Act. However, Court can still resort to such action with the aid of provisions contained under Code of Criminal Procedure. Reference be made to Mirza Iqbal Hussain Vs. State of Uttar Pradesh, AIR 1983 SC 60.
10 Keeping in mind aggravating and mitigating circumstances, I hereby sentence convicts as under:-
a) Convict Darshan Singh: Rigorous imprisonment for a period of three years and fine of Rs. 1 lac in default thereof to undergo simple imprisonment for a period of six months.
b) Convict Amar Kaur: Simple imprisonment for a period of one year and fine of Rs. 50,000/- in default thereof to undergo simple imprisonment for a period of one month.
c) Convict Gurmukh Singh: Simple imprisonment for a period of one year and fine of Rs. 50,000/- in default thereof to undergo simple imprisonment for a period of one month.
11 During course of the arguments, enquiries were made from the convicts and Court was apprised that H. No. 1162/Sector-33C, Chandigarh and SCO No. 165/34C, Chandigarh which have been acquired by M/s K.R.A. Estates Pvt. Ltd. have already been disposed of. Similarly, all the other immovable CC No. 37/2011 CBI Vs. Darshan Singh etc 98 of 95 properties acquired during the check period by M/s Badridham Tea Company except for one plot situated at Bahamanmajra, Sirhind City, Punjab have reportedly been disposed of already. It has also been apprised that value of such plot of Sirhind City would be around Rs. 40 lacs which is measuring 7200 square feet approximately.
12 Keeping in mind the overall facts and circumstances of the case, I strongly feel that it would serve the ends of justice if said plot situated at Bahamanmajra, Sirhind City, Punjab [as per details given in sale deed Ex. PW11/A (D-12)] which was allegedly acquired in the name of M/s Badridham Tea Company Pvt. Ltd. is impounded. Such property stands confiscated to State accordingly. CBI would take requisite steps in this regard and report to the court. Convicts, accordingly, immediately stand restrained from creating any sort of third party interest in such property without permission of the court. Such order, needless to say, would be subject to the outcome of appeal, if any.
13 Convicts be sent to jail under appropriate warrants.
14 A copy of judgment & order on sentence be given to them free of cost.
15 Ahlmad is directed to paginate and book-mark the file as per the circular so as to enable digitization of the entire record.
16 File be consigned to record Room.
Announced in the open Court On this 2nd April 2014.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 37/2011 CBI Vs. Darshan Singh etc 99 of 95