Delhi District Court
(Parveen Singh) vs State Of Orissa on 20 February, 2016
IN THE COURT OF SHRI PARVEEN SINGH
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 04/12
RC No. 5A/2011/ACUIV/CBI/NEW DELHI
CASE ID: 02403R0020652012.
CBI
VERSUS
(1) S.K Nirmal,
S/o Sh. O.P Nirmal
R/o Flat No. C603,
Dhauladhar Apartments,
Sector5, Dwarka, New Delhi.
(2) Ram Ji Lal Sharma,
S/o Sh. Jagdish Narayan Sharma,
R/o Village Dayalpur, Tehsil Chaksu,
Distt. Jaipur. .....Accused.
Date of Filing: 02.04.2012.
Date of Arguments: 20.02.2016.
Date of Order: 20.02.2016.
JUDGMENT
Accused S.K Nirmal has been chargesheeted for offence u/s 13 (2) r/w CC No. 04/12 1 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 13 (1) (e) of POC Act and accused Ramji Lal Sharma has been chargesheeted for offence u/s 109 IPC r/w 13 (1) (e) of POC Act.
Case of Prosecution:
2. In October 1986, accused No. 1 S.K Nirmal joined Ministry of Road Transport and Highways as Assistant Executive Engineer. Since 1986 till January 2001, accused no. 1 was not having any movable and immovable property in his name of in the name of his wife. Accused no. 1 was married to Smt. Madhu Nirmal in the year 1988. From this wedlock, one son was born in the year 2000.
3. From October 1986 to 1992, accused S.K Nirmal was posted at Regional Office Jaipur. From 1992 to October 1996, he was posted at Ministry of Road Transport & Highways, New Delhi. From October 1996 to May 1998, he was on foreign deputation for training in Netherland. From July 1998 to May 2001, he was posted at Regional Office Guwahati as Superintending Engineer. From May 2001 to 17th November 2003, he was working in the Ministry of Road Transport & Highways (HQ), New Delhi. In July 2009, he was promoted to the rank of Chief General Manager in NHAI. Father of accused no. 1 was working as a Film distributor at Jaipur and was not having any income from any other source.
4. The prosecution for the purposes of investigating this matter decided to consider a check period and the check period was taken from 01.11.2003 to 31.05.2010. During the investigation, details of total income, expenditure and assets of accused S. K Nirmal and his family were gathered.
CC No. 04/12 2 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016
5. Investigation disclosed that before the check period, accused no. 1 S.K Nirmal and his wife Madhu Nirmal had following assets (Immovable and Movable) in their names: Immovable Assets as on 31.10.2003 (Beginning of Check Period) Sl. Description of Documents Name of Holder Date Amount (Rs.) No. 1 Flat No. C603 Dhauladhar S. K. Nirmal 12.09.96 to 11,32,100/ Apartments at Sector5, 01.11.03 Dwarka.
2 Agreement to sale of flat on S. K. Nirmal and 20.07.01 12,00,000/ 1st floor at plot no. L15/3 Madhu Nirmal DLF Qutub Enclave Complex, Phase II, Village Sarhaul, Tehsil and Distt Gurgaon having area 264.075 sq mtr.
Total Rs.23,32,100/ Movable Assets as on 31.10.2003 (Beginning of Check Period) Sl. Description of Documents Name of Date Amount (Rs.) No Holder 1 Purchase of Vacuum Cleaner and Madhu 19.08.02 & 24,190/ Washing Machine Nirmal 05.06.01 2 Investment in Shares/ Debentures in S. K. 1993 2003 19,740/ the name of Shri S. K. Nirmal and Nimal and his wife during 1993 to 2000. Madhu Nirmal 3 Balance in PPF A/c No. 14897 of S. K. 01.11.03 65,823/ Shri S.K. Nirmal maintained in Nirmal Parliament Street, Post Office.
4 Value of movable articles found S. K. 25.05.2010 1,70,950/ during the search on 25.05.2010 at CC No. 04/12 3 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 the residential premises of Shri S. K. Nirmal Nirmal at C603, Dhauldhar Apartment, sector5, Dwarka, New Delhi (reflected in the inventory).
5 Balance in SB A/c No. 90622010011381, Syndicate Bank on S. K. 31.10.2003 87,878.75/ 31.10.2003. Nirmal 6 Balance in SB A/c No. Smt. 31.10.2003 73,250.54/ 90622010012494, Syndicate Bank Madhu on 31.10.2003. Nirmal 7 Balance in SB A/c No. S. K. 31.10.2003 1,10,726/ 1610000100305966, PNB, Nirmal Sector12A, Dwarka on 31.10.2003.
8 Balance in SB A/c No. S. K. 31.10.2003 42,527.71/
1610000100151000, PNB, Nirmal
Sector12A, Dwarka on 31.10.2003. ( A/C closed on 7.11.2009).
9 Balance in SB A/c No. S. K. 31.10.2003 1,44,249.03/ 52510098300, Standard Charted Nirmal Bank, Parliament Street on 31.10.2003.
10 Balance in SB A/c No. S. K. 31.10.2003 948/ 079010100090386, Axis Bank, Nirmal Sector5, Dwarka on 31.10.2003.
11 ICICI Limited, Tax Saving Bond S. K. Redemption 20,000/ (Four) dated 05.03.2002. Nirmal date 19.08.08 Rs. 36,000/ 12 IDBI Deep Discount Bond dated Madhu Redemption 5,300/ 18.03.1996. Nirmal date 01.06.2016 CC No. 04/12 4 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 13 UTI ULIP Scheme commenced on S. K. Redemption 39,000/ 12.09.1989 and last contribution on Nirmal date 12.09.04 10.07.2003 for Rs.
1,00,736/ 14 IDBI Bond dated 17.02.1999. S. K. Redemption 5,000/ Nirmal date 11.02.2006 15 ICICI Bank Tax Saving Bond dated S. K. Redemption 10,000/ 21.03.2003. Nirmal date 26.02.06 interest Rs.
2100/
16 IDBI Bonds dated 26.12.2002 S. K. Redemption 20,000/
Nirmal date 25.05.09
Rs. 34,000/
17 IDBI Bond dated 20.04.2001 S. K. Redemption 10,000/
Nirmal date 30.07.04
Rs. 14,000/
18 IDBI Bond dated 20.04.2001 S. K. Redemption 10,000/
Nirmal date 30.07.04
Rs. 14,000/
19 FD dated 06.06.2003 in Syndicate S. K. Redemption 62,634/
Bank Nirmal Rs. 74653.40
dated
10.05.2007
20 FD dated 04.09.2002 in Syndicate S. K. Redemption 50,000/
Bank Nirmal Rs.
87444.23/
dated
04.03.2012
21 FD dated 02.07.2003 in Syndicate S. K. Redemption 50,000/
Bank Nirmal Rs.
59504.57/
CC No. 04/12 5 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 dated 10.05.2007 22 FD dated 21.04.2003 in Syndicate S. K. Matured on 57,913/ Bank Nirmal 25.07.2006 23 FD dated 21.04.2003 in Syndicate S. K. Matured on 17,211/ Bank Nirmal 25.07.2006 24 FD No. 3109362017, PNB, S. K. Maturity 16,141/ Vikaspuri as on 31.10.2003. Nirmal dated 26.12.2004 for Rs.
19015/ 25 FD No. 3100049672, PNB, S. K. Maturity 63,099/ Vikaspuri as on 31.10.2003. Nirmal dated 21.07.2004 for Rs.
66799/
26 FD No. 00034470132902, HDFC S. K. Matured on 38,833.29/
Bank, Nirmal 04.05.2010
27 FD No. 00035070027968, HDFC S. K. Matured on 45,000/
Bank, Nirmal 05.04.2008
28 FD No. 00034470291381, HDFC S. K. Matured on 51,858.87/
Bank, Nirmal 29.05.2007
29 FD No. 00034470282430, HDFC S. K. Matured on 55,316.43/
Bank, Nirmal 06.11.2007
30 FD No. 00034470270634, HDFC S. K. Matured on 36,477.6/
Bank, Nirmal 28.08.2007
31 FD No. 00034470176213, HDFC S. K. Matured on 55,491.89/
Bank, Nirmal 12.07.2007
32 Term deposits in Standard Chartered S. K. As on 2,09,083.66/
Bank Nirmal 31.10.2003
Total 16,68,642.77
CC No. 04/12 6 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 5.1 Before the check period, accused S.K Nirmal and his wife had assets to the extent of Rs.40,00,743/.
5.2 The salary details of accused S.K Nirmal had also been collected prior to check period, the details of which is as follows: S.No Rank Period Gross Net Payment Salary 1 AEE 13.10.86 to November, 86 3426/ 3373/ 2 AEE/EE December, 86 to July, 92 273793/ 204907/ 2 AEE August, 92 to February, 93 45165/ 22188/ 3 EE March, 93 to February, 94 85144/ 49465/ 4 EE March 94 to February, 95 93693/ 54879/ 5 EE March 95 to February, 96 113262/ 60658/ 6 SC March 96 to February, 97 128698/ 66902/ 7 SC March 97 to February, 98 163150/ 1,00416/ 8 SC March 98 to July, 98 88222/ 65262/ 9 SE July, 1998 to April, 2001 794078/ 568535/ 10 SE May, 2001 to February, 2002 271232/ 236828/ 11 SE March, 2002 to February, 2003 346020/ 251880/ 12 SE March 2003 to 17.11.2003 260018/ 189988/ Total 2665901/ 1875281/ CC No. 04/12 7 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 5.3 Before check period, accused S. K Nirmal had visited Netherland and Japan and saved Rs.4,00,000/ and Rs.62,700/ respectively.
Assets:
6. As per the chargesheet, the assets of accused S.K Nirmal and his family members at the end of check period were found as under: Immovable Assets as on 31.05.2010 (End of Check Period) Sl. Description of Documents Name of Date Amount No Holder (Rs.) 1 Sale deed dt. 27.06.07 of Madhu Nirmal 27.06.07 (dt of 3,78,660/ Agriculture land having area w/o Shri Sanjay purchase) 1.19 hectare bearing Khasara Nirmal No. 672 and 673 situated beside Dama Road, village Barcus, Distt Dausa purchased from Shri Rudmal, S/o Moolchand alongwith registration and stamp duty charges.
2 Sale Agreement dt. 20.07.01 Madhu Nirmal 20.07.2001 12,00,000/ between Ms. Meghna Mittal (date of and M/s Veera Builders Pvt. purchase) Ltd. and Shri S.K. Nirmal and Mrs. Madhu Nirmal for purchase of Flat No. L15/3 DLF PhaseII at Gurgaon for a consideration of Rs.
1200000/.
3 Flat No. C603 Dhauladhar S.K. Nirmal 23.03 2005 12,79,550/
Apartments at Sector5, (date of
Dwarka, New Delhi. possession of
flat)
4 Payment made towards flat Madhu Nirmal April 2010 28,46,300/
CC No. 04/12 8 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 no. 21/274, Kaveripath, Mansarovar, Jaipur Total 57,04,510/ Movable Assets as on 31.05.2010 (End of Check Period) Sl. Description of Documents Name of Date Amount No Holder (Rs.) 1 Purchase of DAV S. K. Nirmal Nov. 2003 to 26,871/ DZ370/CE12+HDMI Cable, & family April 2010 cycle, Mattress, Tyers, Specs members etc. 2 Value of Jewellary items Vatsal. Nirmal 07.12.08 to 84,861/ purchased from Mor Jewellers and Madhu 09.01.09 and Malik Jewellers, New Delhi. Nirmal 3 Cash Rs. 46,70,000/ was found S.K. Nirmal 25.05.10 46,70,000/ during the search of house of Sh. S.K. Nirmal at C603, 6th Floor, Himachal Dhauladhar Apartment, Plot No. 5, Secto5, Dwarka, New Delhi on 25.05.2010.
4 Cash Rs. 1,21,500/ was found S.K. Nirmal 25.05.10 1,21,500/ during the search of office chamber of Sh. S.K. Nirmal at NHAI, G5 & 6, Sector10, Dwarka, New Delhi on 25.05.2010.
5 Value of movable articles found S.K. Nirmal 01.11.2003 to 54,29,50/ during the search on 25.05.2010 25.05.2010 at the residential premises of Sh.
CC No. 04/12 9 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 S.K. Nirmal at C603, Dhauldhar Apartment, sector5, Dwarka, New Delhi (reflected in the inventory) 6 Shares and Debentures in the S.K. Nirmal 01.11.2003 to 2,72,257/ name of Shri S. K. Nirmal and and his wife 25.05.2010 his wife 7 Credit balance in SB Account S.K. Nirmal 25.05.10 46,536.97/ No. 02491000039704, HDFC Bank, Sector5, Dwarka, New Delhi.
8 Credit balance in SB Account S.K. Nirmal 25.05.10 77,411.30/ No. 2491930001182, HDFC Bank, Sector5, Dwarka, New Delhi.
9 Credit balance in SB Account Smt. Madhu 25.05.10 3,21,333.60/
No. 2491930005502, HDFC Nirmal
Bank, Sector5, Dwarka, New
Delhi.
10 Credit balance in SB Account Master Vatsal 25.05.10 20,316.18/
No. 2491460004934, HDFC Nirmal
Bank, Sector5, Dwarka, New
Delhi.
11 Credit balance in SB Account S.K. Nirmal 25.05.10 3,44,480.03/
No. 8598101027503, Canara
Bank, NHAI Building,
Sector10, Dwarka, New Delhi.
12 Credit balance in SB Account S.K. Nirmal 25.05.10 2,18,169.10/
No. 1610000100305966, PNB,
Sector5, Dwarka, New Delhi.
13 Credit balance in SB Account S.K. Nirmal 25.05.10 1,62,125.03/
No. 278010100001953, Axis
Bank, Sector5, Dwarka, New
Delhi.
14 Credit balance in SB Account Madhu Nirmal 25.05.10 1,21,627.61/
No. 278010100001946, Axis
Bank, Sector5, Dwarka, New
Delhi.
CC No. 04/12 10 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 15 Credit balance in SB Account S.K. Nirmal 25.05.10 60,038/ No. 90622010011381, Syndicate Bank, Transport Bhawan, Sansad Marg, New Delhi.
16 Credit balance in SB Account Madhu Nirmal 25.05.10 18,480/
No. 906220100112494,
Syndicate Bank, Transport
Bhawan, Sansad Marg, New
Delhi.
17 4 Fixed Deposits (FD) in HDFC S K Nirmal FDs made on 1,90'000/
bank in the name of .S K Nirmal 30/31.7.09
18 Fixed Deposits (FD) in S K Nirmal FDs made in 310882.67/
Syndicate Bank in the name of 2009
Sh. S K Nirmal.
19 FD in PNB, Vikaspuri Branch, S K Nirmal 12.08.2008 23,112/
20 FD in PNB, Vikaspuri Branch, S K Nirmal 12.08.2008 83,805/
21 FD in Canara Bank, Rajouri S K Nirmal 12.05.2008 54,463/
Garden Branch
22 FD in Canara Bank, Rajouri S K Nirmal 08.05.2008 & 13,43,64/
Garden Branch 08.12.08
Total 79,05,583.54
6.1 At the end of check period, accused S. K Nirmal and his family
members had assets to the extent of Rs.1,36,10,094/ (Rs.57,04,510/ + Rs.
79,05,584/).
Income (During Check Period)
7. During investigation, the details of income of accused S. K Nirmal and his family members, from all sources, were also gathered.
CC No. 04/12 11 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 7.1. The total income of accused no. 1 his family members has been provided in tabulated form, which is as under: Sl. Description of Documents Name of Date Amount (Rs.) No Holder 1 Gross Salary of Sh. S.K. S.K. Nirmal 01.11.2003 to 39,86,573/ Nirmal during the period 31.05.2010 01.11.2003 to 31.05.2010.
2 Withdrawal from GPF. S.K. Nirmal 12.08.08 4,00,000
3 Rental income from Ist floor L 0Madhu Nirmal 01.11.2003 to 11,74,000/
15/3 DLF Phase II, Gurgaon. & S.K. Nirmal 25.05.2010
4 Self Lease Rent of house no. C S.K. Nirmal 01.01.2004 9,97,100/
603, Dhualadhar Aptt, to May 2010
Sector5, Dwarka, Delhi with
NHAI @ Rs 10980/ for the
period July 2005 to May, 2010.
5 Income from maturity of UTI S.K. Nirmal and Nov. 2003 to 1,00,736/
ULIP and Dividend income his wife 25.05.2010
etc.
6 Interest accrued in SB Account S.K. Nirmal 28.09.05 to 4705.60
No. 02491000039704, HDFC 31.05.10
Bank, Sector5, Dwarka, New
Delhi.
7 Interest accrued in SB Account S.K. Nirmal 06.11.07 to 14,610.08
No. 02491930001182, HDFC 31.05.10
Bank, Sector5, Dwarka, New
Delhi.
8 Interest accrued in SB Account S.K. Nirmal 28.09.05 to 1,33,059.24
No. 02491930001182 and 31.05.10
02491000039704, HDFC
Bank, Sector5, Dwarka, New
Delhi from maturing of FDs.
9 Interest accrued in SB Account S.K. Nirmal Dec., 02 to to 36,843/
No. 8598101027503, Canara
CC No. 04/12 12 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 Bank, NHAI Building, 31.05.10 Sector10, Dwarka, New Delhi.
10 Interest accrued in SB Account S.K. Nirmal May, 02 to 28,942/ No. 1610000100305966, PNB, 31.05.10 Sector5, Dwarka, New Delhi.
11 Interest accrued in Credit S.K. Nirmal 05.09.05 to 18,266/ balance in SB Account No. 25.05.2010 278010100001953, Axis Bank, Sector5, Dwarka, New Delhi for the period 05.09.05 to 25.05.2010 12 Interest accrued in Credit Madhu Nirmal 05.09.05 to 18,123/ balance in SB Account No. 25.05.2010 278010100001946, Axis Bank, Sector5, Dwarka, New Delhi for the period 05.09.05 to 25.05.2010.
13 Interest accrued in Credit S.K. Nirmal Dec, 03 to 12,623/ balance in SB Account No. May, 2010 90622010011381, Syndicate Bank, Transport Bhawan, Sansad Marg, New Delhi for the period Dec, 03 to May, 2010.
14 Interest accrued in Credit Madhu Nirmal Dec, 03 to 10,279/ balance in SB Account No. May, 2010 906220100112494, Syndicate Bank, Transport Bhawan, Sansad Marg, New Delhi for the period Dec, 03 to May, 2010.
15 Interest accrued in Credit S.K. Nirmal Dec, 03 to 1,40,115/
balance in SB Account No. May, 2010
90622010011381, Syndicate
CC No. 04/12 13 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 Bank, Transport Bhawan, Sansad Marg, New Delhi from Fixed Deposits.
16 Salary Income of Mrs. Madhu Madhu Nirmal April, 2008 5,12,500/ Nirmal for the financial year to May, 2010 2008, 2009 and 201011.
17 Loan of Rs. 2000000/ Madhu Nirmal 22.04.2010 20,00,000/ disbursed by Union Bank of India, Jaipur on 22.04.2010 in respect of acquisition of property at Flat No. 701, B201 Bapurnagar, Jaipur.
18 Income accrued in the PPF A/c S.K. Nirmal 20032010 1,14,995/ No. 14897 of Sh. S.K. Nirmal maintained in Parliament Street, Post Office, New Delhi.
19 Income from honorarium S.K. Nirmal 08.10.2007 to 32,000/ received by Sh. S.K. Nirmal 06.05.2010 for the period 08.10.2007 to 06.05.2010 for giving various lectures at National institute of training of highway Engineers and Indian Railway Institute for civil engineers.
20 Loan amount disbursed by S.K. Nirmal 15.02.2010 3,52,500/ HDFC Ltd. against TypeC flat under construction at Jaipur.
21 Loan amount disbursed by S.K. Nirmal 1.4.2004 to 1,32,550/ HDFC Ltd. against flat no. 31.03.2005 603, Sector5, Dwarka, New Delhi.
22. Fixed refreshment allowance S.K. Nirmal Novermber 96,333/ paid by NHAI, 2003 to May CC No. 04/12 14 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 2010 Amount of lease rent S.K. Nirmal Novermber 99,960/ maintenance paid by NHAI, 2003 to May 2010 24 ICICI Limited, Tax Saving S. K. Nirmal Redemption 36,000/ Bond (Four) dated 05.03.2002. date 19.08.08 Rs. 36,000/ 25 ICICI Bank Tax Saving Bond S K Nirmal Redemption 12,100/ dated 21.03.2003. date 26.02.06 interest Rs.
2100/ 26 IDBI Bonds dated 26.12.2002 S K Nirmal Redemption 34,000/ date 25.05.09 Rs. 34,000/ 27 IDBI Bond dated 20.04.2001 SK Nirmal Redemption 14,000/ date 30.07.04 Rs. 14,000/ 28 IDBI Bond dated 20.04.2001 S K Nirmal Redemption 14,000/ date 30.07.04 Rs. 14,000/ 29 Interest income from term S K Nirmal 01.11.2003 to 45,417/ deposits in PNB, Vikaspuri 25.05.2010 Branch, New Delhi.
30 Interest Income from term S K Nirmal 01.11.2003 to 46,884.93/ deposits in Standard Chartered March 2009 Bank, New Delhi.
31 Interest Income from Saving S K Nirmal 01.11.2003 to 26,170.99/
Bank Account No. March 2009
52510098300 in Standard
Chartered Bank, New Delhi
32 Interest Income from Saving Smt. Madhu 29.07.2009 10010.45/
Bank Account No. Nirmal to 31.05.2010
CC No. 04/12 15 of 58
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Spl. Judge: CBI-02, NDD: 20.02.2016 2491930005502 in HDFC Bank, Sector5 Dwarka, New Delhi 33 Interest Income from Saving Master Vatsal 29.07.2009 316.18/ Bank Account No. 2491460 Nirmal to 31.05.2010 004934 in HDFC Bank, Sector5 Dwarka, New Delhi 34 Interest Income from Saving Smt. Madhu 22.09.2005 15889.97/ BankAccountNo. Nirmal to 2491000039497 in HDFC 13.08.2009 Bank, Sector5 Dwarka, New Delhi 35 Income from Dividend and Shri S K Nirmal 01.11.2003 to 58577/ interest in AXIS Bank & Smt. Madhu 31.05.2010 Sector5, Dwarka, New Delhi Nirmal 36 Children Education allowance S K Nirmal March 2009 7200/ Total 1,07,37,409.44 7.2. During investigation, it was revealed that Madhu Nirmal, wife of accused S.K Nirmal was working as proof reader from April 2008 to May 2010 and had received salary of Rs.4,20,000/ during this period. Smt. Madhu Nirmal also claimed that her agriculture income for the period 20072010 was Rs.3.19 lacs and her tuition income for the period 200707 was Rs.3 lacs. However, as she did not provide any details about this income, her claim was not considered. The accused was also given benefit of interest of Rs.54,302.12 and also given benefit of income of rent, dividend and interest of Rs.13,33,313/.
Expenditure (During Check Period)
8. During the investigation, the expenditure of accused S.K Nirmal and CC No. 04/12 16 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 his family members was found to be as under: Sl. Description of Documents Name of Date Amount (Rs.) No Holder 1 Payment towards service S. K. Nirmal Nov. 2003 to 13,416/ charge of washing machine, and Madhu 25.05.2010 AMC of Water purifier and Nirmal purchase of Misc. house hold items etc. 2 Payment to Dhauladhar S. K. Nirmal 20062010 41,900/ Apartments, The Himachal Dhauldhar Co. op Group, Dwarka New Delhi towards maintenance charges.
3 Payment towards obtaining S. K. Nirmal 22.02.10 52,220/ freehold possession of flat no. C603, HIG, Himachal Dhauladhar Cooperative Group Housing Society Ltd. at plot no. 15, Sector5, Dwarka, PhaseI, New Delhi and conversion charges etc. 4 Receipt of Income Tax paid S. K. Nirmal 04.01.10 10,000/ through challan in Canara Bank, Rajouri Garden, New Delhi 5 Copy of bill for wood work S. K. Nirmal 30.11.05 70,400/ done by A. K. Interior decorators in flat no C603, Dhauladhar Aptt. Sec5, Dwarka.
6 Canteen Charges for the S.K. Nirmal Nov 2003 to 11,850/
CC No. 04/12 17 of 58
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Spl. Judge: CBI-02, NDD: 20.02.2016 period Nov 2003 to May May 2010 2010.
7 Expenditure towards S. K. Nirmal Nov 2003 to 9,360/
deduction on A/c of May 2010
contribution towards CGIS
for the period Nov 2003 to
May 2010.
8 Expenditure towards S. K. Nirmal Nov 2003 to 2,200/
deduction on A/c of May 2010
contribution towards NHAI
Club for the period Nov
2003 to May 2010.
9 Payment of Income Tax for S. K. Nirmal Nov 2003 to 8,13,390/
the period Nov 2003 to May 2010
May 2010.
10 Expenditure towards S. K. Nirmal Nov 2003 to 5,29,000/
deduction on A/c of GPF May 2010
for the period Nov 2003 to
May 2010.
11 Expenditure towards lease S. K. Nirmal July 2004 to 1,96,628/
recovery for the period July May 2010
2004 to May 2010.
12 Expenditure towards S. K. Nirmal July 2004 to 37,718/
miscellaneous recovery for May 2010
the period during the
period July 2004 to May
2010.
13 Payment made to S. K. Nirmal 200810 18,80,000/
CGEWHO towards CType
Accommodation in Jaipur
(PhaseII Housing Scheme)
14 Property tax in respect of S. K. Nirmal 200709 4,402/
Flat C603/ Dhualadhar
Appt., Sec5, Dwarka, New
CC No. 04/12 18 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 Delhi. Paid in 2007 and 2009.
15 Expenditure towards S. K. Nirmal Nov. 2003 to 10,57,728/
kitchen expenses of Sh. and his family 25.05.2010
S.K. Nirmal and his family member
for the period 01.11.2003 to
25.05.2010 (1/3rd of Gross
income Income Tax )
16 Total Premium paid S.K. Nirmal May, 05 to 49,044/
towards Policy No. May, 10
01631350, ICICI Prudential
LIC.
17 Total Premium paid S.K. Nirmal 28.03.2000 till 1,09,373/
towards LIC Policy No. May, 10
172479904, LIC Branch
Unit No. 128, Community
Centre, Pankha Road New
Delhi.
18 Total Premium paid Master Vatsal 28.02.2004 till 1,06,968/
towards LIC Policy No. Nirmal S/o May, 10
194358533, LIC Branch S.K. Nirmal OfficeII, Kotawala Building, behind Nawad Ki Hawali, Tripolia Bazar, Jaipur (Rajasthan).
19 Total Premium paid Smt. Madhu 31.03.2010 2,10,000/ towards Future General Nirmal W/o India, LIC Policy No. S.K. Nirmal 00452086, LIC Ltd., Veer Sawarkar Marg, Prabhadevi, Mumbai25
20. Pre EMI payment towards S.K. Nirmal 17.02.2010 to 8,388/ loan amount of Rs. 8 lakhs 31.05.2010 sanctioned against flat at CC No. 04/12 19 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Jaipur.
21. Pre EMI and EMI payment S.K. Nirmal November, 8,56,913/ towards loan amount of Rs. 2003 to March, 6,32,550/ sanctioned 2010 against flat at Dwarka, New Delhi.
22. Expenditure towards tuition Master Vatsal 1.4.2006 to 1,21,565/ fee of Master Vatsal Nirmal May, 2010. Nirmal, S/o Shri S.K. Nirmal for the period 1.4.2006 to May, 2010.
Total 61,92,463/ 8.2 The total expenditure during the check period has been calculated as Rs.61,92,463/. 8.3 On 25.05.2010, during search at the residence of accused S.K Nirmal,
cash amount of Rs.46,70,000/ was found. Accused S. K Nirmal stated that the said cash was advance payment received by him from Ramrup Mishra as he had made an agreement to sell his flat at Gurgaon for Rs.1 crore. Sh. Ramrup Mishra claimed to have sold a property for making advance payment to accused S.K Nirmal. However, the sale deed on the basis of which this amount was received was executed on 29.07.2010. Sh. Ramrup Mishra claimed that he had received the payment from Ramji Lal Sharma on 22.05.2010. However, Sh. Ramji Lal Sharma, the accused no.
2 could not produce any documentary evidence with regard to this payment.
9. On the basis of income and expenditure of accused S.K Nirmal and his family members during the check period from 01.11.2003 to 31.05.2010, disproportionate of assets of accused were assessed as under : CC No. 04/12 20 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 S. No. Head Amount (Rs.) A. Assets at the beginning of the check period. 40,00,743/ B. Assets at the end of the check period 1,36,10,094/ C. Income earned during the check period 1,07,37,409/ D. Expenditure incurred during the check period 61,92,463/ E. Assets acquired during the check period (BA). 96,09,351/ F. Total of assets acquired during the check period and 1,58,01,814/ expenditure incurred during the check period (E+D).
G. Quantum of Disproportionate Assets (FC) 50,64,405/
H. Percentage of D.A. = D.Ax100 or Gx100 47.16
Income C
10. It is, therefore, alleged that accused S. K Nirmal from 01.11.2003 to 31.05.2010 was found in possession of assets to the tune of Rs.50,64,405/ which were disproportionate to his known sources of income and for which he could not give satisfactory explanation and thus, he was chargesheeted for offence u/s 13(2) r/w 13 (1) (e) of PC Act 1988.
11. It was alleged that accused no. 2 Ramji Lal Sharma had abetted accused no. 1 to commit offence by helping him to justify the cash recovery of Rs.45 lacs and thus, committed offence u/s 109 IPC r/w Section 13 (1) (e) of PC Act, 1988.
12. The competent authority had granted sanction for prosecution of accused S.K Nirmal as required u/s 19 of the PC Act.
Charge
13. Thereafter, on 31.07.2012, my learned predecessor framed charge u/s 13 (1) (e) punishable u/s 13 (2) POC Act against accused S.K Nirmal and u/s 109 CC No. 04/12 21 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 IPC r/w 13(2) r/w 13(1) (e) of PC Act against accused Ramji Lal, to which they both pleaded not guilty and claimed trial.
Prosecution Evidence
14. The prosecution to prove its case examined 51 witnesses. Gist of the evidence led by the prosecution through these witnesses is summarized in a tabular form as under: PW No Name of Witness 1 Sudeep Sagar Uppar * Assistant Manager from HDFC Bank.
* Proved letters Ex.PW1/A and Ex.PW1/B * Vide Ex.PW1/A, certified copy of account opening form cum specimen card of accused, certified statement of SB account from the date of opening till 25.05.2010, original debit/ credit vouchers of Rs.50,000/ and above for these accounts, details of FDRs and interest accrued on the FDRs and SB account of Sh. S.K. Nirmal, Sh.
Madhu Nirmal and Sh. Vatsal Nirmal have been given.
* Vide Ex.PW1/B, details of FDRs in the name of S.K Nirmal, account opening form of SB Account in the name of SK Nirmal and Madhu CC No. 04/12 22 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Nirmal, original FDRs and details of interest were provided.
2 Dr. Raghunath Chand Anand * Deposed that from August to October 2009, he was a tenant of accused S.K Nirmal on a monthly rent of Rs.17,000/.
* Paid rent by way of cheques i.e. Rs.8500/ in favor of S.K Nirmal and Rs.8500/ in favour of Madhu Nirmal.
3 Sanjiv Saluja * Deposed that from November 2007 to July 2009, he was a tenant of accused S.K Nirmal on a monthly rent of Rs.19,500/.
* Paid rent by way of cheques i.e. Rs.10,000/ in favor of S.K Nirmal and Rs.9500/ in favour of Madhu Nirmal.
4 R.K Bhatt * Manager (Finance) in NHAI.
* Proved the salary details of accused S.K Nirmal vide Ex.PW4/A. * As per Ex.PW4/A (D18), between the period 18.11.2003 to 31.05.2010, gross salary of accused S.K Nirmal was Rs.40,48,315/, net salary was Rs.24,33,799/ and deductions of Rs.16,14,516/ were made from his gross salary.
5 Deepak Kapoor * Deposed that from August 2001
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Spl. Judge: CBI-02, NDD: 20.02.2016 to February 2005, he was a tenant of accused S.K Nirmal on a monthly rent of Rs.8,000/.
* Paid rent by way of cheques i.e. Rs.4,000/ in favor of S.K Nirmal and Rs.4,000/ in favour of Madhu Nirmal.
* Deposed that during his period, he paid total rent of Rs.3,92,000/. 6 R.G. Gupta, Principal in a Sr. * Deposed that Madhu Nirmal was Sec. School run by Delhi working as a proof reader in his Administration school since April 2008.
* Deposed that from April 2008 to March 2009, salary of Rs10,000/ per month was paid to Madhu Nirmal.
* From April 2009 to March 2010, salary of Rs.15,000/ p.m was paid to Madhu Nirmal.
* From April 2010 till the date of his examination, salary of Rs.
20,000/ p.m was paid to Madhu Nirmal.
7 Kuldeep Mansukhani, Asstt. * Proved the statement of account Manager from Axis Bank Ltd., of Axis Bank of S.K Nirmal as Dwarka Ex.PW7/A. 8 Nitin Ramesh Gokarn, Joint * Proved the sanction order Secretary and CVO, Min. of Ex.PW8/A (D77) vide which Transport & Highways sanction u/s 19 of POC Act for prosecution of accused S.K Nirmal CC No. 04/12 24 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 was granted.
9 Varun Reddy Sevva, Asstt. * He was an independent witness to Manager, STC India Ltd. the search conducted at the house of accused S. K Nirmal on 25.05.2010.
* Deposed that as per his memory, Rs.46 lacs were recovered from the house of accused S. K Nirmal.
* Deposed that all the proceedings during search were done in his presence.
*Proved Ex.PW9/A i.e. the valuation report of jewellery articles.
10 Suchitra Midha * Deposed that from November 2009 to May 2010, she was a tenant of Madhu Nirmal at a monthly rent of Rs.16,500/.
11 Vinod Kumar * Was a witness to the search conducted on 25.05.2010 in the office accused S.K Nirmal.
12 Smt. Uttam * Was working as an Administrative Officer in LIC Branch Unit No. 128, Pankha Road, New Delhi.
* Proved the letter Ex.PW12/A (D4) vide which information regarding policy no. 172479904 in the name of S.K Nirmal for an yearly premium of Rs.9943/ was provided to the CBI.
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Spl. Judge: CBI-02, NDD: 20.02.2016 * Also proved the status report of the policy (Ex.PW12/B) and deposed that till 31.05.2010, the premium paid for this policy was Rs.1,09,373/.
13 Alekh Mohanti * From April 2006 to September 2007, he was a tenant of S.K Nirmal at a monthly rent of Rs.
15,000/.
14 Kapil Gandhi * Proved invoice dated 19.08.2007 Ex.PW14/B vide which one bicycle of Rs.3321.60 was sold to one Vatsal, s/o Sh. S.K Nirmal.
15 Naresh Khurana * Proved copy of invoice dated 07.01.2007 Ex.P59/A vide which pen drive of Rs.775/ was sold.
16 Pradeep Bakshi * Proved invoice Ex.P60/A dated 28.09.2008 of Rs.19,600/ vide which one computer was sold to Vatsal Nirmal s/o accused S. K Nirmal.
17 Narender Yadav * Proved cash memo Ex.PW17/A (D47) dated 18.04.2007 vide which a stabilizer was sold to Madhu Nirmal for a sum of Rs.1975/.
18 Sanjay Parijat * Proved cash memos Ex.PW18/B1 to Ex.PW18/B10 vide which repairs and accessories in respect of IFB Washing Machine were provided to Madhu Nirmal.
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Spl. Judge: CBI-02, NDD: 20.02.2016 19 S. K Mathur, UDC, Min. of Road * Vide Ex.PW19/A (D23), proved Transport and Highways the details of the salary paid to accused S.K Nirmal for the financial years 198687 to 199293 * Deposed that for the period from December 1986 to July 1992, gross salary of Rs.2,73,000/ and net salary of about Rs.2,04,000/ was paid to accused S.K Nirmal * Also proved the copies of property returns of accused S. K Nirmal for the years 1998, 1990 and 1991 as Ex.PW19/B1 to Ex.PW19/B3 (D23).
20 S. K Kushwaha, Executive * Deposed that vide his letter Engineer in regional office of Ex.PW20/A, he had provided the Min. of Road Transport and salary details of accused S.K Highways Nirmal from the date of his joining at Jaipur till July 1992. Alongwith the letter, copies of Pay Bill Register for the financial years 198687 to 199293and copies of property returns i.e. Ex.PW19/A and Ex.PW19/B1 to Ex.PW19/B3 were also sent to CBI.
21 Kamlesh Sharma * Deposed that Madhu Nirmal was working as a proof reader in her company from January 2010 to May 2010 on a monthly salary of Rs.
20,000/ per month.
* Proved the salary certificates
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Spl. Judge: CBI-02, NDD: 20.02.2016 Ex.PW21/A1 and Ex.PW21/A2 (D37) of Smt. Madhu Nirmal 22 Puneet Bhardwaj * Was a tenant of S.K Nirmal from April 2005 to March 2006 at a monthly rent of Rs.15,000/.
23 Amrendra Kumar * Was a Superintending Engineer in Ministry of Road Transport and Highways.
* Deposed that vide letter Ex.A13 (D22), details of salary and details of immovable property returns with loan details in respect of accused S.K Nirmal were provided to CBI.
24 Surender Mohan from Canara * Deposed that a saving bank Bank, Rohini Branch account no. 27503 in the name of accused S.K Nirmal was opened on 15.12.2003.
* Proved the statement of account Ex.PW24/A1 to Ex.PW24/A21 (D13) of account no.
8598101027503 and also proved the interest certificate of this account which is Ex.PW24/B. * Deposed that a total interest of Rs.36,843/ was credited in the account from December 2003 to May 2010.
25 Jasmeet Singh * Secretary in the Management
Committee of Himachal
Dhauladhar Coop. Soceity in
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Spl. Judge: CBI-02, NDD: 20.02.2016 December 2009.
* Deposed that accused S.K Nirmal, r/o flat no. C603 had made entire payment of flat i.e. Rs.
12,79,550/ 26 Puran Chand Singla * Was working in Syndicate Bank, Ambedkar Nagar Branch.
* Proved account opening form, statments of accounts, interest statements of Madhu Nirmal and S.K Nirmal as Ex.PW26/A (D5) * As per statement of account, as on 25.05.2010, there was a credit balance of Rs.60,038.,61 in the account of S.K Nirmal and Rs.
18,480,.48 in the account of Madhu Nirmal.
* As per interest statement, interest of Rs.14,886.72 was credited in the account of S.K Nirmal from December 2003 to 31st March 2011 and Rs.10,930.23 was credited in the account of Madhu Nrimal from December 2003 to 31.03.2011.
* Deposed that an amount of Rs.
1,40,115.51 was also paid to S.K Nirmal as interest on various FDRs from 01.03.2003 to 25.05.2010.
27 Sreejesh from St. Marry School. * Proved the fee details of Master Dwarka. Vatsal for the years 200607 to 201112.
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Spl. Judge: CBI-02, NDD: 20.02.2016 * Deposed that Rs.1,60,885/ was deposited towards fees of Master Vatsal s/o Sh. S.K Nirmal.
28 Ramesh Jain * Deposed that agreement to sell Ex.PW28/A between M/s Veera Builders pvt. ltd and Sh. S.K Nirmal and Madhu Nirmal was executed for a sum of Rs.12 lacs in respect of property no. L15/3, First Floor, DLF, PhaseII, Gurgaon, Haryana.
29 B.P Bunkar * Proved the premium receipts Ex.PW29/A1 to Ex.PW29/A3 (D56) in respect of LIC policy no.
194358533 of Master Vatsal s/o S. K Nirmal.
* Vide these receipts, premium of Rs.8914/ was paid on half yearly basis.
30 N.P Dutta * Deposed that Ex.A9 (D15) is the statement of account in respect of housing loan account no.
496506650008571 in the name of S.K Nirmal and Smt. Madhu Nirmal for the period from 22.04.2010 to 31.10.2011.
* Deposed that a loan of Rs.20 lacs was sanctioned and was disbursed on 22.04.2010 which was repayable in 120 installments of Rs.25,605/ CC No. 04/12 30 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 each.
* First installment was paid on 19.06.2010.
31 Ashok Kumar Dhingra * Proved letter Ex.A6 (D9).
*Deposed that an amount of Rs.
28,942/ was credited in the account of S. K Nirmal from 01.11.2003 to 31.05.2011.
* The account was in joint name of S.K Nirmal and Madhu Nirmal and was frozen on 25.05.2010 on the request of CBI. As on 25.05.2010, there was a credit balance of Rs.
2,18,169.10 in the account.
32 Sohan Sharma * Was a witness to the agreement Ex.A47 (D76).
33 Radha Krishna Sharma * Deposed that deal mentioned in agreement Ex.A47 (D76) was finalized in his presence.
* Deal was finalized in first week of May 2010.
* Rs.2 lacs were paid in advance to Sh. Ram Roop Mishra by Sh. Ramji Lal and the balance payment of Rs.
43 lacs was to be made at the time of agreement.
* On the date of agreement, the entire payments was made in cash.
* In July 2010, Ramji Lal disposed of the said property.
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Spl. Judge: CBI-02, NDD: 20.02.2016 34 Surajmal Vardia * Proved the sale deed dated 22.04.2010 Ex.Pw34/A (D059).
* Sale deed was executed between M/s Kushal Suri Engineering Services, Jaipur and Ms. Madhu Nirmal.
* Vide this sale deed, flat was sold for Rs.32 lacs and the payment was received by the company through cheque.
35 Rudmal * Deposed that on 27.06.2007, he had sold agricultural land in Village Kalakho Rajasthan measuring 1.19 hec. To Madhu Nirmal for a consideration of Rs.3.5 lacs.
* The entire payment was made in cash.
*Proved sale deed Ex.PW35/A (D63), payment of stamp duty receipt Ex.PW35/B and jamabandi Ex.PW35/C. 36 Gurbachan Singh * Proved the invoice Ex.PW36/B (D28) vide which two tyres amounting Rs.3400/ were sold.
37 Subodh Gambhir From Kapila *Proved invoices Ex.PW37/B1 to Electronics Ex.PW37/B4 (D26) in the name of S.K Nirmal, Madhu Nirmal and Vatsal Nirmal amounting to Rs.
28,300/, 21,600/, 18,000/ and Rs. 41,100/.
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Spl. Judge: CBI-02, NDD: 20.02.2016 38 Arun Malik *Proved invoice Ex.PW38/B (D29) vide which spectacles of Rs.2150/ were sold to S.K Nirmal.
39 Rajender Singh * Proved the invoice dated 05.06.2011 Ex.PW39/B (D34) vide which IFB washing machine for an amount of Rs.17800/ was sold to Smt. Madhu Nirmal.
* Delivery challan Ex.PW39/C dated 08.11.2004 was in respect of IFB Microwave which was sold to Smt. Madhu Nirmal for an amount of Rs.12,000/.
40 D. K Gupta from HDFC Bank, *Proved statements of accounts in Paschim Vihar respect of loan account nos.
580824217 and 588759373 of Sh. S. K Nirmal as Ex.PW40/A and Ex.PW40/B. * As per Ex.PW40/A, loan of Rs.8 lacs was sanctioned to Sh. S.K Nirmal.
* Upto 31.03.2010, payments made were Rs.3,540/ and upto 10.05.2010, payments made were Rs.4848 by S.K. Nirmal.
*As per Ex.PW40/B, loan of Rs.
6,32,550/ was sanctioned.
* Deposed that upto 3.03.2003, accused S.K Nirmal paid Rs.
29,756/ towards interest, during CC No. 04/12 33 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 financial year 200304 paid Rs.
37,680/ towards interest, during 200405 paid Rs.55,751/ towards interest and Rs.1,32,814 towards principal; during the year 200506 paid Rs.3438 towards interest and Rs.57,219/ towards EMI.
* Deposed that S.K Nirmal paid Rs.
73,644/ towards EMI and Rs.
99,491/ towards principal in 200607; Rs.60,802/ towards EMI and Rs.1,04,878/ towards principal in 200708; Rs.62348/ towards EMI in 200809; Rs.28,776/ towards EMI and Rs.1,65,287/ towards principal in 200910.
41 K.C. Aggarwal * Deposed that vide letter Ex.A11 (D20), he provided to CBI statement of account in respect of S.K Nirmal Reg. No. JJC 0339 Type C Flat.
* As per statement of account Ex.PW41/A, from 31.03.2008 to 18.03.2011, S. K Nirmal had paid Rs.23,50,000/ and till 25.05.2010, S. K Nirmal had paid Rs.18.80 lacs towards the flat.
42 Arun Kumar Palit From * Vide letter Ex.A2 (D5), he Syndicate Bank, Nagpur forwarded account opening forms and statement of account in respect CC No. 04/12 34 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 of account no. 90622010011381 of S. K Nirmal and no.
90622010012494 of Madhu Nirmal .
* Vide letter Ex.A3 (D6), he forwarded details of FDRs with the bank as on 31.10.2003.
* As per statement of account Ex.PW42/B1, there was a credit balance of Rs.87,976.75 as on 01.11.2003 and as on 25.05.2010, Rs.60,038.61 in the account of S.K Nirmal * As per statement of account Ex.PW42/B2, there was a credit balance of Rs.73,250,.54 on 01.11.2003 and credit balance of Rs. 18,480.48 on 25.05.2010 in the account of Madhu Nirmal.
43 Yash Pal Sahni from Malik *Proved invoice Ex.PW43/A (D37) Jewellers vide which jewellery worth Rs.
84,861/ was sold to Madhu Nirmal 44 Krishan Gopal Verma from *Proved receipt Ex.PW44/A vide Tansen Sangeet Mahavidyalya which fees of Rs.4300/ was paid for Master Vatsal Nirmal.
45 Hira Singh from Eureka Forbes *Proved the sale of machine of Rs.
13500/.
46 Manmohan Chopra Proved delivery challan Ex.PW46/B vide which a bed of Rs.14,000/ was sold to Madhu Nirmal. Rs. 13,000/ CC No. 04/12 35 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 were paid in cash and Rs.1,000/ were adjusted against the old bed.
47 Vishal Gupta * Was working in NHAI.
* Deposed that vide letter Ex.A69 (D70), he had sent certain documents to CBI.
48 Harish Goyal * Inspector in CBI * In February 2012, on instructions of SP MC Sahni, to assist the IO, he went to Jaipur and conducted the investigation in RC No. 2172011A0005.
* During investigation, recorded statements of Sohan Sharma and Radha Krishnan which are Ex.PW48/A and Ex.PW48/B. 49 Anil Kumar Saini * Inspector in CBI.
* Conducted search in the office of S.K Nirmal in May 2010.
*From the search, Rs.1,21,500/ were recovered and were seized.
50 O.P. Parida * Had conducted search at the house of accused S.K Nirmal on 25.05.2010.
51 Harikesh * IO of the case.
Statement of Accused and Defence Evidence
15. Thereafter, statement of accused was recorded u/s 313 Cr.P.C. and both CC No. 04/12 36 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 the accused preferred to lead evidence and examined 15 witnesses which are as follows: DW No. Name Crux of Deposition 1 Prasad Deshpande * Has proved the details regarding issuance of IDBI Bond to accused accused S.K Nirmal vide Ex.DW1/2.
2 Naresh Kumar * Has proved the assessment order Ex.DW2/1 dated 13.03.2015 vide DCR No. 05/03.
3 Roop Lal Mehta * Had brought the certified copy of screen shot of income tax return for the assessment year 200405, order passed u/s 143 (1) of Income Tax Act and certified true copy of refund status pertaining to the case of S.K Nirmal and proved these documents as Ex.DW3/1.
4 Vijay Kumar * Has proved the statement of account of account no.
00031000206253 in the name of S.K Nirmal for the period 01.11.2003 to 19.08.2004 vide Ex.DW4/1.
5 Dr. Lalit Mohan Sharma * Deposed that in April 2010, he had given as loan Rs.1.50 lacs to Smt. Madhu Nirmal, who is his cousin and after six months, she repaid the amount.
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Spl. Judge: CBI-02, NDD: 20.02.2016 6 Suraj Mal Yadav *Proved the jamabandi of Khewat No. 21, Khasra No. 7/1, 8, 9, 12, 13/1, 14, 16, 113, 114/1, 216/328, 225, 227 and 250 of Village Dayapura, Tehsil Chaksu as Ex.DW6/1.
* Proved the jamabandi of Khewat No. 29, Khasra No. 3, 7, 13, 90, 90/312, 91, 91/311, 92, 92/310, 93, 106, 107, 108 and 109 of Village Dayapura, Tehsil Chaksu as Ex.DW6/2.
* Proved the jamabandi of Khewat No. 32, Khasra No. 14/2, 15/1, 16/2, 17/1, 18/1, 19/1, 85/350, 114, 115 and 244 as Ex.DW6/3.
* Proved the jamabandi of Khewat No. 21, Khasra No. 7/1, 8, 9, 12, 13/1, 14, 16, 113, 114/1, 216/328, 225, 227 and 250 of Village Dayapura, Tehsil Chaksu as Ex.DW6/1.
* Proved jamabandies of khewat no. 62, Khasra No. 19, 111/1, 112/1, 121, 216/349, 226, 227/1, 250/1 of Village Dayapura, Tehsil Chaksu and of Khewat No. 63, K. No. 54, Khewat No. 64 K. No. 5, 10, Khewat No. 65, K. No. 8/1, 9/1, 11, 12/1, 14/1, 15, 16/1, 17, 18, 51, 53/341, 55, 111, 112, 113/1 as CC No. 04/12 38 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Ex.DW6/4.
7 Damodar Prasad * Deposed that Ramji Lal was his nephew.
* Deposed that in 2010, Ramji Lal had purchased land around 04 bigas in Village Lakhvas for a consideration of Rs.45 lacs.
* Deposed that two months thereafter, this land was sold.
8 Gopi Kishan Chawla * Vide Ex.DW8/2 had proved the statement of account of Ramji Lal w.e.f 01.07.2010 to 31.08.2010.
9 Mohit Arora * Proved the sale deed executed by S.K Nirmal and Madhu Nirmal in favour of Ramrup Mishra for first floor no. 3, L15, DFL, Phase II, Gurgaon as Ex.DW9/1.
10 Dev Raj Sharma * Deposed that vide letter Ex.DW10/1 dated 25.5.11, S.K Nirmal had intimated to his department about sale of immovable property and also attached form 1 Ex.DW10/2.
11 Virender Kalra * Proved the certificates of interest paid on FDRs of S. K Nirmal as Ex.DW11/1 to Ex.DW11/3.
12 Anant Manohar * Proved the tour and LTC details of accused S.K Nirmal from November 2003 to May 2010 as Ex.DW12/2.
CC No. 04/12 39 of 58(Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 * Proved the details of EL encashment of S.K Nirmal as Ex.DW12/3.
13 Rupali Julka * Proved the certified copy of statement of account of account no.
03281000003504 in the name of S.K Nirmal as Ex.DW13/1.
14 Vinod Kumar Sharma * Proved the statement of account of account no. 1610000100151000 of S. K Nirmal w.e.f 01.01.2003 to 02.01.2009 with certificates of interest as Ex.DW14/2.
15 Devi Dutt Sharma * Deposed that he was an advocate.
* Ramrup Mishra was his client.
*Proved legal notice Ex.DW15/1 issued by him on behalf of Ramrup Mishra to S.K Nirmal and Madhu Nirmal for specific performace of agreement to sell for flat no.
L15/3, First Floor, DLF, PhaseII, Gurgaon.
16. I have heard ld. PP for CBI as well as ld. counsels for the accused.
Written submissions have also been filed on behalf of accused and the CBI was asked to respond to these written submissions.
17. During the oral arguments as well as in written submissions, the accused had controverted many entries of the statements of income, expenditure and CC No. 04/12 40 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 assets of the accused during the check period as well as the assets at the beginning of the check period.
18. At the time of filing of the chargesheet, according to the prosecution, the quantum of disproportionate assets of the accused was Rs.50,64,405/, which in percentage terms was 47%. However, in response to the written submissions of the accused, the CBI has filed its own written submissions wherein the CBI has conceded to a lot of contentions raised on behalf of accused and has finally brought down the quantum of disproportionate assets of accused to Rs.40,78,756/ which in percentage terms is 36.55%.
19. Meaning thereby, that if the accused is able to explain the amount of Rs.45 lacs out of the amount of Rs.46,70,000/ recovered from his house during the search/ raid dated 25.05.2010 then in view of the present position as admitted by the CBI, there will be no disproportionate assets which could be attributable to the accused and rather there will be a surplus of Rs.5 lacs in favour of the accused.
Going beyond, even if the original figure given by the CBI is considered, I find that the said figure of Rs.50,64,405/ included the amount of Rs.46,70,000/ which was recovered from the house of accused during the search/ raid; and if the accused is able to explain the amount of Rs.45 lacs out of the amount of Rs.46,70,000/, the quantum of disproportionate assets attributable to the accused would only be Rs.5 lacs which would be only 5% of the income of the accused and in view of the judgment of Hon'ble Supreme Court in Krishnanand Agnihotri v. State of MP, CC No. 04/12 41 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 1977 (1) SCC 816, this amount will not be sufficient to convict the accused u/s 13 (1) (e) PC Act.
20. Therefore, the first and foremost question which needs to be decided is, whether the accused has been able to explain the amount of Rs.46,70,000/ recovered from his house during search/ raid dated 25.05.2010?
21. As per the chargesheet, the case of the prosecution is that explaining the aforesaid amount, accused S.K Nirmal had stated that the said cash was the advance payment which had been received by him from Sh. Ramrup Mishra. This payment was made by Sh. Ramrup Mishra to accused as the accused had agreed to sell his flat to Ramrup Mishra for a consideration of Rs.1 crore. Sh. Ramrup Mishra had owned up this transaction and as a source of this money, he had claimed that he had sold his agricultural land to one Sh. Ramji Lal Sharma and had received a payment of Rs.45 lacs from Ramji Lal Sharma on 22.05.2010. Ramji Lal Sharma also owned up this transaction but according to the CBI, firstly, Ramji Lal Sharma could not produce any documentary evidence with regard to this payment and secondly, the sale deed vide which Sh. Ramrup Mishra had claimed to have received this amount from Ramji Lal Sharma was executed on 29.07.2010 whereas, according to Ramrup Mishra, the payment had been made by Ramji Lal Sharma to him on 22.05.2010 which is an impossibility.
22. For decision of this point, the first and foremost question which needs to be decided is, whether the transaction between Ramrup Mishra and Ramji Lal CC No. 04/12 42 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Sharma (accused no. 2) which had allegedly taken place on 22.05.2010 had in fact taken place or not?
23. Once the prosecution had shown the recovery of huge cash from the house of a public servant/ accused S.K Nirmal and as that recovery had not been challenged by accused/ public servant, the burden to explain that amount had shifted on accused / public servant. It was for the accused/ public servant or accused Ramji Lal to first prove the alleged transaction between Ramji Lal and Ramrup Mishra, which provided the funds of Rs.45 lacs to deceased Ramrup Mishra to enter into an agreement with accused S.K Nirmal.
24. However, to my surprise, the prosecution has not only relied upon that alleged agreement Ex.A47 but examined two witnesses to that agreement in the form of PW32 Sohan Sharma and PW33 Radha Krishna Sharma. The alleged agreement dated 22.05.2010 by virtue of which Ramrup Mishra had allegedly received Rs.45 lacs from accused Ramji Lal Sharma is D76. U/s 294 Cr.P.C, this agreement was put for admission denial and after admission by accused Ramji Lal Sharma, it was exhibited as Ex.A47.
25. PW32 Sohan Sharma deposed that he was an advocate practicing in District Courts, Chaksu, Jaipur and knew accused Ramji Lal Sharma who was his relative. He further deposed that he had seen document A47 (D76). It was a photocopy of agreement regarding purchase of land and he was one of the witnesses to this agreement whereupon his signatures appeared at point A and those of accused CC No. 04/12 43 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Ramji Lal Sharma at point B. He further deposed that the agreement was for Rs.45 lacs and that Ramji Lal Sharma was having an agricultural land in his native village Daya Pura and was dealing in sale purchase of land.
26. During his cross examination on behalf of accused no. 2, he deposed that the agreement Ex.A47 was executed in Pratap Nagar, Jaipur, Rajasthan. He further deposed that Ramrup Mishra and Badri Narain signed the agreement on the same day at Jaipur. The payment of Rs.23 lacs was made by Ramji Lal to Ramrup Mishra on that day in his presence. During his cross examination, the original of the agreement was produced before the witness and was exhibited as Ex.PW32(A2)/DA.
Thereafter, this witness was reexamined by Ld. PP and he denied that no payment was made in his presence.
27. PW33 Radha Krishna Sharma deposed that he was running a petrol pump in Chaksu, Jaipur and was also dealing in property business. He knew Ramji Lal Sharma, who was his nephew. He further deposed that he had seen agreement Ex.A47. The deal mentioned in Ex.A47 was finalized in his presence. This agreement had the signatures of Ramji Lal Sharma and Ramrup Mishra as the parties to the agreement and of Sh. Badri Narain and Sh. Sohan as witnesses to the agreement. He further deposed that the deal was finalized in the first week of May 2010. Rs. 2 lacs were paid in advance to Sh. Ramrup Mishra and at the time of agreement, balance payment of Rs.43 lacs was made. The entire payment was made in cash on the date of agreement Ex.A47. He further deposed that Ramji Lal CC No. 04/12 44 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Sharma had disposed of the property purchased vide agreement Ex.A47 in July 2010 to 56 persons who included Sh. Sanjay Aggarwal and Sh. Sunil Joshi.
28. During his cross examination on behalf of accused no. 2, he deposed that on the day when Ex.A47 was executed, the money was counted in his presence.
The first payment of Rs.2 lacs was made on 02.05.2010. Rs. 20 lacs was paid on 20.05.2010 and Rs.23 lacs were paid on 22.05.2010. All the persons had signed Ex.A47 in his presence.
29. The next prosecution witness who needs to be considered on his point is PW50 Sh. O.P Parida.
30. Sh. O.P Parida is the person who while investigating RC No. 9/2010/ACUV had carried out search at the house of accused S. K Nirmal. It is on his complaint Ex.PW50/A i.e. the present FIR Ex.PW50/B was registered. He deposed that during the search of residential premises of S.K Nirmal, apart from the documents related to movable and immovable properties, a sum of Rs.46,70,000/ was recovered. He then prepared search list Ex.PW50/C. He also prepared Ex.PW5/D inventory of the articles found at the house of accused S.K Nirmal and the value thereof.
31. During his cross examination, he denied that during the search, accused S.K Nirmal himself had informed about the cash of Rs.46,70,000/ lying at his house and volunteered that, his wife indicated that some money was lying in the CC No. 04/12 45 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 house. He further deposed that the cash was not kept in any concealed manner and that he had asked for the explanation in respect of cash from the accused. However, the explanation was not reflected in the search list as it was not required to be reflected. He denied that during the search itself, S.K Nirmal had informed about the sale transaction of flat no. L15/3, First Floor, DLF, PhaseII, Gurgaon, owned by him and his wife for a consideration of Rs.1 crore and that on 23.05.2010, he had received Rs.45 lacs as part payment. He admitted that the documents reflecting the sale transaction in respect of the flat at Gurgaon were provided to him before he made the complaint Ex.PW50/A.
32. The next witness is PW51 Harikesh, the IO of the case. On this point, he deposed that during investigation, accused S.K Nirmal had submitted a plea that he had sold a flat to Sh. Ramrup Mishra for Rs.1 crore and cash of Rs.45 lacs was received from Ramrup Mishra on 23.05.2010. The accused also gave a photocopy of agreement/ receipt which was in the handwriting of accused S.K Nirmal. Sh.
Ramrup Mishra (the alleged purchaser) was also examined by him. About the source of Rs.45 lacs, Sh. Ramrup Mishra had stated that he had sold an agricultural land to Sh. Ramji Lal Sharma. Sh Ramji Lal Sharma was also interrogated by him about the source of Rs.45 lacs and he (Ramji Lal Sharma) could not give any explanation of Rs.45 lacs paid by him (Ramji Lal Sharma) to Ramrup Mishra. Moreover, the investigation disclosed that Sh. Ramrup Mishra was owner of an agricultural land at Village Lakhwas, Tehsil Chaksu, Distt. Jaipur and the sale deed of that land was CC No. 04/12 46 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 executed in the office of Sub Registrar Chaksu, Jaipur on 29.07.2010.He had collected the certified copies of the said sale deed.
33. During his cross examination, he deposed that he examined Sh.
Ramrup Mishra regarding transaction mentioned in agreement cum receipt dated 23.05.2010 which is Ex.A73 (D77). This is in respect of sale of flat no. L15/3, First Floor, DLF, Phase II, Gurgaon by Sh. S.K Nirmal and payment of Rs.45 lacs in cash as part advance payment on 23.05.2010 by him to Sh. S.K Nirmal and Smt. Madhu Nirmal. Sh. Ramrup Mishra had stated to him that he had paid Rs.45 lacs under receipt dated 23.05.2010 which is Ex.A73 and volunteered that, on interrogation, Sh. Ramrup Mishra did not disclose the source of said Rs.45 lacs and stated that he was having an agricultural land in Tehsil Chaksu, Distt Jaipur and the said land was sold to Ramji Lal Sharma and Sh. Ramji Lal Sharma had paid Rs.45 lacs to him (Ramrup Mishra). He further deposed that as the transaction mentioned in Ex.A73 was not completed during that period, he did not examine it further and could not say whether the sale deed in respect of transaction mentioned in Ex.A73 was completed in July 2011 or that the sale deed dated 21.07.2011 was executed in favour of Ramrup Mishra by Sh. S.K Nirmal and his wife after receipt of remaining sale consideration of Rs.55 lacs. He denied that the transaction of sale of flat no.
L15/3, First Floor, DLF, PhaseII, Gurgaon (subject matter of Ex.A73) was intimated by accused S.K Nirmal to Government of India and same was accepted.
Attention of the witness was drawn on statement of immovable property return for CC No. 04/12 47 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 the year 2009 dated 31.01.2011 as on 31.12.2010 which was Ex.A45 whereby said intimation was given by accused S.K Nirmal. He volunteered that accused S.K Nirmal had submitted this return on 31.01.2011. He further deposed that this fact was looked into during investigation and was not considered as the same was not in accordance with the CCS conduct rules. He further deposed that he had intimated the office of accused after registration of this case. He further deposed that he was not aware whether the said intimation was accepted and the transaction was noted by the government. He further deposed that the government might have accepted the intimation subsequently. He further deposed that Sh. Ramrup Mishra was the owner of agricultural land and said land was sold through Ramji Lal Sharma on 29.07.2010 vide sale deed Ex.A49 (D78). He admitted that alongwith the sale deed Ex.A49, there was one muktiyarnama in the name of Ramji Lal. He further deposed that contents of the agreement Ex/A47 between Ramji Lal and Ramrup Mishra, were admitted by Ramji Lal and Ramrup Mishra and also by Badri Narain and Sohan Lal, who were witnesses to that agreement. He denied that there was no evidence to link accused no. 2 and Ramrup Mishra with accused no. 1 and deposed, that during investigation, he did not come across any document or any witness to any dealing between accused no. 2 and accused no. 1. He denied that accused S. K Nirmal had properly explained each and every asset in his possession and there was (no) disproportionate asset in his possession.
34. During his cross examination on behalf of accused no. 2, he deposed CC No. 04/12 48 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 that during interrogation, Sh. Ramji Lal told him that he was in the business of property dealing as well as in sale/ purchase of agricultural land. During investigation, he had collected the sale deed dated 29.07.2010 Ex.A49 alongwith Power of Attorney dated 28.07.2010 (Ex.A49) of Sh. Ramrup Mishra in favour of Sh. Ramji Lal for getting sale deed registered on his behalf. He had investigated these documents and found them to be correct and volunteered, that Ramji Lal claimed that he (Ramji Lal) had made the payment on 22.05.2010. However, the power of attorney Ex.A49 was dated 28.07.2010 and Sh. Ramrup Mishra could not produce any document on that day of receipt of payment and the alleged sale of land and the documents were not considered relevant.
35. It has been contended by ld. PP that the transaction dated 23.05.2010, through which Sh. Ramrup Mishra had allegedly paid Rs.45 lacs to accused S.K Nirmal is an after thought and has been created in order to explain the unaccounted money which was recovered from the house of accused S.K Nirmal. He has further contended that at the time of recovery of cash from the house of accused S.K Nirmal, no explanation was submitted by accused S.K Nirmal. This clearly shows that this entire transaction had been created later on. He has further contended that the agreement/ receipt dated 23.05.2010 is not a valid legal paper and furthermore, had such a transaction been done, such a paper should have been recovered during search. He has further contended that Sh. Ramrup Mishra claimed to have received this amount from Sh. Ramji Lal Sharma (accused no. 2) but Sh. Ramji Lal Sharma CC No. 04/12 49 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 could not explain the source from which he had received Rs.45 lacs to pay to Sh.
Ramrup Mishra and the power of attorney attached with the sale deed dated 29.07.2010, by which Ramrup Mishra had sold land to Ramji Lal is dated 26.07.2010.
In this power of attorney, Ramrup Mishra mentioned that he was the owner of land and had not sold, given as give nor entered into any agreement with anyone with respect to that land. This power of attorney is a registered document and thus, the unregistered agreement cum payment receipt dated 23.05.2010 is an after thought.
36. Countering the same, learned counsel for the accused has contended that the fact that Ramrup Mishra had the money to pay to accused S.K Nirmal on 23.05.2010 has been established by two prosecution witnesses who were examined as PW32 and PW33. The testimonies of these witnesses have remained unchallenged and thus, there is no reason to believe them otherwise. He has further contended that the investigation has not been able to establish any link or any dealings between accused no. 2 and accused no. 1 and therefore the production of documents or the transaction as an after thought in connivance with accused no. 2 is completely ruled out. There is no evidence which has been brought on record by the CBI to show that the transaction between Ramrup Mishra and accused S.K Nirmal was a sham transaction. He has further contended that after the transaction, vide immovable statement of immovable property for the year 2010 (Ex.A45), accused S.K Nirmal has intimated about this transaction to his department which was accepted by his department and thereafter, he again submitted immovable property return CC No. 04/12 50 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 Ex.DW10/4 intimating that the sale deed of the property has been executed and this intimation had been accepted by government of India vide letter dated 18.01.2012 which is an office memorandum signed by Sh. D.R. Sharma, Under Secretary and marked by PW8 Nitin Ramesh Gokarn, Joint Secretary in CBI. He has further contended that assuming for the sake of arguments that accused Ramji Lal Sharma or Ramrup Mishra could not explain the sources of their funds, this cannot make accused S.K Nirmal responsible and liable for criminal offence as accused S.K Nirmal was not supposed to verify the source of funds and legality or illegality of funds of Ramrup Mishra or anybody else. The fact is that accused S.K Nirmal had received cash of Rs.45 lacs from Ramrup Mishra on 23.05.2010. He has further contended that as per evidence on record, vide agreement Ex.A47, Ramrup Mishra had received Rs.45 lacs from Sh. Ramji Lal Sharma on 22.05.2010. Ramrup Mishra did not receive any money under sale deed Ex.A49 and it was Sh. Ramji Lal Sharma who had received this money vide this sale deed because Ramrup Mishra had already sold this land to Ramji Lal Sharma and received Rs.45 lacs on 22.05.2010. He has further contended that there is no force in the contention of CBI that accused S.K Nirmal at the time of raid, did not explain the source of cash recovered from his house. PW50 Sh. OP Parida in his deposition has stated that no plausible explanation was given by accused S.K Nirmal during search which implies that some explanation was given during search itself but it was not mentioned in the search list. There is no evidence to show that any explanation was asked from CC No. 04/12 51 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 accused S. K Nirmal. The contention of CBI that agreementcum receipt dated 23.05.2010 Ex.A73 was not recovered during search on 25.05.2010, is also not ground to suspect the bonafide of said document as the original was given to Ramrup Mishra because he being the person who had given Rs.45 lacs under the said agreement would have been worried about the receipt. He has further contended that it is possible that the copy was not retained by accused S.K Nirmal or even if retained, CBI officials had not seized it. When the seller, buyer and the witnesses speak about the genuineness of this document before the court, the contention that agreement/ receipt during search was not found, does not carry any weight. Learned counsel for accused has also relied upon the following judgments:
(i) Saddiq & Ors. v. State, 1981 Cri. LJ 379.
(ii) M. Krishna Reddy v. State Dy. Superintendent of Police, Hyderabad (1992) 4 SCC 45.
(iii) State of Maharashtra v. Wasudeo Ramchandra AIR 1981 SC 1186.
(iv) Gunjit Singh v. State, 62 (1996) DLT 202.
37. Laying further emphasis on judgment of Hon'ble Delhi High Court in Gunjit Singh's case (supra), Ld. counsel for the accused has contended that CBI itself had proved agreement dated 23.05.2010 Ex.A73 between Ramrup Mishra and S.K Nirmal whereby accused S.K Nirmal had received Rs.45 lacs as advance for sale of his flat no. L15/3, First Floor, DLF, PhaseII, Gurgaon. This document was put CC No. 04/12 52 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 for admission denial to the accused and it was admitted by the accused u/s 294 Cr.P.C and thus, the genuineness of this document cannot be challenged by CBI. He has further contended that similarly agreement dated 22.05.2010 has also been proved by CBI and has been admitted by accused u/s 294 Cr.P.C and thus, CBI cannot challenge the genuineness of this document. Even otherwise, CBI by its own witnesses had proved the transaction through this agreement.
38. I have considered the rival contentions and have perused the judgments cited by learned counsel for accused.
39. In Gunjit Singh's case (supra), the Hon'ble Delhi High Court has held as under: .......... It is at this stage that the burden shifts to the accused. But it must be kept in mind that the accused is not bound to prove his innocence beyond all reasonable doubts. The Evidence Act does not contemplate that accused should prove his case with same strictness and regour as the prosecution is required to prove a criminal charge. It is sufficient if the accused is able to prove his case by the standard of preponderance of probability as a result of which he succeeds not because he proved his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, threfore, the prosecution cannot be said to have established the charge beyond reasonable doubts.
The cardinal principle of criminal jurisprudence are (i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from correctness or falsity of the defense version by proving its case, (ii) that in a criminal case accused must be presumed to be innocent unless proved guilty and (iii) that the onus of the prosecution never shifts. ... (paras 2 and 3) The Trial Court fell in error in concluding that the appellant could not substantiate his plea on the basis of the documents produced by CC No. 04/12 53 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 the prosecution. In fact, the documents produced by the prosecution and in particular exhibit P.174, 175, 111 amply prove the case of the appellant that he entered into a sale transaction of his house with Shri Kuldeep Singh Sehgal. And with effect from 1st October,1985 Shri Kuldeep Singh Sehgal became the owner of the said house. That he received Rs.7,50,000.00 as advance from Mr.Sehgal pursuance to the said sale agreement. Taking this amount into consideration the appellant fully accounted his income. He disprove by the documentary evidence that he had any disproportionate income. It was wrong for the Trial Court to infer that the appellant failed to substantiate his income. The Supreme Court in the case of Ravindra Kumar Dev Vs. State of Orissa, while laying down the cardinal principles of criminal jurisprudence observed that onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt. It cannot derive any benefit from defense version while proving its case. In the case in hand, the mere fact that the appellant did not adduce any evidence was no ground to infer that appellant failed to prove his income nor it can be said that prosecution succeeded because accused failed to establish his defense. (para 13) ......Be that as it may and if this argument is not accepted still the fact remains that the prosecution by its oral and documentary evidence has proved the sale agreement and the letter of attornment. Relying on the same lend to only one irresistable conclusion that the appellant has been successfully accounted for the assets in his possession and also the source form which he derived the same. (para 15)
40. The one fact which had emerged in evidence and has been established by the prosecution itself is that on 22.05.2010 an agreement Ex.A47 was executed between Ramrup Misra and Ramji Lal Sharma whereby Ramrup Mishra agreed to sell his agricultural land to Ramji Lal Sharma and in consideration thereof; had received Rs.45 lacs. This fact had been established by the witnesses of the prosecution who were examined as PW32 and PW33. There has been no challenge on behalf of the prosecution to the testimonies of these witnesses or the credibility of CC No. 04/12 54 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 these witnesses. Once this fact stands established, then in my opinion there is no point in looking back at the further chain to see wither from Ramji Sharma had obtained the amount of Rs.45 lacs. Furthermore, the prosecution in the entire evidence has nowhere doubted the genuineness of the receipt dated 23.05.2010 which was executed between accused S. K Nirmal and deceased Ramrup Mishra in pursuance of which the accused claimed to have received Rs.45 lacs, which were allegedly recovered from his house on 25.05.2010. The only doubt which the prosecution had raised was that Ramrup Mishra did not have the money to pay to S.K Nirmal and thus, this receipt had been created after the money was recovered from the house of accused S.K Nirmal and in order to explain that money. The source of money of Ramrup Mishra as discussed above, has been proved by prosecution itself.
41. As far as the sale deed of the land belonging to Ramrup Mishra being executed on 29.07.2010 is concerned, I find that here again, prosecution has not challenged the genuineness of this sale deed but has questioned it on timing.
According to the prosecution, this sale deed was executed later than the alleged agreement between Ramrup Mishra and SK Nirmal and thus, Ramrup Mishra could not have had the amount of Rs.45 lacs to pay to S.K Nirmal on 23.05.2010.
42. However, a perusal of this sale deed Ex.A49 shows that this sale deed has been executed by accused Ramji Lal Sharma as GPA of Ramrup Mishra (since deceased) in favour of some other persons. Out of the consideration amount of Rs.
CC No. 04/12 55 of 58
(Parveen Singh)
Spl. Judge: CBI-02, NDD: 20.02.2016 45,51,000/, Rs.35,01,000/ was stated to have been received to Ramji Lal Sharma in cash and an amount of Rs.10,50,000/ had been received by him through cheque.
The fact that this amount was received by Ramji Lal Sharma through cheque and credited to his account has been established by the testimony of DW8.
43. DW8 Gopi Kishan Chawla had brought statement of account w.e.f 01.07.2010 to 31.08.2010 of account of Ramji Lal Sharma as held by him with Rajasthan Marudhara Gramin Bank, Shivdas Pura Branch, Chaksu, Distt. Jaipur, Rajasthan wherein this amount through cheques has been credited in his account.
44. The explanation given on behalf of Ramji Lal Sharma, that he was a property dealer and had entered into an agreement with deceased Ramrup Mishra in order to sell this land further and when he found a suitable buyer, he sold this land directly to the buyer and the entire amount of sale consideration was received by him as he had already paid the consideration amount to Ramrup Mishra on 22.05.2010, seems plausible.
45. As regards the contention of CBI that receipt dated 23.05.2010 Ex.A73 is an unregistered document, I find that once this receipt otherwise has not been challenged by CBI for its genuineness and source of fund of Ramrup Mishra has been established by the prosecution witnesses themselves, then this receipt in a criminal trial cannot be said to be insignificant.
46. Similarly, the circumstance that the receipt at the time of search was CC No. 04/12 56 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 not recovered from the house of accused S.K Nirmal cannot be sufficient in itself to bring home a negative finding against accused S.K Nirmal that as the transaction had never happened, the receipt was not found at his house. At the most it could have been a corroborative circumstance, had otherwise the case of the prosecution been established or accused S.K Nirmal failed to give a plausible explanation for the money.
47. I accordingly find that accused S.K Nirmal has sufficiently explained that out of Rs.46,70,000/ recovered from his house, Rs.45 lacs were received by him as an advance for the sale of his flat pursuant to an agreement with deceased Ramrup Mishra whereby he had agreed to sell his flat at Gurgaon to deceased Ramrup Mishra for an amount of Rs.1 crore. That being the case, Rs.45 lacs which have been included in the assets of accused S.K Nirmal have to be included in his income as well.
48. In view of this, I find that no case for disproportionate assets is made out against accused S.K Nirmal because in the written submissions, the CBI has fairly accepted that after the evidence, the disproportionate assets found in possession of accused S.K Nirmal amount to Rs.40 lacs. If this Rs.45 lacs which has been explained by the accused is taken out then there is no disproportionate assets which could be attributed to the accused. Even if the original amount of disproportionate assets of the chargesheet is taken, the total DA comes to around Rs.5 lacs which in percentage terms is less than 10%. I accordingly find that accused CC No. 04/12 57 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016 S.K Nirmal is entitled to acquittal.
49. As it has been found that accused S.K Nirmal is entitled to acquittal for offence u/s 13 (1) (e) of POC Act, accused Ramji Lal Sharma cannot be held guilty for abetting an offence u/s 13(1) (d) PC Act. Even otherwise, the prosecution has not been able to establish any link between accused Ramji Lal Sharma and accused S.K Nirmal, as has been admitted by PW51, the IO of the case.
50. In view of the above discussion, I find that both the accused deserve acquittal. Accused S. K Nirmal is acquitted of the charge u/s 13 (1) (e) punishable u/s 13 (2)POC Act and accused Ramji Lal Sharma is acquitted of charge u/s 109 IPC r/w 13 (2) r/w 13 (1) (e) POC Act. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to record room.
Announced in Open Court (Parveen Singh) on 20.02.2016. Spl. Judge, CBI02, (This judgment contains 58 pages New Delhi District, PHC. and each page bears my signatures) CC No. 04/12 58 of 58 (Parveen Singh) Spl. Judge: CBI-02, NDD: 20.02.2016