Delhi District Court
Cbi vs . Ishwardeen Chaudhary, on 15 February, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 43/2011
RC3(A)/2000-ACU-VI
U/s 13 (2) r/w 13 (1) (e) of PC Act.
CBI Vs. Ishwardeen Chaudhary,
Son of late Sh. Mahadeen Chaudhary,
Resident of E-95, DDA Flats, Saket,
New Delhi.
Date of Institution in court :25.07.2003
Date of framing of charge :06.08.2003
Date on which case was received on
Transfer by this Court :11.11.2011
Date of conclusion of arguments :19.01.2013
Date of Judgment :15.02.2013
Memo of Appearance
Sh. Jagbir Singh, learned. PP for CBI.
Sh. S. P. Kaushal, learned defence counsel.
JUDGMENT
PROSECUTION VERSION 1.0 Mr. Ishwardeen Chaudhary (accused herein) completed his education in the year 1970. After his initial stint as Lecturer in P.G. College, Khurja, he joined Indian Oil Corporation where he remained posted as Sales Executive till October, 1974. Then, he joined State Trading Corporation (STC) CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 1 of 100 as Dy. Marketing Manager on 25.11.1974 from where he retired as Director, State Trading Corporation (STC) on 21.04.2001 on his superannuation.
1.1 His family consisted of following members:-
1 Smt. Kalawati Chaudhary (wife) 2 Sh. Dharam Chaudhary (son) 3 Ms. Madhubala Chaudhary (daughter) 4 Ms. Sushila Chaudhary (daughter) 5 His Parents.
1.2 None of his said family members was having any independent source of income at the relevant time. Rather, they all were dependent upon accused. Accused also claimed so when he submitted declaration dated. 22.9.97 before his employer STC.
1.3 On 10.10.2000, FIR was registered against accused Ishwar Deen Chaudhary for acquiring assets disproportionate to his known sources of income. Investigation was carried out. CBI took the check period as 01.04.90 to 31.12.97.
1.4 Accused had following income during the check period:-
Sl No. Particulars of income Amount in Rs.
1 Salary 7,58,233
2 Bank balance as on 1.4.90 11,417
3 C. P. F. advance (Non refundable ) 1,00,000
4 Rental income from house no.1596 &1408, Gurgaon 60,400
5 Money received by sale of house no. MG 1/359 Kanpur 4,00,000
Road, Lucknow
6 Loan taken from Sh. R. K. Singh 1,15,765
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 2 of 100
7 Income from interest on FDR 666
8 Income from interest on bank account 17,090
9 Loan from Mafat Lal Finance Co. for purchase of Cielo 3,00,000
car
10 Income from agricultural land in Mandideep M. P. 10,000
Total 17,73,571
1.5 Following is the statement of expenditure made by the accused
during check period:-
Sl No. Expenditure during check period Amount in Rs.
1 Household Expenditure 2,52,744
2 Expenditure incurred in Saket Cultural Club 35,685
3 Expenditure incurred on interest payments for house no. 5,290
1408, Sector 31 & House no. 1596, Sector 10 A,
Gurgaon, Haryana
4 Expenditure incurred on the studies of his daughter 1,980
Sushila Chaudhary
5 Amount deposited at SBI Lalitpur under VDIS 1997 3,01,200
6 Expenditure incurred in purchase of house no. G 222, Lal 2,00,000
Kuan, Mehrauli Badarpur Road, Delhi
7 Expenditure incurred on plot no. plot no. 311, Vaishali, 61,155
Ghaziabad (UP)
8 Premium against LIC policy no.33006732 13,141
9 Expenditure incurred on house no. MG-1/359, Kanpur 58,252
Road, Lucknow
10 Expenditure incurred on personal visit of Sh. I. D. 9,000
Chaudhary to Singapore in the year 1990
11 Making charge of Jewellery in the year 1993 on the 27,000
occasion of marriage of son
12 Repayment of installments to Mafat Lal Finance Co. for 89,408
Cielo car UP-07-8666 for period May 1997 to December 1997 Total 10,54,855 CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 3 of 100 1.6 Accused acquired following movable assets and immovable assets during check period:-
Sl No. Immovable/movable assets Date of Amount in Rs.
acquisition 1 House no. 1596, Sector-10, Gurgaon, 10.05.1990 4,25,861 Haryana 2 House no. 1408, Gurgaon, Haryana 01.07.1991 6,71,538 3 5 Acre land in Mandideep, Madhya 31.10.1997 5,66,652 Pradesh 4 1.5 Acre land in Mandideep Madhya 27.11.1995 1,41,551 Pradesh 5 House No.2-B/55-A, Rachna, Vaishali, 16.05.1991 3,13,757 Ghaziabad (UP) 6 House no.2-C/93-A, Rachna, Vaishali, 16.05.1991 2,66,658 Ghaziabad, (UP) 7 Shop no.14, Kalkaji, New Delhi 20.03.1995 2,93,928 8 Shop no.15, Kalkaji, New Delhi 14.03.1995 4,02,723 9 Plot no.13/133, Vasundhara Ghaziabad UP 31.07.1991 2,55,110 10 House hold articles as on 31.12.97 88,900 11 Bank Balance as on 31.12.97 1,11,377 12 NSC no. 077EE477038 & 39 20,000 13 NSC no. 188925 to 32 40,000 14 FDR no. 373604 06.06.93 20,000 15 FDR no. 373663 06.06.93 20,000 16 Cielo Car no. UP-94 8666 5,22,698 Total 44,21,081* (*Exact total, however, comes to Rs. 41,60,753/-) 1.7 Investigating agency also kept in mind the assets, both movable and immovable, which accused was possessing at the beginning of the check period and these are as under:-CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 4 of 100
Sl No. Immovable & Movable assets Amount in Rs.
1 E-95, DDA Flats, Malviya Nagar, Saket, New Delhi in 1979
2 House no.4092, Block C, Vasant Kunj, New Delhi acquired
on 31.12.1987
3 House no.9/175, Galla Mandi, Bangi Chauraha,
Bachhrawan, Rai Bareilly, UP
4 One house in village Rampur, Mohinddinpur, PO Thulandi,
Bachhrawan, District Rai Bareilly, UP
5 About 8 bigha joint inherited agricultural land in Rampur,
Bachhrawan, UP
6 Household items as on 1.4.90 82,670
7 Balance in Bank A/C as on 1.4.90 11,417
8 Jewellery 3,000
1.8 After comprehensive investigation and on the basis of the
aforesaid tables related to income, expenditure and acquisition of assets, the investigating agency came to the conclusion that accused was having assets disproportionate to the known source of his income to the tune of Rs.
36,19,965/-.
1.9 It was computed as under:-
Income during the check period = Rs.17,73,571/-. Expenditure during the check period = Rs. 10,54,855/-. Likely savings during the check period = Rs.7,18,716/-. (Income (-) expenditure) Assets acquired during the check period= Rs.43,38,411/-.
Disproportionate assets = Rs.36,19,965/-
(Assets (-) likely savings)
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 5 of 100
1.10 Investigating agency also concluded that accused could not
satisfactorily account for the abovementioned disproportionate assets. While considering assets, CBI deducted worth of household items as on 01.04.1990.
1.11 Charge sheet for commission of offence u/s 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act, 1988 was filed in the court.
COGNIZANCE AND CHARGES 2.0 Cognizance was taken on 30.05.2003.
2.1 Obtaining of sanction for prosecution was not found obligatory as accused had already retired on 21.04.2001.
2.2 Accused was ordered to be charged for commission of offence u/s 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act, 1988 vide order dated 6.8.2003. He pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined 68 witnesses.
3.1 Witnesses can be categorized as under:-
1 Officials from various banks:-
PW12 Sh. K. D. Anand, Bank of Maharashtra. PW18 Sh. K. C. Verma.CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 6 of 100
PW30 Sh. O. P. Malhotra , State Bank of India. PW31 Sh. Naveen Thakkar, Bank of Maharashtra. PW37 Sh. V. K. Sood, Indian Overseas Bank. PW43 Sh. Rajesh Rai.
PW45 Sh. Braham Singh Biduri, Bank of Baroda. PW47 Sh. Fateh Singh, Bank of India. PW66 Sh. R. K. Srivastava, State Bank of India.
2 Officials from Income Tax Department:-
PW16 Sh. S. K. Jain.
PW21 Sh. Sampoornand Seth.
PW26 Sh. R. V. Tiwari.
PW48 Sh. Satish Chandra.
PW51 Sh. R. S. Ambedkar.
3 Witnesses from STC:-
PW2 Sh. Sukhdev Singh.
PW3 Sh. T. Kerketta.
PW4 Sh. Ashok Kumar Sikri.
PW25 Sh. V. K. Sachdeva.
4 Relatives of accused:-
PW1 Ms. Sneh Sengar, daughter-in-law of accused. PW42 Sh. Cheda Lal Chaudhary, cousin of accused. PW58 Sh. Ram Chander, Kalawati's brother.
PW65 Sh. Ausan Ram, brother of accused.
5 Witnesses related to immovable properties:-
(A) 1596/10, Gurgaon. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 7 of 100 PW5 Sh. Jagdish. PW20 Sh. R. P. Mehta, Tenant. PW28 Sh. R. K. Sachdeva, Tenant. (B) 1408/31/33A, Gurgaon. PW6 Sh. Jagdish Yadav. PW41 Sh. Rishal Singh. PW51 Sh. R. S. Ambedkar. (C) Mandideep. PW27 Smt. Geeta Gupta. PW50 Sh. M. K. Sharma. PW55 Sh. Pyare Lal. PW56 Sh. Ram Gopal Ahirwar. PW64 Sh. Ram Dayal. (D) Shop no. 14, LSC, Kalkaji. PW8 Sh. Naresh Kumar. PW29 Sh. Ram Kanwar. PW33 Sh. Dootnath Tewari. (E) Shop no.15, LSC, Kalkaji. PW29 Sh. Ram Kanwar. PW39 Sh. Shanti Lal Khurana. PW40 Sh. Yogesh. PW62 Sh. Ashok Kumar Richariya. (F) 2 B/55/A and 2C/93A-Vaishali, Ghaziabad, UP. PW9 Sh. Anil Kumar Tyagi. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 8 of 100 (G) MD/1/359 Lucknow. PW35 Ms. Usha Malik. PW53 Sh. Gurbaksh Singh. PW54 Sh. Harvinder Singh. (H) 13/133 Ghazibad. PW7 Sh. P. S. Verma. (I) 4092 Vasant Kunj. PW13 Sh. Prahlad Singh. (J) Plot 311, Sector-1, Vaishali, Ghaziabad, UP. PW19 Sh. Prem Singh. (K) Flat No. G222, Lal Kuan, MB Road, Delhi PW10 Sh. Arun Kumar. 6 Witnesses related to village Bachhrawan. PW36 Sh. Gulam Jilani. PW44 Sh. Sudhir Singh. PW46 Sh. Avadh Bihari Lal. PW49 Sh. Hari Ram Pal. PW52 Sh. Suresh Singh. PW57 Sh. Chander Bhan Chaudhary. PW59 Sh. Maharaj Deen Yadav. 7 Saket Club. PW11 Sh. Suresh Kumar Vohra. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 9 of 100 8 Admission Record. PW15 Sh. Pratap Singh. PW17 Sh. R. C. Bahuguna. 9 Vehicles
PW14 Sh. S. N. Sinha, in connection with car no. DAV 197. PW32 Sh. Mukesh Sharma, in connection with Cielo car.
10 CBI officials/search witnesses/GEQD PW22 Sh. Javed Siraz.
PW23 Sh. R. G. Mishra.
PW24 Sh. H. P. Sharma.
PW34 Sh. Y. P. Kashyap.
PW38 Sh. Sanjay Malik.
PW67 Sh. Parshotam Lal, Part IO.
PW68 Inspector Asha Badola, Main IO.
PW63 Dr. B. A. Vaid, G. E. Q. D. 11 Witnesses related to M/s Amjhara Granites PW60 Sh. R. K. Maheswari.
PW61 Sh. Ashish Niranjan.
STATEMENT OF ACCUSED AND DEFENCE WITNESSES 4.0 Statement of accused was recorded u/s 313 Cr. PC wherein he pleaded ignorance and absolute innocence. Most of his answers, to the incriminating evidence, were to the effect that he had no knowledge. He also claimed that the case against him was false, cooked up and motivated and prosecution witnesses were interested witnesses who had deposed against CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 10 of 100 him falsely at the instance of CBI/IO.
4.1 He also desired to lead evidence and examined nine witnesses in his support.
4.2 DW1 Sh. Kishan Kumar has been examined to confirm that there was rental income from shop no. 14, Kalkaji DDA Flat, Delhi. DW4 Sh. Baldev Parsad happens to be the cousin of accused and he has also been principally examined to prove rental income. DW6 Sh. Birbal Singh has been examined to demonstrate availability of rental income and agricultural income.
4.3 DW2 Ramdev Pal Singh has deposed about search and seizure proceedings conducted by CBI in village Ram Pur, Mohiddin Pur, District Rai Bareli in February, 2002. DW7 Sh. Manish Mishra, legal correspondent deposed regarding raid conducted by CBI in said village.
4.4 DW3 Sh. Nemi Chand had been examined in connection with agricultural land owned by Dharam Chaudhary and Ms. Kalawati in village Sheel Gaon, District Alwar, Rajasthan and the income arising therefrom.
4.5 DW5 Sh. Bhawani Parsad has been examined in order to prove that father of accused had gifted cash to Dharam Chaudhary and his mother.
4.6 DW8 Sh. Sanjay Verma is also acquaintance of accused and had deposed about the fact that family of accused had two houses at Bachhrawan.
4.7 DW9 Sh. Dharam Chaudhary happens to be material defence witness being son of accused I. D. Chaudhary.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 11 of 100RIVAL CONTENTIONS 5.0 I have heard Sh. Jagbir Singh, learned Special Public Prosecutor and Sh. S.P. Kaushal, defence counsel.
5.1 Learned SPP had contended that prosecution has been able to prove its case to the hilt. According to him, Sh. I.D. Chaudhary, who remained Director of State Trading Corporation, was found to be highly corrupt officer who had amassed immovable assets worth crores and was also having heavy cash amount in his bank account besides valuable electronic and electrical items. He also asserted that the check period i.e. period from 01.04.1990 till 31.12.1997 clearly indicates that the assets acquired by Sh. I.D. Chaudhary and his family members were horrendously disproportionate to his known sources of income. According to him, though some of the immovable assets had been acquired in the name of his son and his wife yet fact remains that neither his son Dharam Chaudhary nor his wife Kalawati Chaudhary were financially independent. They had no source of income at all and such acquisition was with the help of ill-gotten money of accused. He has also strongly relied upon the entries contained in service book of accused according to which his son, two daughters and his wife as well as his parents were dependent upon him. He has also claimed that factum of availing Voluntary Disclosure of Income Scheme (VDIS) by wife of accused and son of accused clearly indicate that they were having unexplained money with them. It has been argued that from the testimony of prosecution witnesses, it becomes very much evident and palpable that prosecution has been able to drive home the guilt of accused beyond reasonable doubt.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 12 of 1005.2 All the aforesaid contentions have been refuted by Sh. S. P. Kaushal. According to him, accused was targeted and victimized and the investigation is highly motivated and even otherwise below par. There is no explanation as to why, when the FIR has been registered way back in 2000, the alleged searches were conducted as late as on 02.02.2002. There is complete chaos as to how many cases were registered against him as different RCs numbers were mentioned in different search memos. He has also argued that in the charge itself, it has been wrongly mentioned that accused was Director of State Trading Corporation from 01.04.1990 to 31.12.1997 whereas the fact remains that he worked as director from 17.11.1995 onwards only. It has been claimed that there was no justification in picking up the check period arbitrarily and whimsically and moreover the assets which were available with the accused and his family members before the start of the check period have been deliberately left out. Sh. Kaushal has also contended that investigating agency has tried to prejudice the mind of the court by claiming that disproportionate assets were more than one crore whereas the charge sheet itself indicates that the disproportionate assets were to the tune of Rs.36 lacs approximately. According to Sh. Kaushal, accused was not the lone earning member of his family. His wife was having rental income, income from agriculture and also substantial gains from her father-in-law and she was having ancestral properties also. She was drawing substantial income from her such properties some of which existed prior to the check period which were not taken into consideration at all. Similarly, Sh. Dharam Chaudhary was also financially independent and his income has not been considered at all.
5.3 According to Sh. Kaushal, if the immovable assets, which were admittedly in the name of family members of the accused and not in the name of accused, are taken into consideration then the corresponding income CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 13 of 100 arising out of such immovable assets in the shape of rental or agricultural income is also required to be taken into consideration, whereas investigating agency has very conveniently chosen to leave out such income. It has also been argued that investigating officer has not conducted any genuine investigation. So much so, she did not carry out any search herself as she did not even go out of Delhi in context of the investigation of the present case. Explanation given by the accused during investigation has been deliberately suppressed and accused has been falsely implicated. It has also been claimed that the prosecution is trying to dig out undue advantage out of the testimony of PW1 Ms. Sneh Sengar. According to Sh. Kaushal, since the matrimonial life of Dharam Chaudhary was in complete disarray, investigating agency chose to rely upon the false and exaggerated version of such estranged wife and has tried to build up case assuming as if she was the star witness. It has also been stressed that case is liable to fail for want of sanction.
5.4 Sh. Kaushal has filed written arguments and he has also relied upon various judgments which I would advert to at appropriate place.
EVALUATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions and carefully gone through the material available on record. 6.1 I would be broadly evaluating the evidence under the following heads:-
(i) Income during the check period.
(ii) Acquisition of property (immovable and movable) during the
check period.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 14 of 100
(iii) Expenditure during the check period.
(iv) Additional income of accused and his family members, if any
and whether Dharam Chaudhary and Kalawati Chaudhary were financially independent.
6.2 It is also to be assessed whether selection of check period was arbitrary and whether there was any requirement of obtaining sanction for prosecution. It also needs to be weighed up whether investigation is tainted or motivated.
INCOME DURING THE CHECK PERIOD 7.0 As per CBI, income of accused, from his known sources during the check period, was Rs. 17,73,571/-.
7.1 Let me see whether such income has been proved by the prosecution or not.
7.2 Needless to say that defence does not dispute aforesaid income but according to Sh. Kaushal, such income has been downplayed considerably and additional income under various different heads has not been reckoned at all.
SALARY INCOME 7.3 As per the charge-sheet, accused collected salary worth Rs. 7,58,233/- during the check period.
7.4 PW2 Sukhdev Singh was working as Deputy Finance Manager in STC during the relevant period. He was the one who had provided salary details of accused from 01.04.1990 to 31.12.1997. He also provided details CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 15 of 100 of loan/advances which were seized vide memo Ex. PW2/A. Salary detail, signed by PW2 Sukhdev Singh, has been proved as Ex. P-1 and as per such statement, net salary of the accused for the check period was Rs. 7,58,233/-. I have seen Ex. P-1 (D-2). I do not find any reason to disbelieve the statement and the salary details given in Ex. P-1. Moreover, no eyebrow was raised when the testimony of PW2 Sukhdev Singh was recorded. There was no dispute with respect to said figure as no question or suggestion to the contrary was given to him.
7.5 During course of arguments, Sh. Kaushal contended that CBI deliberately held back some details and there was income of Rs. 9,41,539/- towards the salary including perks, allowances and merit scholarship for children. However, this only remains an oral assertion in air which is liable to be discarded straightway being completely unsupported by any sort of evidence. It has not been explained as to what allowances have been left out? It has not been attempted to elucidate as to what perks were not considered? There is vague averment that there was income as children of accused had got scholarship but such assertion is completely unsupported and unsubstantiated in any manner whatsoever. Moreover, if scholarship had been granted then there was going to be proportionately lesser expenditure on education of children. In fact, here, such expenditure is virtually non- existing and thus, perhaps, such fact has already been taken care of. Sh. Kaushal has attempted to place his reliance upon the statement of DW9 Sh. Dharam Chaudhary in this regard. I have seen Mark DW9/Q which, according to Sh. Dharam Chaudhary, contains details regarding payment of scholarship amount. I am, however, unable to make out any head or tail from such statement. This rather seems to be a photocopy of some office note prepared by Finance & Accounts Division of STC whereby some information regarding payment made to accused I.D. Chaudhary was provided but such CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 16 of 100 statement has not been proved in the desired manner. Moreover, as already noticed above, when PW2 Sukhdev Singh entered into witness box, no question was put to him. He was perhaps the best witness who could have thrown light with respect to the alleged assertion that the salary details had been downplayed.
7.6 Accordingly, it is held that net salary drawn by accused I.D. Chaudhary, after deductions, was Rs. 7,58,233/- for the check period.
BANK BALANCE AS ON 01.04.1990 7.7 According to CBI, there was bank balance of Rs. 11,417/- in the bank account of accused as on 01.04.1990.
7.8 No assistance in the shape of heading-wise breakup of the bank accounts has come forth either from prosecution.
7.9 This calculation job has been left to the Court.
7.10 According to Sh. Kaushal, opening balance in the account of accused and his family members as on 01.04.1990 was not Rs. 11,417/- but Rs. 51,200/-. If the prosecution is found to be casual, the situation of defence is not any better. Except for the bald assertion, defence has also not made clear as to how the bank balance was Rs. 51,200/-.
7.11 I have seen the statement of PW12 Sh. K.D. Anand. He was working as Manager, Bank of Maharashtra, Press Enclave Branch, Saket, New Delhi. As per his deposition, there were following accounts in said CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 17 of 100 Branch.
(i) Kalawati Chaudhary - SB A/c No. 860.
(ii) I.D. Chaudhary - SB A/c No. 6481.
(iii) Madhubala Chaudhary - SB A/c No. 874.
(iv) Sushila Chaudhary - SB A/c No. 969
(v) Dharam Chaudhary - SB A/c No. 11286.
7.12 Amount in SB A/c No. 969 of Sushila Chaudhary as on
01.04.1990 was Rs. 399.35 as per Ex. P-62. (D-37) and amount in SB A/c No. 967 of Madhubala Chaudhary as on 01.04.1990 was Rs. 596.75 if I have been able to read the statements correctly.
7.13 Statement of account of Kalawati Chaudhary (SB A/c No. 860) has been proved as Ex. P-69 which is part of D-37 but statement proved by the prosecution starts from January 1991. Similarly, statement of Amjhara Granites i.e. Current Account No. 1063 (Part of D-37) which has been proved as Ex. P-68 starts from the year 1995. Statement of account of accused I.D. Chaudhary (SB A/c No. 6481) has been proved as Ex. P-65 and it starts from November 1992 which does not come to the assistance of the Court as it does not decode as to what was the balance in that account as on 01.04.1990.
7.14 For totally unexplained reason, CBI did not attempt to ascertain the exact figure when PW12 Sh. K.D. Anand entered into witness box. Being bank official, he was in the best position to tell the Court about the balance in the bank account(s) of accused and his family members as on 01.04.1990.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 18 of 1007.15 However, since prosecution itself has come up with the figure of Rs. 11,417/- which, though, has not been proved, it would not be appropriate to read the bank balance to the detriment of the accused and I, therefore, hold that such bank balance was Rs. 11,417/- as on 01.04.1990.
CPF ADVANCE (NON-REFUNDABLE) RS. 1 LAC 7.16 According to prosecution, accused had taken advance from Contributory Provident Fund during the check period and such advance was of Rs. 1 lac.
7.17 I am again forced to refer to testimony of PW2 Sukhdev Singh who had handed over the relevant details of loans/advances to CBI. Seizure memo Ex. PW2/A (D-2) also reflects the same but when PW2 Sukhdev Singh was examined, he was not shown any such document.
7.18 So much so, he did not even make a whisper that accused was given any advance of Rs. 1 lac from CPF during the check period.
7.19 Sh. Kaushal has contended that CBI has shown advance as Rs. 1 lac whereas accused had taken advance of Rs. 2,26,000/-.
7.20 I would now refer to testimony of PW25 Sh. V.K. Sachdeva.
7.21 He was posted as Deputy Personnel Manager in STC in 2003 and had furnished information related to loans & advances in respect of accused for the check period. He categorically deposed that as per record available in the office, total amount of loans & advances received by accused during the check period was Rs. 2,26,000/-. In this regard, he made CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 19 of 100 reference to Ex. P-147 (D-65). It includes CPF (non-refundable) of Rs. 1 lac. It also talks about various other advances. All such loans & advances are as under:-
S. No. Name of Advance Amount Date of sanction
1 Contributory Provident Fund Rs. 18,000/- 19.05.1992
2 Additional HBA Rs. 30,000/- 13.11.1992
3 Contributory Provident Fund (non- Rs. 1,00,000/- 30.11.1992
refundable)
4 Household Rs. 18,000/- 15.03.1994
5 Computer Loan Rs. 60,000/- 31.12.1997
Total Rs. 2,26,000/-
7.22 Undoubtedly, as far as non-refundable withdrawal is concerned,
it becomes automatically an item under income and other sorts of advances are normally required to be repaid by way of deductions from the salary Again, CBI itself is to be blamed as it has not made it clear at all whether any such advance was paid back by way of deduction. Salary statement is very brief and does not throw any light. Concerned witness has also not spoken a word about it. Therefore, I cannot robotically assume that there were corresponding deductions from the salary. Thus, I am inclined to hold that accused got loans/advances worth Rs. 2,26,000/- during the check period.
RENTAL INCOME FROM H. NO. 1596 AND H. NO. 1408 7.23 CBI has taken aforesaid income as Rs. 60,400/-
7.24 As far as H. No. 1596, Sector-10, Gurgaon is concerned, it is not in dispute that such house was in the name of accused. Even prosecution CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 20 of 100 admits that it was let out during the part of check period.
7.25 PW20 Sh. R.P. Mehta is a material prosecution witness in this regard. He claimed that said house was on rent with him from November 1994 to October 1995 and he had made payment of rent @ Rs. 1,000/- per month to accused I.D. Chaudhary and paid him Rs. 12,000/-. He also claimed that such amount was paid to accused in cash. Examination of this witness was deferred but thereafter he was not produced before the Court for cross-examination. Ld. SPP has asserted that he expired in between and, therefore, he could not be examined. Factum of his reported death was, however, not confirmed in the desired manner.
7.26 Be that as it may, the incomplete testimony of PW20 R.P. Mehta does indicate that there was rental income of Rs. 12,000/- from said house from November 1994 to October 1995.
7.27 Thereafter, said house was taken on rent by PW28 R.K. Sachdeva and according to him, he paid rent @ Rs. 2,000/- per month from May 1996 to July 1997. For said 15 months, total rent amount comes to Rs. 30,000/- and PW28 has deposed that he had paid Rs. 30,000/- in cash for which accused did not issue any receipt.
7.28 It is not clear whether there was any tenant in said house after vacation by Mr. Mehta and before induction of Mr. Sachdeva. According to Sh. Kaushal, this house remained with previous tenant even during the intervening period i.e. 01.11.1995 to 30.04.1996 and the rent for the six months for such period was also @ Rs. 1,000/- per month. Since PW20 Sh. R.K. Mehta has not been produced for cross-examination, I am inclined to grant benefit in this regard to accused and thus total rental income from H. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 21 of 100 No. 1596, Sector-10, Gurgaon, Haryana comes to Rs. 18,000/- + 30,000/- = Rs. 48,000/-.
7.29 According to Sh. Kaushal, House No. 1596 was given on rent for the earlier period also i.e. between 01.12.1992 to 31.10.1994 and for the aforesaid period of 23 months, rent was charged @ Rs. 1,000/- per month. Thus, accused wants me to add Rs. 23,000/- more as rental income from said house. However, defence has not attempted to clarify as to who was the tenant occupying such house for the said period of 23 months. No defence witness has either been examined on this aspect and, therefore, for the preceding period of 23 months, it will not be possible for me to assume and hold any such rental income of Rs. 23,000/- .Accused himself also never entered into witness box. He did not place on record any documentary proof - be it in the shape of rent agreement or counterfoil of rent - which may suggest any such income of Rs. 23,000/- for the said period.
7.30 Similarly, there is no defence evidence to show that accused had any rental income of Rs. 20,000/- for period 01.08.1997 till 31.12.1997 (5 months @ Rs. 4,000/- per month).
7.31 Let me now come to H. No. 1408, Sector-31, HUDA, Gurgaon.
7.32 Said house is in the name of Kalawati Chaudhary.
7.33 As per CBI, one Birbal Singh Khatana remained as tenant in said house for five years and before that it was occupied by daughter-in-law of accused. Mr. Birbal was cited as prosecution witness. However, his statement u/s 161 Cr.P.C. was not recorded. He was summoned by the court but was given up by the prosecution on 29.04.2011. It appears that same Mr. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 22 of 100 Birbal was thereafter examined by the defence.
7.34 Sh. Rishal Singh entered into witness box as PW41 and corroborated CBI's version by deposing that Birbal Singh remained as tenant in said house for five years and before that it was occupied by daughter-in- law of accused. He also claimed that house rent of such type of premises was Rs. 4,000/- during 2000 & 2001.
7.35 I need not remind myself that in the instant case, check period ends in the year 1997.
7.36 My attention has been drawn to the testimony of DW6 Sh. Birbal Singh and Sh. Kaushal has contended that same Birbal Singh has supported the case of defence by claiming that he remained tenant in said house and the rate of rent was Rs. 6,000/- per month all along. He also deposed that he remained tenant from April 1994 till November/ December 2003. He also claimed that he was employed with Government of Haryana and that no rent receipt was issued and rate of rent was Rs. 6,000/- per month.
7.37 I strongly feel that prosecution itself is to be blamed for leaving cracks and gaps. It should have recorded the statement of such tenant u/s 161 Cr.P.C. Since, the name of the tenant and rental income from said house was deciphered during investigation, CBI should not have dropped Birbal during trial.
7.38 From the testimony of PW41 Rishal Singh, it becomes very much apparent that rate of rent was Rs. 4,000/- per month during 2000 & 2001 and, therefore, it would be hardly believable that DW6 Birbal Singh, a government servant, would be paying rent @ Rs. 6000/- even in 1994. Other CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 23 of 100 house no. 1596 was earlier occupied in the year 1996 and 1997 by PW29 @ Rs. 2000/- per month. Even if I stretch myself to the maximum, I would not be able to hold that rate of rent for H. No. 1408 for the period April 1994 till December 1997 would be more than Rs. 3,000/- per month. I accordingly, hold so and thus rental income comes to Rs. 1,35,000/- (45x3000).
7.39 Thus, total rental income from said two houses comes to Rs. 1,83,000/- (Rs. 48,000/- + Rs. 1,35,000/-).
INCOME FROM SALE OF H. NO. MG-1-359, KANPUR ROAD, LUCKNOW 7.40 As per prosecution, accused had received a sum of Rs. 4 lacs by way of sale of aforesaid house during the check period.
7.41 In this regard, let me see the testimony of PW35 Usha Malik.
7.42 She was the one who had purchased this house.
7.43 Admittedly, as per the documents, said house was purchased by her from Dharam Kumar Chaudhary and not from his father i.e. accused I.D. Chaudhary. She has deposed that agreement-to-sell was entered into and thereafter sale deed was also executed. Copy of registered sale deed has been proved as Ex. PW35/A. Seller has been shown as Dharam Kumar Chaudhary and buyers are Smt. Usha Malik and her husband Sh. C.L. Malik. Curiously, sale consideration has been shown as Rs. 3 lacs in the sale deed.
7.44 According to prosecution, sale consideration was, in fact, Rs. 4 lacs. PW35 Usha Malik has also deposed that sale consideration was Rs. 4 lacs and she explained the anomaly by claiming that sale consideration was CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 24 of 100 mentioned as Rs. 3 lacs in the sale deed as Dharam Chaudhary had asked for Rs. 1 lac in cash. I have carefully seen her cross-examination and it has been nowhere suggested to her that the sale consideration was Rs. 3 lacs only and not Rs. 4 lacs. Moreover, in such type of cases of disproportionate assets, accused never tries to disown any figure with respect to income.
7.45 I cannot, however, resist commenting upon one particular fact.
7.46 Sale deed was executed in the year 1998 (beyond check period) and as per the contents of the sale deed, vendor had received a sum of Rs. 2.40 lacs from the vendee on 13.10.1997 and rest of the amount of Rs. 60,000/- was to be paid at the time of execution of sale deed. If investigating agency had seen such aspect of the matter very vigilantly and carefully during the investigation, it would have, naturally, taken the income as Rs. 3.40 lacs but for the reason best known to the investigating agency, such income has been considered as Rs. 4 lacs.
7.47 Be that as it may, since defence has not disputed the amount of income, I hold the income under this head to be Rs. 4 lacs.
LOAN TAKEN FROM SH. R.K. SINGH 7.48 According to prosecution, accused had taken loan of Rs. 1,15,765/- from one R.K. Singh. Sh. R.K. Singh has not entered into witness box. However, statement of PW62 Ashok Kumar Richariya is important. He happens to be an advocate by profession and was Notary Public in Lalit Pur District Court at the relevant time. He proved receipt Ex. PW62/A (Part of D-21, page 83). By virtue of such receipt, Sh. R.K. Singh had given said amount to Madhubala Chaudhary (daughter of accused) as loan to be used CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 25 of 100 for purchasing shop no. 15, Site No. 37 & 38 Kalkaji. Amount was paid by way of draft. Notarization is dated 13.03.1995.
7.49 Investigating agency adopted a very novel way to prove such fact.
7.50 It is not apprised to the Court as to where is Mr. R.K. Singh? As per receipt, there are two witnesses to such transaction. No such witness was either examined. As per the contents of receipt, draft was directly prepared in favour of DDA and money was to be repaid within 10 years. Investigating agency should not have automatically jumped to any conclusion merely by a bare glimpse of such document without, at least, examining the executant/lender. No argument has been raised with respect to said head by the defence and, therefore, I am constrained to hold that accused had aforesaid income by virtue of loan. Undoubtedly, loan was meant for Ms. Madhubala Chaudhary but fact remains that there is nothing before me which may indicate that she was having any independent income or that she was not dependent upon her father. Such income is, therefore, required to be assumed as income of accused only.
INCOME FROM INTEREST OF FDR 7.51 According to CBI, accused had interest from FDR to the tune of Rs. 666/-.
7.52 Prosecution has not bothered to throw any light as to on what basis it calculated such amount of interest as Rs. 666/-? No detail with respect to FDR has been disclosed. Court does not know as to who was the holder of FDR? What was the maturity amount? What was the interest?
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 26 of 100Whether there was one FDR or more than one? However, since there is no argument with respect to the aforesaid item, I will not be excluding the aforesaid head of income to the detriment of accused and I, therefore, hold that such amount stands duly proved. Whether accused or his family members had any other additional income related to FDR would be discussed when I touch the issue of additional income.
INTEREST OF THE BANK ACCOUNTS 7.53 According to investigating agency, accused had income of Rs. 17,090/- by way of interest from his bank accounts. There is not much debate on said score even by defence and, therefore, I hold that said head also stands proved.
LOAN FROM MAFAT LAL FINANCE COMPANY FOR PURCHASE OF CIELO CAR 7.54 According to Sh. Kaushal, accused has nothing to do with the aforesaid Cielo Car which belonged to M/s Amjhara Granites. DW9 Dharam Chaudhary has deposed that he was one of the partners in M/s Amjhara Granites and his such firm had purchased Cielo Car. He has proved statement of payment of installments as Ex. DW9/G (D-62).
7.55 Such vehicle was got financed through M/s Mafat Lal Finance Company Limited.
7.56 PW32 Sh. Mukesh Sharma was working as Manager (Finance) with M/s Dynamic Automobiles and he had furnished requisite information regarding sale of car to M/s Amjhara Granites. It would also be important to mention that when the house of accused was searched on 02.02.2002, list of CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 27 of 100 articles found in the H. No. E-95 DDA Flats, Saket, New Delhi was prepared and such memo has been proved as Ex. PW22/C (D-60) and during such search, keys of three cars were recovered one of which was Cielo car (Daewoo) No. UP-94-8666. This happens to be the same car as even according to the documents placed on record by defence and particularly as per the evidence of DW9 Dharam Chaudhary, Cielo car no. UP-94-8666 had been financed by M/s Mafat Lal Finance Company Limited which had been purchased in the name of M/s Amjhara Granites.
7.57 Be that as it may, income by way of aforesaid loan facility is not disputed. According to Sh. Kaushal, this amount should have otherwise been included in the income of Dharam Chaudhary who was financially independent and for the totally unexplained reasons, investigating agency included his such part income and most of the other substantial income have been deliberately left out. This aspect would be dealt with when I discuss the issue related to additional income and financial independence of other family members of accused.
INCOME FROM AGRICULTURAL LAND AT MANDIDEEP 7.58 Accused was, admittedly, having agricultural land in Village Mandideep, District Raisen, Madhya Pradesh. According to CBI, accused had agricultural income of Rs. 10,000/- from such land. Again, everything has been left for assumption. Learned SPP has not been able to assist the Court as to from where exactly such amount of Rs. 10,000/- was deciphered.
7.59 There are two different pieces of land in Mandideep, Madhya Pradesh.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 28 of 1007.60 One piece of 5 acres of land had been purchased by accused I.D. Chaudhary on 30.04.1997 from Ms. Varsha Milind Pandit and Sh. Milind Pandit. Accused purchased Khasra No. 471/1/3 (2.5 acres) from Varsha Pandit and Khasra No. 471/1/2 (2.5 acres) from Sh. Milind Pandit and as per sale deed, accused had made payment of Rs. 5,66,652/- to the sellers in all. According to Sh. Kaushal, such land was with Sh. Dharam Chaudhary even in the year 1993 under some lease agreement and it was cultivated and it was later on purchased in the year 1995. According to him, it was purchased by accused and his son Dharam Chaudhary jointly. I have seen the sale deeds placed on record by the prosecution. These sale deeds have been proved as Ex. P-57 & Ex. P-58 (part of D-18) and as per these sale deeds, purchaser has been shown accused I.D. Chaudhary only. It is also nowhere mentioned in the sale deeds that such land was ever under the occupation of son of accused. No alleged lease agreement has been shown by the defence. Sale deeds are dated 30.04.1997 and thus acquisition of said property is found to be within the check period and is also found to be in the name of accused I.D. Chaudhary alone.
7.61 There is one more piece of land situated in Village Mandideep. Such piece of land measures 1.5 acres and it was purchased by Sh. Dharam Chaudhary from Sh. Pyare Lal. Such sale deed is dated 26.11.1995. It has been proved as Ex. P-56 (D-19).
7.62 It is now required to be seen as to what was the agricultural income from the aforesaid two pieces of land totaling 6.5 acres situated at Village Mandideep, District Raisen, Madhya Pradesh. According to prosecution, income was of Rs. 10,000/- only.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 29 of 1007.63 As far as five acres of land is concerned, it was purchased only on 30.04.1997. This means that said piece of land was available to accused for agricultural purpose only for eight months during the check period.
7.64 Other piece of land measuring 1.5 acres was available for cultivation for 25 months.
7.65 As far as DW9 Dharam Chaudhary is concerned, he has deposed that he had 6.5 acres of land in Mandideep and he was having income of Rs. 15,000-20,000/- per bigha per year. He also claimed that he had taken said land from Varsha Milind Pandit and Milind Pandit in 1993 and they used to sow the land and the income used to be shared in the ratio of 60:40. He means to indicate that 60 per cent of income used to come to his share and 40 per cent used to go to Varsha Milind Pandit and Milind Pandit. I have seen two affidavits of Varsha Milind Pandit which have been proved by defence as Ex. DW9/D & Ex. DW9/E. I am really not able to understand as to what defence is trying to substantiate through such affidavits. These only indicate that entire consideration amount was received by the sellers and that sellers were left with no right w.e.f. 19.04.1996.
7.66 At best, it can be inferred that such five acres of land was available to accused even on 19.04.1996. Let me assume so.
7.67 Accordingly, let me see as to what could have been income from said five acres of agriculture land from 19.04.1996 till 31.12.1997 i.e. for 21 months.
7.68 With respect to 5 acres of land, according to Sh. Kaushal, there was income of Rs. 6.80 lacs during the check period.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 30 of 1007.69 I have seen the testimony of PW23 Sh. R.G. Mishra who remained associated with the investigation of the present case and had seized several documents. He has not mentioned anything with respect to the income from the agricultural land. PW27 Geeta Gupta has identified signatures of concerned Sub-Registrar appearing on the sale deeds. She also deposed that according to such sale deeds (pertaining to 5 acres of land), land was un-irrigated with one annual crop and it was having no fruit tree or furniture tree or tubewell. In her cross-examination, she admitted that she had not seen aforesaid land herself and she had not personally visited that land. She claimed that she was deposing regarding annual crop on the basis of recitals mentioned in the sale deed and these could rather be verified by the concerned Ilaka Patwari. PW50 M.K. Sharma was also shown sale deeds. He is also from the office of Sub-Registrar and he has also not deposed anything with respect to crop or any income arising out of agricultural produce.
7.70 PW55 Pyare Lal and his brother PW56 Ram Gopal Ahirwar are the material witnesses with respect to 1.5 acres of land. Such 1.5 acres of land was sold by them and according to defence, there was income of Rs. 20,000/- per bigha per annum from such land measuring 1.5 acres.
7.71 According to Sh. Kaushal, agricultural income worth Rs. 1.44 lacs from such 1.5 acres (2.4 bighas) has not been considered.
7.72 PW55 Sh. Pyare Lal has deposed that said land of 1.5 acres yielded wheat crop. He claimed that there was babool tree in the land and that there was no source of irrigation or cultivation and there was no tubewell. He claimed that only one crop could be produced annually on such land. In his cross-examination, he also claimed that there was no source of irrigation CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 31 of 100 even in the nearby area. I have seen cross-examination of this witness. It was not suggested to him that such land could yield income worth Rs. 20,000/- per bigha or that land was capable of yielding two crops annually or that there was requisite irrigation for cultivation. PW56 Ram Gopal Ahirwar has also deposed that land was dry and it could only produce one crop of wheat and there was no source of irrigation for cultivation and there was no tubewell and Rs. 1,000-1,500/- could have been fetched from said land at that point of time.
7.73 PW64 Ram Dayal retired as Patwari from District Raisen, Madhya Pradesh. He has given some twist by claiming that in the land situated at Khasra No. 471/1/2 & 471/1/3 (5 acres of land), two crops were sown from which 50 quintals of wheat could be produced annually. Second crop sown in such land was of soyabean and there could be total yield of 50 quintals of soyabean from such land annually.
7.74 With respect to other 1.5 acres of land, he deposed that on said land, sometime one or two crops were sown and approximately 15 quintals of wheat and 3 quintals of soyabean could be produced annually. In his cross- examination, he denied that there was yield of 30-35 quintals of wheat per hectare even in the relevant time. When PW64 entered into witness box, it was never attempted to clarify from him as to what was the rate of wheat per quintal and what was the rate of soyabean per quintal during the relevant period. He deposed about rates as per year 2003 only. Prosecution should have tried to extract from him the rates during the relevant period.
7.75 However, in view of the testimony of Ram Dayal, let me assume that there were two crops sown and harvested in such land even during the relevant period.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 32 of 1007.76 Wheat of Madhya Pradesh is reported to be good quality wheat of the country and let me, therefore, assume that its rate would be around Rs. 800/- per quintal. Let me assume cost of soyabean as Rs. 1200/- per quintal. This is despite the fact that MSP of wheat and soyabean was much less in 1997. A quick surf to World Wide Web rather revealed that MSP of wheat was mere Rs 510/- per quintal and around Rs. 700/- for soyabean in 1997. Two such links are http://www.rbi.org.in/scripts/PublicationsView.aspx?id=14381 and http://www.theteamwork.com/articles/2016-2092-government-india- minimum-support-price-soybean.html.
7.77 In view of the testimony on PW64 Ram Dayal, worth of agricultural produce would be as under:
(i) Five acres of land:
Worth of wheat = 50x800 (Rs. 800 per quintal)
Worth of soyabean = 50x1200 (Rs. 1200 per quintal)
Total worth (annual) = Rs. 1 lac (40000/- + 60000)
Total worth (25 months) = Rs. 2,08,333/-
(ii) 1.5 acres of land:
Worth of wheat = 15x800 (Rs. 800 per quintal)
worth of soyabean = 30x1200 (Rs. 1200 per quintal)
Total worth (annual) = Rs. 48,000/-
Total worth (21 months) = Rs. 84,000/-
Total worth = Rs. 2,92,333/-
7.78 However, for producing aforesaid harvest, there would have
been some expenditure also and, as a bare minimum, therefore, I am inclined to take 30 % of the value as expenditure towards harvesting and CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 33 of 100 management of such agricultural land. It comes to Rs. 87,700/- (nearest rounding off). Thus, total income would be Rs. 2,04,632/- (2,92,333 - 87,700).
IMMOVABLE ASSETS ACQUIRED DURING THE CHECK PERIOD H. No. 1596, Sector-10, Gurgaon, Haryana 8.0 According to CBI, said house was acquired by accused on 10.05.1990 and the acquisition cost was Rs. 4,25,861/0.
8.1 Learned SPP has contended that such fact has been duly proved by the prosecution. Defence also does not dispute the acquisition of the property and cost thereof. However, according to Sh. Kaushal, amount was not paid in lump-sum but was paid by way of installments.
8.2 Fact, however, remains that there is no dispute with respect to the fact that property was acquired during the check period.
8.3 Reference in this regard be made to the testimony of PW5 Sh. Jagdish, official from Housing Board. He has proved the relevant file. Undoubtedly, he had not personally dealt with the file in question but fact remains that as per record of Housing Board, said house was acquired by accused. No significant dispute has been raised with respect to the aforesaid acquisition. Nothing has come in the cross-examination of PW5 Jagdish either which may create any sort of doubt with respect aforesaid acquisition or the worth of property.
8.4 I have seen file D-14 running into 90 pages. Seizure memo has been proved as Ex. PW9/A. Application moved by accused has been proved CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 34 of 100 as Ex. PW5/B. Allotment in his favour has been proved as Ex. PW5/D. As per PW5 Jagdish, as per the record, accused had made total payment of Rs. 4,27,409/- including interest and ELC and such details are contained in statement Mark X-1 (part of D-14).
8.5 However, since as per the charge-sheet, acquisition cost has been shown as Rs. 4,25,861/-, I hold the same as the acquisition cost for the benefit of accused.
H. No. 1408, Gurgaon, Haryana 8.6 According to CBI, said house was acquired by accused on 01.07.1991 and acquisition cost was Rs. 6,75,538/-. Sh. Kaushal has vehemently contended that said property does not belong to accused at all and rather it was purchased by his wife Kalawati Chaudhary and she had paid installments spread over a period of three years and she had her own independent income and accused had not contributed even a bit. I do not find any material before me which may indicate that Kalawati Chaudhary was having any independent income or that she was not dependent upon accused financially or otherwise. This aspect would, however, be discussed in detail in the later part of judgment.
8.7 Suffice it to say that testimony led by prosecution has proved that such property was acquired during the check period. It would be useful to refer to the testimony of PW6 Sh. Jagdish Yadav who was posted as clerk in the Housing Board, Haryana. He has proved the relevant record. I have seen file D-15 running in 72 pages. Seizure memo has been proved as Ex. PW6/A. CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 35 of 100 8.8 Application form having signatures of Kalawati Chaudhary has been proved as Ex. P-23. It is also important to mention here that in said application, she categorically herself asserted that she was a housewife and that her husband was in service. She took over the possession of the property vide document Ex. PW63/11 dated 04.01.1993. I have seen all the documents contained in aforesaid file. Keeping in mind the said documents, unrebutted and uncontroverted testimony of PW6 Sh. Jagdish Yadav, it stands proved that total acquisition cost of said flat was Rs. 6,71,538/-.
Five acre of land in Mandideep, Madhya Pradesh & 1.5 acres of land in Mandideep, Madhya Pradesh 8.9 It has already been noted above that there are two different pieces of land in Mandideep, Madhya Pradesh. One such piece of five acres of land had been purchased of accused on 30.04.1997 from Varsha Milind Pandit and Milind Pandit. They had executed separate sale deeds and as per such sale deeds, accused had made payment of Rs. 5,66,652/- to the sellers in all.
8.10 According to Sh. Kaushal, date of acquisition has not been given correctly. According to Sh. Kaushal, it was purchased on 21.10.1995 and not on 31.10.1997. It has also been claimed that earlier son of accused obtained the possession of same land for cultivation under lease agreement and such cultivation took place till 1995 and thereafter said land was purchased. Sale deeds are of 30.04.1997 and whatever is taken as date of acquisition, acquisition remains within the check period.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 36 of 1008.11 Name of Dharam Chaudhary is nowhere mentioned as buyer in any of the two sale deeds and I am not inclined to accept bald assertion coming from defence that such acquisition was made by Sh. Dharam Chaudhary. Sh. Dharam Chaudhary has deposed in his examination-in-chief that he had taken such land in 1993 and the income from such land used to be shared in the ratio of 60:40 with the owners and finally these were purchased by him through registered sale deeds. However, registered sale deeds tell a different story as according to such sale deeds, the buyer is none other than accused I.D. Chaudhary. Reference be again made to sale deeds Ex. P-57 and Ex. P-58 (part of D-18).
8.12 According to CBI, other piece of land was also acquired by accused through his son Dharam Chaudhary and the worth of the property was Rs. 1,41,551/-. In this regard, reference be made to the testimony of sellers i.e. PW55 Sh. Pyare Lal and his brother Ram Gopal Ahirwar. Sale deed has been proved as Ex. PW50/A. 8.13 Sh. Kaushal does not dispute the acquisition of said piece of land. His grouse is limited to the effect that accused was not the purchaser or owner of the aforesaid land and it was rather acquired by Dharam Chaudhary with his own income.
8.14 As already noticed above, it would be discussed in the later part of the judgment whether such acquisition can be said to be of Dharam Chaudhary with his independent source of income or not. Fact remains that in view of the testimony of record and particularly keeping in mind the statements of various witnesses including PW27, PW50, PW55, PW56 and PW64, there does not seem to be any dispute with respect to the acquisition of said property and its acquisition cost.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 37 of 100H. No. 2B/55-A, Rachna, Vaishali, Ghaziabad & H. No. 2-C/93-A, Rachna, Vaishali, Ghaziabad 8.15 As per prosecution, both the aforesaid houses were acquired by the accused on 16.05.1991 and the acquisition cost is Rs. 3,13,757/- and Rs. 2,66,658/- respectively.
8.16 Such acquisition has been disputed by the defence. With respect to first property i.e. H. No. 2B/55-A, according to Sh. Kaushal, it belonged to the wife of accused and she had purchased the same from her own funds and the other property was acquired by Dharam Chaudhary from his own funds.
8.17 I have seen the testimony of PW9 Anil Kumar Tyagi who was posted as clerk in Ghaziabad Development Authority and had handed over relevant documents to CBI vide seizure memo Ex. PW9/A and Ex. PW9/B. I have seen documents contained in D-16. Name of the scheme was Vaishali Self Financing Scheme. Application form has been proved as Ex. P-50 signed by Kalawati. Allotment-cum-possession letter dated 25.09.1993 has been proved as Ex. P-54.
8.18 There does not seem to be any dispute with respect to the acquisition cost and I do not find any reason to disbelieve the official record or the testimony of PW9 Anil Kumar Tyagi. Even if he had not personally dealt with aforesaid files or the applications, it does not mean that acquisition does not stand proved.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 38 of 1008.19 D-17 contains documents related to other property.
8.20 Application form is found to be signed by Dharam Kumar, son of accused I.D. Chaudhary and it has been proved as Ex. P-60. Dharam Chaudhary was aged 21 years at the time of moving application for allotment. Flat was reserved for him as per reservation letter dated 21.04.1991 (Ex. P-61) and I do not find any reason to disbelieve the case of prosecution with respect to the aforesaid acquisition of properties of Ghaziabad.
8.21 It thus stands proved that both the aforesaid properties were acquired during the check period and the cost of the acquisition of said properties was Rs. 3, 13, 757/- and Rs. 2, 66,658/- respectively. It will be assessed and evaluated later whether these were acquired bywife and son of accused with their own independent income or whether these were purchased by accused though in their respective names.
SHOP NO. 14 & 15, KALKAJI, NEW DELHI 8.22 According to CBI, accused had acquired Shop No. 14 on 20.03.1995 and acquisition cost has been alleged to be Rs. 2,93,928/-. Sh. Kaushal has contended that accused has no concern with said shop or for that matter with Shop No. 15. According to him, both the said shops had been purchased by Dr. Dharam Chaudhary from his independent income in the year 1995 and such purchase was on installment basis.
8.23 Admittedly, initially, said shop no. 14 was allotted in the name of one Naresh Kumar. PW8 Naresh Kumar has supported the case of prosecution in this regard. He has categorically deposed that said shop was allotted to him and thereafter he had sold the same to Dr. Dharam Chaudhary CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 39 of 100 for a sum of Rs. 80,000/- through one broker. According to him, he received Rs. 80,000/- in cash from the buyer and he had also signed various documents in this regard. He also claimed that when he had applied for the shop in the year 1993-94, he had only paid a sum of Rs. 2,000/- along with his application. Naturally, once the shop was purchased by Dr. Dharam Chaudhary, further payment to DDA was to be made by Dr. Dharam Chaudhary. Transaction of sale by Naresh Kumar in favour of Dr. Dharam Chaudhary took place in the presence of PW3 Doodh Nath Tiwari. There does not seem to be any dispute with respect to the fact that a sum of Rs. 80,000/- was paid to PW8 Naresh Kumar against said sale as no suggestion, to the contrary, was put to PW8 Naresh Kumar. Sh. Kaushal does not dispute acquisition cost. His only contention is that it was purchased by Dr. Dharam Chaudhary and could not have been reckoned as acquisition of property by accused. He has also claimed that payments were made in installments spread over a period of time but he has not elaborated whether such period of time extended even beyond the check period or not.
8.24 As regards shop no. 15, Kalkaji, New Delhi, it was allegedly acquired on 14.03.1995 and the acquisition cost was Rs. 4,02,723/-. As per CBI, this shop was allotted to Ms. Madhubala Chaudhary (daughter of accused) and she had no independent income at that time and the shop was merely purchased in her name and the amount was paid by none other than accused.
8.25 PW29 Ram Kumar happens to be the official witness who has proved the relevant record pertaining to said two shops.
8.26 According to him, shop no. 14 was allotted to Naresh Kumar and the possession of the shop was handed over to Naresh Kumar and thereafter CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 40 of 100 on the basis of GPA in favour of Dr. Dharam Chaudhary, Sh. Naresh Kumar nominated and authorized Dr. Dharam Chaudhary for further payment and possession. He also deposed that out of 24 installments, payment had been made upto 21 installments till 20.11.1996. As regards shop no. 15, he deposed that such shop had been applied by Ms. Madhubala (daughter of I.D. Chaudhary) and the total cost of shop was Rs. 4,36,000/- and as per the record, there was balance payment of Rs. 1,14,284/-.
8.27 I have seen various documents proved by him including the possession letter and various challans. All such material documents are contained in D-20 & D-21. As already noticed above, acquisition cost is not in dispute at all. I would be touching this aspect of there being any independent income of Dharam Chaudhary and of Madhu Bala Chaudhary in the later part of my judgment.
8.28 Since I have assessed the aspect related to acquisition of said two shops, at this juncture it would be appropriate to simultaneously ascertain whether there was any rental income from said shops to accused or for that matter to his son or daughter.
8.29 According to Sh. Kaushal, Dr. Dharam Chaudhary was having rental income from shop no. 14 as it was on rent from April 1995 to December 1997 (33 months) and the rate of rent was Rs. 10,000/- per month. In this regard, Dr. Dharam Chaudhary has himself entered into witness box and has deposed that he was having rental income as one dhaba was being run from there. He deposed that he got possession of said shop in 1995 and was having rental income at said rate regularly and continuously. He also deposed that shop no. 15 was also purchased by him though in the name of his sister Madhu Bala Chaudhary.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 41 of 1008.30 Accused has examined one Sh. Krishan Kumar (DW 1). According to Sh. Kaushal, he is the person who had taken said shop on rent and used to run a dhaba there. I have carefully gone through the testimony of DW1 Krishan Kumar. In his cross-examination, he admitted that he did not have any kind of record in order to show that he was running any dhaba from said shop. He also failed to produce any rent agreement though fact remains that he admitted that there was a written agreement. No rent receipt or counterfoil of rent receipt was produced either. Testimony of Krishan Kumar does not inspire much confidence.
8.31 I would also like to mention here that according to defence, said shop had been given on rent in April 1995 but as per Ex. PW63/42, Dr. Dharam Chaudhary himself had written a letter to Director (CE), DDA mentioning about the condition of shop. In such letter, he claimed that he was not in a position to run business in shop no. 14 as the surroundings were unhygienic and dirty and it was not possible to stand near the shop even for an hour. He also complained about the lack of basic amenities like water, electricity, public convenience and claimed that in such inhuman conditions, it was not possible to run shop. This letter is dated 21.12.1995 and defence wants me to believe that despite such pathetic conditions, an eating house (dhaba) was being run even in April 1995. Similar such letter was also sent to DDA by Madhubala Chaudhary and these letters clearly indicate the falsity and hollowness in the stand taken by defence. Thus, I am compelled to hold that there was no rental income from said shop(s).
8.32 Moreover, prosecution examined two witnesses from the same locality. PW39 Sh. Shanti Lal Khurana was having shop no. 16 and he, too, deposed that even in the year 1997, there was a dirty cluster of jhuggies in front of shopping complex and most of the shops were having no business in CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 42 of 100 that area and had rather closed down. No suggestion was put to him that there was any dhaba in shop no. 14 during the relevant period.
8.33 PW40 Yogesh has also deposed that condition of shop located in that area was very bad because basic amenities were not available in the shopping complex. He also knew Dr. Dharam Chaudhary but again it was not suggested to him that there was any dhaba in shop no. 14 at any point of time. Thus, there does not seem to be any sort of rental income accruing to accused or his son Dharam Chaudhary from shop no. 14.
Plot No. 13/133, Vasuandhara, Ghaziabad 8.34 According to CBI, plot no. 13/133, Vasundhara, Ghaziabad was been acquired by accused on 31.07.1991 and the acquisition cost has been claimed as Rs. 2,55,110/-.
8.35 Defence does not dispute the acquisition and the cost of acquisition but there are again two riders.
8.36 Firstly, it was not acquired by accused. And, secondly, payments were released over a period of time and not in one go.
8.37 According to Sh. Kaushal, this property was acquired by Kalawati Chaudhary (wife of accused) from her own independent income. I have seen the testimony of PW7 Sh. P.S. Verma and there is no dispute that allotment letter was issued in favour of Smt. Kalawati Chaudhary and property no. 13/133 area 180 square meters was allotted to her which was having cost of Rs. 2,16,000/- besides lease rent of Rs. 21,600/- and agreement charges of Rs. 40/-. I have seen file D-53. I have seen details of payment as CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 43 of 100 contained in Ex. P-36 (page-11 of D-53) and such statement clearly indicates that a sum of Rs. 2,20,500/- was paid to concerned authority between 07.10.91 to 14.10.1991. These were through drafts drawn on Central Bank of India Bachchrawan and Bank of Maharashtra.
8.38 Interestingly, in her affidavit Ex. P-38 (page-19 of D-53), she herself deposed that in the previous year (previous to registration), annual income of her husband or dependents was not exceeding Rs. 1,20,000/-. Be that as it may, it becomes apparent that there is no qualm with respect to the acquisition cost and the factum of payment being made within the check period.
MOVABLE ASSETS ACQUIRED DURING CHECK PERIOD Household Articles as on 31.12.1997 9.0 As per CBI, accused had household articles as on 31.12.1997 to the tune of Rs. 88,900/-. Sh. Kaushal has, however, contended that CBI had also calculated the worth of household articles as on 01.04.1990 as Rs. 82,672/-. Undoubtedly, such fact is mentioned in the charge-sheet itself. It has been argued by Sh. Kaushal that the worth of household items as on 01.04.1990 amounting to Rs. 82,670/- was required to be deducted from the cost of Rs. 88,900/- and, therefore, the effective worth of acquired household movable asset comes to Rs. 6,230/-. Undoubtedly, CBI has not attempted to make it clear as to on what basis it has come to said amount of Rs. 88,900/-. It should have been made very lucid in the charge-sheet itself that such amount was derived after giving the benefit of household items as existing on 01.04.1990. Specific question in this regard was put to IO PW68 Asha Badhola who also admitted that she had not specifically mentioned anywhere that the amount of Rs. 88,900/- was calculated after deducting the amount of CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 44 of 100 Rs. 88,670/-. Fact remains that benefit in this regard was given in the calculation shown in charge-sheet itself. Accordingly, I t hold that acquisition of household articles during the check period was of mere Rs. 6,230/-.
BANK BALANCE 9.1 According to Sh. Jagbir Singh Ld. PP for CBI, there was bank balance of Rs.1,11,377/- in various bank accounts of accused and his family members as well as of M/s Amjhara Granites. As per the charge sheet, a sum of Rs.11,417/- was already in the bank accounts of accused and his fam- ily members as on 01.04.1990 and, therefore, such amount is required to be deducted and thus the effective bank balance, as per CBI, comes to Rs. 99,960/-.
9.2 Let me see whether the prosecution has been able to substantiate said fact or not.
9.3 Officials from bank of Maharashtra, State Bank of India, Indian Overseas Bank and Bank of India have graced the witness box.
9.4 As per Sh. Kaushal, bank balance as on 31.12.1997 (after deducting the amount existing in the accounts at the start of check period) was Rs. 89,343/-. Since there is not much difference between the amount admitted by the defence and the one claimed by CBI, I do not wish to enter into this controversy any deeper and assume the amount as revealed and admitted by defence to be true.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 45 of 100NATIONAL SAVING CERTIFICATES 9.5 According to CBI, accused acquired NSCs worth Rs. 60,000/- as per the details mentioned in charge sheet.
9.6 I have not been able to find out any evidence on record showing acquisition of any such National Saving Certificate. No witness from any Post Office has been examined. No agent has been examined and I have not been able to find out as to in whose name such alleged NSCs were there or the numbers thereof. Therefore, such head does not stand proved.
FDRS 9.7 According to CBI, accused had acquired FDRS worth Rs. 40,000/- during the check period. Sh. Jagbir Singh, learned SPP has contended that one FDR No. 373604, held by accused and his son Dharam Chaudhary, was of Rs. 20,000/- and its duration was of two months i.e. 06.06.1993 to 06.08.1993. Similarly, there was one more FDR bearing no. 373663 which was in the name of Dharam Chaudhary and Madhubala Chaudhary. It was also for the same amount and for same duration. Rate of interest was 10 per cent per annum.
9.8 There is, though, one interesting aspect. If the duration is found to be correct then these must have also matured during the check period and, therefore, maturity amount should have been calculated as income.
9.9 DW9 Dharam Chaudhary has made reference to two FDRs which he had with Bank of Maharashtra, Press Enclave jointly with his sister Madhubala and revealed their numbers as 373663 and 373664. Rate of CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 46 of 100 interest was admitted as 10 per cent by him and he claimed that such maturity amount falling within the check period was credited in his account.
9.10 Interestingly, these FDRs were referred by IO Sh. P. Lal in his deposition dated 29.04.2011. In his such deposition, he made reference to such two FDRs as claimed by Dharam Chaudhary and these were also exhibited by him as Ex. PW67/C and Ex. PW67/D. I have seen both these FDRs which are in D-28 and in fact one FDR is found to be jointly held by Dharam Chaudhary and accused I.D. Chaudhary. I have seen the statement of account of Bank of Maharashtra as contained in D-37 but I have not been able to find any statement of account of Dharam Chaudhary or of M/s Amjhara Granites for the relevant period of 1993.
9.11 Prosecution is itself is to be blamed as it took no pains in getting said fact proved in the desired manner. Proving FDRs through I.O. defies logic more so when bank official had been cited as witness. In view of aforesaid, I am forced and inclined to give advantage of lapses of prosecution in this regard and under this head to defence. Things would have been much clearer if the concerned bank official had been examined on this score as well.
CIELO CAR 9.12 According to prosecution, a Cielo Car was purchased during the check period and its worth was Rs. 5,22,698/-. Cost of acquisition is not disputed by defence. However, according to Sh. Kaushal, such vehicle had been purchased by M/s Amjhara Granites, a partnership concern and Dharam Chaudhary was one of the partners in said partnership concern and such acquisition cannot be fastened upon accused in any manner whatsoever. I CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 47 of 100 would like to make it clear that no one is permitted to approbate and reprobate. One cannot have the cake and eat it too. When income of Rs. 3 lacs, resulting due to grant of loan for such car, was being considered, no real resistance came from defence and, therefore, when it comes to acquisition, accused cannot be heard of raising any grudge.
9.13 As already noted, PW32 Sh. Mukesh Sharma has been examined in this regard. Acquisition is not in dispute. Only, it is to be assessed whether it was acquired by accused or by his son from his own independent income. This fact would be discussed in the later part of judgment when I would be embarking on the issue of independent income, if any of Dharam Chaudhary.
EXPENDITURE DURING CHECK PERIOD Household expenditure 10.0 According to investigating agency, accused incurred household expenditure to the tune of Rs. 2,52,742/- during the check the period. Sh. Kaushal has expressed his astonishment as to how such figure has been calculated. However, there is nothing to feel surprised as 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.
10.1 In the present case, total salary income comes to Rs. 7,58,233/- and, therefore, 1/3rd household expenditure would be Rs. 2,52,744/-.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 48 of 100Expenditure incurred in Saket Culture Club 10.2 As per CBI, accused had made expenditure of Rs. 35,685/- in his capacity of being member of Saket Culture Club. Sh. Kaushal has, on the other hand, claimed that entire such amount was paid by STC, employer of accused and accused had not made any expenditure at all.
10.3 I have seen testimony of PW11 Sh. Suresh Kumar Vohra who was posted as clerk in such club at the relevant time. He was the one who had handed over the chart with respect to the expenditure made by accused.
10.4 There is no dispute that accused was member of such club. Only it is required to be seen whether expenditure was made by him or his employer.
10.5 I have seen the statement Ex. PW11/A (part of D-32). There are two types of expenditure. First expenditure relates to credit sale. As a member, anyone can make expenditure and qua such type of expenditure incurred on credit sale, there is normally no question of employer coming into picture at all and making reimbursement. Second chart i.e. Ex. P-51 (part of D-32) pertains to subscription part. During the check period, accused had incurred following expenditure on subscription and on credit sale:-
Subscription S. No. Date Amount 1 20.02.1992 558/-
2 13.03.1993 200/-
3 06.04.1993 40/-
4 24.04.1993 40/-
5 01.05.1993 600/-
Total = 1438/-
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 49 of 100
Credit Sale
S. No. Date Amount
1 12.06.1997 Rs. 8,134.00
2 08.07.1997 Rs. 1,650.00
3 13.04.1997 Rs. 6,308.00
4 06.11.1997 Rs. 3,180.55
5 17.12.1997 Rs.10,845.15
6 26.12.1997 Rs. 3,750.00
Total= 33867/- (Rounded off)
10.6 Accused has failed to place on record any material that
aforesaid amount had not gone from his pocket and was rather paid by his employer. I am not impressed with the answer given by PW11 in his cross- examination. He was merely an employee of club. He was not in any position to comment who had actually made the payment - accused or his employer. Accused should have got such fact clarified from competent official of STC. No employment rule or stipulation in this regard has either been shown. In view of aforesaid, I hold that expenditure incurred in Saket Culture Club by the accused during the check period stands duly proved as Rs. 35,305/-.
Expenditure incurred on interest paying in two houses of Gurgaon, Haryana.
10.7 As already discussed above, H. No. 1408, Sector-31 & H. No. 1596, Sector-10A, Gurgaon, Haryana have been alleged to be the assets which accused acquired during the check period and according to CBI, accused had incurred expenditure towards interest payment of Rs. 5,290/- during the check period. Such head has not been proved in the desired manner. Moreover, in the acquisition cost, it seems that entire value has already been considered.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 50 of 10010.8 Be that as it may, since such head has not been appropriately proved by the prosecution and no witness has specifically deposed that aforesaid amount of Rs. 5,290/- was spent towards interest, I find myself unable to hold so.
Expenditure incurred on the studies of Sushila Chaudhary 10.9 Prosecution wants me to believe that accused had spent a sum of Rs. 1980 on the studies of his daughter Sushila Chaudhary during the check period.
10.10 The amount seems to be paltry. Perhaps, there was not proper investigation on this score or CBI believed accused's assertion that STC had provided scholarship(s) which took care of such expenses.
10.11 Fact, however, remains that even such amount Rs. 1,980/- has not been proved by the prosecution in any manner whatsoever. Prosecution has examined PW15 Sh. Pratap Singh but he has proved the record pertaining to Ms. Madhubala Chaudhary when she was pursuing her studies in Delhi School of Economics, University of Delhi. Prosecution has not attempted to make it clear whether expenditure mentioned in the charge- sheet is of Madhubala Chaudhary, in fact, and that due to some typographical error, name of Sushila Chaudhary has been mentioned. Be that as it may, I have carefully perused the statements of various other witnesses examined by the prosecution and I have failed to come across any witness who might have deposed about education expenditure incurred on the studies of Sushila Chaudhary.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 51 of 100Amount deposited at SBI Lalit Pur under VDIS 1997 10.12 There is no dispute that such amount was deposited at the time of availing VDIS 1997. However, according to Sh. Kaushal, such amount of tax was paid by Dharam Chaudhary and Kalawati Chaudhary respectively as they were the declarants and accused was not concerned with such payment at all.
10.13 This seems to be one of the crucial head.
10.14 Voluntary Disclosure of Income Scheme 1997 was announced by Government of India in 1997 itself. Such scheme closed on 31.12.1997. Purpose of bringing out such scheme was to harness black money for productive purpose. Imposition of interest and penalty was to be waived for any such declarant and there was also immunity from prosecution under Income Tax Act, Wealth Tax Act and FERA. All the particulars contained in the declaration were to be treated as confidential. For any individual, the rate of tax was 30 per cent.
10.15 Smt. Kalawati Chaudhary sought to avail benefit of said scheme. Her application has been proved as Ex. PW63/69 [part of D-12 (II)]. She claimed that she had income from immovable property situated at Rachna, Vaishali, Ghaziabad, Vasundhara, Ghaziabad, H. No. 1208, Sector-31-32A, Gurgaon. She disclosed her income as Rs. 7,04,000/- and paid tax of Rs. 2,11,200/-. Income Tax Department issued certificate u/s 60 (2) of VDIS 1997. Such certificate has been proved as Ex. P-114 which also clearly indicates that she had paid tax of Rs. 2,11,200/-. Such tax was deposited by her within the check period. To be precise on 12.12.1997.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 52 of 10010.16 Similarly D-12 (1) contains documents pertaining to disclosure made by Dharam Chaudhary. He claimed that he had income of Rs. 3 lacs from his house of Vasant Kunj, New Delhi. Surprisingly, he claimed that his such income was for the period 1988-1989, 1989-1990 & 1990-1991 when he was admittedly not earning anything. He paid tax of Rs. 90,000/- and certificate issued to him has been proved as Ex. P-108. He also deposited tax on 12.12.1997.
10.17 Tax was paid. Expenditure, thus, stands proved. Accused has baldly claimed that such amount was spent by his wife and his son from their own independent sources and he himself had no concern with such expenditure. His stand is hardly believable. Moreover, he has not bothered to examine his wife in support of his defence. Undoubtedly, his son had entered into witness box but I do not find his testimony inspiring enough on this score. This aspect would be further considered in detail when I touch upon the aspect of alleged independent income of Dharam Chaudhary and his mother Smt. Kalawati Chaudhary.
Expenditure incurred in purchase of H. No. G-222 Lal Quan 10.18 Sh. Kaushal has contended that CBI, with clear ulterior motive, has shown purchase of such property under the head of expenditure and not under the head of acquisition of immovable property. It has been contended that such property was purchased by Smt. Kalawati from her own income and accused had no concern with said house either. It has been argued that there is nothing to show that even otherwise such expenditure took place during the check period.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 53 of 10010.19 Such contention has been refuted by learned SPP. According to Sh. Jagbir Singh, accused, through his wife, had purchased said house for a sum of Rs. 2 lacs during the check period and in this regard, he has placed his reliance upon the testimony of PW10 Sh. Arun Kumar.
10.20 Seller was one Sh. Sunder Lal. Since Sunder Lal expired in 2003, his son Arun was cited as witness who appeared in witness box and proved one receipt as Ex. PW10/A (D-34). According to learned SPP, a sum of Rs. 2 lacs was paid as consideration in the year 1997. He also claimed that house was kachha house situated at government land and, therefore, there was no document showing ownership of such house and that since payment of Rs. 2 lacs to Sunder Lal stands proved, such amount should be taken as expenditure.
10.21 I have seen such receipt very carefully. As per such receipt, Sunder Lal had sold H. No. G-222, Lal Quan for a sum of Rs. 2 lacs. Surprisingly, there is no date mentioned on such receipt. Needless to say that even such receipt is a photocopy. When PW10 Arun entered into witness box, in his cross-examination, he also claimed that he did not remember the year or month when such payment was received by his father. He merely claimed that it might be in the year 1997. He also does not know as to when such receipt was executed. He claimed that his father was looking after his all affairs and, therefore, he had no knowledge of the receipt and transaction. He also expressed his ignorance as to from whom his father had purchased said property. He claimed that he had never seen any document showing ownership in the name of his father. He also claimed that such property was government property which could neither be sold nor purchased by any private person. He also claimed that he had no personal knowledge about the transaction.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 54 of 10010.22 In view of aforesaid, even if I stretch myself to the maximum, I will not be in a position to conclusively hold that expenditure was made in the year 1997 or for that matter during the check period. Arun Kumar is not certain and sure about the date, month or year when such amount was received by his father. Even if it is held that Kalawati Chaudhary had made payment of Rs. 2 lacs, fact remains that there is not enough clarity to hold that such expenditure was well within the check period and, therefore, I am inclined to grant benefit to accused with respect to such head.
Expenditure incurred on Plot No. 311, Vaishali Ghaziabad 10.23 Sh. Ram Chander happens to be brother-in-law of accused. He is brother of Kalawati Chaudhary.
10.24 I have seen the testimony of PW19 Prem Singh who was a clerk in GDA. He had handed over one file in respect of plot no. 311, Sector-1, Vaishali Ghaziabad to CBI. As per official record, such plot was in the name of Sh. Ram Chander who booked said plot in the year 1992 and made payment of Rs. 1,70,289/- and further payment of Rs. 25,020/- as registration charges and thereafter letter of possession was issued and possession was handed over to Ram Chander. I have seen the relevant file. Its perusal indicates that Ram Chander had authorized one Ashok Kumar to deal with the aforesaid property and said Ashok Kumar then sold the property to one Simmi Rani and such property had also been mutated in her favour. I have also seen order dated 04.03.2011 passed by Sh. Amar Nath, learned Special Judge (CBI), Rohini when he was seized with the present matter. As per the details appearing in the files, Sh. Ram Chander had made part payment of Rs. 61,800/- on 03.12.1992 in the shape of DD No. 521989 dated 02.12.1992 drawn on SBI Chander Lok Building, New Delhi. Prosecution is referring to CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 55 of 100 this expenditure as the one made by accused. I have also seen D-47 which has been proved as Ex P133. Even PW 58 Ram Chander admits that he raised a sum of Rs. 60,000/- from accused. This happens to be the same amount paid by accused to him within the check period. Though PW 58 tried to supplement that he repaid such sum but there is no evidence to such effect at all. Thus such payment/ expenditure by accused stands proved.
Premium against LIC Policy No. 33006732 10.25 Learned SPP has contended that accused had made expenditure of Rs. 13,141/- during the check period by making payment with respect to premium against aforesaid LIC policy. His contention is based on charge-sheet only. No effort has been made to corroborate the same in any manner whatsoever either by oral or by documentary evidence. No witness from LIC has entered into witness box. There is nothing to indicate as to who was the holder of such policy? Nobody knows about the mode of payment of such premium much less that such premium payment was within the check period. I am, therefore, compelled to exclude the aforesaid head of LIC premium from the category of expenditure.
Expenditure incurred in H. No. MG-1/359, Kanpur Road, Lucknow 10.26 As per CBI, accused had incurred anexpenditure of Rs. 58,252/- with respect to the aforesaid house. According to Sh. Kaushal, this head stands unproved. It has been argued that even otherwise said house belonged to Dharam Chaudhary and there is nothing to show that he had incurred any expenditure whatsoever with respect to said house.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 56 of 10010.27 According to Sh. Kaushal, said house was rather sold during the check period and even otherwise accused was not concerned either with the house or with the alleged expenditure incurred on the house.
10.28 Let me see the testimony of concerned witnesses i.e. PW35, PW53 & PW54.
10.29 I have already noticed in the earlier part of judgment that the said house was sold during the check period and a sum of Rs. 4 lacs was received by way of sale consideration. Prosecution has alleged that said house was purchased as well during the check period and there was expenditure of Rs. 58,252/- towards the purchase. I once again went through the testimony of PW Usha Malik. In her deposition, she had made reference to one sale deed executed between Dharam Chaudhary and Lucknow Development Authority dated 24.07.1991. According to her, such property was transferred by Prabhari Adhikari Samparti, Lucknow Development Authority to Dharam Chaudhary. She also brought along the original sale deed which was seen and returned. Copy of such sale deed has been exhibited as Ex. PW35/B (Part of D-23). It becomes evident that CBI is trying to assert that while said house was allotted by LDA, there was expenditure towards sale consideration and stamp. CBI should have come up with complete precision and clarity on this score and should not have left anything for assumption or in lurch. I have seen Ex. PW35/B (part of D-23). Sale consideration has been mentioned as Rs. 51,052.50 and the execution deed is dated 24.07.1991. Such sale deed/allotment is on stamp papers and the worth of all such stamp papers is found to be of Rs. 7,470/- and all such stamps were purchased on 05.02.1990 as per the endorsement made on the reverse of the stamp papers. Therefore, I am compelled to exclude the expenditure made towards purchases of stamp being prior to the check CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 57 of 100 period and from sale deed Ex. PW35/B, it becomes apparent that sale consideration was Rs. 51,052.50 and such amount was incurred during the check period. Purchaser was Sh. D.K. Chaudhary. It would be discussed later on whether Sh. D.K. Chaudhary was having his own independent income at the relevant time or not. Thus, expenditure made under this head stands proved as Rs. 51,052/- (nearest rounding off).
Expenditure incurred on personal visit of I.D. Chaudhary to Singapore in the year 1990 10.30 This head is hazy and blurry.
10.31 CBI has come up with a very specific case and taken period of 01.04.1990 to 31.12.1997 as check period.
10.32 In such a situation, it should have been properly elaborated and explained by the CBI that such expenditure was made during the check period only. Merely by claiming that expenditure was made in the year 1990, it cannot be assumed that such expenditure was during the check period. Moreover, to the utter dismay of the Court, there is no material to show that any such expenditure was, in fact, made by the accused. Vague reference made by estranged wife of Dharam Chaudhary does not take case of CBI anywhere to establish expenditure on such visit to Singapore. Such head, therefore, does not stand proved.
Making charges of jewellery in the year 1993 on the occasion of marriage of son 10.33 I have seen the statement of PW1 Ms. Sneh Sengar. She was the one who got married to Sh. Dharam Chaudhary in May 1993.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 58 of 100Unfortunately, her matrimonial life was in turmoil and she, during investigation, also made statement before the CBI and her testimony was also recorded in the Court.
10.34 I have seen her deposition very carefully. In her deposition, she claimed that for the purposes of her engagement, Sh. I.D. Chaudhary and her wife Smt. Kalawati Chaudhary had flown to Singapore and Dubai and purchased jewellery for her from Singapore and Dubai. She made reference to 12 heavy gold bangles, one gold set consisting of necklace and finger ring etc. She also claimed that all such jewellery articles were taken back from her after the marriage. She also claimed that at the time of her wedding, accused had gifted her a very heavy set of gold, one light gold set which were also taken back after the marriage.
10.35 This is all what she has to offer regarding the jewellery.
10.36 Surprisingly, in the entire testimony, she has made reference to purchase of jewellery articles from Singapore and Dubai whereas prosecution has come up with a very specific head. According to prosecution, accused had spent Rs. 27,000/- and such expenditure was towards making charges of jewellery in the year 1993 on the occasion of marriage of Dharam Chaudhary.
10.37 Purchase of jewellery is one thing and expenditure towards making charges of jewellery is another. Moreover, court does not have the benefit of testimony of any jeweller or goldsmith. It is not elucidated as to from where the prosecution has been able to decipher aforesaid sum of Rs. 27,000/- as making charges.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 59 of 10010.38 On the other hand, defence has attempted to dig out huge mileage out of the aforesaid head. Sh. Kaushal has contended that if Rs. 27,000/- has been shown as making charges of jewellery way back in the year 1993 then accused would be, naturally, possessed with gold ornaments weighing 900 grams approximately and prosecution should have considered such worth of gold in the assets existing prior to the check period whereas such amount has neither been reflected nor adjusted in any manner whatsoever.
10.39 I, however, feel that accused cannot drive home any advantage in this regard. If, he was, in fact, holding any gold ornament, it would have certainly surfaced when search took place at his places. Else it should have been in the bank locker. No gold ornament was, however, recovered except few inconsequential items mentioned in the search list dated 02.02.2002. Search list pertaining to house search of accused situated at E-95, DDA Flats, Saket, New Delhi has been proved as Ex. PW22/A (D-59). D-60 is the inventory of the articles found therein and two pairs of silver payal and four bichhuas, three ring of gold (approximate 25 grams in weight) are found mentioned in such inventory. It shows that no other ornament was recovered in search. Such search list has been proved by PW22 DSP Javed Siraj, PW34 Y.P. Kashyap and PW38 Sanjay Malik. I am conscious of the fact that expenditure shown by the prosecution is towards the making charges only. At the fag end of the matter when the judgment is to be pronounced, it is beyond my domain to change the head altogether. Suffice it to say that such head related to making charges does not stand proved.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 60 of 100Repayment of installments to M/s Mafat Lal Finance Company for Cielo Car No. UP-07-8666 10.40 Again, expenditure under this head is not disputed by the defence but according to Sh. Kaushal, expenditure was made by M/s Amjhara Granites with which accused had no concern. Since the amount under this head is not disputed, it stands proved that there was expenditure of Rs. 89,468/- under this head. However, it would be assessed in the later part of the judgment whether the expenditure was by M/s Amjhara Granites or by Dharam Chaudhary from his independent source of income or by accused.
Alleged Additional Income of accused and his family members and their financial independence 11.0 Let me now straightway come to the additional income, if any, of the accused or his family members.
11.1 Sh. Kaushal has claimed that accused was having rental income from H. No. 1596, Sector-10A, Gurgaon. I have already referred to such aspect and have given needed benefit to accused.
11.2 It has next been contended that accused owned ancestral property acquired by him in 1960 and had rental income from such ancestral property i.e. H. No. 9/175, Galla Mandi, Bachhrawan, Rae Bareilly. According to defence, this property was on rent @ Rs. 5,000/- per month from 1990-1997 and for the aforesaid period of 96 months, rental income was Rs. 4,80,000/- which has not been taken into consideration by CBI.
11.3 Aforesaid head has been seriously disputed by learned Prosecutor.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 61 of 10011.4 There is no dispute that such house was available to accused as even in the charge-sheet, said immovable property has been mentioned as one of the assets available with the accused at the beginning of the check period.
11.5 My attention has been drawn towards the testimony of DW4 Sh. Baldev Prasad Kuril, DW8 Sanjay Verma and DW9 Dharam Chaudhary in order to show that there was rental income from said house of Bachhrawan, Rae Bareilly. I have carefully seen the testimony of DW4 Baldev Prasad Kuril. He was resident of village Ram Pur, Mohinuddin Pur and he did claim that father of accused was having H. No. 9/175. He also claimed that there was rental income from such house. However, he failed to elaborate as to what was the rental income? He failed to give the duration when such house was let out? He does not know the name of the tenant. There was never any occasion of his being noticing collection of rent with respect to such house of Bachhrawan. No documentary record has been placed which may even slightly suggest that such house was on rent much less that rate of rent was Rs. 5,000/- per month. Nobody knows as to who was occupying said house as tenant. Testimony of PW8 Sanjay Verma also does not throw any light on this issue. DW9 Dharam Chaudhary has vaguely claimed that rental income from the house, which was constructed before 1969, was about Rs. 10,000-12,000/- per month. He also failed to specify as to who was occupying said house as tenant. No rent agreement has been shown to the Court. No counterfoil of rent receipt has been shown to the Court. If said house yielded that big rental income, then accused should have intimated his employer about his such income. At least, he should have mentioned such income in his IT Returns. Nothing of that sort has been done either. Accused has not chosen to enter into witness box as defence witness and testimony of CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 62 of 100 Dharam Chaudhary does not establish such income at all.
11.6 PW36 Gulam Jilani admitted in his cross-examination that accused was having properties in Galla Mandi, Dakshin Bazaar, Bachhrawan, District Rae Bareilly. He, however, failed to mention about the area of the house. He claimed that he had heard that said house was a big house. It was never elicited from his mouth during the cross-examination that said property was on rent or that it was having rental income @ Rs. 5,000/- per month. Testimony of PW42 Sh. Chheda Lal Chaudhary and of PW44 Sudhir Singh also does not throw desired light on the aforesaid defence aspect.
11.7 Though it becomes perceptible that accused was having possession of said ancestral property yet there is hardly any material on record to show that he was having any rental income much less of Rs. 4,80,000/- from such property during the check period. Such rental income, therefore, does not stand proved.
11.8 It has next been argued that accused had eight bighas of land in Ram Pur (Mohinuddin Pur), Umarpur, Malikpur, Sarainya & Kubna. According to Sh. Kaushal, there was agricultural production of Rs. 25,000/- per bigha. Thus, there was agriculture income of Rs. 2 lac per year and, therefore, for eight years, agriculture income was to the tune of Rs. 16 lacs. Prosecution does not dispute that accused had inherited agriculture land in Ram Pur, Bachhrawan, UP. This is so mentioned even in the charge-sheet. However, it is to be seen whether there was any agriculture income from such land of Ram Pur, Bachhrawan, UP or not. Testimony of PW23 R.G. Mishra, Inspector CBI also does indicate that accused had acquired such property being ancestral in nature. According to PW42 Sh. Chheda Lal Chaudhary, father of accused used to keep income from agriculture produce and after his death, CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 63 of 100 his another son Ausan Ram Chaudhary (brother of accused I.D. Chaudhary) started looking after the agriculture work.
11.9 PW46 Avadh Bihari Lal also did admit that accused and his brother Ausan Ram were having property situated in the Revenue Estate of Village Ram Pur, Mohinuddin Pur, Pargana Bachhrawan, Tehsil Maharaj Ganj, District Rae Bareilly, UP mutated in their names. Such property was mutated on 19.04.1996. In his cross-examination, no question was put to him in order to show that there was any agriculture income from such land at any point of time. PW49 Hari Ram Pal deposed that Sh. Mahadin (father of accused) was doing agriculture work. According to him, Sh. Mahadin had employed 10-15 persons for managing agricultural business from which he used to fetch income to the tune of Rs. 50,000-60,000/- per month and he used to give such income to the wives of his sons. He also claimed that Sh. Mahadin had also given some portion of his income to Kalawati in his presence. He failed to specify as to what amount was given to her and when.
11.10 PW52 Suresh Singh was posted as Lekhpal said Revenue District and he has proved intakhab-khatauni according to which the share of Ishwardeen came to 3 bighas & 2 biswas and the remaining portion of 3 bighas & 2 biswas fell to the share of Ausan Ram Chaudhary (brother of accused). He also claimed that said land of village Ram Pur, Mohinuddin Pur yielded two crops i.e. rabi and kharif in one year and one bigha produced 10 quintal of wheat and 7 quintal of rice a year and thus there was annual yield of 30 quintals of wheat and 21 quintals of rice. He also claimed that out of above, 50 per cent of the income used to be spent as cost in getting such agriculture produce and, therefore, from the total land of 3 bighas and 2 biswas, Ishwardeen used to fetch income of Rs. 7,500/- from wheat and Rs. 4,000/- from rice paddy. Such income could not be shaken by the defence if I CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 64 of 100 have been able to correctly read the cross-examination. There is bald suggestion that there used to be three crops and not two. However, bald suggestion cannot take the case of defence anywhere. After all, accused was not the only son of Sh. Mahadin Chaudhary. He had one brother Sh. Ausan Ram Chaudhary and they both had jointly acquired the aforesaid land after the death of Sh. Mahadin Chaudhary. According to PW52 Sh. Suresh Singh, annual income from such agriculture land was Rs. 11,500/- (Rs. 7,500/- from wheat and Rs. 4,000/- from rice). This is after the deduction of expenditure. Even if I hold that accused was having constant income for all the eight years then total income would come to Rs. 11,500 x 8 = Rs. 92,000/-.
11.11 As per DW4 Baldev Prasad Kuril, Sh. Mahadin Chaudhary was agriculturist and was having 7 bighas of land in village Ram Pur in village Ram Pur, 3 bighas in village Umarpur, 2 bighas in village Saraiyan and 2 bighas in village Kubna. In cross-examination, he claimed that Sh. Mahadin Chaudhary was having income of Rs. 30,000/- per year per bigha from such agricultural land. He, being close relative of accused, has done his best to help out the accused to come out from the instant mess but his bald assertion that there was income of Rs. 30,000/- per year per bigha cannot be taken as gospel truth. Standard of proof is not that rigorous for defence but mere verbal assertion and suggestion cannot be said to be sufficient for proving agricultural income more so when we have specific evidence with respect to agricultural income coming from the mouth of PW56 Ram Gopal Ahirwar which defence has not been able to impeach. For the same reason, I do not find any real worth in the testimony of DW9 Dharam Chaudhary who has also baldly claimed that there was agricultural income of Rs. 30,000/- per bigha per year. Except for agriculture land situated in village Ram Pur, Mohinuddin Pur, there is nothing to indicate whether accused possessed any land at Malik Pur, Saraiyan, Umarpur or Kubana? Thus, I can grant benefit of additional CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 65 of 100 income from the land situated in Ram Pur falling within the exclusive share of accused to the extent of Rs. 92,000/- only and not beyond.
11.12 As regards additional income of accused from agriculture land situated at Mandideep, Madhya Pradesh, I have already given him requisite advantage.
11.13 Sh. Kaushal has next contended that accused had additional income of Rs. 4,07,461/- as various FDRs & NSCs, which he had taken prior to the start of check period, matured during the check period but CBI did not consider such income at all. I am sorry to say that this happens to be an verbal assertion only and no documentary evidence, to said effect, was produced by the defence. No detail of FDRs or NSCs has been tendered by the accused. During course of arguments, one piece of paper was shown but such piece of paper cannot take place of legally admissible evidence and, therefore, such head of alleged additional income is liable to be discarded straightaway.
11.14 According to accused, even while calculating the salary, CBI excluded certain allowances and scholarships worth Rs. 2 lacs approximately. Again, this remains an assertion and there is no substantiation of any nature whatsoever. Defence has not bothered to explain as to what were those allowances or scholarships which had accrued during the check period but were not considered?
11.15 On the other hand, when the salary statement was proved by the concerned prosecution witness, no eyebrow was raised and no suggestion, on the lines of such defence argument, was put in order to show that accused had any further income from other allowances and scholarships CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 66 of 100 and, therefore, I cannot grant any such benefit of any additional income to accused under the head of scholarship or other allowances. Reliance placed upon Ex. DW9/Q is completely misplaced. Such document was placed on record by DW9 Dharam Chaudhary. He is neither author of such document nor he has any concern with such document. As already noticed above, accused himself has not chosen to grace the witness box and he was the best person to throw light with respect to any other allowances or scholarships credited in his salary income.
11.16 In view of aforesaid, said head does not stand proved.
11.17 According to Sh. Kaushal, accused had sold one car MH-01- A-5547 during the check period and received sale proceeds of Rs. 4.5 lacs and such amount was received by way of demand draft no. 012657 dated 30.11.1990 which he deposited in his account no. 6481, Bank of Maharashtra and such income should have been counted by the prosecution.
11.18 I had to dig out the relevant statement of account myself. Statement of account of SB A/c No. 6481, Bank of Maharashtra is contained in D-27 (B) which has been proved as Ex. P-61 and there is found to be one deposit entry of RS. 4.50 lacs dated 06.12.1990. Defence, it seems, is referring to such entry.
11.19 However, nothing further has been elaborated by the defence. Mere bald assertion would not mean that such proceeds were received on account of sale of car and, therefore, income from known sources. Merely due to the fact that there is deposit entry in the statement of account, it cannot be mechanically inferred that such deposit entry indicated income from known sources. Accused could have examined the buyer of the car. He could have CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 67 of 100 also examined anyone from Transport Authority in order to show that he had such car in his own name before the start of check period which he sold during the check period. For want of evidence, accused fails to prove such alleged head of additional income.
11.20 As regards opening balance in the accounts of accused and his family members, defence has failed to substantiate any amount under this head which might have been omitted by CBI.
11.21 According to accused, his wife Kalawati Chaudhary was also having additional income which has not been considered by the investigating agency. It included rental income and agriculture income. As far as rental income from House No. 1408, Gurgaon is concerned, it has already been taken into consideration in the earlier part of my judgment.
11.22 As regards one another house i.e. H. No. 2B/55A, Rachna, Vaishali, Ghaziabad, it is not in dispute that it was purchased in the name of wife of accused. There is no dispute even with respect to the acquisition cost. According to Sh. Kaushal, said house was on rent from 01.08.1995 to 30.06.1996 @ Rs. 4,000/- per month and then from 01.07.1996 to 31.05.1997 @ Rs. 4,400/- per month and then from 01.06.1997 to 31.12.97 @ Rs. 4,840/- per month and thus there was total income of Rs. 1,26,000/- from such house as rental income which has been ignored by the CBI. Sh. Kaushal has in this regard drawn my attention towards the testimony of DW4 & DW9. DW4 Baldev Prasad Kuril is first cousin of accused. He was resident of village Ram Pur, Mohinuddin Pur since birth. He claimed that he was posted in Ghaziabad from 1994 to 1991 as Sub-Inspector and then he got promoted as Inspector in 1991 and was transferred to Meerut. He claimed that Dharam Chaudhary and Kalawati Chaudhary had one flat each at Ghaziabad, Link CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 68 of 100 Road area and he had gone to those flats of Ghaziabad for collecting rent on behalf of respective owners. According to him, in the year 1992, he had taken rent from them and rate of rent was Rs. 4,000/- per month. His examination-in-chief is restricted to year 1992. He nowhere claimed that even in 1995 or till 1997, such house was on rent. He has not bothered to disclose the name of the tenant. His testimony does not inspire any confidence. Testimony of DW9 Dharam Chaudhary also does not whip up much support with respect to alleged rental income of Kalawati Chaudhary. Moreover, such income was never shown in any income tax return. Accused also did not disclose to his employer about such income. There is no written rent agreement. There is no rent receipt. Nobody knows the name of the tenant and in such a scenario, it would be very hard for the Court to hold such rental income on the basis of such sketchy and scarce material.
11.23 According to Sh. Kaushal, Kalawati Chaudhary had rental income of Rs. 1,28,000/- from flat no. 13/133, Vasundhara, Ghaziabad during the period from 01.05.1995 to 31.12.1997 but again such assertion has not been substantiated in the desired manner.
11.24 Sh. Kaushal has further asserted that Smt. Kalawati Chaudhary had one property known as H. No. 882A, Narain Puri, Krishna Nagar, Lucknow. It was given on rent to one Sh. Nawal Kishore Verma who remained there as tenant from 1991 to 2000 and there was rental income of Rs. 5,28,000/- from such property which has not been considered.
11.25 In this regard, accused has examined DW8 Sanjay Verma. He is son of alleged tenant Sh. Nawal Kishore Verma. In his cross-examination, he claimed that father of accused did not use to issue any rent receipt to his father. In his examination-in-chief, he also claimed that said house was of the CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 69 of 100 father of accused.
11.26 Thus, defence contention is contrary to defence evidence. During the course of the argument, it was claimed that such property was owned by Kalawati Chaudhary but as per defence evidence, father of accused was landlord/owner of such house. Again Court does not have the benefit of seeing any rent agreement or any rent receipt. Accused has not chosen to examine his wife either. No income allegedly derived from said house has been reflected in IT Return either by accused or his wife.
11.27 So much so, property documents pertaining to said house have not been shown to the Court and the Court even does not know whether such property belonged to accused or to any of his family member. DW9 Dharam Chaudhary brought photocopy of property documents of said house. He failed to bring original and such copies of property documents were retained on record and marked as Mark DW9/R. It shows sale of property in favour of Kalawati and Sh. Ausan Ram. Sh. Ausan Ram has entered into witness box as PW65. Surprisingly, defence did not find any necessity of asking any question from him with respect to said property. After all, Ausan Ram was also joint owner with Kalawati Chaudhary of said property and if at all said property was on rent, Sh. Ausan Ram would be certainly knowing the same. Therefore, defence should have put some questions in this regard to this witness. It should have also been suggested to him that such rental income was solely pocketed by Kalawati Chaudhary and that he (Ausan Ram) did not keep any income from such rent. For the reasons best known to defence, no suggestion was put in this regard and, therefore, I am unable to hold said head of additional income.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 70 of 10011.28 Much has been contended by the defence with respect to additional agricultural income worth Rs. 20 lacs during the check period derived from 25 bighas of agricultural land situated in Sheel Gaon, District Alwar, Rajasthan. According to Sh. Kaushal, there was agricultural produce worth Rs. 10,000/- per bigha per annum during the check period and, therefore, there was total income of Rs. 20 lacs. Sh. Kaushal also argued that all documents related to income, cash receipt etc. were taken away by CBI during search of the farm and, therefore, defence was unable to produce any document.
11.29 I have seen testimony of relevant defence witnesses in this regard. I am not inclined to grant any benefit under this head. Raison d'être is very simple and palpable. Even as per the defence witnesses, such acquisition of agricultural land was illegal and unlawful. DW3 Nemi Chand has admitted in his cross-examination that such land was government land and could not have been acquired, sold or purchased and he also admitted that accused had come into illegal possession of said agricultural land situated in Sheel Village, District Alwar, Rajasthan. I need not remind myself that accused was a government servant holding a responsible position. He cannot be permitted to enjoy the fruits of his own wrongs. He grabs property illegally and then wants the Court to take into account the income derived from such illegally acquired property. It is not permissible. Moreover, if I do so, I would be rather putting a stamp of legality over such income. Legislature has deliberately used words "income from known sources". Known sources mean lawful and legitimate sources and any income derived from property acquired illegally cannot be taken into consideration.
11.30 Let me now see whether Dharam Chaudhary was having any separate income and if yes what?
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 71 of 10011.31 As regards income, which he had derived/allegedly derived from shop no. 14, Kalkaji, New Delhi and agricultural land situated in Mandideep, Madhya Pradesh, these aspects have already been considered and dealt with in the earlier part of my judgment.
11.32 As regards his deriving income from agricultural land situated in Sheel Village, Rajasthan, again such income cannot be reckoned to be income derived from known sources as such land was government land which had been acquired illegally by accused and his family members.
11.33 Dharam Chaudhary had one property known as H. No. 2C/93A, Rachna, Vaishali, Ghaziabad. It had been acquired in his name and according to Sh. Kaushal, said property was on rent from 01.08.1995 to 31.12.1997@ Rs. 4,000/- per month and thus there was total rental income of Rs. 1,16,000/- which does not stand reflected in the charge-sheet. Such property was booked in 1996 and was allotted to him in 1997. This is categoric deposition of DW9 Dharam Chaudhary. If it was allotted to him in the year 1997 then there is no question of his giving it on rent to anyone in the year 1995. Again defence contention runs contrary to the defence evidence. Moreover, in his entire examination-in-chief, he nowhere claimed that said particular property of Vaishali was also let out by him to anyone. He has not bothered to narrate about the rate of rent either. He has not bothered to disclose the name of tenant. In such a situation, I cannot assume any rental income allegedly derived by Dharam Chaudhary from said house of Vaishali Ghaziabad.
11.34 Sh. Kaushal has argued that after Dharam Chaudhary got married to Sneh Sengar (PW1), he, out of such matrimonial knot, received 16 acres of land which consisted of 25.6 bighas and there was income of Rs.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 72 of 10012,000/- per bigha per annum from such agricultural land and such income was shared equally by Dharam Chaudhary and his wife from 1993 till 1997. Thus, total income was of Rs. 15,36,000/- and the share of Dharam Chaudhary came to Rs. 7,68,000/- and such income has not been considered by the investigating agency.
11.35 In this regard, let me see the testimony of Dharam Chaudhary as well as that of PW1 Sneh Sengar. DW9 Dharam Chaudhary has deposed that he was married with Sneh Sengar on 22.05.1993 and at the time of marriage, his wife was owner of 16 acres of agricultural land. He produced ownership documents pertaining to such land. Original was seen and returned and the copy thereof was retained on record and exhibited as Ex. DW9/I. Such land was situated in village Chhanki Kalan, Pargana Mahoba, District Hamir Pur. DW9 then deposed that they were having income of Rs. 12,000/- to Rs. 15,000/- per bigha per year from such land. He, albeit surprisingly, nowhere claimed that such income used to be shared equally between him and his wife. This becomes important because his matrimonial life was in disarray and the relationship between them was no longer cordial. So much so, PW1 Sneh Sengar made a complaint against him consequent to which FIR was also registered. Defence wants me to believe that Dharam Chaudhary was having that much income from aforesaid land owned by his wife merely on the basis of one line statement made by Dharam Chaudhary. This cannot be said to be enough from any angle whatsoever. There is nothing before me to show and demonstrate as to who was actually cultivating such land. There is nothing to indicate as to what type of crop used to be sown. There is nothing to show as to what was the expenditure incurred on such cultivation and what was the return thereof. No neighbouring cultivator has been examined. No revenue record of such land has been summoned. A vague statement to the effect that there was income of Rs.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 73 of 10012,000/- to Rs. 15,000/- per bigha per year would not take the assertion of defence anywhere. PW1 Sneh Sengar has entered into witness box. In her examination-in-chief, she nowhere made any reference with respect to such agricultural land of Hamir Pur owned by her much less there being any income from such land. She was grilled by defence but surprisingly defence did not find any necessity of at least putting suggestion to said effect to her. After all, it could have been very easily suggested to her that she was the owner of such agricultural land and that there was income from such agricultural land which used to be shared by her and her husband. Accused has, thus, failed to put his essential case to this all important witness and now defence cannot be permitted to say that Dharam Chaudhary was having agricultural income from such piece of land situated in District Hamir Pur. I am not inclined to believe such income merely on the basis of one line statement made by Dharam Chaudhary and more so in the absence of categoric suggestion to such effect to PW1 Sneh Sengar.
11.36 According to Sh. Kaushal, Dharam Chaudhary was running a poultry farm in village Fazilka, Sohna Road, Gurgaon, Haryana and was having income of Rs. 9 lacs between 1993 to 1997. When asked as to how such fact had been substantiated by the defence, Sh. Kaushal came up with the answer that all the documents related to such poultry farm and the income from such farm had been taken away by CBI during search and, therefore, there was no document in possession of accused or his son. Again I am not inclined to believe such version at all.
11.37 In his deposition, DW9 Dharam Chaudhary did utter that he was having poultry business in the name of Rajeshwari Agro Farms which was started in 1993 and from such business, he was having income of Rs. 15,000/- to Rs. 20,000/- per month approximately as a partner till 1997. Thus, CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 74 of 100 according to him, Rajeshwari Agro Farms was a partnership firm. No document relating to such partnership firm has been placed on record. Even it was not apprised to the Court as to who were the other partner(s) in such firm. It was not revealed whether such firm was registered with any governmental agency like Sales Tax, Income Tax or Registrar of Firms etc. We don't even know as to in which part of India such farm is located. Even if investigating officers had taken away the documents, which fact though is not believable, accused still could have got the substantiation from various other said government departments. Defence could have also produced other partner or partners of such firm in order to show that Dharam Chaudhary was, in fact, a partner in such partnership business and about his share of income from such business. Nothing of that has been done either and, therefore, such income also does not stand proved.
11.38 Coming to M/s Amjhara Granites. Sh. Kaushal states that Dharam Chaudhary was having income of Rs. 10,50,000/- from such partnership business during the check period. I cannot lose sight of the fact Dharam Chaudhary was pursuing MBBS but he could not complete his internship. He got married in 1993 and M/s Amjhara Granites was essentially being run by his in-laws. For the reasons best known to him, he did not produce documents relating to such partnership business. According to learned SPP, such business was run by Sh. R.K. Singh (father-in-law of Dharam Chaudhary) and Sh. A.K. Singh (brother-in-law of Dharam Chaudhary) and they both inducted Dharam Chaudhary as he was not having any steady business of his own. In this regard, learned SPP has taken me through the evidence of PW1 Sneh Sengar. I have seen her deposition. She claimed that she got married in May 1993. Her husband joined MBBS in 1986 and completed his course in 1993 but he could not complete his internship which was mandatory for practicing as a doctor and in the absence CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 75 of 100 of internship, he did not get his MBBS degree. According to her, therefore, he was not even a qualified to be called a doctor. She further deposed that Dharam Chaudhary was not earning anything and was just living on the income derived from the property. She also deposed that Dharam Chaudhary had filed bogus income tax return from Lalit Pur, UP which was her hometown. She specifically deposed that Dharam Chaudhary was unemployed and was not earning anything and always demanded dowry from her father. No suggestion was put to her with respect to alleged income of Dharam Chaudhary from the business of M/s Amjhara Granites. Thus, again accused failed to put his essential defence stance and factum of additional income from such business to the most material witness. She was in the thick of things as her father and brother were involved with the business of M/s Amjhara Granites and it seems to me that defence deliberately did not put any question to her. Probably, it was felt that because of the strained relationship, her answers may not be upto the liking of the defence but at least there should have been suggestion to such effect. As per the documents proved by Dharam Chaudhary which have been exhibited as Ex. DW9/B collectively, rather M/s Amjhara Granites was having one Arun Kumar Singh son of Ram Kumar Singh as its proprietor as per the record maintained by Additional Commissioner of Lalit Pur. Such information was sent to CBI on 16.04.2003. Undoubtedly, such firm was registered in Lalit Pur but there is not enough clarity whether Dharam Chaudhary was operating from Lalit Pur or from Delhi. It seems to me that he opened bank account with Bank of Maharashtra showing running of one firm with the same name from E-95, DDA Flats, Saket, New Delhi and. As per Dharam Chaudhary, there was one current account of M/s Amjhara Granites with Bharat Overseas Bank Ltd, Kalkaji having address of 14 & 15, LSC, Kalkaji, New Delhi. He produced passbook of such account which is from 15.10.1997 onwards. Be that as it may, documents contained in Ex. DW9/B do not at all reflect that Dharam CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 76 of 100 Chaudhary was having income of more than Rs. 10 lacs during the check period from such business of M/s Amjhara Granites. According to him, such firm M/s Amjhara Granites was subsequently converted into M/s Amjhara Overseas Ltd. but defence has not bothered to examine any official from the Registrar of Firms or from Registrar of Companies to substantiate such fact. Defence wants me to believe that right from 1993 Dharam Chaudhary started earning huge money from the business of M/s Amjhara Granites as well as from the business of Rajeshwari Agro Farms but without requisite corroboration. I am not inclined to believe such huge income. His wife has also claimed that he was unemployed and was merely living on rental income and had no business. In such a situation, it would not be possible for me to hold that he was having that much income. It would also be very important to mention that according to the stand taken by defence, Sh. Mahadin (grandfather of Dharam Chaudhary and father of I.D. Chaudhary) used to gift a lot to his family members. If Dharam Chaudhary is to be believed then his grandfather had gifted him a house no. MD-1/359 situated in Lucknow and in addition to that, his grandfather used to bear expenses of his education and also gave cash of Rs. 3.40 lacs for investment purpose. He, in this regard, has also relied upon a stamp paper dated 25.07.1991 containing declaration to such effect which has been proved by him as Ex. DW9/F. As per DW9/F, Sh. Mahadin declared that he had given an amount from his agricultural income to his grandson Dharam Chaudhary who was student of MBBS Course and amount had been given to him to spend on his education and multipurpose expenditure.
11.39 I am not inclined to believe that Sh. Dharam Chaudhary was having massive independent income with the help of which he was able to purchase so many properties. In fact, he had applied for some of the allotment when he was studying. Moreover, IT Returns on record do not CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 77 of 100 show any significant income earned by him. On the other hand, before 1997, it seems that Sh. Dharam Chaudhary had not filed any IT Return at all. This is important because check period ends with 1997 only. Opting for scheme promulgated under VDIS does not seem to be in a good taste. Undoubtedly, even a government servant could have made use of such scheme and declared his un-accounted income. However, that does not mean that any public servant or close relative of any public servant who chooses to avail such scheme would not be questioned and would earn immunity from prosecution. I rather feel that if any public servant or a very close relative of public servant chooses to avail such scheme, then eyebrows are certainly going to be raised. This cannot be digested casually. After all, any public servant is required to display high standard of morality and honesty. Here accused I. D. Chaudhary acquired number of properties either himself or through his family members and did not even bother to intimate his department about such acquisition. Every public servant is required to furnish Return of movable property and immovable property to his or her department. Accused never informed about any such acquisition of immovable property. He was also, allegedly, having income from agriculture and rent. If he is to be believed then such income was not a small one. If that was so then he should have at least incorporated such income in his IT Returns. Nothing of that sort has been done. On the other hand, accused had shown his father as his dependent. He had also shown his wife and children as his dependents.
11.40 Service book of accused has been produced as D3 which has been proved as Ex.PW3/P2(a) and Ex.PW3/P2(b). PW3 Sh. T. Kerketta has proved volumes of service book and has deposed that as per the office record, the details of dependents of family members of accused I. D. Chaudhary, as submitted by him in the year 1977, 1985, 1990, 1997, 1999, CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 78 of 100 2001 and 03.02.2001 were contained in Ex. P2 to Ex. P8.
11.41 I have seen these details contained in D4 (i) and D4 (ii). I would, however, like to add that mere fact that he had availed Leave Travel Concession for himself and for his wife and daughter would not by itself mean that they all were financially dependent upon him. However, still accused is required to disclose to his department that which of his family member was financially dependent upon him and which not particularly when there were umpteen acquisition of immovable properties by his wife, his son and his daughter as well. He himself is to be blamed as he did not send any specific intimation to his department in this regard. He did not submit returns with respect to movable and immovable properties. His family members also did not chose to submit IT Returns for pretty long period and rather all of a sudden his wife and his son opted to avail VDIS. There is no documentary evidence clearly suggesting that his family members were having substantial independent income with which they were in a position to purchase the properties. I would rather say that an attempt has been made to concoct a story in order to justify the acquisition of immovable property.
11.42 Let me come to the testimony of DW5 Sh. Bhawani Prasad. He knew accused as they both had studied together in the same college and according to him they both used to frequently visit each other's house. He claimed that father of accused died in 1995 and in 1994 when he (father of accused) was not well, he met him. Father of accused wanted that there should not be any dispute between his two sons and, therefore, he apprised DW5 Bhawani Parsad that he had already paid a sum of Rs.22 lacs to Dharam Chaudhary and his mother (Kalawati Chaudhary) and Rs.25 lacs to Ausan Chaudhary (elder brother of accused). Surprisingly, when statement of accused was recorded u/s 313 Cr. PC, accused did not make even a mention CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 79 of 100 with respect to any such fact. He was the best person who could have thrown light on this aspect as his son and his mother had allegedly got a substantial sum from Sh. Mahadin Chaudhary. He did not utter even a single word in his statement in this regard.
11.43 DW9 Dharam Chaudhary has claimed that his father had gifted him one house situated in Lucknow besides a cash amount of Rs.3.40 lacs. He nowhere claimed that his grandfather had gifted him and his mother such a huge amount. Moreover, if such an amount had been given before 1994, then again it was paramount duty of accused to inform his department about such gift of substantial money to his wife and son. Wife of accused happens to be illiterate lady and ostensibly she had no known source of income. Moreover, I am not ready to believe that father of accused was such a wealthy person. Defence has attempted to project as if he was a multi millionaire and was having huge chunks of land and was having big agricultural income and rental income.
11.44 Sh. Ausan Ram also entered into witness box as PW65. In his entire examination-in-chief, he did not utter even a single word about his father and about the alleged gift made by his father. In his cross examination, he did claim that his father had gifted him, as his share, a sum of Rs.25 lacs and Kalawati Chaudhary and his son Dharam Chaudhary were given share to the extent of Rs.22 lacs from such partition. Fact, however, remains that no partition deed or settlement deed has been shown.
11.45 Moreover, there is no material before me which may show that Sh. Mahadin Chaudhary was having such a big amount of approximately 47 lacs which he divided between his two sons. It was allegedly done in 1994 but accused has not bothered to explain as to where such money was utilized CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 80 of 100 after 1994. Nobody knows as to how and in what manner such amount was utilized by Kalawati and Dharam Chaudhary. Bank accounts do not indicate any such big deposit entry.
11.46 At this juncture, I would also like to comment that FIR had been registered in the year 2000 and for the reasons best known to the investigating agency, search and seizure took place only on 2.2.2002. I do not know whether the delay was intentional or otherwise but certainly accused must have come to know about registration of FIR against him in the year 2000 itself. He was fortunate as he was given all the time in the world to remove anything which might have proved further incriminating. It is also baffling as to why no locker of accused or his family member was searched. I am not ready to believe that accused would have acquired few insignificant gold ornaments during the check period and would be having such a paltry cash with him particularly in view of his own stand regarding his wife and he himself having such whopping additional income.
11.47 I have also carefully perused the Income Tax Returns filed by wife of and son of accused.
11.48 ITR of Kalawati Chaudhary for assessment year 1997-98 has been proved as Ex. PW51/C (D-9) wherein claimed that she had income of Rs. 60,000/- from H. No. 1408, Sector-31 & 32, Gurgaon, Haryana and sought deduction of Rs. 12,000/- for repair and collection of rent. Her ITR for the assessment year 1996-97 has been proved as Ex. PW51/E (part of D-9) in which again she has shown income from said house as Rs. 57,000/- and sought deduction of Rs. 11,400/- towards repairs and collection of rent.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 81 of 10011.49 I have already considered said aspect of her income and have given benefit of additional income as rent from said house during the check period as Rs. 1,35,000/-. She did not mention her income accruing to her from any other head. If she was having any other income from any other source, she would have, logically, mentioned so in her ITR. Her ITR does not reflect any other income at all.
11.50 I have also seen ITR of Dharam Chaudhary for assessment year 1996-97 in which he has merely claimed that he had income of Rs. 48,000/- from H. No. MG-1/359, Kanpur Road, Lucknow and sought deduction of Rs. 9,600/-. In the assessment year 1997-98, he claimed income as Rs. 88,956/- from shop no. 14, LSC, Site No. 37-38, Kalkaji, New Delhi and sought deduction of Rs. 17,7,91 towards repair.
11.51 It has already been observed by me that said shop no. 14 was not in habitable condition and there was no possibility of there being any eating house being run from there and similarly house of Lucknow was also in shambles and there was no possibility of any rental income from said house. PW35 Usha Malik had purchased said house from Dharam Chaudhary and she noticed garbage outside the house and in the courtyard when she had taken possession from Dharam Chaudhary. PW53 Sh. Gurbaksh Singh has categorically deposed that when said house was purchased by Usha Malik, there was no light in said house and people used to throw garbage in front of said house. So much so, according to him, prior to purchase of said house, no one was residing in said house and it was lying vacant. He also claimed that said house was not assessed for the purpose of house tax and no person from Municipal Department had come there and no notice for house tax or water charges was received for said house. His testimony is important because he was running a shop in front of the aforesaid house only. It was CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 82 of 100 suggested to him that the prevalent market rate of rent of said house was Rs. 4,000/- per month but no suggestion was put to the effect that said house was in habitable condition or that said house was on rent prior to the period when it was purchased by Usha Malik. Similarly, PW54 Sh. Harvinder Singh has also supported the case of prosecution on this score and has categorically deposed that no one was residing in said house and it was lying vacant. He also claimed that there was no electricity in said house during that period. No suggestion was put to him to the effect that such house was on rent even prior to 1998.
11.52 Testimony of said three witnesses clearly indicates that Return filed by Dharam Chaudhary showing rental income from said house of Lucknow was completely fictional and imaginary and rather an attempt was made to befool others by trying to create some evidence for future.
11.53 I have also seen his Return for the assessment year 1997-98 which has been proved Ex. PW51/G. In such ITR, he showed income from two heads only. One is rental income and the second is professional income which he allegedly earned while practising as doctor. He nowhere claimed that he had any income whatsoever from alleged business of M/s Amjhara Granites. This also clearly indicates that he had, actually speaking, no income from M/s Amjhara Granites.
11.54 Ms. Madhubala Chaudhary also indicated her rental income from shop no. 15, Kalkaji, New Delhi as Rs. 54,000/- for assessment year 1996-97. There is no corroborating material on record showing that there was any such income.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 83 of 10011.55 I have already made reference to the fact that Kalawati Chaudhary and Dharam Chaudhary sought benefit of VDIS and the documents in this regard are found contained in D12 (1) and D-12 (2). In the Income Tax Return Ex. PW63/69 filed by Kalawati Chaudhary, she mentioned about her income from 1991-92 till 1995-96 on account of investment in the properties which she had acquired from Ghaziabad Development Authority and Haryana Development Authority. Surprisingly, Dharam Chaudhary showed his income for the period 1989-90 till 1990-91 when, admittedly, he was unemployed. I am also unable to fathom the reason which made them declare such income so abruptly. Did they anticipate or get wind of something is beyond my comprehension? Fact remains that there is hardly any cogent and worth relying material to show that they both had individual and independent income during the check period except as already held above.
11.56 Accused is, to a very large extent, responsible for his own mess. According to him, his wife and son had acquired various immoveable properties with their own independent income. If it was really so, he should have at least informed his employer. Rule 18 of THE STATE TRADING CORPORATION OF INDIA LIMITED EMPLOYEES' (CONDUCT, DISCIPLINE & APPEAL) RULES, 1975 reads as under:-
RULE 18. MOVABLE, IMMOVABLE AND VALUABLE PROPERTY
1) No employee shall, except with the previous knowledge of the Competent Authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise, either in his own name or in the name of any member of his family.
The construction of a house or any addition to the immovable property shall, however, require prior sanction of the Competent Authority.
2) No employee shall, except with the previous sanction of the Competent Authority enter into any transaction concerning any immovable or a movable property with a CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 84 of 100 person or a firm having official dealings with the employee or his subordinate.
3) "Where an employee of the Corporation enters into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds two months' basic pay of the employee.
Provided that the previous sanction of the prescribed authority shall be obtained by the employee if any such transaction is with a person having official dealings with him".
4) Henceforth, every employee shall on the first appointment in the Corporation and thereafter on 1stJanuary of each calendar year, submit a return of assets and liabilities in the following prescribed Forms No. 1 and 2.
Form No.1 Statement showing details of immovable property on first appointment and also on 1st January of each calendar year (i.e. Lands, Houses, Shops, other Buildings etc.) Form No.2 STATEMENT OF ASSETS & LIABILITIES (WITH ANNEXURE) Statement showing details of assets (other than immovable property) Liabilities on first appointment and also submission of return on 1st January of each calendar year.
11.57 He rather gave a damn to such important requirements. It seems to me that he did not send any such Return or information about acquisition to his employer. If at all, these were not acquired by him but by his family members from their own income, even in such an eventuality, he should have kept his employer informed. It was rather much easier job for him. Now it's too late for him to merely say that he had no concern with these properties. I would also say that mere filing of returns would have not, by itself, absolved him completely as it is experienced that in most departments these Returns are not taken too seriously and these merely gather dust in the Record-Room.
11.58 Before parting with discussion on issue related to independent income of Dharam Chaudhary, it will be pertinent to mention to reply filed by CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 85 of 100 him to the petition u/s 125 Cr.P.C. filed by his estranged wife. Such reply is duly supported with an affidavit and has been proved as Ex P-159. It surfaced during the cross-examination of PW1 Sneh. In such reply, Dharam, in nutshell, claimed as under: -
a) He had income of Rs. 72,470/- in the financial year 1996-97 and of Rs. 1,10,729/- in the financial year 1998-99.
b) Flat No. 4092, C-4, Vasant Kunj, New Delhi was given on rent @ Rs. 10,000/- per month on 01.10.2000.
c) He had no concern with Shop No. 14, DDA, Kalkaji, New Delhi in any manner whatsoever.
d) He was using Shop No. 15, DDA Kalkaji, New Delhi for correspondence address etc.
e) He floated a company M/s Amjhara Granites Overseas Ltd. in which there was no business activities for last several years and there was no income in any manner whatsoever.
f) He did not possess six acres of land in Mandideep and he owned 1.5 acres of land in Mandideep, Bhopal, M.P. and there was no agricultural income from said land.
g) He did not own 110 bighas of land in Village Sheel Gaon, Alwar, Rajasthan and admitted that he was in unauthorized occupation of 5 acres of land for which legal proceedings were initiated against him and he had no agricultural income from said land.
h) He did not possess any farm house and he did not run any poultry business from any such farm house and had no income from such farm house or poultry business.
i) He did not possess H. No. G-222, Lal Kuan, Prahlad Pur and did not have any income of any nature from said house.
j) He did not possess any flat in Vasundhra Enclave, Ghaziabad and was not earning any rent from there.CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 86 of 100
k) Ms. Sneh Sengar was having 10 acres of land in Hamirpur and she was enjoying agricultural income from said land.
11.59 Aforesaid assertions made on oath by Dharam Chaudhary demolish his stand of his financial independence.
11.60 My foregoing discussion would clearly depict and expose that neither Ms. Kalawati nor Sh. Dharam Chaudhary had any real income during the relevant period. Acquisition of so many immoveable properties needed money. They never raised any loan from anywhere. No such fact has been proved to the satisfaction of the court. Aspect related to gift of substantial cash by father of accused in their favour is hardly digestible. It is rather churned out story to give some justification to the acquisitive activity. It is liable to be discarded right away. Since they had no money of their own, from their own independent source of income, they cannot be permitted to say that since properties are in their names, they and they alone should be held owners and they and they only had invested money. They were not financially capable to acquire so many properties. Moreover, STC was all along kept in dark about such acquisitive activities. If veil is lifted then it will surface that actual investor was none other than accused. Thus all these properties were, in fact, acquired by accused and his wife and son were mere paper owners.
OTHER RELATED ISSUES 12.0 According to Sh. Kaushal, accused has been victimized and search and seizures were conducted in the most unusual way as IO did not find any necessity of going out of Delhi whereas as per case of prosecution, there was acquisition of various properties outside Delhi. I have already CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 87 of 100 commented and lamented that search proceedings were carried out belatedly. Situation might have been different, had search been conducted simultaneously with the registration of FIR.
12.1 Undoubtedly, IO did not go out of Delhi in connection with the investigation of the case but then other CBI officials can be deputed for such purpose. It is not always necessary for IO himself or herself to be the in- charge of such proceedings. Moreover, properties were scattered in Rajasthan, UP, MP, Haryana and Delhi. In such a situation, even if IO had not supervised the search proceedings or participated in the search proceedings that would not deflate the case of CBI.
12.2 There is, undoubtedly, some confusion with respect to RC Number of the case. Present RC was registered as RC 3A but when some search proceedings were carried out, different RC Numbers were mentioned like RC 2A and RC3. Court question was put to Insp. Asha Bhadola on this score and she did indicate that there was only one case and these RCs pertained to one and same case. She, however, failed to assign any reason as to why different numbers were given though supplemented that it might be due to some clerical error. To me also, it does not really matter much if different RC number had been mentioned as admittedly, accused is facing trial in one case only i.e. the instant case.
12.3 There can be no general rule or criterion, valid for all cases, in regard to the choice of the selection of check period. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 88 of 100 either by himself or through any other person on his behalf, which are alleged to be so disproportionate. It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth and characterize and isolate that period for special scrutiny. Thus defence is not justified when asserting that check period has been arbitrarily selected.
12.4 Sh. Kaushal has contended that charge is defective as in the charge, it has been mentioned that accused was working as Director, State Trading Corporation from 01.04.1990 to 31.12.1997.
12.5 Undoubtedly, factum of his tenure as Director has not been mentioned appropriately in the charge. As per case of prosecution, accused had joined State Trading Corporation as Deputy Marketing Manager on 25.11.1974 and was promoted as Director (Personnel) on 17.04.1995 and he remained so till 24.04.2001.
12.6 Any error in the charge per se cannot vitiate the trial and the proceedings. Accused is required to show that such error has resulted in a failure of justice or that he was misled. Reference in this regard be made to Section 215 Cr.P.C. I do not have any material before me which may even remotely suggest that accused was misled by such error or that it has occasioned a failure of justice. It rather seems to be an inadvertent typographical error.
12.7 It has next been contended that accused was holding dual assignment and even if he was no longer with State Trading Corporation, he was holding additional charge being officiating as Chief Managing Director of Tea Trading Corporation of India and, therefore, sanction was sine qua non.
CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 89 of 100This argument was raised, for the first time, when the case was at the stage of final arguments. Neither any such fact was ever revealed by accused in his statement recorded u/s 313 Cr.P.C. nor any evidence to that effect was led by accused. When the statement of accused was recorded u/s 313 Cr.P.C, it was put to him that he retired from STC on 24.04.2001 and he merely answered that he was relieved from STC. Nowhere did he whisper a word with respect to his having any sort of dual assignment.
12.8 PW68 Ms. Asha Bhadola (investigating officer) was questioned by defence and she deposed, in her cross-examination, that she learnt about the date of retirement of accused from Personnel Department and such date was 24.04.2001 which was wrongly typed as 21.04.2001. She also claimed that she gathered information about the date of retirement of accused from the statement of service of STC which is Ex. PW3/P-2 (A). She claimed that she could not say whether accused had been relieved and not retired. She also claimed that she could not say whether accused was having any additional charge of TTCI as accused never revealed so. It would be interesting to know that defence itself suggested to her that she (IO) deliberately delayed the investigation so that there was no requirement of obtaining any sanction by virtue of his retirement. This suggestion itself indicates that accused had retired and there was no requirement of obtaining any sanction. I have also seen Mark PW68/DA. It is a letter dated 24.04.2001 written by Dr. S.M. Dewan, Chairman-cum-Managing Director of STC to accused I.D. Chaudhary informing him that as directed by Ministry of Commerce vide no. 1/7/95-FT(ST) dated 24.04.2001, Sh. I.D. Chaudhary Director (Personnel) was thereby relieved from the service of STC w.e.f. that forenoon in compliance of the decision of Appointments Committee of the Cabinet. It clearly indicates that accused was relieved from his service on 24.04.2001. He did not draw any salary from STC after 24.04.2001. It has CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 90 of 100 been vaguely claimed during the course of the final arguments that accused was holding additional charge of Tea Trading Corporation of India and continued to be a public servant. Such fact has not been substantiated in any manner whatsoever. Accused is totally mum on this score when he was examined u/s 313 Cr.P.C. He has not examined any defence witness in order to show that he remained on Rolls even after 24.04.2001 or till the time of taking of cognizance.
12.9 In view of aforesaid, I hold that there was no requirement of obtaining any sanction since accused stood relieved w.e.f. 24.04.2001 and since he was no longer a public servant, there was no requirement of obtaining any sanction from any authority.
12.10 Sh. Kaushal has placed his reliance upon following judgments:-
1 R. Markandan vs. State Crl. Appeal (MD) No. 1472/2002 (DOD 21.03.2012) Madras High Court.
2 DSP Chennai Vs. K. Inbasagaran 2006 (1) SCC (Cri) 325.
3 Review Petition (Civil) No. 272/02 in Akhilesh Yadav Vs.Vishwanath Chaturvedi & Ors.
(DOD 13.12.2012) Supreme Court of India.
4 N. Ramakrishnaiah Vs. State of AP SLP (Crl.) No.5476/2006 (DOD 17.10.2008) Supreme Court.
5 R. Ramachandran Nair Vs. DSP Vigilance SLP (Crl.) No. 9818/2010 (DOD 28.03.2011) Superme Court.
6 Ashok Tshering Bhutia Vs. State of Sikkim 2011 Crl. L.J. 1170 SC CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 91 of 100 7 V.M.K. Murthy Vs. State 2012 (2) Crimes 250 (Madras).
8 State of MP Vs. Awadh Kishore Gupta & Ors. 2004 Cri. L.J. 598 SC 9 State of Karnataka Vs. C. Nagarajaswamy 2005 VIII AD (SC) 553.
10 Ravinder Kumar Chandolia Vs. CBI 2012 (3) Crimes 230 (Delhi).
11 State of Karnataka Vs. Ameer Jan 2007 IX AD (SC) 158.
12.11 I have seen all the aforesaid judgments and I have no hesitation in holding that keeping in mind the peculiar facts and circumstances of the case, defence cannot drive home any advantage or mileage from any of the aforesaid judgments.
12.12 Legal propositions contained therein are not disputed at all but it is not clear as to on what premises, reliance is being placed on these as none of these are, really speaking, stand attracted in the context of the present discussion. There is no doubt that the orders passed by statutory authority are public documents and these can be received as additional evidence but I am not seized with any such issue.
12.13 In the matter of Akhilesh Yadav (supra), situation was totally different as when the order under Review was passed by the Hon'ble Supreme Court, Smt. Dimple Yadav wife of Akhilesh Yadav neither held any public office nor any government post and was essentially a private person CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 92 of 100 and it was in that context that the Apex Court had ordered that the investigation launched against her was liable to be dropped. Reliance on D.S.P., CHENNAI Vs. K. INBASAGARAN 2006 CR. L. J. 319 SC is misplaced. In that case, unaccounted money was recovered from house of accused (Public Servant) in raid by Income-tax Department. Such house was in joint possession of accused and his wife. His wife was running business and accused explained that all money belonged to his wife. She also owned up such money and such unaccounted money was assessed by I.T. Deptt. in the hands of wife of accused. Wife of accused, in the case in hand, has neither owned up anything by entering into witness box nor is the situation in the present case akin. In the case of R. Markandan (Supra), it was observed that finding returned by Income Tax Authority was a judicial finding on which a criminal prosecution could not have been lodged. Here the situation is different as prosecution is not based on any finding as such. Merely one head of expenditure has been borrowed on the basis of declaration made under VDIS.
12.14 Judgment of Apex Court in the case of N. Ramakrishanaiah (Supra), rather supports and strengthens the case of prosecution as it lays that legislature had advisedly used the expression "satisfactorily account"
which deliberately casts a burden on the public servant not only to offer a plausible explanation as to how he came by large wealth but also to satisfy the Court that his explanation was worthy of acceptance. Case of R. Ramachandran (Supra) is also on different footing as in that case, State itself had prayed for withdrawal of criminal case admitting that the conduct of the public servant was in good faith.
12.15 It would be always debatable whether any preliminary inquiry is required to be conducted before the formal registration of FIR. It is normally CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 93 of 100 seen that accused always tries to dig out advantage in either of the eventuality. If any such preliminary inquiry is conducted then it is attacked on the ground that it was against the statutory stipulation as provided under the Code and if no such inquiry is conducted then reference is made to CBI Manual. Be that as it may, even after the inquiry and investigation conducted only after the registration of FIR, investigating agency can still choose to file cancellation report and, therefore, realistically speaking, it does not really matter much whether any preliminary inquiry was conducted or not.
12.16 It is no longer res integra that burden of showing that a particular acquisition was benami in nature lies on the person asserting so. However, such burden can be discharged by showing circumstances unerringly and reasonably raising an inference to such effect. 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. In the present case, I have not been able to find out any independent income of son and wife of accused with which they could have acquired any property.
12.17 I have seen the report of GEQD PW63 Dr. B.A. Vaid. He had been sent, inter alia, specimen handwriting and signatures of accused as well as his admitted handwriting and signatures and was requested to compare the same with questioned writings appearing on various documents. Specimen signatures of accused are S-1 to S-20 and S-31 to S-58 and his admitted handwriting and signatures were numbered as A-1 to A-3 and as per his report Ex. PW63/75 (D-67), he opined that the author of said specimen and admitted handwritings was also the author of Q29B, Q30B, Q42B, Q44B, Q45B, Q46B, Q69B, Q73B, Q-75B, Q-76B, Q79B, Q80A, Q81A, Q81B, CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 94 of 100 Q82B, Q83B, Q107A, Q116B and Q121B. Q29B pertains to the portion where the residential address is found recorded in hand on the application form signed by Kalawati Chaudhary whereby she prayed for allotment of a duplex house in Sector-31-32A, Gurgaon under Self Financing Housing Scheme. Q30B is on Ex. P-25 which again is a letter by Kalawati and some portion of same is found to be in the hand of accused. Q42B is again name and address of Kalawati Chaudhary on a letter dated 17.06.95 sent to Joint Secretary, GDA in connection with possession of flat under Rachna, Vaishali receipt. Interestingly, Q44B are the initials, purported to be of Kalawati but as per the expert, made by accused on receipt of GDA. Q45B & Q46B are also found to be in the hand of accused which are found mentioned in letters Ex. P-58 and P-57 respectively which were sent to GDA. Q69B is found to be in the hand of accused which is in letter Ex. P-43 dated 06.08.93 in connection with property no. 13/133, Vasundhara allotted in the name of Kalawati Chaudhary. Similarly, Q73B on Ex. P-39, Q-75B on Ex. P-37, Q-76B on Ex. P-36 are found to be in the hand of accused which also pertain to said property of Vasundhara. Q79B, Q80A, Q81A, Q81B, Q82B, Q83B are found contained in file related to acquisition of flat no. II C/93A, Vaishali. Interestingly, Q81A are purported to be signatures of Dharam Kumar Chaudhary and as per the report of Dr. Vaid, such signatures are in fact of accused. Q107A are the signatures of the maker of the payment in connection with shop no. 14 of Kalkaji made to DDA through State Bank of India, INA Vikas Sadan. Q116B relates to file concerning acquisition of shop no. 15 by Madhu Bala Chaudhary. Q121B is contained in D-22 with respect to allotment of flat no. 4092, Vasant Kunj.
12.18 All these things clearly indicate that accused was in the thick of things and very well knew about the factum of acquisition. However, when his statement u/s 313 Cr.P.C. was recorded and he was asked about the CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 95 of 100 acquisition of such properties, he merely pleaded ignorance claiming that he had no knowledge. Such answers were least expected from him more so when he had dealt with some of the correspondence regarding said acquisitions himself.
12.19 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". That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabilities" either from the evidence of the prosecution and / or evidence from the defence. 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 "specially 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. In view of my aforesaid discussion, accused has failed to discharge legal burden. I have not been able to find out any material which may even remotely suggest that accused was trapped and implicated with any ulterior motive. No animosity or motive for false implication has surfaced during the trial.CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 96 of 100
CONCLUSION 13.0 In view of my aforesaid discussion, income of the accused dur- ing check period stands proved as under: -
Sl Particulars of income Amount as per Amount proved No. charge-sheet 1 Salary 7,58,233 7,58,233/-
2 Bank balance as on 1.4.90 11,417 11,417/-
3 C. P. F. advance (Non refundable ) 1,00,000 2,26,000/-
4 Rental income from house no.1596 &1408, Gurgaon 60,400 1,83,000/-
5 Money received by sale of house no. MG 1/359 Kanpur Road, 4,00,000 4,00,000/-
Lucknow 6 Loan taken from Sh. R. K. Singh 1,15,765 1,15,765/-
7 Income from interest on FDR 666 666/-
8 Income from interest on bank account 17,090 17,0 90/-
9 Loan from Mafat Lal Finance Co. for purchase of Cielo car 3,00,000 3,00,000/-
10 Income from agricultural land in Mandideep M. P. 10,000 2,04,632/-
11 Additional agricultural income 92,000/-
Total 17,73,571 23,08,803 CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 97 of 100 13.1 Expenditure made by accused during the check period stands proved as under:- Sl Expenditure during check period Amount as Amount No. per charge- proved sheet 1 Household Expenditure 2,52,744 2,52,744/- 2 Expenditure incurred in Saket Cultural Club 35,685 35,305/- 3 Expenditure incurred on interest payments for 5,290 house no.1408, Sector 31 & House no. 1596, Sec- tor 10 A, Gurgaon, Haryana 4 Expenditure incurred on the studies of his daughter 1,980 Sushila Chaudhary 5 Amount deposited at SBI Lalitpur under VDIS 1997 3,01,200 3,01,200/- 6 Expenditure incurred in purchase of house no. G 2,00,000 222, Lal Kuan, Mehrauli Badarpur Road, Delhi 7 Expenditure incurred on plot no. plot no. 311, 61,155 61,155/- Vaishali, Ghaziabad (UP) 8 Premium against LIC policy no.33006732 13,141 9 Expenditure incurred on house no. MG-1/359, Kan- 58,252 51,052/- pur Road, Lucknow 10 Expenditure incurred on personal visit of Sh. I. D. 9,000 Chaudhary to Singapore in the year 1990 11 Making charge of Jewellery in the year 1993 on the 27,000 occasion of marriage of son 12 Repayment of installments to Mafat Lal Finance Co. 89,408 89,408/- for Cielo car UP-07-8666 for period May 1997 to December 1997 Total 10,54,855 7,90,864/- CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 98 of 100 13.2 Accused acquired following movable assets and immovable as- sets during check period:- Sl Immovable/movable assets Date of ac- Amount as per Amount No. quisition charge-sheet proved 1 House no. 1596, Sector-10, Gurgaon, Hary- 10.05.1990 4,25,861 4,25,861/- ana 2 House no. 1408, Gurgaon, Haryana 01.07.1991 6,71,538 6,71,538/- 3 5 Acre land in Mandideep, Madhya Pradesh 31.10.1997 5,66,652 5,66,652/- 4 1.5 Acre land in Mandideep Madhya Pradesh 27.11.1995 1,41,551 1,41,551/- 5 House No.2-B/55-A, Rachna, Vaishali, 16.05.1991 3,13,757 3,13,757/- Ghaziabad (UP) 6 House no.2-C/93-A, Rachna, Vaishali, 16.05.1991 2,66,658 2,66,658/- Ghaziabad, (UP) 7 Shop no.14, Kalkaji, New Delhi 20.03.1995 2,93,928 2,93,928/- 8 Shop no.15, Kalkaji, New Delhi 14.03.1995 4,02,723 4,02,723/- 9 Plot no.13/133, Vasundhara Ghaziabad UP 31.07.1991 2,55,110 2,20,500/- 10 House hold articles as on 31.12.97 88,900 6,230/- 11 Bank Balance as on 31.12.97 1,11,377 89,343/- 12 NSC no. 077EE477038 & 39 20,000 13 NSC no. 188925 to 32 40,000 14 FDR no. 373604 06.06.93 20,000 15 FDR no. 373663 06.06.93 20,000 16 Cielo Car no. UP-94 8666 5,22,698 5,22698/- Total 41,60,753/- 39,21,439/- CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 99 of 100 13.3 Benefit has been given to the assets which were in existence
prior to check period. Thus, the final result would as under:-
Income during the check period = Rs. 23,08,803/-
Expenditure during the check period = Rs. 7,90,864/-
Likely savings during the check period = Rs. 15,17,939/-
(Income (-) expenditure)
Assets acquired during the check period= Rs. 39,21,439/-
Disproportionate assets = Rs. 24,03,500/-
(Assets (-) likely savings)
13.4 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 does not get any benefit as margin here is found to be abnormally high as disproportionate assets are found to be even more than income.
13.5 Thus, in view of my foregoing discussion, it stands proved that accused was in possession of assets disproportionate to his known sources of income. Such extent is found to be of Rs. 24,03,500/-. He is accordingly held guilty and convicted u/s 13(1) (e) read with sec 13(2) of Prevention of Corruption Act.
Announced in the open Court On this 15th day of February 2013.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 100 of 100 CC No. 43/2011 CBI Vs. I.D. Chaudhary Monday, February 18 2013 Present: Sh. Jagbir Singh, learned SPP for CBI.
Convict with counsel Sh. S.P. Kaushal.
1 Heard arguments on sentence.
2 Sh. Singh has contended that convict is not worthy of any kind of leniency. He rose to a very responsible position and was virtually second in command in State Trading Corporation, a premier International trading company of the Government of India engaged primarily in exports and imports operations. It has been argued that he kept on acquiring number of immovable properties either in his name or in the names of his family members and did not even bother to inform his employer about such acquisition. It has been stressed that it is not a case related to isolated acquisition of immovable property and rather various immovable properties in Delhi, Ghaziabad, Gurgaon, Madhya Pradesh etc. were acquired. He has also contended that Court should exercise its power and should confiscate these immovable properties which have been evidently acquired with the help of ill-gotten money.
3 Sh. Kaushal has, on the other hand, prayed that a lenient view may be taken against convict. According to him, accused had never indulged in any malpractice or misconduct and remained fully honest and upright during his career. It has been re-stressed by him that convict was CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 101 of 100 having ancestral properties and his wife and son were having independent income with the help of which they were able to acquire properties in their respective names with which convict had no concern at all. He has prayed that compassionate view be taken keeping in mind the aforesaid facts, agony of trial already undergone by him and also his age and poor health of convict and his wife.
4 I have given my thoughtful consideration to the rival contentions.
5 Corruption is a menace which is playing havoc. It has arrested the growth of our nation and jeopardized and weakened its development. Molecule of corruption can be seen in Nucleus of anything and everything of the life of any commoner.
6 Those holding responsible positions, in any capacity, and dealing with public matters have to sense the need of the hour and to follow the path of righteousness and truth. Thinking, thus, needs to be raised high not the Standard of Living.
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 go to the extent to say that even if such immovable property is acquired by his close family members like, spouse, parents and children, even in such a situation, CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 102 of 100 such public servant should be under some compulsion to intimate the source of money for such acquisition.
8 In the present case, it seems that convict never gave any such information to his employer. Extent of assets disproportionate is found to be Rs. 24,03,500/- and 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 small amount.
9 Confiscation of property is not, normally, resorted to 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 In view of aforesaid, I hereby sentence convict to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 1 lac in default thereof, convict would further undergo simple imprisonment for a period of six months.
11 Keeping in mind the overall facts and circumstances of the case, I think that it would serve the ends of justice if two properties bearing House No. 1408 Duplex, Sector-31, 32, Gurgaon, Haryana and Flat No. II-B/55 'a' HIG, Double Storey, Rachna, Vaishali Self Financing Housing Scheme, Ghaziabad, which were allegedly acquired in the name of Mrs. Kalawati Chaudhary are confiscated to State. Both these CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 103 of 100 properties stand confiscated to State accordingly. CBI would take requisite steps in this regard.
12 Convict be sent to jail under appropriate warrants.
13 A copy of judgment & order on sentence be given to convict free of cost.
14 Ahlmad is directed to paginate and book-mark the file as per the circular so as to enable digitization of the entire record.
15 File be consigned to record Room.
Announced in the open Court On this 18th February, 2013.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 43/2011 CBI Vs. Ishwardeen Chaudhary Page 104 of 100