Himachal Pradesh High Court
Kapil Dhiman vs State Of Himachal Pradesh & Others on 4 November, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.93 of 2021 .
Reserved on : 9th August, 2023 Decided on : 4th November, 2023 Kapil Dhiman ...Petitioner Versus State of Himachal Pradesh & Others ...Respondents of Coram The Hon'ble Mr. Justice Virender Singh, Judge.
rt Whether approved for reporting?1 yes For the petitioner : Mr. Anand Sharma, Senior Advocate with Mr. Karan Sharma & Mr. Virender, Advocates.
For the respondent : Mr. Mohinder Zharaick, Additional Advocate General for respondent No.1.
Mr. Jagan Nath, Advocate for respondents No.2, 3 and 6.
Mr. Anirudh Sharma, Advocate vice Mr. Vipin Pandit, Advocate for respondent No.4.
Mr. Tara Singh Chauhan, Advocate for respondent No.5.
Mr. Balbir Singh, Criminal Ahlmad, from the Court of learned Special Judge Solan, is present along with record.
1Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 2Virender Singh, Judge.
PetitionerKapil Dhiman has filed the present .
petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), read with Article 227 of the Constitution of India, with a prayer to quash FIR No.15/2012, dated 14.12.2012, registered of under Section 13(1)(D), 13(1)(E) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC rt Act'), read with Sections 109 and 120B of the Indian Penal Code (hereinafter referred to as 'the IPC'), registered with Police Station, State Vigilance and AntiCorruption Bureau, Solan, District Solan, H.P.
2. According to the petitioner, on the date of filing of the petition, he has rendered 29 years of service, after being initially appointed as Drugs Inspector on 1.11.1991.
Thereafter, he has given the list of stations, where he remained posted during these 29 years. According to him, he has also been conferred with 'Best Drugs Inspector Award', for the year 2003.
3. According to the petitioner, on 14.12.2012, the FIR, in question, was registered against him, with Police ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 3 Station, SV & ACB, Solan. The said FIR was initially registered against three Drug Licensing Authorities, .
namely, Mr. R.K. Chaudhary, Mr. Navneet Marwha and petitioner Kapil Dhiman.
4. It has also been alleged in the FIR that the petitioner had received illegal gratification and issued of certain licence to the Drugs Pharma Companies, without completing the codal formalities. He has termed the FIR, rt in question, registered against him, as false and frivolous and registered without verifying the factual position.
5. According to the petitioner, at the relevant time, he was posted as Drugs Inspector and in that capacity, he was not having any authority to grant or suspend any licence, as his job was to inspect and submit his report.
6. After registration of the FIR, in question, on 15.12.2012, the residential houses, as well as, the premises of his relatives were searched and the documents pertaining to the immovable and movable properties were taken into possession, by the Police. He was arrested on 16.12.2012 and thereafter, was put under suspension, on 19.12.2012.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 47. Initially, he was remanded to Police custody and thereafter, he was remanded to judicial custody till .
23.02.2013. As per the case set up against him that during the Check Period from the years 2001 to 2012, the petitioner has owned, a lot of properties, in the State of Himachal Pradesh and outside the State, which are of disproportionate to his known sources of income. He was bailed out on 20.02.2013 by the learned Special Judge, rt Solan.
8. When, the petitioner was in judicial custody, then, he has moved application for issuance of seizure report and other articles and documents, before the Court of learned Special Judge, Solan on 17.1.2013, upon which, copy of the seizure memo dated 7.2.2013, was supplied to him. The seizure memo dated 7.2.2013, is stated to be of alleged raid conducted by the authorities without associating the petitioner, as well as, without obtaining any permission from illaqua Magistrate. No independent witnesses were associated.
9. The petitioner has countered the allegations, as levelled against him, regarding disproportionate assets, on ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 5 the grounds that he had completed 29 years of service in the department. In case, his average income is calculated, .
@ Rs.30,000/ per month, then, his total income, during the entire period of service, comes to more than rupees one crores and whereas, in the year 2012, his salary was Rs.50,000/.
of
10. As per the stand taken by the petitioner, he has already intimated all material facts, in his assets and rt liability statement, to the department.
11. It is the further case of the petitioner that after completion of the investigation, the police has submitted the chargesheet against him by levelling the following charges: Charge No.1: During investigation on 15.12.12 in the presence of two independent witnesses Sarv Shri Narinder Chouhan District Revenue Officer and Shri Rajiv Thakur now Councilor, Ward No. 4, Solan District Solan, and in the presence of Shri Kapil Dhiman, the search of his residential house Aashiana Friends Colony, near Mashroom Complex, Chambaghat (Solan) was conducted as per procedure. During domestic search out of the bedroom of the top floor of the above residential house gold foil 99.9% 24 carat gold which is a photoframe of Shri Ganesh and Laxmi and from the bedroom of the lowest building of the house 12 ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 6 coins of gold, 5 biscuits gold 10/10 gram, one photo frame gold Shri Ganesh, one gold pedal alongwith Chain Gold and a bracelet gold and three rings gold .
alongwith nug, one other photo frame in which there are pictures of Ram, Laxman. Sita and Hanuman, pure gold, one status of Sai Baba gold and one Golden photo frame Bala Ji which is Sunss Technology 24 carat Gold Plated picture, one photo frame Maha Laxmi which is Swiss of technology 24 carat Gold Plated, one Photo Frame Bala Ji which is Swiss Technology 24 carat Gold plated small, one small photo frame Shri Ganesh Ji rt Swiss Technology 24 carat Gold plated. Besides this Silver 4 Paimana set, Silver coin Laxmi. Ganesh Valvet, Silver Laxmi Ganesh statues of Sikka, a statue of Laxmi Ganesh of silver in frame, one Bowel Silver, 1 Bowel Silver, 1 Bowel Kishti/ Patt type, two glass silver, five other silver biscuits 50/50 gram, two glass silver, three silver biscuits 100/100 gram, one other Silver biscuit on which a twenty rupee note has been printed, two coin silver, one Marka KG Ganesh Laxmi statue one silver trey alongwith four Bowel, alongwith four spoons of silver, two silver glass, two other silver bowels, one silver biscuit on which a 1000 rupee note has bean printed, one plate silver including silver cattle, milk pot, sugar bowl one Laxmi Mata statue which is fixed in showpiece, one photoframe in which silver statues of Laxmi, Ganesh and Saraswati, one biscuit silver 250 gram, one other bowel of silver, a silver watch type showpiece alongwith pen and four silver type trey 2 big 2 small and electronics item like Apple I.Pad, Samsung, Galaxy Tab 2, Samsung Galaxy ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 7 Tab 2, I phone, MP3 player, Transend 2GB, M Phone Black Berry Samsung Galaxy Tab 16 GB, Galaxy Note 16 GB, I Phone 45 GB, Camera Nikon, F.60 Sony .
Handy Cam alongwith DVD, Soni Hani Cam DCR, Camera Nicon D90, Sony Cyber Shot Digital Camera, Sony Cyber Shot 7.2 MP Digital Camera, Moser Bar Photo Frame and Digital Dairy Casio 128 KV and 32 KV and different types Ladies and Genets Wrist Watches 23 and of different brand total 23 wine bottles and an amount of Rs. 1,52,500/ in currency notes. All the above gold items (coins, statues etc., Silver made items, coins, rt statues etc., electronics items, wrist watches and liquor bottles and currency notes were taken into custody of the police through different memos on the spot in the presence of witnesses. During domestic search the required documents required in the complaint, different types of FDRS and STDRS were also taken into custody of the police through Memo. Besides this an Inventory of House Hold Articles was prepared separately. The Memo of Jama Talashi and nonrecovery were prepared. The statements of the witnesses were recorded under Section 161 Cr.P.C. The checking of the residential House of alleged Kapil Dhiman, Aashiana Friends Colony, Chambaghat H.P. was got conducted through the Technical Committee P.W.D. Department, Building and Roads, Solan. The evaluation report of which is enclosed. This charge has been found proved during the investigation. The detail of which has been given in the following A,B,C,D statement of alleged Kapil Dhiman in detail.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 8Charge No.2: During investigation it was found that Shri Kapil Dhiman has purchased a Flat No.11 in Sugandha Apartment in Saprun, Solan in the year .
2004. The correspondence has been made with the Sub Registrar, Solan, a certified copy of Sale Deed No.989/2004 dated 19.10.2004 relating to the above flat were obtained. From the Sale Deed it was found that Shri Kapil Dhiman purchased the above flat from Shri Rajiv Chopra son of of Shri Mohinder Mohan Chopra resident of JMD Steel & Cement Opposite Sikand and Company Chambaghat Tehsil and District Solan for Rs.4,65,000/ on which rt Stamps worth Rs.55,800, words about 1,700, line about 170 have been paid. The evaluation of the interior portion of this flat was got conducted from the Technical Team of Inspection HPPWD B&R. As per report of Technical Team no additional work/ repair has been done in the above flat. For purchasing this flat Shri Kapil Dhiman has obtained permission from Chief Medical Officer, Solan. This sanction order was obtained from the office of Chief Medical Officer, Solan and Shri Kapil Dhiman has taken home loan from State Bank of Patiala, Chambaghat, Solan for the purchase of above flat and the concerned bank account statement was also obtained from the above bank. This charge has been found proved during the investigation. The particulars of which have been described in detail by the alleged Kapit Dhiman in the following A, B, C, D Statement.
Charge No.3: Besides this Shri Kapil Dhiman has purchased land in Mauza Ber Khas Solan Brewery in the year 1998.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 9The certified copies of Sale Deed No.870 dated 16.10.1998 have been obtained from the office of Sub Registrar. From the Sale Deed it was found that Shri Kapil .
Dhiman purchased the above land for Rs.
80,000/ + 9600 Stamp Duty + 1602/ Registry fees. Now this land has been acquired by the National Highway Authority of India in the year 2017. In this regards the required information/ record has been obtained from Competent of Authoritycum land Acquisition cum Sub Division Magistrate, Solan. The compensation amount of this land Rs.34,56,000/ has been paid on rt 16.01.2017 to Shri Kapil Dhiman. This charge has been proved during the investigation. The particulars of which have been described in detail by alleged Kapil Dhiman in the following A, B, C, D, Statement.
Charge No.4: It has also been stated that Shri Rajiv Mukul has purchased a flat in Dev Bhumi Apartment AL Deonghat, Solan in Rs.35,00,000/ and in this regard the Tehsildar Solan, District Solan has been requested through correspondence to provide the required information/record. From where vide their office letter No. SLN/RC1750 dated 04.05.2017 it was intimated to this office that, "No any sale deed registered in favour of Rajeev Mukul S/o Sh. Jagdeep Chand R/O H.No.251 Ward No.7, Tehsil and District Karnal, Haryana according to the record available in this office." But as per Smt. Raj Rani mother of Shri Rajiv Kumar Mukul, vide Sale Deed No.311 dated 20.3.2012 has purchased a flat No. A5, First Floor Block PhaseII Dev Bhoomi Green Valley from Shri Manoj ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 10 Sahni etc., R/o Sahni Bhawan, Upper Bazaar Solan in Rs. 15,00,000/ on which Rs.75000/ as Stamp Duty and Rs.1700/ on account of Registration Fee .
has been paid. During investigation it was found that in Dev Bhumi Apartment above a flat in the name of Raj Rani who is mother of Rajiv Mukul has been purchased in Rs. 15,00,000/ the payment of which has been paid from the Account No. 112001000041560 of Raj of Rani. This charge could not be proved during the investigation.
Charge No. 5:
rt The concerned record regarding Lyra Lab Pvt Ltd., was obtained which has been described in detail separately in the Challan and this charge against alleged Kapil Dhiman has been proved. This charge was found proved during the investigation the particulars of which have been given in detail in A, B, C, D, Statement of alleged Kapil Dhiman.
Charge No. 6 & 7 : Shri Lakshman Singh Dhiman son of Shri Baljit Singh as per sale deed No.413 dated 28.6.2006 has purchased land measuring 0.4 bigha land in Rs. 40,000/ in which Rs.3200/ as stamp duty and Rs.7/ as Registration Fees has been paid and this land has been given by Shri Laxman Singh Dhiman as per settlement deed Registration No. 1155 dated 17.06.2010 to his daughter Smt. Minu Bhandari as financial help for subsistence. The ertified photocopies of the above registry and settlement deed have been obtained from Sub Registrar, Kullu. This charge has been found proved during the investigation. The particulars of which ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 11 have been described in detail in the property of Laxman Dhiman.
Charge No. 8: Shri Lakshman Singh .
Dhiman as per sale deed No.1239/1 dated 10.10.2002, for Rs. 1,90,000/ + Stamp duty Rs. 20,000/, Sale Deed No. 1240/1 Dated 10.10.2002, Rs.
1,90,000/ + Stamp Duty Rs.27875/ + Registration Fee of Rs.500/ and Sale Deed No.1997/1 dated 25.02.2002 for of Rs.3,65,000/ + Stamp Duty Rs. 45,625/, Registration Fee Rs 500/ have purchased land from Ravinder Kumar son of Shri Ishwar Chand etc., residents of rt Kot Tehsil and District Panchkula. The total price of which is Rs. 7,45,000/ and Rs. 1,01,000.00 Stamp Duty and Rs.1500/ Registration Fee has been paid. The certified copies of the above sale deeds have been obtained from the office of Sub Registrar, Panchkula and the Girdawari of the Khasra of above lands from the year 2002 to the year 2016 through memo have been taken into custody of the police from Shri Surjit Singh now Patwari, Patwar Circle Kot District Panchkula, Haryana. On the Memo the statements of the witnesses and presenter was recorded and from Joint Director (Statistical) Agriculture and Kisan Kalyan Department Haryana on.14.7.2017 Area AVYield and Production of Wheat Crop during 200001 to 201213, Tentative Estimate of Cost and Income wheat Crop during 200001 to 201213 and Break of Cost of trav cultivation per hectare of Wheat Crop during 200405 based on the data of 200304, Area Production and Average Yield of Paddy Crop 200102 200102 to 201213 Comparative Statement of ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 12 cultivation per hectare of Paddy Crop during the year 200304, 200405 and Area Production and Average Yield of Paddy Crop 200001 to 201213 were .
obtained. This charge has been found proved during the investigation which has been described in detail in the property of Laxman Dhiman.
Charge No.9: Shri Kapil Dhiman and his wife Smt. Sunita Dhiman, in the year of 2010 have purchased Plot No. 149 in Amravati Enclave Tehsil Kalka District Panchkula (Haryana). The certified photocopies of the sale deed No.682 dated rt 21.05.2010 were obtained from the Sub Registrar Kalka and taken into custody of the police through Memo. On analyzing the Memo it was found that Shri Kapil Dhiman has purchased the above plot measuring 500 square yards for Rs.65,00,000/ on which Rs. 3,90,000/ stamp duty and Rs.1500/ Registration Fees and Rs.3/ pasting fee has been paid. This charge has been proved during the investigation. The particulars of which have been described in detail in the following A, B, C, D Statement of the alleged Kapil Dhiman.
Charge No.10: In House No.653A, Harmilap Nagar Baltana, Shri Vinod Dhiman brother of Shri Kapil Dhiman is living with his family and mother Smt. Urmila Dhiman. On 15.12.2012 the domestic search of the above house was conducted as per procedure. During House search the documents relating to the case were taken into custody of the police vide memo which are enclosed with the Challan. This charge has been found proved during the investigation. The ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 13 particulars of which have been described in detail in the following A, B, C, D Statement of alleged Kapil Dhiman.
.
Charge No.11: As per statement of Smt. Sunita Dhiman wife of Shri Kapil Dhiman, her husband Shri Kapil Dhiman obtained her signature by way of cheating on the documents of M/s Vasu In Corporation Plot No. D194 and as she had a doubt, she cancelled the agreement of with the company. This charge has been found proved during the investigation. The particulars of which have been described in detail in the following A, B, rt C, D Statement of alleged Kapil Dhiman.
Charge No. 12: As per Buyer Agreement Puneet Dhiman son of Shri Vinod Dhiman r/o House No.653, Harmilap Nagar Phase1, Baltana Tehsil Derabassi Punjab has purchased Flat No. 701, Floor 7, Area approximately 1567 Sq. Ft Victoria Heights at Peer Muchailla, Tehsil Dera Bassi and District SAS Nagar Mohali, Punjab for Rs.29,00,000/ on 08.09.2011. As per Buyer agreement Shri Puneet has paid Rs. 1,00,000/ Booking/ Registration amount and on 08.10.2011 Rs. 4,00,000/, On 30.12.2011 Rs.
3,00,000/, On 01.03.2012 Rs.3,00,000/, 01.05.2012 Rs. 3,00,000/, On 01.7.12 Rs.3,00,000/, On 01.09.12 Rs.3,00,000/, On 01.11.2012 Rs.3,00,000/, On 01.01.2013 Rs.2,00,000/ and On 01.03.2013 TODA Rs.1,00,000/ to Shri Rajesh Kumar Goyal, Director of M/s Fortune Multitec Pvt. Ltd., H.O. SCO 234 Sec 20, Panchkula, In this regards the written statement of Shri Raju Kumar Senior Marketing Manager M/s Fortune ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 14 Multitech Pvt. Ltd., was recorded under Section 161 Cr.P.C. and photocopies of Buyer Agreement, Letter of Allotment and Receipt of money, on Cheque and Khata .
Ledger of M/s Fortune Multitech Put Ltd., were taken into custody of the police through Memo of Recovery. All the above documents have been enclosed with the Challan. This charge has been found proved during the investigation. The particulars of which have been described of in detail following detail of the property of Puneet Dhiman in detail.
Charge No. 13: Shri Kapil Dhiman has rt purchased Vehicle No. HP14A3707 Maruti Swift ZXI EIII year 2007 in Rs.4,90,458/ from M/s Goyal Motors Pvt Ltd., Solan Deonghat the information of which has been obtained from M/s Goyal Motors Pvt Ltd., Solan. As per information received Shri Kapil Dhiman paid the price of the above vehicle vide Cheque No. 138183 dated 08.04.2007 Rs.40,000/ and DD No. 926193 dated 19.4.2007 for Rs.4,50,458/ to M/s Goyal Motors Pvt Ltd., Solan. This vehicle was sold by Shri Kapil Dhiman to Shri Nitin Sharma son of Shri O. P. Sharma resident of Sun Shine Cottage Railway Station Road, Shoghi on 09.10.2014 in Rs.2,75,000/. This amount of Rs.2,75,000/ was paid by cheque and deposited in the account No. 55078264148 of Shri Kapil Dhiman. The photocopies of Affidavit and bank statement are enclosed and Shri Kapil Dhiman has purchased Honda Motor Cycle No. HP14A1090 in the year 2004 in his name. The certified copies of the Screen Report of Vehicles of Motorcycle and above vehicle have been obtained from Registering Licensing Authority ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 15 Solan, Distt. Solan. Besides this the Screen Report of Vehicle of CH01 AE 5737 has been obtained from Registering Licensing Authority, Chandigarh. As per .
obtained Screen Report the owner of this vehicle was Shri Manoj Modi son of Shri Ishwar Dass Modi, House No. 2975 Sector 42 C Chandigarh. The above vehicle remained with Manoj Modi from 29 May 2011 to 4 June 2015. This vehicle was again transferred from Paving Stone India of Pvt Ltd., SCO No.8, Sec. 7C, Chandigarh to Banarsi Dass Automobiles Ltd., Plot No. 198, Industrial Area, PhaseII, Panchkula on 28 May 2011. At present rt the owner of this vehicle is Shri Bhupinderjit Singh son of Kulwinderjit Singh House No. 1274, Sector 15B, Chandigarh. This vehicle was booked on 10.01.2011 in resale in the name of Shri Puneet Dhiman son of Shri Vinod Dhiman who is nephew of alleged Shri Kapil Dhiman and an amount of Rs.50,000/ was paid in the name of Shri Puneet Dhiman, Rs.2,75,000/ in the name of Manoj Kumar Modi and Rs.5,00,000/ were paid by M/s Scott Pharmacul Ltd., Chandigarh to Banarsi Dass Automobiles Ltd., In this regards during the investigation the statement of Manoj Modi was recorded under Section 161 Cr.P.C. who stated that he had been posted as Manager in M/s Scott Pharmacul Ltd., Chandigarh. The owner of this company is Shri Sanjiv Aggarwal who has been stated as close friend of Shri Kapil Dhiman. In the month of January 2011, Sanjiv Aggarwal told him that a Tata Safari Vehicle is to be purchased by Drug Inspector Shri Kapil Dhiman who is living in Solan for his official work. Therefore this vehicle is to ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 16 be purchased in his name. He at the instance of his owner has put his signature on many papers and the vehicle was transferred in his name. He has .
never used this vehicle and nor has made any payment of it. Regarding sale purchase of this vehicle, its owner Sanjiv Aggarwal can explain and besides this in the ld. Court of JMICI Solan, his separate statement under Section 164 Cr.P.C. was recorded. This charge has of been found proved during the investigation. The particulars of which have been described in detail in the following A, B, C, D Statement of alleged rt Kapil Dhiman.
12. The petitioner has given the elucidation of those charges.
1. ELUCIDATION IN REGARDS TO THE LAND AT BREWERY SOLAN:
This land was purchased by the petitioner for Rs.80,000/ in the year 1998 which is prior to check period. At present on 16.1.2017 NHAI has acquired it. The compensation of Rs.34,56,000/ has been paid. This money has been was given to the petitioner after check period in the year 2017. Therefore, it has not been included in the income. (details as Enclosed at page No. 15 of the Challan).
2. ELUCIDATION IN REGARDS TO SUGHANDA APARTMENT:
That the said flat was purchased by the petitioner as per sale deed No.1989 dated 19.10.2004 in Rs.4,65,000/. For this flat ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 17 the petitioner raised a loan of Rs.3,00,000/ under Loan account No.55078297527 (Enclosed page No.44 of the Challan) and vide cheque No.438408 .
dated 19.10.2004 Rs.4,55,000/ out of his account No.55078264148 were paid to the owner of the flat Rajiv Chopra and Rs.10,000/ were paid as Cash Advance.
(Encl page No.17 and 393 of the Challan).
The payment of this flat was made by of petitioner from his bank account as under: On 19.10.2004, the rt On 19.10.2004 petitioner has account taken house loan no.55078264148 from SBOP of the petitioner Chamba ghat has been drawn through account Rs.1,55,000/. No.55078297257 Rs. 3,00,000/.
On dated 19.4.2010 vide Sale Deed No.989/04 Flat No.11 Sughanda Apartment was purchased by the petitioner from Sh. Rajeev Chopra Rs.4,65,000/ Registration fees Rs.65,100/ total amount spent Rs.5,30,100/ Detail of payment of Rs.10,000/ cash on 14.10.2004 at the time of agreement and Rs.4,55,000/ vide cheque No.438408 dated 19.10.2004.
Note: That the above House Loan deposited by the petitioner from 1.1.2004 to 14.12.2012, of Rs.3,67,500/ installment of House loan per month Rs.3750/ transferred from account No.55078264148 of the petitioner.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 183. ELUCIDATION REGARDING AMARVATI ENCLAVE PLOT NO.149 SURAJPUR HARYANA: .
The petitioner in the above statement at serial No.3, has purchased a plot in Amravati Enclave in Rs.35,00,000/. On it the registration fees Rs.4,05,000/ has been spent separately (Enel Page No. 54 of the Challan). In the purchase of this plot total Rs.39,05,000/ have been spent of by the petitioner. Regarding purchase of this plot the alleged the petitioner intimated his department about the amount spent vide his letter No. 9418 rt dated 24.8.2010. The detail of which is as under:
1. Rs.7,0,000/ out of personal income
2. Rs.4,00,000/ Bank loan,
3. Rs.24,00,000/ unsecured loan from his father Shri Laxman Singh Dhiman,
4. Rs.4,00,000/ unsecured loan taken from Puneet Dhiman.
The petitioner has described the amount spent on above plot in 1 to VI statement as under:
1. Rs.7,00,000/ out of his personal income,
2. Rs.29,00,000/ from his father Laxman Dhiman,
3. Rs.2,50,000/ Gift for the payment of registration of plot.
The petitioner on both the above places has described the amount invested ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 19 separately. (Enclosed documents page 45 to 73 of the Challan).
As per record obtained during the .
investigation, the petitioner spent the money for the purchase of above plot as per following statement: Amravati Enclave Plot No. 149 Surajpur Haryana: of Received payment Received Received payment payment A/c A/c A/C No.10002923320 No.5507826414 No.038710000 New A/c rt 8(Kapil 1158 8 HDFC No.65271499936 Dhiman) on of the (Kapil Dhiman & 20.2.2010, 5 petitioner on L.S. Dhiman) on STDR's 10.3.2010 vide 10.3.2010 vide matured cheque cheque No.881264 amounting to no.931902 Rs.500,000/vide Rs.5,00,000/ Rs.3,00,000/ cheque No.931903 credited and on received from Rs.2,00,000/ & 13.3.2010 Lyra Lab on 16.3.2010 Rs. Rs.7,00,000/ Shares in 10,00,000/ transferred Account credited from from account no.xxxx7878 account no.1000292332 of Sh. Puneet no.998265091400. 0 (Kapil Dhiman and Total 17,00,000/ Dhiman & L.S. further Rs. above was received Dhiman). 4,00,000/ from Lyra Lab On 1.5.2010 was Shares. Rs.6,00,000/ transferred on credited in L.S. 15.3.2010 vide On 19.4.2010 Dhiman cheque through cheque account No.0727062 no.969307 no.xxxxx295 toxxxx588 of Rs.4,00,000/ from HiTech Kapil Dhiman.
received in Pharma's account. On account 13.3.2010 through no.1565020000 cheque No.318338 00392 vide Rs.7,00,000/ cheque transferred to Sh.
nos.833503,
Kapil Dhiman's
444821 and
account
further
No.xxxx148
5,30,000/ has
transferred to
account
no.xxxxxxx148
on 17.5.2010.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS
20
Payment of Plot Payment of Plot Payment of
No.149 Rs. No.149 Rs. Plot No.149
14,00,000/ On 17,00,000/ On Rs. 4,00,000/
16.4.2010 22.2.2010 On 15.03.2010
.
through SBP through cheque through RTGS
cheque No. SBP No. 138149 to
No.925381 859208 Sh. Radhey
Rs.9,00,000/ & Rs.5,00,000/ Krishan's
on 21.4.2010 vide on 15.3.2010 dated Rs.
cheque through cheque 4,00,000/
No.955382 No.859207 paid account
Rs.5,00,000/ Rs.6,00,000/ no.650355119
paid to Sh.Radhey and on 079 owner of
Krishan's account 17.5.2010 Amaravati
of
No.65035519079 through cheque Enclave.
owner of No. 859209
Amaravati Rs.6,00,000/
Enclave. paid to Sh.
rt Radhey
Krishan's
account
no.6503551907
9 owner of
Amaravati
Enclave.
On 21.5.2010 vide Sale Deed No.682 the petitioner and Smt. Sunita Dhiman his wife has purchased 500 Sq. Yards Plot No.149 at Amaravati Enclave Panchkula Tehsil Kalka Distt. Panchkula Haryana from Sh. Narender Singh Johal through GPA Shri Radhey Krishan. An amount of Rs.35,00,000/ (Page No. 132) plus stamp duty 3,90,000/ and registration fee amounting 15000/ total 39,05,000/ That further from the record available and from above statement, it was found that on 19.1.2001 a joint account No.01190005207 was opened by initially by the father of the petitioner Shri Lakshman Dhiman and later on joined by the petitioner in State Bank of Patiala Panchkula Branch Sector 12 the number later on was 10002923320 and at present after merger in S.B.I. is 65271499936. This account was opened jointly (Encl. documents page No.75 to 87). In the year 2010 the amount was deposited in this ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 21 account on 10.3.2010 vide cheque No.881264 Rs.5,00,000/ vide cheque No.931903 for Rs.2,00,000/ and on 16.3.2010 Rs. 10,00,000/ from Account .
No.998265091400 were deposited through TRF. This total amount of Rs. 17,00,000/ was deposited in this account on account of selling the share of Lyra Lab. On 19.4.2010 Rs.4,00,000/ vide cheque No.969307 were also deposited in the above account. On of 13.3.2010 vide cheque No.318338 Rs.7,00,000/ were transferred in the account No.55078264148 of Kapil Dhiman. On 1.5.2010 Rs.6,00,000/ were rt deposited in the account No.55080199295 of L.S. Dhiman from the account No. 156502000000392 of Hi Tech Pharma vide cheques no's 833503, 444821. These cheques were issued by Shri Dharminder Gulhati. Dharminder Gulhati is Director also of the Lyra Lab.
On 17.5.2010 Shri Laxman Dhiman out of this account transferred Rs.5,30,000/ from his account No.55078264148 of the petitioner. (Documents Enclosed page No.84 to 85 of the Challan).
Further, on 10.3.2010 vide cheque No.921902 ODR3,00,000/ which was deposited in the account No.00611000167878 of Puneet Dhiman being an amount of 1202 Selling share of Lyra Lab (Documents Enclosed page No. 1991 of the Challan). From this account Puneet Dhiman Recic transferred Rs.4,00,000/ on 15.3.2010 vide cheque No. 0727062 in the account No.03871000011588 of the SToner. petitioner. On the same day this amount was transferred by the petitioner on 15.3.2010 vide RTGS No.138149 ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 22 Rs.4,00,000/ in the account of Shri Radha Krishan owner of Amravati Enclave Account No. 65035519079 (Documents Enclosed page No.447, 130).
.
Total Rs.35,00,000/ were paid to Radha Krishan for this plot.
That further the petitioner had completely described the loan of Rs.29,00,000/ from his father Lakshman Dhiman and from Puneet Dhiman Rs.4,00,000/as of unsecured loan for this plot and it was found that this amount was deposited in the joint bank account of Shri Laxman Dhiman and Kapil Dhiman and in the rt bank account of Puneet Dhiman on selling 1/3 share of Lyra Lab. From joint account No. 65271499936 of the petitioner personally for the purchase of above plot issued Cheque No.318338 dated 13.10.2010 for Rs.7,00,000/, cheque No.925381 dated 16.4.2010 for Rs.9,00,000/, cheque No.925382 dated 21.4.2010 for Rs.5,00,000/ and deposited in the account of plot owner Radhe Krishan. On which as per report of FSL these cheques were found written and signed by the petitioner. Besides this from the same account, cheque No.920762 dated 31.7.2012 for Rs.4,00,000/ has been issued in the name of the petitioner, Kapil Dhiman which was signed by Lakshman Dhiman but as per report of FSL the above cheque has been proved written/ filled in by the petitioner Kapil Dhiman. From the above it becomes clear that this account was just opened jointly but the same is operated by Kapil Dhiman only and this account is used for concealing the illegal income of Kapil Dhiman. (Enclosed ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 23 documents page No.152 to 155, 135 FSL Report of the Challan).
That it is further most pertinent to .
mention here that all the afore transaction were also laid under scrutiny by the Income Tax Department and an notice under Section 271, of the Income Tax Act 1961, was issued to the petitioner and his father whereby, enlightenment for the assessment year 20112012, for the of aforementioned transaction was called for and the same was well clarified by way of written as well as oral explications, and taking into consideration the same the rt proceedings under Section 271 (1)(c) were henceforth, dropped against the petitioner and his father since all the transactions were well accounted. The copy of the drop notice dated 5/11/2018, against the petitioner and his Father under Section 271 Income Tax Act 1961, are annexed herewith as Annexure P8, for the kind perusal.
4. ELUCIDATION REGARDING LYRA LAB. PVT. LTD.: That in the year 2004 M/s Necter Pvt Ltd., was purchased from H.P. Finance Corporation, Shimla and after that Shri Kulesh Kumar purchased M/s Nector Pvt Ltd., in Rs.70,00,000/ from Corporation in which the amount of Rs.24,50,000/ as down payment was paid by Shri Kulesh Kumar in cash and the remaining amount was transferred to Shri Ranjit Singh and Paramjit Singh and Shri Ranjit Singh and Shri Paramjit Singh vide letter No. NIL dated 5.5.2005 enacted a company M/s Lyra Lab which was promoted by Shri Laxman Dhiman father ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 24 of the petitioner and Shri Arun FEB 2021 Tehran and the remaining amount was transferred in the to Register of M/s Lyra Lab and Ranjit Singh and Paramjit Singh .
were also kept as Director in it. After that Himachal Pradesh ESTEorporation gave its sanction to prepare a sale deed in the name of M/s Lyra Lab regarding Assets of M/s Necter Pvt Ltd., On 23.8.2005 through Account No.3383002100015857 of M/s Lyra Lab Ltd., the Director Shri of Lakshman Dhiman and Shri Inderjit Singh sent Rs.49,34,000/ to H.P. Finance Corporation Shimla which they had taken loan from Punjab National rt Bank, 22D, Chandigarh and the amount of Rs.25,00,000/ which were spent cash by Paramjit Singh and Ranjit Singh, were to be paid by Shri Laxman Dhiman and Shri Inder Singh Gulati in equal share Rs. 12,50,000/ each. The payment summary of Shri L.S.Dhiman father of the petitioner is as under:
1. An amount of Rs.5,00,000 was paid to Shri Ranjit Singh by way of selling gold for Rs. 4,96,277/ received vide Cheque No. 057054 in the account No.55078280159 SBOP.
2. The mother of the petitioner further deposited an amount of Rs. Rs.65573 and Rs. 72644 in the account No.55078280159 SBOP by taking maturity of her fixed deposit.
3. From Account No.55078264148 of alleged Kapil Dhiman on 9.5.2005 vide Cheque No.00945115 Rs.2,00,000/ have been transferred to the account of Laxman Dhiman Account No.55078280159 SBOP Solan.::: Downloaded on - 08/11/2023 20:31:01 :::CIS 25
4. On 9.5.2005 Laxman Dhiman from the same account vide Cheque No. 160726 has described transfer of Rs.3,50,000/ in the account of Lyra. (Documents .
enclosed page No.394 of the Challan). In fact this is not transfer of funds to Lyra, whereas it is cash withdrawal of Rs. 3,50,000 by the father of the petitioner.
5. On the same day i.e 09.05.2005 Shri Lakshman Singh TED Dhiman raised OD of loan of Rs.4,00,000 against his deposits in the SBP, Solan and the same was drawn in cash.
6. rt Cash of Rs. 7,50,000 so withdrawn as detailed above in Para 4 and 5 was handed over to the petitioner by his V father. On 9.5.2005 in the other account No.03871000011588 of the petitioner in HDFC Solan an amount of Rs.7,50,000/ in cash is deposited and on the same day on 9.5.2005 vide cheque No.0138126 is transferred and deposited in account No.4321000015301 of Paramjit Singh owner of Lyra (Encl documents page No. 438 and 709 of the Challan). 5. An amount of Rs.9,50,000/ has been found paid to Lyra Lab directly from the account of the petitioner has been wrongly explained in the Challan.
5. In the account No.03871000011588 of alleged Kapil Dhiman in HDFC Solan an amount of Rs.7,50,000/ was deposited in cash on 9.5.2005 and in this regard during the investigation the petitioner submitted complete satisfactory reply that from where he received this amount in cash.
4. ELUCIDATION DETAILING COMMERCIAL BUILDING DEONGHAT SOLAN.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 26That the petitioner purchased the above property has stated in his I to VI statement about getting Rs.4,00,000/ vide cheque No.920762 dated 31.7.12 .
and Rs.5,00,000/ from Nishikant Vohra vide cheque No.515899 TODAY dated 15.5.2012 and from Pawan Sahni Rs.5,00,000/ EB 2021hrough RTGS as unsecured loan from father and friends. the money was received in the bank account of the petitioner for to Registre of the purchase of this flat as per detail given below and was spent on the above plot.
rt Details of Build up commercial building purchased by Sh. Kapil Dhiman at Deonghat District Solan, H.P. On dated On dated On dated 30.07.2012 15.5.2012, 26.6.2012 through vide cheque through credit cheque no.0518899 50730 no.055855 Rs.5,00,000/ Rs.5,10,715/ from account from Jaipur from Yamuna No.2300 Sh. deposited in Nagar in Pawan Sahni the account account has no.038710000 no.0010002932 transferred 11588 of Sh. 320 of S. Kapil Rs.5,00,000/ Kapil Dhiman Dhiman and to his and on dated Sh. Laxman account 3.8.2012 same and on no.2500 and amount vide 31.7.2012 same day cheque through cheque above No.388059 No.920762 amount has transferred to Rs.4,00,000/ been account trf. To account transferred No.038720000 no.5507826414 through 02249 of Shri 8 of Sh. Kapil RTGS in Kapil Dhiman. Dhiman account 2.8.2012 no.03872000 Rs.5,00,000/ 002249 of through cheque Sh. Kapil No.299339 trf ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 27 Dhiman. to 2nd Account Rs.5,00,000/ no.0387200000 2249 of Sh.
Kapil Dhiman.
.
On dated 7.8.2012 vide Registry No.1179 dated 07.08.2012 build up commercial building at Deonghat Solan, purchased by Sh.
Kapil Dhiman from Sh. Surender Sethi Rs. 15,00,000/ registration stamp duty Rs. 1,05,000/ total amount spent Rs. 16,05,000/ Rs. 15,00,000/ paid to Surender of Sethi through cheque No.28751 from account No.03872000002249 of the petitioner.
5. rt ELUCIDATION OF THE RESIDENTIAL HOUSE ASHIANA FRIENDS COLONY, CHAMBAGHAT (1ST FLOOR WITH LENTER AND IIND FLOOR BUILT UP BY KAPIL DHIMAN).
That as per Deed No.502 dated 2.11.2006 Shri Friends Colony, Chambaghat regarding first floor of this house, its linter and above linter to initiate all the proceedings/construction to the petitioner. (Enclosed Laxman Dhiman gave the power of attorney of his house in document page No.277 to 284 of the Challan) As per statement of Sunita Dhiman wife of the petitioner, he started the construction of the second floor above the first floor, in the year 200708 and during House checking the residence of the petitioner was found on second floor. As per reply of Smt. FQnita Dhiman wife the petitioner, the petitioner took Rs.2,50,000/ as unsecured loan in the name of Sunita Dhiman from Mukesh Gupta without asking Sunita Dhiman.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 28was deposited by the petitioner in the joint account of him and his wife Sunita Dhiman bearing No.123501000002550, Centurion Bank, who's new HDFC Bank .
Account No. is 03871000054431. The petitioner issued the following cheques out of this account, spent this money on his residential house, Friends Colony, Chambaghat District Solan on the construction of second floor.
of
1. On 19.9.2006 Rs.20,000/ Insurance Installment.
2. On 27.9.2006 vide cheque No.6951 Rs.54088/ JMD Steel, rt
3. On 16.10.2006 cheque No.6952 for Rs.10,000/ JMD Steel,
4. On 17.11.2006 vide cheque No.6955 for Rs.24750/ Goyal Enterprises,
5. On 4.11.2007 vide cheque No.6954 for Rs.30250/ Mahul Enterprises,
6. Dated 23.7.2007 vide cheque No.6960 Rs.7200/ Vishavkarma Furniture,
7. Dated 7.12.2007 vide cheque No.6964 Rs.20,000/Aviva Life Insurance (Enclosed documents page No.295 A to 295 B of the Challan).
Besides this also the petitioner issued a lot of cheques to different shop keepers regarding construction of above house. The operation of this account and cheque book, as per statement of Sunita Dhiman, remained with alleged Kapil Dhiman. (Enclosed documents page No.2606 to 2643 of the Challan).
As per valuation report No.576061 dated 31.7.2013, the Executive Engineer Public Works Department B&R Solan the total value of the building has been calculated Rs.20,82,401/ and the construction of ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 29 the second floor was raised by the petitioner during the check period. His expenditure was calculated Rs.8,64,592/ which has been added in his expenses .
(Encl Documents page No.293 of the Challan).
6. ELUCIDATION OF THE CASH IN HAND: That a meager amount of Rs.1,52,500/ cash was found from the residence of of alleged the petitioner at Ashiana Friends Colony, Chambaghat, Solan which is an nominal amount which was well accounted for in the detailed explanation rt of the bank accounts consecutive with the withdrawals for cash at hand and some firm shaguns which the petitioner use to keep and never spend whenever occasionally received. (Enclosed Documents page 328 to 384 of the Challan).
7. ELUCIDATION OF THE BANK BALANCES/ PPF: Sr. Account No. Name of Bank Closing Annexur No. Balance as e Page on Nos. of 14.12.2012 the challan
1. 55078264148 SBP Chambagaht 2,96,569/ 391437 Salary Solan account
2. 55080149426 SBP Solan 2584/
3. 03871000011 HDFC Bank The 1,77,466/ 438 to 588 Mall Solan 451 4. 03871460000 HDFC Bank The 555/ 452 209 Aakansha Mall Solan (U/G Kapil Dhiman) 5. 03871460000 HDFC Bank The 11870/ 453 226 Samiksha Mall Solan ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 30 (U/G Kapil Dhiman 6. 03872000002 HDFC Bank The 20,889 456 249 Mall Solan .
7. 11891010074 Canera Bank 2899/ 459461 84 Solan
8. 14 (PPF A/ PNB Solan 1,01,606/ 462, 463 No.
9. 12350100000 Centurion Bank 000 464 to 255 Now HDFC 468 00387100005 4431 (New No) of Joint Account of Kapil Dhiman and Dr. Sunita Dhiman (old) rt
10. 01190005207 State Bank of Patiala Panchkula 00100029233 Now SBI 1032 469 to 29 65227149993 6 (New Number Joint A/c Kpil Dhiman and Laxman Dhiman Total 6,15,470/
8. ELUCIDATION OF THE FDRS AND STDRS FDRS/STDRS DURING THE CHECK PERIOD 1.1.2001 TO 14.12.2012.
Sr. FDRs/STDR Date of Investment Remarks Annexure
No. s & Name Opening during Page Nos
check of the
period challan
1. 132 (STDR) 1.4.2011 Rs.10343 485
HP State Co-
op Bank of
Patiala Staff
Chambaghat
::: Downloaded on - 08/11/2023 20:31:01 :::CIS
31
Solan (Kapil
Dhiman
(FDR
NO.220590)
.
2. 132 (STDR) 2010 Rs.18000/- As 491
202348-do- declared
by Kapil
Dhiman in
I to VI
3. 323 (STDR)- Rs.44089/- -do- 497
do
of
4. 254 (TDR) 1.4.2011 Rs.50,000/ -do- 488
HP State Co- -
op Bank of
Patiala Staff
Chambaghat
rt
Solan (Kapil
Dhiman
(FDR
NO.220587)
5. 324 (TDR) 1.4.2011 Rs.25000/- -do- 493
HP State Co-
op Bank of
Patiala Staff
(Akansha
D/o Shri
Kapil -(FDR
NO.220585)
6. 324 (TDR) 1.4.2011 Rs.27250/- -do- 492
HP State Co-
op Bank of
Patiala Staff
Chambaghat
Solan
(Akansha
D/o Sh. Kapil
Dhiman
(FDR
NO.202239)
7. 325 (TDR) 1.4.2011 Rs.27,250 -do- 496
HP State Co-
op Bank of
Patiala Staff
Chambaghat
Solan
::: Downloaded on - 08/11/2023 20:31:01 :::CIS
32
(Muskan D/o
Shri Kapil
Dhiman
(FDR
.
NO.202586)
8. 325 (TDR) 1.4.2011 Rs.27,250 -do- 498
HP State Co-
op Bank of
Patiala Staff
Chambaghat
Solan
(Muskan D/o
of
Shri Kapil
Dhiman
(FDR
NO.202586)
9.
rt
1964401001 7.8.2011 Rs.48321, ---
758/2 (FDR) 250
501 &
504
Canara Bank
Solan (Kapil
Dhiman )
10. STDR 8.4.2004 Rs.45,041 Not shown 513
No.0806209 renewed in I to VI
(State Bank on3.3.20 statement
of Patiala 11 and A&L
Solan) Kapil return
Dhiman
(Renewal
FDR
NO.6511001
7369)
11. STDR 8.4.2004 Rs.41,533/ -do- 514
NO.0806210 renewed -
(SBP Solan)( on3.3.20
Kapil 11
Dhiman
(Renewal
FDR
No.6511001
7278)
12. STDR R A 15.9.200 Rs.50,000/ Not shown 522
No.6502574 7 - A&L return
3138 (SBP
Chambaghat
Solan) Kapil
::: Downloaded on - 08/11/2023 20:31:01 :::CIS
33
Dhiman
13. STDR 24.9.200 Rs.58,787/ -do- 517
A/No.650691 9 -
.
52452
(SBP)Kapil
Dhiman
14. STDR 3.3.2011 Rs.56,899/ Not shown 518
A/No.651100 - in I to VI
08354 statement
(SBP)Kapil and A& L
Dhiman return
of
15. STDR 3.3.2011 Rs.56,899/ -do- 519
A/No.651100 -
08456 (SBP)
Kapil
Dhiman rt
16. STDR 3.3.2011 Rs.56,035/ -do- 520
A/No.651100 -
08570 (SBP)
Kapil
Dhiman
17. STDR 6.3.2009 Rs.55,826/ -do- 521
A/No.650523 -
25572 (SBP)
Kapil
Dhiman
18. FDR A/No. 2.6.2008 Rs.16,953/ -do- 524
3027143506 -
4 Kapil
Dhiman (Unit
Trust of India
19 FDR A/No. 2.6.2008 Rs.10,337/ -do- 525
3027143506 -
4 Sunita
Dhiman (Unit
Trust of India
20. FDR 2005 Rs.30,000/ As 970
Akansha - declared
U/G Kapil by
Dhiman accused in
HDFC Solan I to VI
statemnent
21. FDR 2005 Rs.12,000/ -do- -do-
::: Downloaded on - 08/11/2023 20:31:01 :::CIS
34
Samiksha -
Dhiman U/G
Kapil
Dhiman
.
HDFC Solan
22. FDR Kapil 2005 Rs.95,000/ -do- -do-
Dhiman -
HDFC Solan
That the petitioner has completely of provided all the information and has described in detail the HDFC Bank FDR in his name and in the name of his children in his I to VI Statement. On the rt basis of which the above amount has been mentioned.
9. ELUCIDATION OF HOUSEHOLD ARTICLES:
That as per the inventory of household articles founded during house/residence of the petitioner as per seizure memo:
Radio, TV, VCR, Tape Recorder, Typewriter, Personal Computer Radio, TV, VCR, Tape Recorder, Typewriter, Personal Computer etc., Electric Gadgets geyser, Washing Machine, Refrigerator, Freezer, Oven, Micro Oven, Mixture, other kitchen gadgets, Projector, Camera slide projector and TODAY, gadgets, Sony Handi Cam, Pens, Paintings and other valuable articles Total amounting to Rs,7,15,717/
10. WINE FOUND DURING RAID IN THE RESIDENCE OF SH. KAPIL DHIMAN.
That during house search of the petitioner the different brands of whiskey as stated above was recovered from the ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 35 house of the petitioner. In this regards the petitioner submits that the same was kept and collected as a hobby and the number of bottles which were found were .
collected as per year long collectives as pastime of the petitioner. The petitioner does not even drink regularly the bottles were collected for individual pleasure as a sideline interest.
of
13. All these facts have been highlighted by the petitioner to say that the allegations against him are baseless.
rt
14. It is his further case that the prosecution sanction, in this case, was given by the Principal Secretary (Health), Himachal Pradesh, on 17.2.2018, whereas, the petitioner remained under prosecution from year 2012 to 2018. The prosecution sanction has also been challenged that the same has been accorded without application of mind.
15. The petitioner has also sought the relief of quashing of FIR, as well as, proceedings, resultant thereto, on the ground that on 3.2.2018, he has moved an application under the Right to Information Act, seeking the certified copies of the complaints, inquiry reports, and findings on the complaints against him. When, the ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 36 information was supplied, it was found that the complainant was one Rajeev Sharma, resident of VPO .
Kasauli and he has not appeared before the authorities despite the direction by the Director (Health) to appear before it on 8.2.2018.
16. According to the petitioner, if the documents, as of well as, allegations, are taken as it is, then, no case is made out against the petitioner.
rt It has also been highlighted by the petitioner that the prosecution sanction has not been obtained, by the prosecuting agency, for conducting inquiry, as well as, before registration of the FIR.
17. On the basis of the above facts, a prayer has been made to allow the petition, by quashing the FIR, as well as, the proceedings, resultant thereto, which are stated to be pending before the learned trial Court.
18. When put to notice, respondent No.1 has filed the status report, in the shape of reply, disclosing therein that on the basis of the preliminary enquiry conducted by Vigilance Bureau, FIR, in question was registered against the petitioner.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 3718.1. It is the specific case of the respondent that the petitioner was appointed in the year 1991 and his monthly .
salary in the year 201112, was around rupees fifteen thousand, per month. As such, his total salary for the period 1991 till 2012 was approximately rupees seventy five lac, whereas, he has amassed the properties worth of rupees crores, at Solan with all luxurious facilities, one flat worth rupees thirty lac in Sugandha Apartment, one plot at rt Mauja Ber Khas Brewery, One flat, in Dev Bhumi Apartment, landed property at Kullu, one Apartment at Mansa Dev Complex Panchkula, five acre farm house worth Rs.25 crores in village Kot near Ramghar, one plot in Amarwati Enclave Surajpur, Haryana, worth rupees one crore, one house in Marmilappur Baltana Zirkpur, worth rupees fifty lac, one flat worth rupees fifty lac, in Victoria Heights Zirkpur, one factory in the name and style Lyra Lab Pvt. Ltd. Bhurawala, Baddi, One farm house in Nagwain Kullu.
18.2. Apart from it, the petitioner owns 04 vehicles of value worth lakhs of rupees and it has also been mentioned that he is paying rupees two lac annual ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 38 premium for ICICI pru.life policy in the name of his wife.
After enquiry, it was found that the petitioner had acquired .
disproportionate assets to his known sources of income to the extent of 188.82%.
18.3. On merits, the registration of the FIR, as well as, submission of the challan has not been disputed. It is of the further case of respondent No.1, that a CID source report No.21379, was received against three officials rt namely Shri R.K. Chaudhary, Shri Navneet Marwah and Shri Kapil Dhiman, on the allegations that these officials are taking bribe from drug companies and amassing wealth, upon which, the Vigilance Department has conducted the preliminary enquiry and on the basis of preliminary inquiry, FIR, in question was registered with Police Station, SV & ACB, Solan.
18.4. Rest of the allegations, as well as, the elucidation, given by the petitioner, has been denied, on the ground that the petitioner will get reasonable opportunity to rebut the allegations, by way of cross examination of the witnesses, and, even by summoning the witnesses, in his defence.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 3919. On the basis of the above facts, a prayer has been made to dismiss the petition.
.
20. Perusal of the record shows that the police after registration of the FIR, had conducted the investigation and submitted the report under Section 173 (2) Cr.P.C.
Upon the report of the police, learned Special Judge has of taken cognizance and thereafter, the charges have been framed on 16.11.2021, against the petitioner, for the rt commission of the offences punishable under Section 13(1) (E) of the PC Act, read with Sections 109 and 120B IPC.
Thereafter, prosecution has examined, as many as, 89 witnesses.
21. Scope of Section 482 Cr.P.C., has elaborately been discussed by the Hon'ble Apex Court, in the year 1992, in the lead case reported as 1992 CrLJ, 527, titled as State of Haryana Vs. Chaudhary Bhajan Lal & Others, in which, the Hon'ble Apex Court has formulated the guidelines for exercising the powers under Section 482 Cr.P.C. Relevant paragraph 107 of the judgment is reproduced as under: ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 40 "107. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV .
and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be of exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly rt defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate with the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 41 not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FLR do not .
constitute a cognizable offence but constitute only. a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
of
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that rt there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
22. This view has again been reiterated by a three Judge Bench of the Hon'ble Apex Court in Neeharika Infrastructure Pvt. Ltd. Versus State of Maharashtra ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 42 & Others, 2021 SCC Online SC 315. Relevant paragraph 38 of the judgment is reproduced as under: .
38. In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:
of "5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the rt High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 43 alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While .
exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex of debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if rt any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 44 exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable .
or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant of facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass rt any person needlessly. At the same time the section is not an instrument handed over to an accused to shortcircuit a prosecution and bring about its sudden death.....
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hardandfast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 45H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would .
not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that of the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case rt where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 46 accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
.
23. In view of the guidelines, as laid down, by the Hon'ble Apex Court, this Court would proceed to discuss the stand, as taken by the petitioner, in the present petition.
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24. Petitioner has annexed, as many as, 12 documents, along with the petition.
25. rt In order to decide the petition, effectively, only those documents can be considered, the veracity of which is beyond challenge or the documents, which are not in dispute.
26. It is no longer res integra that at the time of deciding the petition under Section 482 Cr.PC, this Court cannot assume the powers of the appeal/revisional Court, nor this Court can act as trial Court. While holding so, the view of this Court is being guided by the decision of Hon'ble apex Court in Chilakamarthi Venkateswarlu & Another versus State of Andhra Pradesh & Another, (2019) 10 Scale 239. Relevant paragraph 15 of the judgment is reproduced as under: ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 47 "15. In exercising jurisdiction under Section 482 it is not permissible for the Court to act as if it were a trial Court. The Court is only to be prima facie satisfied about existence of sufficient .
ground for proceeding against the accused. For that limited purpose, the Court can evaluate materials and documents on record, but it cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
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27. Similar view has also been taken by the Hon'ble Apex Court in S.W. Palanitkar & Others versus State of rt Bihar & Another, (2002) 1 Supreme Court Cases, 241.
28. At the time of deciding the petition, only prima facie case is to be seen and the truthfullness of the allegations are not to be seen. Reference in this regard can be made to the decision of Hon'ble Supreme Court in Rajiv Thapar & Others versus Madan Lal Kapoor, (2013) 3 SCC, 330.
29. Annexure P1 is the certificate of merit, issued by the Secretary General of All India Drugs Controller Officer Conference on 10.10.2004. Annexure P2 is the copy of the FIR, which is sought to be quashed. Annexure P3, is the suspension order passed by the Principal Secretary (Health) to the Government of Himachal Pradesh ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 48 against the petitioner. Annexure P4 is the order passed by the learned Special Judge, Solan, releasing the .
applicant on bail, under the provisions of Section 167(2) Cr.PC. Annexure P5, is the order passed by the Principal Secretary (Health) to the Government of Himachal Pradesh, revoking the suspension of the petitioner. Annexure P6 is of the application for issuance of seizure report and other accounts documents, in the FIR, in question.
rt Annexure P7 is the copy of the memo, by virtue of which, the I.O., had taken into possession 21 documents, which were taken into possession, by the I.O., in this case. Annexure P8, is the notice under Section 254 read with Section 271 of the Income Tax Act, 1961, issued on 5.11.2018, by Income Tax Officer, Solan to the petitioner. Annexure P9, is the prosecution sanction accorded by the competent authority under Section 197 Cr.P.C. in the present case.
Annexure P10 is the summons issued by the Enforcement Directorate to the applicant. Annexure P11 is the copy of the application submitted by the petitioner under Right to Information Act to PIOcumOSD Directorate of Health Safety and Regulation, Shimla2. Along with this ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 49 document, the copy of the complaint, addressed to Hon'ble the Chief Justice, High Court of Himachal Pradesh, as well .
as, letter issued to Rajeev Sharma, has been annexed.
Annexure P12, is the details of movable properties acquired, by the petitioner.
30. Learned counsel for the petitioner could not of point out about the relevancy of these documents for the adjudication of the present case.
rt
31. In this case, it has also been argued by learned counsel for the petitioner that the case is being initiated against him without the proper sanction. However, in view of the documents produced by the petitioner himself i.e. Annexure P9, the said plea is liable to be rejected straightaway, as, the competent authority has accorded the sanction and thereafter, the learned Special Judge has taken cognizance of the offence(s).
32. There is no substance in the arguments of the learned counsel for the petitioner that the prosecution sanction is also required even for investigation. In this regard, the bare provisions of Section 197 Cr.P.C., are reproduced as under: ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 50
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge .
or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of rt commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government"
occurring therein, the expression" Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub section (2) shall apply to such class or category of the members of the Forces ::: Downloaded on - 08/11/2023 20:31:01 :::CIS 51 charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub section will apply as .
if for the expression" Central Government"
occurring therein, the expression" State Government" were substituted.
(3A) Notwithstanding anything contained in sub section (3), no court shall take cognizance of any offence, alleged to have of been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his rt official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.::: Downloaded on - 08/11/2023 20:31:01 :::CIS 52
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for .
which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
33. Sine qua non of the sanction for prosecution, is of for taking cognizance and not for the investigation. The prosecution sanction was accorded on 17.2.2018 and rt thereafter, the cognizance was taken by the learned special Judge on 23.3.2018.
34. So far as the elucidation, as mentioned, in the petition, is concerned, this Court cannot act, as appellate Court, in the proceedings, under Section 482 Cr.PC., as mere mentioning the detail about the manner, in which, he has purchased the property is nothing, but his defence, which will not be considered, at this stage.
35. If the explanation, as mentioned, by the petitioner to the charges, levelled against him, is considered, at this stage, that too, under Section 482 Cr.PC., in that eventuality, it will cause prejudice to the case of the prosecution, as well as, to that of the accused.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 5336. Even otherwise, keeping in view the stage of the trial, it would not be appropriate for this Court to venture .
into the threadbare discussion of the stand, as taken, in the shape of elucidation to the charges levelled/framed against him, that too, without any documentary proof, which is of the nature of admitted documents or the of documents, veracity of which, will be beyond challenge.
37. Regarding the elucidation, which have been rt reproduced above, except the pleadings, there is no document on record, veracity of which is beyond challenge.
Elucidation can only be considered by this Court, under Section 482 Cr.PC., if the same is proved, on the basis of the admitted documents or the documents, veracity of which is beyond challenge.
38. Keeping in view the stage of the trial, this Court is of the view that when, the police, after finding evidence against the petitioner, for commission of the offences, for which, he has been chargesheeted, has filed the report, under Section 173(2) Cr.P.C. Thereafter, learned trial Court, after due application of mind, found a prima facie case against the petitioner and has chargesheeted him.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 54In turn, the prosecution has examined 89 witnesses against him till now.
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39. In the FIR, specific allegations with regard to assessment of disproportionate assets to the known sources of income have been levelled against the petitioner.
The FIR is not the encyclopedia of the whole events and it of is the process, by virtue of which, the criminal machinery is put into motion.
rt After the registration of FIR, on the basis of complaint, the police has levelled allegations against the petitioner under 15 heads. The explanation, which has been given by the petitioner, by way of present petition, is too short to have any bearing upon those allegations, at this stage. The ingredients of all the offences, which have been levelled against the petitioner are made out, primafacie, from the report under Section 173(2) Cr.P.C. As per those allegations, the petitioner has acquired the property disproportionate to his known source of income and on the basis of stand, as taken in the petition, it is very difficult for this Court to even say that no offence is made out.
::: Downloaded on - 08/11/2023 20:31:01 :::CIS 5540. If the stand of the petitioner, as taken in the present petition, is considered, without any documentary .
evidence, then, in that eventuality, there will be no trial, as every accused will come along with explanation to seek quashing of the FIR, as well as, resultant proceedings. The scope of Section 482 Cr.PC, is the limited one and in case, of on bare reading of the case against the petitioner, the prima facie case is made out, in that eventuality, the rt interference in the stream of justice is not permissible.
41. Considering all these facts, the petition is dismissed. Pending application(s), shall also stand disposed of.
42. Record be returned to the quarter concerned under proper receipt.
( Virender Singh ) Judge November 04, 2023(ps) ::: Downloaded on - 08/11/2023 20:31:01 :::CIS