Delhi District Court
C.B.I. vs . Vishwa Vibhuti on 27 November, 2013
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
CC No.16/13
Unique Case ID No.02406R0031751998
C.B.I. Vs. VISHWA VIBHUTI
S/O LATE SH. B.B. SINHA
R/O 178, MUNIRKA ENCLAVE,
NEW DELHI.
RC No. : 1(A)/96 - ACU (VIII)
u/Ss : 13(2) r/w 13(1) (e) of PC Act, 1988
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. AK Ohri and Sh. SK Razvi, Ld. counsels for convict Vishwa Vibhuti.
Judgment delivered on : 22.11.2013
Order on Sentence : 27.11.2013
ORDER ON SENTENCE
Present: Sh. DK Singh, Ld. PP for CBI.
Convict Vishwa Vibhuti is present with Sh. AK Ohri,
and Sh. SK Razvi, Ld. Counsels for the convict.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 1 of 4
Sh. Vishwa Vibhuti has been convicted for the offence u/S
13(1)(e) r/w 13(2) of PC Act, 1988 for having been found in possession of
Disproportionate Assets in the sum of Rs. 13,30,821.50 in RC No. 1(A)/96.
1.0 Sh. DK Singh, Ld. PP has submitted that under instructions of
his department, the convict may be given the maximum punishment.
1.1 Sh. AK Ohri, Adv. assisted by Sh. SK Razvi, Adv., Ld.
counsels for the convict have submitted that convict deserves a lenient view.
It has been submitted that convict has already suffered a lot. He has not only
suffered the agony of trial for 17 years, he also suffered financial loss on
account of this case. It has further been submitted that besides this case,
there was no other allegation or blemish on the convict during the entire
service tenure. Ld. counsel submitted that from the year 1996 to May 2003,
no increment was given to the convict and the promotion due to the convict
in 1994 was also denied. The convict is also not getting full pension and he
has also been denied CGHS benefit. The convict is only being given adhoc
pension of Rs. 6,262/ per month. The convict is around 67 years of age and
his wife is around 63 years of age. Both are suffering from various ailments
and look after each other as out of the three daughters, two are settled in
USA and the third is living with her husband in Delhi. In support of the
medical history, the documents have also been filed. In support of his
contention, Ld. defence counsel has placed reliance on Ramrattan Vs. State
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 2 of 4
through CBI, 2011(2) CC Cases (SC) 126 and M. Krishna Reddy Vs. State
Dy. Supdt. Of Police , AIR 1993 SC 313.
2.0 Corruption is the biggest challenge which this country is facing
at the moment. If a public servant indulges in corruption, besides
accumulation of wealth, the change in his life style is also reflected at large.
In that case, the society watches it and starts developing a sense of distrust
towards the entire government machinery. It also results in abhorrence to the
entire class of public servants. If a public servant is found guilty for
amassing wealth and he is let off leniently, then it may give a very wrong
message to the society at large. The sentencing by the Court is the most
delicate and difficult task. The Court is confronted with the peculiar
problems of an individual and interest of the society at large. If the interest
of an individual and the interest of the society are put on a scale, then
certainly the interest of the society is far more important. Corruption in any
form and of any quantum should be punished severely, so that a message
must go that corruption should never be a profitable business. If the corrupt
people are let off lightly, then the honest public servants also get discouraged
and demoralised. Now a days, the corruption not only creates imbalance in
the society, it also obstructs the development of a nation as a whole. The
convict before this Court, joined government service as a Class I officer. He
was in the Medical Store Department and while being in the government job,
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 3 of 4
he accumulated wealth which has proved to be disproportionate to his known
sources of income. This case become more sensitive in view of the fact that
convict was given a pious duty of acquiring the medicines for the
government hospitals and acquisition of wealth by indulging in corrupt
practices in such a job is very serious.
3.0 In the facts and circumstances, convict Vishwa Vibhuti is
sentenced to rigorous imprisonment for a period of three years and a
fine of Rs.75 lacs in default SI for 6 months u/S 13(1)(e) r/w 13(2) of the
POC Act, 1988 in RC No. 1(A)/96. A heavy fine has been imposed on the
convict as he has been found in possession of disproportionate assets in the
sum of Rs. 13 lakhs as on 1996. Therefore, in 17 years this amount of 13
lakhs, if put to any use or investment would be of huge amount and
therefore, message must go that corruption is not a profitable proposition.
A copy of the judgment alongwith order on sentence be given to
the convict free of cost.
4.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma)
on 27.11.2013 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
.................
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 4 of 4
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
CC No.16/13
Unique Case ID No.02406R0031751998
C.B.I. Vs. VISHWA VIBHUTI
S/O LATE SH. B.B. SINHA
R/O 178, MUNIRKA ENCLAVE,
NEW DELHI.
RC No. : 1(A)/96 - ACU (VIII)
u/Ss : 13(2) r/w 13(1) (e) of PC Act, 1988
Date of Institution : 13.07.1998
Received by transfer on : 29.04.2013
Arguments Concluded on : 12.11.2013
Date of Decision : 22.11.2013
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. A.K. Ohri, Ld. counsel for accused
JUDGMENT
1.0 Sh. Vishwa Vibhuti, joined Govt. Medical Store Department (GMSD), Ministry of Health & Family Welfare, Govt. of India on CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 5 of 4 26.07.1979 as Depot Manager and was promoted to the rank of Dy. Asstt. Director General (DADG) w.e.f. 27.08.82. Sh. Vishwa Vibhuti was subsequently promoted as non functional Asst. Director General (ADG) w.e.f. 15.11.89. He was suspended on 24.07.96 while he was posted as Asst. Director General, GMSD, Calcutta.
Sh. Vishwa Vibhuti got married on 16.06.71 with Smt. Suman Vibhuti and three daughters were born out of the matrimonial wedlock namely Ms. Surabhi Vibhuti (22.01.1973), Ms. Nupur Vibhuti (02.02.1974) and Ms. Pallavi Vibhuti (25.05.76). Ms. Surabhi Vibhuti went to USA for higher studies in August 1996. Ms. Nupur Vibhuti chose the field of Architecture and Ms. Pallavi Vibhuti was pursuing Economics (Hons.) in Kamla Nehru College, Delhi in the year 1995.
On 15.05.1996, RC No.1(A)/96ACU(VII) was registered against Sh. Vishwa Vibhuti u/s.13(2) r/w S.13(1)(e) of PC Act 1988 on the allegations that the accused while functioning as public servant in the capacity of DADG/ADG, GMSD at Hyderabad and Delhi during the period from June 1985 to March 1995, accumulated huge movable and immovable assets in the sum of Rs.72,69,258/ in his name and in the name of members of his family against his known sources of income amounting to Rs. 58,17,998/ during the said period. Pursuant to the registration of the case, the searches were conducted on 13.06.96 and 16.06.96 at the premises of the accused. During the investigation, the check period was fixed from 01.01.85 to 16.06.96. The income, expenditure and assets of the family of accused CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 6 of 4 Vishwa Vibhuti comprising of himself, his wife Suman Vibhuti and 3 daughters Surabhi Vibhuti, Nupur Vibhuti and Pallavi Vibhuti and his mother Shanta Sinha, were taken into account. The assets amounting to Rs. 84,148.80 was found in possession at the time of the beginning of check period.
The investigation revealed that accused Vishwa Vibhuti and members of his family had total income of Rs.58,17,998/ during the check period, the details of which are as follows : S. Particulars of Income Amount (Rs.) No.
1. Salary and other allowance drawn from the department 4,98,446.00
2. GPF Advance 3,00,000.00
3. Income of Smt. Suman Vibhuti from Invinex Laboratories 3,40,970.00
4. Income of Smt. Suman Vibhuti from Vijaya Pharmacy 2,10,000.00
5. Income of Sh. Vishwa Vibhuti and his wife from Gitanjali Chit Fund 34,038.00
6. Income as gift from relatives 10,82,876.00
7. Income from Money Multiplier Scheme 25,984.00
8. Loan borrowed from Invinex Pharmaceuticals 3,00,110.00
9. Sale proceeds of assets (jewellery) 95,000.00
10. Sale proceeds of shares of TISCO 2,583.00
11. Income from M/s. Nulife Labs Limited Hyderabad 76,000.00
12. Interest from banks accrued in various accounts in the following bank 1,78,230.50 accounts in the name of Sh. Vishwa Vibhuti and his family members detailed below: S.N SB A/c No. Name of the Bank A/c holder Name Interest o. Amount (Rs).
1. 15849 Bank of Baroda, Hyderabad Sh. Vishwa Vibhuti 5,871.50
2. 15928 do Smt. Suman Vibhuti 35,907.35 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 7 of 4
3. 16369 do Ms. Pallavi Vibhuti 31,362.65
4. 16370 do Ms. Surbhi Vibhuti 37,001.00
5. 16371 do Ms. Nupur Vibhuti 45,359.00
6. 3798 UCO Bank, Delhi Sh. Vishwa Vibhuti 7,350.00
7. 3799 do Smt. Suman Vibhuti 5,604.00
8. 5810 do Ms. Surbhi Vibhuti
9. 33811 Bank of Baroda, Calcutta Sh. Vishwa Vibhuti 408.00 10. 6890 do do 0
11. 9555 State Bank of India, Mayapuri, Smt. Suman Vibhuti 2,377.00 Delhi.
12. 24116 State Bank of India, Nirman Sh. Vishwa Vibhuti 2,938.00 Vihar, Delhi
13. 1874 Central Bank of India, Varanasi. Joint name of Sh. 4,052.59 Vishwa Vibhuti and Suman Vibhuti
14. Dividends against UTI certificates 2,586.00
15. Income from NSCs 2,73,239.00
16. Interest free loan from Sh. Ravinder Kumar 1,50,000.00
17. Income from Monthly Income Scheme of UTI 2,84,000.00
18. Refund of loan 99,690.00
19. Income as per Income Tax Returns 18,64,246.00 Grand Total 58,17,998.50 or 58,17,998.00 Investigation revealed that accused Vishwa Vibhuti and members of his family had incurred expenses in the sum of Rs. 18,24,605/ during the check period, the details of which are as follows :
S.No. Particulars of Expenditure Amount (Rs.)
1. Kitchen Expenses 1,67,536.00
2. Education Expenses 1,76,234.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 8 of 4
3. Fee for registration of immovable property 85,792.00
4. Expenses in respect of H.No.G08 Mount Nasir Apartment, Hyderabad:
A. Maintenance 18,250.00
B. House Tax 10,495.00
5. Expenditure for booking of flat in Eastend Apartment, New 4,50,110.00
Dwlhi.
6. Club expenses 20,075.00
7. House Rent 1,62,050.00
8. Rent for Airconditioners 18,000.00
9. Payment of Telephone Bills 10,717.00
10. Road Tax 2,050.00
11. Losses on disposal of assets 25,131.00
12. Transaction towards export business 2,37,364.00
13. Advance for House construction 1,60,000.00
14. Repairing Expenses 20,000.00
15. Payment as Income Tax, Wealth Tax 2,60,801.00
Total 18,24,605.00
Investigation further disclosed that at the end of the check period, accused Vishwa Vibhuti and the members of his family had immovable assets in the sum of Rs.17,43,100/ and the entire assets including movable assets including the bank accounts was Rs.59,78,393/, the details of which are as follows :
Immovable Assets Sl. No. Detail of Properties Amount (in Rs.)
1. Flat No.G08, Mount Nasir Apartment, Saifabad, Hyderabad in the name of Smt. Suman Vibhuti 240,000.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 9 of 4
2. Plot No.11 at Jublee Hills, Hyderabad in the name of Ms. Surabhi Vibhuti 65,100.00
3. Plot No.10 at Jublee Hills, Hyderabad in the name of Ms. Nupur Vibhuti 43,000.00
4. Flat No.178, Munirka Enclave, New Delhi in the name of 9,00,000.00 Smt. Shanti Sinha, mother of Vishwa Vibhuti
5. Farm land situated at Sona district of Gurgaon, Hyderabad in the name of Smt. Suman Vibhuti and her three daughters 495,000.00 TOTAL 17,43,100.00 Movable Assets Sl. No. Details Amount (in Rs.)
1. Car No. DL 4CC 4682 in the name of Smt. Suman Vibhuti 265,448.00
2. Computer Hardware associated peripherals 38,720.00 TOTAL 304,168.00 Bank Accounts as on 16.06.96 Sl. No. Detail of Properties Amount (in Rs.) Bank Account in the name of Sh. Vishwa Vibhuti a. SB A/c No.15849 maintained in the Bank of Baroda, Hyderabad 10,961.00 b. SB A/c No.3798 maintained in UCO Bank, Som Vihar, New Delhi. 16,062.00 c. SB A/c No.33811 in Bank of Baroda, Calcutta 35,584.00 d. SB A/c No.6890 maintained in Bank of Baroda, Calcutta 500.00 e. SB A/c No.24116 maintained in SBI Nirman Bhawan, New Delhi. 9,174.18 TOTAL 72,281.18 Bank account in the joint names of Vishwa Vibhuti & Suman Vibhuti CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 10 of 4 a. SB A/c No.1874 in Central Bank of India, Lanka Branch, Varanasi 20,174.00 Bank account in the name of Suman Vibhuti a. SB A/c No.15928 maintained in Bank of Hyderabad 13,732.98 b. SB A/c No.3799 maintained in United Commercial Bank, N.D. 19,816.00 c. SB A/c No.9555 maintained in Syndicate Bank, Mayapuri 8,191.90 Bank account in the name of daughters of Vishwa Vibhuti operated by Smt. Suman Vibhuti a. SB A/c No.16369 in the name of Ms. Pallavi Vibhuti,Bank of Baroda, Hyderabad 3,231.54 b. SB A/c No.16370 in the name of Ms. Surabhi Vibhuti in Bank of Baroda, Hyderabad 22,389.87 c. SB A/c No.16371 in the name of Ms. Nupur Vibhuti in Bank of Baroda, Hyderabad 3,287.99 In the name of Ms. Surabhi Vibhuti operated by herself a. SB A/c No.5810 in Bank of Baroda, Hyderabad 17,976.00 In the name of Span Exports Private Limited Co.
a. Current A/c No.2643 in Vijaya Bank, Luxa Road Branch, Varansi. 169,958.00 TOTAL 351039.46
9.
Sl. No. Name Unit Certificate No. Amount (in
Rs.)
1. Sh. Vishwa Vibhuti 304940010014247 190,000.00
2. Ms. Surabhi Vibhuti 304940010014248 190,000.00
3. Ms. Pallavi Vibhuti 304940010014249 380,000.00
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 11 of 4
4. Ms. Nupur Vibhuti 304940010014246 380,000.00
TOTAL 1,140,000.00
10. NSCs
Sl. No. Name Year Mode of Payment Amount of NSC
1. Sh. Vishwa Vibhuti 198990 Cash was withdrwan on
22.10.89 vide cheque No.
2305 from Bank of Baroda,
Hyderabad 10,000.00
2. Sh. Vishwa Vibhuti 199192 Cash 10,000.00
3. Sh. Vishwa Vibhuti 199293 Cash 10,000.00
4. Sh. Vishwa Vibhuti 199394 Cash 10,000.00
5. Sh. Vishwa Vibhuti 199596 Cash 6,000.00
6. Smt. Suman Vibhuti 199293 Cash 10,000.00
7. Ms. Surabhi Vibhuti 198889 Vide cheque No.6487 from
SB A/c No.16320 BOB,
Hyderabad 10,000.00
8. Ms. Nupur Vibhuti 198889 Cash 10,000.00
9. Ms. Pallavi Vibhuti 198889 Cash 10,000.00
TOTAL 86,000.00
11. Other Investments
Sl. No. Details Amount
i) Shares of Invinex Laboratories purchased in the name of Sh.
Vishwa Vibhuti, Suman Vibhuti, Surabhi Vibhuti, Nupur and Pallavi Vibhuti 100,000.00 Investment by Sh. Vishwa Vibhuti
ii) Investment in UTI vide cheque No.102310 dt. 11.02.90 6,000.00
iii) Investment in UTI (UGC) vide cheque No.0245958 dt. 23.09.91 5,000.00
iv) Investment in UTI Mastergain 92 vide cheque No.568411 dt.
07.05.92 20,000.00
v) Investment in SBI Mutual fund vide cheque No.245946 dt.
10.11.1990 10,000.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 12 of 4
vi) Deposits with Penzy Pharmaceuticals Limited which were subsequently treated as interest free loan to Sh. PD Narang, Prop. Of the firm :
A) Vide cheque No.669001 dt. 03.05.94 25,000
B) Vide cheque No.669005 dt. 02.08.94 50,000 75,000.00
vii) With M/s. Jamia Cooperative Bank Limited vide Cheque No.
669007 10,000.00
viii) Interest free loan to Ms. Nelopher Khan 100,000.00
Investments by Smt. Suman Vibhuti and her three daughters
ix) Interest free to Sh. Ushaq Ahmed vide cheque No.6363 of Bank of Baroda. 75,000.00
x) Interest free loan to Sh. Farath Khan vide cheque No.6493 70,000.00
xi) Investment with different cos. And under different schemes Sl. Name of the firm Cheque No. & Date Name of the Bank Amount No. & Account No. (rs.) 1 Nu Life Laboratories 636830 dtd. 8.2.95 for UCO Bank A/c No. 2,00,000.00 Hyderabad Rs.1,00,000/. 3799 and 16370 Cheque No. 21263 & BOB, Hyderabad 21264 for Rs.50,000/ each 2 Jamia Cooperative Bank, 636827 dtd. 23.8.94 UCO Bank A/c No. N.D. 3799 5000 3 C.S. Enterprises 000367 dtd. 11.6.92 Bank of Baroda A/c No. 15928 17000 4 C.S. Enterprises 568495 dtd. 11.6.92 17000 5 C.S. Enterprises 216475 dtd. 11.6.92 UCO Bank A/c No. 3799 17000 6 C.S. Enterprises 216496 dtd. 11.6.92 Bank of Baroda A/c No. 16370 17000 7 C.S. Enterprises 216579 dtd. 11.6.92 Bank of Baroda A/c No. 16371 17000 8 SB Mutual Fund 216470 dtd. 10.11.90 Bank of Baroda A/c No. 16369 10000 9 SB Mutual Fund 216490 dtd. 10.11.90 Bank of Baroda A/c No. 16370 10000 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 13 of 4 10 SB Mutual Fund 216572 dtd. 10.11.90 Bank of Baroda A/c No. 16371 10000 SB Mutual Fund 163772 dtd. 10.11.90 Bank of Baroda A/c 11 No. 15928 10000 UTI Mastergain 92 UTI 568493 dtd. 7.5.92 UCO Bank A/c No. 10,000 12 US64 26.7.88 3799 6,600 UTI US 64 021258 dtd. 26.12.94 Bank of Baroda A/c 13 No. 16371 69116 UTI US 64 021246 dtd. 31.12.94 Bank of Baroda A/c 14 No. 16369 69116 UTI US 64 036561 dtd. 31.12.94 Bank of Baroda A/c 15 No. 15928 34632 UTI US64 021269 dtd. 31.12.94 Bank of Baroda A/c 16 No. 16370 34632 Sri Vijaya Pharmacy 216576 dtd. 14.4.92 Bank of Baroda A/c 1,00,000 17 No. 16371 do 216494 dtd. 10.4.92 Bank of Baroda A/c 1,00,000 18 No. 16370 do 216473 dtd. 10.4.92 Bank of Baroda A/c 1,00,000 19 No 16369 do 000364 dtd. 14.4.92 Bank of Barod A/c 1,00,000 20 No. 15928 Invinex Laboratories Ltd. 038401 dtd. 24.3.95 Bank of Baroda A/c 21 No. 16370 25000 do 021260 dtd. 28.2.95 Bank of Baroda A/c 22 No. 16371 25000 do 021248 dtd. 4.1.95 Bank of Baroda A/c 23 No. 16369 25000 Invinex Pharma By cash 8.6.92 BOB, Hyderabad A/c 21280 debited on No. 15928 24 24.11.94 55000 25 Hindustan Lever Ltd. Cash 9293 Smt. Suman Vibhuti 17500 26 Jai Prakash Industries Ltd. Cash 9293 do 7200 27 Deep Pharma Shares Cash 8687 do 1000 TISCO Spn. Cheque No. 568494 UCO Bank A/c No. 28 3799 10000 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 14 of 4 29 UTI MEP 95 Cheque No. 036593 BOB 15928 10000 30 do Cheque No. 036594 BOB 15928 10000 31 do Cheque No. 0212259 BOB 16371 10000 32 do Cheque No. 212247 BOB 16369 10000 M/s Suvign India 568497 dtd. 12.11.92 UCO Bank A/c No. 33 3799 25000 Guracurse Pvt. Ltd. Cash 199495 Miss Surabhi, Nupur, 1,00,000 Pallavi and Smt. 34 Suman Vibhuti
12. House Hold Items
(i) Furniture 9,930.00
(ii) Clothes 12,700.00
(iii) Watches 3,900.00
(iv) Cosmatics 2,100.00
(v) Electronic items 1,01,850.00
(vi) Electrical items 14,300.00
(vii)Room Decorating items 4,320.00
(viii) Kitchen crockery items 8,500.00
(ix) Stationary items 2,840.00
(x) Ornaments 1,950.00 Total 1,62,390
13. Cash Amount
(a) Recovered during raids conducted by Income Tax Rs.2,50,000.00 Department on 14/3/95.
(b) Recovered during house search conducted by CBI Rs.1,85,000.00 on 13.6.96.
Grand Total = Rs. 59,78,393.00 The total assets at the end of the check period was Rs. 59,78,393/.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 15 of 4
Assets at the beginning of the check period in the name of the accused and the members of his family are as follows: ITEMS COST 50% share in ancestral house No.8 Mahamana Puri, BHV Varanasi. Not taken into account Movable Assets A. Bank Accounts Balance as on 31/5/85
1) SB A/c No.IC205 State Bank of India, Industrial Estate, Varanasi in Rs. 774.77 the name of Sh. Vishwa Vibhuti
2) SB A/c No. 24116 with the State Bank of India, New Delhi in the name Rs.4350.70 of Sh. Vishwa Vibhuti.
3) SB A/c No. 9555 with Syndicate Bank in the name of Sh Vishwa Vibhuti Rs.5714.90
4) SB A/c No. 1874 with Central Bank of India, Varanasi in the joint names Rs. 539.43 of Sh. Vishwa Vibhuti and Smt. Suman Vibhuti.
Total Rs.11,379.80
B. NSCs
5) In the name of Sh. Vishwa Vibhuti purchased during 198283 Rs.3000.00
6) In the name of Sh. Vishwa Vibhuti purchased during 198384 Rs.10000.00
7) Money Multiplier Scheme in the name of three daughters namely Rs.12000.00
Surabhi, Nupur and Pallavi Vibhuti.
Total Rs.25000.00
C. Household articles
8) Furniture Rs.14,750.00
9) Clothes Rs. 4,100.00
10) Kitchen items Rs. 425.00
11) Electrical items Rs. 6,900.00
12) Ornaments Rs.21,344.00
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 16 of 4
13) Watches Rs. 250.00
Total Rs.47,769.00
Grand Total Rs.84,148.90
The investigation conducted by the CBI concluded that accused had disproportionate assets in the sum of Rs.19,00,851/ which has been calculated as follows :
i) Assets at the end of the check period Rs.59,78,393.00
ii) Assets at the beginning of the check period Rs. 84,149.00
iii) Assets acquired during the check period Rs.58,94,244.00 [(i) - (ii)]
(iv) Expenses incurred during the check period Rs.18,24,605.00
(v) Total of assets acquired & expenses incurred Rs.77,18,849.00 during the check period. [(iii) + (iv)]
(vi) Income during the check period Rs.58,17,998.00
(vii) Extent to which the assets and expenses are Rs.19,00,851.00 disproportionate to income [(v) (vi)] CBI filed the chargesheet on 13.07.98 and the cognizance was taken by my Ld. Predecessor on 05.08.98. After compliance of S.207 Cr.P.C.
my Ld. Predecessor fixed the case for admission / denial of documents. Accused vide his detailed statement recorded on 17.09.2002 and 18.09.2002 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 17 of 4 admitted 175 documents (Ex.P1 to P175), the details of which have not been reproduced herein for the sake of brevity.
CHARGE 2.0 Being a prima facie case, charge u/S.13(2) r/w 13(1) (e) of PC Act, 1988 was framed on 19.04.2005 to which accused pleaded not guilty and claimed trial. The said order on charge was challenged by the accused before the Hon'ble High Court through a revision petition in Cri.Revision No.730 of 2005. In this revision petition, Hon'ble High Court vide order dated 06.10.2005 was pleased to observe that the trial court may, if so required, amend / alter the charge to include the mandate of S.13(1)(e) of the Act. Pursuant to this, the accused moved an application dated 22.11.05 for reconsideration of charge and this application was dismissed by my Ld. Predecessor vide detailed order dated 12.04.2006. The accused challenged both these orders before the Hon'ble High Court and the plea of the accused was rejected by the Hon'ble High Court vide detailed order dated 06.07.2012.
PROSECUTION WITNESSES 3.0 It is noteworthy that prosecution had cited 110 witnesses in all, however since good number of documents were admitted by the accused, the CBI was directed to file the amended list of witnesses. CBI filed the amended list of witnesses on 03.10.2012 reducing the number of witnesses CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 18 of 4 to 61. Prosecution however, chose to examine only 21 witnesses and closed its evidence on 23.09.2013.
The brief description of the witnesses are as follows :
PW1 Sh. RV Kotnala, an official of Punjab National Bank handed over the documents related to M/s. Shiva Investments and M/s. Shiva Medium to the investigation officer.
PW2 Dr. Neeraj Raj Managing Director of M/s. Medrc Edutech Ltd. deposed regarding sale of his flat bearing number G108, Nasar Manzil Complex, Saifabad, Hyderabad, to Mrs. Suman Vibhuti in the year 1987 for a total consideration of Rs.2.40 lacs and handed over the possession to her. Since the property had not been mutated in the name of Dr. Neeraj Raj, the agreement took place directly between M/s. Kohinoor Builders and Mrs. Suman Vibhuti. The flat was transferred in the name of Mrs. Suman Vibhuti at the request of Dr. Neeraj Raj.
PW3 Sh. Harsh Malviya was posted as Section Officer in Ministry of Health & Family Welfare from the year 1984 to 2004 and was looking after Establishment and General Administration matters. He had handed over to CBI the personal file and service book of the accused. The witness proved the service book of accused (D2) already admitted Ex.P1 as Ex.PW3/A. It is pertinent to mention here that Ld. Defence counsel at this stage specifically stated that there is no dispute regarding the rank which the accused was holding during his service tenure. The personal file (D3) CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 19 of 4 already admitted Ex.P2/1 and P2/2 has also been proved as Ex. PW3/B. The communication dated 10.02.93 (D3) pertaining to pay fixation of accused w.e.f. 15.11.89 was specifically proved as Ex. PW3/C. Similarly, the charge assumption report in respect of accused from the post of DADG to ADG w.e.f. 15.11.1989 has been proved as Ex. PW3/D and Ex.PW3/E. The office order dated 22.07.1991 pertaining to transfer order of accused from Hyderabad to New Delhi has been proved as Ex. PW3/F. The witness deposed on oath, after seeing the whole file D3 running into 71 pages, that accused Vibhuti had not submitted any intimation to the department regarding any private business being conducted by him or any of his family members nor did the accused had informed that his daughters were running any business in the name & style of Vijaya Pharmacy, Hyderabad or the members of his family were directors. The accused had also not given any intimation relating to acquisition of any property or of his intention to acquire any property upto 05.01.1996.
In the cross examination, the witness admitted that Immovable property returns as on 01.01.95 to 01.01.96 are available in D3 which relates to the house in Varanasi. During cross examination itself, the witness was shown the photocopy of intimation dated 29.07.91 given by accused to DGHS New Delhi regarding engagement in business by his wife Mrs. Suman Vibhuti, Mark PW3/DA. The witness stated that this communication is not part of file (D3 Ex.P2/1 and Ex.P2/2), Ex.PW3/B. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 20 of 4 PW4 Sh. Hemkesh Parashar an official from State Bank of Hyderabad handed over statement of account of account No.910 of Sh. D. Vittal Rao from the period 26.10.90 to 30.04.91, Ex.PW4/B which was seized vide seizure memo Ex.PW4/A. It is pertinent to mention here that the cheque dated 20.11.90 in favour of Sh. D. Vittal Rao was issued by Mrs. Suman Vibhuti wife of accused from her account No.16370 and the same pertains to item No.2 of immovable assets i.e. plot No.11 at Jubilee Hills, Hyderabad in the name of Ms. Surabahi Vibhuti daughter of accused. The transaction has been admitted by the accused as per document (D21) i.e. Ex.P48. The cheque dated 20.11.92 of Rs.65,100/ has also been admitted as Ex.P50 (D23).
PW5 Sh. Chet Ram, Commissioner Income Tax Department had conducted search on the residential premises of accused at Munirka in March 1995 upon warrant of search being assigned to him. At the time of search, the accused and members of his family were present. The witness stated that around Rs.3.50 lacs cash and Jewellery of more than Rs.5 lacs but less than Rs. 5.50 lacs was recovered of which the panchnama was prepared. The cash recovered from the house was seized, however the jewellery was not seized because it was found within the permissible limits of 500gms per lady as laid down by CBDT. The witness deposed that during search one Mr. G P Srivastava was also present and some cash amount was recovered from his personal search. The valuation of the jewellery seized CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 21 of 4 was got assessed by Govt. approved Valuer. The photocopy of the valuation report was proved as Ex.PW5/A. Interestingly, the witness was also shown a letter dtd. 29/12/95 written by Smt. Suman Vibhuti to Asst. Commissioner of Income Tax (investigation) Company Circle IV(1), Hyderabad in response to a show cause notice dtd. 13/12/95 relating to the raid conducted on 14/3/95 by the prosecutor. It was noticed that search warrant and panchnama were not available on record. In the cross examination, the witness stated that he was only part of the investigating team and assessment was not done by him. The witness admitted that out of the total recovered cash of Rs. 3.50 lakhs only Rs. 2.50 lakhs was seized.
PW6 Sh. Amarjeet Chopra had sold flat No. 178, Munirka Enclave, New Delhi to Smt. Shanti Sinha wife of Sh. BB Sinha (mother of the accused) for Rs. 9 lakhs and handed over the vacant possession of the same to her. Sh. Amarjeet Chopra proved the deposit of demand draft dtd. 28/11/92 of Rs. 8,50,000/ in his account on 12/12/92 vide pay in slip Ex.P51. During cross examination, the witness was confronted with the photocopy of receipt duly signed by him Ex.PW6/DA which reflected that entire consideration of Rs. 9 lakhs was paid by demand drafts and cheques.
PW7 Sh. Satpal Sharma the then Asst. Postmaster in Sarojini Nagar, Postoffice proved the communication dtd. 3/7/96 signed by him as Ex.PW7/A. The witness proved the purchase of NSC in the sum of Rs. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 22 of 4 10,000/ on 16/1/93 by Smt. Suman Vibhuti and proved the copy of purchase application as Ex.PW7/B. PW8 Sh. Jaya Ram Kar the then Syndicate Bank official proved the deposit of demand draft of Rs. 8,50,000/ in the account of PW6 Sh. Amarjeet Chopra on 12/12/92. The statement of account was proved as Ex.PW8/C and the communication pertaining to this has been proved as Ex.PW8/A and Ex.PW8/B. PW9 Sh. CS Das, witness from the office of the accused furnished the salary particulars and allowances for the period 1985 to 1991. The witness proved certificate dtd. 10/7/96 (already admitted P28/2) as per which it was certified that from the revenue of the relevant record it was seen that no loan and advances were sanctioned and drawn by accused during his tenure as DADG(MS) from 27/6/85 to 24/7/91. The particulars of pay and allowances drawn by accused during this period already admitted document Ex.P28/3 was also duly proved.
PW10 Sh. Ramesh Chander Aggarwal Director of M/s Invinex Pharmaceuticals Pvt. Ltd. deposed on oath that the company was established on 21/4/92. PW10 stated that he knew Smt. Suman Vibhuti as she was a family friend and was Director in the company since 1/8/92. PW10 stated that Smt. Suman Vibhuti had invested Rs. 5,000/ in the above mentioned company. The witness proved the details of travelling expenses, remuneration, daily allowance, Director sitting fees for the period 1/4/92 to CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 23 of 4 31/5/96 on the basis of admitted document Ex.P103/3 to Ex.P103/16 (total of which comes to Rs. 4,98,745/). The prosecution proved through PW10 that Smt. Suman Vibhuti had borrowed a loan of Rs. 3,00,110/ from M/s Invinex Pharmaceuticals as per document Ex.P103/1. The witness also proved that in January 1996, 4000 shares each were allotted to accused, his wife, three daughters and one Sharda Lal in the sum of Rs. 20,000/ each for which the payment was made on 23/4/96. It is pertinent to mention here that M/s Invinex Pharmaceuticals was established on 21/4/92 and Smt. Suman Vibhuti was appointed as Director w.e.f. 1/8/92. The cheques vide which investment were made in Invinex Laboratories in the name of accused, his wife, daughters and one Sharda Lal in the sum of Rs. 1 lakh has been proved as Ex.P95 to Ex.P97. All the cheques have been issued by Smt. Suman Vibhuti from her different accounts bearing No. 16369, 16370 and 16371. In the cross examination, the witness admitted that Smt. Suman Vibhuti had invested Rs. 50,000/ with M/s Invinex Pharmaceuticals on 15/10/94. It also came on the record that all the remuneration, TA/DA and Director sitting fees were paid through cheque to Smt. Suman Vibhuti.
PW11 Sh. Sujit Kumar Roy proved that a GPF Loan of Rs. 3 lakhs was sanctioned to accused for his daughter's higher education vide letter dtd. 22/5/96 (Ex.P25/1). This cheque was duly deposited by accused in his SB A/c No. 33811. The witness also proved that certain documents were seized from him vide seizure memo Ex.PW11/B. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 24 of 4 PW12 Sh. K Ravi Naik from Unit Trust of India proved the investment made by wife and daughters of the accused as reflected in item No. 9 of the Assets at the end of the check period. The cheques relating to the transactions as listed in item No. 9, has also been admitted as Ex.P62, Ex.P63 and Ex.P64.
PW13 Sh. DP Maurye, Asst. Finance Officer, DESU proved the letter dtd. 13/9/96 as Ex.PW13/A vide which the details of electricity bill of the period July 1991 to June 1996 relating to Flat No. D104, Som Vihar, New Delhi and the details of electricity bills for the period April 1994 to June 1996 in respect of Flat No. 178, SFS, Munirka were handed over to CBI. The witness stated that the list was prepared on the basis of factual bill maintained in the office. It came on the record that the electricity connection at D104, Som Vihar was installed in the name of Sh. SN Luthra. Interestingly, in the expenditure, there is no mention about the payment of electricity bills. There is also nothing on the record to suggest that during which period, the accused or the members of his family resided in Flat No. 104, Som Vihar, New Delhi.
PW14 Sh. CV Surya Prakash proved the income tax returns of Smt. Suman Vibhuti handed over by him to CBI for the AY 198788 to 199596. The witness proved the net income of Smt. Suman Vibhuti alongwith taxable income and tax paid for the FY 198687 to 199495 as follows: CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 25 of 4 Date of Year Net Income Deduction Taxable Tax Paid filing of (Rs. ) (Rs.) Income (Rs.) income tax (Rs.) 28/2/90 198687 19,640 340 19,300 325 28/2/90 198788 22,115 722 21,393 848 28/2/90 198889 34,320 13,850 20,470 692 17/11/90 198990 34,625 10,000 24,630 1,356 28/8/91 199091 38,355 10,000 28,355 1,270 23/3/93 199192 71,785 33,000 38,785 4,668 28/2/94 199293 1,04,942 7,000 97,942 17,901 30/11/94 199394 2,04,053 10,000 1,94,053 65,817 March'95 199495 2,67,311 38,482 2,18,829 68,661 It came in the testimony of the witness that returns have been filed by the assessee Smt. Suman Vibhuti on the basis of self assessment. The witness also stated that Smt. Suman Vibhuti had shown rental income from G08, Mount Naseer Apartments, Saifabad, Hyderabad as well as income from her profession as interior decorator, income from Invinex Pharmaceuticals Pvt. Ltd and Vijaya Pharmacy. In the cross examination, the witness admitted that the balance sheet of Smt Suman Vibhuti are not available for the AY 198990, 199091, 199192 and 199495. Similarly, the witness stated that the balance sheet and capital account of Ms. Surabhi Vibhuti are available from 31/3/91 to 31/3/93 and for the AY as on 31/3/95. The balance sheets and capital gain in respect of Ms. Nupur Vibhuti are available for the year ending 31/3/93 to 31/3/95 and in CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 26 of 4 respect of Ms. Pallavi Vibhuti for the AY 199192, 199293 and 199596, the balance sheet and capital gain are available. The witness also admitted that he has not been shown the income tax returns of Smt. Suman Vibhuti and his three daughters as on 31/3/96.
PW15 Sh. L. Bhushanam proved the seizure memo vide which the income tax returns pertaining to M/s Shree Vijaya Pharmacy and M/s Invinex Pharmaceuticals Pvt. Ltd. were seized, as Ex.PW15/A. The return filed by M/s Shree Vijay Pharmacy for the AY199495 reflects salary amount paid to Smt. Suman Vibhuti and similarly, the returns filed by M/s Invinex Pharmaceuticals Pvt. Ltd., for the AY199394, 199495 and 199596 reflected the details regarding tax paid and Director salary for 03 years in respect of Smt. Suman Vibhuti. The witness stated that the returns were filed on the basis of voluntary statement. In the cross examination, it came that the documents as mentioned in seizure memo Ex.PW15/A were not available.
PW16 Sh. G. Laxminarayana an official from Canara Bank proved the handing over of certain documents to CBI during the course of investigation vide letters / seizure memo Ex.PW16/A to Ex.PW16/F. PW17 Sh. BP Bagchi the then DSP had assisted the investigation officer and proved the seizure memo, vide which the documents were seized during the course of investigation as Ex.PW17/A to Ex.PW17/D. In the cross examination, the witness admitted that during the course of investigation, he had examined Sh SC Mittal and Sh. Praveen CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 27 of 4 Kumar Mittal. Sh. SC Mittal in his statement had stated about the sum of Rs. 14,123/ sent to Smt. Suman Vibhuti vide his communication dtd. 30/4/96 through a draft and similarly, Ms. Nupur Vibhuti was also paid a sum of Rs. 13,717/ vide a draft sent to her vide a covering letter dtd. 30/4/96. PW17 admitted the details of the payment made to Ms. Nupur Vibhuti. It also came in the cross examination of this witness that Sh. Praveen Kumar Mittal stated that he paid service charges of Rs. 1,01,745/ to Ms. Surabhi Vibhuti which constituted 3.5% of the value of the order and this amount was paid to her through a draft dtd. 30/4/96 of PNB, Indira Nagar Branch. Similarly, a sum of Rs. 2,05,200/ was paid by a draft dtd. 30/4/96 to Smt. Suman Vibhuti which was 6% of the value of the work through draft alongwith the letter. This letter dtd. 30/4/96 finds mention in document Ex.PW17/C. PW18 Sh. Subhash Chander Banerjee simply stated that he got installed air conditioners at the residence of accused in the salt lake area. The witness stated that he had got installed air conditioners at the instructions of the accused. In the cross examination, the witness stated that accused had already made the payment of the air conditioners.
PW19 Sh. Shyam Singh had also taken part in the investigation and proved the receipt memo and seizure memo as Ex.PW19/A to Ex.PW19/F. PW20 Sh. Harender Pal Singh IO stated that during the course of investigation, he collected the documents vide receipt memo / CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 28 of 4 seizure memo proved as Ex.PW20/A to Ex.PW20/S2. IO stated that the check period in this case was fixed from 1/6/85 to 16/6/96 and the investigation revealed that the assets before the check period was Rs. 84,148.80 and the income of the accused and the members of his family during the check period was found to be Rs. 58,17,998/ from all sources of income and during this period accused had incurred and expenditure of Rs. 18,24,605/. IO stated that accused and members of his family were found in the possession of assets in the sum of Rs. 59,78,393/ at the end of the check period and thus, he was found having disproportionate assets in the sum of Rs. 19,00,851/. IO stated that he had given sufficient time to the accused to explain his income, expenditure and assets, however, after considering the explanation given by the accused and after taking into account all the explanation given by the accused, the accused was found in possession of the the above said disproportionate assets. In the cross examination, IO admitted that he had seized a copy of the letter dtd. 29/30791 addressed to Director General of Health Services, New Delhi signed by the accused in respect of the intimation regarding business of his wife vide seizure memo Ex.PW20/DA. The photocopy of letter was identified to be Mark PW3/DA. IO was unable to give any reason as to why this information was not reflected by him in the records filed by him in the Trial Court. IO also admitted that he had also recorded the statement of Smt. Shanta Sinha, mother of the accused, in which she had stated about the sale of her istridhan, gold, silver and her savings for purchase of H. No.178, Munirka CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 29 of 4 Enclave. IO also admitted that Smt. Shanta Sinha had stated that for the purchase of this house she had taken Rs. 1,20,000/ from Smt. Suman Vibhuti and Rs. 25,000/ from accused Vishwa Vibhuti, which was adjusted by her against the rent of Rs. 3,000/ per month charged from the accused. IO admitted that the bank account of Smt. Shanta Sinha Ex.P52/1, shows a debit of Rs. 8,51,500/, which was for purchase of demand draft of Rs. 8,50,000/ used for the purpose of above house at Munirka. He also stated that credits regarding encashment of told, silver, stridhan and saving of Smt. Shanti Sinha has also been reflected in her bank account on 28/11/92 as "by transfer". IO stated that he did not investigate about the origin of the above transfers from any bank during the investigation of this case. IO stated that he had shown the above asset in the name of accused Vishwa Vibhuti in the chargesheet as he did not consider it conclusive. IO stated that he had calculated income of Smt. Suman Vibhuti and her three daughters namely Ms. Surabhi Vibhuti, Ms. Nupur Vibhuti and Ms. Pallavi Vibhuti as Rs. 18,64,246/ on the basis of income tax returns filed by these ladies. IO stated that its probably the gross income, he had taken into account, and probably the income tax returns of the four ladies were taken for the check period. IO admitted in the next line that ITR of Smt. Suman Vibhuti and her three daughters were collected only upto 31/3/95. He admitted that he did not collect the ITR of Smt. Suman Vibhuti and three daughters for the period 1/4/95 to 16/6/96. However, IO stated that he had analysed all the bank accounts of accused and members of his family and taken the income CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 30 of 4 of Smt. Suman Vibhuti and her three daughters from 1/4/95 to 16/6/96 from their bank accounts and the income stated by these four ladies have been taken into account. However, IO stated that he had not examined the three daughters of accused Vishwa Vibhuti. It was admitted by the IO that he has not mentioned "Gross" or "Net" against item No. 19 of the income of the accused. He also admitted that in the income tax return file of Ms. Nupur Vibhuti (D151), the income tax returns for the AY 198687, 198788, 198889, 198990, 199091 and 199192 are not available. Similarly, in the income tax return file of Ms. Pallavi Vibhuti (D152), the income tax returns for the assessment year 198788 and 198889 are not available. IO stated that he calculated the income of Ms. Nupur Vibhuti and Ms. Pallavi Vibhuti only as per their income tax returns, which were available and have been seen by him today. In a specific question to the IO that the gifts from relatives mentioned at S.No. 6 of the income of the accused, is actually Rs. 11,43,666/ in place of Rs. 10,82,876/. IO stated that in his view the gifts come only to Rs. 10,82,876/. IO admitted that he did not consider the income tax returns of Mrs. Suman Vibhuti, Ms. Surabhi Vibhuti, Ms. Nupur and Ms. Pallavi, for the assessment year 199697 Ex.PW20/DB, Ex.PW20/DC, PW20/DD and Ex.PW20/DE, for calculating their income. In a specific question to the IO that the Gross income of Mrs. Suman Vibhuti for the assessment years 198687 to 199596 comes to Rs. 12,06,087/, the gross income of Ms. Surabhi Vibhuti for the above period comes to Rs. 6,25,632/, gross income of Ms. Nupur Vibhuti for the period 199293 to CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 31 of 4 199596 comes to Rs.4,44,743/ and the gross income of Ms. Pallavi Vibhuti for the AY 199495 to 199596 comes to Rs. 5,79,178/ and total of the above income comes Rs. 28,55,640/, IO stated that he had calculated their income as 18,64,246/ but he had not calculated their income for the FY 199596. It was specifically put to the IO that in respect of recovery of cash in the sum of Rs. 1,85,000/ as mentioned in item No. 13(b) of Movable Assets, the accused had given the explanation on the last page of statement 3 of D10 Ex.P8 that cash found at home belonged to Mrs. Suman Vibhuti, who had drawn Rs. 1,60,000/ from her bank account and it also had the sale proceeds of gold (stridhan) of Rs. 90,000/ and it was kept at home to be deposited in bank to obtain loan from the bank for higher studies of Ms. Surabhi. In response to this, IO stated that he does not remember whether he accepted this explanation of the accused or not. It was also put to the IO that the income tax paid by the ladies as per the ITRs comes to Rs. 3,83,927 instead of Rs. 2,60,801/ to which the IO stated that his calculation is based on ITRs. IO admitted that he had recorded the statement u/S 161 Cr.PC of Smt. Shanta Sinha and Smt. Suman Vibhuti which are Ex.PW20/DF and Ex.PW20/DG. IO did not remember whether the income as stated by Sh. SC Mittal and Praveen Mittal in their statement during the course of investigation was taken into account or not. IO did not remember the date regarding expenditure for booking of a flat by Ms. Pallavi in East End Apartment for Rs.4,50,110/ nor did IO could recall that whether he took into consideration the loan taken by Ms. Pallavi Vibhuti from 29/1/96 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 32 of 4 onwards in the sum of Rs. 4,11,000/. In respect of the recovery of cash of Rs. 2,50,000/ during house search conducted on 14/3/95, IO could not recall whether he considered the explanation given by Mrs. Suman Vibhuti. He stated that the income tax return of Smt. Suman Vibhuti for the AY 199596 is not available in the records / files. In respect of the IT refund of Rs. 29,325/ paid to Smt. Suman Vibhuti for the AY 199697, IO stated that this refund might have come after the check period. In respect of item No. 12 of the details of expenditure of the accused as "transactions towards export business" Rs. 2,37,364/ and item No. (n) of assets of accused which shows the balance in the bank account of Span Exports as Rs.1,69,958/, IO stated that he does not remember about this transaction. However, in respect of current account No. 2643 in Vijaya Bank, Varanasi, the document was admitted by the accused as Ex.P60/12.
PW21 Sh. M. Kannan deposed on oath that while he was posted as the Dy. Secretary in the Ministry of Health and Family Welfare, he issued sanction for prosecution of the accused in the name of President of India after the perusal of the relevant documents / reports and due application of mind. The sanction order was proved as Ex.PW21/A. In most of the cross examination, the witness stated that being an old incident, he does not remember the particulars. Sh. M. Kannan stated that the sanction order in the file was sanctioned by the President of India. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 33 of 4 STATEMENT OF ACCUSED
4.0 Accused Vishwa Vibhuti in his statement u/S 313 Cr.PC stated that Flat No. G08, Mt. Naseer Appartments was purchased by his wife Smt. Suman Vibhuti from her own funds. In respect of the business activity of his wife, accused stated that he had given intimation regarding business of his wife which is Mark PW3/DA and the same was duly seized vide memo Ex.PW20/DA. Accused stated that immovable property returns were filed annually as per rules, but the same were not correctly recorded in the record. In respect of the recovery of the cash during the income tax raid, the accused stated that the cash recovered in the sum of Rs. 3.50 lakhs included a sum of Rs.50,000/ received by his wife from M/s. Shri Vijaya Pharmacy and balance was received by her for the dress design work which is reflected in her reply to the income tax department. In respect of Flat No. 178, Munirka Enclave, New Delhi, the accused stated that this house was purchased by his mother Smt. Shanta Sinha out of her own funds, from sale of her stridhan, gold, silver and savings. In respect of purchase of NSCs by his wife Smt. Suman Vibhuti in the sum of Rs.10,000/ vide purchase application, Ex.PW7/B, the accused stated that it is a matter of record. In respect of the income from salary as proved vide document Ex.P28/3, the accused stated that it is not for the entire check period. In respect of purchase of drugs at higher rates, the accused stated that a departmental inquiry was held against him and was compulsory retired with a cut of 30% in his CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 34 of 4 monthly pension. In respect of the fact that Smt. Suman Vibhuti became Director in M/s Invinex Pharmaceuticals Pvt. Ltd., established on 21/4/92, on 1/8/92 and she also invested an amount of Rs. 5,000/ on 8/6/92, the accused stated that it is a matter of record. In respect of the receipts from M/s Invinex Pharmaceuticals Pvt. Ltd., as reflected in the document Ex.P103/3 to Ex.P103/16, the accused stated that it is a matter of record. The accused also admitted that Ms. Pallavi Vibhuti had taken a loan of Rs. 3,00,110/ vide cheque No. 594762 dtd. 4/4/94 from M/s Invinex Pharmaceuticals Pvt. Ltd. In respect of the purchase of share of M/s Invinex Pharmaceuticals Pvt. Ltd., as per document Ex.P29, the accused admitted the same to be matter of record. Similarly, accused did not raise any dispute regarding the shares held by him and members of his family in M/s Invinex Pharmaceuticals Pvt. Ltd. as well the cheques issued by Ms. Suman Vibhuti, Ex.P95 to Ex.P9, the accused did not raise any dispute. The accused also did not raise any dispute regarding the GPF advance of Rs. 3 lakhs. The accused also admitted the investments made in UTI by his wife and daughters. Accused stated that the investments were made by them out of their own funds. Similarly, in respect of the investments made, as reflected in document Ex.P90/1, the accused stated that the investments were made by the members of his family out of their own funds. In respect of the electricity bill of D104, Som Vihar and 178, SFS, Munirka, the accused stated that he alongwith his family stayed at Som Vihar from September 1991 to June 1993 and thereafter, at Munirka Enclave. In respect of the income shown in CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 35 of 4 the ITR of Smt. Suman Vibhuti, the accused stated that IT Returns for the period ending March 1996 has not been taken into account by the IO. The accused did not raise any dispute regarding the rental income of Smt. Suman Vibhuti in the sum of Rs. 1,51,000/. Similarly, no dispute was raised regarding the income shown by Smt. Suman Vibhuti in her ITR from M/s Invinex Pharmaceuticals Pvt. Ltd. and M/s Shree Vijaya Pharmacy. Accused also did not raise any dispute regarding seizure of various documents during the course of investigation. The accused stated that the regular immovable property return submitted by him during his service have not been shown. Accused stated that he did not know, why the case was registered by the CBI against him, however, it is a false case. The investments were made by the members of his family by cheques from their own accounts using their own funds. The accused stated that the income has not been correctly taken by the IO. The income of his wife and his daughters till 31.03.1995 comes to Rs. 28,55,640/ and further his wife and daughters also received income from Shiva Medium and Shiva Investments as stated to CBI by Sh. Parveen Mittal and Sh. SC Mittal. In addition to the above, the accused stated members of his family had also income for the period 31.03.95 to 31.03.96, which was reflected in their IT returns and the same have not been taken by the IO. Accused stated that his daughter Pallavi had also taken a loan of Rs. 4,11,000/ for purchase of flat at Eastend Appartment, Delhi. The flat at Munirka Enclave was purchased by his mother from her own resources. The amount seized by CBI in the house search has been explained to Income Tax CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 36 of 4 Department in the explanation submitted after the registration of this case. The accused stated that the gifts mentioned by the IO as Rs.10,82,876/ is incorrect as the gifts received by members of his family in foreign currency during the relevant period comes to Rs.11,43,666/. Accused stated that the calculations done by the IO are factually incorrect. The accused stated that sanction given is defective and the witnesses have deposed against him under the pressure of CBI.
DEFENCE EVIDENCE 5.0 The accused examined 03 witnesses in his defence.
DW1 Sh. Prakash Chokda, Chartered Accountant of the accused deposed that as per file D149, income of Smt. Suman Vibhuti as per her ITR for the FY 198687 to 199495 are as follows: Financial Year Date of filing of Gross Income (in Income tax return Rs.) Paid 198687 20.02.1990 19,640.00 325.00 198788 20.02.1990 43,282.00 848.00 198889 28.02.1990 57,320.00 694.00 198990 17.11.1990 57,625.00 1,356.00 199091 28.08.1991 61,355.00 1,270.00 199192 23.03.1993 88,476.00 4,668.00 199293 28.02.1994 86,278.00 17,901.00 199394 30.11.1994 164,360.00 65,817.00 199495 26.12.1995 339,784.00 75,485.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 37 of 4 Similarly, as per file D149 containing photocopy of wealth tax returns for the period 198788 to 199192, Smt. Suman Vibhuti had paid wealth tax of Rs. 692/ for 198788, Rs. 330/ for 198889, Rs. 1,145 for 198990, Rs. 0/ for 199091 and Rs. 3,006/ for 199192.
DW1 further stated that as per ITR Ex.PW20/DB, the gross income of Smt. Suman Vibhuti for the FY 199596 was Rs. 1,23,454/ and the actual tax paid was Rs. 14,635/. The defence witness stated that balance sheet of Smt. Suman Vibhuti as on 31/3/96 shows capital of Rs. 23,28,974/ and loans taken of Rs. 7,82,000/ approximately over a period of time. DW1 further stated that as per file D150 containing the ITRs the income of Ms. Surabhi Vibhuti for the FY 198687 to 199596: Financial Year Date of filing of Gross Income (in Income tax return Rs.) Paid 198687 28.02.1990 18,665.00 170.00 198788 28.02.1990 32,934.00 460.00 198889 28.02.1990 18,945.00 260.00 198990 17.11.1990 36,063.00 115.00 199091 28.08.1991 41,720.00 2,116.00 199192 23.03.1993 57,955.00 4,229.00 199293 28.02.1994 52,521.00 4,066.00 199394 30.11.1994 107,699.00 15,232.00 199495 09.10.1995 115,517.00 16,456.00 199596 25.10.1996 (Ex.PW20/DC) 143,613.00 20,683.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 38 of 4 As per file D141, containing ITRs, the income of Ms. Nupur Vibhuti for the FY 199293 to 199596 are as follows: Financial Year Date of filing of Gross Income (in Income tax return Rs.) Paid 199293 28.02.1994 50,606.00 990.00 199394 30.11.1994 109,302.00 17,289.00 199495 09.10.1995 145,317.00 26,778.00 199596 25.10.1996 (Ex.PW20/DD) 139,718.00 24,688.00 The witness also proved the ITR of Ms. Nupur Vibhuti for the remaining years i.e. for financial year 198687, 8788, 8889, 8990 and 9091 as Ex.DW1/A to E, as per which the income is as follows:
Financial Year Date of filing of Gross Income (in Income tax return Rs.) Paid 198687 28.02.1990 18,944.00 235.00 198788 28.02.1990 31,726.00 158.00 198889 28.02.1990 25,672.00 342.00 198990 07.11.1990 36,510.00 198.00 199091 28.08.1991 41,620.00 65.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 39 of 4 As per file D152, containing ITRs, the income of Ms. Pallavi Vibhuti for the FY 198990 to 199596 are as follows: Financial Year Date of filing of Gross Income (in Income tax return Rs.) Paid 198990 07.11.1990 39,314.00 790.00 199091 28.08.1991 41,823.00 125.00 199192 23.03.1993 56,814.00 3,849.00 199293 (income of these 35,402.00 Paid by Mother 199394 years included in mother's account) 56,143.00 199495 09.10.1995 143,004.00 25,800.00 199596 25.10.1996 (Ex.PW20/DE) 136,635.00 23,456.00 DW1 also proved the ITRs of FY 198687 and 198788 of Ms. Pallavi Vibhuti as Ex.DW1/F & G. DW1 also produced the photocopy of ITR Ex.PW1/H of Ms. Pallavi Vibhuti for the FY 198890 as per which the income was Rs. 18,406/ and tax paid was Rs. 120/. It is pertinent to mention here that in the cross examination, CBI did not raise any question relating to authenticity of these income tax returns.
DW2 Sh. Lalit Kapoor, proved the order of the CAT and the Hon'ble High Court in respect of penalty imposed upon the accused subsequent to which Govt of India passed the order Ex.DW2/A. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 40 of 4 DW3 Ms. Suman Vibhuti wife of the accused deposed on oath that she completed her M.A Sociology in 1972 from Kanpur University after having married the accused in 1971. DW3 Ms. Suman Vibhuti had one brother and three sisters. The brother was working in LIC at Kanpur. All the three sisters are very well settled in USA with their respective families. DW3 got the three daughters from wedlock i.e. Surabhi (born on 22.1.1973), Ms.Nupur (born on 2.1.1974) and Ms. Pallavi (born on 25.5.1976). The witness stated that the gifts sent by her relatives to her and her daughters are duly reflected in her income tax record. Ms. Suman Vibhuti further stated that she started doing the work of Interior designing in Varanasi and dress designing etc. and, increased this business while she was at Hyderabad. The witness further stated that the income earned by her and her daughters have been correctly reflected in their income tax records. DW3 Smt. Suman Vibhuti admitted that she purchased the flat in her own name at Mount Nasir Apartment in Hyderabad for Rs.2,40,000/. However, the house in which she had been living was purchased by her mother in law, Smt.Shanta Sinha for Rs.9 lac. Smt Shanta Sinha is stated to have taken Rs.1,20,000/ from the witness and Rs.25,000/ from her husband i.e., accused.Smt. Shanta Sinha is reported to have died in 1998 and before that had been charging the rent @ Rs.3,000/p.m. DW3 Ms. Suman Vibhuti stated that her youngest daughter Pallavi purchased a flat in Eastend Aparment in Delhi in 1994 and she had CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 41 of 4 taken a loan of Rs.4,50,000/ for it. Similarly, her daughters Surbhi Vibhuti and Nupur Vibhuti purchased separate plots in Hyderabad. DW3 alongwith her daughters purchased a land in Sohna, Gurgaon in 199394. The witness stated that she and her daughters had also filed the balance sheet and capital account correctly with most of their income tax accounts and also filed wealth tax returns for some period. Smt. Suman Vibhuti stated that the cash of Rs. 2,50,000/ recovered during the search belonged to her and it included Rs.2,00,000/ as business receipt and Rs.50,000/ as her savings. The witness also produced various affidavits regarding gold given by her, to her daughters and by other relatives to her family members. The affidavits were proved as Ex.DW 3/A to Ex.DW3/G. The witness also stated that Sh. S.C.Mittal and Parveen Kumar Mittal of Shiva Medium and Shiva Investments had paid various amount to her, her daughters Nupur and Surbhi and the same have been reflected in the income tax return of all three of them. Ld. PP for CBI in his brief cross examination only confirmed about recording of her statement by the IO during the course of investigation and the fact that at that time Ms. Nupur and Pallavi Vibhuti were not minors. The court put several questions to the witness which are reproduced here in below even at the cost of brevity: "Court question:
Q Please tell the name of the companies in which your were the Director or holding any position?CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 42 of 4
A. I was Director in Invinex Pharmaceutical Ltd., Vijaya Pharmacy. I do not remember the name of other companies.
Q. Please tell the duration of your position in these companies?
A. As far as I remember I was holding these position from the year 1992 to 1996.
Q. What was job profile?
A. (Court observation: The witness is not able to tell her job profile). I was the Director in these companies.
Q. Do you have any qualification in the field of Pharmacy?
A. My husband was in the pharmaceutical field. I had never taken any education qualification or training in the pharmaceutical field.
Q. Tell the address of your companies?
A. The office of Invinex Pharmaceutical Ltd was in Sanya Bazar, Hyderabad. I do not remember the address of office of Vijaya Pharmacy.
Q. What was your timings in the said offices?
A. I used to go 23 times in my office.
Q. What was the nature of job of your husband?
A. My husband was in government job. He was in a medical store depot and was related to pharmacy.
Q. As you told you did not have any qualification in the pharmacy and still you were holding position in the Pharmaceutical Companies, and therefore these positions were only on account of official position of your husband?
A. I was holding positions in these companies as owner of these companies were our friends from Kanpur. I wanted to make my daughters self sufficient and therefore I started working.CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 43 of 4
Q. Have you done MBA or any course in Management?
A. No, I have not done MBA or any course / diploma in Management.
Q. Would it be correct that your were Director or holding position in these companies while your husband was in active Government service?
A. It is correct. My husband has duly informed his office."
ARGUMENTS
6.0 Sh. AK Ohri, Ld. Counsel for the accused Vishwa Vibhuti in his detailed arguments submitted that prosecution has miserably failed to prove its case against the accused. It has been submitted that income of the accused and the members of his family was much more than the income shown in the chargesheet. Ld. defence counsel relied upon the documents of the prosecution itself. It was submitted that the IO not only withheld the correct income, he also committed various blunders in the calculation itself. The basis of calculation itself has been assailed. Ld. counsel has submitted that income as gifts from the relatives was taken as Rs. 10,82,876/ whereas it is actually Rs. 11,48,664/. Sh. AK Ohri, Ld. counsel further submitted that IO simply showed in item No. 19, of the list of income of accused and members of his family, during the check period as Rs. 18,64,246/ as income as per income tax returns, and IO admitted that he had taken into account income only upto 31/3/95, whereas the check period was upto 16/6/96. Sh. AK Ohri, Ld. counsel relied upon the testimony of PW4 Sh. CV Surya Prakash and DW1 Sh. Prakash Chokda, Chartered Accountant Ld. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 44 of 4 counsel for the accused submitted that gross income as per ITR comes to around Rs. 28 lakhs of Smt. Suman Vibhuti and her three daughters during check period. Sh. AK Ohri, Ld. counsel for accused also relied upon the evidence of PW17 Sh. BP Bagchi in the cross examination, wherein the witness admitted that Sh. SC Mittal and Sh. Praveen Mittal, who were cited as prosecution witnesses, and had not been examined, had stated about income of Smt. Suman Vibhuti and daughters of the accused for April 1996 to be Rs. 5,46,000/ and therefore, income is more than Rs. 33 lakhs attributable to Smt. Suman Vibhuti and her three daughters. Sh. AK Ohri, Ld. counsel for the accused submitted that CBI in the chargesheet itself has taken the income earned by Smt. Suman Vibhuti from Invinex Pharmaceuticals Pvt. Ltd. and M/s Shree Vijaya Pharmacy and therefore, impliedly this income is admitted to be coming from the genuine source of income. Sh. AK Ohri, Ld. counsel for the accused invited the attention of the Court that accused has duly informed the department vide communication Mark PW3/DA dtd. 31/7/91 regarding business activities of his wife Smt. Suman Vibhuti and this document was duly seized by the IO during the course of investigation vide memo Ex.PW21/DA. Ld. defence counsel also submitted that IO in the cross examination admitted about his lapse of not bringing this on record. IO also admitted in the cross examination that he did not consider 1996, return whereas the check period was upto 16/6/96. Sh. AK Ohri, Ld. counsel pointed out that in all fairness, the expenditure on the point of payment of income tax and wealth tax has been shown on the lower CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 45 of 4 side by the IO and if the correct amount of tax paid by the accused and members of his family is taken into account, the expenditure is bound to increase. Ld. counsel for the accused submitted that as per record, accused and members of his family had paid income tax and wealth tax in the sum of Rs. 4,03,184/ in place of Rs.2,60,801/ and therefore, Rs. 1,32,383/ is liable to be added in the expenditure of the accused. Sh. AK Ohri, Ld. counsel emphasised that this proves his point that IO has conducted mindless investigation with a closed mind. In respect of the expenditure for booking of the flat in Eastend Apartment, New Delhi, the expenditure has been shown wrongly by the IO as this amount was raised through loan by Ms. Pallavi Vibhuti during the FY 199495 and was repaid in the FY 199596 and therefore, this amount cannot be taken as expenditure attributed to the accused. The dispute has also been raised regarding item No. 12 "transaction towards export business" in the sum of Rs. 2,37,364/. Sh. AK Ohri, Ld. counsel for accused submitted that there is not even an iota of evidence regarding this expenditure and even IO in the cross examination admitted that he does not remember anything about this. Ld. defence counsel during the course of arguments raised dispute regarding only three items in expenditure viz., item No. 5 expenditure of booking flat in Eastend Apartments, New Delhi, item No. 12, transaction towards export business in the sum of Rs. 2,37,364/ and item No. 15 taken as income tax, wealth tax etc. Ld. counsel for the accused submitted that he admits the remaining items as shown in the expenditure. In regard to the assets shown at the end of the CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 46 of 4 check period, Ld. counsel for the accused submitted that Flat No 178, Munirka Enclave, New Delhi was purchased by Smt. Shanta Sinha mother of the accused, from her own funds and the same cannot be added to the assets of the accused. Ld. counsel for the accused invited the attention of the court that IO admittedly did not investigate the origin of the amount. The prosecution itself has proved on record that sale consideration was paid through cheque and demand draft from the account of Late Smt. Shanta Sinha and this was duly received by PW6 Sh. Amarjeet Chopra i.e., the seller of the flat. Sh. AK Ohri, Ld. counsel for the accused invited the attention of the court towards the capital account of Smt. Suman Vibhuti and three daughters to buttress his point that they had enough capital in their account and they were in a position to acquire the property from their own funds and the property acquired by mother and her three daughters cannot be attributed to be the assets of the accused. In respect of the business activities of Smt. Suman Vibhuti, Ld. counsel for the accused submitted that at the worst it can be a case of non intimation. In respect of the recovery of cash from the house of the accused, Ld. counsel submitted that accused has sufficiently explained the same in his statement I to VI Ex.P8 furnished to the IO and this is duly corroborated by statement of account No. 015928 where there is a withdrawal of Rs. 1.60 lakhs on 3/4/96. In respect of the recovery of cash in the sum of Rs. 2,50,000/ as shown in item No. 13(a) of assets, Ld. counsel has invited the attention of the Court to the Income Tax Appellate Tribuanl order dtd. 31/12/03, the certified copy of which has been CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 47 of 4 placed on record whereby this cash has been admitted to be of Smt. Suman Vibhuti. Ld. counsel for the accused further submitted that the sanction accorded against the accused was not valid. However, in all fairness, Ld. counsel for the accused did not dispute the assets before the check period. Sh. AK Ohri also filed the written submissions on behalf of the accused. In the written submissions also Ld. counsel reiterated the same arguments and demonstrated by way of calculation, that accused and the members of his family, had income during the check period in the sum of Rs. 64,28,460/ in place of Rs. 58,17,998/ as shown in the chargesheet. In respect of the expenditure, Ld. counsel has very fairly disputed only expenditure for booking of flat in Eastend Department in the sum of Rs. 4,50,110/ and transaction towards export business in the sum of Rs. 2,37,364/. In all fairness, Ld. counsel submitted that the accused and the members of his family had paid tax in the sum of Rs. 4,02,495/ and not 2,60,801/ as shown in the chargesheet. In regard to the immovable assets, it was reiterated that Flat No. 178, Munirka Enclave, New Delhi was purchased by Late Smt. Shanta Sinha, mother of the accused, from her own funds and the contribution of the accused can maximum be Rs. 1,83,000/ (DW3 had stated that Late Smt Shanta Sinha had taken a loan of Rs. 1,20,000/ from her and Rs. 25,000/ from her husband i.e. the accused, therefore the contribution of DW3 and accused comes to Rs. 1,45,000/ and added to this is Rs. 38,000/ [Rent till January 1998@ Rs. 3,000/ per month which comes to Rs. 1,83,000/ out of which Rs. 1,45,000/ had already been contributed, thus CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 48 of 4 remained Rs. 38,000/]). In respect of recovery of cash in the sum of Rs. 1,85,000/ on 13/6/96, Ld. counsel submitted that this contained Rs. 1,60,000/ withdrawn by Smt. Suman Vibhuti in April 1996 from her bank account with Bank of Baroda, Hyderabad. This also included sale proceeds of gold ornaments for Rs. 95,000/. The withdrawal of amount is reflected from the bank account of Mrs. Suman Vibhuti and the sale of jewellery has also been admitted by the CBI as they have shown income of Rs. 95,000/ by way of sale of jewellery. Similarly, in respect of recovery of cash of Rs. 3,50,000/ from the residence of the accused during the income tax raid conducted on 14/3/95, recovered from the bedroom of the daughters of the accused, it was submitted that since they were income tax payee, so this amount cannot be attributed to the accused and similarly, Smt. Suman Vibhuti in her letter dtd. 29/12/95 enclosed with her ITR for FY 199495 owned up Rs. 2,42,000/ belonging to her. It was submitted that PW5 Sh. Chetram has also admitted in the cross examination that Rs. 40,000/ was returned to Mr. Srivastava, who was present at the time of raid. Initially the plea of Smt. Suman Vibhuti, before the IT authority, that the amount recovered was on account of her business receipts and savings, was not accepted and the same was included in her income, however, the Commissioner, Income Tax extended the benefit, which was challenged by by the income tax before the Income Tax Appellate Tribunal (ITAT). The ITAT in its order dtd. 31/12/03 dismissed the claim of income tax department and upheld the order of the Commissioner Income Tax in CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 49 of 4 deleting the additions made under various heads. In regard to the Court questions put to DW3 Ms. Suman Vibhuti, Ld. counsel for the accused submitted that the witness was bit nervous. He also pointed out that DW3 explained that she was holding these positions as the owners of M/s Invinex Pharmaceuticals Pvt. Ltd. and M/s Shree Vijaya Pharmacy were from Kanpur and she has been working as she wanted to make her daughters self reliant. Ld. counsel for the accused submitted that the department also on account of the fact that Smt. Suman Vibhuti was Director in a Pharmaceuticals company held that it is only a case of non intimation under conduct rules, but devoid of any malafide intention. Ld. counsel for the accused submitted that as per his calculations, there is a very small amount of DA as reflected from the table below: A) Income Rs.64,28,460/ B) Expenditure Rs.12,78,825/ C) Assets at the end of the check Rs.52,46,680/ period.
(D) Likely Savings (AB) Rs.51,49,635/
(E) Assets before the check period Rs. 84,149/
(F) Assets during the check period Rs.51,62,531/
(CE)
(G) Expenses in check period Rs. 12,78,825/
Total (F+G) Rs.64,41,356/
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 50 of 4
() Income during check period Rs.64,28,460/
Disproportionate Assets Rs. 12,896/
It was submitted by the Ld. Defence counsel that there was disproportionate assets only in the sum of Rs. 12,896/. Ld. counsel for the accused submitted that Hon'ble Supreme Court in Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796, held that if the disproportionate amount is less than 10% of the income, the same is negligible and should be ignored. Sh. AK Ohri, Ld. Defence counsel submitted that accused is, thus entitled to be acquitted.
6.1 Sh. DK Singh, Ld. PP for CBI in his brief submissions submitted that sanction has duly been granted and no prejudice has been caused. It was submitted that issue of disproportionate assets revolves around income of DW3 Ms. Suman Vibhuti. The attention of the Court was also invited towards observations of the Hon'ble Delhi High Court on the order of charge. He submitted that prosecution has successfully proved its case against the accused.
7.0 I have heard Ld. PP for CBI and Ld. Counsel for the accused and have perused the record carefully.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 51 of 4 LAW POINT 8.0 Section 13(1)(e) of the Prevention of Corruption Act, 1988, provides as under: "A public servant is said to commit the offence of criminal misconduct,
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation. For the purposes of this section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant." 8.1 In order to substantiate the charge for the offence u/S 13 (1)(e) of the PC Act, the prosecution is required to prove the following elements:
1. Accused is a government servant;
2. Nature and extent of the pecuniary resources or property which were found in his possession;
3. Known sources of income of the accused i.e., known to the prosecution; and,
4. The prosecution must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 52 of 4
If the prosecution succeeds in establishing the above said four ingredients, the offence u/S 13 (1)(e) of the PC Act is complete unless the accused is able to account for such resources or property. Reference can be made to State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar AIR 1981 SC 1186 and M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313.
8.2 The "known source of income" has also come up for consideration before the superior Courts. In C.S.D Swami Vs. State, AIR 1960 SC 7, the Hon'ble Supreme Court held that the expression "known sources of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that "known sources of income" means sources known to the accused. It is pertinent to mention here that the explanation to Sec. 13 (1)(e) was added only in the year 1988 which reads as under:
"Explanation: For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
Thus, it is seen that, now for a source of income to qualify as a known sources of income for the purposes of Sec. 13(1)(e) of the Prevention of Corruption Act, 1988, it is essential that it should satisfy the following two conditions, namely: CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 53 of 4
1. it should be a lawful source of income, and
2. the receipt of income from such a source should have been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant. As a natural corollary, it immediately follows that:
(a) any income received from a source which is not lawful cannot be considered for inclusion in the expression known sources of income for the purposes of Sec. 13(1)(e) of the said Act, even if such an income was actually received by the concerned public servant;
(b) any income, even though received from a lawful source, cannot likewise be considered for inclusion in the expression known sources of income for the aforesaid purposes, if the receipt of such income has not been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant. (Reference can be made to the commentary in Prevention of Corruption Act, Second Edition 2009 by Dr. Ashok Dhamija, page 1057).
In N. Ramakrishnaiah Vs. State of AP, 2009 CriLJ 1767, also it was held as under:
"Section 13 of Prevention of Corruption Act, 1988 (in short the 'Act') deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of Subsection (1) of the Section is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources of property disproportionate to his known source of income. Clause (e) of Subsection (1), of Section 5 of the Old Act was in similar lines. But there have been drastic amendments. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 54 of 4 Under the new clause, the earlier concept of "known sources of income"
has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The expression "known source of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income"
means sources known to the accused. The prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
The emphasis of the phrase "known sources of income" in Section 13(1)
(e) (old Section 5(1)(e)) is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 55 of 4 FINDINGS 9.0 It is a settled proposition that investigation of the case relating to the Prevention of Corruption Act, should be fair, transparent and free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is the duty of the Investigating Officer to conduct the investigation without any fear, favour or bias and he should be fair and conscious so as to rule out any possibility of fabrication of evidence. The impartial conduct of the IO must dispel any suspicion as to its genuineness. The Investigating Officer is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth. Reference can be made to R.P. Kapur Vs. State of Punjab AIR 1960 SC 866. The investigating agencies are guardians of the liberty of innocent citizens and therefore, a heavy responsibility lies upon them to ensure free and fair investigation is conducted. The concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India.
In K. Veeraswami Vs. Union of India & Ors., 1991 SC (Crl.) 734, Hon'ble Supreme Court while dealing with the case of disproportionate asset's case, dwelled up the duty of the IO and inter alia observed as under: CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 56 of 4 "In order to properly discharge this burden cast by the section, it Would be necessary for the Investigating Officer first of all to call upon the public servant to account for the disproportionate assets. He must then proceed to record his own finding on the expla nation of the public servant. He must state whether it is satisfactory or not. And the offence complained of under clause (e) of Section 5(1) is not made out without such exercise and finding by the Investigating Officer. "
9.1 To begin with, this Court records its extreme displeasure over the quality of investigation conducted by the investigation officer of the present case. This court has no hesitation in saying that it seems that entire machinery failed including the supervisory officer who failed to discharge their duties. Even the basic premises of computation of income and expenditure have been applied wrongly and there are gross mistakes in the calculations. This all shows that investigation was conducted mechanically by the IO. It seems that IO by way of blunders committed by him tried to ensure that accused goes scotfree and regretfully the supervisory officers allowed him to do so. An attempt has been made to drive the entire justice delivery system at the whims and fancies of the IO. The question is that whether the defective investigation conducted by the IO should be premium to the accused. This point has come up for consideration before the superior courts time and again.
This point came up for discussion in a full bench before the Hon'ble Supreme Court in Hema Vs. State, Crl. Appeal No. 31 of 2013, wherein it was reiterated that for certain defects in the investigation, the accused cannot be acquitted. The full bench cited with approval the CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 57 of 4 judgment delivered in C. Muniappan and Ors. Vs. State of Tamil Nadu, 2010 (9) SCC 567, as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), the Supreme Court interalia held:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
Similarly, in Gajoo vs. State of Uttarakhand, 2012 (9) SCC 532, while reiterating the same principle again, Apex Court held that defective investigation, unless affects the very root of the prosecution case CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 58 of 4 and is prejudicial to the accused should not be an aspect of material consideration by the Court.
In regard to defective investigation, Apex Court in Dayal Singh v. State of Uttaranchal (supra) while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under:
"27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held:
'5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so [pic]would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
Dealing with the cases of omission and commission, the Apex Court in Paras Yadav v. State of Bihar, 1999(2) SCC 126 enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 59 of 4
It is pertinent to mention here that in Hema's case (supra) Hon'ble Supreme Court was pleased to held that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general. Thus, the superior Courts have held time and again that in case of defective investigation, it would not be right to acquit the accused only on this account. Acquittal in such cases would tantamount to playing in the hands of the IO, if the investigation is designedly defective. The duty of a Judge includes discharge of his judicial function objectively and in a correct perspective. If an attempt has been made to misdirect the trial on the basis of designedly defective investigation, the Court should be very cautious and must ensure that the justice delivery system is not subverted. The court of law must make an endeavour to impart justice and protect the interest of the society as a whole. 9.2 The biggest challenge before this country is the rampant corruption. The speedy and effective steps are required to be taken within the bounds of law to eliminate the same. It has been held time and again by the superior courts that there should be strict interpretation of the law relating to the corruption and appreciation of evidence should be in such a manner that it fulfills the objective of the law. The perusal of the provisions CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 60 of 4 of the Prevention of Corruption Act, 1988 would also indicate that the legislative mandate is also to meet the corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature. The message should go loud and clear that corrupt public persons have to face very serious conclusions and corruption can never be a profitable proposition. The crime in any form and manner is condemnable, but the corruption at any level by any person of any magnitude is required to be treated differently than the general penal offences. It has also been emphasized by the superior Courts time and again that the Judge cannot be a mute spectator. The trial cannot be allowed to be turned into a chess game or battle of wits. The ultimate quest of a legal trials should be justice only. Therefore, the judge is required to take a pragmatic approach and must appreciate the record in a way that substantive justice is imparted and no illegality is allowed to be perpetuated. This court is conscious of the fact that generally in the criminal cases, the prosecution is duty bound to prove its case beyond reasonable doubt, however, in the case u/S 13 (1)(e) of the POC Act, 1988, the situation is little different, where the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The reason behind this is that the prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act. In the disproportionate assets case, the accused has to satisfactorily account for the pecuniary CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 61 of 4 resources or property disproportionate to his known sources of income. The burden shifts to the accused to satisfactorily account for his possession of disproportionate assets. However, the extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Sec. 5(1)(e) cannot be higher than to establish his case by a preponderance of probability. In order to prove the case under disproportionate assets, the essential elements to be proved are income, expenditure and assets of the accused. While computing the income, expenditure and assets of the accused, the basic principles of accounting are required to be taken. In a particular check period determined by the investigating agency, all the income of the accused and in a given case of the members of his family is taken into consideration and out of that the expenditure made during that period is deducted, so as to reach a figure which was available with the public servant for raising the assets. In this the assets found in the beginning of the check period is also required to be taken. At the end, the assets whether movable or immovable at the end of the check period in possession of the accused or members of his family or any other person is taken into account and if such assets are more than the amount available with the accused, then its a case of disproportionate assets. The CBI in its chargesheet has set the income of the accused during the check period to be Rs.58,17,998/. The prosecution has not cared to prove this income by way of evidence. However, since CBI in the chargesheet has admitted this to be the income of the accused and the members of his family CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 62 of 4 during check period, it cannot be reduced or held to be not proved, irrespective of the fact, whether CBI has proved it or not. However, the accused has raised a plea that income as taken by the CBI in the chargesheet is lesser than the actual income earned by the accused and the members of his family. The plea of the accused is that the income as per the ITR of his wife Smt. Suman Vibhuti and three daughters Nupur Vibhuti, Surabhi Vibhuti and Pallavi Vibhuti is more than Rs. 18,64,246/ as set up by the prosecution in the chargesheet. In this regard the defence has also examined DW1 Sh. CS Chokda, CA. The defence witness proved the income tax returns of wife and daughter of the accused during the check period. It is also to be noted that investigation officer admitted in the cross examination that he did not take into account the ITR of wife and daughters of the accused of the FY 199596. IO has not been able to explain that why he did not take into account the ITR of the wife and daughters of the accused of the FY 199596. I consider that this income is necessarily required to be taken into account which has also duly been proved by the defence and there is nothing on record to disbelieve the same. Thus, on the basis of record proved on the record, it is held that income of Smt. Suman Vibhuit as per ITR 198586 till 199596 was Rs. 10,41,574/, of Ms. Surabhi Vibhuti was Rs. 6,25,632/, of Ms. Nupur Vibhuti was Rs. 5,99,416/ and of Ms. Pallavi Vibhuti was Rs. 5,59,401/, which comes to a total of Rs. 28,26,022/. The CBI in the cross examination of the defence witnesses has not been able to bring any point which could make the hole in the story of the defence CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 63 of 4 relating to the income of wife and daughters of the accused during the check period. The defence has also been able to prove that income as gifts from relatives is actually Rs. 11,30,640/ and not Rs. 10,82,876/ as set up by the prosecution in the chargesheet. The perusal of the chargesheet has indicated that IO has committed a basic blunder while calculating the income of the accused, his wife and three daughters. The IO has wrongly added income of Smt. Suman Vibhuti from :
M/s Invinex Pharmaceuticals Rs. 3,40,970/ M/s Shree Vijaya Pharmacy Rs. 2,10,000/ M/s Nulife Labs Ltd., Hyderabad Rs. 76,000/ Interest from banks accrued in various Rs. 1,78,230.50 accounts in the name of Smt. Suman Vibhuti and three daughters, in addition to income as per income of Smt. Suman Vibhuti and her three daughters, as per ITRs.
It is strange that when IO has taken Gross Income as per ITR of particular period, then how the income relating to the same period can be taken separately. If the income has been shown in the ITR then there is no point in taking the income separately, and if income has not been shown in the ITR, then this cannot be taken into account being "known source of income". It seems that IO was oblivious of this basic proposition. It is pertinent to mention here that it is not the case of the defence or the CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 64 of 4 prosecution that income of wife and daughters, as shown in the chargesheet other than Gross Income shown in ITR, was not part of the ITR.
IO did not even care to explain that income as listed at item No. 15 and 17 pertains to accused or other members of his family of whom he has taken gross income as per income tax returns. Since it is not clear from the chargesheet, therefore, in all fairness, the benefit has to go to the accused and this income has to be taken into account besides, income as per ITR of wife and daughters. It is pertinent to mention here that in the cross examination IO stated that he had taken gross income as per ITR, whereas this is not mentioned in the chargesheet at all. Therefore, in view of discussion made hereinabove and to ensure further perpetuated this Court has calculated that illegality is not the income of the accused during the check period afresh, which would be as follows: S. Particulars of Income Amount (Rs.) No.
1. Salary and other allowance drawn from the department 4,98,446.00
2. GPF Advance 3,00,000.00
3. Income of Sh. Vishwa Vibhuti and his wife from Gitanjali Chit 34,038.00 Fund (since this is shown on joint income, benefit is given to the accused.
4. Income as gift from relatives 11,30,640.00
5. Income from Money Multiplier Scheme 25,984.00
6. Loan borrowed from Invinex Pharmaceuticals 3,00,110.00
7. Sale proceeds of assets (jewellery) 95,000.00
8. Sale proceeds of shares of TISCO 2,583.00
9. Interest earned from banks accrued in various accounts in the 20,619.50 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 65 of 4 following bank accounts in the name of Sh. Vishwa Vibhuti
10. Dividends against UTI certificates 2,586.00
11. Income from NSCs 2,73,239.00
12. Interest free loan from Sh. Ravinder Kumar 1,50,000.00
13. Income from Monthly Income Scheme of UTI 2,84,000.00
14. Refund of loan 99,690.00
15. Income as per Income Tax Returns of Smt. Suman Vibhuti, Ms. 28,26,022.00 Surabhi, Ms Nupur and Ms. Pallavi.
Total Income of the accused during the check period comes 60,42,957.50 out to be : It is pertinent to mention here that this Court while calculating this income has taken into account the interest earned by Vishwa Vibhuti individually or jointly with Smt. Suman Vibhuti and it has also given the benefit of all the incomes which have specifically not been attributed to Smt. Suman Vibhuti or the daughters.
9.3 CBI in its chargesheet has alleged that accused and the members of his family incurred the expenditure of Rs. 18,24,605/. The expenditure regarding educational expenses, expenses in respect of G08, Mt. Naseer Apartments, Hyderabad on account of maintenance and house tax and club expenses have been admitted by the accused, during the course of admission and denial u/S 294 Cr.PC vide statement dtd. 18/9/02. It is pertinent to mention here that accused admitted as many as 175 documents from Ex.P1 to Ex.P175 vide his statement duly recorded in the Court by my Ld. predecessor Sh. RK Gauba, the then Ld. Special Judge. It is pertinent to CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 66 of 4 mention here that this exercise of admission and denial conducted by the then Special Judge actually helped in pruning the witnesses and the expeditious trial. It is also worthwhile to mention here that in the brief written submissions dtd. 7/11/2013 filed by the accused under his signatures through his advocate Sh. AK Ohri, the accused has disputed only expenditure mentioned at S. No. 5 and 12 i.e., expenditure for booking of flat in Eastend Apartments in the sum of Rs. 4,50,110/ and transaction towards export business in the sum of Rs. 2,37,364/. I consider that prosecution has miserably failed to prove the expenditure on both of these counts. It has been brought on record that daughter of accused Ms. Pallavi Vibhuti had raised the loan in booking of this flat during the check period and the loans were repaid also during the check period. Therefore, this amount cannot be included in the expenditure. However, it has been admitted by DW3 Ms. Suman Vibhuti in the cross examination that her daughter Ms. Pallavi Vibhuti purchased a flat in Eastend Apartments, New Delhi. Thus, this amount has to be added in the assets. Similarly, not only the IO failed to prove the expenditure of Rs. 2,37,364/, he had temerity to say during the cross examination that he does not remember that on what account he had shown this amount in expenditure. In all fairness, Ld. counsel for the accused has submitted that the accused and the members of his family have paid income tax and wealth tax in the sum of Rs. 4,02,495/ during the check period. This has also been proved by DW1 in the court. The defence has not disputed the remaining items of expenditure shown in the CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 67 of 4 chargesheet and in respect of no dispute being raised, the expenditure incurred on other items except item No, 5 and 12 stands admitted by the accused. However, I consider that IO has committed a blunder by showing the kitchen expenses in the sum of Rs. Rs. 1,67,536/. Probably, he took this as 1/3rd of the salary income of the accused i.e., Rs. 4,98,446/ during the check period. This possibly has been taken on the basis of the observations made by the Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab, AIR 1964 SC 464, wherein while dealing the case of disproportionate assets, the Apex Court inter alia held that the total receipts by the appellant from his known sources of income appears to be about Rs. 1,03,000/. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant's possession, through himself or through his son (Rs. 1,20,000/) were not disproportionate to his known sources of income. The Apex Court inter alia held that one cannot however live on nothing; and however frugally the appellant may have lived, it appears to us clear that at least Rs. 100/ per month must have been his average expenses throughout these yearstaking the years of high prices and low prices together. These expenses therefore cut a big slice of over Rs. 36,000/ from what he received. Therefore, the Apex Court broadly took 1/3rd of the total income as the expenditure during the check period.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 68 of 4
In the present case, the IO for the reasons best known to him took only Rs. 1,67,536/ as unverifiable expenditure for the check period ranging from 1/1/85 to 16/6/96. This calculation of the IO on the face of it is incorrect and illegal. The logic behind taking 1/3rd of the income as unverifiable expenditure is that a person makes day to day expenses which commensurate with the income of the family. If we take Rs. 1,67,536/ as expenditure for 11 years it means the accused and the members of his family had spent only Rs. 15,230/ per annum or Rs. 1,269/ per month or around Rs. 42/ per day. It is just beyond imagination. The family who has huge investments and a family whose even minor daughters are receiving great amounts of gifts from their foreign relatives, a family who is maintaining a car, living in New Delhi, a family who is hugely investing in shares, and a family whose three daughters are receiving quality education, would make their both ends meet in a monthly expenditure of Rs. 1,269/ or Rs. 42/ per day. Therefore, this amount on the face of it is incorrect, illegal and a fraud played on the court. This needs to be corrected by the Court on the basis of law laid down in Sajjan Singh's case(supra). I think to be fair to the accused also, 1/3rd of the gross income of the accused, his wife and three daughters is required to be taken as the unverifiable expenditure to have been spent during the check period. The gross income of the accused from salary, gross income of his wife and three daughters comes to Rs. 33,24,468/ (28,26,022/ + 4,98,446/), 1/3rd of this comes to Rs. 11,08,156/. This comes to around Rs. 1 lakh per annum or Rs. 8,395/ per month. This seems to be a CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 69 of 4 plausible figure for the family of 05 persons in which three daughters are studying. It is a matter of common knowledge where the children are studying, besides the school fees / college fees, there are other huge expenditure also. A family also spends huge amount on kitchen expenses, clothing, social obligations, festivals, travelling and so many things of which there cannot be exhaustive list. The IO in the chargesheet has not even taken the expenditure incurred on the electricity bills, which shows that the investigation conducted by him was either mindless, careless or malafide. This Court if shuts its eye on these points, it would be allowing illegality to be perpetuated. Therefore the expenditure made by the accused and members of his family during the check period is as follows: S.No. Particulars of Expenditure Amount (Rs.)
1. Kitchen Expenses 11,08,156.00
2. Education Expenses 1,76,234.00
3. Fee for registration of immovable property 85,792.00
4. Expenses in respect of H.No.G08 Mount Nasir Apartment, Hyderabad:
A. Maintenance 18,250.00
B. House Tax 10,495.00
5. Club expenses 20,075.00
6. House Rent 1,62,050.00
7. Rent for Airconditioners 18,000.00
8. Payment of Telephone Bills 10,717.00
9. Road Tax 2,050.00
10. Losses on disposal of assets 25,131.00
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 70 of 4
11. Advance for House construction 1,60,000.00
12. Repairing Expenses 20,000.00
13. Payment as Income Tax, Wealth Tax 4,02,495.00
Total 22,19,445.00
Thus, the accused and the members of his family had incurred expenses in the sum of Rs. 22,19,445/. 9.4 Now coming to the assets in the name of the accused and the members of his family. In regard to the assets, most of the assets have been admitted by the accused either during the course of admission or denial or during the course of evidence. The accused has only disputed Flat No. 178, Munirka Enclave, New Delhi in the name of Smt. Shanta Sinha, mother of accused Vishwa Vibhuti and the cash recovered during the raid conducted by Income Tax department on 14/3/95 and during house search conducted by CBI on 13/6/96. Ld. Counsel for the accused has not disputed the remaining assets. I consider that the dispute raised by the accused is plausible and entitled to be admitted. Sh Amarjeet Chopra PW6 has specifically stated that he had sold the flat to Smt. Shanta Sinha. The documents filed by the prosecution itself has shown that the payment was made from the account of Smt. Shanta Sinha herself. Interestingly, IO admitted in the cross examination that he did not investigate about the source of income of Smt. Shanta Sinha. Law is very well settled that if a property stands in the name CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 71 of 4 of a person then in order to hold it to be benami, the prosecution is required to prove by way of credible evidence that actually the property does not belong to that person. In the case of benami property, the Hon'ble Supreme Court in Jay Dayal Poddar Vs. Bibi Hazara, AIR 1974 SC 171, laid down the following test to determine that whether a particular transaction is benami:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and, (6) the conduct of the parties concerned in dealing with the property after the sale."
In Krishnanand Agnihotri Vs. State of Madhya Pradesh, AIR 1977 SC 796, relied upon by the Ld. Counsel for the accused also, it was inter alia held as under:
"It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 72 of 4 shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
It is a settled proposition that if the land is in the name of particular person, it must be presumed, unless the contrary is shown that the land belongs to the person in whose name the title deed exists.
In a later decision in Bhim Singh Vs. Kan Singh, AIR 1980 SC 727, the Supreme Court once again reiterated the principles for determining the benami nature of a transaction and laid down the following guidelines:
(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary;
(3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money; and, (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 73 of 4 In Valliammal Vs. Subramaniam, AIR 2004 SC 4187, the Supreme Court while discussing the question that whether the particular sale is benami or not, inter alia held that this question is largely one of fact and following six circumstances can be taken as a guide to determine the nature of the transaction:
(1) The source from which the purchase money came;
(2) The nature and possession of the property, after the purchase;
(3) Motive, if any, for giving the transaction a benami colour;
(4) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) The custody of the title deeds after the sale; and, (6) The conduct of the parties concerned in dealing with the property after the sale.
It was further held that the above indicia are not exhaustive and their efficacy varies according to the facts of each case. It may be reiterated that there is always a presumption of law that the person who purchases property is the owner of the same. However, this presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner.
I consider that prosecution has miserably failed to prove that Flat No. 178, Munirka Enclave belongs to accused Vishwa Vibhuti and not CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 74 of 4 in the name of his mother. However, it has been admitted by the accused by way of DW3 Ms Suman Vibhuti that they had paid a sum of Rs. 1,45,000/ to Smt. Shanta Sinha at the time of purchase of the flat. Thus, Rs. 1,45,000/ is liable to be admitted in the assets at the end of the check period on account of contribution in purchase of flat. Besides this, I consider that there is substance in the arguments of the Ld. Counsel for the accused that cash recovered during search conducted by the CBI and Income Tax Deptt., cannot be attributed to the accused only in view of the fact that Smt. Suman Vibhuti and her daughters were filing separate ITRs. It would not be out of place to mention here that the income earned by Smt. Suman Vibhuti and her three daughters from pharmaceutical companies does not seem to be legitimate income, however, since IO has taken this income for the purpose of computation, at this stage to return the findings otherwise will prejudice the accused and would not be in accordance with the basic principles of criminal jurisprudence. It is also pertinent to mention here that in view of the material on record, it even can be suggested that wife of the accused might have been 'participescrimins', but this Court is not considering this, as much water has flown below the bridges. If the prosecution admits that Smt. Suman Vibhuti and her three daughters had independent income then the cash recovered during search from their house cannot be added solely to the accused. Thus, this amount of Rs. 2,50,000/ and 1,85,000/ is liable to be deducted from the assets at the end of the check period. However, as I have discussed earlier, the sum of Rs. 4,50,110/ on account of Eastend CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 75 of 4 Apartments, as admitted by DW3 Ms. Suman Vibhuti also in her evidence having been purchased by the daughter is liable to be admitted in the assets. There has been no dispute being raised regarding the remaining assets found in possession of the accused and the members of his family, found at the end of the check period. Thus, CBI in its chargesheet has claimed that accused was having assets in the sum of Rs. 84,149/ at the beginning of the check period and the accused has not disputed the same and therefore, in case of having been admitted by the accused, it is proved on record that accused was having assets in the sum of Rs. 84,149/ at the beginning of the check period. Hence, the accused and his family members were holding the following assets at the end of the check period:
Immovable Assets Sl. No. Detail of Properties Amount (in Rs.)
1. Flat No.G08, Mount Nasir Apartment, Saifabad, Hyderabad in the name of Smt. Suman Vibhuti 240,000.00
2. Plot No.11 at Jublee Hills, Hyderabad in the name of Ms. Surabhi Vibhuti 65,100.00
3. Plot No.10 at Jublee Hills, Hyderabad in the name of Ms. Nupur Vibhuti 43,000.00
4. Contribution in purchase of Flat No.178, Munirka Enclave, 1,45,000.00 New Delhi in the name of Smt. Shanti Sinha, mother of Vishwa Vibhuti
5. Farm land situated at Sona district of Gurgaon, Hyderabad in the name of Smt. Suman Vibhuti and her three daughters 495,000.00 6 Purchase of flat in Eastend Apartment, New Delhi 4,50,110.00 TOTAL 14,38,210.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 76 of 4 Movable Assets Sl. No. Details Amount (in Rs.)
1. Car No. DL 4CC 4682 in the name of Smt. Suman Vibhuti 265,448.00
2. Computer Hardware associated peripherals 38,720.00 TOTAL 304,168.00 Bank Accounts as on 16.06.96 Sl. No. Detail of Properties Amount (in Rs.) Bank Account in the name of Sh. Vishwa Vibhuti a. SB A/c No.15849 maintained in the Bank of Baroda, Hyderabad 10,961.00 b. SB A/c No.3798 maintained in UCO Bank, Som Vihar, New Delhi. 16,062.00 c. SB A/c No.33811 in Bank of Baroda, Calcutta 35,584.00 d. SB A/c No.6890 maintained in Bank of Baroda, Calcutta 500.00 e. SB A/c No.24116 maintained in SBI Nirman Bhawan, New Delhi. 9,174.18 TOTAL 72,281.18 Bank account in the joint names of Vishwa Vibhuti & Suman Vibhuti a. SB A/c No.1874 in Central Bank of India, Lanka Branch, Varanasi 20,174.00 Bank account in the name of Suman Vibhuti a. SB A/c No.15928 maintained in Bank of Hyderabad 13,732.98 b. SB A/c No.3799 maintained in United Commercial Bank, N.D. 19,816.00 c. SB A/c No.9555 maintained in Syndicate Bank, 8,191.90 Mayapuri CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 77 of 4 Bank account in the name of daughters of Vishwa Vibhuti operated by Smt. Suman Vibhuti a. SB A/c No.16369 in the name of Ms. Pallavi Vibhuti,Bank of Baroda, Hyderabad 3,231.54 b. SB A/c No.16370 in the name of Ms. Surabhi Vibhuti in Bank of Baroda, Hyderabad 22,389.87 c. SB A/c No.16371 in the name of Ms. Nupur Vibhuti in Bank of Baroda, Hyderabad 3,287.99 In the name of Ms. Surabhi Vibhuti operated by herself a. SB A/c No.5810 in Bank of Baroda, Hyderabad 17,976.00 In the name of Span Exports Private Limited Co.
a. Current A/c No.2643 in Vijaya Bank, Luxa Road Branch, Varansi. 169,958.00 TOTAL 351039.46
9.
Sl. No. Name Unit Certificate No. Amount (in
Rs.)
1. Sh. Vishwa Vibhuti 304940010014247 190,000.00
2. Ms. Surabhi Vibhuti 304940010014248 190,000.00
3. Ms. Pallavi Vibhuti 304940010014249 380,000.00
4. Ms. Nupur Vibhuti 304940010014246 380,000.00
TOTAL 1,140,000.00
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 78 of 4
10. NSCs
Sl. No. Name Year Mode of Payment Amount of NSC
1. Sh. Vishwa Vibhuti 198990 Cash was withdrwan on
22.10.89 vide cheque No.
2305 from Bank of Baroda,
Hyderabad 10,000.00
2. Sh. Vishwa Vibhuti 199192 Cash 10,000.00
3. Sh. Vishwa Vibhuti 199293 Cash 10,000.00
4. Sh. Vishwa Vibhuti 199394 Cash 10,000.00
5. Sh. Vishwa Vibhuti 199596 Cash 6,000.00
6. Smt. Suman Vibhuti 199293 Cash 10,000.00
7. Ms. Surabhi Vibhuti 198889 Vide cheque No.6487 from
SB A/c No.16320 BOB,
Hyderabad 10,000.00
8. Ms. Nupur Vibhuti 198889 Cash 10,000.00
9. Ms. Pallavi Vibhuti 198889 Cash 10,000.00
TOTAL 86,000.00
11. Other Investments
Sl. No. Details Amount
i) Shares of Invinex Laboratories purchased in the name of Sh.
Vishwa Vibhuti, Suman Vibhuti, Surabhi Vibhuti, Nupur and Pallavi Vibhuti 100,000.00 Investment by Sh. Vishwa Vibhuti
ii) Investment in UTI vide cheque No.102310 dt. 11.02.90 6,000.00
iii) Investment in UTI (UGC) vide cheque No.0245958 dt.
23.09.91 5,000.00
iv) Investment in UTI Mastergain 92 vide cheque No.568411 dt.
07.05.92 20,000.00
v) Investment in SBI Mutual fund vide cheque No.245946 dt.
10.11.1990 10,000.00 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 79 of 4
vi) Deposits with Penzy Pharmaceuticals Limited which were subsequently treated as interest free loan to Sh. PD Narang, Prop. Of the firm :
A) Vide cheque No.669001 dt. 03.05.94 25,000
B) Vide cheque No.669005 dt. 02.08.94 50,000 75,000.00
vii) With M/s. Jamia Cooperative Bank Limited vide Cheque No.
669007 10,000.00
viii) Interest free loan to Ms. Nelopher Khan 100,000.00
Investments by Smt. Suman Vibhuti and her three daughters
ix) Interest free to Sh. Ushaq Ahmed vide cheque No.6363 of Bank of Baroda. 75,000.00
x) Interest free loan to Sh. Farath Khan vide cheque No.6493 70,000.00
xi) Investment with different cos. And under different schemes Sl. Name of the firm Cheque No. & Date Name of the Bank Amount No. & Account No. (rs.) 1 Nu Life Laboratories 636830 dtd. 8.2.95 UCO Bank A/c No. 2,00,000.00 Hyderabad for Rs.1,00,000/. 3799 and 16370 Cheque No. 21263 & BOB, Hyderabad 21264 for Rs.50,000/ each 2 Jamia Cooperative Bank, 636827 dtd. 23.8.94 UCO Bank A/c No. N.D. 3799 5000 3 C.S. Enterprises 000367 dtd. 11.6.92 Bank of Baroda A/c No. 15928 17000 4 C.S. Enterprises 568495 dtd. 11.6.92 17000 5 C.S. Enterprises 216475 dtd. 11.6.92 UCO Bank A/c No. 3799 17000 6 C.S. Enterprises 216496 dtd. 11.6.92 Bank of Baroda A/c No. 16370 17000 7 C.S. Enterprises 216579 dtd. 11.6.92 Bank of Baroda A/c No. 16371 17000 8 SB Mutual Fund 216470 dtd. 10.11.90 Bank of Baroda A/c 10000 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 80 of 4 No. 16369 9 SB Mutual Fund 216490 dtd. 10.11.90 Bank of Baroda A/c No. 16370 10000 10 SB Mutual Fund 216572 dtd. 10.11.90 Bank of Baroda A/c No. 16371 10000 SB Mutual Fund 163772 dtd. 10.11.90 Bank of Baroda A/c 11 No. 15928 10000 UTI Mastergain 92 UTI 568493 dtd. 7.5.92 UCO Bank A/c No. 10,000 12 US64 26.7.88 3799 6,600 UTI US 64 021258 dtd. 26.12.94 Bank of Baroda A/c 13 No. 16371 69116 UTI US 64 021246 dtd. 31.12.94 Bank of Baroda A/c 14 No. 16369 69116 UTI US 64 036561 dtd. 31.12.94 Bank of Baroda A/c 15 No. 15928 34632 UTI US64 021269 dtd. 31.12.94 Bank of Baroda A/c 16 No. 16370 34632 Sri Vijaya Pharmacy 216576 dtd. 14.4.92 Bank of Baroda A/c 1,00,000 17 No. 16371 do 216494 dtd. 10.4.92 Bank of Baroda A/c 1,00,000 18 No. 16370 do 216473 dtd. 10.4.92 Bank of Baroda A/c 1,00,000 19 No 16369 do 000364 dtd. 14.4.92 Bank of Barod A/c 1,00,000 20 No. 15928 Invinex Laboratories Ltd. 038401 dtd. 24.3.95 Bank of Baroda A/c 21 No. 16370 25000 do 021260 dtd. 28.2.95 Bank of Baroda A/c 22 No. 16371 25000 do 021248 dtd. 4.1.95 Bank of Baroda A/c 23 No. 16369 25000 Invinex Pharma By cash 8.6.92 BOB, Hyderabad 21280 debited on A/c No. 15928 24 24.11.94 55000 25 Hindustan Lever Ltd. Cash 9293 Smt. Suman Vibhuti 17500 CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 81 of 4 Jai Prakash Industries Cash 9293 do 26 Ltd. 7200 27 Deep Pharma Shares Cash 8687 do 1000 TISCO Spn. Cheque No. 568494 UCO Bank A/c No. 28 3799 10000 29 UTI MEP 95 Cheque No. 036593 BOB 15928 10000 30 do Cheque No. 036594 BOB 15928 10000 31 do Cheque No. 0212259 BOB 16371 10000 32 do Cheque No. 212247 BOB 16369 10000 M/s Suvign India 568497 dtd. 12.11.92 UCO Bank A/c No. 33 3799 25000 Guracurse Pvt. Ltd. Cash 199495 Miss Surabhi, 1,00,000 Nupur, Pallavi and 34 Smt. Suman Vibhuti
12. House Hold Items
(i) Furniture 9,930.00
(ii) Clothes 12,700.00
(iii)Watches 3,900.00
(iv) Cosmatics 2,100.00
(v) Electronic items 1,01,850.00
(vi) Electrical items 14,300.00
(vii)Room Decorating items 4,320.00
(viii) Kitchen crockery items 8,500.00
(ix) Stationary items 2,840.00
(x) Ornaments 1,950.00 Total 1,62,390 Grand Total = Rs. 52,38,493.00 Hence, the accused and the members of his family had acquired assets at the end of the check period in the sum of Rs. 52,38,493/. CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 82 of 4 Therefore, the final calculation of DA would be as follows:
(A) Assets at the end of the check period Rs. 52,38,493.00 (B) Assets at the beginning of the check period Rs. 84,149.00 (C) Assets acquired during the check period (A - B) Rs. 51,54,334.00 (D) Expenses incurred during check period Rs. 22,19,445.00 (E) Total of Assets acquired & expenses incurred during Rs. 73,73,779.00 the check period (C+D).
(F) Income during the check period Rs. 60,42,957.50 (G) Disproportionate Assets (EF) Rs.13,30,821.50 9.5 Sh. AK Ohri, Ld. Counsel for the accused has relied upon Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796 wherein it has been held that in case the disproportionate assets was around 10% of the total income, therefore, it would not be right to hold that the assets found in the possession of the accused were disproportionate to his known sources of income so as to justify the raising of presumption u/S 5(3). However, in the present case, the disproportionate asset is more than 20% of the total income and therefore, the judgment in Krishnanand Agnihotri (supra) is respectfully distinguished. Hence, in view of the discussions made hereinabove, accused Vishwa Vibhuti is held liable and convicted for the offence punishable u/S 13(2) r/w 13(1)(e) of the POC Act, 1988 in RC No. 1(A)/96.
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 83 of 4
Before parting with, I would be failing in my duty if I don't record appreciation for the fairness and able assistance of Sh. AK Ohri, Ld. defence counsel and Sh. DK Singh, Ld. PP for CBI.
Announced in Open Court (Dinesh Kumar Sharma )
on 22.11.2013 Spl. Judge (PC Act) : CBI-01
Saket Courts : New Delhi.
........................
CBI Vs. Vishwa Vibhuti CC No. 16/13 Page 84 of 4