Delhi District Court
Cbi vs (1) C.B Singh on 21 May, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI
AC No.15/2008
Unique Case ID No.02402R0472462008
FIR No.RC CY 1 2006 E 0005
Under Sec. 120B & 217 IPC
& 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) C.B Singh
S/o Sh. J.S. Prasad
R/o E339, East Vinod Nagar,
Delhi91.
(2) Rajvir Singh @ Rajbir Singh
S/o Late Sh. Bishamber Singh
R/o 47, Guru Angad Nagar Extn.,
Laxmi Nagar, Delhi.
Date of institution : 01.07.2008
Date of judgment reserved : 07.05.2013
Date of judgment : 18.05.2013
JUDGMENT
The two accused persons, namely, C.B Singh and Rajvir Singh @ Rajbir Singh (both on bail) have been sent to face AC No.15/2008 CBI Vs. C.B. Singh etc. Page 1 of 38 trial by CBI, for the offences punishable under Section 120B and 217 IPC and also under Section 13(2) read with Section 13(1)(d) of PC Act.
2 At the time of commission of the offence, accused C.B. Singh was posted as Junior Engineer, Shahdara South Zone, MCD, whereas accused Rajvir Singh @ Rajbir Singh was the private builder.
3 Briefly stating, the facts of the case are that during the year 2006, Hon'ble Delhi High Court passed orders in WP(C) 4582/2003 against the Engineers and Officials of MCD regarding unauthorized construction and CBI was directed to probe their nexus with their hierarchy in Engineering Department, Builders as well as Politicians. Preliminary inquiry was entrusted to Inspector J.R. Katiyar (PW16) who after inquiry submitted a complaint Ex.PW15/A against accused persons and others regarding unauthorized construction in different properties. On the basis of complaint, FIR Ex.PW15/B was registered. Investigation of the case was entrusted to Inspector R.C. Karnatak (PW15). During investigation, it revealed that accused C.B. Singh abused his official position and caused undue pecuniary gain to coaccused Rajvir Singh in the matter of AC No.15/2008 CBI Vs. C.B. Singh etc. Page 2 of 38 unauthorized construction on property No.262, West Guru Angad Nagar, Laxmi Nagar, Delhi, carried out by accused Rajbir Singh. Accused C.B.Singh did not take any coercive action against unauthorized construction raised on the said property. It also revealed that accused C.B. Singh entered into a criminal conspiracy with accused Rajbir Singh in completion of unauthorized construction. Investigation also revealed that unauthorized construction on property No.362, West Guru Angad Nagar, Laxmi Nagar, Delhi was carried out and accused Rajvir Singh constructed flats on the said property without any approved sanctioned plan and sold them to different buyers. Building Watch Register was referred which revealed that no action was taken by MCD staff to stop unauthorized construction at the said property and even the said building was not booked. Complaints about unauthorized construction was received in the office of MCD Shahdara, South Zone but despite the same, property was not booked as unauthorized construction. At that point of time, accused C.B. Singh was the Junior Engineer. Investigation further revealed that plot No.362, West Guru Angad Nagar was in possession of accused Rajvir Singh during the year 2000 who started construction activities on the same AC No.15/2008 CBI Vs. C.B. Singh etc. Page 3 of 38 during the year 2001. Accused C.B. Singh, the then J.E., was in knowledge of unauthorized construction as the same was located in his jurisdiction. An intimation in this regard was sent by P.S. Shakarpur to MCD, Shahdara, South Zone which was ultimately received by accused C.B. Singh but he did not take any action to demolish at ongoing stage, book it, seal it and allowed it to be constructed further.
4 Sh. Ram Kumar Gupta (PW1) has proved the Circular dated 16.12.2003 as Ex.PW1/A, according to which, building activities in the zone were regulated. He stated that if any person desires to carry out construction, he has to file the Building Plan Application and after scrutiny, if documents are found in order, sanction is accorded by the Competent Authority. It was the duty of the area Engineer to detect and take action regarding deviation against the sanctioned Building Plan. He also stated that whenever any unauthorized construction is detected, Junior Engineer has to prepare an FIR which is to be placed before Assistant Engineer. Thereafter, show cause notice is issued and entries are to be made in Misalband Register. Show cause notice is served on defaulting owners/builders. After expiry of period of show cause, the AE passes order for AC No.15/2008 CBI Vs. C.B. Singh etc. Page 4 of 38 demolition.
5 Sh. V.K. Gaur (PW2), Officer Incharge (Building), MCD Shahdara South Zone has stated that Misalband Register for the year 20022003 Ex.PW2/A was dealt with by him in which entry was made with regard to property booked for unauthorized construction. As per File Movement Register Ex.PW2/B for the period 11.05.2001 to 28.05.2003, entries with regard to movement of Unauthorized Construction Files from his section to Junior Engineer were made. He stated that vide letter Ex.PW2/C, it was informed to CBI that property No.362, West Guru Angad Nagar was not booked against unauthorized construction. Vide seizure memo Ex.PW2/D, Police Ongoing Register Ex.PW2/E was handed over to CBI. The Police Register Ex.PW2/F was seized by the CBI. Vide seizure memo Ex.PW2/J, letters Ex.PW2/J1 to J25 written the DCP were seized. Dak Register Ex.PW2/H as well as Ex.PW2/A and Ex.PW2/C i.e. unauthorized construction files of property No. 446447, West Guru Angad Nagar were seized vide memo Ex.PW2/G. 6 On 22.11.2006, IO Inspector R.C.Karnatak(PW15) seized certain documents including certified copies of Building Watch Register Ex.PW15/C from Sh. R.K.Bansal(PW3), Assistant AC No.15/2008 CBI Vs. C.B. Singh etc. Page 5 of 38 Zonal Inspector vide seizure memo Ex.PW3/A. PW3 Sh. R.K.Bansal proved the extracts of Building Watch Register for the period 20012002 and 20022003 in respect of property No. 361362, West Guru Angad Nagar as Ex.PW3/B and Ex.PW3/C. He also proved the copy of Assessment Form of the said property as Ex.PW3/D. During investigation, IO received a letter dated 9.1.2007 Ex.PW15/D from the office of DCP(East), Delhi along with which documents Ex.PW9/A were received. IO got issued letter dated 30.10.2006 Ex.PW15/E to Sh. Rajiv Jain, Executive Engineer, MCD and reply Ex.PW4/A to the same was received. IO issued a letter dated 7.3.2007 Ex.PW15/F to the SHO PS Shakarpur for calling various documents. The documents provided by the police were seized vide memo Ex.PW9/B which includes the copy of intimation dated 11.3.2002 Ex.PW7/A prepared by HC Rajiv Sharma(PW7) regarding property No. 362, West Guru Angad Nagar.
7 During investigation, IO seized copy of Dak Register Ex.PW2/A of accused C.B.Singh vide seizure memo Ex.PW14/A. IO also received letter dated 24.4.2008 Ex.PW2/D regarding posting of accused C.B.Singh. IO issued letter dated 26.11.2007 Ex.PW5/A to ZRO, Delhi Jal Board and reply Ex.PW5/B thereto was received. AC No.15/2008 CBI Vs. C.B. Singh etc. Page 6 of 38 Vide seizure memo Ex.PW5/C, files Ex.PW5/D1 to D3 were seized by the CBI.
8 During investigation vide seizure memo Ex.PW6/A, IO seized documents Ex.PW6/B from Sh. Vinod Kumar Sharma(PW6), owner of the flat in property in question. Vide seizure memo Ex.PW12/A, IO seized documents Ex.PW12/B from Sh. Ajay Jhunjhunwala(PW12), owner of another flat in property in question. Vide seizure memo Ex.PW8/A, IO seized documents Ex.PW8/B from Sh. Ajay Maheshwari(PW8), owner of another flat in property in question. During investigation, IO received letter dated 18.01.2007 Ex.PW10/A from Anil Kumar Gupta(PW10), Administrative Officer, Engineering Department(HQ), MCD along with documents Ex.PW10/B. 9 Sh. Naresh Kumar(PW11), the then Addl.
Commissioner( Engineering), MCD accorded sanction Ex.PW11/A dated 6.6.2008 for prosecution of accused C.B.Singh. 10 After completion of the investigation, the challan was put up in the court where both the accused were supplied with the copies of the chargesheet and the documents of the CBI. 11 The charge under Section 120B IPC read with AC No.15/2008 CBI Vs. C.B. Singh etc. Page 7 of 38 Section 13(2) and 13(1)(d) of the P.C.Act was framed against both the accused persons. Accused C.B. Singh was also charged separately for offences punishable under Section 217 IPC and under Section 13(2) read with 13(1)(d) of PC Act. Both the accused persons pleaded not guilty to the charges framed against them and claimed trial. 12 The prosecution has examined sixteen witnesses in support of its case. Out of those witnesses, PW16 Inspector J.R.Katiyar is the complainant, whereas PW15 Inspector R.C.Karnatak is the Investigating Officer. PW14 Inspector V.Balasubramanian seized certain documents. PW1 Sh.Ram Kumar Gupta, PW2 Sh. V.K.Gaur, PW4 Sh. Sushil Kumar and PW10 Sh.Anil Kumar Gupta are the witnesses from MCD. PW3 Sh.R.K.Bansal is the official of House Tax, whereas PW5 Sh. Satish Chand Sharma is an official of Delhi Jal Board. PW6 Sh.Vinod Kumar Sharma, PW8 Ajay Maheshwari and PW12 Ajay Jhunjhunwala are the owners of flats in property in question i.e. 362, West Guru Angad Nagar, Delhi. PW11 Sh. Naresh Kumar proved the sanction order of accused C.B.Singh. PW7 HC Rajeev Sharma intimated about the unauthorized construction, PW9 HC Yogender was the Reader to SHO PS Shakarpur, whereas PW13 SI Arun Kumar AC No.15/2008 CBI Vs. C.B. Singh etc. Page 8 of 38 was the Divisional Officer of the area.
13 The statements of both the accused persons were recorded under Section 313 Cr.PC. Both the accused persons have denied the present case against them. Accused Rajvir Singh has admitted that he was the owner of the property in question but he did not know if no action of booking of property was taken by MCD. He has also stated that no unauthorized construction was done by him. Accused C.B.Singh has stated that he had in compliance with the circulars and provisions of the DMC Act, booked property No. 361, West Guru Angad Nagar and entries were made in Misl Band Register. Property No. 362, West Guru Angad Nagar was an old property and Sh. S.P.Gautam, the then Executive Engineer, filed written statement to that effect in a civil suit. Police report was wrongly sent in respect of property No.362, West Guru Angad Nagar which was already complete. The said property was already assessed to property tax. Sh. Naresh Kumar had accorded sanction looking into the record. Accused C.B.Singh opted to lead evidence in his defence, whereas accused Rajvir Singh opted not to lead evidence in his defence.
14 Accused C.B.Singh examined two witnesses in his AC No.15/2008 CBI Vs. C.B. Singh etc. Page 9 of 38 defence viz. DW1 Heera Ballabh Pujari who produced the certified copy of documents of civil suit titled Radha Devi vs. Rajvir Singh and MCD and proved the same as Ex.DW1/1. DW2 Sh.Hari Ram has also been examined who has deposed that summoned record relating to property No. 361, West Guru Angad Nagar, Delhi was not available.
15 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as learned defence counsels for accused persons. I have also carefully gone through their submissions and the record of the case.
Criminal Conspiracy 16 The first question arises for consideration is whether there was any criminal conspiracy between the accused persons for facilitating accused Rajvir Singh in raising unauthorized construction and not taking any action by accused C.B.Singh despite raising of unauthorized construction by accused Rajvir Singh on the property in question i.e. plot no.362, West Guru Angad Nagar, Delhi. 17 While dealing with criminal conspiracies, Hon'ble Apex Court in Para. 13 in case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 observed that "to constitute a conspiracy, AC No.15/2008 CBI Vs. C.B. Singh etc. Page 10 of 38 meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists AC No.15/2008 CBI Vs. C.B. Singh etc. Page 11 of 38 of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy."
18 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra 1980 SCC (Cri.) 493, the Hon'ble Supreme has also observed that "it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court." 19 In the present case, it is alleged that accused Rajvir Singh raised unauthorized construction on property No.362, West Guru Angad Nagar, Delhi which was falling in the area of accused C.B. Singh, who was posted as Junior Engineer of MCD. It is also alleged that accused C.B. Singh despite having information/report with regard to unauthorized construction, had not taken any action i.e. neither booked the same, nor sealed the same, nor took any demolition action.
AC No.15/2008 CBI Vs. C.B. Singh etc. Page 12 of 38 20 It has been argued by Ld. counsel for accused C.B. Singh that there was no criminal conspiracy between accused persons as the construction allegedly raised by accused Rajvir Singh was raised prior to the period of posting of accused C.B. Singh in the area. He has further argued that accused C.B.Singh had not caused any pecuniary advantage to his coaccused Rajvir Singh. Ld. Counsel for accused Rajvir Singh has argued that CBI has not led any convincing evidence to prove that there was a prior meeting of minds between the accused persons for entering into a criminal conspiracy. 21 To prove its case, prosecution has examined PW1 Sh. Ram Kumar Gupta who deposed that he joined MCD as Junior Engineer in 1983 and was promoted as Assistant Engineer in 2003 and was posted in Building Headquarters. He deposed that the duties of the engineers posted in Building Department are to ensure the building activities within the permissibility applicable norms and law in their jurisdiction. The building activities in a zone are regulated as per Manual of Instructions for unauthorized construction issued vide Circular dated 16.12.2003 Ex.PW1/A. He further deposed that for sanction of Building Plan, a person who desires to carry out construction has to file a building plan application with MCD. If the AC No.15/2008 CBI Vs. C.B. Singh etc. Page 13 of 38 application is found in order, sanction is accorded by the Competent Authority. He further deposed that as regards deviation against sanctioned building plan, it is the duty of Area Engineer to detect and take action as per law. He further deposed that whenever any unauthorized construction is detected in contravention of provisions of section 332 of DMC Act, Junior Engineer has to prepare an FIR and then to place it before Assistant Engineer. A show cause notice under Section 344(1) and 343 of DMC Act is prepared by Junior Engineer and same is placed before Assistant Engineer for approval. Before issuing show cause notice, entry of FIR and notices shall be made in Misalband Register. After serving of show cause notice and on the expiry of the period, Assistant Engineer would pass order for demolition under Section 343 of DMC Act. He further deposed that for taking demolition action, demolition programmes are fixed and police authority is requested to accompany the demolition squad. 22 During cross examination, he stated that his statement was based on information derived from various circulars Ex.PW1/A and other circulars issued from time to time. He has further stated that JE is the Incharge of his zone. He further stated that Junior Engineer is duty bound to inspect the area to find out the AC No.15/2008 CBI Vs. C.B. Singh etc. Page 14 of 38 construction and then to verify whether it is sanctioned or not. The Junior Engineer is given the responsibility of ward including all sorts of construction whether it is sanctioned or not. He further stated that the procedure to be followed in authorized colony or unauthorized colony is the same.
23 PW2 Sh. V.K. Gaur, Officer Incharge (Building), MCD Shahdara South Zone, has deposed that he was the custodian of records such as Sealing Register, Misalband Register, On going demolition Register, unauthorized construction files, File Movement Register etc. He deposed that normally junior engineers are Incharge of one Ward and Assistant Engineers are Incharge of two Wards. During investigation, he produced various documents before the CBI. He also deposed on the lines of PW1 Sh. Ram Kumar Gupta regarding booking of unauthorized construction and action to be taken by the Engineers. He deposed that accused C.B.Singh was the JE(Building) in Shahdara South Zone. He further deposed that on receipt of complaint related to unauthorized construction, entry is made in diary register and the same are marked to concerned Assistant Engineer who then marks it to concerned JE. After going through the Dak Register Ex.PW2/H for the period 27.11.2001 to AC No.15/2008 CBI Vs. C.B. Singh etc. Page 15 of 38 3.4.2002, he stated that reference No. 1100 pertained to property No. 362, West Guru Angad Nagar which was received from the office of Dy. Commissioner and was marked to AE and then to JE, accused C.B.Singh. This witness further stated that as per relevant page Ex.PW2/A of register of accused C.B.Singh for the period 2002, reference No 1100 was received by accused C.B.Singh. He further stated that letter dated 11.01.2007 Ex.PW2/B was sent to CBI. He also stated that letter dated 12.12.2006 was also sent to CBI. PW2 further deposed that letter dated 24.04.2008 Ex.PW2/D was also sent to CBI. He proved the Police Action On going register as Ex.PW2/E and Police Register as Ex.PW2/F. 24 Sh.R.K.Bansal(PW3), UDC/AZI, House Tax Department, MCD, has deposed that he was posted in the said department since 2001. Area of West Guru Angad Nagar falls in Shahdara South Zone. Till August, 2003, each Assistant Zonal Inspector/Zonal Inspector used to maintain Building Watch Register. During visit of the area, if any construction activity was noticed, they used to enter the details in Building Watch Register and also for the purpose of assessment of property. After going through extracts of Building Watch Register for the period 20012002 and 20022003, AC No.15/2008 CBI Vs. C.B. Singh etc. Page 16 of 38 witness stated that entry at Sl. No.9 of the register for the period 20012002 was made as construction activity was going on 28.12.2001, 5.2.2002 and 31.03.2002 on property No.361362, West Guru Angad Nagar, during his visit to the said property. He further deposed that as per entry No. 4/9 in register for the period 20022003, construction activity was going on the said property on 1.4.2002 and 10.06.2002 when PW3 visited the said property. He proved the entries as Ex.PW3/B and Ex.PW3/C. He also proved the assessment form as Ex.PW3/D. 25 During cross examination, he denied that property verified by him was only 361. He stated that Building Watch Register for property No. 361362. He specifically denied that entries were of property No.361 only.
26 It has been argued by Ld. Counsels for accused persons that the entries Ex.PW3/B and Ex.PW3/C relate to property No. 361 only. It has been argued that as per assessment form Ex.PW3/D, the building was already complete in the March, 2002, when it was assessed to House Tax. It has been argued that since the building was already complete, there was no question of raising any fresh construction and its booking for unauthorized construction. AC No.15/2008 CBI Vs. C.B. Singh etc. Page 17 of 38 27 There is no force in the contention of ld. Defence counsels inasmuch as entries Ex.PW3/B in Building Watch Register clearly shows that when PW3 Sh. R.K.Bansal visited, both the properties i.e. 361 and 362, West Guru Angad Nagar, he found the structure work in progress on 28.12.2001, 5.2.2002 and 31.03.2002. Entries Ex.PW3/C of the said register for the period 2002 to 2003 further show that when PW3 visited the property in question on 1.4.002 and 10.06.2002, construction work was still in progress. Reliance has been placed on the assessment form Ex.PW3/D by the accused persons to fortify their argument that the construction of the building was already complete. However, the assessment form Ex.PW3/D does not speak of completion of building, rather it is clearly mentioned therein that there was erection of building, meaning thereby construction work was still in progress. Assessment form for the year 20022003, though not proved by the prosecution, but can be read by the court to cull out the truth, shows that reconstruction/ erection of building was still in progress and the assessment of the property was done on the basis of existing structure which was lying vacant/locked. This proves the case of prosecution that during the posting of accused C.B.Singh in the ward, where property No. 362, AC No.15/2008 CBI Vs. C.B. Singh etc. Page 18 of 38 West Guru Angad Nagar was situated, construction was still going on.
28 Letter Ex.PW2/D dated 24.04.2008, issued by Executive Engineer(Building), MCD, proves that accused C.B.Singh was posted in Ward No. 7374(Laxmi Nagar) w.e.f. 30.10.2000 to 4.12.2000, 2.2.2001 to 20.04.2001, 24.4.2001 to 4.5.2001, 28.02.2002 to 20.12.2002, 29.02.2003 to 14.12.2003 and so on. This letter Ex.PW2/D further corroborates the case of prosecution that accused C.B.Singh was the Incharge of Ward where property in question was situated during different period from the year 2000 to 2005 and as per Manual of Instructions Ex.PW1/A, accused being JE, was duty bound to book the unauthorized construction on the said property. 29 Letter Ex.PW2/B further proves that unauthorized construction on property in question i.e. 362, West Guru Angad Nagar, was was raised as no building plan was sanctioned for the said property. Letter Ex.PW2/C further corroborates vide which it was informed that as per Mislband Register, property in question was not booked against unauthorized construction since 2001. Since it has been established that accused C.B.Singh was the Incharge of the said ward during the year 2000 to 2005, as per Manual of Instructions AC No.15/2008 CBI Vs. C.B. Singh etc. Page 19 of 38 Ex.PW1/A, he was duty bound to book the property but he had not done so which is evident from letter Ex.PW2/C and letter Ex.PW2/B. 30 HC Rajeev Sharma(PW7) corroborated the case of prosecution that unauthorized construction on the property in question was going on in the year 2002. He deposed that during the period 20012002, he was posted as Constable in PS Shakar Pur. During said posting, he was the Beat Constable in the area of Laxmi Nagar and it was his duty to report unauthorized construction to the SHO. He further deposed that intimation dated 11.03.2002 Ex.PW7/A was filled by him, signed by SHO and sent to the concerned office. He categorically stated that unauthorized construction was being done in property No.362, West Guru Angad Nagar by accused Rajvir Singh, being builder.
31 Perusal of intimation Ex.PW7/A shows that SHO reported unauthorized construction in property in question to the Dy. Commissioner, MCD Shahdara South Zone. PW13 SI Arun Kumar corroborated the testimony of PW7 HC Rajeev Sharma that unauthorized construction on property in question was going on in the year 2002. PW13 deposed that during the year 2002, he was posted as ASI in PS Shakar Pur and was the Division Officer of Mangal AC No.15/2008 CBI Vs. C.B. Singh etc. Page 20 of 38 Bazar area of Laxmi Nagar during the said period. Whenever an unauthorized construction was noticed in the area, an intimation used to be filled up by the Beat Constable or Division Officer and same used to be forwarded to MCD under signatures of SHO. He identified the intimation with regard to property in question as Ex.PW7/A. PW9 HC Yogender also corroborated that original office copy of the form filled up by Ct. Rajeev Sharma is Ex.PW7/A which was an intimation regarding unauthorized construction sent to Dy. Commissioner, MCD Shahdara South Zone.
32 The diary register Ex.PW2/H shows that on 19.03.2002 vide reference No.1100 intimation regarding unauthorized construction on H.No.362, West Guru Angad Nagar was received in MCD office. Entry further shows that the said complaint was marked to Assistant Engineer/Junior Engineer accused C.B.Singh. As per testimony of PW2 V.K.Gaur, the complaint received vide reference No.1100 was received by accused C.B.Singh vide entry Ex.PW2/A of Dak register. Perusal of entry Ex.PW2/A of the Dak register of accused C.B.Singh shows that the reference No.1100 was received by him.
33 No explanation has come forward from the side of AC No.15/2008 CBI Vs. C.B. Singh etc. Page 21 of 38 accused C.B.Singh that as to what action he had taken on receipt of complaint Ex.PW7/A vide Dak Register Ex.PW2/A. Contention of the accused that there was old construction on property No. 362 has been negatived from the statement of Beat Constable(PW7) and Division Officer(PW13) of Delhi Police who had reported that unauthorized construction on the property in question was going on in the year 2002 and the same was reported to MCD vide complaint Ex.PW7/A. 34 It has been argued on behalf of accused persons that the owners of flats examined by the prosecution demolishes its case that the construction was going on when it was complained to MCD. 35 There is no force in the contention of ld defence counsels inasmuch as firstly entries in Building Watch Register Ex.PW3/B and Ex.PW3/C made by Sh. R.K.Bansal(PW3) clearly show that the construction was still in progress in the year 2001 and 2002 when he himself visited the property in question for assessment of property tax. Secondly, as per assessment form Ex.PW3/D, the property in question was not complete, rather it was being erected when the assessment form was issued. The assessment form for the year 20022003, though not exhibited, also shows that AC No.15/2008 CBI Vs. C.B. Singh etc. Page 22 of 38 reconstruction/erection/ change in land etc was going on when it was issued.
36 There is no dispute with regard to ownership of property No. 362, West Guru Angad Nagar, Delhi by accused Rajvir Singh. This fact has also been corroborated from the testimony of PW6 Vinod Kumar Sharma who deposed that he is residing in flat No.8, III floor, 362, West Guru Angad Nagar, Delhi since 2002. He further deposed that said flat was purchased from accused Rajvir Singh and he handed over documents Ex.PW6/B to the CBI in this regard. He further deposed that by the time, flat was purchased by him in May,2002, major portion of the construction was complete. Similarly PW8 Sh. Ajay Maheshwari has stated that he is residing in a flat in property in question since 2001. PW12 Sh. Ajay Jhunjhunwala has stated that he purchased flat in the year 2002. Both these witnesses have stated that they purchased flats from accused Rajvir Singh and that they had handed over documents Ex.PW8/B and Ex.PW12/B respectively to the CBI.
37 As per testimony of owners of flats/shops in property in question, accused Rajvir Singh was the owner of premises in question. It has been established on record that accused Rajvir Singh AC No.15/2008 CBI Vs. C.B. Singh etc. Page 23 of 38 raised unauthorized construction on the property in question and the said fact has been established from letter Ex.PW2/B vide which it was informed by MCD that no building plan was got sanctioned by accused Rajvir Singh for raising construction on the property in question. Unauthorized construction has also been established from letter Ex.PW2/C vide which it was informed that the property in question was not booked against unauthorized construction. 38 It has been established that accused Rajvir Singh was the owner of the property in question and raised unauthorized construction over it. It has also been established that the unauthorized construction raised on the property in question owned by accused Rajvir Singh was not booked by accused C.B. Singh who was posted in the concerned ward being Junior Engineer and Incharge of the area in violation of manual of instructions of MCD Ex.PW1/A and by abusing his official position did not take any coercive action on the unauthorized construction which establishes criminal conspiracy and prior meeting of minds of both the accused and in order to achieve the object of said criminal conspiracy, no booking of the unauthorized construction on the property in question was done by accused C.B. Singh and thus he facilitated his coaccused Rajvir Singh, owner of AC No.15/2008 CBI Vs. C.B. Singh etc. Page 24 of 38 the property in question, in gaining pecuniary advantage. The prosecution has successfully established the charge of criminal conspiracy against both the accused persons.
39 Consequently, both the accused are held guilty for the commission of offence punishable under section 120B IPC read with section 13(2) r/w 13(1)(d) of the P.C.Act.
Offence u/s 217 IPC 40 Accused C.B.Singh has also been charged for the offence punishable under section 217 IPC. It has been alleged against him that he being the public servant knowingly disobeyed the circulars and directions of MCD issued from time to time intending thereby to protect the unauthorized construction raised by his co accused.
41 To prove the allegations, the prosecution has examined PW1 Sh. Ram Kumar Gupta who deposed that duties of Engineers posted in Building Department are to ensure the building activities within the permissible applicable norms. He further deposed that building activities in a zone are regulated as per Manual of Instructions for unauthorized construction issued vide circular No. D/38/EEBHQG/03 dated 16.12.03 Ex.PW1/A. He further deposed AC No.15/2008 CBI Vs. C.B. Singh etc. Page 25 of 38 that for sanction of Building Plan, a person who desires to carry out construction has to file a building plan application with MCD. If the application is found in order, sanction is accorded by the Competent Authority. He further deposed that as regards deviation against sanctioned building plan, it is the duty of Area Engineer to detect and take action as per law. He further deposed that whenever any unauthorized construction is detected in contravention of provisions of section 332 of DMC Act, Junior Engineer has to prepare an FIR and then to place it before Assistant Engineer. A show cause notice under Section 344(1) and 343 of DMC Act is prepared by Junior Engineer and same is placed before Assistant Engineer for approval. Before issuing show cause notice, entry of FIR and notices shall be made in Misalband Register. After serving of show cause notice and on the expiry of the period, Assistant Engineer would pass order for demolition under Section 343 of DMC Act. He further deposed that for taking demolition action, demolition programmes are fixed and police authority is requested to accompany the demolition squad. 42 PW2 Sh.V.K.Gaur, Officer Incharge(Builing), MCD Shahdara South Zone, has also deposed that booking of unauthorized construction is done by the Junior Engineer. First FIR is registered AC No.15/2008 CBI Vs. C.B. Singh etc. Page 26 of 38 by the JE who sends it to the Office Incharge(Building) for making entry in Mislband Register which becomes FIR No. Issue of show cause notice and subsequent proceedings are the work of JE and AE. After entry in Mislband Register, FIR is sent back to JE for taking further proceedings. In case of demolition, file is handed over to JE. 43 PW4 Sh. Sushil Kumar, Superintending Engineer, MCD, has also deposed that it is the primary duty of the JE(Building) to visit his ward and detect unauthorized construction. On detection of unauthorized construction, JE(Building) registers an FIR and then show cause notice is prepared by him. Thereafter, file is sent to Office Incharge(Building). If demolition is to be carried out, file is handed over to JE(Building) for taking further action. 44 I have gone through the office order dated 16.12.2003 Ex.PW1/A issued by the office of Commissioner, MCD. With regard to unauthorized construction, duties of Junior Engineer are clearly defined that on detection of any unauthorized construction, an FIR is to be prepared by the Junior Engineer. Then, he is to place the FIR before AE. A show cause notice under section 344(1) and 343 of the DMC Act should be prepared by the Junior Engineer and be placed before AE for approval. Entry of FIR and notices should be AC No.15/2008 CBI Vs. C.B. Singh etc. Page 27 of 38 made in the Mislband register. The Junior Engineer is also to serve the show cause notice.
45 In the present case as discussed in earlier part of the judgment, complaint Ex.PW7/A regarding unauthorized construction in the property in question was made to the MCD and same was assigned to accused C.B.Singh. Entry in Dak Register Ex.PW2/H proves that complaint Ex.PW7/A was received in the office of MCD which was assigned to accused C.B.Singh. Entry in Dak Register Ex.PW2/A of accused C.B.Singh shows that he had received the said complaint. It has already been established that accused C.B.Singh did not take any action with regard to unauthorized construction raised by his coaccused Rajvir Singh on the property No. 362, West Guru Angad Nagar, what to say of its booking or demolishing the same.
46 In view of testimony of PW1 Sh. Ram Kumar Gupta, PW2 Sh. V.K.Gaur and PW4 Sh Sushil Kumar, accused C.B.Singh was duty bound to take action against unauthorized construction raised by his coaccused. But he did not do so. The office order Ex.PW1/A of MCD also corroborates the testimony of PW1, PW2 and PW4. Thus, the prosecution has established its case against AC No.15/2008 CBI Vs. C.B. Singh etc. Page 28 of 38 accused C.B. Singh that he knowingly disobeyed the directions of his department i.e. MCD intending thereby to save the unauthorized construction raised by his coaccused on property No. 362, West Guru Angad Nagar, Delhi.
Criminal misconduct 47 It is alleged against accused C.B.Singh that being a public servant and while posted as Junior Engineer, he abused his official position in not taking any demolition action on the unauthorized construction raised by his coaccused Rajvir Singh and thus caused pecuniary advantage to him.
48 Ld. PP for the CBI has argued that accused C.B.Singh deliberately and intentionally did not take any demolition action against the unauthorized construction and thus abused his official position. He has further argued that accused C.B. Singh intentionally did not take any action against the unauthorized construction despite receipt of complaint against the same from Delhi Police. 49 Testimony of owners of flats/shops in the property in question, namely, PW6 Sh. Vinod Kumar Sharma, PW8 Sh. Ajay Maheshwari and PW12 Sh. Ajay Jhunjhunwala, as discussed above, established that no action had been taken by the MCD when they AC No.15/2008 CBI Vs. C.B. Singh etc. Page 29 of 38 remained in possession of the flats.
50 It has also been established that accused C.B.Singh was the Incharge of the Ward in which property in question was situated. As per complaint Ex.PW7/A made by HC Rajeev Sharma (PW7), he noticed unauthorized construction on the property in question and the said intimation was sent to MCD Shahdara South Zone. As per entry No.1100 in dak register Ex.PW2/H, the said intimation was received in MCD office and it was marked to Assistant Engineer/Junior Engineer accused C.B. Singh. The entry Ex.PW2/A in dak register of accused C.B. Singh, establishes the case of prosecution that the complaint Ex.PW7/A made by Delhi Police was received by accused C.B. Singh, but despite its receipt, he had neither booked the unauthorized construction nor recorded FIR nor took any action against the same. In this way, by not taking any action against the unauthorized construction raised by accused Rajvir Singh on the property in question, accused C.B.Singh has caused undue advantage to his coaccused by not taking any action against the same.
51 To probabilise his defence, accused C.B.Singh has examined DW1 Hira Ballabh, LDC, Record Room (Civil), Tis Hazari AC No.15/2008 CBI Vs. C.B. Singh etc. Page 30 of 38 Courts, Delhi who proved the certified copy of plaint, written statement filed by MCD, action taken report etc. of civil suit titled Smt. Radha Devi Vs. Rajbir Singh and MCD as Ex.DW1/1. Accused C.B. Singh also examined DW2 Sh. Hari Ram but he had not produced any original documents to support his testimony. 52 Accused C.B. Singh cannot get any help from documents Ex.DW1/1 inasmuch as he was duty bound to take action against the unauthorized construction as per circular Ex.PW1/A of the MCD, which he violated in the present case. Thus, accused C.B. Singh has failed to probabilise his defence as he has failed to bring on record any material or evidence by way of defence evidence or through the crossexamination of prosecution witnesses in support of his defence.
53 In view of above discussion, prosecution has successfully established its case against accused C.B.Singh that by abusing his official position as public servant, he facilitated his co accused Rajvir Singh by not taking any action against the unauthorized construction on the property in question i.e. 362, West Guru Angad Nagar, Delhi with a view to cause pecuniary advantage to him and thus committed a criminal misconduct. Therefore, AC No.15/2008 CBI Vs. C.B. Singh etc. Page 31 of 38 accused C.B. Singh is held guilty under section 13(2) read with section 13(1)(d) of the P.C.Act.
Conclusion 54 The prosecution has successfully established that there was criminal conspiracy between both the accused persons, object of which was to cause pecuniary advantage to accused Rajvir Singh. It has been established that accused Rajvir Singh was the owner of the property bearing No.362, West Guru Angad Nagar, Delhi and thereupon he raised unauthorized construction. It has also been established that accused C.B.Singh had the information of raising unauthorized construction on the property in question by accused Rajvir Singh but despite receipt of complaint Ex.PW7/A from Delhi Police which was received by him, accused C.B.Singh had not taken any action on the same. In this way, it has been established that accused C.B.Singh by abusing his official position facilitated his coaccused Rajvir Singh and caused pecuniary advantage to him and thus a criminal conspiracy between them has duly been established. 55 It has also been established that accused C.B.Singh had knowingly disobeyed the directions of MCD issued vide circular Ex.PW1/A which mandated that the junior engineer of MCD was duty AC No.15/2008 CBI Vs. C.B. Singh etc. Page 32 of 38 bound to book and take action against the unauthorized construction in the area under his control, but he failed to obey the said instructions.
56 Prosecution has successfully established that accused C.B. Singh was posted in the ward and was Incharge of the ward where the property in question i.e. property No.362, West Guru Angad Nagar, Delhi was situated. Prosecution has further established that accused C.B.Singh while posted as Junior Engineer had not taken any action on the unauthorized construction over the property in question and thus abused his official position as a public servant thereby facilitating his coaccused Rajvir Singh in raising unauthorized construction and causing pecuniary advantage to him. 57 In view of above discussion, evidence and material on record, both the accused, namely, C.B.Singh and Rajvir Singh are hereby held guilty for commission of offence under section 120B IPC read with section 13(2) read with section 13(1)(d) of P.C.Act. Accused C.B.Singh is also held guilty for commission of offences punishable under Section 217 IPC as he disobeyed the instructions of MCD. Accused C.B. Singh is also held guilty under section 13(2) read with section 13(1)(d) of P.C.Act as he abused his official AC No.15/2008 CBI Vs. C.B. Singh etc. Page 33 of 38 position being public servant and facilitated his coaccused Rajvir Singh in raising unauthorized construction and caused pecuniary advantage to him. Accordingly, both the accused are convicted for the abovesaid offences.
Announced in the open Court ( P.S. TEJI )
Dated: 18.05.2013 District & Sessions Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.15/2008 CBI Vs. C.B. Singh etc. Page 34 of 38
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.15/2008 Unique Case ID No.02402R0472462008 FIR No.RC CY 1 2006 E 0005 Under Sec. 120B & 217 IPC & 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) C.B Singh
S/o Sh. J.S. Prasad
R/o E339, East Vinod Nagar,
Delhi91.
(2) Rajvir Singh @ Rajbir Singh
S/o Late Sh. Bishamber Singh
R/o 47, Guru Angad Nagar Extn.,
Laxmi Nagar, Delhi.
ORDER ON SENTENCE
I have heard Sh. R.N. Oberoi, Ld. Counsel for
convict C.B. Singh, Sh. S.K. Ahluwalia, Ld. Counsel for convict Rajvir Singh as well as Sh. S. Krishna Kumar, Ld. PP for the CBI on the quantum of sentence.
2 The learned PP for the CBI has submitted that the AC No.15/2008 CBI Vs. C.B. Singh etc. Page 35 of 38 convicts have been held guilty for commission of criminal conspiracy. Convict C.B. Singh, being public servant, by misusing his official position caused pecuniary advantage to his coconvict by allowing him to raise unauthorized construction and not taking any action against the said unauthorized construction. He has submitted that in the similar matters, accused C.B.Singh has already been convicted for three years imprisonment. He has submitted that unauthorized construction on large scale is going on unchecked by the private builders in connivance with government officials and they have made mockery of the system. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.
3 The learned counsel for convict C.B. Singh, it is submitted that he is aged about 47 years. He his having wife aged 45 years, daughter aged 22 years and son aged 17 years in the family. Apart from them, convict is also having old aged ailing mother in the family to look after who is suffering from cancer. Medical documents in support of illness of mother of convict C.B. Singh have been filed. Convict is the sole bread earner of the family and entire family is dependent upon him. Ld. Counsels for the convicts have submitted AC No.15/2008 CBI Vs. C.B. Singh etc. Page 36 of 38 that a lenient view may be taken while awarding sentence to them. 4 Vide judgment dated 18.05.2013, both the convicts C.B. Singh and Rajvir Singh have been convicted under Section 120B IPC read with Section 13(2) read with Section 13(1)(d) of P.C. Act. Convict C.B. Singh has also been convicted under Section 217 IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act. 5 Considering the circumstances under which the offences were committed, convicts are sentenced as under :
(i)Convict C.B. Singh is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(ii)Convict Rajvir Singh is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iii)Convict C.B. Singh is awarded sentence of two years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 217 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for three months. AC No.15/2008 CBI Vs. C.B. Singh etc. Page 37 of 38
(iv)Convict C.B. Singh is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
6 All the sentences of the convict C.B. Singh shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts. File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 21.05.2013 District & Sessions Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.15/2008 CBI Vs. C.B. Singh etc. Page 38 of 38