Delhi District Court
Cc No. 27/11, State vs . Sunil Mohan Gupta & Ors. Page No. 1 Of 146 on 17 May, 2016
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C.ACT), CBI08, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CC No. : 27/11
FIR No. : 48/94
PS : ACB, New Delhi
U/s : 120B IPC r/w Section 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988 and
Sections 197, 198 & 336 IPC
Unique ID No. 02401R0000261996
State
Versus
1. Sunil Mohan Gupta (A1)
S/o Sh. R. D. Gupta
R/o 27/4, Onkar Nagar 'B'
Tri Nagar, Delhi110035
The then Junior Engineer (Civil), MCD, Delhi.
2. B. R. Malhotra (A2)
S/o Late Sh. R. P. Malhotra
R/o Qr. 38, Vishakha Enclave, Pitampura
Delhi110034
The then Zonal/Assistant Engineer (Civil), MCD, Delhi
3. Ram Saran (since deceased and proceedings abated
on 15.03.1996) (A3)
S/o Sh. Kaushi Ram
R/o H. No. 275, Ward No. 15
Jaikam Pura, Gurgaon, Haryana
The then Executive Engineer (Coordination)
MCD, Town Hall, Delhi.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 1 of 146
4. Krishan Kumar (since deceased and proceedings
abated on 16.08.1996) (A4)
S/o Sh. Ghanshyam Dass
R/o M4166, Pahari Dhiraj
Sadar Bazar, Delhi
Also at: 3107/37, South Patel Nagar
New Delhi110008
5. Rattan Chand (A5)
S/o Late Sh. Ghanshyam Dass
R/o 4134, Pahari Dhiraj
Sadar Bazar, Delhi
Also at: H. No. 7, South Patel Nagar
New Delhi110008
6. Mrs. Vibha Taneja (A6)
W/o Sh. Pawan Kumar
R/o 4166, Pahari Dhiraj
Sadar Bazar, Delhi110006
7. M/s Hiteshi Estate Pvt. Ltd. (A7)
38/1, West Patel Nagar
New Delhi110002 through its Attorney/Director
Roop Kishore Taneja
S/o Late Sh. K. C. Taneja
8. M/s Remarkable Construction Pvt. Ltd. (A8)
4134, Pahari Dhiraj
Sadar Bazar, Delhi, through its Attorney
Rattan Chand Taneja
S/o Late Sh. Ghanshyam Dass
9. M/s Pooja International Pvt. Ltd. (A9)
4166, Pahari Dhiraj
Sadar Bazar, Delhi, through its Attorney/Director
Lajpat Rai
S/o Sh. Krishan Kumar
10. M/s Everite Estate Pvt. Ltd. (A10)
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 2 of 146
895, Nai Sarak, Delhi, through its Attorney/Director
S. L. Khurana
S/o Sh. H. K. Khurana
11. M/s GoWell Construction Pvt. Ltd. (A11)
10B, Rajendra Park
Pusa Road, New Delhi, through its Attorney/Director
Narain Dass Taneja
S/o Sh. Ghanshyam Dass Taneja
12. Lajpat Rai (A12)
S/o Sh. Krishan Kumar
R/o 4166, Pahari Dhiraj
Sadar Bazar, Delhi
Also at: 3107/37,
South Patel Nagar, New Delhi
13. M/s Hemant Kumar, HUF (A13)
Through its Karta
Hemant Kumar (since deceased)
S/o Sh. Krishan Kumar
7, South Patel Nagar
New Delhi
Also at: 4166, Pahari Dhiraj
Sadar Bazar, Delhi
14. Ravinder Kumar Taneja (A14)
S/o Sh. Narain Dass
R/o 3374, Hauz Quazi, Delhi
Also at: 7, South Patel Nagar, New Delhi
15. Kamal Kumar (A15)
S/o Sh. Rattan Chand Taneja
R/o 4134, Pahari Dhiraj
Sadar Bazar, Delhi
Also at: 7, South Patel Nagar, New Delhi
16. Hemant Kumar (since deceased and proceedings
abated on 17.01.2008) (A16)
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 3 of 146
S/o Sh. Krishan Kumar
R/o 4166, Pahari Dhiraj
Sadar Bazar, Delhi
Also at: 7, South Patel Nagar, New Delhi
17. Pawan Kumar (A17)
S/o Sh. Gopal Chand
R/o 895, Nai Sarak, Delhi
Also at: 7, South Patel Nagar, New Delhi
18. Mrs. Veena Taneja (A18)
W/o Sh. D. N. Taneja
R/o 895, Nai Sarak, Delhi
Also at: 7, South Patel Nagar, New Delhi
19. Mrs. Anjali Rani (A19)
D/o Sh. Devki Nandan
R/o H. No. 7, South Patel Nagar
New Delhi
20. Mrs. Sarla Taneja (since deceased and proceedings
abated) (A20)
W/o Sh. K. K. Taneja
R/o H. No. 7, South Patel Nagar
New Delhi
21. M/s Lajpat Rai, HUF (A21)
through its Karta Lajpat Rai
S/o Sh. Krishan Kumar Taneja
3107/37, South Patel Nagar
New Delhi
Also at: 4166, Pahari Dhiraj
Sadar Bazar, Delhi,
22. M/s D. N. Taneja, HUF (A22)
through its Karta Devki Nandan Taneja
S/o Sh. Ghanshyam Dass Taneja
3374, Hauz Quazi, Delhi
Also at: 7, South Patel Nagar
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 4 of 146
New Delhi,
23. M/s Rajan Hotel Pvt. Ltd. (A23)
1015, Arya Samaj Road
Karol Bagh, New Delhi,
through its Attorney Uma Tewari
W/o Sh. Ramesh Tewari
R/o R584, New Rajindra Nagar
New Delhi
24. Bimla Tewari (since deceased and proceedings
abated on 27.01.2014) (A24)
W/o Late Sh. R. D. Tewari
R/o R584, New Rajindra Nagar
New Delhi
25. Rajan Tewari (A25)
S/o Sh. Ramesh Tewari
R/o R584, New Rajindra Nagar
New Delhi
26. Ramesh Tewari (A26)
S/o Late Sh. R. D. Tewari
R/o R584, New Rajindra Nagar
New Delhi
Date of FIR : 23.12.1994
Date of Institution : 07.06.1996
Arguments concluded on : 05.05.2016
Date of Judgment : 17.05.2016
(The serial numbers of accused persons have been given
herein as per the list of accused filed with the
chargesheet, though in the order sheets they have been
given different serial numbers)
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 5 of 146
J U D G M E N T
This case was registered on the basis of a written complaint dated 23.12.1994 made by PW6 Sh. B. B. Nanda, the then EngineerinChief, MCD, Delhi, forwarded by Sh. R. P. Mishra, IPS, Director of Vigilance, MCD, Delhi and addressed to the DCP, ACB, Government of NCT of Delhi, wherein it was alleged that accused namely Sunil Mohan Gupta (A1), B. R. Malhotra (A2) and Ram Saran (A3) had entered into a criminal conspiracy with each other and some private persons/owners/builders of property numbers 5/34, 17/34, 18/34, 11B/5 and 11B/8, Pusa Road, Karol Bagh, New Delhi in the year 1993, with an intent to fraudulently and dishonestly prepare false completion certificates in respect of the above five properties and the said false completion certificates were meant to be used subsequently as true by the above private persons/owners/builders, knowing the same to be false, and A1 to A3 had shown undue haste and favours in the issuance of the said false completion certificates and had also abused their official positions as such. A1 and A2 were posted as Junior Engineer (JE)(Building) and Zonal Engineer (ZE) (Building) respectively in office of the Karol Bagh Zone, MCD at the relevant time and A1 was posted as EE (EE) (Building) at MCD HQ, Town Hall, Delhi.
2. The details of ownership of the above five properties and the dates of their acquisition etc, as gathered CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 6 of 146 during the investigation, are as under: i. Property No. 5/34, Pusa Road, New Delhi measuring 1450 sq. yards was purchased by accused Krishan Kumar (A
4), Rattan Chand (A5) and Vibha Taneja (A6) in undivided 1/3rd share each on 24.12.1991.
ii. Property No. 17/34, Pusa Road, New Delhi measuring 1375 sq. yards was purchased by M/s Hiteshi Estate Pvt. Ltd, New Delhi (A7), M/s Remarkable Construction Pvt. Ltd, Delhi (A8), M/s Pooja International Pvt. Ltd, Delhi (A9) and M/s Everite Estate Pvt. Ltd, Delhi (A10) in 1/4 th share each on 26.11.1990.
iii. Property No. 18/34, Pusa Road, New Delhi measuring 1375 sq. yards, was purchased by M/s GoWell Construction Pvt. Ltd, New Delhi (A11), accused Lajpat Rai (A12), M/s Hemant Kumar, HUF (A13) and accused Ravinder Kumar Taneja (A14) in 1/4th share each in the year 1990.
iv. Property No. 11B/5, Pusa Road, New Delhi measuring 200 sq. yards was purchased by accused Kamal Kumar (A
15), Hemant Kumar (A16), Pawan Kumar (A17), Veena Taneja (A18), Anjali Rani (A19), Sarla Taneja (A20), M/s Lajpat Rai HUF (A21) and M/s D. N. Taneja, HUF (A22) in 1/8th share each on 04.05.1992.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 7 of 146 v. Property No. 11B/8, Pusa Road, New Delhi measuring 200 sq. yards was purchased by M/s Rajan Hotel Pvt. Ltd, New Delhi (A23), accused Bimla Tewari (A24), Rajan Tewari (A25) and Ramesh Tewari (A26) in undivided 1/4th share each in the year 1991.
3. It has also been gathered during the investigation that the owners/coowners of the above said properties had given rights for the construction and other related matters to their attorneys and Pawan Kumar (A17) was the attorney for property number 5/34, Ravinder Kumar (A14) was the attorney for properties number 17/34 and 18/34, Hemant Kumar (A16) was the attorney for property number 11B/5 and Ramesh Tewari (A26) was the attorney for property number 11B/8. The attorneys/coowners of the above said five properties had applied for obtaining sanctions from the competent authority of MCD for construction of 2½ storey residential structures and basements on the above five properties and the same were duly granted by the MCD as per their construction plans and then the attorneys/coowners of the said properties had entered into a criminal conspiracy with the above employees of MCD, i.e. A1 to A3, for getting false completion certificates issued from the office of MCD for incomplete buildings and it was done to facilitate the owners/ coowners of the said properties to raise unauthorized constructions in the said properties. It is alleged that the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 8 of 146 completion certificates were applied by the attorneys/owners thereof in the year 1993 and A1, who was a JE, had processed and forwarded the documents for issuance of such completion certificates of these properties initially and the documents of property number 5/34 were processed and forwarded by him on 27.10.1993 and that of the remaining four properties on 26.10.1993, i.e. four cases on one day for inspection, taking the measurements, working out of areas/deviations and calculation of compounding fees etc for such huge structures/buildings. It is also alleged that the above documents were processed and forwarded by him to A 2, who was a ZE, and A2 in turn had further forwarded and recommended the issuance of completion certificates for these five properties for the approval of A3, who was an Ex. En. (Building) HQ, MCD sitting at Town Hall, Delhi and also one of the competent authorities to approve the issuance of such certificates on the recommendations of a ZE. It is alleged that it was done in violation of the prevalent practice/convention with the MCD, which required such applications to be forwarded for approval of the Zonal Additional Deputy Commissioner, who was the other competent authority to approve the issuance of completion certificates for residential buildings under the MCD Act and was sitting in the Karol Bagh Zonal Office of MCD itself, where A1 and A2 both used to sit, but these applications were straightaway forwarded to A3 by A2, in furtherance of the above said conspiracy. All the above CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 9 of 146 applications are stated to have been approved by A1 on 28.10.1993 and finally the completion certificates in respect of the above said properties are alleged to have been issued on 12.11.1993, after taking some compounding fees on the same day and without taking cognizance of the fact that the objections raised in the process/recommendation reports were not removed and rectification was not done, as required, before the grant or issuance of such completion certificates by A1 and A2 and further despite the fact that the construction of the buildings had not reached at the stage at which the completion certificates could have been issued.
4. It is further alleged that during the investigation PW7 Sh. Narender Singh, LDC, the then Tax Clerk of the Building Department, Karol Bagh Zone, MCD, was called by A 2 in his office on 12.11.1993 and was directed by A2 to receive the compounding fees from the three accused, i.e. one being the representative of the Tewari Group, which is the owner of the property no.11B/8, Pusa Road, New Delhi, namely Ramesh Tewari (A26) and the remaining two of the Taneja Group, which is the owner of the remaining four properties, i.e Ravinder Kumar Taneja (A14) and Pawan Kumar Taneja (A17). Accordingly, Sh. Narender Singh/PW7 is alleged to have received the compounding fee against proper receipt in respect of all the above five properties and after doing the needful he had marked the documents for CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 10 of 146 checking and signatures to A2 and A2 had then got the same checked and countersigned from A1, whereas in routine Sh. Narender Singh used to get these documents checked and countersigned from the other I/C, Building. It was further revealed during the investigation that in the presence of Sh. Narender Singh, the above three private accused had also held discussions with A1 and A2 regarding all the above five properties and Ramesh Tewari (A26) had even given an amount of Rs. 50,000/ to A2 and Ravinder Kumar (A14) and Pawan Kumar (A17) had given an amount of Rs. 1,00,000/ to A1 as part payments of bribe, with a promise to make the final payments in the due course of time. They had further asked A1 to pay the share of A3 for the favours extended to them.
5. It was further revealed during the investigation that A1 and A2 did not keep any checks and did not take the requisite precautions in respect of the unauthorized constructions or deviations of the above said five properties and did not take any steps for removal thereof before the issuance of the above completion certificates and these completion certificates were issued by them in haste and by abusing of their official positions as the construction on the said properties was still in progress and the properties were still not fit for occupation, as was indicated by the photographs of the said properties submitted by the owners/attorneys thereof, alongwith their applications for issuance of such CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 11 of 146 certificates. It was alleged that the construction on the said properties was in progress even after the issuance of such certificates and this fact is evident from the records of the House Tax Department of MCD, Karol Bagh Zone and the reports of the Local Commissioner appointed by the Hon'ble High Court in Civil Suit Numbers 160/94, 175/94, 176/94, 701/94 and 1097/94 in respect of the properties number 5/34, 18/34, 11B/5, 11B/8 and 17/34 respectively. It is alleged that A1 to A3 had fraudulently prepared and issued the above false completion certificates of the above five properties, which were subsequently used by the owners/builders of the said properties as true completion certificates, knowing the same to be false, in the above proceedings before the Hon'ble High Court. It is also alleged that the owners/builders of the said properties had raised unauthorized constructions on the above properties and it was done rashly and negligently and without observing the desired safety norms and endangering the life and personal safety of the public and the occupants of the adjoining buildings. It was further alleged that the plinth area as well as the extra construction area of all the above five properties was also established from the inspection reports of experts of the office of Superintending Surveyor of WorksI, PWD, Government of NCT of Delhi, when the said properties were inspected by these experts on 11.08.1994 and 12.08.1994 during the course of an enquiry conducted on a complaint received in respect of the above properties, prior to CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 12 of 146 the registration of this case. After completion of the investigation and obtaining the requisite sanction U/s 19 of the Prevention of Corruption Act, 1988 (in short 'PC Act') against the three public servants involved in this case, i.e. A1 to A3 from the concerned competent authorities of MCD, a chargesheet for commission of the offences punishable U/s 120B IPC r/w Sections 13(1)(d) and 13(2) of the PC Act and Sections 197, 198 & 336 IPC was ultimately prepared and filed in the court against all the accused persons.
6. The chargesheet was filed in this court on 07.06.1996 and while taking cognizance of the offences alleged, the accused persons were directed to be summoned by the court. It was reported on the very first date after the issuance of summons that the accused Krishan Kumar (A4) had expired and hence, proceedings against him were directed to be abated. On appearance of all the other accused persons, copies of the chargesheet and documents were supplied to them in compliance of provisions of Section 207 Cr.P.C. The accused Ram Saran (A3) and Sarla Taneja Gupta (A20) also expired prior to the framing of charges and though proceedings against A3 were directed to be abated by an order of the court, but the date of death of A20 or the specific order of the court directing the abatement of proceedings against her are not clear from the records. However, the proceedings against her shall also be deemed to CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 13 of 146 have been abated by operation of law.
7. Vide a detailed order dated 15.09.2003, this court had observed that a strong prima facie case was made out against all the remaining accused persons, i.e. A1 & A2, A5 to A19 and A21 to A26, for framing of charges against them for the offence punishable U/s 120B IPC r/w Sections 197/198 IPC and Sections 7 & 13(1)(d) of the PC Act. It was further observed that a strong prima facie case was also made out against A1 and A2 for the substantive offences U/s 7 & 13(1)
(d) of the PC Act and Section 197 IPC and further against A 14, A17 and A26 for the substantive offence U/s 12 of the said Act and charges for the same were also directed to be framed against them. Charges in terms of the above said order were framed by this court against the accused persons on 27.09.2003.
8. The prosecution in support of its case has examined on record total 26 witnesses and their names and purpose of examination are being stated herein below:
9. PW1 Sh. S. S. Dang was posted as ZE (Building) in the Karol Bagh Zone of MCD on 13.11.1995 and he had only handed over the detailed biodata Ex. PW1/A of A1 to the Vigilance Department of MCD.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 14 of 146
10. PW2 Sh. V. P. Rao was posted as Additional Deputy Commissioner (ADC) in the Karol Bagh Zone, MCD from April, 1992 to February, 1995. He was called by the officials of the Anti Corruption Branch (ACB) during the investigation of this case and was shown the files Ex. PW2/A, Ex. PW2/D, Ex. PW2/H, Ex. PW2/K and Ex. PW2/N of the above five properties bearing numbers 5/34, 17/34, 18/34, 11 B/5 and 11B/8, Pusa Road, Karol Bagh, New Delhi and he has also identified in the court the said files and the signatures of A1 to A3 on the NOCs Ex. PW2/B, Ex. PW2/E, Ex. PW2/G, Ex. PW2/K and Ex. PW2/O respectively of the above five properties issued by A1 and also the signatures of A1 and A2 on the completion certificates Ex. PW2/C, Ex. PW2/F, Ex. PW2/J, Ex. PW2/M and Ex. PW2/P respectively of these five properties. He was also shown in the court one other file Ex. PW2/Q of his office containing the two office orders/letters dated 18.11.1993 and 01.11.1993, which are Ex. PW2/R and Ex. PW2/S respectively, and he stated that the same were issued by the then EE (Coordination) directing the ZE (Building) of the said Zone to keep a watch regarding construction on the above said five properties. He has also stated that the completion certificates regarding the above said five properties were issued while he was posted in the said office in his above capacity.
11. He has further stated on record that he himself CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 15 of 146 had also inspected the above said five properties, but he could not recollect the exact period of the said inspections. He further claimed to have supervised the demolition work of unauthorized construction in the said properties, which was ordered by the ZE concerned. He has also stated that at the time of inspection of these properties, he had noticed that these properties were likely to be used for commercial purposes. He has further identified A1 and A2 during his statement made in the court.
12. PW3 Sh. Chander Prakash Gupta was posted as Deputy Commissioner, CSE, MCD at Town Hall and was also looking after the Karol Bagh Zone of MCD on 22.03.1996. He has stated that on receipt of certain documents relating to A1 in his office, he had accorded the sanction Ex. PW3/A, U/s 19 of the PC Act, for prosecution of A1.
13. PW4 Sh. Rajeshwar Dayal was posted as Assistant Zonal Inspector in the House Tax Department of Karol Bagh Zone of MCD during the period from June, 1994 to May, 1995. As per him, one building watch register was being maintained in their office and entries in the said register were used to be made regarding the status of under construction buildings of their area after inspections of the said buildings. He claims to have inspected three properties bearing numbers 5/34, 17/34 and 18/34, Pusa Road, Karol Bagh, New Delhi on CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 16 of 146 30.06.1996, 29.07.1994, 26.08.1994, 28.09.1994, 25.10.1994, 28.11.1994 and 05.12.1994 and having made the entries regarding the status of construction of these properties in the above said register. During his statement, photocopies of the relevant entries made in the above register regarding the status of construction of the buildings on the above three properties during his above said visits have also been brought on record as Ex. PW4/D to Ex. PW4/F.
14. He has stated that he took over the charge of the said post from his predecessor Sh. Harcharan Singh and he also identified the handwriting of Sh. Harcharan Singh in photocopies of similar entries Ex. PW4/A to Ex. PW4/C dated 11.05.1993 pertaining to these three properties, which were made in respect of the inspections carried out by his above predecessor during the year 199394. However, the original of all the above entries Ex. PW4/A to Ex. PW4/F could not be produced in the court as the original building watch registers of the years 199394 and 199495 were stated to be not traceable. He has also stated that he handed over the photocopies Ex. PW4/G1 to Ex. PW4/G9 of the applications for mutation, the proformas for approval of mutation and mutation letters in respect of the above said three properties to the Vigilance Department of MCD during the investigation.
15. PW5 Dr. N. Ravi was working as Superintending CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 17 of 146 Surveyor of PWD, ZoneI in Delhi Administration in the year 1994 and had given the report Ex. PW5/A dated 12.08.1994, along with its annexure Ex. PW5/B, on the basis of the survey conducted in respect of the above five properties. However, he has stated that the survey was not conducted by him and it was conducted by some other officials of his office, i.e. Sh. D. K. Aggarwal, Assistant, Mr. Mazumdaar, Draftsman and Sh. Mohinder Singh, JE and his above report Ex. PW5/A was given on the basis of the inspection carried out by the above persons and the deviations noticed during the survey were duly reflected in his above report Ex. PW5/A and its annexure Ex. PW5/B.
16. PW6 Sh. B.B. Nanda was the Chief Engineer of MCD at the relevant time and he has proved his complaint Ex. PW6/A made to the Director of Vigilance, which subsequently resulted into the registration of this case. He has stated that the Vigilance Department of MCD conducted an enquiry regarding the unauthorized construction and issuance of wrong completion certificates in respect of the above properties and A1 to A3 were indicted by the Vigilance Department of having committed some deviations and irregularities in respect of the said properties and the above complaint Ex. PW6/A was made by him on the basis of the findings given by the Vigilance Committee.
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17. PW7 Sh. Narinder Singh, UDC was working as a Tax and Diary Clerk in the above office of Karol Bagh Zone, MCD at the relevant time. He had filled the challan Ex. PW7/A in respect of deposit of the compounding fee amounting to Rs. 3,38,180/ for the above said five properties and deposited the same in the treasury on 12.11.1993, on the instructions of A2 Sh. B. R. Malhotra. He has stated that the above amount was handed over to him in the office of A2 and at that time, three other persons were sitting with A2, but he does not know the names of these persons nor he can identify them. He also claims to have handed over the challan book for the period w.e.f. 03.11.1993 to 20.12.1993 to the officials of ACB and has further identified the signatures of A2 on the above challan Ex. PW7/A, which was prepared and also signed by him. Though, he was also a witness of the alleged transaction of payment of bribe by A14, A17 and A26, but he has not supported the prosecution case and was got declared hostile on this aspect. However, even during his crossexamination conducted by Ld Sr. PP for the State, he remained affirm on his above stand and denied the contents of his alleged statements Ex. PW7/PX1 and Ex. PW7/PX2 on these aspects.
18. PW8 Sh. Sanjay Jain was posted as a JE in the Coordination Department of MCD at Town Hall on 16.09.1993 when a complaint pertaining to unauthorized construction in the said properties was marked to him by his Assistant CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 19 of 146 Engineer (AE) Sh. R. K. Gupta. He visited all the above five properties after about five days thereof, along with A1 and A 2, and gave his report Ex. PW8/A to his AE, which the AE had forwarded to the EE of the said department. As per him, they had found minor deviations from the sanctioned plans of the said properties at the time of inspection and the bowel bars were found projected in beams and columns on all the properties. He has also stated that the EE had then told him to put a letter to be sent to the ZE (Building) requiring the builders of the said properties to cut the bars and he accordingly got prepared the letter Ex. PW2/R dated 18.11.1993. He has also stated that even prior to that, one other letter dated 01.11.1993 Ex. PW2/S was also sent to the ZE (Building), with a copy thereof to ADC. He has also proved his endorsement Ex. PW8/B made in the file Ex. PW2/Q of their cell pertaining to the above said properties, which he had handed over to the officials of the ACB Branch during the investigation of this case.
19. PW9 Sh. O. P. Kelkar was the Commissioner, MCD at the relevant time and he accorded the sanction Ex. PW9/A for prosecution of A2 in this case and had communicated the same to the officials of ACB vide his letter Ex. PW9/B.
20. PW10 Sh. R. K. Gupta is the then AE of the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 20 of 146 Coordination Cell, MCD, Town Hall and the above report Ex. PW8/A given by PW8 Sh. Sanjay Jain was submitted to him, which he further forwarded to their EE vide his endorsement Ex. PW10/L made in the above file Ex. PW2/Q. He has also deposed about the sanction plans of the above five properties and the extents of constructions permitted by the MCD for the said properties and according to him, the plans for construction of the above five properties bearing numbers 5/34, 17/34, 18/34, 11B/5 and 11B/8 were applied for by the owners thereof vide applications Ex. PW10/A, Ex. PW10/E, Ex. PW10/C, Ex. PW10/G and Ex. PW10/J respectively and after these were sanctioned by the Building Plan Committee, the same were issued/released vide letters Ex. PW10/B, Ex. PW10/F, Ex. PW10/D, Ex. PW10/H and Ex. PW10/K respectively of their EE.
21. PW11 Sh. Om Dutt was posted as Senior Vigilance Inspector in Vigilance Department of MCD at the relevant time and he had only forwarded certain documents and files pertaining to the above five properties to the officials of ACB vide his letter Ex. PW11/A. He has stated that the above documents and files consisted of the original completion certificate file containing all the relevant documents, challans regarding deposit of compounding fee, the documents submitted by the owners with their applications for issuance of completion certificates, the original construction plans and the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 21 of 146 statement of Tax Clerk Sh. Narinder Singh etc. He has also specifically stated that he never visited the above properties nor enquired about the constructions thereof.
22. PW12 Sh. S. P. Gautam was posted as ZE (Building), Karol Bagh on 23.05.1996. He has stated that in those days, demolition work was going on in the above five properties falling within his jurisdiction and the demolition was being carried out due to the unauthorized constructions made by the owners of these properties and the top floors of these properties were demolished. However, he was not able to tell whether the completion certificates in respect of the said properties were already granted or not on the date of demolition thereof.
23. PW13 Sh. R. P. Gola was working as an Assistant Zonal Inspector in the House Tax Department of MCD at the relevant time and he had handed over photocopies of the entries number 45 & 46 dated 02.04.1993, which are Ex. PW13/A and Ex. PW13/B respectively, and the entries number 22 & 23 dated 04.08.1994, which are Ex. PW13/C and Ex. PW13/D respectively, pertaining to properties number 11B/5 & 11B/8 of the building watch registers of the years 199394 and 199495 respectively to the officials of ACB during the investigation of this case. He has also identified the signatures/initials of his colleague Sh. R. N. Gupta and Sh.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 22 of 146 Hari Prakash, both Assistant Zonal Inspectors, on these entries. However, the original building watch register containing the entries Ex. PW13/A and Ex. PW13/B was stated by him to have been destroyed. He has also stated that as per these entries, the construction on the relevant dates of these entries was still in progress and further that house tax of the above two properties was not assessed because of the said reason.
24. PW14 Sh. Hari Niwas is the concerned Assistant Zonal Inspector of the House Tax Department of MCD at the relevant time, who had made the above entries number 22 & 23 Ex. PW13/C and Ex. PW13/D in the building watch register of the year 199495 pertaining to the above two properties number 11B/5 and 11B/8. He has stated that he had given the remarks 'finishing' in the said entries, which were being given when any wood work or any other kind of finishing work was still left and the said remarks were made by him after physically inspecting the above properties.
25. PW15 Sh. Ram Narain Gupta is the other Assistant Zonal Inspector (Retd.), House Tax Department, MCD at the relevant time. He claims to have inspected the above two properties number 11B/5 and 11B/8 on 02.04.1993, 31.07.1993, 07.03.1994 and 31.03.1994 and giving of remarks regarding the stage of construction of these CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 23 of 146 properties on the relevant dates of their inspection. He has also exhibited on record the two entries number 45 & 46 Ex. PW13/A and Ex. PW13/B dated 02.04.1993 made in the building watch register for the year 199394 by him, which two entries he also claims to have forwarded in the building watch register of the next year 199495 at serial numbers 22 & 23 Ex. PW13/C and Ex. PW13/D on record.
26. PW16 Sh. Rajender Nischol was on deputation with MCD as a Deputy Director, Vigilance from 01.04.1992 to 31.03.1995 as Deputy Director, Vigilance. He says that during his above tenure he inspected total nine properties, including the above two properties number 11B/5 and 11B/8 and he was accompanied by Sh. Rao, Additional Deputy Commissioner, Karol Bagh Zone of MCD and the concerned JE at that time of inspection. He has also stated that he was told by Sh. Rao and the concerned JE that the above two properties were already being investigated by Sh. Gokal Singh, Assistant Director, Vigilance, who was being assisted by Inspector Sh. Punia of MCD, and he brought the above fact to the knowledge of Sh. Kartar Singh, Director, Vigilance.
27. PW17 Syed Alijah H. Khan was the JE (Building), Karol Bagh Zone, MCD from September, 1995 to July, 1996. He says that he participated in some demolition action taken in the year 1996 in respect of the above five CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 24 of 146 properties on the directions of the Hon'ble Delhi High Court as there were some unauthorized constructions in the said properties and buildings thereof were not in accordance with their building plans and by laws.
28. PW18 Sh. P. C. Dhingra was a practicing advocate of the Hon'ble Delhi High Court in the year 1994 and he was appointed as Local Commissioner to report about the status/existing structures of some properties, including the above five properties of this case. He says that he inspected the above five properties bearing number 5/34, 17/34, 18/34, 11B/5 and 11B/8 of this case and submitted his reports Ex. PW18/C, Ex. PW18/B, Ex. PW18/A, Ex. PW18/D and Ex. PW18/E respectively.
29. PW19 Sh. K. Kannan was the JE (Buildings) in MCD HQ at Town Hall on 02.01.1995 and he handed over the building plan files Ex. PW19/A5, Ex. PW19/A2, Ex. PW19/A1, Ex. PW19/A4 and Ex. PW19/A3 respectively of the above five properties to the officials of ACB during the investigation of the case.
30. PW20 Sh. Satyapal is the Record Attendant of Department of Archives and he has only produced certain records in respect of some properties of this case. The records produced by him are as under:
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 25 of 146
1. Sale deed Ex. PW20/A dated 15.04.1969 and registered on 18.04.1969, which was executed by Madhusudan Ltd. in favour of Smt. Toshi Talwar in respect of property bearing land No.5, Block11, measuring about 2200 sq. yards and situated on Pusa Road.
2. Lease deed Ex. PW20/B registered on 28.10.1948, which was executed by Delhi Improvement Trust in favour of Smt. Vidyawati in respect of property Block11, Plot No. B5, measuring about 60 sq. yards.
3. Sale deed Ex. PW20/C registered on 28.08.1992, which was executed by Smt. Vidyawati in favour of Sardar Hardit Singh in respect of Plot No. 5, Block No. 11, Northern Extension Scheme, New Delhi.
4. Sale deed Ex. PW20/D registered on 06.10.1953, which was executed by Hardit Singh in favour of National Instrument Ltd. in respect of land bearing No.5, Block11, measuring about 1200 sq. yards and situated on Pusa Road.
31. PW21 Sh. S. K. Banta, Inspector, Crime Branch of Delhi Government is the part IO of this case and he had only recorded the statements of two witnesses namely Sh. Satya Prakash Gautam/PW12 and Sh. Syed Alijah H. Khan/PW17 and then prepared and filed the chargesheet in the court.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 26 of 146
32. PW22 Sh. Ajit Singh is an LDC of the office of Sub RegistrarIII, Asaf Ali Road and he has produced on record eight sale deeds Ex. PW22/A to Ex. PW22/H dated 08.05.1992 in respect of property bearing No. 11B/5 (written as 11/5B in the sale deeds), which were executed in respect of 1/8th share each and in favour of the owners of the said property, as mentioned in clause (iv) of para 2 of this judgment.
33. PW23 Inspector Rajinder Singh Manku is also a part IO of this case and he was assigned investigation of this case in September, 1995 and had requisitioned certain records/documents from the MCD, formally arrested some accused and also recorded the statements of some witnesses, including the supplementary statement Ex. PW7/PXII of PW7 Sh. Narinder Singh. He has stated that the statements of witnesses were recorded correctly and further that he also received a note Ex. PW23/A dated 12.03.1996 of Sh. S.P. Gautam/PW12 consisting of 2 pages.
34. PW24 Sh. Shobhan Singh, Inspector is also a part/initial IO of this case. He had arrested/formally arrested some accused persons, recorded statements of some witnesses, including the statement of Sh. Narinder Singh/PW7 and some officials of MCD, and further seized certain records produced by PW11 Sh. Om Dutt vide forwarding letter Ex.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 27 of 146 PW11/A and also the files/records Ex. PW19/A1 to Ex. PW19/A5 produced by PW19 Sh. K. Kannan.
35. PW25 Sh. R. P. Gupta was the Coordination Engineer at MCD, HQs and he states that on receiving a complaint with regard to some unauthorized construction through Superintending Engineer (SE), he got the said properties inspected through Sh. Sanjay Jain/PW8, JE and PW8 submitted his report to Sh. R. K. Gupta/PW10, AE and he (PW25) had forwarded the said report to the EE. He also claims to have issued the directions contained in the office orders/letters Ex. PW2/R and Ex. PW2/S regarding the said properties.
36. PW26 Sh. Pradeep Kr. Mazumdaar has stated that on 11/12.08.1994, he was part of a team formed by Dr. N. Ravi/PW5, Superintending Surveyor of WorksI and comprising of himself, Sh. D. K. Aggarwal, AE and Sh. Mohinder Kumar, JE, which was to inspect the above five properties and to report as to if the construction carried out in the said properties was in accordance with their sanctioned plans or not. He states that they inspected the above property and submitted their report, which was not on record.
37. It is necessary to mention here that evidence of the prosecution was initially closed by Ld Addl. PP for the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 28 of 146 State after getting recorded the testimony of PW25 Sh. R. P. Gupta on 02.07.2007 and thereafter, the statements of all the accused persons U/s 313 Cr.P.C., except those who were already dead, as well as the statement of one defence witness/DW1 Sh. Ranjit Singh on behalf of A1 and A2 were recorded and the matter was fixed for final arguments. However, subsequently an application U/s 311 Cr.P.C. was moved on behalf of the State for summoning Sh. D. K. Aggarwal, AE, Sh. Mohinder Kumar, JE and PW26 Sh. Pradeep Kr. Mazumdaar as witnesses on the ground that they all had inspected the buildings of the above said properties, on the directions of PW5 Dr. N. Ravi, and submitted their report regarding the anomalies and deviations observed in the constructions raised on the said properties and it was found by them that the constructions were not raised as per the sanctioned plans of the said properties. It was also submitted on behalf of the State that the report Ex. PW5/A given by PW5 was in fact based on the inspection report given by the above persons/witnesses and hence, the examination of the above three witnesses in this case was necessary. The said application was allowed by this court vide a detailed order dated 01.02.2008 and the above three witnesses were directed to be summoned for their examinations on record. However, the prosecution had only examined one of them as a witness in this case, i.e. PW26 Sh. Pradeep Kr. Mazumdaar, before Ld Addl. PP conducting the prosecution at the relevant CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 29 of 146 time had again closed the evidence of prosecution on 22.07.2008. The supplementary/additional statements of all the above accused persons, except the accused Hemant Kumar (A16) who expired before that, were also recorded by the court subsequently, with regard to the incriminating evidence brought on record in the form of depositions of PW26.
38. All the incriminating evidence brought on record was put to the accused persons in their statements recorded U/s 313 Cr.P.C. and the same was denied by them to be either incorrect or beyond their knowledge. The case of A1 Sunil Mohan Gupta and A2 B. R. Malhotra, who both are public servants, is that the completion certificates in respect of the above five properties issued in November, 1993 were issued strictly as per the sanctioned building plans of the said properties and the building bylaws of MCD and further after getting approval of the EE, HQ, Town Hall. It is also their case that no unauthorized construction in any of the said properties was there till the issuance of their completion certificates and no such unauthorized construction was also there as per their knowledge till 17.01.1994, when they both were suspended from their duties. They both have not denied the inspection of the above properties conducted by PW8 Sh. Sanjay Jain, JE (Coordination), Town Hall in September, 1993, on the basis of some complaint assigned to PW8, and rather it is their case CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 30 of 146 that at the time of the said inspection conducted by PW8 in their presence, it was found that the buildings on the above said properties were constructed as per their sanctioned plans and no unauthorized construction was noticed in any of the said properties. However, regarding the other inspections conducted by PW2 Sh. V. P. Rao, PW16 Sh. Rajender Nischol or by PW26 Sh. Pradeep Kr. Mazumdaar, it is claimed by A2 that he was not aware about the inspections conducted by these witnesses as he already stood suspended from his duties w.e.f. 17.01.1994. He has also expressed his ignorance regarding the demolition action taken against these properties subsequent to his above suspension. However, A1 has stated that he was involved in the inspection carried out by PW2 Sh. V. P. Rao and he took all suitable actions against the said properties, i.e. demolition of property, sealing of property, disconnection of water and electricity, action U/s 332 and 466A of DMC Act and writing to the police for stoppage of work in odd hours etc.
39. As far as the inspections conducted by PW4 Sh. Rajeshwar Dayal, Assistant Zonal Inspector, House Tax Department of MCD, and by his predecessor Sh. Harcharan Singh of the properties number 5/34, 17/34 and 18/34 and the entries Ex. PW4/D to Ex. PW4/DF and Ex. PW4/A to Ex. PW4/C respectively made by them in the building watch register of their area for the years 199394 and also by the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 31 of 146 other two officials namely Sh. Hari Niwas/PW14 and Sh. Ram Narain Gupta/PW15, who both were also the Assistant Zonal Inspectors of the House Tax Department of MCD, and the entries Ex. PW13/C & Ex. PW13/D and Ex. PW13/A & Ex. PW13/B respectively made by them in the above registers of their area for the years 199394 and 199495 in respect of the other two properties number 11B/5 and 11B/8, both the above accused have again expressed their ignorance about the same while saying that the said inspections and entries based thereon were not made in their presence and these witnesses had nothing to do with the said properties. They both have reiterated that there was no unauthorized construction in any of the said properties till the time of issuance of completion certificates of the said properties and they cannot be held responsible for any such unauthorized construction raised in these properties subsequent to their suspension. It is also their submission that the above entries are not admissible in evidence for want of proper proof and also as only the photocopies of these entries have been brought in evidence against them and neither the originals thereof have been produced nor any evidence regarding the alleged loss or destruction of the original building watch registers of the relevant time has been led on record and hence, these entries should not be considered in evidence against them. A1 has also claimed that when, after the grant of completion certificates, some unauthorized constructions CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 32 of 146 carried on in the said properties were brought to his notice, he had booked the above said properties and had recommended the taking of further action against these properties as per law and the files of these properties were handed over by him to the department for necessary action.
40. They both have also claimed that the compounding fees applicable for the said properties were deposited as per the MCD Rules and A1 has also denied handing over of the compounding fee amount to PW7 Sh. Narinder Singh for deposit. They have also claimed that the sanctions for their prosecution were granted by their senior officers without any proper application of mind and A2 has further claimed that the sanction for his prosecution was granted in a mechanical manner as his sanction order does not even carry the date of grant thereof. They both have claimed themselves to be innocent and to have been falsely implicated in this case by IO/Inspector Rajinder Singh Manku/PW23. They have further stated that they already stand exonerated by the department as well as by the CVC in the enquiries conducted on the same set of allegations and have also desired to lead evidence in their defence.
41. The accused Rattan Chand (A5) (for self as well as on behalf of M/s Remarkable Construction Pvt. Ltd.)(A8), accused Roop Kishore (A7), accused Lajpat Rai Taneja (A
12) (for self as well as on behalf of M/s Pooja International Pvt. CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 33 of 146 Ltd)(A9) and M/s Lajpat Rai, HUF (A21), accused S. L. Khurana (on behalf of M/s Everite Estate Pvt. Ltd.)(A10), accused Hemant Kumar (since deceased)(A16) (for self as well as on behalf of M/s Hemant Kumar, HUF (A13), accused Ravinder Taneja (A14), accused Kamal Taneja (A15) and accused Pawan Kumar (A17) in their separate identical statements made U/s 313 Cr.P.C. have also claimed that the NOCs and completion certificates of their respective properties were correctly issued as per the rules and building bylaws of MCD, though they have expressed their ignorance about the persons signing the said documents. It is their case that no unauthorized construction was raised by them on their respective properties and only some deviations were made, which were permitted by the Corporation and the demanded compounding fees therefor were deposited by them. They all have also expressed their ignorance about the inspections or the surveys etc of their properties conducted by different officials of the MCD or the reports given by the said officers. They have further expressed their ignorance about the entries made by the officials of the House Tax Department of MCD in the building watch registers being maintained in respect of their respective properties and also about the vigilance complaint or the report given about any unauthorized construction raised in their properties, which was stated to be the basis of making of the complaint Ex. PW6/A by PW6 Sh. B. B. Nanda and resulting into the registration of the present CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 34 of 146 case.
42. However, they have admitted that the sanction plans of their respective properties were approved only for 2½ storey buildings for residential purposes and they have also denied the raising of any commercial constructions on the said properties. Regarding the action stated to have been taken for demolition of some unauthorized constructions in their properties, as per the directions of the Hon'ble High Court, it is their submission that the department might have wrongly placed the facts before the Hon'ble High Court and it is also their submission that the orders of the Hon'ble High Court were duly complied with by them. They have even expressed their ignorance regarding the inspection conducted by PW8 Sh. Sanjay Jain or the report given by him, but it is again reiterated by them that the constructions raised in their properties were strictly in accordance with law and bylaws of MCD and no unauthorized constructions were ever raised by them. They have also submitted that no photographs of any such constructions of their buildings were exhibited during the evidence. They have further submitted that the IOs were not competent to investigate the present case registered under the PC Act. They all have also claimed themselves to be innocent and to have been falsely involved in this case while saying that no prosecution witness has in fact deposed against them. None of them has desired to lead any evidence in his defence.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 35 of 146
43. The accused Vibha Taneja (A6) and Veena Taneja (A18) in their separate identical statements recorded under the above provision have claimed that all the activities pertaining to the properties and businesses of their families were being conducted by the menfolk of their respective families and through their duly constituted attorneys and they being the housewives have nothing to do with the said properties or the constructions got approved and raised in the said properties. They have also expressed their ignorance regarding the deviations made or the unauthorized constructions, if any, done or demolished in the said properties. Though they have stated that some shares/rights in their names might have been acquired by the male members of their respective families, but it is their submission that they were not the owners of the said properties and it was done without their knowledge and they being the housewives were never concerned with the business or other activities of their families and were confined only to the household activities and the bringing up of their children. Even accused Anjali Rani (A19) has made an identical statement on the above aspects, except that she was a minor and a student at the relevant time. They have further claimed themselves to be innocent and to have been falsely implicated in this case and have also not chosen to lead any evidence in their defence.
44. The accused Narain Dass Taneja (on behalf of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 36 of 146 M/s Gowell Construction Pvt. Ltd.) (A11) and D. N. Taneja (on behalf of M/s D. N. Taneja, HUF) (A22) in their respective statements recorded under the above Section have claimed themselves to be senior citizens and it is also their case that though some shares in the said properties might have been purchased in their names, but they had nothing to do with the business activities being conducted by the members of their respective families and they were not participating in the said activities. However, it is also their case that the construction plans of their properties were duly got sanctioned and the compounding fees were deposited by their attorneys and their attorneys used to look after the work of their vast business empires. A11 has further claimed himself to be suffering from various age related ailments. They have also expressed their ignorance regarding the deviations made or the unauthorized constructions, if any, raised or demolished in the said properties on the above said grounds. They have also claimed themselves to be innocent and to have been falsely implicated in this case and have also not chosen to lead any evidence in their defence.
45. The accused Uma Tewari (on behalf of M/s Rajan Hotels Pvt. Ltd.) (A23) in her separate statement has also claimed herself to be an housewife and expressed her ignorance about any deviations, inspections, unauthorized constructions or demolitions etc made in respect of her CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 37 of 146 property. She has further expressed her ignorance about any such activities pertaining to the other properties, except those belonging to her family, on the ground that these properties do not belong to their family. It is also her submission that being a female, she never participated in the business or property matters of her family. Accused Bimla Tewari (A24) has also made an identical statement regarding her property while also claiming that she being of the age of around 88 years was not even stepping out of her house for the last about 1516 years and was also not in a condition to deal or even see properly. Both these accused have also claimed themselves to be innocent and to have been falsely implicated in this case. They did not even desire to lead any defence evidence.
46. The accused Rajan Tewari (A25) in his separate statement made under the above Section has also made almost similar submissions as made by A23 and A24 in their respective statements and it is his case that in the year 1991, he was a student of class BAIII (Pass) in Hindu College, Delhi University and in 1993 he had gone to Bombay for doing MBA and he returned back only in the year 1994, when he found himself to have been implicated in this case. Accused Ramesh Tewari (A26) in his statement recorded under the above Section has also claimed that the NOCs and completion certificates of the above said properties of their families were issued as per the rules and building bylaws of the MCD. It is CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 38 of 146 also his submission that the building plans of their properties were duly passed and the constructions were carried out in accordance with the sanctioned building plans and the building bylaws and no unauthorized constructions were raised by them and whatever deviations were made, the same were duly compounded and the compounding fees deposited with the MCD. He has further claimed that no inspection or demolition of their properties was made or done in his presence and also that their building were not under construction when the completion certificates in respect of the same were issued. He has further stated that the IOs were not competent to investigate the present case and he was falsely implicated in the case. Even none of the above two accused has desired to lead evidence in his defence.
47. It is necessary to mention here that even the accused Hemant Kumar (A16) and Bimla Tewari (A24) had expired after the recording of their statements U/s 313 Cr.P.C. and proceedings against these two accused also stood abated because of their death.
48. As stated above, only A1 and A2 had desired to lead evidence in their defence and they have even examined DW1 Sh. Ranjit Singh, an official of the Vigilance Department of MCD, in the court and this witness has brought on record the complete file pertaining to the vigilance enquiry conducted against A1 and A2 by the department as Ex. DW1/1 Colly, in CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 39 of 146 which both the above accused were exonerated vide order dated 17.03.2003 of the competent authority.
49. It is also necessary to mention here that when the final arguments were again in progress, an application U/s 311 Cr.P.C. was filed on record on 30.04.2010 on behalf of A1 and A2 for bringing on record the judgments of conviction dated 19.01.2005 passed by the Ld MM against A21 Rajan Tewari and A22 Ramesh Tewari in prosecutions launched by the MCD against them for raising unauthorized constructions in their properties and the said application was allowed by this court vide order dated 18.08.2010 and subsequently the certified copy of the judgment and order on sentence passed in the said cases are also stated to have been filed on record of this court on 07.01.2011.
50. Another application U/s 311 Cr.P.C. was also subsequently filed on behalf of A19 Anjali Rani on 02.09.2011 and it was for recalling of the three IOs, i.e. PW21 Inspector S. K. Banta, PW23 Inspector R. S. Manku and PW24 Inspector Shobhan Singh, for their further crossexaminations in respect of some attorneys executed by this accused as well as by some other coaccused in respect of their properties, as were also referred to in the chargesheet. During the course of hearings on this application, the prosecution had taken a stand that though the chargesheet reflected that some power of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 40 of 146 attorneys were executed by some of the accused persons in favour of some other coaccused, but none of these attorneys was seized in the case by any of the IOs or was a relied upon document of the prosecution. In view of the above stand taken by the prosecution, the above application U/s 311 Cr.P.C. moved on behalf of A19 was dismissed by the court vide order dated 21.02.2012.
51. The above order dated 21.02.2012 of this court was also challenged by A19 before the Hon'ble High Court in Crl. M.C. No. 973/2012 and the said petition was ultimately dismissed as withdrawn vide order dated 27.07.2012 of the Hon'ble High Court as it was submitted before the Hon'ble High Court on behalf of the said accused that they had got a copy of one of such attorneys from the ACB on an application filed under the RTI Act and they will take appropriate steps for adducing evidence in their defence before this court in respect of the said power of attorney.
52. During the pendency of the above Crl. M.C. No. 973/2012 before the Hon'ble High Court, one other application U/s 91 Cr.P.C. dated 01.05.2012 was also moved on behalf of A19 before this court seeking directions to the ACB for filing on record the power of attorneys executed in respect of the above properties, as mentioned in the chargesheet, and one other application was also filed by her on 06.09.2012 with a CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 41 of 146 prayer to adduce additional evidence through a proper witness for placing on record the copy of the power of attorney, which was supplied to them under the provisions of the RTI Act. Both these applications of A19 were disposed of by this court vide a common order dated 20.10.2012 and in view of the stand already taken by the prosecution that they had neither seized nor relied upon such power of attorneys and further keeping in view the subsequent development in supplying a copy of one of such attorneys by the investigating agency to the accused, this court had permitted A19 to lead evidence only on the limited aspect for proving the factum of supply of a copy of the above power of attorney to their counsel in response to an RTI application.
53. The above order dated 20.10.2012 of this court was also challenged by A19 before the Hon'ble High Court in Crl. M.C. No. 4957/2013 and it was submitted before the Hon'ble High Court by her counsel that the purpose of the petitioner would be served if the petitioner was given an opportunity to call for the records from the concerned authorities of the ACB or the MCD and accordingly the said petition was finally disposed of by the Hon'ble High Court vide its order dated 29.10.2015 with observations that the trial court, i.e. this court, would afford an opportunity to the petitioner to summon the concerned record from any authority, i.e. either from the office of ACB or from the MCD.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 42 of 146 Accordingly, this court had also subsequently issued notices to the concerned officials of the ACB as well as of the MCD for tracing out and producing in the court the original of the above power of attorney, copy of which was supplied under the RTI Act, if the same was in their possession or custody. However, it was stated by the officials of both the above departments that the original of the said power of attorney was not with them and hence, on the basis of the submissions made by Ld counsel for A19 herself, the matter was proceeded further with the final arguments.
54. In terms of the above said order dated 20.10.2012 of this court, statement of DW2 Sh. Ramphal Singh, ACP, Public Relations Officer of the ACB, was also got recorded in the court as a defence witness on behalf of A19 and he has produced in this court the record pertaining to the processing of the above RTI application, in response to which photocopy of the above power of attorney was supplied to the Ld counsel for the accused. As per his depositions and the record produced by him, the application Ex. DW2/A was received in their office from the applicant Sh. Yogesh Dahiya, Advocate and it was referred to the concerned SO Branch by the then PRO vide office order Ex. DW2/B and it was intimated by the SO Branch vide office note Ex. DW2/C that only a photocopy of one power of attorney pertaining to the property number 11 B/8, Pusa Road, New Delhi was available in the said branch CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 43 of 146 and a copy of the said power of attorney was furnished by the SO Branch and it was supplied to the applicant vide their reply Ex. DW2/D. A copy of the above power of attorney supplied to the applicant has also been brought on record as Mark DW2/E, which has been executed by accused Bimla Tiwari (A
24), M/s Rajan Hotel Pvt. Ltd., through its Managing Director Uma Tewari (A23) and the accused Rajan Tewari (A25) in favour of the accused Ramesh Tewari (A26).
55. It is also necessary to mention here that yet another application U/s 300 and 91 Cr.P.C. & Section 26 of the General Clauses Act etc was also filed by A19 before this court on 15.01.2013 with a prayer to summon the file of one of the cases got registered vide FIR No. 91/94 by the MCD in respect of unauthorized construction raised in one of the above properties and it was the contention of the above accused that the owners/attorneys of all the above five properties were already prosecuted by the MCD for unauthorized constructions raised in the said buildings and they were already tried by the court of Ld MM and because of their above earlier prosecutions and trials and on the ground of the principle against double jeopardy, they cannot be tried again on the same facts. However, this application of A19 was dismissed by this court vide order dated 20.07.2013 while observing, interalia, that the prosecution of the accused persons in the present case was not on the same facts or for CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 44 of 146 the same offences.
56. I have heard the arguments advanced by Sh. Atul Srivastava, Ld Add. PP for the State, Sh. Manish Vashist, Ld counsel for A1 and A2, Sh. Medhanshu Tripathi, Ld counsel for A19, Sh. Ashok Mathur, Ld counsel for A23 to A26 and Sh. R. D. Mehra, Ld counsel for all the remaining accused persons. The evidence led and other records of the case have been perused and the written submissions filed on behalf of A1 and A2 have also been gone through.
57. The evidence led on record and the challenges made by defence to the prosecution case, as well as the submissions made from both the sides in respect to the same, can be broadly discussed and appreciated under the following heads: Evidence pertaining to charge framed U/s 7 of the PC Act, either individually or with reference to Section 120B IPC, for acceptance of bribe money of Rs. 1,50,000/
58. As stated above, a charge for the substantive offence punishable U/s 7 of the PC Act has been framed by this court against A1 Sunil Mohan Gupta and A2 B. R. Malhotra, who both are public servants, amongst other charges, on allegations that they demanded and accepted an illegal gratification of Rs. 1,50,000/ on 12.11.1993 at their office in Karol Bagh Zone of MCD from their coaccused CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 45 of 146 Ravinder Kumar Taneja (A14), Pawan Kumar (A17) and Ramesh Tewari (A26) as a motive or reward and for showing favours to the above coaccused in discharge of their official duties by issuing completion/occupancy certificates in respect of the above five properties. Besides the above charge, a charge for the offence of criminal conspiracy punishable U/s 120B IPC was also framed against all the accused persons, including A1 and A2, with reference to the provisions of the above Section 7 of the PC Act, besides the other offences, on the basis of the above allegations.
59. Section 7 of the PC Act provides as under:
7. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Explanation. (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 46 of 146
(b) "Gratification". The word "Gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The word "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and, thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
60. It is clear from the above Section that if a public servant accepts or obtains or agrees or attempts to accept or obtain etc from any person, for himself or for any other person, any illegal gratification, other than his legal remuneration, as a motive or reward for doing or forbearing to do any official act or doing any favours etc to such person, in exercise of his official functions or discharge of his official duties, then he shall be guilty of commission of an offence under this Section and the minimum punishment of imprisonment prescribed under this Section is three years, but it may extend to seven years and he shall also be liable to pay a fine. However, the above minimum sentence of three years and the maximum sentence of seven years for commission of this offence have been brought into operation only w.e.f. 16.01.2014 by the Amendment Act of 2014, and prior to this the minimum and CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 47 of 146 maximum sentences of imprisonment prescribed under this Section were six months and five years respectively, which can be said to be applicable at the relevant time of commission of the alleged offences of this case.
61. As per the settled position of law governing an offence U/s 7 of the PC Act, it has to be established that there was a demand of bribe money and it was voluntarily accepted by the concerned public servant for doing any favours etc to any person, in discharge of the official duties of such public servant. Hence, demand of illegal gratification is a sine qua non to constitute an offence under the above said Act. Further, in the absence of substantive evidence of demand and acceptance of the bribe money, even the mere recovery of currency notes from an accused by itself is not enough to prove an offence under this Section and it is also required to be proved beyond reasonable doubts that the recovered bribe money was accepted by the accused voluntarily and knowing it to be bribe. Again, though Section 20 of the PC Act carries a presumption that where, in any trial of an offence punishable U/s 7 or Section 11 or clauses (a) or (b) of subsection (1) of Section 13 of the Act, it is proved that an accused has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any such illegal gratification, then it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed or attempted CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 48 of 146 to accept or obtain etc such illegal gratification as a motive or reward, as is mentioned in Section 7 of the Act, but it is also now well settled that even this presumption is available to the prosecution only when the prosecution establishes that the accused accepted or obtained the said bribe amount knowing it as a bribe.
62. The propositions of law as laid down in some of the relevant judgments dealing with the offence of acceptance of bribe contained in Section 7 of the PC Act, and also the relevant clauses of Section 13(1)(d) of the said Act, are being discussed herein below:
63. It has been held by the Hon'ble Supreme Court in case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 as under: "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirely. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 49 of 146 possession, the foundational facts must be established by the prosecution. Even while invoking the prosecutions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonably doubt".
"21. Even in a case where the burden is on the accused, it is well known, the prosecution must prove the foundational facts. (See Noor Aga v. State of Punjab and Jayendra Vishnu Thakur vs. State of Maharshtra".
64. It has also been held by the Hon'ble Supreme Court in the case of Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450 as follows: "11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 50 of 146 then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.)
258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 51 of 146 prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel :
(Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 52 of 146 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
65. It was also held by the Hon'ble High Court of Delhi in case titled as "P.K. Gupta Vs. CBI, reported as 2011 (4) JCC 2352, as under: "14. In A. Subair v. State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under:
'The legal position is no more res integra that primary requisite of an offence under Section 13(1) (d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant, for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to the established.'
15. It is settled law that mere recovery of bribe money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantial evidence of demand and acceptance in the case is not reliable. (See M. Narsinga Rao v. State of A.P. 2001 (1) JCC 118 :
2001(1) SCC 691. In view of above propositions of law, it is recapitulated that the statutory presumption under Section 20 of the Act is available for the offence punishable under Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence under Section 13(1) (d), it will be required to be proved that some initiative was taken by a person who receives and in that context demand or request from him will be a prerequisite."
66. Again in case of B. Jayaraj Vs. State of A.P. (2014) 13 SCC 55, the Hon'ble High Court of Delhi has made CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 53 of 146 the following observations:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.A. (2009) 3 SCC 779.
8. ...............
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1) (d) (i) (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
67. The only material witness of the prosecution story who could have helped the prosecution in substantiating the above charge framed U/s 7 of the PC Act, either individually or with reference to the charge U/s 120B IPC, was PW7 Sh. Narinder Singh as he was projected as an eye witness of the alleged incident of handing over of the above bribe or illegal gratification amount of Rs. 1,50,000/ by the above three accused to A1 and A2 in their above office. At the relevant time, PW7 was working as a clerk in the above office of Karol Bagh Zone of MCD and he is the person who had filled and signed the challan Ex. PW7/A regarding the deposit of the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 54 of 146 compounding fee of Rs. 3,38,180/ in respect of the above five properties. However, when the depositions made by this witness in the court are appreciated, it is found that the same are not of any help to the case of the prosecution for establishing its charge framed U/s 120B IPC against all the accused persons for the offence of criminal conspiracy with reference to Section 7 of the PC Act or the charge framed against A1 and A2 for the substantive offence punishable U/s 7 of the said Act.
68. PW7 has deposed on record that on 12.11.1993, he was working as a Fax Collector and Diary Clerk in office of the MCD, Karol Bagh Zone. On being shown the above challan Ex. PW7/A, he stated that the same was bearing his signatures at point A and it pertained to the deposit of compounding fees of the above five buildings amounting to Rs. 3,38,180/. He has also stated that the above said amount was deposited by him in the treasury on the same day, after collecting it from the office of the then ZE B. R. Malhotra (A2) and when he was given the above amount by B. R. Malhotra, three other persons were sitting with B. R. Malhotra at that time. However, he has also stated that he does not know the names of these three persons sitting with B. R. Malhotra (A2) at that time nor he can identify these persons. He has further stated on this aspect that the above compounding fee was handed over to him by these three persons, which depositions CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 55 of 146 of the witness are even in contrast to his previous depositions made to the effect that the above said amount was given to him by A2.
69. He has further stated on record that during the investigation of this case, he had handed over the Challan Book for the period w.e.f. 03.11.1993 to 20.11.1993 to the officials of the ACB. This book is containing the above challan Ex. PW7/A pertaining to the above said five properties. He has also specifically stated on record that except the fact that he prepared the above challan and deposited the above compounding fee, nothing else transpired in his presence nor any transaction of taking and giving money to accused Sunil Mohan Gupta (A1) or B. R. Malhotra (A2) by the above three persons took place in his presence. He was also permitted to be cross examined by Ld Addl. PP for the State on these aspects, but even during his such cross examination he remained firm on his above stand. During his cross examination conducted by Ld Addl. PP, he also went on to state that though he was enquired by the police in this case, but nothing was reduced into writing and he did not even inform the police that the above referred compounding fee was given by the above three persons to accused Sunil Mohan Gupta (A1) and the said accused, inturn, had handed over the above amount to him. He even denied telling the police during such enquiry that the above compounding fee pertained CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 56 of 146 to property numbers 5/34, 17/34, 18/34, 11B/5 and 11B/8, Pusa Road, Karol Bagh, New Delhi. He has further denied as wrong the specific suggestions given to him by Ld Addl. PP in his such cross examination regarding his having stated to the police that on the above date and in his presence, the accused Ravinder Kumar Taneja (A14), Pawan Kumar Taneja (A17) and Ramesh Tewari (A26) had given the above amount of Rs. 1,50,000/ to accused B. R. Malhotra (A2). As per the prosecution case and his previous statement Ex. PW7/PX2 recorded U/s 161 Cr.P.C., a packet of notes containing Rs. 50,000/, in denomination of 100 notes of Rs. 500 each, was handed over by A26 to A2 and further an amount of Rs. 1,00,000/, in the form of two packets of Rs. 50,000/ each, containing 100 notes of Rs. 500 each, was also handed over to the above accused by A14 and A17. He had also denied a suggestion given to him by Ld Addl. PP during his such crossexamination that on enquiry, A14 and A17 had told that they would pay more amount for the above properties later on and further that in his presence, both A1 and A2 had kept the said amount of Rs. 1,50,000/ with them.
70. Though this witness was also confronted by Ld Addl. PP with the contents of his alleged statement Ex. PW7/PX2 recorded during the investigation on the above aspects, but these confrontations are of no use and help to the prosecution case for substantiating the above charges framed CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 57 of 146 against the accused persons with reference to Section 7 of the PC Act as this witness has specifically denied the taking place of any such transaction of handing over of the above bribe amount of Rs. 1,50,000/ by the above three accused, i.e. A 14, A17 and A26, to A1 and A2 or its acceptance by A1 and A2 in their office and in his presence. Moreover, it was never the case of the prosecution from the documents or material placed on record that the above two accused had demanded any such bribe money from their above three co accused or any other coaccused and only the allegations of handing over of the above bribe amount by A14, A17 and A26 to A1 and A2 and acceptance thereof by A1 and A2 were there on record. As per the prosecution case even no recovery of the alleged bribe money was effected from any accused in the present case.
71. It is also necessary to mention here that though this witness was projected by the investigating agency (ACB) to be an eye witness of the above transaction of bribe, but it is strange that no such allegations are found to have been made by this witness in his first statement Ex. PW7/PX1 recorded U/s 161 Cr.P.C. on 03.01.1995 by the first IO/PW24 Inspector Shobhan Singh and it is only in his second/supplementary statement Ex. PW7/PX2 recorded on 26.02.1996 by the next IO/PW23 Inspector Rajinder Singh Manku that he is alleged to have made these allegations regarding the acceptance of the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 58 of 146 above bribe amount by A1 and A2 from the above other three coaccused. Thus the second statement Ex. PW7/PX2 of this witness was recorded after more than one year from the date of recording of his first statement Ex. PW7/PX1 and Ld defence counsels are right in making a submission that the above allegations regarding the above transaction of bribe contained in the said statement Ex. PW7/PX2 cannot be accepted and acted upon as true and the same have to be looked with suspicion and hence, should not be believed. They have also pointed out that this witness was even examined during the course of departmental enquiry conducted against A1 and A2 and even in his statement dated 16.12.1994 recorded during the course of the said enquiry, this witness has not made any reference or whisper about any such bribe money having been demanded or accepted by A1 and A2. It is found that all the three IOs were also questioned by some of the Ld defence counsels during their crossexaminations on the above aspects of inclusion of the allegations of acceptance of the above bribe amount by A1 and A2 only in the second statement Ex. PW7/PX2 of this witness and also the absence of such allegations in his first statement Ex. PW7/PX1 and further about the absence of these allegations in the statement made by this witness during the course of the above departmental enquiry and it has also come on record during their cross examination that the above facts are correct. The IOs have CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 59 of 146 also failed to give any explanation on record regarding the absence of such allegations about the acceptance of the above bribe money by A1 and A2 in the first statement Ex. PW7/PX1 of PW7. Hence, the possibility cannot be ruled out that such allegations were got subsequently incorporated in the second statement Ex. PW7/PX2 of this witness because of some malafide intents and reasons to get these two accused implicated in the present case, which was registered under the stringent provisions of the PC Act. It being so, even otherwise, such depositions made by this witness should not have been believed by the court in normal circumstances for the above said reasons. Moreover, since in any case, this witness in his statement made in the court has not made any depositions regarding the demand or acceptance of the above bribe amount of Rs. 1,50,000/, or any other amount, by A1 and A2 from the above other three coaccused, i.e. A14, A17 and A 26, or any other coaccused, and further since he has also denied the making of any such statement to the police during the course of investigation of this case, this court has no hesitation in holding that the evidence led on record does not establish that any such bribe amount was ever demanded or accepted by A1 and A2 from the above three or any other co accused. Hence, it is held that there is not even an iota of evidence on record to prove or substantiate the charge for commission of the offence punishable U/s 7 of the PC Act as framed against A1 and A2 and also the charge for the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 60 of 146 offence of criminal conspiracy punishable U/s 120B IPC framed against all the accused persons with reference to the provisions of the above Section 7 of the said Act.
Substantive charge framed against A1 and A2 for offence U/s 13(1)(d) of the PC Act
72. As stated above, a substantive charge for the offence punishable U/s 13(1)(d) of the PC Act, interalia, was also framed against A1 and A2, besides the charge for the substantive offence U/s 7 of the PC Act, charge U/s 197 IPC and the charge for the offence of criminal conspiracy punishable U/s 120B IPC framed against all the accused persons with reference to different Sections. As per the allegations made in the above charge framed U/s 13(1)(d) of the said Act against A1 and A2, they both, being public servants, had obtained illegal gratification of Rs. 1,50,000/ on 12.11.1993 from their above three coaccused Ravinder Kumar Taneja (A14), Pawan Kumar Taneja (A17) and Ramesh Tewari (A26) by corrupt or illegal means and abuse of their official positions as such. However, it has already been discussed under the previous head that the prosecution has failed to prove on record these allegations regarding the demand or acceptance of the above bribe amount of Rs. 1,50,000/ by A1 and A2 from the above three coaccused, by corrupt or illegal means or in connection with the discharge of their official duties or by abuse of their official positions as CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 61 of 146 such.
73. But the question that still arises for consideration before this court is that whether from the evidence led on record, the prosecution can still substantiate the charge for the substantive offence U/s 13(1)(d) of the said Act which has been framed against A1 and A2 or not, keeping in view the fact that the prosecution has failed to lead on record any evidence to substantiate the charge framed U/s 7 of the above said Act against the above two accused by way of proving its allegations for acceptance of the above bribe amount of Rs. 1,50,000/ by them. For this purpose, it is necessary to go through the provisions contained under the above said Section, which defines the offence of criminal misconduct by a public servant, and it lays down as under:
13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 62 of 146 or allows any other person to do; or
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(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 purpose 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 be a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
74. It is also made clear here that the minimum and maximum punishments prescribed by subsection (2) of this Section earlier used to be one year and seven years respectively and the same were substituted by the sentences of four years and ten years respectively by the above Amendment Act of 2014 made operational w.e.f. 16.01.2014.
75. It is clear from the language of the above Section that though for commission of the above said offence of criminal misconduct by a public servant under clause (a) or clause (b) of subsection (1) of the said Section, the habitual acceptance or the habitual agreement or attempt to accept of any illegal gratification or valuable thing etc by a public CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 63 of 146 servant, either for himself or for any other person, is required and further though a fraudulent or dishonest misappropriation or conversion etc of any property by such a public servant is required as per clause (c) of the above subsection, but clause
(d) thereof does not use such kind of words or expressions. As stated above, clause (d) of subsection (1) of Section 13 of the said Act prescribes and deals with three different kinds of situations in which a public servant can be said to be guilty of commission of an offence of criminal misconduct, otherwise then by habitual acceptance of illegal gratification or valuable things etc and even without any dishonest or fraudulent misappropriation etc of any properties entrusted to him or under his control in his capacity as a public servant.
76. Subclause (i) of clause (d) of subsection (1) of Section 13 of the above said Act is attracted when by corrupt or illegal means, a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage and sub clause (ii) of the above clause is attracted when a public servant abuses his position as such and obtains, either for himself or for any other person, any valuable thing or pecuniary advantage. However, subclause (iii) of the above clause (d) of the above subsection (1) of the said Section 13 of the above Act becomes applicable when a public servant just while holding his office as such obtains for any person any valuable thing or pecuniary advantage without any public CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 64 of 146 interest. Thus, it is clear from the language used in all the above three categories or eventualities contained under clause
(d) of the above Section 13(1) that the obtaining of any valuable thing or pecuniary advantage by a public servant is necessary to attract the provisions of the above clause (d) of the above Section. Further, though under subclause (i) and subclause (ii) thereof, this valuable thing or pecuniary advantage may be obtained by a public servant either for himself or for any other person and further though subclause
(i) requires the employment of corrupt or illegal means by a public servant and subclause (ii) requires the abuse of his official position by a public servant, to make any conduct of such a public servant punishable thereunder, but subclause
(iii) does not use such type of words and all that is required under this subclause is that the public servant was holding an office as such at the relevant time and he has obtained any valuable thing or pecuniary advantage for any person and the same was obtained without any public interest. This other person may or may not be an official or related to the public servant and may, therefore, be wholly unconnected with the official conduct of the concerned public servant and all what is required is that the concerned public servant should act in his official capacity in such a manner that it results into some undue benefit or advantage to some other person without any public interest and in that context, this conduct of the public servant may even amount to the abuse of his official position CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 65 of 146 by him, though not even specifically provided in the above subclause.
77. Though, the charge has been framed against A1 and A2 U/s 13(1)(d) of the PC Act, without reference to any subclause of clause (d) of the above Section, but as already discussed above, there is no evidence on record to prove the demand or acceptance of the above bribe amount of Rs. 1,50,000/ by these two accused from the other three accused, as was alleged by the prosecution. Hence, it cannot be said that these two accused had applied any corrupt or illegal means or had obtained any valuable thing or pecuniary advantage for themselves, in terms of subclause (i) of clause
(d) of subsection (1) of Section 13 of the above said Act. However, it is the contention of Ld Addl. PP for State that A1 and A2 can still be held guilty for the above said offence if it is proved from the evidence that they abused their official positions as such and obtained such valuable thing or pecuniary advantage for any other person, as is provided under the above subclause (ii) or while holding their office as such, they obtained such valuable thing or pecuniary advantage for any other and it was without any public interest, as provided under above subclause (iii) and as held by the Hon'ble Delhi High Court in the case of Runu Ghosh Vs. CBI 2011 SCC Online Del 5501. He argues that for establishing this, the prosecution has only to prove that the issuance of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 66 of 146 completion certificates of the above five properties on 12.11.1993 by A1 and A2 was against the building bylaws of MCD and it amounted to an abuse of their official positions and by issuance of such certificates, they had obtained any valuable thing or pecuniary advantage for any other person, though not for themselves, or that the above valuable thing or pecuniary advantage obtained for any other person was without public interest and hence, it amounted to a criminal misconduct on their part under either of the above two sub clauses. If it is proved by the prosecution that the above completion certificates were issued by A1 and A2 against the building bylaws of MCD or by way of abuse of their official positions by the above two accused, the prosecution can bring home the above charge against these two accused as the same would have certainly caused undue benefits to the owners/builders of these properties and it would have amounted to obtaining any valuable thing or pecuniary advantage by them within the meaning of the above provisions.
78. Some of the relevant observations made by their lordships in case of Runu Ghosh, Supra are being reproduced herein below:
"............It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal"
means, (of a public servant obtaining - for himself, or someone else - any valuable thing or pecuniary advantage) has been retained. However, the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 67 of 146 reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5(1)(d)) has been omitted. The latter parts of Section 5(1)(d), i.e. the public servant obtaining for himself or for any one else any valuable thing or pecuniary advantage, by abusing his position as a public servant has been retained, in Section 13(1)
(d) (ii). A new offence (or subspecies, of the existing offence) has been carved out, in Section 13(1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else ("any person") benefitting by getting a valuable thing or pecuniary advantage, "without any public interest". There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest".
"73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Court - the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 68 of 146 of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are, "without public interest".
"78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13(1)(d)(iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" pecuniary advantage or valuable thing", it is evident that Section 13(1)(d)(ii) may or may not entail the act being without public interest. This offence - under Section 13(1)(d)(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13(1), Drugs and Cosmetics Act:; Section 7(1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility ? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 69 of 146 be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or beached the law, in his action.
However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injuries to public interest, which were avoidable, but for the public servant's overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. ............."
79. Ld Addl. PP has mainly referred to the following eventualities for establishing the above criminal misconduct of A1 and A2 in issuance of the said certificates:
i) That on the day of issuance of the above completion certificates, the buildings raised on the said properties were incomplete or not fit for occupation; or
ii) That on the day of issuance of completion certificates of the said properties, the buildings raised on these properties were carrying or having certain unauthorized constructions, because of which the above completion certificates should not have been CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 70 of 146 issued; or
iii) That the constructions being raised on the said properties were for commercial purposes, as against their sanctioned plans got approved for residential purposes.
80. The first witness being referred to by the prosecution on these aspects, who is alleged to have inspected the above properties and made some observations regarding the nature of the constructions being existing or raised thereon, is PW2 Sh. V.P. Rao, who was posted as ADC in the Karol Bagh Zone of MCD at the relevant time. This witness states that he was posted in the said zone from April, 1992 to February, 1995 and also that the completion certificates of these five properties were issued during his tenure as such. This witness was made to join investigation by the officials of the ACB and was shown the relevant files pertaining to the issuance of completion certificates of these five properties. He was even shown the files of these five properties in the court and he has duly identified the signatures of A1 to A3 on the NOCs given for the issuance of completion certificates of these properties and also the signatures of A1 and A2 on the completion certificates of these properties. As already stated above, the NOCs of these five properties have been brought on record as Ex. PW2/B, Ex. PW2/E, Ex. PW2/H, Ex. PW2/L and Ex. PW2/O and the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 71 of 146 completion certificates thereof as Ex. PW2/C, Ex. PW2/F, Ex. PW2/J, Ex. PW2/M and Ex. PW2/P respectively, which were available in the files Ex. PW2/A, Ex. PW2/D, Ex.PW2/G, Ex. PW2/K and Ex. PW2/N respectively of these properties. He also identified the signatures of the EE (Coordination) on two letters dated 01.11.1993 and 18.11.1993 Ex. PW2/S and Ex. PW2/R respectively, which were issued from their office for keeping a watch on these properties.
81. As regards the inspection of the five properties by him, though he has stated in his examinationinchief that he himself inspected these properties, but in his examinationin chief as well as in his crossexamination conducted by Ld defence counsels, he has not been able to give any date of inspection of these properties by him. Further, in his examination in chief, he has also stated on record that whenever he visited any property, including the above five properties, he used to prepare his inspection notes and these inspection notes might be available in the files pertaining to these properties in the zonal office of the MCD. However, neither any inspection report nor these inspection notes given or prepared by this witness is a part of the record and in the absence of the above report and notes and further keeping in view the fact that this witness has not been able to give any date of inspection of the said properties by him, this court is constrained to hold that the depositions made by this witness CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 72 of 146 in the court are not of any help to the case of the prosecution in showing that the constructions raised or existing on the above five properties were either incomplete or not fit for habitation or occupation on the relevant date of issuance of the above completion certificates in respect of these five properties, i.e. on 12.11.1993. Further, in the absence of any such report or notes given or prepared by this witness showing the exact extent of the constructions existing on the above five properties on the above date, it cannot also be said that any unauthorized constructions actually existed on the above properties as on the date of issuance of these completion certificates.
82. It is observed that this witness has also made some depositions on record with regard to the nature of the constructions being raised on these properties, i.e. residential or commercial, at the time of his above inspections. He has stated that during such inspections, he noticed that these properties were likely to be used for commercial purpose, but his these depositions were duly objected to on behalf of the accused persons on the ground that the same were only an opinion of the witness. During the course of his cross examination, he has also stated specifically that at the time of the said inspections, he was not carrying the sanctioned building plans of the above five properties and his above observations regarding nature of constructions on these CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 73 of 146 properties were made only as a laymen. Hence, Ld defence counsels have rightly submitted that in the absence of the availability of the sanctioned plans of these properties with the witness at the relevant time, any such opinion expressed by him regarding the nature or extent of constructions raised on these properties cannot be given any weight as the same is not authenticated or corroborated by any document and is found to have been made in a very vague manner. Moreover, the best form in which the observations made by this witness regarding the nature or extent of constructions on these properties could have been brought before this court was the inspection report or notes prepared by him, which have not been produced before this court during the evidence. There is also no explanation from the IOs as to why these inspection notes or report etc given or prepared by this witness were not taken into possession during the investigation. In the absence of the same and further in the absence of the date on which this witness inspected the above properties, the oral depositions made by this witness cannot be considered and given any weight in arriving at a conclusion with regard to the nature or the extent of constructions existing on the above five properties as on the date of issuance of completion certificates thereof.
83. The next material witness being relied upon by the prosecution on these aspects is PW4 Sh. Rajeshwar Dayal, CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 74 of 146 who had remained posted as an Assistant Zonal Inspector in the House Tax Department of Karol Bagh Zone of MCD at the relevant time. He is the person who used to collect house tax of different properties falling under his jurisdiction and also to visit different properties and to observe the stage or status of the constructions being raised on different properties, with the object that the same could have been assessed for the purposes of payment of house tax as and when the same were completed as per the rules. He stated that he remained posted in the said zone from June, 1994 to May, 1995 and the areas of Naiwala and Western Extension Area (WEA) were under his jurisdiction and prior to him, one Sh. Harcharan Singh was there in his place on the said job. He has stated that as an Assistant Zonal Inspector in the House Tax Department, his duty was to collect the house tax of the properties falling within his area and while performing the said duty, he had also to perform the field duty of checking the buildings under construction, to check the complete building and also to collect the house tax from the property owners. He further states that for this purpose, a building watch register was also being maintained in their office and after inspection of the properties under construction, he used to give a report regarding these properties in the above said register. He has also stated that even his predecessor Sh. Harcharan Singh used to make entries in the said register in the similar fashion.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 75 of 146
84. During his examination in chief itself, he was also shown a photocopy of the entries dated 11.05.1993 made by his predecessor Sh. Harcharan Singh in the said register regarding the inspection of three properties no. 5/34, 17/34 and 18/34 Pusa Road, New Delhi made by his predecessor and he identified the handwriting of his above predecessor in the said entries and these entries have been exhibited on record as Ex. PW4/A, Ex. PW4/B and Ex. PW4/C respectively. However, neither the prosecution has examined on record the above Sh. Harcharan Singh as a witness nor the original building watch register containing these entries has been produced before this court during the evidence. At the time when the photocopies of these entries were being exhibited in evidence, an objection was made by Ld defence counsels regarding their exhibition and the same was duly taken on record and it was observed by the court at that time that these documents have been exhibited tentatively only in view of the objection raised by Ld defence counsels that the prosecution is supposed to move an application for leading secondary evidence thereof, with an opportunity to the defence to oppose the same since the originals of these documents were not being produced and further since the mode of proof of these documents was also objected to be faulty. This objection of Ld defence counsels was kept open by the court and was to be decided at the appropriate stage. It was further stated on record by the witness that the original register of the year CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 76 of 146 199394 containing the above said entries, as well as the original register of the year 199495, were not available as the same were not traceable.
85. The contention of Ld Addl. PP for the State is that since the witness has stated on record that he had been working with Sh. Harcharan Singh and was well conversant with the handwriting and signatures of his above colleague and further that since the witness has also stated on record that the original building watch register containing the above entries Ex. PW4/A to Ex. PW4/C was not traceable, the photocopies of the said entries Ex. PW4/A to Ex. PW4/C are very much admissible in evidence and can be acted upon by this court. However, this court fails to accept this contention of Ld Addl. PP for the simple reason that the same is not permissible by law. Whatever entries in the above register might have been made by Sh. Harcharan Singh regarding the stage or status of constructions of the above three buildings are stated to have been made by him on the basis of the inspection conducted by him on 11.05.1993. Hence, whatever he had perceived in such inspection cannot be deposed by this witness before this court as only Sh. Harcharan Singh could have furnished the direct evidence with regard to the observations made at the time of such inspection. Moreover, there is no reason or explanation brought by the prosecution on record as to why Sh. Harcharan CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 77 of 146 Singh has not been examined before this court as a witness and it is found that his name was not even cited as a witness in the list of witnesses of the prosecution which was filed with the chargesheet. During his examination, PW4 has stated on record that Sh. Harcharan Singh has since retired from services of MCD, but he has also stated it to be correct that the address of Sh. Harcharan Singh is expected to be available in the office of the MCD. There is also no explanation from the prosecution as to why no efforts were made for recalling of this witness from his present available address. The prosecution was duty bound to examine Sh. Harcharan Singh on record for proving the above entries as per law, which they have failed to do so and they have also failed to furnish any reasonable explanation for his non examination.
86. Further, the prosecution has also failed to produce the original register containing the above entries or to lead on record any satisfactory evidence regarding the loss or untraceability of the said register and simply because the above witness has stated that this register was not traceable, the secondary evidence led in the form of photocopies of these entries cannot be admitted or considered in evidence as the necessary foundation for leading of the secondary evidence has not been laid and no permission was ever sought or obtained by the prosecution from this court for leading the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 78 of 146 above secondary evidence after the exhibition of the above documents was objected to by Ld defence counsels on the grounds of admissibility as well as the mode of proofs of the said documents. Since the leading of the above secondary evidence in the form of photocopies of the above entries was duly objected to by Ld defence counsels at the time of its production/exhibition in evidence, the prosecution was duty bound to move an application or make an appropriate request for proving the contents of the above documents by secondary evidence and to be entitled to do so, they were first required to bring on record any satisfactory evidence regarding the loss or untraceability of the originals thereof. For this purpose, a certificate given by the incharge of the concerned branch or section, where such record was lying consigned or otherwise, could have been produced and duly proved on record before any secondary evidence thereof could have been led by the prosecution. Further, the prosecution was also bound to lead on record a satisfactory evidence to the effect that the secondary evidence being produced in the court was the correct copy of the originals thereof. Therefore, the above entries Ex. PW4/A to Ex. PW4/C cannot be held to be legally admissible or proved from the evidence led on record. The judgment in case Aher Ramagova & Anr. Vs. State of Gujarat AIR 1979 SC 1567 being relied upon by Ld Addl. PP for the State is distinguishable as it is found to have been given in different circumstances and in different set of facts.
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87. Besides deposing about the above entries Ex. PW4/A to Ex. PW4/C made by Sh. Harcharan Singh in the building watch register of the year 1993 being maintained in the concerned area of the above three properties bearing numbers 5/34, 17/34 and 18/34, Pusa Road, New Delhi, PW4 Sh. Rajeshwar Dayal has also deposed on record regarding the inspections and the entries of these properties made by himself in the building watch register for the year 199495, i.e. during his tenure of posting in the said office. He claims to have also himself inspected these properties on seven different dates, i.e. 30.06.1994, 29.07.1994, 26.08.1994, 28.09.1994, 25.10.1994, 28.11.1994 and 05.12.1994. During his statements, photocopies of the entries made by him were also brought in evidence as Ex. PW4/D to Ex. PW4/F, but even the exhibition of the photocopies of these entries was duly objected to by the Ld defence counsels on one of the same grounds on which the objection was raised for exhibition of the earlier entries Ex. PW4/A to Ex. PW4/C, i.e. the non production of the original register of the concerned year 1994 95 containing these entries. This register was also stated to be untraceable by PW4 and except the above bald claim made by him during the course of his statement, no other evidence pertaining to the loss or untraceability of this register has also been brought on record by the prosecution. Hence, even if the above entries Ex. PW4/D to Ex. PW4/F are stated to have been made by this witness in his own handwriting, the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 80 of 146 photocopies thereof being the secondary evidence of the contents of these documents are not admissible in evidence on record for not complying with the legal requirements by the prosecution for being entitled to lead such secondary evidence.
88. Further, though, this witness has also stated that at the time of his such inspections, he had noticed that the constructions on these properties were still incomplete, but even his these depositions cannot be considered to be enough to prove his these claims, in the absence of proof of the contents of his such observations having been reduced into writing in the form of the entries Ex. PW4/D to Ex. PW4/F or for want of corroboration from the said documents. Moreover, it is also observed that all the above seven visits made by this witness on the above three properties were between the period from 30.06.1994 to 05.12.1994, whereas the completion certificates of these properties were already issued long back on 12.11.1993 and there was a long gap in issuance of the said certificates and the dates of inspection of these properties by this witness and hence, the above observations of the witness are not sufficient to prove the exact status of construction existing on these properties on 12.11.1993, i.e. the date of issuance of the above completion certificates. Moreover, the above observations of the witness cannot be given any weight for proving the above charge for another CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 81 of 146 reason also and it is because certain unauthorized constructions are admitted to have been raised on the above said properties by the owners/builders thereof subsequent to the date of issuance of the above completion certificates and they even stood prosecuted for the same.
89. As far as the other two properties bearing numbers 11B/5 and 11B/8, Pusa Road, New Delhi are concerned, similar entries regarding the stage of construction of these properties are also alleged by the prosecution to have been made in the building watch registers of the area belonging to these properties. These two properties are stated to be falling within the jurisdiction of Old Rajinder Nagar area, which inturn was within the jurisdiction of the Karol Bagh Zone of MCD. The relevant witnesses on the aspect of entries of these two properties are PW13 Sh. R. P. Gola, PW14 Sh. Hari Niwas and PW15 Sh. Ram Narain Gupta, who all are the Assistant Zonal Inspectors posted in the above office of MCD for the concerned area of these two properties.
90. PW13 only deposes about the handing over of the photocopies of certain entries made by his above two colleagues to the IO during the investigation of this case and these entries were made in the building watch registers of the years 199394 and 199495 of the above said two properties. As per him, he handed over to the IO the entries number 45 CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 82 of 146 and 46 dated 02.04.1993 Ex. PW13/A and Ex. PW13/B made by Sh. R. N. Gupta/PW15 as well as the entries number 22 and 23 made on 04.08.1994 by Sh. Hari Parkash (the name as stated by the witness, whereas PW14 has stated his name to be Hari Niwas) in the building watch registers of the years 199394 and 199495 respectively and he has also identified the handwriting of his these two colleagues in these writings. However, during his entire examination, even the original register containing the entries Ex. PW13/A and Ex. PW13/B was not produced and the exhibition of photocopies of these entries was also duly objected to by Ld defence counsels, though the original register containing the other two entries Ex. PW13/C and Ex. PW13/D was produced before him. Though, subsequently, during the crossexamination of PW15, one certificate has been brought on record as Mark PW15/DA regarding the original register containing the entries Ex. PW13/A and Ex. PW13/B, which was claimed to be not readily available, but even this certificate has not been proved on record as per evidence and it was also contrary to the submissions made on behalf of the prosecution during the examination of PW13, which were to the effect that the said register stood destroyed.
91. Since PW13 was not the concerned person responsible for making these entries, the prosecution also examined on record the concerned two officials namely Sh.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 83 of 146 Hari Niwas as PW14 and Sh. R. N. Gupta as PW15. PW14 Sh. Hari Niwas claims to have inspected the above two properties on 04.08.1994 and made entries Ex. PW13/C and Ex. PW13/D respectively bearing numbers 22/45 and 23/46 (The serial numbers 45 and 46 are stated by him to be the old serial numbers of entries of the previous register) in the building watch register of the year 199495 regarding the stage of construction on these properties.
92. During the course of his examination (re examination), the prosecution has also produced on record the original building watch register containing these entries Ex. PW13/C and Ex. PW13/D and though it was objected to by Ld defence counsels on the ground that it could not have been produced during the reexamination of the witness, but the objection is without any merits and procedural in nature only and production of the original register containing the above entries could well have been directed by the court even in the form of its observations as the right of the prosecution to produce the same was already reserved. Hence, these entries can be taken as proved on record.
93. According to PW14 Sh. Hari Niwas, on the above day of inspection of these properties by him, i.e. on 04.08.1994, the above properties were at the finishing stage, which remarks were being given if the wood work or any other CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 84 of 146 kind of work was yet not complete. However, he has not stated about the exact stage or extent of construction existing on these properties on the above day of his inspection. As already discussed above, it is the exact extent and stage of construction of these properties on the date of issuance of the completion certificates thereof, i.e. on 12.11.1993, which matters for proving of the charges framed against the accused persons and not the extent or stage of construction existing much prior or subsequent to the said date. Since this witness deposes about the inspection and entries of only date 04.08.1994, which is about nine months after the date of issuance of the completion certificates of the said properties, his depositions and the above entries made by him are found to be of no help to the case of the prosecution for proving the charges framed against the accused persons for the reasons as already discussed above.
94. Now coming to the depositions of PW15 Sh. Ram Narain Gupta and the entries Ex. PW13/A and Ex. PW13/B bearing numbers 45 and 46 respectively made by him in the building watch register of the years 199394, the said entries also stand duly proved on record as even the original register containing these entries was produced in the court. As per this witness, he had first inspected the above properties bearing numbers 11B/5 and 11B/8 on 02.04.1993 and these properties were under construction from basement to second CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 85 of 146 floor and on the next date of his inspection also, i.e. on 31.07.1993, the properties were still incomplete and unoccupied. Both these dates of inspection were well prior to the issuance of the completion certificates of these properties on 12.11.1993. He further states that he had also inspected these properties on 07.03.1994 and 31.03.1994 and on 07.03.1994, the plaster work was going on and on 31.03.1994, the constructions upto the fourth floor in property number 11 B/5 and upto the fifth floor in property number 11B/8 were in progress. Hence, even this witness is not found to have inspected the above two properties on or around any day surrounding the date 12.11.1993, on which the completion certificates were issued, and there were gaps of atleast 45 months in inspecting these properties by him, either prior to or after issuance of the above completion certificates, and so even the depositions made by this witness cannot exactly prove the status or extent of constructions raised or existing on these properties on the above date of issuance of the completion certificates thereof, i.e. 12.11.1993. Hence, the depositions of this witness and entries made by him are also not sufficient for proving the exact status of the constructions existing on the above two properties. Therefore, all the above entries made in the building watch registers of the above said five properties or the depositions made by the above witnesses concerning these entries are also not of any help to the case of prosecution, though the above entries could have CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 86 of 146 been relevant U/s 35 of the Evidence Act, as has been argued by Ld Addl. PP for the State.
95. The next witnesses being heavily relied upon by the prosecution on these aspects are PW5 Dr. N. Ravi and PW26 Sh. Pradeep Kr. Mazumdaar, who were working as Superintending Surveyor, Works and the Draftsman (Civil) respectively in the office of the PWD, Zone1 of Delhi Administration. PW5 has proved on record one report dated 12.08.1994 Ex. PW5/A given by him with regard to the above five properties and he states that the above report was given by him on the basis of the inspection of these properties conducted by the three officials of their office, i.e. Sh. D. K. Aggarwal, Assistant, Sh. Mazumdaar, Draftsman and Sh. Mohinder Singh, JE, who were deputed to conduct the survey of the said building. He has also stated that the directions to conduct the survey were given by Mr. Rajouria, who was the Chief Engineer of their office. It is necessary to mention here that though from his depositions the date of the above survey is not clear, but as per the above report Ex. PW5/A given by him, this survey was conducted on 11.08.1994 and 12.08.1994 in connection with some complaint received by the Vigilance Department of MCD in respect of unauthorized constructions in the above said properties. As stated above, PW26 Sh. Pradeep Kumar Mazumdaar was one of the three officials who were deputed to conduct the above survey of these properties.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 87 of 146 As per PW5, the instructions given to them were to inspect these properties and to report about the deviations in construction of the said properties. The above report Ex. PW5/A speaks about some material deviations and irregularities in the form of unauthorized and extra coverage etc in these properties. PW26 has also stated that when he visited the aforesaid properties, alongwith the other two officials, it was found that the constructed area of these properties was more then the sanctioned plans of these properties.
96. However, it is observed that even the depositions made by these two witnesses and the above report Ex. PW5/A are not of any help to the prosecution for proving the above said charges framed against the accused persons. PW5 Dr. N. Ravi has himself stated on record that he did not personally visit the said properties and hence, was not involved in the survey thereof. As per him, his above report Ex. PW5/A was given on the basis of the written report, which was submitted to him by the above three officials of his office who had actually conducted the survey of these properties, but the said report prepared by the above officials involved in the actual survey has not been brought and proved on record, either during the statement of PW5 or during the statement of PW26. Hence, in the absence of any survey of these properties conducted by PW5 himself, the above report Ex. PW5/A given CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 88 of 146 by him on the basis of some other report prepared by the above three officials of his office, including PW26, can only be termed to be a hearsay evidence and hence, inadmissible in evidence. Even the depositions made by PW26 regarding his observing some deviations in constructions from the sanctioned plans of these properties cannot be given any weight as the written report allegedly prepared and given by them in this regard is not a part of the evidence and hence, there is no material on record to substantiate his these depositions. Moreover, it cannot also be ignored that the above survey was conducted by PW26 and the other two officials of their office only on 11.08.1994 and 12.08.1994, i.e. after about nine months after issuance of the completion certificates, and hence, even otherwise the same could not have reflected the true status and extent of constructions on these properties on the dates of issuance of completion certificates thereof.
97. It is necessary to mention here that even the name of PW26 was not cited in the list of witnesses and he was summoned as a witness only in terms of an order passed by this court on an application U/s 311 Cr.P.C. moved by the prosecution subsequent to the closure of their evidence on 02.07.2007, as already discussed above. The said application was moved on 04.01.2008 and it was allowed on 01.02.2008 and besides Sh. Pradeep Kumar Mazumdaar, the other two CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 89 of 146 officials involved in the above survey, i.e. Sh. D. K. Aggarwal and Sh. Mohinder Singh, were also directed to be summoned. However, the prosecution had examined on record only Sh. Pradeep Kumar Mazumdaar as PW26 and even during his examination, or otherwise, it took no steps to get summoned or proved the survey report given or submitted by these three officials in their office, which formed the basis of the survey report Ex. PW5/A given by PW5 Dr. N. Ravi. The evidence of the prosecution was again closed on 22.07.2008 by Ld Addl. PP for the State while submitting that he did not want to examine the remaining two witnesses participating in the above survey. This court fails to understand and see any reason on the part of the Ld Prosecutor in not examining the remaining two witnesses as per their above application U/s 311 Cr.P.C. and not bringing on record the report given by these three witnesses regarding the above survey conducted by them, which could have helped the prosecution in substantiating the above said charge.
98. PW6 Sh. B. B. Nanda, who has made the complaint Ex. PW6/A of this case, himself has not inspected any of the above five properties and as per the depositions made by him in this court, he had made the said complaint only on the basis of some enquiry conducted by the Vigilance Department of MCD, in which certain deviations were found to have been observed. Even in his cross examination, he CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 90 of 146 reiterates that whatever he had mentioned in the above complaint Ex. PW6/A, it was on the basis of the report given by the Vigilance Department. Hence, the depositions of this witness or the contents of the complaint Ex. PW6/A made by him also cannot be considered incriminating against the accused persons in any manner.
99. The next witness of the prosecution who specifically claims to have inspected the above said properties is PW8 Sh. Sanjay Jain, who was working as a JE in the Coordination Department of the MCD, HQ at Town Hall at the relevant time. Even PW10 Sh. R. K. Gupta and PW25 Sh. R. P. Gupta were working in the above said department as AE and Coordination Engineer respectively at the relevant time, though they both have not personally inspected the above said properties. As per PW25, he had only received a complaint regarding some unauthorized construction through Superintending Engineer and he got these properties inspected through the JE Sh. Sanjay Jain (PW8) and Sh. Sanjay Jain submitted his report to Sh. R. K. Gupta, AE (PW10) and he (PW25) forwarded the said report to their Superintending Engineer for his information and further action and directions regarding the extended bars left open in the said properties. Though he has not given the numbers of the above properties got inspected by him through PW8, but he certainly is talking about the above five properties involved in CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 91 of 146 this case. PW10 Sh. R. K. Gupta also claims to have only forwarded the above report given by PW8 regarding the said inspection, besides deposing about the applications for approval of the construction plans of these properties and the issuance thereof from the office of the MCD.
100. Coming back to the depositions of PW8 Sh. Sanjay Jain, he has stated on record that on 16.09.1993 one complaint was marked to him by AE Sh. R. K. Gupta (PW10) which pertained to some unauthorized construction in some properties at Pusa Road. He further states on record that on receiving the said complaint, he obtained a report about these properties from the building department of Karol Bagh Zone and then went for inspection of these properties, alongwith some staff from the Karol Bagh Zone. Though he was not able to remember the exact time of the above inspection, but he states on record that it was after about five days of receiving of the above complaint. He further states that at the relevant time of inspection of these properties, A1 and A2 were also with him. He has also proved on record his report Ex. PW8/A given regarding the inspection of these properties.
101. Though PW8 has also not able to tell the numbers of the properties inspected by him, but there is no dispute with regard to the fact that his depositions and the above report Ex. PW8/A pertain to the above five properties and the above CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 92 of 146 inspection report Ex. PW8/A has even been referred to and relied upon by Ld defence counsels during the course of their arguments. As stated above, the above inspection was carried out on 16.09.1993, i.e. just about two months prior to the issuance of the completion certificates. However, it is observed from the contents of the above report that though construction was seen to be in progress at the sites of the above five properties by this witness, but it is specifically mentioned in his above report that no unauthorized construction was found to be existing at the sites of these five properties and the construction which was found to be carried out and existing at these sites was as per the sanctioned plans of these buildings, except the fact that reinforcement bars of beams and columns have been left projected at all floors which might be used for carrying out unauthorized constructions. He was even questioned specifically during his cross examination regarding the nature of the above bars and beams and it was his reply that the bowel bars and the bars of beams and columns which were left open on these properties did not constitute any unauthorized construction as the same could have been cut and removed or it could have been eventually used for any future sanctioned storeys of these buildings, if sanctioned by the civic authorities. Even PW2 Sh. V. P. Rao was specifically questioned on this aspect and he went on to state that he cannot say if the extended reinforcement bars, when there were no other deviations, fell CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 93 of 146 within the definitions of structures or not. Hence, simply because the extended columns and bars have been left open on these properties, it cannot amount to any unauthorized construction by itself as on the date of inspection of these properties by PW8, though the same could have left a scope for the owners or builders of these properties for raising certain unauthorized constructions on these properties in future or even for raising certain further constructions in future, which could have been permitted or sanctioned by the concerned municipal authority and Ld defence counsels are right in making the above submissions. After this inspection conducted on 16.09.1993 by PW8, no other inspection is being alleged to have been conducted by any official of the MCD examined on record, or by any other person, prior to the issuance of the above completion certificates of these properties on 12.11.1993, to show that any further unauthorized constructions on these properties were raised by the owners or builders of the above properties, on the basis of the above open bars and columns, till the above date 12.11.1993 on which the above completion certificates of these properties were issued. Hence, even the above report Ex. PW8/A and the depositions made by PW8, which are being heavily relied upon by the prosecution, do not make out a case of raising of any unauthorized constructions on the five properties by the owners of the said buildings or the same having been raised due to some illegal acts or omissions of A CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 94 of 146 1 and A2, as has been alleged, till the above date of issuance of the completion certificates.
102. As stated above, apart from forwarding the above report Ex. PW8/A given by PW8 Sh. Sanjay Jain, PW10 has also deposed about the approved sanction plans of the above five properties available in the concerned files of the Coordination Cell of MCD, which were shown to him by the CBI officials during the investigation. Even on the above files being shown to him in the court, he has identified the applications given by the owners of these properties for approving the plans of the said properties and the orders vide which such plans were sanctioned or issued. He has further deposed about the specific names of the respective owners of these five properties bearing numbers 5/34, 17/34, 18/34, 11 B/5 and 11B/8, Pusa Road, Karol Bagh, New Delhi and exhibited the said applications for sanctioned plans of these properties as Ex. PW10/A, Ex. PW10/E, Ex. PW10/C, Ex. PW10/G and Ex. PW10/J respectively and the orders sanctioning/approving these plans as Ex. PW10/B, Ex. PW10/F, Ex. PW10/D, Ex. PW10/H and Ex. PW10/K respectively. As per him, the sanctioned plans of all these properties were approved for 2½ storey building each and for residential purposes. Though the exhibition of these applications and orders was objected to on behalf of the accused persons on the ground of mode of proof as this CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 95 of 146 witness was not able to identify the signatures of the concerned AE who sanctioned or approved these plans nor he was in a position to identify the signatures of the owners of these properties on these applications or had further anything to do with the processing of the same, but the accused persons in their statements recorded U/s 313 Cr.P.C. as well as the Ld defence counsels during the course of their arguments advanced subsequently have not disputed the fact that the construction plans of these properties were approved for 2½ story buildings and for residential purposes.
103. The next witness of prosecution connected with the inspection of above properties is PW16 Sh. Rajender Nischol and he claims that he was on deputation in MCD as a Deputy Director, Vigilance from 01.04.1992 to 31.03.1995 and during the said period, he inspected nine properties on Pusa Road because some unauthorized construction was reported to be taking place at these properties. He further states that he had gone to inspect these properties, alongwith Sh. Rao, Additional Deputy Commissioner of the Karol Bagh Zone, i.e. PW2 herein, and he was told by Sh. Rao and the concerned JE that two of these nine properties were already being investigated by Sh. Gokal Singh, Assistant Director (Vigilance
1), who was assisted by Inspector Sh. Punia of MCD. He further states that he brought the above fact to the notice of Sh. Kartar Singh, the then Director, Vigilance and he gives the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 96 of 146 number of the properties inspected by him to be 11B/5 and 11B/8, Pusa Road. This is all what he has deposed during his examination in chief.
104. During his cross examination conducted on behalf of the accused persons, he has stated that he had given a written inspection report, alongwith photographs, regarding the inspection conducted by him in respect of the above said two properties, but he does not remember the date of inspection of the said properties. However, he has also stated that the above inspection took place on a rainy day. In response to a court query, he has immediately stated thereafter that the above inspection took place in January, 1993. He further stated in his cross examination that at the time of inspection, he did not take alongwith him the sanctioned plans of the above two properties and further that since he was not having the sanctioned plans of the said properties, therefore, he does not know as to who were the owners of these two properties. He further stated that the construction work was complete in these properties, but painting and polishing was going on and he did not even enquire from the workers present there regarding the owners of these properties.
105. It transpires from his above statement that he had not inspected all the above five properties involved in this case and inspected only two of them, i.e. 11B/5 and 11B/8. Going CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 97 of 146 by his depositions, the above said inspection was conducted in January, 1993, which was about ten months prior to the issuance of the completion certificates of these two properties on 12.11.1993 and hence, the extent of construction existing on these two properties at that time does not matter much for proving the above said charges. Moreover, even the exact extent of construction existing at these properties on the alleged day of his inspection has not been brought in the evidence, which could have been brought in evidence only by way of the report given by this witness which, for the reasons best known to the prosecution, has not been brought or proved during the evidence. Further, though he claims that he went to inspect these properties, alongwith Sh. Rao/PW2, but PW2 Sh. V.P. Rao has nowhere claimed that this witness was also with him at the time when they had gone for inspection of the above properties. PW2 has not even given the date of inspection or the numbers of the properties inspected by him, what to say of giving the exact position or status of the constructions existing thereon. Again, the depositions of this witness made to the effect that the construction work of the above two properties was complete on the day of his above inspection and only some painting and polishing work was going on in these properties are in sharp contrast and contradiction to the stand of the prosecution that the construction on these properties was being raised continuously till and even after the issuance of the above CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 98 of 146 completion certificates or that the same was still incomplete on the day on which the above completion certificates were issued. Hence, even the depositions of this witness are not helpful for the prosecution in substantiating the charges framed against the accused persons.
106. Thus, it is clear from the above that from the depositions of none of the above witnesses examined by the prosecution on record, the exact status or extent of the construction existing on the above said five properties as on the date of issuance of the completion certificates thereof can be established, which could have helped the prosecution in establishing that the construction on the above said properties was either incomplete or was being raised for commercial purposes or the same amounted to unauthorized construction as on the said date. Hence, it also cannot be held that the above completion certificates were issued by A1 and A2 against the building bylaws of the MCD or any other laws or provisions on the subject or by way of abuse of their official positions as such or their conduct in issuing the same amounted to criminal misconduct of the degree, as is referred to under subclauses (ii) and (iii) of clause (d) of Section 13(1) of the PC Act.
107. Further, it is also the contention of Ld Addl. PP for State that the prosecution has also brought on record certain CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 99 of 146 other evidence pertaining to demolition of unauthorized constructions carried out on these five properties and it should be taken as proof of existence of such unauthorized constructions at the sites of these properties on the dates of issuance of completion certificates thereof. In this regard, it is necessary to mention here that some unauthorized constructions raised on these properties are stated to have been subsequently demolished by the MCD, on the directions given by the Hon'ble High Court in the above civil suits stated to have been filed by some of the owners/builders of these properties. This demolition of unauthorized constructions is stated to have been carried out after the Hon'ble High Court had appointed a Local Commissioner to visit the sites and to report about the status of constructions existing on these properties. It is stated that the above civil suits were filed by some of the owners of these properties seeking a restraint order from the Hon'ble High Court to the effect that the Corporation should not interfere with the structures raised on these plots as the completion certificates in respect thereof had already been granted. Though the copies of these petitions have not been brought on record during the evidence, but the reports of the Local Commissioner and one written statement filed by the MCD in one of these suits are duly brought on record during the evidence.
108. The relevant witnesses examined on record and CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 100 of 146 deposing about the above aspect of demolition are PW2 Sh. V. P. Rao, the then ADC, Karol Bagh Zone and PW12 Sh. S. P. Gautam, the then ZE of the above zone and the Local Commissioner appointed to report about the unauthorized constructions in the above five properties is PW18 Sh. P. C. Dhingra, an Advocate practicing in the Hon'ble High Court at the relevant time. As already stated above, though PW2 has stated on record that he supervised the demolition of unauthorized constructions in the above properties, which was ordered by the ZE, Building, but he is not found to have deposed anything further or material regarding the above demolition. During his cross examination, he was not even able to recollect if he had ever received any complaint about any such unauthorized constructions in the said properties upto 16.11.1993 or even upto 17.01.1994. Even PW12 Sh. S. P. Gautam is not helpful in establishing the extent of the alleged illegal constructions demolished by them or the timing or period during which the same would have been raised. As per him, he was posted as ZE in the above said zone on 23.05.1996 and during those days, demolition was going on in the above five properties which fell within his jurisdiction. He also states that the demolition was being carried out due to the unauthorized constructions made by the owners of the said properties and the top floors of these buildings were demolished due to unauthorized constructions as per rules as unauthorized construction was beyond the permissible limits CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 101 of 146 and of the sanctioned building plans of these properties. During his cross examination, he was not in a position to tell about the ownership of these properties, the details about the completion certificates granted in respect of these properties and the extent of the plans sanctioned for these properties etc. It appears from his depositions that the demolition of the above unauthorized constructions in the said properties had taken place on 23.05.1996, i.e. about two and half years after the grant of the completion certificates of these properties and therefore, the same cannot establish on record as to what kind of unauthorized constructions were carried out on these properties and further as to when the same were carried out.
109. Coming to the depositions made by PW18 Sh. P. C. Dhingra, he states that he was appointed as a Local Commissioner by the Hon'ble High Court in the year 1994 and he had given his reports regarding the status/existing structures of the above five properties and he has also proved on record his reports regarding the above five properties as Ex. PW18/C, Ex. PW18/B, Ex. PW18/A, Ex. PW18/D and Ex. PW18/E respectively. Though he was not able to tell the exact dates of inspection of these properties, but from the above reports given by him, it is found that the inspections of the said properties were carried out by him from 13.09.1994 to 15.09.1994 in suits number 160/94, 1097/94, 175/94, 176/94 and 701/94 respectively filed by some of the owners of the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 102 of 146 above properties. Though the above reports Ex. PW18/A to Ex. PW18/E submitted by this witness show that the constructions being raised on these properties appeared to be commercial and further construction upto the terrace of the fourth floor of all these properties was found to have been raised, but the same are also not sufficient to prove on record the extent, status or nature of construction existing on these properties as on the day of issuance of completion certificates thereof, i.e. on 12.11.1993, because neither the depositions made by this witness nor the above reports given by him can pinpoint as to when the above illegal construction on these properties started, i.e. whether it started prior to or after 12.11.1993, and further when the nature of the construction being raised thereon turned to be a commercial one. He or his above reports nowhere suggest that the structures raised on these properties were commercial in nature from the very beginning. As has also been discussed earlier, even in the depositions of PW15 Sh. R. N. Gupta, it came on record that on 31.03.1994 some constructions in properties number 11 B/5 and 11B/8 upto the fourth and fifth floors respectively were in progress. The depositions made by PW15 and the above reports Ex. PW18/A to Ex. PW18/E given by PW18 can at the most suggest that some unauthorized constructions might have been subsequently raised by the owners of these properties after the issuance of the completion certificates of these properties on 12.11.1993 and the same do not in any CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 103 of 146 way establish beyond reasonable doubts that such unauthorized constructions were raised before 12.11.1993. Ld defence counsels have submitted that this was also the stand taken by the MCD before the Hon'ble High Court in the above said civil suits and a copy of one written statement filed by the MCD in one of the above civil suits number 175/94 titled as Sh. Lajpat Rai Vs. Municipal Corporation of Delhi & Anr. has also been referred to in this regard. This copy of the written statement is a document filed on record by the prosecution itself and is Ex. PW2/D1 on record. This written statement was filed in the above civil suit before the Hon'ble High Court under the signatures of PW2 Sh. V. P. Rao. This document was also put to PW2 by Ld defence counsels during his cross examination and he has admitted the same. As per this written statement filed by the MCD, no illegal construction in deviation of the sanctioned plan of the property number 18/34 involved in the above suit was raised or existed on the said property till the time the completion certificate thereof was issued and the same was raised by the owners of the said property only after obtaining the completion certificate thereof. It is not being disputed on behalf of the prosecution that similar written statements were filed by the MCD in all the above cases. Hence, even the witnesses and documents produced by the prosecution itself show that the alleged illegal construction found on these properties and demolished subsequently by the orders of the Hon'ble High Court, after the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 104 of 146 above reports Ex. PW18/A to Ex. PW18/E given by PW18, was raised subsequent to the grant of completion certificates thereof and not prior to the same. Therefore, the above evidence led on record by the prosecution is not found sufficient to show that on the date of issuance of the completion certificates of these properties, there were existing any actual unauthorized constructions on these properties or that the same were being constructed for commercial purposes or that the constructions thereof were incomplete.
110. Ld Addl. PP has also referred to certain photographs of these properties submitted by the owners/builders thereof, alongwith their applications for grant of NOCs or completion certificates in respect of their properties, and it is observed from the record also that some photographs are available in the files pertaining to the issuance of the completion certificates of the above five properties, but the same have not been proved or even exhibited on record by the prosecution during the evidence. The prosecution has not even bothered to prove on record the applications submitted for issuance of the NOCs or completion certificates of these properties or the fact as to who were the persons who had signed the said applications and photographs of these properties or the other documents enclosed with the applications. Simply because the prosecution is being conducted by the ACB of the Delhi CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 105 of 146 Government or any other premier agency, no different rules or yardsticks evidence can be applied for them in the matter of proof of the documents and all such documents being relied upon by them were required to be proved strictly as per the provisions of the Evidence Act. If the mere exhibition of a file or a document during the testimony of a witness, who had even never dealt with the said file or document during the course of his duties, is considered to be enough for proving a document on record, all the rules of Evidence Act governing the admissibility and proof of the documents will stand rendered as redundant. No attempt was made for proving the above photographs or the applications filed for the grant of NOCs or the completion certificates in respect of the said properties. Even none of the IOs had taken any specimen signatures of any of the accused for the purposes of comparing those signatures with the signatures appearing on these documents, so as to find out if these documents were actually signed and submitted by them personally or not. Hence, in the absence thereof, no reliance can be placed upon the above photographs as the same do not form part of the admissible and proved documents on record and were even not put to the accused persons in their statements recorded U/s 313 Cr.P.C. Further, though Ld Addl. PP has also argued that in terms of the powers conferred by Section 73 of the Evidence Act, this court should compare the signatures appearing on these documents with the other admitted CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 106 of 146 signatures of the accused on any of the documents on record, but I am afraid that even this cannot be done as the above documents do not form part of the admissible evidence led on record, as discussed above.
111. No witness of the prosecution is found to have specifically deposed on record that the constructions carried out or existing on the above properties on the above date of issuance of completion certificates thereof were actually found to be against the building norms or bylaws of the MCD or that the buildings raised on these properties were incomplete or were constructed for commercial purposes on the said date. On the other hand, some of the witnesses have specifically stated on record that prior to the issuance of the above certificates, the constructions were found to have been raised as per the sanctioned plans of these properties and no deviations from the sanctioned plans were observed or that they cannot say if any deviations or irregularities were made or not by A1 and A2 in permitting constructions on these properties beyond their sanctioned plans. It is also brought on record that some constructions raised beyond the sanctioned plans of these properties were duly compounded and the compounding fees thereof deposited prior to the issuance of the above completion certificates. Merely because, the NOCs of four properties were signed by the above two accused in a day, no inference of any criminal misconduct, as is referred to CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 107 of 146 above, can be drawn against the above two accused because of the same the court cannot act with any prefixed or determined bias against them in this regard. None of the prosecution witnesses, who happened to visit the said properties, has claimed to have visited the said properties near or around the above said date and even on the days of their alleged visits, they were not carrying the sanctioned plans of these properties for comparisons and to find out if actually there were any deviations or irregularities in raising the constructions thereof or not. As discussed above, though the evidence led on record suggests that some illegal constructions were subsequently found to have been raised on these properties and the same had to be demolished on the directions of the Hon'ble High Court, but the evidence does not reflect the exact timing of raising of these unauthorized constructions and the possibility is very strong that such illegal construction were raised only after the grant of the above completion certificates, as was the specific stand taken by the MCD in their above written statement Ex. PW2/D1 filed before the Hon'ble High Court in the above civil suit number 175/94. It is well settled that if two views are possible from the evidence, then the one which favours the accused has to be adopted at the final stage of appreciation of evidence and the benefit thereof, wherever it is required to be given, should always go to the accused. Further, the prosecution was also duty bound to prove its charges against the accused beyond CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 108 of 146 reasonable doubts, which they had failed to do so.
112. One other important aspect pertaining to the alleged misconduct of A1 and A2 is also that a regular departmental enquiry was earlier conducted against them by the Vigilance Department of the MCD and it pertained to the same allegations of unauthorized constructions raised and completion certificates issued in respect of the above five properties. The accused persons have also examined on record DW1 Sh. Ranjit Singh on this aspect and this witness has produced on record the complete file pertaining to the departmental proceedings conducted against these two accused and a copy thereof has been taken on record as Ex. DW1/1 colly. Though, the original file Ex. DW1/1 was also produced before this court, but the documents exhibited as Ex. DW1/1 are also not found to have been proved as per law. However, this witness has specifically stated on record that the above two accused were exonerated from the charges framed in this said enquiry vide order dated 17.03.2003. The facts that a departmental enquiry against A1 and A2 was held on this account and they both were exonerated in the same are also not being disputed on behalf of the State. However, the contention of Ld Addl. PP is that in view of the judgment of the Hon'ble Supreme Court in case Government of NCT of Delhi Vs. Ajay Kumar Tyagi Crl. Appeal No. 1334/2012 arising out of SLP (Crl.) 1383 of 2010, the exoneration of A1 and A2 in CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 109 of 146 the above departmental enquiry is no ground to absolve them from their criminal prosecution and punishment in this case. In the above said case, the Hon'ble Supreme Court had set aside an order of the Hon'ble Delhi High Court quashing the charges and the criminal proceedings against such an accused on the ground of his exoneration in departmental proceedings on the same facts as their lordships of the Hon'ble Apex Court were of the view that exoneration of the accused in the departmental proceedings would not ipso facto result into the quashing of the criminal proceedings, unless the prosecution against an accused was solely based on a finding in a proceeding and that finding has been set aside by the superior authority in the same hierarchy, which was not in the said case. Though the propositions laid down in the above said case are not being disputed, but this judgment is of no help to the case of the prosecution as in this case, the question involved is not of quashing the proceedings or the charges, but of acquittal of the accused persons on the basis of appreciation of evidence adduced before the court, which has even otherwise been found to be lacking in proving the charges framed against them. Hence, the exoneration of the accused persons in the department proceedings initiated on the same facts can certainly be treated as an additional factor going in their favour.
113. Hence, the evidence led on record by the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 110 of 146 prosecution is not found sufficient to prove beyond reasonable doubts any criminal misconduct on the part of A1 and A2, as is defined under subclause (ii) or (iii) of clause (d) of sub section (1) of Section 13 of the PC Act, or under any other subclause of clause (d) of the above Section, in approving or granting the above NOCs and the completion certificates of the above five properties.
114. One other important aspect pertaining to the above charge for commission of the offence punishable U/s 13(1)(d) of the PC Act as framed against the above two accused persons is also that even the applicability of the judgment of the Hon'ble Delhi High Court in case Runu Ghosh, Supra has been debated by Ld defence counsels in view of subsequent judgment of the Hon'ble High Court in case of A. K. Ganju & Ors. Vs. CBI 2014 AD (Delhi) 349. The judgment in case of Runu Ghosh, Supra has been given by a Division Bench of the Hon'ble High Court and as discussed above, their lordships in the said case were of the view that the conduct of a public servant in obtaining pecuniary advantage or a valuable thing for someone else without any public interest may amount to a criminal misconduct U/s 13(1)
(d)(iii) of the PC Act, even though there was no abuse of his office by such a public servant and no corrupt or illegal means were employed by him. It was further held that even the presence of mens rea or criminal intent on the part of the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 111 of 146 accused was not a sine qua non for conviction of the accused. However, it is the contention of Ld defence counsels that the above observations were made by the Hon'ble High Court in the case of Runu Ghosh, Supra when the allegations made against the accused public servants were that they had caused undue benefits to certain companies by their official acts or omissions and the said acts or omissions of the public servant had caused losses to the government exchequer in crores, whereas in the present case no financial loss is alleged to have been caused by the above two accused to the government exchequer. It is also their contention that rather the facts of the case of A. K. Ganju, Supra being relied upon by them, which was decided by a Single Judge Bench of the Hon'ble Delhi High Court, were identical to the present case as the said case also pertained to the raising of certain illegal constructions by the owner and builder etc of a property, allegedly in conspiracy and collusion with certain government servants including A2 herein. The said case was also registered U/s 120B IPC and Section 13(2) r/w Section 13(1)
(d) of the PC Act and in total four accused persons, including A2, were chargesheeted in the said case. The trial court of CBI had directed the framing of charges for the above said offences against all the accused persons. However, except A 2, the other three accused persons had challenged the chargesheet, the order on charge as well as the charges framed against them before the Hon'ble High Court and the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 112 of 146 Hon'ble High Court had quashed all the proceedings qua them on the grounds that the offences alleged to have been committed by the accused persons were pertaining to the raising of unauthorized constructions only and hence, the same were to be dealt with as per the provisions contained in the MCD Act, which was a complete code in itself and the CBI was not empowered to investigate the offences under the MCD Act and further that there were no allegations of demand or acceptance of any bribe money by the public servants involved as accused in the said case. The fourth accused in the said case, i.e. A2, who opted to face trial and did not challenge the charges, is stated to have been subsequently acquitted by the trial court on the basis of the above observations made by the Hon'ble High Court qua the other three coaccused in the above said petition and also on appreciation of the evidence led before it during the trial as the same was not found sufficient to establish the existence of any unauthorized constructions on the date of issuance of the completion certificate of the said property. Ld defence counsels have also made available to this court a copy of the judgment dated 10.09.2015 of the Ld trial court in CC No. 10/12, RC 41(A)/2000/CBI/ACB/ND of the said case, of which this court can take judicial notice. Though, on enquiry from Ld Sr. PP for CBI deputed in this court, it has been told that the appeals filed by the CBI against the above acquittal of A2 in the said case and the quashing of proceedings against the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 113 of 146 other three accused by the Hon'ble High Court are still pending, but he has not been able to show or state if the above observations of the Hon'ble High Court made in the said case have been stayed or set aside till date. Some of the observations made by their lordship in its judgment in case A. K. Ganju, Supra, while quashing the above proceedings in the above said case, are being reproduced herein below:
"111. The MCD Act is a separate and special code which deals with the offences committed under the MCD Act, 1957. Sections 343345 of the DMC Act deal with unauthorized construction, orders of demolition, orders of stoppage of building work and power of the Commissioner to require alteration of works. Section 345A of DMC Act provides for powers to deal unauthorized constructions. Any violation of the provisions of the DMC Act provides for prosecution and Section 467 of DMC Act prohibits and bars any other Court to take cognizance of or proceed with trial except on a complaint from the Commissioner or anyone authorized by him. Section 468 of the DMC Act provides that the said offences under the DMC Act are compoundable. Accordingly, MCD Code is a complete Code in itself and bars any other agency or Court from taking cognizance of any violation of the MCD Code. Therefore, the CBI or any Authority has no power to usurp the functions of the petitioners under the DMC Act and to investigate the matter of unauthorized construction in violation of MCD Byelaws, unless it is notified by the Central Government."
"114. As regards the charge under section 13(1)(d) of the PC Act, the violator should have obtained a valuable thing or pecuniary advantage for himself or for any other person. In the present case, in chargesheet, there are no allegations of any kind, whatsoever, of any demand, acceptance or giving of any bribe by anybody to anyone. For such an offence, the prosecution has to establish that the accused has obtained the valuable thing or CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 114 of 146 pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of statutory presumption available to him. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) of the PC Act cannot be held to be established."
"115. In the case of Subhash Parbat Sonvane (supra), it is held that in Sections 7 and 13(1)(a) and (b) of the Act the Legislature has specifically used the words 'accepts' or 'obtains'. As against this there is departure in the language used in Clause (1)(d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. The ingredient of Subclause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under Clause (ii) he obtains such thing by abusing his position as public servant and Subclause (iii) contemplates that while holding office as the public servant he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."
115. Though it is observed that the facts of the present case are at some variance from the facts of the case in A. K. Ganju, Supra to the extent that in the above said case, there were no allegations at all of the demand and acceptance etc of the bribe amount by the accused public servants involved therein, but it cannot be ignored that in the present case also there were initially no such allegations made by any of the witnesses in respect of demand or acceptance of bribe by any CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 115 of 146 of the three public servants and the alleged allegations about the demand or acceptance of bribe amount of Rs. 1,50,000/ by them had figured only in the supplementary statement dated 26.02.1996 Ex. PW7/PX2 of PW7 Sh. Narinder Kumar, which was recorded more than one year after his previous statement Ex. PW7/PX1 dated 03.01.1995. Keeping in view the fact that PW7 Sh. Narinder Kumar has not supported the prosecution case on this aspect during his examination in the court as a witness and he has altogether discarded his alleged subsequent/supplementary statement Ex. PW7/PX2, Ld defence counsels appear to be right in making a submission that the possibility cannot be ruled out that the subsequent statement Ex. PW7/PX2 of PW7 containing these allegations might have been fabricated by the IO on his own and to give the alleged offences the colour of the PC Act, about which he was not otherwise sure. Since there were no such allegations of demand or acceptance of bribe by A1 and A2, or even by A3 (since deceased), from the beginning of the case and further since even no evidence has also been led by the CBI on record on this aspect, the above propositions of law laid down in the case of A. K. Ganju, Supra also certainly go in favour of the accused persons and it can be said that the allegations pertaining to the raising or permitting of the unauthorized constructions in the above said five properties were required to be dealt with under the provisions of the MCD Act only.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 116 of 146
116. This court has also been apprised by Ld defence counsels that certain prosecutions were also earlier launched against some of the accused persons in respect of the above said illegal constructions raised by them in the above said properties and some of them were even convicted by the trial court under the relevant Sections of the MCD Act, though subsequently the matters stood compounded at the appellate stage. As already discussed, the plea of double jeopardy was also raised earlier on behalf of some of the accused persons in this case, who are not public servants, though for certain technical reasons the same was not permitted by this court and the said order dated 20.07.2013 of this court was not challenged further by the concerned accused persons.
Charge for the offence U/s 197 IPC
117. The charge for commission of the offence punishable U/s 197 IPC was also framed against A1 and A2 on allegations that the above completion certificates dated 12.11.1993 issued by them in respect of the above five properties, being admissible in evidence bylaw, were issued by them falsely and knowing the same to be false as the buildings of these properties were not complete and fit for occupation on the dates of issuance of these certificates. However, as discussed above, the evidence led on record by the prosecution has been found to be lacking in this regard CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 117 of 146 and since the same has not been held to be sufficient for proving the fact that these certificates were issued by the above two accused falsely or that the buildings being constructed on these properties were incomplete or not fit for occupation etc on the above date, this charge framed against the above two accused also cannot be said to have been substantiated from the evidence led on record.
Sanction U/s 19 of the PC Act for prosecution of A1 and A2
118. One other material circumstance to be considered by this court for holding A1 and A2 guilty of any of the alleged offences under the PC Act is the validity or legality of the sanction granted U/s 19 of the PC Act for their prosecution for the above said offences under the said Act. As per the prosecution case, the sanction to prosecute A1 Sunil Mohan Gupta, the then, JE was granted by PW3 Sh. Chander Prakash Gupta, the then Deputy Commissioner, CSC, MCD, who claims to have been looking after the work of Karol Bagh Zone at the relevant time and though he was not able to recollect certain facts and events pertaining to the above grant of sanction and further though he was also given a suggestion that he was not the appointing authority of A1, but during the course of arguments addressed by Ld defence counsels for the above said accused, it has not been disputed that PW3 was the competent authority to remove an officer of the rank of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 118 of 146 JE from his office and was hence, the authority competent to grant the above sanction for prosecution of A1. The sanction for prosecution of A2, who was the AE/ZE at the relevant time, was granted by PW9 Sh. O. P. Kelkar, the then MCD Commissioner and he has also specifically stated on record that he was competent to remove A2 from services and this fact is also not challenged by Ld defence counsel representing the said accused. The sanctions for prosecution of these two accused have been duly proved on record as Ex. PW3/A and Ex. PW9/A respectively.
119. It has been strongly argued by Ld counsel representing these two accused that the above sanction orders are illegal and invalid as all the relevant material pertaining to this case was not placed before the above two authorities and hence, these authorities were never in a position to apply their mind properly to the facts and circumstances or the allegations made against these two accused. It is also argued that the sanction for prosecution of the above two accused was obtained by the investigating agency by concealment of some material facts, relating to the allegations pertaining to the demand and acceptance of the above bribe money, and the evidence suggests that even the statement Ex. PW7/PX2 dated 26.02.1996 of PW7, who was the sole material witness of the prosecution on the above aspect of demand and acceptance of bribe by A1 and A2, CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 119 of 146 was not placed before or made available to the above two witnesses and hence, the very purpose of incorporating the above provisions relating to the grant of sanction for prosecution of an accused for the alleged offences under the PC Act stands defeated and the above sanctions were granted in a mechanical manner. Judgments in cases of State of Karnataka Vs. Ameer Jan JT 2007 (11) SC 183, State of T.N. Vs. M. M. Rajendran (1998) 9 SCC 268, Bhurey Singh Vs. State of U.P. Crl. Appeal No. 1612/1981 decided by the Hon'ble Allahabad High Court and Ashok Aggarwal Vs. CBI & Ors. W.P.(Crl.) No. 1401/2002 decided on 13.01.2016 by the Hon'ble Delhi High Court on the above aspect of illegality of the sanctions have also been relied upon by the Ld defence counsel for the above two accused.
120. On appreciation of the testimony of PW3, it is found that at the relevant time A1 was not posted in the office where this witness was sitting and PW3 was even not even directly supervising or connected with the official acts being done by A1 and he was only looking after the work of the Karol Bagh Zone in addition to the work of his own office. Hence, he has stated on record specifically that A1 was not known to him. He was not even able to recollect as to what and how many documents were put up before him by the Vigilance Department of their office for according the above sanction, though he claims to have accorded it after due CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 120 of 146 application of mind. He was even not able to remember the facts of the case or the allegations which were leveled against the said accused and was also not aware if any departmental enquiry was initiated against the said accused or not. He even admitted that the above typed sanction Ex. PW3/A was put up before him in the format of a draft and he had simply signed the same and it was not dictated by him.
121. Coming to the sanction Ex. PW9/A for prosecution of A2 granted by PW9 Sh. O. P. Kelkar also, it is observed that the above sanction order is not bearing any date of its issuance and this witness was also not able to recollect the date of issuance thereof. Though, he was the top most senior officer of the MCD at the relevant time, he was not able to tell even as to under what provision of the PC Act he had accorded the above sanction. He was even not able to tell the numbers of the above properties or the names of the owners thereof and further he was also not able to remember the documents which were produced before him for perusal at the time of grant of the above sanction. He was further not able to remember whether the above sanction order was typed under his instructions or it was put up before him by the Vigilance Department of MCD. It has also been pointed out by Ld defence counsel that both the above sanction orders Ex. PW3/A and Ex. PW9/A are verbatim the same and it shows that drafts of both these orders were put up before these CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 121 of 146 witnesses by their vigilance office and they had simply signed thereon. PW9 was even shown the similarity of the above two draft orders and was asked to give his comment with regard to the same, but he refused to offer any comments in this regard. On being questioned about Sh. Narinder Singh, i.e. PW7, he stated that he does not know him and he even admitted that in the above sanction order Ex. PW9/A given by him, there is no reference of any demand or acceptance of bribe by A2, for whose prosecution the said sanction order was issued by him.
122. The above depositions made by these two witnesses and the contents of the above two sanction orders Ex. PW3/A and Ex. PW9/A clearly suggest that all the relevant facts and material pertaining to this case were not placed before this witness at the time when they were asked to apply their mind and to give sanctions U/s 19 of the PC Act for prosecution of the above two accused. Moreover, the fact that these sanction orders are found to be verbatim the same, it also suggests that the above sanctions were granted by them in a mechanical manner and without any proper application of mind. This inference is further strengthened from the fact that the above two sanction orders do not contain even any reference to the above allegations regarding the demand or acceptance of the above bribe amount of Rs. 1,50,000/ by A 1 and A2 from the accused Ravinder Kumar Taneja (A14), Pawan Kumar Taneja (A17) and Ramesh Tewari (A26) on CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 122 of 146 12.11.1993, i.e. the date on which these three accused are alleged to have visited the above office of A1 and A2 and deposited the compounding fee in respect of their properties, though there is a reference to the visit of three persons in their office on the above said date and the receiving of the compounding fee etc. Even the name of PW7 Sh. Narinder Singh, who prepared and signed the challan for depositing the above compounding fee and was also the star witness of the prosecution on the above aspect is not found to be mentioned in the above sanction orders. As already discussed above, there was no reference of the above allegations of bribe in the first statement dated 03.01.1995 Ex. PW7/PX1 of Sh. Narinder Singh and the above allegations had come on record only in his subsequent/supplementary statement Ex. PW7/PX2 recorded on 26.02.1996. Though the sanction order Ex. PW9/A of A2 bears no date of issuance, but the sanction order Ex. PW3/A of A1 was issued on 22.03.1996, i.e. after about one month from the recording of supplementary statement Ex. PW7/PX2 of PW7 Sh. Narinder Singh. Hence, once the above allegations of acceptance of bribe amount of Rs. 1,50,000/ by A1 and A2 have come on record in the above statement Ex. PW7/PX2 of PW7 dated 26.02.1996, the same should have also been there in the above sanction orders and this fact, coupled with the depositions of PW9 made to the effect that he does not even know Sh. Narinder Singh, is a clear circumstance to show that the above CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 123 of 146 statement Ex. PW7/PX2 of PW7 was not placed before the above witnesses. There is also no evidence on record from the side of the prosecution to establish as to exactly what documents were made available to or placed before these two witnesses at the time of granting the above sanctions.
123. In the cases of Ameer Jan and M. M. Rajendran, Supra being relied upon by Ld defence counsel on the issue of sanction, the Hon'ble Supreme Court has held such sanction orders to be invalid and vitiated, which were passed by the concerned competent authorities without having gone through the entire material of the case and without any due applications of mind. In case of Ameer Jan, Supra, the Hon'ble Supreme Court observed as under:
"7. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been brought on record. Thus, whether in the said report, CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 124 of 146 either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced."
124. The observations made by the Hon'ble Supreme Court in the case of M. M. Rajendran, Supra are as under:
"The High Court, has come to the finding that all the relevant materials including the statements recorded by the Investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The High Court has also come to the finding that although the Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such depositions, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 125 of 146 mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis.
125. In its recent decision in the case of Ashok Aggarwal, Supra also, their lordship of the Hon'ble Delhi High Court has considered all the existing law on the point of sanction and has culled out certain legal propositions. The relevant extracts of the observations made by their lordship in this case are as follows:
"69. Considering the conspectus of decisions abovereferred the following legal propositions can be culled out:
a) Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation.
b) The sanctioning authority after being apprised of all the facts must be of an opinion that prima facie a case is made out against the public servant.
c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence.
d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction.
e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction.
f) If the application of mind by the
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 126 of 146
sanctioning authority is not apparent from the sanction order itself then the burden of proving that the entire relevant record was placed before the sanctioning authority rests on the prosecution. The prosecution must establish and satisfy the court by leading evidence that the entire record of investigation was placed before the sanctioning authority.
70. In the present case, the respondents have despairingly failed to discharge the onus of proving that the sanction order dated 21.06.2002 is valid and that all the relevant documents were sent to the sanctioning authority for its perusal. None of the documents that go to demonstrate the innocence of the petitioner viz. the reply to the LR dated 27.06.2001 and the relevant Fax dated 13.01.1998 were shown to have been available to the sanctioning authority. These documents clearly and unequivocally establish that the Fax in question was in fact sent by the Swiss Bank Corporation, however, it is purported to have reached Mr. Barjatya by mistake. Resultantly, the Fax in question was a genuine one, and was not forged or fabricated as alleged by the prosecution.
71. The sanction order dated 21.06.2002 is a verbatim copy of the draft sanction order sent along with the SP's report on 30.10.2001 and illustrates nonapplication of mind by the sanctioning authority. I have gone through and compared the draft sanction order and the sanction order dated 21.06.2002 and it clearly appears that the sanctioning authority has given its imprimatur to the draft sanction order without applying its mind to the relevant material. The sanction order dated 21.06.2002 as well as the SP's report dated 30.10.2001 do not allude to the reply to LR dated 27.06.2001, or the relevant Fax dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. Thus, the sanction order itself does not reflect that the aforestated relevant documents were examined by the sanctioning authority before granting sanction for prosecution. The sanctioning authority who, purportedly went through the abovementioned documents, as per the notings of the then Hon'ble Finance Minister, is not even the sanctioning authority that signed the sanction order dated 21.06.2002.
72. In light of the aforestated circumstance, I am of the view that the case of the prosecution flounders when seen in light of the documents that did not form a part of the documents sent to the CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 127 of 146 sanctioning authority. Therefore, it would be travesty of justice to call it a mere irregularity. There indeed has occasioned a failure of justice, of which the trial court has failed to take cognizance at the stage of framing of charges even after specific contentions were made on behalf of the petitioner in this regard. In view of the foregoing, the sanction order dated 21.06.2002 is invalid for want of due application of mind by the sanctioning authority. Consequently, the cognizance taken by the Special Judge, CBI in framing charges against the petitioner vide order on charge dated 17.12.2005 in RC No. S18 E0001 1999 is non, void abinitio, bad in law and in gross violation of the provisions of section 19(1) POCA."
"97. Normally, the case would have been remitted back to the sanctioning authority for reconsideration on a fresh order of sanction. However, in the circumstance that the instant case commenced as far back as in 1998 and eighteen years have since lapsed; and in the light of the decision of the Supreme Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat (supra), in my opinion it would be unfair, unjust and contrary to the interests of justice to expose the petitioner to another round of litigation and keep him on trial for an indefinitely long period. It would also offend the principle enshrined in the provisions of Article 21 of the Constitution of India. A quietus must be applied to the present proceedings. Thus, in the interest of justice, finality is given to these proceedings and it is directed that no further proceedings in relation to the subject sanction orders be initiated against the petitioner."
126. When the validity of the above two sanction orders is tested in the light of the evidence led on record and the legal propositions laid down in the above said cases, it is clear that the above two sanction orders cannot be termed as legal and valid and these show the absence of application of mind by the two competent authorities granting the same as the complete facts and material are not found to have been placed for perusal before them and the same were simply signed by both CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 128 of 146 of them in a mechanical manner and in the draft formats and it cannot be considered to be a mere irregularity within the meaning of Section 19 of the above said Act. Further, it can even have the effect of making the cognizance taken against them without nonest, void abinitio, bad in law and in gross violation of the provisions of Section 19 of the above said Act, as held in the case of Ashok Aggarwal, Supra. Hence, the findings of conviction of A1 and A2 cannot even be arrived due to the illegality and invalidity of the above said sanctions granted for their prosecution in this case. Moreover, since the FIR of this case was registered more than 21 years before, it will also be unfair, unjust and contrary to the constitutional rights and interests of the accused if only the above prosecution sanctions are termed as illegal by this court and no findings on merits are given in this case as after such a long time the investigating agency cannot be permitted to launch the prosecution against the above two accused again after receiving of fresh sanctions from the concerned authorities, as has been observed by the Hon'ble High Court in the case of Ashok Aggarwal, Supra.
Charge for the offence of criminal conspiracy framed against all the accused
127. As discussed above, a charge for commission of the offence of criminal conspiracy punishable U/s 120B IPC, with reference to Sections 197/198 IPC and Sections 7 & 13(1) CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 129 of 146
(d) of the PC Act, 1988 was also framed against all the accused persons as it was case of the prosecution that they all were part of a criminal conspiracy, in furtherance of which the above completion certificates were issued falsely by A1 and A2, with the approval of A3 (since deceased), to the remaining accused persons in respect of the above five properties. The criminal conspiracy alleged to have been entered into between the accused persons was to issue these certificates despite the fact that the constructions being raised on these properties were either incomplete or were being raised for commercial purposes or there were certain unauthorized constructions existing at the sites of these properties at the time of issuance of these certificates.
128. As already discussed above at length, the evidence led on record by the prosecution has not been found to be sufficient for establishing the charges for the substantive offences punishable U/s 7, either independently or with reference to Section 120B IPC, and 13(1)(d) of the PC Act and the offence punishable U/s 197 IPC as framed against A1 and A2 or even the charge for the offence punishable U/s 12 of the PC Act as framed against accused Ravinder Kumar Taneja (A14), Pawan Kumar (A17) and Ramesh Tewari (A
26) for abetment of offences under the PC Act as committed by the above three public servants. Before discussing the facts of the case and the evidence led on record with CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 130 of 146 reference to this charge, it is necessary to discuss here some of the important judgments on the aspect of criminal conspiracy:
129. In case titled as V.C. Shukla Vs. State (Delhi Administration), (1980) 2 SCC 665, the Hon'ble Supreme Court has made the following observations:
"8. Before we proceed further, we might indicate that it is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases, it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. After having gone through the entire evidence, with the able assistance of Mr. Rajinder Singh, learned counsel for A1 and of learned counsel for the State, we are unable to find any acceptable evidence connecting either of the appellants with the existence of any conspiracy......."
130. In case titled as Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 SCC 596, the Hon'ble Supreme Court has made the following observations:
"23. Like most crimes, conspiracy requires an CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 131 of 146 act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of cooperation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy."
"32.In the case of State v. Nalini [1999 SCC (Cri.) 691] discussing the principles governing the law of conspiracy in the case under Sections 120A, 120B and 302 IPC, Wadhwa, J., summarised the principles in para 583 as follows: (SCC pp. 51518):
"583. Some of the broad principles governing the law of conspiracy may be summarised though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under Section 120A IPC offence of criminal CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 132 of 146 conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed......"
131. In case Baliya @ Bal Kishan Vs. State of Madhya Pradesh (2012) 9 SCC 696 being relied upon by Ld defence counsels, the Hon'ble Supreme Court held as under:
"15. The offence of "criminal conspiracy" is defined in Section 120A of the Penal Code whereas Section 120B of the Code provides for punishment for the said offence. The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched, once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed. More often than not direct evidence of the offence of criminal conspiracy will not be forthcoming and proof of such an offence has to be determined by a process of inference from the established circumstances of a given case.
16. The essential ingredients of the said offence, the permissible manner of proof of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 133 of 146 commission thereof and the approach of the courts in this regard has been exhaustively considered by this Court in several pronouncements of which, illustratively, reference may be made to E.K. Chandrasenan v. State of Kerala, Kehar Singh v. State (Delhi Admn.), Ajay Aggarwal v. Union of India and Yash Pal Mittal v. State of Punjab. The propositions of law which emanate from the above cases are, in no way, fundamentally different from what has been stated by us hereinabove.
17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
132. The observations made by the Hon'ble Supreme Court in the case of K. R. Purushothaman Vs. State of Kerala (2005) 12 Supreme Court Cases 631 are also reproduced as under: "11. Section 120A IPC defines "criminal conspiracy". According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 134 of 146 has said :(SCR p.228) 'The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.'
12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.56869, para
662) 'In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators.
Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.'
13. To constitute a conspiracy, meeting of CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 135 of 146 minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of 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 the well known 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 guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or 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. The offence of conspiracy shall continue till the termination of agreement.
14. The suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that:
(SCC pp.699700, para 7) CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 136 of 146 '[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material.'
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC pp.69192, para 103) '103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the nonparticipant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them.
Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle'."
133. Some observations with regard to the offence of criminal conspiracy were also made by their lordship in the case of A. K. Ganju, Supra being relied upon by Ld defence counsel, which are also being reproduced herein below:
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 137 of 146 "116. Case of the CBI is that there was conspiracy between the Builder, Architect and the officers of the MCD. However, there is no statement of any witness which refers to or which alleges that there was active collusion and conspiracy between the aforementioned persons.
To constitute an offence of conspiracy, meeting of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition that existence of conspiracy is to be deduced from the circumstances and each circumstance should be established by reliable evidence and the circumstances must form a chain of events from which the only irresistible conclusion would be against those persons. The criminal conspiracy is an independent offence in the Indian Penal Code. The unlawful agreement is a sinequanon for constituting an offence under the Indian Penal Code and not an accomplishment. In the case in hand, there is nothing to connect the petitioners inter se and there are no allegations which could form a chain of any conspiracy."
134. While appreciating the facts and evidence of the present case in the light of the legal propositions laid down above, it is observed that the investigating agency had just roped in all the owners of the above said five properties as conspirators and had not conducted any investigation at all to find out as to which or how many of them had actually been part of the above illegal agreement or criminal conspiracy for getting the completion certificates of these properties issued in violation of the buildings bylaws of the MCD. It cannot be ignored that out of the 26 accused persons originally implicated by the ACB in this case only three of them, i.e. A1 to A3, were public servants being the employees of the MCD CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 138 of 146 and all the remaining accused were the private persons, who were claimed to be the owners of different portions of these properties. A4 to A22 were stated to be the part of Taneja Group and connected with the first four properties bearing numbers 5/34, 17/34, 18/34 and 11B/5 and A23 to A26 were part of the Tewari Group and connected with the fifth property bearing number 11B/8. Two of the accused, i.e. A19 Anjali Rani and A25 Rajan Tewari, are claimed to be students at the relevant time, four accused namely Vibha Taneja (A6), Veena Taneja (A18), Sarla Taneja (A20) (since deceased) and Bimla Tewari (A24) (since deceased) are claimed to be housewives and few others of them to be old enough and being so all these accused are being claimed to be non participants in the business or other professional activities of their families. Further, it has also been claimed by the accused persons of both these groups that some power of attorneys in favour of few of them by the other coaccused were already executed and they had been acting only through these attorneys. Being so, it was incumbent upon the investigating agency to have carried out a detailed and thorough investigation on these aspects, but the facts and evidence brought on record do not suggest so.
135. However, it is observed that the chargesheet filed in this case contains some reference to these power of attorneys and as per the contents of the chargesheet, as CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 139 of 146 contained at page number 3 thereof, the accused Pawan Kumar (A17) was the attorney for properties number 5/34, accused Ravinder Kumar Taneja (A14) was the attorney for properties number 17/34 and 18/34, accused Hemant Kumar (A16) (since deceased) was the attorney for property number 11B/5 and accused Ramesh Tewari (A26) was the attorney for property number 11B/8. As has already been discussed above, no such power of attorney or a copy thereof was filed by the ACB, along with the chargesheet of the present case, and when some applications were moved subsequently on behalf of the accused persons for recalling of the IOs for their cross examinations with respect to the above power of attorneys and for directing the prosecution to file on record these power of attorneys, the prosecution had taken a stand that none of these power of attorneys was seized by any of the IOs in this case and hence, the same were not their relied upon documents. However, it is also a matter of record, as discussed earlier, that copy of one such power of attorney was later on supplied by the PRO of ACB to one defence counsel in proceedings under the RTI Act and the said power of attorney was executed by accused Bimla Tiwari (A24), M/s Rajan Hotel Pvt. Ltd., through its Managing Director Smt. UmaTewari (A23) and the accused Rajan Tewari (A25) in favour of the accused Ramesh Tewari (A26) in respect of their property bearing number 11B/8, Pusa Road, New Delhi. The concerned accused persons had even examined on CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 140 of 146 record one defence witness/DW2 Sh. Ramphal Singh, Public Information Officer of the ACB, Delhi Government and this witness has duly proved on record the factum of supply of a copy of the said power of attorney Mark DW2/E to the applicant on his application Ex. DW2/A and vide their reply Ex. DW2/C. Though, the execution of the above power of attorney could not be proved on record as per law and even the original of the above power of attorney Mark DW2/E could not be traced out or produced on record, but from the proceedings conducted on the above said applications moved by the accused persons as well as from the depositions made and the documents brought on record during the testimony of DW2, it certainly stands established that a copy of the above power of attorney was seized by the officials of the ACB during investigation of the case and their stand taken in the court in denying the seizure of the power of attorneys mentioned in the chargesheet stood falsified thereby. Had all these power of attorneys executed by the owners of the above five properties been brought and produced on record, the prosecution could have been launched only against the attorneys and not against all the owners of these properties and keeping in view the fact that the investigating agency has taken a false stand before this court denying the seizure of such power of attorneys, this court is forced to draw an inference against the prosecution that the above said power of attorneys were though seized by the officials of the ACB during the investigation, but the same CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 141 of 146 have not been intentionally brought on record for the malafide reason of prosecuting all the owners of these properties, including the household ladies, students or old persons who might not even have been participating in any activities pertaining to these properties. Simply because they all are claimed to be the coowners of the above properties, no inference can be drawn by this court that they all were participants in the above said criminal conspiracy.
136. Moreover, as per the case of the prosecution itself, only the accused Ravinder Kumar Taneja (A14), Pawan Kumar Taneja (A17) and Ramesh Tewari (A26) had visited the office of the MCD on 12.11.1993 and had delivered the above bribe amount of Rs. 1,50,000/ to the accused persons, which fact even could not be proved on record by the prosecution as the sole witness of prosecution, who could have established the said fact, i.e. PW7 Sh. Narinder Singh, has not supported the above version of the prosecution case. PW7 even did not identify any of the above three accused to have visited their office on the above said date or to have handed over the above bribe amount by them to A1 and A2. Nowhere in the entire oral or documentary evidence led in this case, it has been brought on record that all the owners of the above five properties were actually involved or participants in the above said criminal conspiracy nor it was the case of the prosecution that except the above three accused, any other CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 142 of 146 accused had ever met A1 to A3 or even any other official of the MCD in connection with the applications, approval or the issuance of the completion certificates of their above properties. Hence, except the fact that applications for approval of the sanctioned plans of the above five properties had been moved by the owners of these properties and the same were approved for construction of a 2½ storey building on each of these properties, there is no other circumstance proved against any of the owners of these properties, what to say of any incriminating circumstance, to show the existence of any such criminal conspiracy between them interse or with the remaining accused persons being public servants, for getting issued the above completion certificates against the building bylaws of the MCD.
137. Though as per the legal propositions discussed above, no direct proof of such a criminal conspiracy was required and the same could have well been inferred from the circumstances of the case, but in the considered opinion of this court, the evidence led on record fails to show the existence of any such circumstances leading to any conclusive or irresistible inference of the existence of such a conspiracy. Hence, a conclusion about such a criminal conspiracy, as is being alleged by the prosecution, cannot even be drawn by any implied inferences, what to say of taking it as proved from the evidence led on record.
CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 143 of 146
138. Again, another aspect is also required to be dealt with by this court with reference to the above charge of criminal conspiracy punishable U/s 120B IPC as framed against all the accused persons and it is with regard to the vicarious liability of an accused in criminal matters. As is clear from the above, all the above private accused persons have not been implicated in this case only in their individual capacities, but some of them have been implicated as directors of some companies for example M/s Hiteshi Estate Pvt. Ltd. being prosecuted through Roop Kishore Taneja (A7), M/s Remarkable Construction Pvt. Ltd. being prosecuted through Rattan Chand Taneja (A8), M/s Pooja International Pvt. Ltd. being prosecuted through Lajpat Rai (A9), M/s Everite Estate Pvt. Ltd. being prosecuted through S. L. Khurana (A10), M/s GoWell Construction Pvt. Ltd. being prosecuted through Narain Dass Taneja (A11) and M/s Rajan Hotel Pvt. Ltd. being prosecuted through Uma Tewari (A23) etc. It is the contention of Ld defence counsels that not every director of a company can be held guilty for the criminal acts committed by a company and to hold him guilty for the acts or offences of the company, there should be sufficient evidence on record that he was in charge or in control of and actively conducting the day to day affairs of the said company. Some judgments in cases Maharashtra State Electricity Distribution Co. Ltd. Vs. Datar Switchgear Ltd. (2010) SCC 479, Keki Hormusji Gharda & Ors. Vs. Mehervan Rustom CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 144 of 146 Irani & Anr. (2009) 6 SCC 475, Maksud Saiyed Vs. State of Gujarat & Ors. (2008) 5 SCC 668, S. K. Alagh Vs. State of Uttar Pradesh & Ors. (2008) 5 SCC 662, Hiralal Harilal Bhagwati Vs. CBI (2003) 5 SCC 257 and Jethsur Surangbhai Vs. State of Gujarat 1984 (Supp) SCC 207 on this aspect have also been relied upon by Ld defence counsels. Since there is no evidence led on record by the prosecution dealing with the specific roles of the above private accused persons and even no investigation conducted by the IOs on the said aspect and also on the aspects to find out as to through which of their directors, the above said companies were actually conducting their business or the regular day to day affairs, I am afraid that in view of the propositions of law laid down in the above said cases being relied upon by Ld defence counsels, the accused persons being prosecuted for the acts of omission or commission in the names of these companies cannot also strictly held liable. Moreover, as already discussed above, the evidence led on record does not prove the existence of any criminal conspiracy between these accused persons or the other accused public servants to get the completion certificates of the above said properties against the building norms or bylaws of the MCD. Such a conspiracy between A1 and A2 interse is also not proved from the record.
139. In view of the above factual and legal discussion, it CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 145 of 146 is held that the prosecution has failed to prove its charges against all the above contesting accused persons beyond reasonable doubts as the evidence brought on record by the prosecution has not been found to be sufficient to substantiate the said charges. All the accused persons are, therefore, acquitted of the said charges giving benefit of doubt. The bonds U/s 437A Cr.P.C. have been furnished on behalf of all of them, alongwith the photographs as well as the address proofs of the accused and sureties, and the said bonds shall remain valid for a period of six months from today. The previous bonds furnished on behalf of the accused persons shall stand discharged.
File be consigned to record room.
Announced in open Court on 17.05.2016 (M.K. Nagpal) Special Judge (PC Act), CBI08, Central District, THC, Delhi CC No. 27/11, State Vs. Sunil Mohan Gupta & Ors. Page No. 146 of 146