Cbi vs . Maj. Gen. Anand Kumar Kapur Etc. ... on 29 September, 2016

[Cites 14, Cited by 0]

Delhi District Court

Cbi vs . Maj. Gen. Anand Kumar Kapur Etc. ... on 29 September, 2016

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

IN THE COURT OF SPECIAL JUDGE03 (P. C. ACT) (CBI),
PATIALA HOUSE COURTS, NEW DELHI

CC No. 17/13
RC No. AC2/2007/A0003/CBI/ACUII/ND
CBI Vs. Maj. Gen. Anand Kr. Kapur etc.
Central Bureau of Investigations
Versus
(1) Maj. Gen. (retired) Anand Kumar Kapur
Son of Late Sh. Milkhi Ram Kapur
R/o 305, Forest Lane, Sainik Farm,
Neb Sarai Extension, New Delhi.

(2) Ms. Mridula Kapur
Wife of Anand Kumar Kapur
R/o 305, Forest Lane, Sainik Farm,
Neb Sarai Extension, New Delhi.

Date of filing of chargesheet : 26.10.2009
Date of conclusion of arguments : 23.09.2016
Date of Judgement : 27.09.2016

JUDGEMENT :
The instant case was registered by CBI on the
basis of source information. Investigation revealed that Maj.
Gen. Anand Kumar Kapur while working as a public servant,
in different capacities in Indian Army, during the period
14.11.1971 to 31.05.2006 has amassed huge assets by
corrupt/ illegal means either in his own name or in the name

CC No. 17/13 Page No. 1 of 145
CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

of members of his family which were substantially
disproportionate to his known sources of income. Smt.
Mridula Kapur actively abetted her husband Major General
Anand Kumar Kapur in acquisition of huge assets.
As per investigation Major General Anand Kumar
Kapur was born on 14.11.1951 at Panipat (Haryana). His
father late Shri Milkhi Ram Kapur was an Advocate and
doing his practice in Panipat. He did his practice till 1984.
Major General Anand Kumar Kapur got his schooling from
Rashtriya Indian Military School, Dehradoon and did matric
in 1967.
Major General Anand Kumar Kapur got
commission in Indian Army on 14.11.1971 in Army
Ordnance Corps, which is responsible to provide all logistics
requirement which include Armament, Ammunition, all types
of Vehicles including Tanks, their spare parts, clothing items
and general nature store to the Army. Searches were
conducted on 10.10.2007. Therefore, check period has been
taken from 14.11.1971 to 10.10.2007. Major General Anand
Kumar Kapur worked in various capacities i.e. 2nd
Lieutenant, Lieutenant, Captain, Major, Lt. Colonel, Colonel,
Brigadier and Major General during the check period

CC No. 17/13 Page No. 2 of 145
CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

14.11.1971 to 10.10.2007.
Major General Anand Kumar Kapur got married
in 1978 with Mrs. Ritu D/o Shri R. L. Nayyar, R/o Karnal, but
this marriage ended in divorce on 24.09.1985. Thereafter,
Major General Anand Kumar Kapur got remarried with Smt.
Mridula Kapur on 15.09.1986. From this wedlock, he has
one son and one daughter.
As per chargesheet, prior to check period, Major
General Anand Kumar Kapur was in possession of assets,
both immovable and movable, to the tune of Rs.41,700/ as
detailed below :

Sl. Details of Assets Amount
No. (Rs.)
1 Agriculture land at Village Kurali Teh and Distt. Nil
Karnal (Haryana) 46 Kanal 17 Marla (inherited)
2 Agriculture Land at Village Patti Rajputana, Nil
Panipat (Haryana) 34 Bigha 9 Biswas (inherited)
3 1/4 th share in property bearing no. 2271/XI13 Nil
to 2278/XI13 and 2256 and 2260 located at
Lohgarh, Amritsar (Punjab) (inherited)
4 Amount available with Central Bank, Panipat in 21,70000
the form of Savings Funds Account and Fixed
Deposits
5 Investment in National Savings Certificate 20,00000
6 Gold 87.1/2 Tolas (inherited) Nil
Total 41,70000

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CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

At the end of check period i.e. 10.10.2007, Major
General Anand Kumar Kapur was in possession of assets,
both movable and immovable, in his own name or in the
name of his wife Smt. Mridula Kapur or in the name of his
family members to the tune of Rs.5,51,92,598/ as detailed
below :

A. IMMOVABLE ASSETS

Sl. Particulars Amount (Rs.)
No.
1.

Half ground floor, D23, Defence Colony, New 20,54,000/ Delhi (own name)

2. Half basement, D23, Defence Colony, New Delhi 41,12,000/ (own name)

3. Unit No. B111, Ansal Plaza, New Delhi (own 37,28,010/ name)

4. Commercial Space No. 407A, Unitech Trade 24,89,842/ Park, Gurgaon, Haryana (own name)

5. Flat No. 408, Vatika Tower, Gurgaon, Haryana 9,32,125/ (own name)

6. Flat No. 408A, Vatika Tower, Gurgaon, Haryana 9,32,125/ (in the name of A2 Smt. Mridula Kapur)

7. Agriculture Land at Village Bijwasan, New Delhi 58,37,077/ (own name)

8. Plot No. 264, Sector52, HUDA, Gurgaon, Haryana 13,46,294/ (in the name of A2 Smt. Mridula Kapur)

9. House No. 506, Dauna Paula, Panjim, Goa (in the 30,21,000/ name of A2 Smt. Mridula Kapur) CC No. 17/13 Page No. 4 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

10. Commercial Space 102A/2, Capital Court, 79,20,228/ Munirka, New Delhi (own name)

11. Cottage No. 10, Divine Golfer Village, Mashobra, 38,81,357/ Shimla, H.P. (in the name of A2 Smt. Mridula Kapur)

12. Plot No. 32, Sector52, Gurgaon, Haryana (own 6,41,305/ name)

13. Plot No. 33, Sector52, Gurgaon, Haryana (own 6,97,450/ name) B. MOVABLE ASSETS Sl. Particulars Amount No.

1. Bank Balance in HDFC Bank, Defence Colony, 83,09,796 New Delhi in the form of Saving Bank and FDRs.

         A/c No.                Name                 Amount in Rs.
         SB 921000049641        A. K. Kapur          12,65,61744
         SB 921000040375        Mridula Kapur        10,05,04548
         SB 134000005299        Dhruv Kapur                 7,25509
         SB 13410005255         Dilkash Kapur             31,87802
         TD 500946321           Anand Kumar Kapur    5,00,000/
         FD 702239094           Dhruv Kapur & Anand  5,00,000/
                                Kumar Kapur
         FD 702266285           Dhruv Kapur & Anand  5,00,000/
                                Kumar Kapur
         FD 702239095           Anand Kumar Kapur    20,00,000/
                                & Mridula Kapur
         FD 7022376307          Mridula Kapur &      25,00,000/
                                Anand Kumar Kapur

  2. Bank Balances in ICICI Bank, Defence Colony,                       2,91,594.00

New Delhi in the form of Saving Bank A/c and FDRs.

3. Bank Balance in PPF Account in SBI, Panipat 9,04,582.00

4. Bank Balances in PPF Accounts in SBI, Defence 2,67,077.00 CC No. 17/13 Page No. 5 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Colony, New Delhi PPF A/C 2463 Dhruv Kapur Rs.83,95184 PPF A/C 2464 Ms Dilkash Kapur Rs.83,95184 PPF A/C 2584 Mridula Kapur Rs.99,17400

5. Bank Balance in PNB, Tropical Building, 11,903 Connaught Place, New Delhi FD A/C 133000550139 5000/ SB A/C 0133000100352434 6903/

6. Bank Balance in Central Bank of India, Panipat 37,283.00

7. Investment with Post Office, Lodhi Road, New 9,60,000.00 Delhi

8. Investment in NTPC 13,268.00

9. Investment with HDFC Standard Life Insurance 7,75,000.00

10. Investment in Govt. of India Tax Free Bond 6,50,000.00

11. Investment in IDBI 75,00,000.00

12. Honda City Car 3,52,000.00

13. Household articles 10,62,195.00

14. Jewellery 18,51,215.00

15. Rolex Watch 6,63,000.00

16. Cash 11,62,240.00

17. Foreign Currency 2,13,632.00 TOTAL (A + B) 5,51,92,598.00 As per investigation, during the check period i.e. between 14.11.1971 to 10.10.2007, total income of Major General Anand Kumar Kapur, his wife Smt. Mridula Kapur and his family members from all known sources of income was Rs.3,86,40,756/ as per details given below :

CC No. 17/13 Page No. 6 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Sl. Particulars of Income Amount No. (Rs.)

1. Income from salary 35,83,926.00

2. Final Withdrawal from DSOP fund 5,62,000.00

3. Motor Car Advance 20,000.00

4. Income from agricultural rent and interest 1,19,078.00 during 14.11.1971 to 31.03.1986

5. HUF Income during financial year 19861987 21,89,538.00 to 2001 - 2002

6. Income from lease rent in r/o commercial space 18,07,182.00 no. 407A, Unitech Park, Gurgaon

7. Income earned through scholarship by Master 50,000.00 Dhruv Kapur

8. Profit by selling of Plot no. 144, Sector2, 12,85,000.00 Panchkula

9. Income by way of dividend received from M/s 7,929.00 Kotak Mahindra

10. Income by way of dividend received from M/s 932.00 Deustsche Premier Bond Fund Regular Plan Growth

11. Income by way of dividend received from 76,774.00 Franklin Mutual Fund

12. Income by way of dividend received from 7,876.26 Mutual Fund of IDFC

13. Income received by way of dividend from HSBC 31,478.00 Mutual Fund

14. Dividend earned from NTPC 1,768.00

15. Rental income from Commercial Unit No. B 37,89,765.00 111,. Ansal Plaza, New Delhi

16. Income earned by profit in the transaction of 9,90,492.00 Plot No. 1V Road No. 12, DLF, Gurgaon

17. Income earned by sale of flat no. 11323, Arun 9,28,988.00 CC No. 17/13 Page No. 7 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Vihar, NOIDA

18. Income earned through sale of ancestral land 51,43,500.00

19. Interest earned through SB A/cs being 12,46,603.00 maintained in HDFC Bank, Defence Colony, New Delhi

20. Interest earned in SB A/c No. 5211037689 by 163.00 Dhruv Kapur (Standard Chartered Bank, G.K.I, New Delhi

21. Interest earned in SB A/c No. 630001502803 16,813.00 by Maj Gen. A.K. Kapur maintained in ICICI Bank, Defence Colony, New Delhi

22. Interest earned in SB A/c No. 33,152.00 0133000100352534 from PNB, Tropical Building, Connaught Place, New Delhi

23. Income earned by interest in PPF A/c No. 775, 4,75,104.00 SBI, Panipat

24. Income earned by interest in PPF Accounts 35,078.00 maintained in SBI, Defence Colony, New Delhi

25. Security received from HDFC Bank against 7,50,000.00 lease of D23 (half basement and half ground floor)

26. Rental income from half basement and half 37,97,919.00 ground floor of D23, Defence Colony, New Delhi

27. Rental income from flat no. 408 and 408A, 11,54,072.00 Vatika Tower, Gurgaon

28. Withdrawal from monthly income scheme of 95,000.00 post office

29. Income earned by way of maturity of LIC 5,89,446.00 policies

30. Rental income in R/o Flat No. 1323, Noida, for 95,000.00 the period from 20022003 & 20032004

31. Rental income from commercial space no. 47,51,068.00 CC No. 17/13 Page No. 8 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 102Am LSC, Munirka, New Delhi

32. Income of Smt. Mridula Kapur from computer 42,000.00 coaching

33. Income of Smt. Mridula Kapur by providing 27,47,526.00 services to HDFC Bank at D23, Defence Colony, New Delhi

34. Income from salary drawn from Kimaya 5,27,000.00 Fashion

35. Interest earned from IDBI Bonds 62,540.00

36. Interest earned from RBI bonds 1,90,100.00

37. Profit earned in transaction of plot No. K8, 6,00,000.00 Jungpura, New Delhi

38. Profit earned in transaction of Office Flat No. 4 7,380.00 & 6, Thapar Chamber, New Delhi

39. Profit earned in transaction of plot at Asandh 81,000.00 Road, Panipat

40. Income from birthday gift 17,165.00

41. Security received from M/s Infrastructure 6,50,000.00 Development Finance Company Ltd.

42. Income from tax free bonds 7,600.00

43. Income from UTI investment 72,800.00 TOTAL 3,86,40,756.00 The total expenditure of Major General Anand Kumar Kapur, his wife Smt. Mridula Kapur & his family members was calculated as Rs.1,71,92,450/ during the check period from 14.11.1971 to 10.10.2007 as detailed below :

CC No. 17/13 Page No. 9 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Sl. Particulars Amount No.

1. Expenditure on Education of children 12,84,582.00

2. Expenditure incurred on 100 KVA DG Set and 4,00,000.00 Power Back charges for half ground and half basement at 23, Defence Colony, New Delhi

3. Expenditure on Singapore Visit 73,600.00

4. Expenditure on electricity charges in respect of 4,38,568.00 house no. 305, Sainik Farm, New Delhi

5. Expenditure incurred on maintenance of D23, 9,71,587.00 Defence Colony, New Delhi

6. Brokerage charges for sale of Plot No. 144m 14,700.00 Sector2, Panchkula

7. Expenditure incurred on pest control for house 18,000.00 no. 305, Sainik Farm, New Delhi

8. Expenditure incurred on sinking fund, ground 3,43,012.00 rent, property tax etc. in respect of apartment no. 102A, Capital Court, Munirka, New Delhi

9. Expenditure on internet and cable charges 37,030.00

10. Expenditure on payment of extension fee and 1,91,825.00 transfer fee of plot no. 144, Panchkula

11. Loss suffered in transaction of Flat No. E 74,000.00 367/B, G.K.I, New Delhi

12. Loss suffered in sell of vehicle Toyota Qualis, 4,67,760.00 DL3CV4865

13. Expenditure on insurance of vehicle Toyota 27,162.00 Qualis DL3CV4865

14. Expenditure incurred on insurance of vehicle 17,988.00 no. DL4CAB1293 (Honda City)

15. Ground rent paid to M/s Ansal Properties in 4,15,792.00 respect of commercial unit no. B111, Ansal Plaza, New Delhi

16. Locker rent services charges and TDS received 61,496.00 CC No. 17/13 Page No. 10 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 by HDFC Bank from Account No. 092100049641

17. Locker rent services charges and TDS received 5,120.00 by HDFC Bank from account no.

0921000040375 of Smt. Mridula Kapur

18. Misc. Expenditure debited in account no. 1,163.00 1341000005299

19. Expenditure on mutation charges of B111, 1,76,452.00 Ansal Plaza, New Delhi

20. Misc. charges debited to account no. 3,062.00 630001502803 of Dhruv Kapur maintained in Standard Chartered Bank

21. Interest paid on Auto Loan obtained from 1,47,238.00 HDFC Bank, Defence Colony, New Delhi

22. Expenditure on locker rent and service charges 9,033.00 paid to PNB, Tropical building, Connaught Place, New Delhi

23. Expenditure on property tax of D23, Defence 6,09,330.00 Colony, New Delhi (half basement and half ground floor)

24. Premium paid LIC policy no. 953642079 59,042.00

25. Premium paid LIC policy no. 122239074 30.947.00

26. Payment to MCD of getting permission to run 98,000.00 bank in D23, Defence Colony

27. Expenditure on land scaping and plantation in 4,00,000.00 Agriculture land at Bijwasan

28. Loss suffered in sell of flat no. 5, Rajdeep 3,18,000.00 Apartment, Shimla

29. Expenditure on wooden work and furnitures in 11,66,786.00 flat no. 5, Rajdeep Apartments, Shimla

30. Expenditure on duty charges on Flat No. 5, 30,162.00 Rajdeep Apartment, Shimla

31. Expenditure on civil work at House No. 305, 25,00,000.00 CC No. 17/13 Page No. 11 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Sainik Farm, New Delhi

32. Expenditure on club membership 3,31,089.00

33. Expenditure on income tax paid by Maj. Gen. 9,68,318.00 Kapur on his HUF income (200203 & 200607)

34. Wealth Tax paid by A.K. Kapur during 200506 15,933.00 and 200607

35. Income tax paid by Smt. Mridula Kapur during 8,43,025.00 200203 to 200607

36. Wealth Tax paid by Smt. Mridula Kapur during 27,516.00 200506

37. Service charges paid to Sh. Akarsh Kashyap, CA 28,000.00

38. Income tax paid by Maj. Gen. Kapur (HUF) 1,26,679.00 during AY 198788 and 200203

39. Expenditure on wealth tax made by Anand 555.00 Kumar HUF during 199091 and 199192

40. Expenditure on alteration in basement of D23, 1,00,000.00 Defence Colony

41. Expenditure on litigation 25,000.00

42. Expenditure incurred towards LIC premium 3,53,121.00

43. Expenditure on tour 4,38,750.00

44. Locker rent paid to ICICI Bank 5,242.00

45. Payment to AVS Group 5,47,614.00

46. Payment made to col Chandan for purchase of 7,00,000.00 first floor of D23, Defence Colony

48. Non Verifiable Expenditure 1/3rd if total salary 21,07,317.00 TOTAL 1,71,92,450.00 Thus, as per chargesheet, during the check period from 14.11.1971 to 10.10.2007, Major General Anand Kumar Kapur has acquired assets worth Rs.3,37,02,592/ CC No. 17/13 Page No. 12 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 either in his name or in the name of his wife Smt. Mridula Kapur or son Dhruv Kapur or daughter Miss Dilkash Kapur which are disproportionate to his known sources of income and for which he could not satisfactorily account for. The the summary of the same is as under :

(A) Assets before Check Period = Rs. 41,700.00 (B) Assets at the end of Check period = Rs.5,51,92,598.00 (C) Assets acquired during Check Period(BA)= Rs.5,51,50,898.00 (D) Income earned during the check period = Rs.3,86,40,756.00 (E) Expenditure incurred during the check = Rs.1,71,92,450.00 period Disproportionate Assets=(C+E)D Rs.5,51,50,898/ + 1,71,92,450/ () Rs.3,86,40,756/ = Rs.3,37,02,592/ As per chargesheet, Smt. Mridula Kapur w/o Major General Anand Kumar Kapur has abetted her husband in the commission of crime regarding acquisition of disproportionate assets.

The chargesheet was filed in the court on 26.10.2009. Sh. O. P. Saini, Ld. Special Judge, took cognizance of the offences and summoned both the accused persons.

The copies of the chargesheet and documents were supplied to the accused persons.

CC No. 17/13 Page No. 13 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 CHARGE After hearing the arguments, the charges were framed on 22.02.2016.

A charge under Section 13 (2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988 was framed against accused Anand Kumar Kapur.

A charge was framed against Smt. Mridula Kapur under Section 109 IPC r/w Sec. 13(2) r/w Sec. 13 (1)(e) of the Prevention of Corruption Act, 1988.

PROSECUTION EVIDENCE AND ADMITTED DOCUMENTS Prosecution examined in all 80 witnesses. During the trial accused persons admitted most of the documents, which are Ex.P1 to Ex.P102. I will discuss the relevant witnesses as and when required.

STATEMENT UNDER SECTION 313 Cr.PC OF A1 I would like to reproduce the answer of A1 in response to question no. 341 only, as under :

"Ans. I was fortunate to have been born into a family of wealth and repute. The assets transferred to me by my father in 1957 through a Court Decree would probably have more value today than the value of my present assets.

I joined the Army in 1971 and served for 38 years with full dedication. As a God fearing, honest and sincere officer I earned a very good name for myself in my service. I was promoted to each rank on the first opportunity. I was selected CC No. 17/13 Page No. 14 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 for a foreign deputation. I was honoured with award of Vishisht Seva Medal. Overall, I earned an excellent record without a single blemish. There was never a complaint or an inquiry against my honesty, integrity and character in 36 years of service till this case. That was the reason that the Special Selection Board, consisting of the Army Chief and nine senior most generals of the Army, held one month after filing of the FIR still selected me for promotion.

I have not been accused of receipt of any cash or cheque amount from any unauthorized source. There is not even an allegation by the prosecution or any witness of having made any illegal payment to me or anyone of my family.

All my assets have been acquired by cheque payments from declared sources of Income.

All my assets have been declared to the ITO and to the Army authorities where required to do so.

I have shown source of Income for every acquisition of asset to the ITOs, the Army and to the I.O. during the investigation.

The prosecution has not even alleged any intentional lapse or dereliction in my duties or on my part in performance of my duties as a govt servant which may have resulted in me obtaining any illegal gratification.

The investigation in the case was shoddy and half baked because statements of crucial witnesses like my mother, my father in law, persons who had rendered affidavits to the effect of giving us loans, tenant of our land, ITOs of all 36 years of Check Period and others were not recorded. My ITRs submitted to GHQ (ITO) from 1987 to 2007 were not even asked for. In addition, evidence collected and listed as Relied Upon was not scrutinized thoroughly, e.g. bank statements and ITRs which contain information not taken on record. At the same time, important documents submitted by me and some documents seized by the CBI were ignored. Also, several papers containing important information affecting my income were seen but brushed under the carpet. I discovered these from files returned to me. The prosecution did not produce relevant witnesses and suppress material evidence from this court and the sanctioning authorities and misrepresented various facts only to further unlawful case.

As a result, assets were deliberately over valued, CC No. 17/13 Page No. 15 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 legitimate income was hidden or ignored and expenditures were exaggerated to arrive at an illegal case of "disproportionate assets".

Details of some important glaring amounts are highlighted below:

Assets Overvalued

1. Half Basement D23, Defence Colony. Rs 41,12,000 put instead of 15,52,000 without any evidence to the contrary and ignoring the Sale Deed and MCD evaluation.

2. Agriculture Land Bijwasan. Rs 58,37,077 put instead of Rs 43,23,000 due to faulty evaluation and without taking into account as to who partly paid for the construction.

3. Plot 264, Sector 52, Gurgaon. Rs 13,46,294 put in place of 11,00,794 without any evidence to the contrary.

4. House 506, Goa. Rs 30,21,000 put without investigating the title of the property, source of payment and ITRs declared by the owner and did not even choose to examine Mr. Dhruv Kapur or Mrs. Santosh Kapur.

5. Cottage 10, Mashobra. Rs 38,81,357 put instead of 20,60,000 after ignoring the property details included in the Lease Deed and going by only what was promised to be sold as per an agreement. PW Sh.

Anudeep confirmed that excess money paid earlier for land portion was returned.

6. House hold articles. Rs 10,62,195 instead of Rs 1,37,000 by adding articles belonging to my Mother and found in her residence.

7. Jewellery. Rs 18,51,215 put by ignoring the Wealth tax returns submitted by the accused and approved by ITO after due scrutiny.

8. Rolex Watch. Rs 6,63,000 added despite evidence on record that the same belonged to father of A2.

9. Cash. Rs 11, 62,240 added despite evidence submitted to the I.O. that Rs 5 Lakhs belonged to father of A2 and remaining was a contribution given by relatives for urgent medical treatment for cancer which was underway at time of search and the deposition to this effect has been made by the relatives of the accused, CC No. 17/13 Page No. 16 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 whose affidavits have been placed on record.

10. Foreign Exchange. Rs 2,13,632 added despite evidence submitted to the I.O. that this was advance payment from a buyer from the Store where A2 worked as Store Incharge.

Income Shown Less

1. Agriculture Income. Actual income from my land approx. 7.5 acres which was under cultivation by a tenant has been not been added despite his affidavit of having paid Rs 23.50 lakhs. The affidavit was submitted through the letter dated 140908. The tenant was not even called for investigation, nor any revenue authority approached to ascertain correct income.

2. Lease Rent Unitech. Details were taken from M/s Unitech upto may 2006 only although it was informed by them that from Jun 06 onwards rent was paid directly by M/s Keane India, the tenant. An amount of Rs 6,24,552 has been declared in the ITRs for the period after 010606.

3. Rental Defence Colony. No evidence has been produced by the CBI except for rent details from Apr 2006 to Sep 2007. After obtaining full details from the PW Sh. Mohit Goyal, it is revealed from documents now on Court record that the amount received is Rs 46,19,492 instead of Rs 37,97,919.

4. Income Mridula 19982002. Relied documents were ignored and income of Rs 40,000 put instead of Rs 7,00,960 which has been corroborated by the PW Sh. K C Aneja.

5. Income Mridula Contract Services. No evidence has been produced by the CBI except for details from Apr 2006 to Sep 2007. After obtaining full details from the PW Sh. Mohit Goyal, it is revealed from documents now on Court record that the amount received is Rs 43,32,356 instead of Rs 27,47,526.

Expenditure Exaggerated

1. Education of Children. Evidence on record shows payment of fees to Mayo College from parent's account in Panipat. The same was informed to the I.O. and is CC No. 17/13 Page No. 17 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 stated by my mother in her affidavit and in my father's will. There is also a refund of Rs 58,252.

2. Expenditure on Generator. Payment of Rs 2.00 lakhs has been shown in duplicate and also, the payment details show payment from Mother's SBI a/c.

3. Electricity Charges House. The bills and PW statement clearly state payment not made by me as the property belonged to the mother of accused and all payments had been made by her.

4. Expenditure on landscaping. An amount of Rs 4 Lakhs has been paid by my mother as per her Affidavit.

5. Loss Rajdeep Apartment. An amount of Rs 14.25 Lakhs paid by the buyer noted in the relied upon document has been ignored. Thus, there is a profit of rs 13.83 lakhs instead of a loss of Rs 3.18 lakhs noted in the Charge sheet.

6. Woodwork Rajdeep Apartment.Bills and details of the work were not obtained by the I.O. Hence, it was not brought out that actually only Rs 2, 55,596 was paid for the woodwork.

7. IT paid Mridula 200207. Rs 8, 43,025 are noted by the I.O. instead of Rs 7, 35,738 stated by PW Sh. A Kashyap based on ITRs submitted by him.

8. Alteration Basement. Rs 1.00 lakh is added without any evidence of Bill/Work details. Payment is shown through a DD mentioned for purchase of generator noted separately.

9. Tours ( Rs 4.38 lakhs). No details have been provided.

In any case the tours were official tours and the IO has suppressed this material information from this court.

10. Payment to AVS Gp ( Rs 5.47 lakhs). No details have been provided. In any case the tours were official tours and the IO has suppressed this material information from this court.

11. Non Verifiable Expenditure. 1/3 rd of total due salary ( Rs 63,12,950) has been taken for the purposes of deduction of expenditure whereas for purposes of income only an amount of Rs.35, 83,926 was taken into consideration. As a result of which the entire basis was faulty and was blowing hot and cold in the same breath by way of misrepresentation to this court. Moreover, the free facilities in the Army and that school fees, club bills etc. have been charged separately and CC No. 17/13 Page No. 18 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 has not considered while calculating the non verifiable expenditure. Thus, expenditure on this account is Rs 7,16,786 (20% of received salary) instead of Rs 21,07,317.

Income Hidden/Ignored

1. Additional Security Deposits from Tenants in relied documents. Rs 6,02,253.

2. Friendly interest free loans from Sh. Sailesh Dhir, Maj Ganesan, Smt Lalti Maira, Sh. Hari Maira reflected in Bank Statements and Cash Books of the HUF Rs 31,50,000. Incidentally, the Army Rules clearly state that amounts/ acquisitions pertaining to HUF are not required to be declared to the Army as per S. A. O. Rules available on the record of the case.

3. Transfer from Mother's savings account reflected in bank Statement and Cash Books. Rs 50,93,082/ was totally ignored.

4. Amount from NSC maturities in relied documents. Rs 1,73,256/.

5. Amount from IT Refunds in relied documents. Rs 63,672/.

6. Income from investments in minor children a/c declared in ITRs on record. Rs 6,16,631/.

7. Gifts from Parents of (A1), which find mention in the relied documents for a value of Rs.15, 95,450/.

8. Gifts from parents of (A2) which find mention in the relied documents for a value of Rs.15,23,500/ and affidavit of her father.

9. Income from UTI products gifted to children and which find mention in the relied documents. Rs.46,847/.

10. Savings of Mridula from pre marriage service. Rs 4.00 Lakhs. Proofs of investments are available in Relied documents.

11. Repurchase of UTI Units64 by UTI in documents returned but now accepted by I.O. and exhibited Rs.54,395/.

12. Income other than salary declared to ITO with salary ITRs in documents returned but now accepted by I.O. and exhibited Rs.76,008/.

13. Other Income in Documents returned but now accepted by I.O. and exhibited Rs.4,76,417/.

CC No. 17/13 Page No. 19 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

14. Amount received from cash sale on Agreements in relied documents - Rs 7.14 Lakhs.

15. Amounts transferred from parental a/c in Panipat - Rs 23.30 Lakhs shown in relied documents (bank Statements) and Cash Books of the Chartered Accountant."

WRITTEN STATEMENT FILED BY A2 UNDER SECTION 313 (5) Cr.PC I would like to reproduce her answer to question no. 341 only, as under :

"Ans. I had independent income when I was working in the offices of govt of Oman prior to my marriage. When I returned to India on "transfer of residence" in 1986 I brought along all household articles alongwith Rs 4 Lakhs as my savings. On return to India I got married and was showered with gifts from my parents and relatives. My father gave me Rs 10 lakhs in bank deposits which I further invested. After that I worked as a computer coach and then took a contract with HDFC Bank for maintenance and Power Backup services. I had sufficient funds and income to acquire the assets held by me.

All my assets have been acquired by cheque payments from declared sources of Income.

All my assets have been declared to the ITO by me and to the Army authorities where required to do so by my husband.

I have shown source of Income for every acquisition of asset to the ITO and also to the I.O. during the investigation.

Moreover, I have been accused of Abetment u/s 109 IPC r/w 13(2) r/w 13 (1) (e) of PC Act whereas not a shred or hint of evidence, either documentary or oral, has been produced before this Hon'ble Court to indicate any act of abetment by me.

The investigation in the case was shoddy and half baked because statements of crucial witnesses like my mother in law, my father, ITOs were not recorded. In CC No. 17/13 Page No. 20 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 addition, evidence collected and listed as Relied Upon was not scrutinized thoroughly. At the same time, important documents submitted by me and some documents seized by the CBI were ignored. Also, several papers containing important information affecting my income were seen but brushed under the carpet. I discovered these from files returned to us.

As a result, my assets were deliberately over valued, my legitimate income was hidden or ignored and expenditures were exaggerated to somehow arrive at the desired "disproportionate assets" of my husband.

Details of some important glaring amounts pertaining to me are highlighted below:

Assets Overvalued

1. Plot 264, Sector 52, Gurgaon. Rs 13,46,294 put in place of 11,00,794 without any evidence to the contrary.

2. Cottage 10, Mashobra. Rs 38,81,357 put instead of 20,60,000 after ignoring the property details included in the Lease Deed and going by only what was promised to be sold as per an agreement. PW Sh. Anudeep confirmed that excess money paid earlier for land portion was returned.

3. Jewellery. Rs 18,51,215 put by ignoring the Wealth tax returns submitted by the accused and approved by ITO after due scrutiny.

4. Cash. Rs 11, 62,240 added despite evidence submitted to the I.O. that Rs 5 Lakhs belonged to my father and remaining was contribution of close relatives for urgent medical treatment for cancer which was underway at time of search.

5. Foreign Exchange. Rs 2,13,632 added despite evidence submitted to the I.O. that this was advance payment from a buyer from the Store where I worked as Stores Incharge.

Income Shown Less

1. Lease Rent Unitech. Details were taken from M/s Unitech upto May 2006 only although it was informed by them that from Jun 06 onwards rent was paid directly by M/s Keane India, the tenant. An amount of Rs 6,24,552 has been declared in the ITRs for the period after 01-06-06 by both the accused.

2. My Income from 1998 to 2002. Relied documents were ignored and income of Rs 42,000 put instead of Rs 7,00,960 CC No. 17/13 Page No. 21 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 which has been corroborated by the PW Sh. K C Aneja.

3. My Income from Contract Services. No evidence has been produced by the CBI except for details from Apr 2006 to Sep 2007. After obtaining full details from the PW Sh. Mohit Goyal, it is revealed from documents now on Court record that the amount received is Rs 43,32,356 instead of Rs 27,47,526.

Expenditure Exaggerated

1. Loss Rajdeep Apartment. An amount of Rs 14.25 Lakhs paid by the buyer noted in the relied upon document has been ignored. Thus, there is a profit of rs 13.83 lakhs instead of a loss of Rs 3.18 lakhs noted in the Charge sheet.

2. Woodwork Rajdeep Apartment. Bills and details of the work were not obtained by the I.O. Hence, it was not brought out that actually only Rs 2, 55,596 was paid for the woodwork.

PW Sh. Khosla admitted to return of excess amount paid earlier.

3. IT paid by me 2002-07. Rs 8, 43,025 are noted by the I.O.

instead of Rs 7, 35,738 stated by PW Sh. A Kashyap based on ITRs submitted by him.

Income Hidden/Ignored

1. Additional Security Deposits from Tenants in relied documents. Rs 6,02,253 for both the accused.

2. Friendly interest free loans taken by me from Smt Lalti Maira and Sh. Hari Maira reflected in my Bank Statements and Cash Books of Rs 13 Lakhs.

3. Gifts from my parents from relied documents and affidavit of father - Rs 15, 23,500.

4. My savings from pre marriage service. Rs 4.00 Lakhs.

Proofs of investments are available in Relied documents."

DEFENCE EVIDENCE Accused persons examined four witnesses in defence. Their testimonies are as under :

(1) DW1 Ms. Pratibha Sharma, who testified as under :

"Ms. Mridula Kapur (A2) is my younger sister. My father Late Mr. M. M. Chhibber was suffering with Cancer and was CC No. 17/13 Page No. 22 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 admitted at the Max Hospital, Saket sometime in the year 2007. I have brought the original documents i.e discharge summary of Late Mr. M. M. Chhibber. The discharge summary is exhibited as Ex.DW1/1 (colly). We are four sisters namely myself, Ms Pramod Datta W/o Sh. Vipin Datta, Ms Savita Vyas W/o Brigadier A. K. Vyas and Ms Mridula Kapur W/o Maj. Gen. A. K. Kapur. We all had contributed towards the treatment of my father, who used to reside with accused Ms Mridula Kapur (A

2). I had contributed Rs.1.5 lacs for the treatment of my father and my other two sisters contributed Rs.3 lacs each. My father's younger brother Dr. S. N. Bakshi had also contributed about Rs.60,000/. The money was kept with my younger sister Ms. Mridula Kapur (A2) as she was looking after my late father. I had given an affidavit sometime in the year 2008, which is Ex.PW76/DT1 and my signatures are at points A respectively.

My brother in law Brigadier Sh. Arun Kumar Vyas had also given an affidavit which is Ex.PW76/DT2. I can identify her signatures, which are at points A. My uncle and younger brother of my father had also given an affidavit, which is Ex.PW76/DT3, whose signatures are at points A, which I identify. My nephew Mr. Rustam Datta son of my sister Ms. Pramod Datta had also given an affidavit, which is Ex.PW76/DT4, whose signatures I identify at point A. I had attended the marriage of my younger sister Ms. Mridula Kapur in the year 1986. Prior to her marriage, my sister was residing with my parents at Oman. My sister was employed there. My father had given Rs.10 lacs to Ms Mridula Kapur (A2) besides the other gifts and jewellery and household items. My father had also given jewellery, which was approximately 80 to 90 tolas. Even after the marriage of my sister, my father and other relatives off and on used to give gifts to my sister.

XXXXX by Sh. Manoj Shukla, Ld. Senior Public Prosecutor for CBI.

My husband had arranged this money at my request. I cannot say as to whether he withdrew it from any bank or from his business income. It is incorrect to suggest that I had not given the aforesaid amount to A2 for the treatment of my father. It is further incorrect to suggest that that is the reason that I am unable to tell the source of the aforesaid amount. It is further incorrect to suggest that no money was contributed by my other sisters and my uncle for the treatment of my father. I came to know about this case when CBI had CC No. 17/13 Page No. 23 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 made searches in this matter. It is also incorrect to suggest that the aforesaid affidavits are after thought in order to create false defence for the accused persons. I cannot give any documentary proof to show that Rs.10 lacs, jewellery and gifts were give by my father to A2 at the time of her marriage. It is incorrect to suggest that no money, gifts and jewellery were given to A2 by Sh. M. M. Chhibber at the time of marriage of A2 and thereafter from time to time. It is further incorrect to suggest that I am deposing falsely at the behest of my brother in law in the present case on their tutoring."

(2) DW2 Sh. Kewal Krishan, who testified as under :

"I was employed as Accountant/Billing Head at Kimaya Store, Mehrauli from 2004 till 2015. Ms. Mridula Kapur (A2) was representing the owner of Kimaya Store and used to look after the store and sales etc. Kimaya Store did not have license for accepting foreign exchange. Probably in the year 2006, I do not remember the exact month, one Mr. Chetlani had come to purchase dresses at Kimaya Store. He was an NRI but he did not have Indian currency and he had ordered couple of dresses including Lehnga etc. As he did not have Indian currency. He made the payment of 2500 sterling pounds against his bill of approximately Rs.2.5 lacs. He was known to Ms. Mridula Kapur so he suggested that she may keep 2500 pounds and when he would return subsequently he would take back his pounds and give Indian currency in exchange thereof. Since, there was a problem of the present case with Ms Mridula Kapur (A2) so I do not know what happened thereafter. Ms Mridula Kapur attended the Kimaya store only for a few days thereafter because of this case.

XXXXX by Sh. Manoj Shukla, Ld. Senior Public Prosecutor for CBI.

I can show the proof of my having worked with Kimaya Store. Today I have brought an identity card, photo copy of which is Ex.DW2/PA. (original seen and returned.) It is correct that this identity card was issued in the year 2015. The previous identity cards issued earlier are also lying with me at my residence.

It is incorrect to suggest that I was not working with Kimaya Store during the year 2006 and that due to the said reason, I have not brought the identity card for the CC No. 17/13 Page No. 24 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 relevant year. Mr. Chetlani was an NRI and hailed from South Africa to the best of my knowledge. I do not know the exact place of his residence. It is incorrect to suggest that no person by the name Mr. Chetlani ever came to Kimaya Store to purchase any goods and that it is for this reason that I am unable to tell his residence address. I cannot produce the bill relating to sale of goods to Mr. Chetlani. Vol. Since Kimaya Store was not registered with foreign exchange, it was not possible to issue the bill in foreign currency. Therefore, the bill was not prepared and we only booked the order. I cannot bring any documentary proof today for the said booking, because it is a ten year old matter. It is incorrect to suggest that there was no booking done and that I have deposed falsely. It is correct that I do not remember the date and month of the incident and the articles other than Lehnga but I do remember the foreign exchange given by Mr. Chetlani to A2. It is incorrect to suggest that no person with the name Mr. Chetlani had given any deposit of 2500 pounds to A2 for purchase of any goods. It is further incorrect to suggest that I am testifying falsely at the behest of accused persons on their tutoring."

(3) DW3 Maj. A. Ganesan, who testified as under :

"I have received summons in the above matter and in compliance of the same I have come to this court.

Maj. Gen. Anand Kapur and myself were batch mates since 1971. I had given a loan of Rs.3.5 lacs in the month of January 2007. I have brought the statement of account, which is duly signed by the bank i.e. Indian Overseas Bank, Yusuf Sarai Bank, Green Park, New Delhi. The relevant entry is at Serial No. 11 and the statement is marked as Ex.DW3/1 (objected to). After a few months of having taken the loan, the mother of A1 returned the said amount to me.

I had a Bose Wave Portable radio system. I have seen Ex.PW50/E, which pertains to the abovesaid Bose Wave Portable Radio system. Maj. Gen. Anand Kapur was moving to Jaipur and wanted to have a small system, I had lent the same to him and later on he returned it to me.

XXXXX By Sh. Manoj Shukla, Ld. Senior Public Prosecutor for CBI.

It is correct that in the bank statement Ex.DW3/1, it is not reflected as to in whose bank account, the CC No. 17/13 Page No. 25 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 aforesaid amount has been transferred. I cannot remember the date, month or year on which the mother of A1 had returned the money to me. Volunteered : I do not remember due to lapse of long time. I do not recollect the mode of payment made to me by the mother of A1.

It is incorrect to suggest that no payment was made by me as a loan to Maj Gen. Anand Kumar Kapur nor any money was returned to me as stated by me above. It is incorrect to suggest that I have testified with a view to help A1, being my close friend and batchmate.

It is incorrect to suggest that the Bose Wave music system was purchased by A1 and was not lent by me to him and the retail invoice Ex.PW50/E was actually issued to A

1. It is further incorrect to suggest that A1 got issued the said invoice in my name. It is correct that the said invoice was seized from the house of A1. Volunteered : I had given the complete box alongwith the invoice to A1.

It is incorrect to suggest that I have deposed today at behest of and at tutoring of A1."

(4) DW4 Sh. Hari Maira, who testified as under :

"I have known A1 since my childhood and our relationship goes back to three generations.

I had given a loan of about Rs.3 lacs to Mrs. Mridula Kapur in 2006. She had also requested for a loan from my mother Mrs. Lalti Maira in 2005 for a total amount of Rs.10 lacs, which was given to A2 through two cheques of Rs.5 lacs each.

I have brought the statement of account of my mother, wherein the entry comes on page 03 dated 27.10.2005 and 08.12.2005. The said statement is Ex.DW4/1 (Objected to) and the relevant portion is highlighted at portions A and B, respectively. I have also brought my statement of account of Kotak Mahindra Bank, wherein the entry is figuring as date of 07.07.2006. The said statement of account is Ex.DW4/2 (objected to) and the relevant entry is highlighted as portion A. I do not remember the date, but I received the money back from A2 in the year 2008.

I am an agriculturist, but now I have retired from this vocation. My lands are located in Panipat. Maj. Gen. Anand Kapur also has land in Panipat. The lands are reasonably adjacent. The land of A1 was given on the contract for three CC No. 17/13 Page No. 26 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 years at a time to one Surjeet. As on date, the annual income from the cultivation to the land owner is about Rs.50,000/ per acre and the cultivator/ contractor earns about Rs.30,000/ per acre as his net profit per year. My family had been very close to the family of A1 and as the father of A1 late Milkhi Ram Kapur also known as "Diwan Saheb" used to tell me to oversee the agricultural activities from time to time, so I was involved in looking after the land of A1.

In the year 1971, as I recalled, the annual income per acre to the land owner was in the domain of Rs.3,000/ to Rs.3,500/. In the next 30 years, the income had increased to Rs.30,000/ per acre, per annum for the land owner. A1 had owned approximately 7.5 acres of land in Patti Rajputan Village in Panipat. Surjeet used to give the money directly to late Diwan Saheb. Surjeet continued to be the cultivator of the said land from 1971 to 19992000, when A1 sold the land.

XXXXX By Sh. Manoj Shukla, Ld. Senior Public Prosecutor for CBI.

Question : You have stated that in the year 1971, the annual income per acre to the land owner was in the domain of Rs.3,000/ to Rs.3,500/. I put it to you that it was only your assumption and you do not have any documentary evidence to prove it. What do you say?

Answer : It is correct that I do not have any documentary evidence in support of my evidence. But, I was handling agricultural operations even during 1971 and therefore, I am testifying as above.

Question : I put it to you that the income from cultivation from a land is dependent on the crop which is grown and measures of agriculture adopted and so the income may vary. What do you say?

Answer : It is correct.

I cannot produce any lease agreement between Diwan Saheb and Sh. Surjeet, at this juncture. It is incorrect to suggest that no such lease agreement exists and therefore, I cannot produce the same. It is incorrect to suggest that no agricultural land of A1 was ever leased out to Sh. Surjeet by father of A1.

It is incorrect to suggest that I or my mother never gave any loan to Smt. Mridula Kapur. Question : I put it to you that actually A1 had given you amount in cash and asked from you to provide cheques of the CC No. 17/13 Page No. 27 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 same amount. What do you say?

Answer : It is incorrect.

It is incorrect to suggest that I have deposed falsely today at the behest of A1 due to my old and good relationship with A1. It is further incorrect to suggest that I have deposed on the tutoring of A1."

FINAL ARGUMENTS Sh. Ashish Bhagat, Ld. Defence Counsel has not only addressed detailed oral arguments but also has filed written arguments in which he has given his calculations of each item. Since, the written arguments are so well drafted, I have no hesitation in saying that the present judgement is structured on the charts prepared by Ld. Defence Counsel.

I would like to mention here that with a view to make the whole task of calculation easier, I am straightway accepting the calculation of expenditure as prepared by Ld. Defence Counsel. The reason for this is that the check period is quite large and it would be not so easy for a public servant to keep record of each expenditure. So a general admission of expenditure by the accused persons has been accepted by me as per the chart given by Ld. Defence Counsel.

Further, instead of adopting a legalistic approach, I am accepting the stand of the accused persons, without any discussion, in respect of the entries in the defence charts, CC No. 17/13 Page No. 28 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 which have a value of less than Rs.1 lac. The reason is that these amounts have been considered by me to be of small value. Therefore, in respect of such entries, the prosecution version has been totally ignored by me.

I would like to mention here that few more issues have been raised by Ld. Defence Counsel. The first is the question of double jeopardy. This question was raised before me at the time of framing of charge. As per the submissions of A1, a court of inquiry was held, which indicted A1 for contravening Special Army Order (i.e. SAO 3/S/98), which prescribed that Army officers must report to the department, the acquisition and disposal of properties. The properties, which are subject matter of the present trial, were also the subject matter of court of inquiry. The order dated 27.11.2009 of the General officer Commandingin Chief, South Western Command shows that A1 was given a showcause notice and after consideration of the same, the reply was not found satisfactory and it was held that it was a violation of instructions contained in SAO 3/S/98. Accordingly, "service displeasure (recordable)" was conveyed to A1. Therefore, it was argued that the present prosecution is a double jeopardy for A1. I disposed of this issue vide my CC No. 17/13 Page No. 29 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 order dated 3.2.2016 in which I held that the aforesaid court of inquiry was only a departmental action and not a criminal prosecution by way of court martial. Hence, I rejected the plea of double jeopardy raised by Ld. Defence Counsel. I may add here that this order has been challeged by A1 and the issue is still before Hon'ble High Court of Delhi.

It is further argued by Ld. Defence Counsel that the FIR was registered in haste without any preliminary enquiry and that the investigation is half baked and incomplete. There may be some substance in this submission but ultimately the court is to decide the case on the basis of the evidence brought on record. Ld. Defence counsel has pointed out that many facts were not deliberately brought on record and that the accused had to produce the same during trial. Ld. Defence counsel has referred to Meghmala & Ors. Vs. G. Narsimha Reddy & Ors., (2010) 8 SCC 383 and Shri Subhkaran & Anr. Vs. State & Anr., ILR (2010) VI DELHI

495. I have perused the aforesaid cases and I am of the opinion that only deliberate suppression of material on part of investigating agency will be fatal to prosecution. After perusing the entire record and statements of witnesses, I do not find that the Investigating Officer had deliberately CC No. 17/13 Page No. 30 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 suppressed any fact from the court. Ld. Defence counsel has referred to P. Sirajuddin Vs. State of Madras, AIR 1971 SC 520, in which Hon'ble Supreme Court has stated that there must be some suitable preliminary enquiry into the allegations. Therefore, it is argued that for want of preliminary enquiry the entire investigation becomes tainted. I have perused the case law. Although, I agree that a preliminary enquiry should have been conducted but once chargesheet has been filed and trial has been completed, the issue of preliminary enquiry becomes irrelevant.

Ld. Defence counsel has referred to State of Karnataka Vs. Ameer Jan, AIR 2008 SC 108 and Babappa Vs. State by Lokayukt Police (2010) 2 AIR Kant R 413, in which it was stated that nonapplication of mind and non consideration of material by sanctioning authority makes the entire sanction invalid. I have considered the submissions of Ld. Defence counsel and I agree so far as the legal proposition is concerned. Ld. Defence counsel has argued that an order of sanction should not be granted in a pedantic manner. It is well settled that the purpose for which the sanction is required to be passed shall also be borne in mind and ordinarily the sanctioning authority is the best person to CC No. 17/13 Page No. 31 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction to the prosecution or not and for the aforementioned purpose indisputably application of mind on the part of 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 sanctioning authority. Ld. Defence counsel submits that it is always on the part of the prosecution that they had to give the conclusive proof of the fact that the sanctioning authority was assisted with all the particulars/ related materials, related to the offence committed by the said public servant. [Dinesh Kumar Vs Chairman, Airport Authority of India & Anr. 2012 I RCR 100 Crl and Vijay Kumar Janjua Vs state of Punjab, RCR (2014) 869] Ld. Defence counsel has argued that the Sanction of Ministry has been accorded in abnormally expeditious time. The witness (PW8Shri P.K.Gupta) says that in normal circumstances, it takes 37 days to accord sanction. However in the present case, the authority took 22 days. Hence, it is argued that the sanction was without all documents on records, being made available to the sanctioning authority as CC No. 17/13 Page No. 32 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 divulged in the testimony of PW8 & PW76.

I disagree with this submission. Whether the Government machinery acted in efficient manner or in lethargic manner is not an issue before this court. If the process of according sanction is taken about more than 22 days, it does not mean that the Government had granted sanction to prosecute the accused under Section 19 of PC Act in great haste. PW8 P. K. Gupta, the then Director (Vigilance) in Ministry of Defence testified that the competent authority examined the material including statement of witnesses and documents sent by CBI. Perusal of the sanction order Ex.PW8/A shows that it mentions the material which was considered by the competent authority for according the sanction. P. K. Gupta (PW8) only authenticated the sanction order, which is Ex.PW8/A (D236).

I do not find any material on record to show that the sanction order suffers from nonapplication of mind or that the entire material was not considered by the sanctioning authority. It is argued by Ld. Defence counsel that unusual checkperiod of 36 years creates a great difficulty in defence because he will remain undefended due to lack of records. It is argued that no bank records prior to CC No. 17/13 Page No. 33 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 the year 2000 are available. Moreover, as per the IT Act/ Rules, the records are required to be maintained are six years old. Ld. Defence counsel has referred to Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SCC 402, in which it is mentioned by Hon'ble Supreme Court of India in para 42 that, "it must also be borne in mind that checkperiod had been very long and consequently it is easily possible that a small over estimation of the appellant's expenditure would have been multiplied and could easily explain the said amount."

I have considered this authority and I have already stated that for this very reason, I have accepted the chart of expenditure as given by Ld. Defence counsel.

Ld. Defence counsel has referred to Abdul Subhan Vs. State (NCT of Delhi), ILR (2006) II Delhi 882 and Shakuntala Vs. State of Delhi, ILR (2007) I Delhi 1005 submitting that shoddy investigation should lead to acquittal and that there should be fair and just investigation. I am of the opinion that it is a settled proposition of law and does not require any discussion. Ld. Defence counsel has also referred to State of Kerala Vs. Raghvan etc., 1974 Cri LJ 1373 and Julaiga Begum Vs. State of Tamil Nadu & Ors., 1996 (54) ECC 29 and submits that the Investigating CC No. 17/13 Page No. 34 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Officer has indulged in pick and choose policy. I disagree with this submission. The perusal of the evidence shows that the Investigating Officer had collected evidence and calculated the income, expenditure and assets in accordance with the documents. There may be some mistakes in investigation and there may be difference of opinion but it cannot be said that the investigation was shoddy, incomplete, unfair or malafide. Ld. Defence counsel submits that two material witnesses i.e. M. L. Chandan and G. S. Virk have not been examined by the prosecution. I am of the opinion that nonexamination of a material witness will be fatal to prosecution only if it is done to suppress some material evidence. It is not the case here. Both these witnesses could not be served and as per report on summons, both are in foreign countries. Therefore, prosecution could not examine these two witnesses despite their best efforts. Accordingly, I hold that nonexamination of the aforesaid witnesses does not affect the prosecution case.

Ld. Defence counsel has referred to the background of A1 and background of the present case leading to filing of the chargesheet as under :

"Brief Background of the Accused:

CC No. 17/13 Page No. 35 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

(a) Family: The Accused belonged to a renowned family. His father, was a well known agriculturist with 125 acres of land and a leading advocate in Karnal district, who was also owning several urban properties. This was in addition to considerable cash, gold & precious stones that his family had brought along with them from West Punjab. The family had donated land for Ram Sharnam Ashram in Panipat and is also running charity school and dispensary.

(b) Inheritance by Accused: About 34 bighas and 46 kanals of agriculture land, vast urban property in Amritsar and Rs. 65000/ in cash at the age of six in the year 1957.

(c) Service tenure Accused was selected in the Army through NDA examination. All promotions on first consideration, Outstanding record, Selected for foreign deputation and awarded VSM in 2005.

Rose to the rank of Major General and was due for promotion to Lt. General.

Back ground of the present case leading to filing of the FIR and the ChargeSheet.

(a) It's a completely motivated and baseless case and a product of the personal vendetta of vested interested people to prevent the promotion of Accused to the rank of Lt. General. The accused joined the Army on 14.11.1971 and owing to his dedication and commitment towards the country, successfully earned his promotions up to the rank of a Lieutenant General as per a Special Selection Board (SSB) on 05.11.2007. The result of this SSB was however withheld for over 10 months. The accused, aggrieved by the refusal of the SSB to declassify results, filed WP(C) 6856/2008 praying for declassification of results of the SSB. On consideration of the writ petition and calling for records, it was found that just prior to the selection Board which was scheduled for 05/11/07, an FIR was filed on 10/10/07 by CBI without any report from Army on an allegedly anonymous report. The FIR was filed without conducting P.E as mandated in the CBI manuals. Despite the FIR, the accused was selected for promotion by nine senior most Generals of Indian army including the Chief. It was the Ministry of CC No. 17/13 Page No. 36 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Defence, which held up the case. The accused approached the Hon'ble High Court and directions were issued for immediate promotion of the accused. The Hon'ble High Court observed in the order (after seeing CBI case diary) that there was no progress in the case for 16 months.

The HC order for promotion led to obtaining hasty and unconsidered sanction and filing of Charge Sheet in chaste haste as when the Hon'ble High Court of Delhi reserved its Judgment in CM 7961/2009 in WP (C) No. 6856 of 2008 relating to giving effect to its earlier order dated 19.02.2009 regarding the promotion of the Accused No.1 to Lt. General, the CBI obtained the sanction for filing the present chargesheet on 29092009 by placing chosen documents and concealing vital information and documents from sanctioning authority. Immediately on the heels of the order of the Hon'ble High Court, the Ministry of Defence filed SLP and got Stay on promotion on the basis of the present Charge Sheet and as such the accused retired in previous rank. The Hon'ble Supreme Court has finally disposed of the case vide an order dated 05.01.2016 in Civil Appeal No. 27/2016 ( arising out of SLP(Civil) No. 27107/2009) granting him all consequential benefits and also expediting this trial before this Hon'ble Court at the request of the Accused."

I have considered the aforesaid aspects and the only thing I can say is that this court is to see as to whether accused is able to give satisfactorily account for the pecuniary sources or properties, if proved disproportionate to his known source of income.

In view of above discussion, I straightway come to the computations as under :

I.         Assets Prior to Check Period 

          1. Agriculture Land at Karnal                                 Nil
          2. Agriculture Land at Panipat                                Nil

     CC No. 17/13                                                         Page No. 37 of 145
 CBI Vs. Maj. Gen. Anand Kumar Kapur etc.     Judgement                       dated : 27.09.2016


     3. Urban property in Amritsar                                     Nil
     4. Bank deposits                                                  21,700
     5. NSCs                                                           20,000
     6. Gold                                                           87.5 Tolas
        TOTAL
                          
                                    
                                              
                                                        
                                                                  
                                                                            Rs 41,700_
                                                                                      

Submissions of Ld. Defence Counsel

Ld. defence counsel submits that assets were inherited in 1957. Benefit of escalation of the value from 1957 to 1971 which has appreciated over the time has been ignored by the I.O. as a result of which while the I.O. pegs the total amount inherited at Rs. 41,700, the real figure is Rs. 1,85,000. It is emphatically pleaded that even at a conservative escalation rate based upon the interest factor, the said amount has appreciated and Exh. PW76/DP and Exh. PW76/DN may kindly be appreciated in this figure. Moreover, the above said fact is further corroborated by the prosecution witness PW61, K.C. Aneja the witness PW61 has stated on page 4 of his cross examination dated 19.04.2016 in para 2 ...." The value of these properties in the year 1971 must have been more than doubled. It is also possible that the said properties would have quadrupled in the year 1971. Similarly NSC's and fixed deposits would have quadrupled in the year 1971." Based on the above evidence, the amount as shown to CC No. 17/13 Page No. 38 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 have been inherited, by the prosecution falls to shamble and the only view possible is that the valuation of inheritance works out to Rs. 185000 plus.

My findings I have considered these submissions. So far as the value of gold is considered, the Investigating Officer has mentioned it "Nil" for the simple reason that it was inherited by A1 and this gold was deducted in calculation of assets. Therefore, the appreciation in gold value is of no value. I may point out that the assets held by A1 prior to check period had been taken by the Investigating Agency on the basis of a certificate Ex.PW61/E dated 01.10.1971 (page 42 of D229), written by Sh. Milkhi Ram, father of A1. This file D229 was seized by Investigating Officer from House No. 305, Forest Lane, Sainik Farm, New Delhi, which house is in the name of Smt. Santosh Kapur, the mother of A1, vide SearchcumSeizure Memo Ex.PW1/A and this file is mentioned at Serial No. 44.

I would like to point out that file Ex.P31 (D72) was received by CBI from army authorities and it contains the certified copies of the property returns filed by A1. The CC No. 17/13 Page No. 39 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 first return was filed on 29.12.1973, placed at page no. 150 of D78. It mentions his share of agricultural land at Panipat, Karnal and immovable property at Lohgarh, Amritsar, Punjab and all of them have been considered by the Investigating Officer in the chargesheet. It also mentioned annual income from the agricultural land as Rs.1,000/ per year from Panipat land, Rs.1,000/ from Karnal land and Rs.310/ per year from Lohgarh property. In subsequent years, increased agricultural income has been mentioned, but there is no mention of any NSC or FDR, etc. Still the Investigating Officer appears to have taken a practical view and accepted the certificate Ex.PW61/E. On the contrary, the submissions of Ld. Defence counsel are not supported with any document except a vague statement of PW61 Kailash Chand Aneja, the Income Tax practitioner, who used to file income tax returns of A1. Therefore, the Investigating Officer has already taken a higher value of the assets of A1 prior to check period than which A1 declared in his property returns to his department in 1973. Had he taken the value of assets of A1 on the basis of property returns filed by A1 to his department in the year 1973, even the benefit of NSCs could not have been given.

Therefore, I accept the prosecution version that at CC No. 17/13 Page No. 40 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 the start of the check period the worth of the properties held by A1 was to the tune of Rs.41,700/.

Now, I take up the charts prepared by Ld. Defence counsel. In the discussion below against each entry, first I have written the value attributed by prosecution and thereafter I have written the value as claimed by defence.

Calculation of Expenditure

1. Education of Children 12,84,582 7,37,299 Submissions of Ld. Defence Counsel Fees to Mayo College (5,47,283) paid by parents of A1. Ref Mother's Affidavit of 280312 Ex.PW76/DM1 and Father's Will dt. 12.08.2000 at Ex.PW76/DN (colly). There is also a refund of Rs 58,252 at pages F1 and F2 of Ex.PW76/O (D61).

2. Expdr on Generator at Def Col 4,00,000 2,00,000 Submissions of Ld. Defence Counsel Expenditure is Rs 2.00 Lakhs only at Agreements placed at Ex.PW72/D (colly) (D64) and Ex.PW72/E (colly) D66) which show same DD nos. These payments were actually made by Mother from her SBI Panipat a/c as seen by SBI DD nos. mentioned in these documents. The IO CC No. 17/13 Page No. 41 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 has wrongly attributed the above expenditure to the account of the accused. Moreover, presuming but not admitting that any fraction of expenditure was attributed to the accused, it could not be over Rs. 2 lakhs as the accused owned half basement and half ground floor. However, expenditure of Rs 2 lakhs is admitted provisionally due to lack of other evidence.

3. Singapore Visit 73,600 73,600

4. Electricity charges Sainik Farms house 4,38,568 Nil.

Submissions of Ld. Defence Counsel It has come in the evidenc of PW 40 that the Bills were raised on Mrs. Santosh Kapoor, owner of the house, and paid by her. Ex.PW40/A (D208).

5. Maintenance D23 Def Col 9,71,587 9,71,587 Submissions of Ld. Defence Counsel Bills are not produced/ authenticated by any witness other than I.O. However, being admitted in good faith.

6. Brokerage 144/2, Panchkula 14,700 14,700

7. Expdr Pest Control Sainik Farms 18,000 Nil CC No. 17/13 Page No. 42 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Submissions of Ld. Defence Counsel The house where pest control had carried out work was owned and possessed by Late Mrs. Santosh Kapur who was the owner of the house. So, it cannot be assumed that contrary to the bill Ex. PW 53/B (D138) in the name of the mother there could be any expense attributed to accused, A1. This fact has been further corroborated by PW 53 in his statement before this Court.

8. Expdr Taxes/ Funds LSC Munirka 3,43,012 3,43,012

9. Internet & Cable Charges 37,030 37,030

10. Payment Extn Fees Panchkula Plot 1,91,825 1,91,825

11. Loss in sale GK1 Property 74,000 74,000

12. Loss sale of Car Toyota Qualis 4,67,760 4,67,760

13. Expdr Insurance Toyota Qualis 27,162 27,162

14. Expdr Insurance Honda City car 17,988 17,988

15. Ground Rent Ansal Plaza 4,15,792 4,15,792

16. Locker Rent/ service charges/TDS HDFC Bank Huf a/c 61,496 61,496

17. Locker Rent/service charges/TDS HDFC Bank Mridula a/c 5,120 5120

18. Miscexpdr HDFC Dhruv's bank a/c 1,163 1,163

19. Expdr Mutation Chgs Ansal Plaza 1,76,452 1,56,942 Submissions of Ld. Defence Counsel The IO has wrongly attributed a figure of 1,76,452 towards mutation charges though the same is contrary to the record and is supported by the evidence of PW 37 and PW 64. Their statements may be appreciated in CC No. 17/13 Page No. 43 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 this regard.

20. MiscChgs SC bank Dhruv's a/c 3,062 3,067

21. Interest paid on Auto Loan Toyota Qualis 1,47,238 1,47,238

22. Locker rent/service chgs PNB New Delhi 9,033 9,033

23. Property Tax Def Col property 6,09,330 6,09,330

24. Premium LIC policy 59,042 59,042

25. Premium LIC policy 30,947 30,947

26. Payment to MCD 98,000 98,000

27. Plantation Bijwasan 4,00,000 Nil Submissions of Ld. Defence Counsel The said amount has again wrongly been attributed to the accused contrary to the affidavit of the mother of accused wherein she has stated in this regard explicitly in para 13 of Ex. PW76/DM1.

28. Loss Rajdeep Apt Simla 3,18,000 12.33 Lakh (profit to be reduced from expenditure) Submissions of Ld. Defence Counsel The IO has wrongly attributed and misconstrued the documents pertaining to the sale of the said property. The fact remains that an amount of Rs 14.25 lakhs was also received by document at Ex. P102 (D165) for sale of this property in addition to Rs 12.50 Lakhs received at time of Sale deed. The purchase price being 14.42 lakhs, there is a CC No. 17/13 Page No. 44 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 net profit of 12.33 lakhs in sale. The prosecution has deliberately suppressed this fact from this Hon'ble Court and did not produce the witness who would have clarified the above submission.

29. Woodwork Rajdeep Apt Simla 11,66,786 2,55,596 Submissions of Ld. Defence Counsel As regards the expenditure assumed by the prosecution is concerned, the same is contrary to the deposition of PW73 who has categorically confirmed in para 2 of page 3 of his examination in chief held on 09.05.2016 wherein 3 receipts were admitted by him for a value of Rs. 16,760, Rs. 38,836, and Rs. 2 lakhs thereby totaling Rs. 2,55,596. The prosecution however, has ignored this statement and is harping upon the reply in cross examination wherein the said witness has stated that an amount of Rs. 6 lakhs plus was returned by him though in reality only the above amount was paid/leftover with the said witness as the quality of work was not acceptable by A1 and the work was stopped midway. Any representation contrary to the documentary evidence stated above would be fallacious.

30. Duty Charges Rajdeep Apt Simla 30,162 30,162 CC No. 17/13 Page No. 45 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

31. Civil Works Sainik Farms 25,00,000 25,00,000 Submissions of Ld. Defence Counsel Bills produced by I.O. and no witness has authenticated/ confirmed the same. Also, the works were done in the House of mother, Mrs Santosh Kapoor who would have paid the amounts, but due to passage of time the accused is handicapped in showing the payments having been reimbursed by his mother even though no evidence to that effect is available at this juncture due to records not being available.

32. Club Bills 3,31,089 3,31,089

33. Income Tax paid HUF 200203 to 200607 9,68,318 9,68,318

34. Wealth Tax paid HUF 15,933 15,933

35. IT paid Mridula 200203 to 200607 8,43,025 7,53,738 Submissions of Ld. Defence Counsel The correct amount is reflected in ITRs at D28 Ex. P6 and it further reveals that due to chaste haste the prosecution has taken a wrong figure contrary to the record of the case.

36. Wealth Tax paid Mridula 200506 27,516 27,516

37. (Blank)

38. Service Chgs CA 28,000 28,000

39. IT paid HUF 198788 to 200203 1,26,679 1,26,679

40. Wealth Tax HUF 199091 and 199192 555 555

41. Alteration Basement Def Col 1,00,000 Nil CC No. 17/13 Page No. 46 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Submissions of Ld. Defence Counsel The attribution of the above said amount to the account of the accused is contrary to the evidence of record of the case. In fact the demand draft no. mentioned therein is the same as in Ex.PW72/D (colly) (D64) i.e. for the generator. The assumptions by the prosecution based upon a letter, the contents of which have neither been verified nor examined reveal the real picture and the accused is entitled to the benefit of the same which has wrongly been denied and thrust upon the accused.

42. Litigation 25,000 25,000

43. Tour 4,38,750 Nil.

Submissions of Ld. Defence Counsel The said expenditure has been taken by the I.O. from bank statement of salary account wherein these payments are made to travel agency/booking agents for official tours on temporary duty. The said expenditure has been reimbursed from time to time and a letter to the affect was given by CDA(O) and exhibited as Ex. PW 76/ DQ. The contents of the said letter are significant and highlight the fact that no information was collected or collated by the IO from the concerned department and the figure had been put CC No. 17/13 Page No. 47 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 in the category of the expenditure of the accused contrary to the reimbursements carried out and affirmed as above. In case this expenditure is accepted, the payment of TA/DA by the CDA should also be taken as Income.

44. Locker rent ICICI 5,242 5,242

45. Payment to AVS Gp 5,47,614 NIL Submissions of Ld. Defence Counsel The said expenditure has been taken by the I.O. from bank statement of salary account wherein these payments are made to travel agency/ booking agents for official tours on temporary duty. The said expenditure has been reimbursed from time to time and a letter to the affect was given by CDA(O) and exhibited as Ex. PW 76/ DQ. The contents of the said letter are significant and highlight the fact that no information was collected or collated by the IO from the concerned department and the figure had been put in the category of the expenditure of the accused contrary to the reimbursements carried out and affirmed as above. In case this expenditure is accepted, the payment of TA/DA by the CDA should also be taken as Income.

46. Loss sale/purchase of Vehicle 1,82,854 1,82,854

47. Payment made of FF D23 Def Col 7,00,000 7,00,000

48. Non Verifiable Expdr (1/3rd of Salary) 21,07,317 7,16,785 CC No. 17/13 Page No. 48 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Submissions of Ld. Defence Counsel The assumptions for attributing 1/3rd amount as expenditure from the gross salary of the accused is palpably false and is based upon an arbitrary exercise carried out by the investigating officer. The fact remains that while giving a deduction on expenditure, the same is done from the gross salary but, when the income is attributed the same is taken to be the actual salary which is, if the accused may submit with all humility, atrocious. The net salary of the accused received over the passage of time is Rs. 35,83,926, so the expenditure ought to be burdened from the net salary and presuming but not admitting that 20% could be the deduction on account of expenditure then the figure arrived at would be Rs. 7,16,785 and anything contrary to the same is illogical and contrary to the established norms of deductions towards expenditure. In this regard the statement of PW56 finds relevance who has in detail explained the perks enjoyed by an Army officer thereby resulting into an expenditure of 20% percent (max) and the assumptions of the IO cannot be eschewed by any stretch of imagination.

 TOTAL    EXPENDITURE     
                                   
                                   1,71,92,450
                                                 
                                                           
                                                           1,26,53,600
                                                                       




CC No. 17/13                                                Page No. 49 of 145
 CBI Vs. Maj. Gen. Anand Kumar Kapur etc.   Judgement             dated : 27.09.2016

Sh. Manoj Shukla, Ld. Senior Public Prosecutor has vehemently assailed the manner of calculation by Ld. Defence Counsel and has more specifically objected to the non verifiable expenditure to the tune of Rs.7,16,785/ as calculated by Ld. Defence Counsel. It is argued that one third amount has to be calculated from the gross salary and not from the carry home salary. I have considered the submissions of Ld. Senior Public Prosecutor. If the non verified expenditure is accepted as per submissions of Ld. Defence Counsel, I am of the opinion that it is difficult to lead a decent life for the family of a high officer. At the same time, I am of the opinion that the best person to tell such expenditure is the accused himself. Therefore, though I am not comfortable with the submissions of Ld. Defence Counsel, still taking a liberal view, I accept the amount of Rs.1,26,53,600/ under the head of total expenditure.

Immovable Assets Held

1. Half GF, D23 Def Col 20,54,000 20,54,000

2. Half Basement D23 Def Col 41,12,000 15,52,00 ___________________________________________________________ Submissions of Ld. Defence counsel on Item no. 2 Ld. Defence counsel submits that the prosecution CC No. 17/13 Page No. 50 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 has relied upon on an alleged hand written document which was recovered from the locker of the A1 i.e. Exh. PW 72/D(Colly) (D64) which was on the face of it in contrast to the valuation of the property by virtue of a registered document i.e. a sale deed. It is argued that the agreement to sell was a conditional document prepared for obtaining higher rental from Lord Krishna Bank which was otherwise contrary to the sale deed which is also a part of Ex. PW 72/D(Colly) which categorically specifies that the property was purchased for a value of Rs. 14 lakhs only and not in terms of an unproved document that is the agreement to sell. Significantly the other half portion of the basement at D23, Defence Colony was purchased by Mrs. Raj Bala Sharma who had purchased it for a value of Rs. 10 lakhs. Moreover, the mutation of the said property took place and find mention on page 5 of D64 which is Ex. PW72/D (Colly) wherein the revenue authorities have accepted the sale deed value and anything contrary to a registered document is nothing but a sham. It is submitted that a bare reading of the contents of the said purportedly hand written document would reveal that no payment had been exchanged in lieu of the said agreement other than Rs 5 lakh advance and a proposal to CC No. 17/13 Page No. 51 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 pay in the future in terms of the rental agreement being signed with Lord Krishna Bank. Thus, it was merely, presuming but not admitting a contingent agreement based upon a specific condition to be fulfilled and in the absence thereof it was nothing but a nullity ab initio. It may be reiterated that had the IO done an unbiased investigation and even visited the premises D23 basement or the office of the MCD to see the valuation there could not have been valuation as stated in the chargesheet. Last but not the least the valuation of the half portion of the ground floor of the same property is 19 Lacs and alongwith stamp duty stated to be 20,54,000. So, in these terms also by no stretch of imagination the valuation of half basement could exceed the valuation of half ground floor as is apparent from the record of the case. The material witness who could have thrown light on this aspect has deliberately not been produced by the prosecution namely M.L Chandan cited as PW129 in the list of witnesses alongwith the chargesheet of the prosecution. Thus, it is argued by Ld. Defence counsel that under no circumstances the valuation of half portion of basement could be valued at more than twice the amount of the value of the ground floor in the same property.

CC No. 17/13 Page No. 52 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 My view I have considered the submissions of Ld. Defence counsel, which appear to be specious. It is a known fact that the actual sale amount of immovable property, specially if it is situated in posh areas of Delhi, is much higher than the actual sale deed. Unfortunately, this situation is so common in this country that it is almost a rule. Where there is no evidence of higher value, the courts have no option but to accept the value mentioned in the sale deeds, which is the situation in case of the property at Item No. 01. However, if specific evidence is coming of the higher consideration value, the court cannot close its eyes to the ground reality. In case of the property at Item No. 2, hand written agreement to sell, dated 31.03.2001 was recovered from the file D64 [Ex.PW72/D (colly.)], which shows the total consideration amount of Rs.43 lacs, out of which Rs.5 lacs had already been paid and remaining amount of Rs.38 lacs was to be paid subsequently. In my opinion, the realistic approach to accept the real value of this property as Rs.43 lacs and not the saledeed value of Rs.14 lacs. It is a well known fact that properties are shown of much lesser value than the actual value for various reasons e.g. for the purpose of saving stamp CC No. 17/13 Page No. 53 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 duty etc. It is argued by Ld. Defence counsel that prosecution should have examined M. L. Chandan to prove the agreement to sell dated 31.03.2001 and to prove that the actual transaction was for Rs.43 lacs. I may point out that summons were issued to M. L. Chandan but he could not be served because he is out of country. Therefore, it is not a deliberate withholding of the evidence. However, it does not make any difference because this agreement to sell has been seized from A1 himself. A1 does not state that it is a false document. Therefore, I am not inclined to accept the submissions of Ld. Defence counsel. I am of the opinion that this document shows the real value of the property and the sale deed is showing a highly low value of the same. The Investigating Officer should have taken the value as Rs.43 lacs but since he has taken a lower value of Rs.41,12,000/, I accept the same as the true value of the property.

___________________________________________________________

3. Unit B111 Ansal Plaza 37,28,010 37,28,010

4. Comm Space 407A, Unitech Gurgaon 24,89,842 24,89,842

5. Flat 408 Vatika Tower Gurgaon 9,32,125 9,32,125

6. Flat 408A Vatika tower Gurgaon 9,32,125 9,32,125

7. Agriculture land Vill. Bijwasan 58,37,077 43,23,000 _____________________________________________________________ Submissions of Ld. Defence counsel on Item No. 7 Ld. defence counsel submitted that the anomaly CC No. 17/13 Page No. 54 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 in the above land does not lie in the valuation of the property but in the common wall constructed as a common compound and the entire cost having been attributed to the accused A

1. In this regard the evidence of PW66 O.P. Tiwari is significant wherein PW66 in his cross examination states in para 1 on page no. 2 that "It is correct that the valuation report Ex. PW66/A(Colly.) is for the entire property/ agricultural land at Brijwasan, measuring 10 Bighas and 09 Biswas (2.18 acre). It is incorrect to suggest that the entire property measures 4.36 acres and half of the property is 2.18 acre and only the said area belongs to Maj. Gen. Anand Kumar Kapur. It is a fact that the said property belonging to Anand Kapur falls in common compound comprising of 4.36 acres". The witness further emphatically states in last line of page 2 of his cross examination "the valuation given by me in Annexure'B' attached to Ex. PW66/A refers to the total construction in the common compound for which I had given a valuation of Rs. 15,14,077". However, contrary to the facts on record and documents and statement of the PW the I.O. arbitrarily took the valuation of the land at Rs. 58,37,077 ignoring the above said fact and statement. Further there is no evidence whatsoever that may lead to the conclusion that CC No. 17/13 Page No. 55 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 what was the nature of work done, what was the area, and whether any payments were made to this affect or not or there was any bill raised for the said amount.

My findings I find some substance in the submissions of Ld. Defence Counsel. In fact, Sh. Manoj Shukla, Ld. Senior Public Prosecutor has also admitted that the cost of the boundary wall should be taken to be 50%. Sh. O. P. Tiwari (PW66) is the Valuation Officer in Income Tax Department and he conducted the valuation of the property in question and he proved his report as Ex.PW66/A. As per his report the market value of land was Rs.56,80,996/ and cost of construction is Rs.15,14,077/. He testified that the total area of the agricultural land is 2.18 acres and A1 has half share in the same. Accordingly, the value of construction should be taken 50% of the entire value. Therefore, I take the value of the construction of boundary wall to be Rs.7,57,039/. To make it a round figure, I take it Rs.7,50,000/. Therefore, I calculate the total value at Rs.43,23,000/ + Rs.7,50,000/ = Rs.50,73,000/. Since the valuation has been done by a valuer and there can be minor discrepancy in the actual cost of construction with the estimated one, I reduce it further CC No. 17/13 Page No. 56 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 and take the total value of the property at Rs.50 lacs.

__________________________________________________________

8. Plot 264,Sector 52 Gurgaon 13,46,294 11,00,794 __________________________________________________________ Arguments of Ld. Defence Counsel The assumptions made by the prosecution are hypothetical without any cogent reasoning, document, evidence to justify the same. A bald allegation of bank drafts having been prepared by someone has been sought to be attributed to the accused which is belied by the statement of PW5 Manish Jain wherein he states on page 2 of his cross examination dated 03.03.2016 "... the person who gets the DD made gives his identification papers and signs the same and also gives his mobile no. the applications bear the name of Hiralal, Deepak, Pradeep, Sanjeev, Sameer, Kishan Kumar, Manoj, Bijeta, Rahul and Ram Kumar. ... it is correct that there is no voucher which has been signed or applied for by Mr. Anand Kumar Kapur or Mrs. Mridula Kapur... it is also correct that the said vouchers are of various dates and the handwriting of various persons... it is correct to suggest that the bank drafts are made at the behest of the person applying for the Demand Draft after due verification of his credentials/ documents CC No. 17/13 Page No. 57 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 shown by him.." . Further all these bank drafts which form the basis of the attribution of the I.O. qua the accused are of prior date than the date of making payment to the seller and/or transfer of the allotment in the records of Huda, which fact belies the entire allegation in the chargesheet for an inflated price. The deposition of PW70 Narender Singh who is the seller of the property may kindly be seen wherein he has deposed about receipt of only two payments from Mrs. Mridula Kapur, A2 on page 2 of his examination in chief wherein he admits receiving payments of Rs. 10,58,794 and Rs 42,000/ for the aforesaid property. Anything contrary alleged by the prosecution is nothing but a misnomer and contrary to the records and facts of the case.

My view Ld. Senior Public Prosecutor has opposed this calculation but on perusal of the evidence of PW70 Narender Singh, who had sold this property to Ms. Mridula Kapur (A

2), I have no option but to accept the value at Rs.11,00,794/.

_____________________________________________________________

9. House 506, Dauna Paula, Goa 30,21,000 NIL ____________________________________________________________ CC No. 17/13 Page No. 58 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Arguments of Ld. Defence Counsel It is argued by Ld. Defence counsel that the attribution of the prosecution for enlisting the said purchase of the house by the son of the accused to the accused is fallacious and contrary to the factual matrix and records of the case. It is argued that the house is owned by Dhruv Kapur, son of accused. It was gifted to him by his grandmother. Refer her Affidavit dated 28032012 before this Court at Ex.PW76/DM1 and Will of his Grandfather dt. 12.08.2000 at Ex.PW76/DN. The purchase of the house was declared to the ITO by Dhruv Kapur in ITRs for F.Y. 200506 and 200607 (original at Ex.PW76/DS1 and Ex.PW76/DS 2, copies at Exh PW 41/DE and Exh PW 41/DF). The accused had submitted all these documents pertaining to the source of funds, purchase of the property, title deeds, income tax records to the I.O. but the I.O. instead of investigating the same in the earnest manner and giving the benefit of the same to the accused willfully attributed the said property to the assets of the accused contrary to the established principles of law, procedure of evidence wherein he ought to have recorded the evidence of the mother of the accused as well as the seller of the property, the bank manager of the CC No. 17/13 Page No. 59 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 concerned bank and the ITO but he failed and neglected his duty with a hidden agenda of fixing the accused.

My findings It is true that the purchase of the house was declared to the ITO by Dhruv Kapur in Income Tax Returns. However, it is not the case of the accused that Dhruv Kapur was having an independent earning at that time. Ld. Defence counsel is relying upon the affidavit of his mother and will of his father dated 12.08.2000 to prove that money for purchase of this house was gifted to Dhruv Kapur by Smt. Santosh Kapur (i.e. mother of A1 and grandmother of Dhruv Kapur). However, to my mind it is not a convincing explanation. It is required to be shown by A1 as to what was the financial condition and source of income of Smt Santosh Kapur. The affidavit of Smt. Santosh Kapur is dated 28.03.2012. In para 16 of this affidavit, she stated that her husband left behind deposits and investments worth Rs.40 lacs and she looked after that amount till 2005, when Dhruv's 18th birthday occurred. It is further stated in the affidavit that on her asking, Dhruv purchased a house in Goa and that she (i.e. Smt. Santosh Kapur) gave Rs.28,50,000/ in bank drafts to him in December 2005. Although, in her CC No. 17/13 Page No. 60 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 affidavit she has stated that her husband Diwan Milkhi Ram Kapur was a wealthy and renowned landlord, but she has not explained in this affidavit as to what was her bank accounts and how she was having such a huge amount of money. Merely her affidavit will not amount to a sufficient explanation by A1. Something more is to be shown by him. The accused could have shown the statements of bank accounts of Smt. Santosh Kapur, he could have filed her income tax returns, because if such a huge is kept with her, she should be paying some income tax also. The affidavit is dated 28.3.2012, which was prepared much after filing of the charge sheet. It is pertinent to note that a Will of Smt. Santosh Kapur dated 27.10.2002, which is duly registered is Ex.PW76/DN (colly) in which she has referred to the property in Panipat, house in Model Town, Panipat and House No. D23, Defence Colony only. If she was having such huge amounts with her, she would have also mentioned the same in her Will. I may point out that in her affidavit (para

17) she had stated that she had purchased a flat for her in Defence Colony in 2002 and that she had sold the flat for Rs.40 lacs in 2004. No particulars of the said property have been given by Smt. Santosh Kapur, nor it has been mentioned CC No. 17/13 Page No. 61 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 as to whether such a huge amount was taken by her in cash or by cheque and whether she deposited it in some bank or not. Therefore, I do not give any value to the affidavit of Smt. Santosh Kapur.

Now I will refer to an unregistered Will of Diwan Milkhi Ram. In para V of the Will, it is mentioned that he had partitioned the assets in three parts, one each for his two sons and one for himself and his wife. In para V(b), he refers to the share of A1 in agricultural land, gold ornaments 87.500 tolas and cash certificate worth Rs.56,850/. It is also stated that when A1 joined Army, all NSCs had been encashed and he (i.e. Late Sh. Diwan Milkhi Ram) had given to A1 a sum of Rs.1,25,000/. He further mentions in this Will that income from agricultural land was Rs.3,000/ per annum per acre. It is also stated in this Will that he also having cash, bank accounts, bonds and shares, total value of which is Rs.40 lacs.

I have carefully perused this Will. First of all, it is not the original documents and it is a photocopy, which is reflected from the photocopied stamps on the first page. Secondly, it has not been registered. Although, it was found in the file, which was seized from the accused but clearly this CC No. 17/13 Page No. 62 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Will is of doubtful authenticity. It is such an important document that it should have been duly registered especially when it is admitted fact that Sh. Milkhi Ram was an advocate and well to do person. On the other hand, the Will dated 17.10.2002 of Smt. Santosh Kapur is duly registered at Panipat and it does not mention any amount of Rs.40 lacs in her possession. A1 could have produced the original of the aforesaid photocopy of Will of Sh. Milkhi Ram to convince the court of its genuineness. I have already discussed that property returns of A1 dated 29.12.1973 is contrary to this photocopy of a Will. I will discuss later on as to how the fact of income of Rs.3000/ per annum per acre is a false statement in the said Will.

To sum up, A1 has been unable to satisfactorily explain as to from what source her mother gave money to Mst. Dhruv to purchase the aforesaid house in Goa.

Hence, I take the value of the aforesaid house to be Rs.30,21,000/, as reflected from the sale deed, which includes the registration fee as well as value of stamp duty. _____________________________________________________________

10. Commercial Space 102A/2 Capital Court 79,20,228 79,20,228

11. Cottage No.10 Mashobra 38,81,357 20,60,000 ______________________________________________________________ CC No. 17/13 Page No. 63 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Arguments of Ld. Defence Counsel on Item No. 11 Ld. defence counsel submits that while the asset is admitted to have been purchased by the accused but the valuation attributed by the I.O. is fallacious and contrary to the registered documents made in this regard. In this regard it is submitted that there was no transfer of land having taken place in the said transaction which fact was very well borne out from the evidence of PW74 Anudeep Kumar and PW55 Amarjeet Singh and the registered lease deed Ex.P 2(D10) whereby only the superstructure of the cottage was leased to the accused. It may not be out of place to mention that the property had been valued by a govt. evaluator which also belies the case of the prosecution and furthers the case of the accused as may be seen from the valuation report Ex. J1(Colly.). Further PW74 has emphatically stated that the money beyond the value of the lease deed stood returned to the accused but the I.O. in a hideous manner misrepresented the figures in the chargesheet to exaggerate the asset value for vested reasons to almost twice of the value spent.

My view Ld. Senior Public Prosecutor has admitted this fact. In view of the evidence as pointed out by Ld. Defence CC No. 17/13 Page No. 64 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 counsel, I admit the value of this property to be Rs.20,60,000/.

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12. Plot 32, Sect 52, Gurgaon 6,41,305 6,41,305

13. Plot 33, Sect 52, Gurgaon 6,97,450 6,97,450 Movable Assets

1. Bank Balances HDFC Bank 83,09,796 83,09,796

2. Bank Balance ICICI Bank 2,91,594 2,91,594

3. PPF A/c SBI Panipat 9,04,582 6,68,582 _____________________________________________________ Submissions of Ld. Defence counsel on Item No. 3 It is argued by Ld. Defence counsel that Rs.2,36,000 paid by parents in the a/c in SBI Panipat in absence of the accused in service. Affidavit dt 280312 of Mother at Ex.PW76/DM1 and Will of father dt. 12.08.2000 at Ex.PW76/DN.

My View I have already held the affidavit dated 28.03.2012 of Smt. Santosh Kapur as unreliable, solely created for defending the accused. Moreover, photocopy of Will of father dated 12.08.2000 is also unworthy of credence.

CC No. 17/13 Page No. 65 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 I have already discussed this aspect in earlier portion of this judgement. Accused has been unable to convince this court as to from what source her mother had deposited this money in the bank account of SBI, Panipat. Accordingly, I accept the value at Rs.9,04,582/.

__________________________________________________________

4. PPF A/cs SBI Def Col 2,67,077 2,67,077

5. Balance PNB New Delhi 11,903 11,903

6. Balance CBI Panipat 37,283 37,283

7. P.O. Lodhi Road 9,60,000 6,60,000 __________________________________________________________ Arguments of Ld. Defence Counsel on Item No. 7 It is argued by Ld. Defence Counsel that KVPs of 3 Lakhs purchased by mother of A1 and stated in her sworn affidavit dated 280312 before this Court at Ex.PW76/DM

1. It is significant to note that while the income of the mother has not been attributed to the accused but assets and monies invested by the mother of the accused have been wrongly attributed to the accused to inflate the figures as in this case by almost 30% contrary to any justification and in violations of principles of natural justice and fair play. The suppression of this crucial aspect puts a dark spot on the role CC No. 17/13 Page No. 66 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 of the I.O. which is fraught with malice and vested interest.

My view The defence is solely based upon the affidavit of her mother dated 28.3.2012, which I have already rejected, therefore, I accept the full amount as Rs.9.60,000/.

__________________________________________________________

8. Shares NTPC 13,268 13,268

9. HDFC Std Life Insurance 7,75,000 3,00,000 __________________________________________________________ Arguments of Ld. Defence Counsel on Item No.9.

Ld. Defence counsel submits that the I.O. instead of verifying the factum of the purchaser/payee for the one time policy premium of Rs. 4.75 lakhs paid by the mother of A1 has wrongly attributed the said amount to the accused contrary to the factual matrix and evidence on record. The accused places reliance upon affidavit dated 28.03.12 Ex.PW76/DM1. Because of the excessively long check period and lack of investigation at appropriate time, the records of the insurance company are not available as of date which fact is borne out from the statement of PW77 Ankush Saini who despite his best efforts could not bring the records CC No. 17/13 Page No. 67 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 about the said policy/ payments made towards the premium etc. In the absence of the records the alleged payments cannot be attributed to the accused and the accused relies upon the fact that the said payment was made by his mother whose affidavit Ex. PW76/DM1 negates the allegation of the prosecution.

My view I have already rejected the affidavit of the mother of A1, which is the sole basis of reliance by A1. Hence, I accept the value at Rs.7,75,000/.

__________________________________________________________

10. GOI Tax Free Bonds 6,50,000 6,50,000

11. IDBI 75,000 25,000 __________________________________________________________ Arguments of Ld. Defence Counsel on Item No.11.

The allegation in this regard of attributing a larger asset of value of Rs. 75,000 bonds is contrary to the records produced before this Hon'ble Court in as much as bonds worth Rs 50,000 had matured during the check period and on various dates whereby an amount of Rs 61,340 had been returned/ redeemed on maturity. This fact is further CC No. 17/13 Page No. 68 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 proved by the PW23 and documents Ex. PW73/C, Ex. PW 73/D, Ex. PW73/E, Ex. PW73/F and an investment of only Rs 25,000 was left over on 10.10.07. The I.O. for vested reasons did not give the benefit and misrepresented before this Hon'ble Court in the chargesheet filed before this Hon'ble Court.

My view I view of the aforesaid evidence referred to by Ld. Defence Counsel, I accept the value at Rs.25,000/.

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12. Honda Car 3,52,000 3,52,000

13. House hold articles 10,62,195 1,67,000 ________________________________________________________ Submissions of Ld. Defence Counsel on Item No.13.

Ld. Defence Counsel submits that with regard to above the prosecution has without any basis attributed household articles lying in the house of the mother of the accused to the accused which is contrary to any known norms, evidence, and fair play. The fact remains that the accused was having a separate house at Jaipur and the mother of the accused had acquired assets by way of CC No. 17/13 Page No. 69 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 inheritance and in any case she was an independent income tax assessee but based upon surmises and conjectures and self assumed notions the I.O. attributed assets to the accused. This fact is even otherwise borne out from para 19 of the affidavit of the mother of the accused Ex. PW76/DM1. The accused had a fully furnished house available to him at Jaipur and only an amount of Rs 1,67,000 can be attributed to be the asset of the accused. Further, in this regard the attention is drawn of this Hon'ble Court to the inventory of the goods at House no. 305 Sainik Farms, Ex. PW1/B(D3) wherein the mode of acquisition/ remarks has been explained for each item and the items which are purchased by A2 have been mentioned specifically " Purchased by Mrs. Mridula Kapur'. In this regard the attention is invited to item 13, 67, 76, 77, 78, 79, 80, 96 which total to an amount of Rs 5,400 only, though the prosecution has tried to attribute an admission based upon surmises and conjectures to all items which are purchased, acquired by the mother in law of A2 or those belonging to the father in law of A2 to be items belonging to having been admitted to purchase by A2, which is nothing but a misnomer and a factually incorrect statement.

CC No. 17/13 Page No. 70 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 My view Since, no evidence has been led to prove the value of house hold articles by prosecution, I accept the value of house hold articles at Rs.1,67,000/ as admitted by the accused persons in their written arguments.

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14. Jewellery 18,51,215 NIL __________________________________________________________ Submissions of Ld. Defence Counsel on Item No.14.

It is argued by Ld. Defence Counsel that the accused had declared jewellery weighing 3437 gms in the wealth tax returns which are Ex. P6 and P7 respectively and only 3245 gms was seized from them. But contrary to the said fact and documentation being available with the I.O. he attributed excess jewellery for the value of Rs. 18,51,215 qua the accused based upon an assumption that the accused as per a notional understanding based upon income tax return with anomalies and wrongly misunderstood by the IO. The IO assumed that the accused had amassed the jewellery subsequently without verifying the age, documents on record, wealth tax returns to the affect that they had in fact inherited large amount of jewellery from their parents. The CC No. 17/13 Page No. 71 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 assumptions taken by the I.O. were based upon a mistake in one of the wealth tax returns which fact stood clarified in the statement of PW61 Mr. Aneja who has stated on page 7 of his cross examination dated 19.04.2016 in last para "It is correct that as per the income tax returns for the AY 9899, it is mentioned that the assesse except gold jewellery ornaments acquired as Istridhan at the occasion of marriage in 1986 from parents about 80 tolas and 75 tolas from in laws. It is also correct that the said gold acquired by Mrs. Mridula Kapur is distinct from Anand Kumar Kapur HUF". This fact clarifies the anomaly misinterpreted by the I.O. with contrary assumptions to attribute an asset of value of Rs. 18 lakhs approx.. to the accused while the said asset had in fact been acquired by way of inheritance. In this regard the income tax returns of the accused for the AY 198889 may kindly be perused, PW61/A which shows that at Serial number 6 of the computation filed with the return for the AY 198889, the declaration of the Jewellery at 87 tolas approx.. So, the error which crept in subsequently from 'tolas to grams' was rectified in the return for AY 200506, in this regard the Ex. P7(D29) may kindly be perused. Furthermore, the basis of allegation qua the accused as available in the chargesheet CC No. 17/13 Page No. 72 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 itself refers that the accused had owned gold to the extent of 87.5 tolas prior to the check period, and hence, it is argued that this fact itself belies the statement of the prosecution.

My view A1 had filed wealth Tax Returns declared therein the gold jewellery and A2 also declared her gold ornament. As per the statement of Wealth for the Assessment Year 1990 91 of Anand Kumar (HUF), (D75, Ex.PW61/A (Colly.), page 135136) which was prepared by PW61 Kailash Chand Aneja, Income Tax Practitioner, Panipat on the basis of information given by A1, who declared his gold jewellery 139.96 gram of 22 carat which he acquired through partition of family on 18121957. He further declared therein that 75 tolas (873.750 gram) was reserved for his wife which were in his possession. A1 further declared his gold jewellery 139.96 gram for the wealth tax return for the AY 199192 (page

129). As per the Statement of Wealth dated 3132000 (D 68, Ex.PW61/B, page 242), A1 declared his gold ornaments weighing 139.96 gram. It proves that till 3132000, A1 had 139.96 Gram Gold Ornaments.

A2 filed her Ist Income Tax Returns for the Assessment Year 199899 (FY 199798). The statement of CC No. 17/13 Page No. 73 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Account found during house search of A1 (D77, Ex.PW61/D, page 34) shows that A2 declared her gold jewellery 80 tolas + 75 tolas. There it is specifically mentioned that 80 tolas given by her parents and 75 tolas given by her inlaws. The said statement of Account was prepared by PW61.

From the above, it is proved that A1 had 139.96 gram gold whereas his wife had 155 tolas gold jewellery (1805.75 gram) till 3131998. The income tax return and wealth tax return for the financial year 199899 and 1999 2000 are not available.

A1 filed his wealth Tax Return for the Financial Year 200506 through PW41 Akarsh Kashyap, Chartered Accountant,which is P7 (D29, page 356). As per the said returns A1 declared his gold jewellery weighing 1632.49 gram. It is noteworthy that while declaring his jewellery weighing 1632.49 gram, he took 139.96 tolas as earlier he declared it as 139.96 gram. Thus, he enhanced his jewellery by misleading and false declaration. As such A1 acquired 1492.53 gram (1632.49 - 139.96) during the period 14 2000 to 3132006. For the financial year 200607, he claimed to have gold jewellery weighing 1632.49 gram.

CC No. 17/13 Page No. 74 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 A2 filed her wealth tax returns for the Financial Year 200506 declaring her gold jewellery weighing 1458 Gram as proved by PW41 Akarsh Kashyap. The same is P6 (D28, page 207) The status of Gold jewellery was remained as such during the financial year 200607.

As per the declaration of both A1 and A2, they had total jewellery weighing 1632.490 gram + 1458 Gram + 3090.490 gram. As per the declaration in wealth Tax Return dt. 3132000. A1 had 139.960 gram whereas his wife had 1805.75 gram. Total comes to 1945.710 gram. It means that A1 acquired/purchased 1144.78 gram (3090.490 gram - 1945.710 gram) during 142000 to 3132006.

On the date of search i.e. 10102007, Major General had 3345 gram Gold jewellery which were found at her residence and in various lockers. As per wealth Tax Returns dt. 3132007, they had 3090.490 gram gold jewellery. It is obvious that they purchased 254.510 gram (3345 -3090.490 gram) A1 and A2 declared in their respective Wealth Tax Returns about Gold jewellery. But during search, the diamond jewellery were also found and got evaluated through the Government Valuer namely Sh. Om Prakash Malhotra. The prosecution could not examine CC No. 17/13 Page No. 75 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 the valuer due to his old age but Investigating Officer has proved the said valuation of the jewellery as under:

Sl. Make of Diamond Place from where Weight Amount.

No. Jewellery             found
1      One   diamond   and  Residence (item 4)           60 gram       Rs.75,00000
       yellow stone necklace 18 
       carat
2      One   pair   diamond   tops  Residence (item 8)   9 gram        Rs.4,26,40000
       18 carat
3      One   diamond   Polkies  Residence (item 10)      100 gram      Rs.72,00000
       kara Necklace 18 carat
4      One   diamond   necklace  Residence (item 12)     65 gram       Rs.74,00000
       and bracelet 18 carat
5      One   diamond   necklace  Residence (item 15)     50 gram       Rs.90,00000
       set  and   one  bracelet   18 
       carat
6      One   diamond   ring   18  Residence (item 16)    4.800 gram Rs.2,64,88000
       carat
7      One   diamond   ring   18  Residence (item 17)    4.100 gram Rs.64,86000
       carat
8      Two   diamonds   Bangles  Locker No. 361, PNB  150 gram         Rs.1,41,50000

two pearl bangles two C. Place (Item No. 1) multicolor stone one of A1 & A2 pendent 9 Three diamond rings, Locker No. 361, PNB 35 gram Rs.41,00000 three pairs earing two C. Place (Item No. single tops and one gold 13) of A1 & A2 chain 10 One pair diamond ear Locker No. P1416, 110 gram Rs.1,15,00000 rings and one pair coral PNB C. Place (Item earing with stone and No. 1 & 2) of A1 & one pair diamond A2 polkies and stone necklace 11 One diamond necklace Locker No. 232 ICICI 50 gram Rs.70,00000 set with black pearls in Bank, Saket (Item 18 carat No. 1) of A2 CC No. 17/13 Page No. 76 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 12 One diamond Polkey Locker No. 232 ICICI 40 gram Rs.55,00000 Pendent in silver and Bank, Saket (Item gold 14 carat No. 8) of A2 13 One diamond and opal Locker No. 232 ICICI 20 gram Rs.46,00000 necklace 18 carat Bank, Saket (Item No. 10) of A2 Total 697.900 Rs.15,35,64000 gram From the above it is found that Major General Kapur purchased diamond and stone jewellery weighing 697.900 gram for Rs.15,35,640/ during 142000 to 1010 2007. Whereas he purchased 1399.290 gram during 14 2000 to 10102007. Hence Shri Kapur purchased 701.390 gram gold ornaments during the said period. The rates of gold were obtained for the period 20002007 as per the said rate list provided by Sh. O. P. Malhotra, Government approved Valuer, the rates of gold was Rs.4,380 on 31.3.2000, Rs.4,210/ on 31.3.2001, Rs. 5050/ on 31.3.2002, Rs.5310/ on 31.3.2003, Rs.6065 on 31.3.2004, Rs.6150 on 31.3.2005, Rs.8500/ on 31.3.2006, Rs.8500/ on 31.3.2007. Considering the average rate of gold ornament during 2000 to 2007 as Rs.4500/ per 10 gram, the cost of the said gold ornament would be Rs.3,15,575/. As such the cost of gold and diamond jewellery to be acquired by Major General Kapur during 2000 to 10102007 is come to CC No. 17/13 Page No. 77 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Rs.15,25,640 +3,15,575 + 18,41,265/.

It is true that O. P. Malhotra has not been examined but Investigating Officer has placed on record the said valuation reports, which are Ex.PW1/C, Ex.PW71/A, Ex.PW76/C, Ex.PW76/D, Ex.PW76/E, Ex.PW76/F and Ex.PW76/G. If the valuation is incorrect, the accused was at liberty to prove by examining a valuer in the defence to show that actual value is much less. I am not inclined to give any benefit of mistake of tola and grams as pointed out by Ld. Defence Counsel simply because the difference between the two cannot be better understood than by a person like A1, who is from the wealthy family as per his own submissions.

It is argued by Ld. Defence counsel that the jewellery of mother of A1 has also been calculated. I disagree with this submission. If A1 & A2 have kept such large amount of jewellery in their lockers, they will keep some part of jewellery at residence also so that the same are readily available for social functions. Hence, prosecution has rightly attributed the aforesaid jewellery to A1. I would here like to reproduce the relevant portion of income tax return of A2 for assessment year 199899 (Ex.PW61/D), as under :

"NOTE : Household expenses of the family are also met by the salary income of the husband, who is serving in Defence Services. Family consists of self, husband and two minor children, age CC No. 17/13 Page No. 78 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 11 & 6 years. No individually valuable assets owned by the assessee except gold jewellery ornaments acquired as "ISTRI DHAN" at the occasion of marriage in 1986 from parents about eighty tolas and seventy five tolas from inlaws. This fact has also been declared in the Wealth statement of the husband HUF in 198889 in Ward No. 1, Panipat."

Accordingly, I accept the value of jewellery to be Rs. 18,51,215/.

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15. Rolex Watch 6,63,000 NIL ___________________________________________________________ Submissions of Ld. Defence Counsel on Item No.15.

It is argued by Ld. Defence Counsel that the attribution of the said watch to the accused is contrary to the documents on record which have been proved by PW56 wherein by virtue of Ex PW56/DA the letter from Mr. U.M Kini attached to the invoice was deliberately ignored by the I.O. and by virtue of misrepresentation and suppression of material document the I.O. has attributed a watch belonging to the father in law of the accused, A1 to him. The fact remains that the father in law of the accused due to his failing health, post hospitalization was convalescing in the house at Sainik Farms where the watch was seized from the bedside table in the room where the father in law of A1, CC No. 17/13 Page No. 79 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Late Mr. MM Chibber was residing and the same significantly finds mention in the seizure memo Ex. PW1/C(D4). Strangely enough the prosecution has emphasized on the valuation of the said watch carried out by Mr. Om Prakash Malhotra and the said has been stated in Ex. PW1/C at serial number 5 at Rs. 65,000 but with a view to exaggerate the valuations in the present case, the I.O. attributed the said watch to the accused contrary to all norms of investigation and fair play.

My view I agree that Om Prakash Malhotra has written the value of Rolex Watch at item no.5, which is 18 carat gold, to be Rs.65,000/ as per his report Ex.PW1/C. One letter of Madhav Kini address to Sh. M. M. Chhibber was also seized by CBI, which shows that it was a gift to Sh. M. M. Chhibber. I accept this defence and put the value of Rolex watch as "Nil".

____________________________________________________

16. Cash 11,62,240 NIL __________________________________________________________ Submissions of Ld. Defence Counsel on Item no.16 Ld. Defence Counsel argues that the evidence of DW1 may kindly be appreciated in this regard who has CC No. 17/13 Page No. 80 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 categorically stated and proved on record that the father of A2 was suffering with cancer by virtue of hospital records of max hospital Ex. DW1/1 and A2 and her family were looking after him. It has also come in evidence of DW1 that she and other family members had contributed monies for hospitalization etc. of their father namely Late Mr. MM Chibber and an amount of Rs. 7.85 lakhs had been contributed by the family and an amount of Rs. 6.13 lakhs recovered from the house at Sainik Farms was a part of the said contribution which fact is further supported by Ex. PW 76/ DT1, DT2, DT3, DT4. In this regard the prosecution has tried to allege that a person of the stature of A1 would not collect money from the relatives for the treatment of his father in law. The fact remains that we Indians are still a conservative society and each of the children when it comes to the treatment of ones father or mother has a role to play and despite A1 and A2 taking care of Late Mr. MM Chibber i.e. father in law and father of accused A1, &A2 respectively the other daughters of Late Mr. Chibber and brother of Late Mr. Chibber had taken unto themselves a role of collecting/ contributing for the treatment of Mr. Chibber and the same right could not be denied to them. The allegations of the CC No. 17/13 Page No. 81 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 prosecution are set at knot by the deposition of DW1 who has stated that she along with the other sisters had contributed monies for the treatment of Late Mr. MM Chibber. It may be significant to note that as per Hindu psychology itself a son in law usually does not spend monies on the treatment of the father in law but that was not the position in the case of the accused and he was sufficiently equipped with funds to take care of his ailing father in law, but the sentiments of the family cannot be ignored and the contribution by the children of Late Mr Chibber as such could not be declined merely because the accused was affluent and could provide the necessary means for the treatment. In fact, all the other family members were equally well off but still the father in law of A1 had special attachments with his youngest child i.e. A2 who had been taking care of him all through whether he was at Gurgaon or had shifted to the residence of A1. Moreover, from the evidence of PW4 it can safely be assumed that the locker at Gurgaon from where an amount of Rs 5 lakhs was recovered was in fact a locker opened for and on behalf of the father of the accused, A2 though being operated upon by accused A2. The money belonged to the father of the accused A2 and had been kept CC No. 17/13 Page No. 82 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 there for meeting condition of exigency as the father was living alone at Gurgaon. Furthermore, this fact is corroborated by an affidavit of Late Mr. MM Chibber Ex. PW 76/DR.

My view I have carefully gone through the testimony of Pratibha Sharma (DW1) and the application Ex.PW76/DR. Although there is nothing abnormal in brothers and sisters contributing for treatment of the old aged father. However, accused persons did not bring on record as to how much money was being spent on the treatment of Sh. M. M. Chhibber. In absence of such evidence, I am not inclined to accept the testimony of DW1. It is clear that she is just testifying with a view to save her close relatives. The application Ex.PW76/DR is also an after thought. As per D 23 (Ex.PW4/A), in this locker, apart from Rs.5 lacs, foreign currency of 2560 pounds was also found. This foreign currency is admittedly of A2. Therefore, this locker is not only of A2 but also is being used by her to put her own money. Hence, I take the value of Rs.11,62,240/.

CC No. 17/13 Page No. 83 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 __________________________________________________________

17. Foreign exchange 2,13,632 NIL __________________________________________________________ Submissions of Ld. Defence Counsel on Item on 17.

Ld. Defence counsel submits that the said amount recovered was in denomination of Pounds Sterling 2,500 which was deposited by Mr. Ram Chetlani with A2 as she was looking after the stores of Kimaya from where Mr. Ram Chetlani had ordered some goods including a lehenga and a dress. As the store was not authorized to accept foreign exchange in cash, it was suggested by Mr. Ram Chetlani who was acquainted to A2 that he would replace the foreign currency with Indian currency at the time of his visit for collection of the goods. This fact is borne out from Ex. PW 76/DN and corroborated by testimony of DW2 Mr. Kewal Krishan. However, despite the above fact having been known to the I.O. he suppressed this important information from the sanctioning authority as well as this Hon'ble Court with a view to make a sensational case for recovery of foreign currency from the accused. Even otherwise as per the prevalent law of the land there is no bar in keeping 2500 pounds especially when the accused are well travelled and CC No. 17/13 Page No. 84 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 no declaration is required for foreign currency upto USD 10,000. It is submitted that the I.O. suppressed this fact, evidence, document and information from this Court for obvious reasons. The allegation of the prosecution that the DW2 has shown only his current Icard hence he should not be believed is belied by the affidavit of Mr. Ram Chetlani and the cross examination of DW2 para 1 wherein he has categorically stated " the previous identity cards issued earlier are also lying with me at my residence." If the prosecution had any qualms about the deposition of the said witness he could have put the witness to notice to bring the previous icards. Having not done so the prosecution does not have a right to make an obtuse statement to the affect that the said DW2 was not employed with M/s Kimaya in the year 2006 and a mere suggestion to the contrary does not absolve the prosecution from the onus of disproving the statement of the said witness.

My view It is clearly cock and bull story woven by DW2 Kewal Krishan. He is an Accountant at Kimaya Store. It is strange that he does not issue any bill relating to the sale of goods to Mr. Chetlani. Even if, Mr. Chetlani, the buyer of CC No. 17/13 Page No. 85 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 articles from Kimaya Store, did not have Indian currency, no one prevented DW2 to issue a bill in the name of said Mr. Chetlani. I have already reproduced the testimony of DW2 and I have no hesitation to say that version of DW2 is not acceptable. Accordingly, I take full value at Rs.2,13,632/.

TOTAL IMMOVABLE AND MOVABLE ASSETS Rs.5,06,29,254/ Particulars of Income

1. Salary 35,83,926 35,83,926 (Net (actual) amount paid)

2. Final Withdrawal DSOPF 5,62,000 5,62,000

3. Motor Car Advance 20,000 20,000

4. Agriculture Rent and Interest (14/11/1971 to 31/3/86) 1,19,078 12,02,108 __________________________________________________________ Submissions of Ld. Defence Counsel on Item no.4.

a) 1971 to 1975 Ld. Defence Counsel submits that ITRs for this period are not available. Basing on assets at beginning of Check Period i.e. 1,85,000, the income from interest and rent is Rs75,375. In addition, agriculture income was paid by the tenant to parents of A1. This fact is borne out from the affidavit Ex. PW 76/DA (appendix K to Ex. 76/DA) wherein the income CC No. 17/13 Page No. 86 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 from agriculture has been specified and no denial has been affected to the said deposition. The fact remains that this document was submitted to the I.O. at the time of investigation on 14.09.2008 but with a predetermined mind even though the said evidence was available with the I.O. but he did not think it necessary to cite the said tenant as witness or to examine him to bring the truthfulness of the agriculture income. This aspect squarely highlights the cursory in investigation with a pick and choose policy adopted by the investigating agency. The same is also stated in the Affidavit of Mother dated 280312 at Ex. PW76/DM1 and Father's Will dt. 12.08.2000 at Ex. PW 76/DN (colly). DW4 has confirmed the agriculture income. The quantum of income from the agriculture land is also concurred by the Tehsildar Panipat at Ex. D3. Thus, the agriculture income for this period as per the affidavit is Rs1,58,334. Moreover, the evidence of DW4 who is a farmer by vocation and has been tilling the land since 1971 has stated that the agricultural income for the respective years varied from Rs. 3,500 per acre per year in the year 1971 to Rs 30,000 per acre per year in the year 1999 CC No. 17/13 Page No. 87 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 and the fact that he had been overseeing the agriculture growth on the land of A1 is also significant. He has specifically mentioned the land owned by the accused A 1 and the name of the tenant Surjit whose affidavit is already on record though the prosecution has tried to bely his deposition but the testimony of the said witness has been emphatic and undeterred. The prosecution has come with a novel theory of agreeing to only the declared income by the accused in the income tax returns but has floundered on the fact that there are set norms of income from agriculture accepted by the income tax department which are based upon the area of cultivation and the quantum of land. By propagating that it would agree to the income declared by the accused in the income tax returns would be a misnomer in as much as the said income had been verbatim stated by the said tenant and advocated by DW4 particularly when it is seen in the light of the will of the father of the accused A1 dt. 12.08.2000, Ex. PW76/DN(colly) and the evidence of PW61 which stands unrebutted. The endorsement in the certification of the Tehsildar which is Ex. D3 is significant and stands unrebutted it being CC No. 17/13 Page No. 88 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 from the records of the revenue authorities and in sync with the deposition of other witnesses.

b) 19761986 Ld. Defence counsel submits that as per ITRs, interest and rent income is Rs 93,399. In addition, agriculture income was paid by the tenant to parents of A1. The tenant has stated this fact in an Affidavit given to I.O. during the investigation and part of Ex. PW 76/DA (appendix K to Ex. 76/DA). The same is also stated in the Affidavit of Mother dated 280312 at Ex. PW76/DM1 and Father's Will dt. 12.08.2000 at Ex. PW 76/DN (colly). DW4 has confirmed the agriculture income. The quantum of income from the agriculture land is also concurred by the Tehsildar Panipat at Ex. D

3. Thus, the agriculture income for this period as per the affidavit is Rs 8,75,000. The facts stated in the foregoing para may also be read and are not being repeated here for the purposes of brevity.

My view Ld. Defence counsel has relied upon the affidavit of A1's mother Ex.PW76/DM1 and father's Will dated 12.08.2000, Ex.PW76/DN. Ld. Defence Counsel has relied CC No. 17/13 Page No. 89 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 upon an affidavit Ex.PW76/DA of the tenant Sukhbir. Further, Ld. Defence Counsel has sought to prove the quantum of income from the agricultural land through a certificate of Tehsildar, Panipat at D3.

I have considered all these submissions. I may like to mention here that the said Sukhbir, who was the tenant on the agricultural land of A1, has not been examined in defence. A1 has filed a certificate of Tehsildar, Panipat. This certificate has been written on an application written by A1 to Tehsildar, Panipat in which A1 has given the details of the land under his ownership. A1 mentioned in this letter that he sold the land in 2000 and 2001 and also mentioned that he was cultivating this land (approximately 8 acres) and was earning following income from it :

1971, 1972, 1973 - Rs.29,000/ p.a. 1974, 1975, 1976 - Rs.52,000/p.a. 1977, 1978, 1979 - Rs.68,000/ p.a. 1980, 1980, 1982 - Rs.87,000/ p.a. 1983, 1984, 1985 - Rs.97,500/ p.a. 1986, 1987, 1988 - Rs.1,12,500/ p.a. 1989, 1990, 1991 - Rs.1,34,000/ p.a. 1992, 1993, 1994 - Rs.1,49,000/ p.a. CC No. 17/13 Page No. 90 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 1995, 1996, 1997 - Rs.1,62,500/ p.a. 1998, 199 Rs.1,77,000/ p.a. In this application he has prayed that an income certificate may be issued. Below this application, there is a certificate that "Prarthi ki mutabik shapath patra anusar varshik aaye 1,77,000 rupay sahi hai. Report paish hai." I may mention that the word "sahi" i.e "correct" appears to be an interpolation. Even if this certificate is not interpolated, it is clear from the language that it has been issued on the basis of the application and not on the basis of actual income. I may mention here that A1 has not examined Tehsildar as a defence witness and therefore, the certificate in question is of no value.

Similarly, the tenant Sukhbir has not been examined in defence and therefore, the affidavit of Sukhbir cannot be accepted. So far as the testimony of DW4 is concerned, I would say that he claims himself to be an agriculturist and he testifies that land of A1 was given on contract for three years to one Surjit and annual income per acre was around Rs.3000/ to Rs.3500/ per acre and that the income had increased to Rs.30,000/ acre per annum. He testified that said Surjit used to give money directly to the CC No. 17/13 Page No. 91 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 father of A1. As per his testimony, DW4 is having agricultural land in Panipat itself. He could have brought his own receipts of income from the sale of agriculture produce to prove his version about the income from the agriculture. He has not produced any documentary evidence as to how much he used to earn from the agricultural income. Therefore, I am not inclined to accept his testimony. Now I would like to refer to the documents on which the prosecution is relying. The prosecution has relied upon the income tax returns of Anand Kumar Kapur HUF from 198687 to 200102 [D75, Ex.PW61/A (colly)]. Accused has not assailed the correctness of the returns. All these returns show the rent income, interest income, agricultural income, deductions and tax payable. After perusing this file, I am convince that the Investigating Officer has correctly calculated the HUF income at Rs.21,89,538/. I would like to mention here that the grievance that one of the grievance of the defence had been that many files, which were seized by CBI during investigation from A1 had been returned to him without properly analyzing the same and thereby material evidence, which favoured the accused has not been considered. Therefore, when PW61 CC No. 17/13 Page No. 92 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 was being cross examined, the accused put the entire file MR629/2007 (Ex.PW61/DF) to the witness, who admitted that he had filed the aforesaid returns to Income Tax Department. Perusal of this file show that at page 211, there is an affidavit of Sh. Milkhi Ram Kapur dated 18.7.1985 in which it is stated that the agricultural land situated at Patti Rajputan has been leased to him at Rs.3000/ for the year 198485 and at Rs.3000/ for the year 198586. Similarly, there is another affidavit dated 1.12.1987 at page 215 of Sh. Milkhi Ram Kapur stating that "agricultural land measuring 7 acres situated at Patti Rajputan, Panipat owned by Major Anand Kumar Kapur was on lease with him at the annual rent of Rs.4000/ in the year 198687. The wealth tax returns filed by A1 of the year 198788 at page 167 of D75 of file PW61/A also shows the agricultural income to be Rs.4000/. Therefore, the calculation of the income of HUF including the agricultural income by the Investigating Officer has been correctly calculated.

Now, I will refer to the property return of A1, filed in the year 1973, which is placed at page 150 of D78 (Ex.P31). It mentions the income of Rs.1,000/ from each of the agricultural land per annum and an income of Rs.310/ CC No. 17/13 Page No. 93 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 from the property at Lohgarh, Amritsar. It means that earnings from the aforesaid properties was Rs.2,310/ per year. The Investigating Officer has calculated income from 1971 to 1974. Thereafter, he has relied upon the income tax returns filed by A1 through PW61. However, these income tax returns (placed in D76) are not proved, though, it was seized by the Investigating Officer. Defence has also neither admitted this document nor has taken any benefit from it. Since after 1976, A1 has not shown agricultural income in his property returns to his department nor the income tax returns in D76 have been proved by any party, one way to appreciate evidence would be to presume that A1 had no agricultural income after 1976. But that would not be a good approach. There has to be some agricultural income of A1. Therefore, I would like to leave it aside and see as to how had income from agriculture has been shown by A1 in his property returns after 1973. I have already stated that income of A1 from rent and agriculture was Rs.2310/ in 1973.

The returns filed by him dated 28.09.1976 shows agricultural income @ Rs.1,500/ + Rs.1,000/ + Rs.310/ = Rs.2,810/.

CC No. 17/13 Page No. 94 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Thus it shows that in 5 years income from agricultural and rent increased by a small fraction of Rs.500/. In view of above trend, I take the income from agricultural and rent to be around Rs.3500/ in 1986. Similarly, interest on the fixed deposit of Rs.21,700/ and NSCs of Rs.20,000 in the year 1971 had been calculated by Investigating Officer to be Rs.77.003/. This has been calculated from the income tax returns filed by A1 in D76, which has not been proved. However, it can be fairly accepted that roughly this calculation is correct. I have already discussed above regarding the agricultural income, which is supported by the documentary evidence. On the other hand, the defence is relying upon the testimony of DW4, who has given a vague evidence without bringing on record any documentary evidence as to what was being produced in the farms of A1 and what is the value of agricultural produce. In such a situation, I would like to see D76 to ascertain as to whether my assessment of the income as above is correct or not. Interestingly, the income tax returns of the year 1986, do not help the accused in any manner. Therefore, I accept the value of agricultural income, rent and interest at Rs.1,19,078/.

CC No. 17/13 Page No. 95 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 _______________________________________________________

5. HUF income (198687 to 200102) 21,89,538 36,48,927 __________________________________________________________ Submissions of Ld. Defence Counsel on Item No.5.

It is submitted by ld. Defence Counsel that agriculture income was paid by the tenant to parents of A1. The tenant has stated this fact in an Affidavit given to I.O. during the investigation and part of Ex. PW76/DA (appendix K to Ex. 76/DA). The same is also stated in the Affidavit of Mother dated 280312 at Ex. PW76/DM1 and Father's Will dt. 12.08.2000 at Ex. PW 76/DN (colly). DW4 has confirmed the agriculture income. The quantum of income from the agriculture land is also concurred by the Tehsildar Panipat at Ex. D3. PW61 has stated that the declared agriculture income is less than what it should be considering the size of land. Thus, the extra agriculture income for this period as per the affidavit is Rs 12,59,000.

The HUF income includes income from rent, agriculture, interest, dividend, etc. As regards the income from rent is concerned or income from interest accrued on a year to year basis, the accounting pattern for deduction available under the income tax act are well defined. This fact CC No. 17/13 Page No. 96 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 is further corroborated by the evidence of PW61 KC Aneja whose deposition in cross examination on page 4 and 5 of cross dated 19.04.2016 is significant. In as much as for purposes of elucidation it is clarified that 1/6 th of rent was deducted for repairs for tax purposes only. PW 61 confirmed that it was not an actual expenditure but a tax benefit only. Therefore, Rs 1,40,000 is added on this account being part of income.

My view I have already discussed the agricultural and rent income upto 1986 in discussion of item no. 4. Now, I take up the HUF income, which is contained in the file D75 [Ex.PW61/A (Colly.)]. In these income tax returns, 1/6th of the income was deducted for repairs of the flat etc. Ld. Defence counsel is relying upon the testimony of PW61 that it is not an actual expenditure but only a tax benefit. I have considered this testimony and I am of the opinion that this deduction is done because after all, immovable property requires repairs,etc. from time to time and it is reasonable to believe that atleast 1/6th of the income is spent on repairs etc. of the property. Hence, I am not inclined to accept that it is not an actual expenditure. I have perused the balance CC No. 17/13 Page No. 97 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 sheets filed by A1 and I am not inclined to leave 1/6th deduction aside. Accordingly, I accept the HUF income to be Rs.21,89,538/.

_____________________________________________________________

6. Lease Rent Unitech 18,07,182 24,31,734 _____________________________________________________________ Submissions of Ld. Defence Counsel on item no. 6 Ld. Defence counsel submits that PW 60 stated that rent details given by him at D63 Ex. PW 60/G (colly) is upto 310307. But as per the document submitted by him the rent details are only upto 310506. Rent thereafter was paid directly by the tenant, M/s Keane India who were not contacted by the I.O. Details taken from ITRs at D28, Ex, P 6 ( P.179) D29, Ex. P7 ( P.328) and D168, Ex. P51 shows receipt of rent of Rs 6,24,552 for the period 01606 to 309 07 from M/s Keane India for this property. PW 76 could not explain reasons for not taking rent for full period.

My view It is true that PW60 has proved the rent details only upto 31.5.2006 and it is due to typographical mistake in the statement Ex.PW60/G (colly), which shows that the rent CC No. 17/13 Page No. 98 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 details are upto 31.3.2007. However, the Investigating Officer has calculated the rent after 31.5.2006 which was paid by M/s Kean India directly to the accounts of A1 and A

2. It is argued that if the statement of accounts of HDFC Bank are seen, the calculation by Investigating Officer in the charge sheet will be found to be correct.

As per Ex.PW60/G (colly), the total rent income of A1 and A2 is Rs.13,47,240/ upto 31.5.2006.

I may point out that at page no. 179 of file D28 (Ex.P6), a certificate i.e. Form No. 16A, under Section 203 of Income Tax Act 1961 filed by Keane India Ltd. shows that they had paid to A2 the rent from 21.6.2006 to 1.3.2007. If it is totaled, it comes out to be Rs.1,60,174/ after deducting TDS.

At page no. 328 of file D29 (Ex.P7), a certificate i.e. Form No. 16A, under Section 203 of Income Tax Act 1961 filed by Keane India Ltd. shows that they had paid to A 1 the rent from 21.6.2006 to 1.3.2007. If it is totaled, it comes out to be Rs.1,60,174/ after deducting TDS.

Thus the rent paid by M/s Keane India to A1 and A2 as calculated from the aforesaid Form No.16A comes out to be Rs.3,20,348/ from the period June 2006 to March CC No. 17/13 Page No. 99 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 2007.

I have perused the statement of account no. 0921000040375 of Ms. Mridula Kapur D35 (Ex.P8) and the statement of account no. 0921000049641 D36 (Ex.P9), both maintained in HDFC Bank, Defence Colony. Both the accounts show the entries of receiving the amounts every month from M/s Keane India Ltd. I have calculated the said amount till 11.9.2007 and find that in the bank account of A 1, an amount of Rs.99,305/ has been received from 6.4.2007, 20.4.2007, 31.5.2007, 11.7.2007, 9.8.2007 and 11.9.2007. Similarly the bank account of A2 has received total amount of Rs.1,05,311/ on the aforesaid dates.

The total i.e. Rs.13,47,240/ + Rs.3,20,348/ + Rs.1,05,311/ + Rs.99,305/ comes out to be Rs.18,72,204/.

Ld. Defence Counsel has referred to D168, Ex.P 51 and submits that this income has not been taken into account. Ex.P51 is income tax returns filed by A2, which shows the annual rental of Rs.2,51,352/. But it must be kept in mind that this income tax returns is for the period 1.4.2007 to 31.3.2008 and therefore it includes the rental income beyond the check period, which is upto 10.10.2007.

CC No. 17/13 Page No. 100 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 In view of above discussions, I accept the rental income of A1 and A2 to be Rs.18,72,204/. _____________________________________________________________

7. Scholarship Dhruv 50,000 50,000

8. Profit Plot 144/2, Panchkula 12,85,000 12,85,000

9. Dividend Kotak (MF) 7,929 7,929

10. Dividend Deutsche (MF) 932 932

11. Dividend Franklin (MF) 76,774 76,774

12. Dividend IDFC (MF) 7,876 57,876 ___________________________________________________________ Submissions of Ld. Defence Counsel on item No. 12 The investment of Rs 1 lakh in 2003 and redemption of Rs 1,07,876 is stated by PW 9 and PW 59. PW 59 stated that dividend details from 2003 to 2008 are not available. Taking a conservative 10% annual income the amount would reasonably be Rs 50,000 plus Rs 7876 at time of redemption.

My view Since the amount is very small, I accept the CC No. 17/13 Page No. 101 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 submissions of Ld. Defence Counsel.

____________________________________________________________

13. Dividend HSBC(MF) 31,478 31,478

14. Dividend NTPC 1,768 1,768

15. Rental B111 Ansal Plaza 37,89,765 37,89,765

16. Profit Plot V12/1, DLF 3. 9,90,492 9,90,492

17. Profit Flat 1323, Noida 9,28,988 9,28,988

18. Sale Ancestral Land 51,43,500 51,43,500

19. Interest SB A/CS HDFC Bank, Defence Colony New Delhi 12,46,603 16,53,686 ____________________________________________________________ Submissions of Ld. Defence Counsel on item No. 19 It is argued that basis of IO's calculation not provided. Amount is now taken from ITRs at D28 Ex. P6, D29 Ex. P7 and D168 Ex.P51 for the period FY 200203 to 30907.

My view I find that that the interest income has been calculated by Investigating Officer from the statement of accounts provided by the HDFC Bank, which are Ex.P9 of A 1, Ex.P8 of A2, Ex.P11 of Master Dhruv Kapur and Ex.P87 of Dilkash Kapur.

The statement of account of A1 (Ex.P9) shows that if the amounts credited in the account as interest by the CC No. 17/13 Page No. 102 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 bank from 6.8.2000 till 10.10.2007 are calculated, the total comes to Rs.10,48,705/.

The statement of account of A2 (Ex.P8) shows that if the amounts credited in the account as interest by the bank from 6.8.2000 till 10.10.2007 are calculated, the total comes to Rs.1,44,129/.

The statement of account of Master Dhruv Kapur (Ex.P11) shows that if the amounts credited in the account as interest by the bank from 6.8.2000 till 10.10.2007 are calculated, the total comes to Rs.16,478/.

The statement of account of Dilkash Kapur (Ex.P

87) shows that if the amounts credited in the account as interest by the bank from 1.12.2001 till 10.10.2007 are calculated, the total comes to Rs.37,289/.

Total amount comes to Rs.12,46,601/. Since the statement of account is the best evidence, I take the same instead of the ITR filed by the accused persons. ______________________________________________________________

20. Interest Dhruv's a/c SC bank 163 163

21. Interest ICICI Def Col SB a/c 16,813 16,813

22. Interest PNB SB a/c 33,152 1,76,634 ______________________________________________________________ CC No. 17/13 Page No. 103 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Submissions of Ld. Defence Counsel on item no. 22 Rs.33,152 is the interest on savings a/c only. In addition, there is interest of Rs 1,15,393 from FDRs in PNB at pages 28,29,30,78,79,127 of Ex P6 (D28). See also PW

76. In addition, Rs 28089 is earned as interest on FDR (MMDC) at PW 26/H ( D124).

My view I have perused the file Ex.PW61/A (D75), which is income tax returns of A. K. Kapur HUF. It duly shows the interest income from MMDC. Similarly, the income tax returns from 1.4.1999 to 31.3.2000 Ex.PW61/DF1 also shows the incomes from the FDRs from MMDC of PNB and PNB which is taken in account by Investigating Officer. It appears that this file was inadvertently returned to the accused by Investigating Officer. However, it does not make any difference because once the calculation of the aforesaid FDRs has been taken in account in calculation of income of the HUF, it does not matter as to in whose possession the file is lying. Therefore, the Investigating Officer has rightly taken the value of interest on savings in PNB at Rs.33,152/.

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CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 ______________________________________________________________

23. Interest PPF a/c Panipat 4,75,000 4,75,000

24. Interest PPF a/c SBI N.Delhi 35,078 35,078

25. Security Deposit HDFC Bank 7,50,000 7,50,000

26. Rental Def Col property 37,97,919 46,20,092 ______________________________________________________________ Submissions of Ld. Defence Counsel on item no. 26 It is argued by Ld. Defence counsel that the rental for the above said property is reflected in Ex. PW 76/V(D127), however, the prosecution has come up with an anonymous figure of Rs. 37,97,919 though D127 reflects only a figure of Rs 12,09,662 which is the rent for a period April' 06 to sept'07 only and has ignored the rental of the property from 15.7.01 till Sept'07 which comes to Rs 46,20,092 and is borne out from the testimony of PW11 Mr. Mohit Goyal who has proved Ex. PW11/DA(colly) wherein the total rent has been enumerated by the said witness for the period April'02 to March'06. However, the rent for the period from 15.07.2001 to 31.03.2002 amounting to Rs. 4,89,515 was missing/ignored even though the tenancy is admitted to have started from 15.07.01 as per the rent deed Ex. P12(D39). Thus, the cumulative total which evolves from CC No. 17/13 Page No. 105 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 these documents is:

a) Ex. PW76/V (01406 to 30907) 12,09,662

b) Ex PW11/DA (colly) 01402 to 310306 29,29,915

c) Rent for the period (15.07.01 to 31.03.02 4,89,515 Based upon the rent from april'02) Total 46,20,092 It is submitted by Ld. Defence Counsel that this deficiency in rent receipt by the accused reflects highly on the investigation by the I.O. who has failed in his duty due to rush against time as no credence had been given to the explanations afforded by the accused during the course of investigation resulting into malfeasance and an incorrect chargesheet.

My view I agree that as per PW11/DA, the total rent is Rs.29,29,915/ from 1.4.2002 to 31.3.2006. However, the Investigating Officer had deducted the expenses for repairs, which were shown by A1 in his income tax returns. I refer to income tax returns for the assessment year 200304, placed at page no.39 of file D29, Ex.P7 (colly). In this income tax returns, a deduction under Section 24A of CC No. 17/13 Page No. 106 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Income Tax Act is claimed to be Rs.1,46,703/. Therefore, the Investigating Officer had deducted it from the rental value and the final amount comes out to be Rs.6,69,297/.

Similarly, in the income tax returns for the assessment year 200405, an amount of Rs.2,32,715/ was deducted from the rental value of Rs.8,16,000/.

In income tax returns of the assessment year 200506, a deduction of Rs.2,46,663/ was made towards repairs from rental value of Rs.9,03,522/.

In income tax returns of the assessment year 200607, a deduction of Rs.2,59,545/ was made towards repairs from rental value of Rs.9,38,400/.

Accordingly, I am of the opinion that out of the rental income, the aforesaid amounts on repairs of the house are required to be deducted, in order to assess the true rental income received by A1. The total of these deductions come out to Rs.8,85,626/. A1 has claimed his rental income from his property to be Rs.46,20,092/. If an amount of Rs.8,85,626/ is deducted, the net rental income comes out to be Rs.37,34,466/. The Investigating Officer has already taken a higher value of Rs.37,97,919/ by mistake in calculation.

CC No. 17/13 Page No. 107 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 I, therefore, fix the rental value at Rs.37,34,466/.

______________________________________________________________

27. Rental Vatika Property 11,54,072 11,54,072

28. Withdrawal MIS a/c 95,000 95,000

29. Maturity LIC Policies 5,89,446 7,01,946 _____________________________________________________________ Submissions of Ld. Defence Counsel on item no. 29 It is submitted that the LIC policy on its maturity had a redemption of pension value of Rs 2,500 per month from Dec'03 to Oct'08 and this fact is borne out from the testimony of PW38 Mr. Suresh Kumar Saini and the same stood declared in the ITR's Ex. P7(D29). Totaling an amount of Rs 1,12,500 upto Sept'07.

My view Ld. Senior Public Prosecutor admits this plea and accordingly, I accept the submissions of Ld. Senior Public Prosecutor and accept the value at Rs.7,01,946/. _____________________________________________________________

30. Rental Noida Property 20022004 95,000 95,000

31. Rental 102A LSC Munirka 47,51,068 47,51,068 CC No. 17/13 Page No. 108 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

32. Income Mridula Computer Coaching 42,000 7,24,120 ______________________________________________________________ Submissions of Ld. Defence Counsel on item no. 32 It is submitted by Ld. Defence counsel that A2 had filed the returns reflecting her income and expenditure status for the respective years of 19982003. The investigating officer did not accept the income reflected in the returns which were duly accepted by the ITO for the years 19992000, 20002001,20012002, 20022003 and accepted only the income for the year 19981999 Ex PW 61/D. In this regard, the financial returns which form part of D77 were shown to the PW61 who confirmed the respective incomes as admitted by the income tax by way of returns from 19992002 for the amounts of Rs. 56,000, Rs. 82,120, Rs. 40,000 respectively and the same were duly exhibited as mentioned in the statement of PW61. As regards the income for the financial year 20022003 is concerned the accused A 2 had shown an expenditure of Rs 3,40,000 under the heading of maintenance of generator and a final income of Rs. 1,94,000. However, the ITO had disallowed the expenditure of Rs 3,40,000 as such the income for the said year was increased by Rs. 3,10,000. Thus, the total income which was ignored by the IO in the present case of the A2 CC No. 17/13 Page No. 109 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 comes to Rs. 82,120+ Rs. 40,000 + Rs. 56,000 + 3,10,000 + Rs. 1,94,000(i.e. the declared income plus the disallowed expenditure) totaling thereby to an amount of Rs 7,24,120/ (Seven Lakh Twenty Four Thousand One Hundred and Twenty Only). This was a serous anomaly in the investigation which was done in an hush hush manner without examining proper documents and verification of the same from the income tax office as a result of which, a faulty chargesheet was filed. It may not be out of place to mention that as the documents were on record of the case, suppression of such material information has been vital to the case of the A2 and on this ground itself the entire prosecution is vitiated.

My view I find that except the year 199899 Ex.PW16/D, there is no income of A2 from any coaching. Therefore, no other income except Ex.PW16/D has been taken.

I have perused the statement of PW61 Kailash Chand Aneja, who has stated that as per Ex.PW61/DA, the income of A2 from computer coaching was Rs.56,000/ for the assessment year 200001 and Rs.78,040/ for the year 200102 as per Ex.PW61/DB. Therefore, I accept the income of A2 from computer coaching to be Rs.42,000/ + CC No. 17/13 Page No. 110 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Rs.56,000/ + Rs.78,040/. Total Rs.1,76,040/.

I do not find any mention of income from computer coaching from income tax returns from the year 2001 onwards. In this file, there is a document Ex.PW61/DE, which is a certificate issued by father of A2, which mentions that he had deposited an amount of Rs.40,000/ with M/s Tata Finance ltd. (FDR No. 40494) in the name of A2 and on expiry of the fixed deposit on 11.1.2002, the amount had been paid to his daughter. Although, this is not an income from coaching, I also add the same. Hence, total amount comes out to be Rs.2,16,040/.

______________________________________________________________

33. Income Mridula Contract Services 27,47,526 45,32,356 ______________________________________________________________ Submissions of Ld. Defence Counsel on item no. 33 Ld. Defence counsels submits that the income for the above said property is reflected in Ex. PW76/V(D127). However, the prosecution has come up with an anonymous figure of Rs. 27,47,526 though D127 reflects only a figure of Rs 12,05,273 which is the income for a period April' 06 to sept'07 only and has ignored the income of the property from CC No. 17/13 Page No. 111 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 15.7.01 till Sept'07 which comes to Rs 45,32,356 and is borne out from the testimony of PW11 Mr. Mohit Goyal who has proved Ex. PW11/DA(colly) wherein the total income has been enumerated by the said witness for the period April'02 to March'06. However, the income for the period from 15.07.2001 to 31.03.2002 amounting to Rs. 4,74,614 was missing/Ignored even though the tenancy is admitted to have started from 15.07.01 as per the rent deed Ex. P12(D39). Thus, the cumulative total which evolves from these documents is:

a) Ex. PW76/V ( 01406 to 30907) 12,05,273

b) Ex PW11/DA (colly) 01402 to 31306 28,52,469

c) Income for the period (15.07.01 to 31.03.02 4,74,614 Based upon the rent from april'02) Total 45,32,356 Ld. Defence counsel has drawn my attention to expenditure incurred by her for providing the services has been accounted for at serial no. 5 of Expenditure statement as " Maintenance D23 Def Col".

My view I refer to the income tax returns for the CC No. 17/13 Page No. 112 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 assessment year 200203, which is Ex.PW61/C (page 30 of D77) under the head of PROFESSIONAL income of Rs.4,89,097/, an amount of Rs.3,40,000/ had been deducted on expenditure on providing maintenance services and running of computer and thus the net professional income comes out to be Rs.1,49,097/. The same has been calculated and has not been ignored. It appears that accused has by mistake written the income to be Rs.7,74,614/ in fact it should have been Rs.4,89,097/. But after deducting the expenditure the net income comes out to be Rs.1,49,097/.

I agree with Ld. Defence Counsel that total income for a period from 15.7.2001 till September 2007 comes out to be Rs.45,32,356/. But from this amount, the deduction claimed by A2 herself in income tax returns towards the maintenance of generator providing power backup to the bank to which the premises was let out has to be deducted. If we see the income tax returns placed in D28 (Ex.P6), the net income after deduction of the amounts for providing maintenance and running of the generator claimed by A2 are as under :

         Assessment years                          Net Income shown

1.       200203                           Rs.1,49,097/ (page 30 of D77)
2.       200304                           Rs.3,12,078/ (page 57 of Ex.P6)

CC No. 17/13                                                    Page No. 113 of 145
 CBI Vs. Maj. Gen. Anand Kumar Kapur etc.   Judgement               dated : 27.09.2016


3.       200405                           Rs.3,58,397/ (page 84 of Ex.P6)
4.       200506                           Rs.3,86,452/ (page 128 of Ex.P6)
5.       200607                           Rs.5,12,794/ (page 164 of Ex.P6)
6.       200708                           Rs.6,16,493/ (page 206 of Ex.P6)

Since, the check period is upto 10.10.2007, we have to calculate the rental income for the assessment year 200809 for six months only. I roughly take the income for this assessment year to be Rs.3,80,000/. Therefore, the total income from this property comes out to be Rs.27,15,311/. However, since the Investigating Officer had already taken a higher value in the charge sheet to be Rs.27,47,526/, I accept the same.

_____________________________________________________________

34. Income Mridula Kimaya Fashion 5,27,000 5,27,000

35. Interest IDBI bonds 62,540 62,540

36. Interest RBI bonds 1,91,100 1,91,100

37. Profit Plot K8 Jangpura 6,00,000 6,00,000

38. Profit Office Flat Thapar Chamber 7,380 7,380

39. Profit Assandh Road Panipat 81,000 1,41,368 ____________________________________________________________ Submission of Ld. Defence Counsel on item no. 39 It is argued by Ld. Defence counsel that this property was purchased for Rs 3.75 Lakhs as per D72(p. 46,47) and sold in five parts for total Rs 5,16,368 at Ex. PW 13/A (D94), Ex. PW 14/A ( D96), Ex. PW 15/A ( D98), CC No. 17/13 Page No. 114 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Ex. PW 18/A ( D100), Ex. PW 19/A ( D102). Thus the profit which was not considered was to the tune of Rs. 1,41,368 against the profit shown by the IO of Rs. 81,000.

My view I refer to the wealth tax returns for 199293 (D 75, page 107 of Ex.PW61/A) in which accused has mentioned the value of this property at Rs.4,35,000/. This property was purchased for a sum of Rs.3,75,000/ (D72, page 46, 47) and after including a sum of Rs.60,000/ towards stamp duty etc., it can be said that it was purchased for Rs.4,35,000/ as shown in the aforesaid wealth tax returns.

The wealth tax return has mentioned the value of the property at Rs.4,35,000/. But there can be some mistake also and unless there is some documentary evidence of separate payment of stamp duty etc., I am not inclined to accept the submissions of Ld. Senior Public Prosecutor. Accordingly, I accept the value of the property as Rs.3,75,000/ and the profit from the sale of the property to be Rs.1,41,368/.

______________________________________________________________

40. Income Birthday Gifts 17,165 77,165 ______________________________________________________________ CC No. 17/13 Page No. 115 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Submissions of Ld. Defence Counsel on item no. 40 It is argued by Ld. Defence counsel that Rs. 30,000 each was deposited from this income in savings a/c of Dhruv Kapur and Dilkash Kapur at Ex. P11 ( D38) and Ex. P87 ( D234).The above figures construe gifts to the children of the accused but were not considered by the IO. The suggestion on this aspect was refuted by the IO as stated by him on page 9, last question of his crossexamination dated 30.08.2016 wherein it was suggested that he wrongly ignored the entries therefor.

My view The amount is quite small and therefore, I accept the submissions of Ld. Defence Counsel. Accordingly, the same is accepted at Rs.77,165/.

______________________________________________________________

41. Security Deposit IDFC 6,50,000 6,50,000

42. Income Tax Free Bonds 7,600 7,600

43. Income UTI investments 72,800 1,80,432 ______________________________________________________________ Submissions of Ld. Defence Counsel on item no. 43 Ld. defence counsel submits that the IO had placed reliance for the above amount of Rs. 72,800 based upon the dividend accrued to the accused from the years CC No. 17/13 Page No. 116 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 20042007 only as per Ex. PW45/B and Ex. PW45/C. However, the accused had received a mail Ex. PW76/DP which was reflecting the dividend earned from the year 19962003. Since the master shares were purchased in the year 1986, but the records for the same are not available due to passage of time. The differential dividend for the period 19962003 as per Ex. PW76/DP works out to Rs. 1,08,432. The fact remains that due to the exemplary long check period the records of the previous years were not available otherwise the differential would have been higher by another Rs. 1,00,000 and the accused leaves it to the discretion of this Hon'ble Court to add the same towards dividend earned.

My view I have already discussed that the income of HUF has been calculated on the basis of the income tax returns of HUF by A1. Perusal of the income tax returns file of HUF, which is Ex.PW61/A (colly) (D75) shows that in the income tax returns assessment year 199899, accused has claimed income/dividends of UTI units amount to Rs.15,840/. However, the same is the situation of other income tax returns of HUF. Though, it appears that the said benefit has been given in HUF income but still with a view to avoid CC No. 17/13 Page No. 117 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 checking of each income tax returns and in view of a very small amount claimed, I accept the claim of the accused amounting to Rs.1,80,432/.

______________________________________________________________ Income not included in Charge Sheet It is argued by ld. Defence counsel that the IO did not include the under mentioned incomes in the chargesheet due to lack of understanding, and/or motivated vested interest. It is further submitted that all the supporting documents in this regard are on record and the IO had placed certain documents in the unrelied documents in the file without even appreciating the evidence therein and certain documents which were on record also had been ignored/suppressed while submitting the chargesheet before this Court only to propagate a sensational case against the accused so that he does not get the elevation to the rank of Lt. Gen. It is further submitted by Ld. Defence counsel that the IO has been confronted with several documents in this regard and except stating that he does not remember or it escaped his attention, there has been no plausible reasoning for ignoring the said documents with regard to income not included in the chargesheet.

CC No. 17/13 Page No. 118 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 I take the submissions of Ld. Defence counsel one by one :

1. Additional Security Deposit Ansal Plaza property 1,22,265 Note: Amount received from M/S Sports & Leisure in addition to deposit adjusted in price at time of rent escalation, PW16, Ex PW 16A(D87).

My view The correct amount is Rs.1,02,960/ as reflected in D 84 (Ex.P33), which is a statement of payment made by M/s Sports and Leisure Apparel Ltd. to A1. Accordingly, I accept the income of Rs.1,02,960/.

2. Security Deposit Unitech property 1,47,516 Note: Paid by M/S Unitech as security deposit and advance rent. Ex. PW60/G (colly) (D63).

My view I accept the same.

3. Security Deposit Vatika property 94,500 Note: Paid by M/S Vatika by Ch. No. 245511 and 245512 dt 20/09/2006 in name of Anand and Mridula respectively. PW 34. Ex PW34/C and Ex PW34/D. My view I accept the same.

4. Addl Security Deposit Capital Court property 2,32,224 Note: Amount paid by the tenant M/S Ernst and Young in 2006 CC No. 17/13 Page No. 119 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 after the purchase at time of rent escalation. PW 20, Ex. PW20/B, PW 30, PW 47.

My view I accept the same.

5. Loan Maj A Ganesan 3,50,000 Note: Friendly Loan taken by A1 shown in Bank Statement Ex. P9 (D36).Ch No. 0067545 dt 10/01/2007.

PW 41, Ex. PW41/DC also confirm. . DW3 has stated this and placed his bank statement at Ex. DW3/1.

My view I have perused the testimony of DW3 Maj. A. Ganesan, but I am not convinced as to for what purpose he had given loan of Rs.3.5 lacs to A1 in the month of January 2007. I am not inclined to accept this plea and the explanation is not satisfactory.

6. Loan Smt L Maira 10,00,000 Note: Friendly Loan taken by A2 shown in Bank Statement at Ex. P 8 (D35). Ch. No. 488037 dt 26/10/2005 for 5.00 L and Ch. No. 488042 dt 06/12/05 for 5.00 L of ING Vysya Bank Panchsheel. PW 41, Ex. PW41/DD also confirm. DW 4 has stated this and placed her bank statement at Ex. DW4/1.

My view Defence has examined DW4 Hari Maira, who testified that his mother Mrs. Lalti Maira had given a loan of Rs.10 lacs to A2 through two cheques. This is highly CC No. 17/13 Page No. 120 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 suspicious transaction. I am not convinced as to why this huge loan was given by the mother of DW4. The explanation is not satisfactory.

7. Loan Sh. H.N. Maira 3,00,000 Note: Friendly Loan taken by A2 shown in Bank Statement at Ex. P 8 (D35) vide ch no.0806611 dt. 06/07/2006. PW 41, Ex. PW41/DD also confirm DW4 has stated this and placed his bank statement at Ex. DW4/2.

My view No explanation is coming as to for what this loan was given by DW4 to A2. I do not accept this income.

8. Bank transfer from Mother 50,93,082 Note: Ld. Defence counsel submits that the IO failed to take the statement of the mother of the accused and further failed in examining the fact that an amount of Rs. 50,93,082 stood credited from the account of the mother of the accused in the account of the accused and the said statement is Ex. P10(D37) wherein a transfer has been affected to savings account of A1 vide Ex. P9(D36) on 25.10.04. The least that was expected from an investigating agency is to put a question to the accused so as to explain the entry of such a large amount but, the IO failed in and neglected his duty despite having seen the entry but, ignoring the same and suppressing it from this Hon'ble Court. This fact is further corroborated in terms of the affidavit of the mother of the accused i.e. Ex. PW76/DM1. Moreover, the said fact is further reiterated by PW41 who has corroborated the transfer amount from the account of the mother vide Ex. PW41/DC wherein an amount of Rs. 43,93,082 is reflected as payable to Mrs. Santosh Kapur, mother of A1 after taking into account expenditure of Rs. 7 lakhs made by A1 on her behalf and is further elucidated at serial no. 47 of the expenditure details given hereafter.

CC No. 17/13 Page No. 121 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 My view Such huge amounts are coming from the mother of A1 and during trial, A1 had been unable to show as to what were the sources of mother of A1 through which she was getting so much money. No income tax returns nor any bank account of mother of A1 has been shown to this court. The receipt of these amounts are highly suspicious.

9. Dividend from IDFC/HSBC 39,354 Note: Ex. PW76/T (D132) shows this income.

Submissions of Ld. Senior Public Prosecutor Ld. Senior Public Prosecutor submits that it has been shown in column 12 and 13 under the head of particulars of income in the charge sheet.

My view I accept the submissions of Ld. Defence Counsel being a minor amount.

10. NSC maturity 1,73,256 Note: Rs 60,450 received on 16/4/03 at Ex. P9 (D 36), Rs 60,450 on 29122004 (P.13 of Ex. PW 76/DF2 (D68) and Rs 52,356 on 07/4/07 at Ex. P9 (D36).

My view I accept the same.

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CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

11. Income Tax refunds 63,672 Note:

4120. P.28 of Ex. PW 61/DB (D77) 10,942. PW 41 statement 48,610(P.12 & 86 of Ex. PW 61/ DF 2 (D68) My view I accept the same.

12. Income from investments in minor 6,16,631 children a/c declared in ITRs (200307) Note: at D28, Ex. P6.

Income from investment 2,08,631.ITRs at Ex.P6 (D28.) From maturity of MIS a/c - 4,08,000. ITRs at Ex P6 (D28) p. 143 to 158. Amounts credited in Bank Statements EX. P9 D36 and Ex P11 D38 on 16032006), from Post Office MIS A/cs Panipat (Dilkash and Dhruv Rs 2.50,920 each), Rs 2,04,000 each invested by Father of A1.

Supported by Father's Will dt. 12.08.2000 at Ex. PW 76/DN ( colly).

My view Ld. Defence counsel is purely relying upon a suspicious copy of Will of his father and I am not inclined to accept the same.

13. Income Dhruv Kapur FY 0607 55,000 Note: as per his ITRs at Ex. PW 76/DS1 and DS2.

My view I accept the same.

14. Profit from sale of HUDA plot Panipat. 3,00,000 Note: Declared to Army Ex. P 31 (D78, P.141). Plot CC No. 17/13 Page No. 123 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 transferred to Mother who sold it on 27/03/2000 for 3.10 lakhs. 3.00 L profit given back to Son in 2000, shown at Ex. PW 61/B ( page 242 of D68) and same was declared in ITR at P. 310 of D68 (ref cross examination of PW 76).

My view I accept the same.

15. Gift from Mother. 1.00 Lakh Note: At Ex. PW 61/B (D68 , P.242).

My view A1 has not stated as to how her mother is making payment of huge amounts to him and from what source. Accordingly, I reject it an income from known sources.

16. Income from maturity of UTI Raj Lakshmi Scheme. 32,124 Note: Investment in name of Dilkash Kapur invested amount 9975 by Father on 04/02/1993 (Ex. PW 76/DE (colly) P.81 MR

640), Redeemed 30/09/2000, original voucher of redemption at page 84 of Ex. PW 76/DE ( colly) MR 640.

My view I accept the same.

17. Income from UTI Children Gift Growth Scheme ( Dhruv). 14,723 Note: Rs 6500 and 5000 invested respectively by Father and Bhua in 1990 and 1987 respectively (mentioned in original Certificates) , investment was converted by UTI to ARS Bonds in 2004. Interest received till 10/2007 is Rs 14,723. E mails of UTI CC No. 17/13 Page No. 124 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 alongwith original Certs are at Ex. D1 and D2.

My view I accept the same.

18. Gifts from Parents of Mridula. 13,28,500 Note: Rs 10 Lakhs on marriage on 150986. Father's Affidavit at Ex. PW 76/DR, and further corroborated by DW1 statement on page 2 of her examination in chief last para. Rs 40,000 ( PW 61/DE, D77/P.17) on 15042002, Rs 94,000 ( Ex PW 76/DO (colly) and p.128 of Ex. P31. D78, Ex P31), Rs 30,000 ( P.111 of Ex. P31 (D78, Ex. P31) dt 01/12/1997 Rs 50,000 on 05082002 (affidavit) Rs 80,000 ( P.120 of Ex.P31 ( D78, Ex P31) and PW 76/ DO (colly) on 27/6/97 , Rs 34,500 ( P.51, of Ex. P31 (D78) on 30/4/97.

My view The amount of Rs.10 lacs as a marriage gift by father of A2 cannot be accepted. It is hard to believe that such a big amount in the year 1986 was kept in cash by A2. It must have been deposited in some bank. She has not brought on record any evidence to show that she filed any income tax returns in this regard. On the contrary, in her income tax returns already referred to, she does not refer to having amount of Rs.10 lacs as marriage gift. Hence, I am not inclined to rely upon the oral testimony of DW1 and the affidavit of the father.

CC No. 17/13 Page No. 125 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Apart from it, I have already given benefit of Rs.40,000/ reflected in certificate Ex.PW61/DE under the head of income from computer coaching.

However, I give benefit of the remaining amounts i.e. Rs.94,000/ + Rs.30,000/ + Rs.50,000/ + Rs.80,000/ + Rs.34,500/ = Rs.2,88,500/. Simply because the same are less than Rs.One Lakh.

19. Savings of Mridula from Oman 4.00 Lakh Note: The said fact is reaffirmed by the affidavit Ex, PW76/DR submitted before this Hon'ble Court by the father of accused A

2. The deposits made in the name of the accused A2 are on record of the case and same are exhibited as Ex. P.4, 5, Ex. PW/76/ DO (colly), Ex. P.2 of MR 641 Ex.PW76/DF (colly), Ex. P.41, MR 640 Ex.PW76/DF (colly) and Ex. P.39 MR 640 Ex.PW76/DF (colly). This fact further fortifies the contention of A2 that she has been financially independent, has deposits in her name and as such there was no question of her having abetted any kind of an act of acquisition of assets. Even otherwise, she is an income tax and wealth tax assesse and has properties in her name. Thus, the very basis of impleading her as an accused falls to shambles. This fact is further corroborated by the statement of DW1 which may be read in this regard and the same is not being repeated here for the purposes of brevity.

My view She has not brought on record as to or how much time she had worked in Oman. She has not brought on record anything as to in what capacity and what job she was doing. She has not disclosed as to what was her monthly CC No. 17/13 Page No. 126 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 income. Ex.P4 is only a passport, Ex.P5 is copy of passport of Ms. Dilkash Kapur but does not prove any income. Therefore, I am not inclined to accept the said amount.

20. Income from giving possession of Land in Mar 2001 2.14 Lakhs Note: The said fact is corroborated by Ex.PW61/DC, (D77) (PAGE 5) besides being mentioned in Ex.PW76/DM1 i.e. the affidavit of the mother of the accused.

My view I accept the same.

21. Gift from Father to A1. 15,450 Note: For purchase of Noida Flat at Ex.PW76/DF(colly) P.147, MR 640.

My view I accept the same.

22. Interest income Mridula from L&T Finance. 5,580 Note: Ex.PW76/DF(colly) P.141 MR 640.

My view I accept the same.

23. Dividend Mridula from SBI Equity Shares. 500 Note: Ex.PW76/DF(colly) P.139 MR 640.

My view I accept the same.

CC No. 17/13 Page No. 127 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

24. Payments received on Re purchase of Units US 1964 54,395 Note: Numbers 2065, 230, 1000, 1140 , 1000, 925 units ( Total 4435 units) sold for Rs 20,856, Rs 2369, Rs 10,200, Rs 11628, Rs 9342 respectively in Sep to Dec 2001.(P. 1,2,3,4,10, of MR 659, Ex.PW76/DK (colly).

My view I accept the same.

25. Gift from Mother. 4,00,000 Note: Declared to Army on 030898. Ex. P31, P.91, (D78) .

My view Accused has shown it a loan in Ex.P31, page91 of D 78 and not as a gift. Why mother is making a loan or gift of such a huge amount to A1. What is the source of mother of A1 from where she is making payment of such huge amounts has not been shown by A1 to this court. Hence, I do not accept this receipt as income from lawful source.

26. Income from Sources Other Than Salary 86,008 Note: Reported to GHQ(ITO) Pune. 199293 to 19992000 (7 years). Ex.PW76/DD (MR 631/2007 ) pages 7,15,21,22,46, 65,66, 83,84,107,114,122. And, profit from one NSC worth 10,000 purchased 28/1/93, matured for 20,150 in 1999, profit of 10,150. (p. 156).

My view I accept the same.

27. Income in File at Ex.PW76/DJ (colly) (MR652 /2007) 46,900 CC No. 17/13 Page No. 128 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Note: P.8220,657. FDRs started in name of minor children by grandparents. P.86 &93. Redemption of JK Synthetics debentures for 26,243.16.

My view I accept the same.

28. Income from other sources than salary reported to GHQ(ITO) 3,932 (198990 to 199192) Note: Pages 16, 39, 58 of Ex.PW76/DL(colly) MR 692/2007 My view I accept the same.

29. Receipt of gift from grandparents in Dhruv's HDFC bank.

1,90,000 Note: In a/c no. 1341000005299 (Ex.P11, D38) by cheque no. 0377682 on 15/05/2004.

Submissions of Ld. Senior Public Prosecutor This amount was not declared by accused to the department and neither the same was shown in income tax returns of A1 despite the fact that Master Dhruv Kapur was minor on 15.5.2004.

My view This amount cannot be accepted. Accused must have shown as to what was the source of his parents who paid this amount. Accused has not proved the actual CC No. 17/13 Page No. 129 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 financial wealth of his parents.

30. Gift from Father . 5,000 Note: Ex.PW76/Z (colly), P.2 of D163.

My view I accept the same.

31. Gifts to Dhruv and Dilkash by Father of A2. 2,45,000 Note: In way of FDRs in PNB New Delhi on 08/6/1999 at Ex.PW76/DF, (MR 629 /2007, P.66) My view The amount was not declared to Army, though it was declared in income tax returns by A1. I am not inclined to accept this amount as income.

32. Amount transferred to HUF a/c from parental bank account in Panipat. 23,30,000 Note: The above said amounts were transferred on various dates by the mother of the accused subsequent to her closure of the accounts from Panipat while shifting to Delhi and in this regard the following exhibits may kindly be appreciated. i. Entries in Bank Statements at Ex.P9 (D36), ii. Ex.PW76/DH(colly) i.e. Mother's letter to CA iii. Ex PW41/DC and PW 41 statement Further the evidence on record of PW41 corroborates this fact besides the documentary evidence in this regard. Rs 9.00 L on 03/9/2002 vide cheque no. 0106633 Rs 3.5 L on 06/11/02 vide cheque no. 0224518 Rs 9.00 L on 13/1/2003 vide cheque no. 0108677 CC No. 17/13 Page No. 130 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Rs 1.80 L on 13/1/2003 vide cheque no. 0108678 My view This income has not been intimated by A1 to Army. These are highly suspicious receipts of high amounts. A1 has not even shown the same in income tax returns. Accordingly, I reject the same.

33. Amount received in cash in Bank for sale of agriculture Land.

5,00,000 Note: Declared to Army.ExP31(D78 , P.190). PW73 of charge sheet stated it but witness not produced in the Court. In this regard the IO PW 76 stated that he has given credit of this amount but there is no documentary evidence pointed out by him for the above said allowance. In the absence of this glaring fact it can be safely presumed that no benefit of the above amount has been given to the accused by IO. Any cursory remark in his statement contrary to written record available on file has to be brushed aside and the benefit given to the accused.

My view I find that its benefit has already been given to accused in item no.18 under the head particular of income in the charge sheet.

In order to further elaborate this aspect, I tabulate the entire sale proceeds of the agricultural land of A1 as under :

Sl. No. Particulars of Property Amount Evidence

1. Agricultural land measuring 22 bigha at Rs.28,00,000/ Page 185 CC No. 17/13 Page No. 131 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Patti Rajputan, Panipat vide sale deed Ex.P/31 dated 14.3.2002

2. Agricultural land 3 bigha 12 biswa vide Rs.5,00,000/ Page 190 Ikrarnama dated nil. Ex.P/31

3. Agricultural land measuring 22 bigha at Rs.16,71,000/ Page 176, Patti Rajputan, Panipat vide sale deed 177, 178 dated 30.3.2000 Ex.P/31

4. Agricultural land 23 kanal 8 marla, Rs.45,000/ Page 243 village Kurali, Karnal intimated vide Ex.P/31 immovable property returns dated 20.8.1980 to his department.

5. Agricultural land 23 kanal 8 marla, Rs.45,000/ Page 242 village Kurali, Karnal intimated vide Ex.P/31 immovable property returns dated 30.9.1980 to his department.

6. Old house ¼ portion at Amritsar Rs.15,000/ Page 240 intimated by immovable property Ex.P/31 returns dated 29.11.1985.

7. ¼ share of shops at inside Lohgarh Rs.67,500/ Page 154 Gate, Amritsar intimated vide Ex.P/31 immovable property returns dated 24.5.1991.

Total Rs.51,43,500/ The aforesaid amount is mentioned at Sr. No. 2 in the chart above. Hence it cannot be accepted.

Conclusion In view of the above discussion, I prepare fresh charts as under :

CC No. 17/13 Page No. 132 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 CHART '1' (Assets prior to checkperiod) Sl. Details of Assets Amount No. (Rs.) 1 Agriculture land at Village Kurali Teh and Distt. Nil Karnal (Haryana) 46 Kanal 17 Marla (inherited) 2 Agriculture Land at Village Patti Rajputana, Nil Panipat (Haryana) 34 Bigha 9 Biswas (inherited) 3 1/4 th share in property bearing no. 2271/XI13 Nil to 2278/XI13 and 2256 and 2260 located at Lohgarh, Amritsar (Punjab) (inherited) 4 Amount available with Central Bank, Panipat in 21,70000 the form of Savings Funds Account and Fixed Deposits 5 Investment in National Savings Certificate 20,00000 6 Gold 87.1/2 Tolas (inherited) Nil Total 41,70000 CHART '2' (Immovable assets acquired during checkperiod) Sl. Particulars Amount (Rs.) No.

1. Half ground floor, D23, Defence Colony, New 20,54,000/ Delhi (own name)

2. Half basement, D23, Defence Colony, New Delhi 41,12,000/ (own name)

3. Unit No. B111, Ansal Plaza, New Delhi (own 37,28,010/ name)

4. Commercial Space No. 407A, Unitech Trade 24,89,842/ Park, Gurgaon, Haryana (own name) CC No. 17/13 Page No. 133 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

5. Flat No. 408, Vatika Tower, Gurgaon, Haryana 9,32,125/ (own name)

6. Flat No. 408A, Vatika Tower, Gurgaon, Haryana 9,32,125/ (in the name of A2 Smt. Mridula Kapur)

7. Agriculture Land at Village Bijwasan, New Delhi 50,00,000/ (own name)

8. Plot No. 264, Sector52, HUDA, Gurgaon, Haryana 11,00,794/ (in the name of A2 Smt. Mridula Kapur)

9. House No. 506, Dauna Paula, Panjim, Goa (in the 30,21,000/ name of A2 Smt. Mridula Kapur)

10. Commercial Space 102A/2, Capital Court, 79,20,228/ Munirka, New Delhi (own name)

11. Cottage No. 10, Divine Golfer Village, Mashobra, 20,60,000/ Shimla, H.P. (in the name of A2 Smt. Mridula Kapur)

12. Plot No. 32, Sector52, Gurgaon, Haryana (own 6,41,305/ name)

13. Plot No. 33, Sector52, Gurgaon, Haryana (own 6,97,450/ name) CHART '3' (Movable assets acquired during checkperiod) Sl. Particulars Amount No.

1. Bank Balance in HDFC Bank, Defence Colony, 83,09,796 New Delhi in the form of Saving Bank and FDRs.

         A/c No.                Name                 Amount in Rs.
         SB 921000049641        A. K. Kapur          12,65,61744
         SB 921000040375        Mridula Kapur        10,05,04548
         SB 134000005299        Dhruv Kapur                 7,25509
         SB 13410005255         Dilkash Kapur             31,87802



CC No. 17/13                                                           Page No. 134 of 145
 CBI Vs. Maj. Gen. Anand Kumar Kapur etc.        Judgement            dated : 27.09.2016


         TD 500946321           Anand Kumar Kapur    5,00,000/
         FD 702239094           Dhruv Kapur & Anand  5,00,000/
                                Kumar Kapur
         FD 702266285           Dhruv Kapur & Anand  5,00,000/
                                Kumar Kapur
         FD 702239095           Anand Kumar Kapur    20,00,000/
                                & Mridula Kapur
         FD 7022376307          Mridula Kapur &      25,00,000/
                                Anand Kumar Kapur

  2. Bank Balances in ICICI Bank, Defence Colony,                      2,91,594

New Delhi in the form of Saving Bank A/c and FDRs.

3. Bank Balance in PPF Account in SBI, Panipat 9,04,582

4. Bank Balances in PPF Accounts in SBI, Defence 2,67,077 Colony, New Delhi PPF A/C 2463 Dhruv Kapur Rs.83,95184 PPF A/C 2464 Ms Dilkash Kapur Rs.83,95184 PPF A/C 2584 Mridula Kapur Rs.99,17400

5. Bank Balance in PNB, Tropical Building, 11,903 Connaught Place, New Delhi FD A/C 133000550139 5000/ SB A/C 0133000100352434 6903/

6. Bank Balance in Central Bank of India, Panipat 37,283

7. Investment with Post Office, Lodhi Road, New 9,60,000 Delhi

8. Investment in NTPC 13,268

9. Investment with HDFC Standard Life Insurance 7,75,000

10. Investment in Govt. of India Tax Free Bond 6,50,000

11. Investment in IDBI 25,000

12. Honda City Car 3,52,000

13. Household articles 1,67,000

14. Jewellery 18,00,000 15. Rolex Watch 00

16. Cash 11,62,240 CC No. 17/13 Page No. 135 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

17. Foreign Currency 2,13,632 Total Immovable and Movable assets : 5,06,29,254/ CHART '4' (Income) Sl. Particulars of Income Amount No. (Rs.)

1. Income from salary 35,83,926

2. Final Withdrawal from DSOP fund 5,62,000

3. Motor Car Advance 20,000

4. Income from agricultural rent and interest 1,19,078 during 14.11.1971 to 31.03.1986

5. HUF Income during financial year 19861987 21,89,538 to 2001 - 2002

6. Income from lease rent in r/o commercial space 18,72,204 no. 407A, Unitech Park, Gurgaon

7. Income earned through scholarship by Master 50,000 Dhruv Kapur

8. Profit by selling of Plot no. 144, Sector2, 12,85,000 Panchkula

9. Income by way of dividend received from M/s 7,929 Kotak Mahindra

10. Income by way of dividend received from M/s 932 Deustsche Premier Bond Fund Regular Plan Growth

11. Income by way of dividend received from 76,774 Franklin Mutual Fund

12. Income by way of dividend received from 57,876 Mutual Fund of IDFC CC No. 17/13 Page No. 136 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

13. Income received by way of dividend from HSBC 31,478 Mutual Fund

14. Dividend earned from NTPC 1,768

15. Rental income from Commercial Unit No. B 37,89,765 111,. Ansal Plaza, New Delhi

16. Income earned by profit in the transaction of 9,90,492 Plot No. 1V Road No. 12, DLF, Gurgaon

17. Income earned by sale of flat no. 11323, Arun 9,28,988 Vihar, NOIDA

18. Income earned through sale of ancestral land 51,43,500

19. Interest earned through SB A/cs being 12,46,603 maintained in HDFC Bank, Defence Colony, New Delhi

20. Interest earned in SB A/c No. 5211037689 by 163 Dhruv Kapur (Standard Chartered Bank, G.K.I, New Delhi

21. Interest earned in SB A/c No. 630001502803 16,813 by Maj Gen. A.K. Kapur maintained in ICICI Bank, Defence Colony, New Delhi

22. Interest earned in SB A/c No. 33,152 0133000100352534 from PNB, Tropical Building, Connaught Place, New Delhi

23. Income earned by interest in PPF A/c No. 775, 4,75,104 SBI, Panipat

24. Income earned by interest in PPF Accounts 35,078 maintained in SBI, Defence Colony, New Delhi

25. Security received from HDFC Bank against 7,50,000 lease of D23 (half basement and half ground floor)

26. Rental income from half basement and half 37,34,466 ground floor of D23, Defence Colony, New Delhi

27. Rental income from flat no. 408 and 408A, 11,54,072 CC No. 17/13 Page No. 137 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Vatika Tower, Gurgaon

28. Withdrawal from monthly income scheme of 95,000 post office

29. Income earned by way of maturity of LIC 7,01,946 policies

30. Rental income in R/o Flat No. 1323, Noida, for 95,000 the period from 20022003 & 20032004

31. Rental income from commercial space no. 47,51,068 102Am LSC, Munirka, New Delhi

32. Income of Smt. Mridula Kapur from computer 2,16,040 coaching

33. Income of Smt. Mridula Kapur by providing 27,47,526 services to HDFC Bank at D23, Defence Colony, New Delhi

34. Income from salary drawn from Kimaya 5,27,000 Fashion

35. Interest earned from IDBI Bonds 62,540

36. Interest earned from RBI bonds 1,90,100

37. Profit earned in transaction of plot No. K8, 6,00,000 Jungpura, New Delhi

38. Profit earned in transaction of Office Flat No. 4 7,380 & 6, Thapar Chamber, New Delhi

39. Profit earned in transaction of plot at Asandh 1,41,368 Road, Panipat

40. Income from birthday gift 77,165

41. Security received from M/s Infrastructure 6,50,000 Development Finance Company Ltd.

42. Income from tax free bonds 7,600

43. Income from UTI investment 1,80,432 TOTAL 3,90,35,864 CC No. 17/13 Page No. 138 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 CHART '5' (Additional Income) Sl. Particulars of Income Amount No. (Rs.)

1. Additional Security Deposit, Ansal Plazas 1,02,960 Property

2. Security deposit Unitech property 1,47,516

3. Security deposit Vatika property 94,500

4. Additional security deposit Capital Court 2,32,224 property

5. Dividend from IDFC/HSBC 39,354

6. NSC maturity 1,73,256

7. Income tax refunds 63,672

8. Income of Dhruv Kapur FY 200607 55,000

9. Profit from sale of HUDA plot, Panipat 3,00,000

10. Income from maturity of UTI Raj Laxmi 32,124 Scheme

11. Income from UTI children gift growth scheme 14,723 (Dhruv Kapur)

12. Gifts from parents of A2 2,88,500

13. Income from giving possession of land in March 2,14,000 2001

14. Gift from father to A1 15,450

15. Interest income of A2 from L&T Finance 5,580 16. Dividend of A2 from SBI equity shares 500

17. Payment received from repurchase of units 54,395 US1964

18. Income from other sources like profit from NSC 86,008 etc.

19. Income of FDRs in the name of minor children 46,900 CC No. 17/13 Page No. 139 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016

20. Income from other sources than salary 3,932

21. Gift from father 5,000 TOTAL 1975594 To make it a round figure, I fix it to Rs.20,00,000/.

CHART '6' (Expenditure) TOTAL as per chart of defence 1,26,52,600 Summary :

(A) Assets before Check Period = Rs. 41,700 (B) Assets at the end of Check period = Rs.5,06,29,254 (C) Assets acquired during Check Period(BA)= Rs.5,05,87,554 (D) Income earned during the check period = Rs.4,10,35,864 (E) Expenditure incurred during the check = Rs.1,26,52,600 period (F) Disproportionate Assets = (C+E)D = 5,05,87,554 + 1,26,52,600 = 6,32,40,154 - 4,10,35,864 = 2,22,04,290 At the cost of repetition, I would like to mention here that for sake of convenience of calculation, I have accepted all the entries as explained by the defence, which CC No. 17/13 Page No. 140 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 are below Rs.1 lakh, without giving any profit to prosecution.

The expenditure as stated by defence has also been accepted as it is. A highly liberal approach towards the public servant has been adopted by me in considering the merits of this case. But a public servant is required to explain satisfactorily the bigger amounts, which are being received by him from his friends and family members. The court will not accept that the income had the legal source simply because the money is being transacted through the cheques of relatives and friends. In fact, this is the method of laundering the money. The rigour of Section 13 (1)(e) of Prevention of Corruption Act, 1988, requires that the explanation by accused must be satisfactory so he cannot wriggle out by simply offering explanations. In the present case accused was required to produce the substantial evidence of the wealth of his parents by summoning and proving the income tax returns of his father and mother, by producing the receipts of agricultural income, by producing the bank accounts of his parents wherein the wealth of parents is deposited. Big amounts of money which are routed through the accounts of the parents and relatives will not simply be considered to have come from lawful sources. I am convinced that A1 has been CC No. 17/13 Page No. 141 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 unable to satisfactorily account of the pecuniary sources or the property disproportionate to the tune of Rs.2,22,04,290/.

So far as A2 is concerned, she is the wife of A1 and it is argued on her behalf that there is no evidence that she abetted A1 in amassing the said properties. It is true that there cannot be any direct evidence but the manner in which properties have been purchased and jewellery was found in her lockers, there may appear to be reasons to believe that she abetted this crime. However, the court cannot be oblivious of the social realities. In this unequal society, wife has to stand with her husband and she might even not know as to what is being got done through her. Therefore, I give benefit of doubt to A2 and acquit her.

Conclusion In view of above discussions, whereas A1 stands convicted under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act 1988, A2 is acquitted. Announced in the open court on this 27.09.2016. (Vinod Kumar) Special Judge03 (PC Act)/ CBI/ PHC / ND CC No. 17/13 Page No. 142 of 145 CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 IN THE COURT OF SPECIAL JUDGE03 (P. C. ACT) (CBI), PATIALA HOUSE COURTS, NEW DELHI CC No. 17/13 RC No. AC2/2007/A0003/CBI/ACUII/ND CBI Vs. Maj. Gen. Anand Kr. Kapur etc. Central Bureau of Investigations Versus Maj. Gen. (retired) Anand Kumar Kapur Son of Late Sh. Milkhi Ram Kapur R/o 305, Forest Lane, Sainik Farm, Neb Sarai Extension, New Delhi. ....... Convict ORDER ON SENTENCE 29.09.2016 Present: Sh. Manoj Shukla, Ld. Public Prosecutor for CBI.

Convict Maj. Gen. Anand Kumar Kapur on bail with Sh. Ashish Bhagat, Advocate.

Arguments on sentence heard.

It is argued by Sh. Ashish Bhagat, Advocate for convict that the convict, his wife and his son are suffering from various ailments, record of which has been annexed by the convict alongwith his application, which he has moved today praying for a lenient view.

CC No. 17/13 Page No. 143 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Ld. Senior Public Prosecutor, on the other hand, has prayed for the maximum dose of punishment. Apart from it, Ld. Senior Public Prosecutor has moved an application praying for confiscation of the properties value of which is equivalent to Rs.2,22,04,290/.

I have considered the facts and circumstances of the case. The conduct of the convict during the trial had been very good. He has been a high officer in Army. Keeping in view the ailments with which he and his family is suffering, I am inclined to take a lenient view in sentencing. I am not mentioning the ailments so as to maintain the privacy of the convict and his family members, however, the record of the same has been annexed by the convict alongwith his application for lenient view. At the same time, I would say benefit of probation cannot be given to the convict. Accordingly, I sentence the convict to rigorous imprisonment for one year and a fine in the sum of Rs.50,000/, under Section 13(1)(e) read with Section 13 (2) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo simple imprisonment for six months.

CC No. 17/13 Page No. 144 of 145

CBI Vs. Maj. Gen. Anand Kumar Kapur etc. Judgement dated : 27.09.2016 Since the disproportionateness of the assets to the tune of Rs.2,22,04,290/ is found, I order that the assets to the value of this amount shall be confiscated. Ld. Senior Public Prosecutor has moved an application to this effect today, copy of which has been supplied to Ld. Defence counsel. Ld. Defence counsel submits that he would like to file a reply to this application and accordingly he seeks adjournment. Hence, the final decision on this application of prosecution will be taken tomorrow i.e. on 30.09.2016.

Copy of judgement be supplied free of cost to the convict.

Announced in the open court on this 29th September, 2016 (Vinod Kumar) Special Judge03 (PC Act)/ CBI/ PHC / ND CC No. 17/13 Page No. 145 of 145

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Cbi vs . Maj. Gen. Anand Kumar Kapur Etc. ... on 29 September, 2016