Delhi District Court
Cbi vs Vijay Kumar Jain on 7 August, 2025
IN THE COURT OF NISHANT GARG
ACJM-2-CUM-ACJ, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
CBI vs. VIJAY KUMAR JAIN
Case No. : CC No. CBI/70/2019
FIR/RC No. : 1/2006/EOU-VIII
dated 27.07.2006
U/s : 217 of Indian Penal Code
Name of Branch : CBI/EOU-VIII/New Delhi
CNR No. : DLCT12-000273-2019
The date of commission : During the year 2004-05
of the offences
Name of the Complainant : Not Applicable
Name, parentage & address : Vijay Kumar Jain
S/o Late Sh. A.P. Jain,
R/o B-1, Friends
Apartments, I.P. Extention,
Delhi-110092.
The plea of the accused : Not guilty
Final Judgment : Convicted
Date of institution of case : 20.10.2008
Date of Judgment : 07.08.2025
Counsels for the parties:
Mr. Arjun Anand, Ld. APP for the CBI.
Mr. Yudhisthar Kahol, Mr. Kunal Kahol and Mr. Deepak
Sharma, Ld. counsels for the accused.
CC No. CBI/70/2019 Page No. 1 of 43
RC-SID E001 2006
CBI vs. Vijay Kumar Jain Digitally signed
NISHANT by NISHANT
GARG
GARG Date: 2025.08.07
16:04:21 +0530
JUDGMENT
1. Accused Vijay Kumar Jain has been sent by the CBI to face trial for commission of offence punishable under Section 217 of IPC Act.
FACTS
2. Vide order dated 20.04.2006, Hon'ble High Court of Delhi in W.P. (C) No. 4582/2003 titled "Kalyan Sansthan Social Welfare Association vs. Union of India and Ors." directed CBI to register a preliminary inquiry against such engineers and officials of the MCD, who allowed unauthorized construction to go on despite being duty bound to stop/demolish the unauthorized construction under the DMC Act. The Hon'ble High Court further directed CBI to probe the nexus of engineers and officials of MCD within the hierarchy of engineering department, builders and political bosses, who allowed the unauthorized construction to go on. Accordingly, PE SID 2006 E002 dated 10.05.2006 was registered against Vijay Kadyan, the then Executive Engineer, West Zone, MCD, other officials of MCD and owners of 15 properties situated at Road No. 78, West Punjabi Bagh, New Delhi.
3. During preliminary inquiry, it was found that 15 properties situated at Road No. 78, West Punjabi Bagh were booked for unauthorized construction on 29.07.2004 by Suleman Khan, the then JE. CBI sought files pertaining to these 15 properties from the MCD, West Zone. However, the files were not traceable. Vishv Ratan Bansal, the then Executive Engineer (Building) wrote a letter dated 25.05.2006 to the concerned AEs, including CC No. CBI/70/2019 Page No. 2 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed NISHANT by NISHANT GARG GARG Date: 2025.08.07 16:04:30 +0530 accused Vijay Kumar Jain (AE) to produce the said files. Pursuant to the letter dated 25.05.2006, accused V.K. Jain, AE, who had already been transferred from West Zone, MCD, visited the office on 31.05.2006 and produced all the 15 files. He handed over all these files to the office of Executive Engineer vide his note/letter dated 31.05.2006.
4. Perusal of the file reveals that these 15 properties were booked by Suleman Khan (JE) on 29.07.2004. The status of all these 15 properties was shown as 'under hearing' in the misil band register. The misil band register was 'closed' on 29.07.2004 by Vijay Kadyan, Executive Engineer (B). Owners of three properties out of the abovesaid 15 had not given response to the Show Cause Notices under Section 344 (1) and 343 DMC Act (hereinafter, the "Show Cause Notice") issued on 29.07.2004 and thus, they lost their right to be heard in person. Since the construction was raised by these three property owners unauthorizedly and against building bye laws without any sanction, these properties could not be considered for regularization and accordingly, orders under Section 343 DMC Act for issuance of demolition notice were solicited by JE and approved by A.P Sharma (AE) on 04.08.2004. The demolition notice was put up before A.P. Sharma (AE) and it was signed by him on 04.08.2004. When no responses were received, demolition orders were passed by A.P Sharma (AE) on 11.08.2004. Thereafter, despite marking these files to the Officer Incharge (Building) for taking further action, A.P Sharma (AE) did not hand over the said files to the Officer Incharge (Building). A.P. Sharma (AE) was transferred from West Zone, CC No. CBI/70/2019 Page No. 3 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:04:39 +0530 MCD on 01.09.2004. Pursuant to his transfer, A.P Sharma (AE) handed over these files to accused V.K Jain (AE), his successor on 01.09.2004. Accused V.K Jain (AE) retained these files with him without initiating action through OI(B) and JE. Thus, A.P Sharma (AE) alongwith V.K Jain (AE) and Vijay Kadyan (EE), were found to be directly responsible for the lapse.
5. With respect to the remaining 12 properties, a decision was taken to give hearing to the concerned owners by A.P Sharma (AE); at the time of his transfer, the files of these properties were handed over by A.P Sharma (AE) to V.K Jain (AE) on 01.09.2004; V.K Jain (AE) conducted several hearings and passed final orders on 28.02.2005 for issuance of demolition notices; demolition notices were signed by accused V.K Jain (AE) on 04.03.2005. Thereafter, accused V.K Jain (AE) marked these files for issuance/preparation of demolition notices to the JE (Building), however, instead of sending the files to the JE, he retained the files with him due to which demolition notices could not be prepared/issued.
6. During preliminary inquiry, A.P Sharma (AE) pleaded that it was a mistake on his part to have retained the files; accused V.K Jain (AE) stated that he had to proceed on leave for a fortnight as he was to undergo angioplasty and after joining his duty, he forgot that action was required to be taken on these files as they had got mixed with other files; Vijay Kadyan (EE) failed to enquire about the status of the booked properties despite closing the misil band register daily; Suleman Khan (JE) failed to ask for the files from V.K Jain (AE) despite having booked the CC No. CBI/70/2019 Page No. 4 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date: 2025.08.07 16:04:47 +0530 properties and having prepared the demolition notices. Accordingly, FIR/RC was recommended to be registered against Vijay Kadyan (EE), A.P. Sharma (AE), V.K. Jain (AE) and owners of 15 properties under Section 120B IPC r/w Section 13 (2) r/w 13 (1) (d) of the PC Act.
7. On this information, the present FIR/RC was registered on 27.07.2006 against Vijay Kadyan (EE), A.P Sharma (AE) and V.K Jain (AE) and owners of 15 properties situated at Road No. 78, West Punjabi Bagh, New Delhi for commission of offences u/s 120B r/w Section 13(2) r/w Section 13(1)(d), PC Act and investigation was carried out. During investigation, it was found that owners of 15 properties had filed a Writ Petition No. C.W.P 2073-94 titled 'C.L. Lohia & Ors vs. MCD & Anr.' before the Hon'ble High Court of Delhi against one Kamal Khosla for carrying out unauthorized construction. In retaliation, Naval Khosla, brother of Kamal Khosla filed a complaint with the MCD against these 15 property owners for unauthorized construction. While disposing of the petition, Hon'ble High Court vide order dated 11.04.2005 directed MCD to take action in accordance with law and to file a compliance report within four months.
8. Investigation further revealed that accused V.K Jain (AE) had passed orders for issuance of demolition notices in 12 cases; demolition notices were prepared by Mohammad Ahmad, JE on 04.03.2005 and signed by accused V.K Jain (AE) on 04.03.2005. He marked these files to the JE for serving the demolition notices. However, instead of sending these 12 files to the JE and CC No. CBI/70/2019 Page No. 5 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:04:54 +0530 earlier three files to the OI(B) for further action, he retained the files with him despite being aware of the directions of the Hon'ble High Court of Delhi.
9. Investigation further revealed that the order dated 11.04.2005 of Hon'ble High Court of Delhi was received by M.K. Singhla, the then EE on 16.06.2005; he marked it for compliance to accused V.K. Jain (AE); accused V.K. Jain (AE) further marked it to Ajay Sharma (JE); Ajay Sharma (JE) sent it back to accused V.K. Jain (AE) as the files were not pending with him. Accused V.K. Jain (AE) did not bother to submit the compliance report to the Hon'ble High Court. Thus, it was concluded that accused V.K. Jain (AE) did not conduct himself properly despite being aware of the directions of Hon'ble High Court of Delhi and retained the files unauthorizedly which resulted in non execution of demolition orders. This was done with an intent to save the said properties from demolition and thus, accused V.K. Jain (AE) committed offence punishable under Section 217 of the IPC. After completion of the investigation, charge-sheet was filed in the court.
CHARGE
10. Copy of the charge-sheet and accompanying documents were supplied to the accused free of cost under Section 207 CrPC. Vide order dated 25.04.2018, charge for commission of offence under Section 217 IPC was directed to be framed against the accused. Formal charge for commission of the said offences was framed on 04.07.2018 to which the accused pleaded not guilty and claimed trial.
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CBI vs. Vijay Kumar Jain by NISHANT
NISHANT GARG
GARG Date:
2025.08.07
16:05:02 +0530
EVIDENCE
11. To prove its case, the prosecution examined the following witnesses:
i. PW-1 Khem Singh- The then draftsman, West Zone (Building), MCD. He proved seizure memo Ex. PW1/A vide which he submitted sanctioned building plans Ex. PW1/B (colly) to the CBI.
ii. PW-2 Suleman Khan- The then JE, West Zone (Building).
He remained posted till 02.08.2004 after which he was succeeded by Mohammad Ahmed (JE) (PW4). He described the procedure for issuance of demolition notices and proved various documents seized by the CBI during investigation.
iii. PW-3 Moti Lal- Officer Incharge (Building), West Zone, MCD during the relevant time. He remained posted till 25.11.2004 after which he was succeeded by Mukhwant Singh, OI(B) (PW10) He described the procedure for issuance of demolition notices and proved various documents seized by the CBI during investigation.
iv. PW-4 Mohammad Ahmad- The then JE, West Zone (Building), MCD. He took over charge from Suleman Khan, JE (PW2) and remained posted till February, 2006. He described the procedure for issuance of demolition notices and proved various documents seized by the CBI during investigation.
v. PW-5 K.P. Sharma- JE, West Zone (Building), MCD at the relevant time. He was posted in West Zone (Building) from August 2004 till February 2006. He proved various CC No. CBI/70/2019 Page No. 7 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:11 +0530 documents seized by the CBI during investigation. vi. PW-6 Ajay Kumar Sharma- The JE, West Zone (Building), MCD at the relevant time. He was posted in West Zone (Building) from August 2004 till February 2006. He proved various documents seized by the CBI during investigation. On seeing the record, he stated that demolition notices in the 12 files were not served on the parties concerned. He further stated that he had received a copy of the order dated 11.04.2005 of the Hon'ble High Court of Delhi which was marked to him by accused V.K. Jain (AE) but since the files were not pending with him, he sent the order back to accused V.K. Jain (AE) through proper notings. He identified his initials in the attested copy of diary and receipt register (D-51). vii. PW-7 Mahesh Kumar Singla- Executive Engineer (Building) at the relevant time. He succeeded the previous EE Vijay Kadyan on his transfer. He deposed that he had received directions of the Hon'ble High Court of Delhi pertaining to C.L. Lohia matter which he had marked to accused V.K. Jain (AE) for compliance. On seeing the attested copies of diary and receipt register (D-51), he stated that the papers pertaining to C.L. Lohia matter were received by him; he marked it to accused V.K. Jain (AE) who further marked it to Ajay, JE.
viii. PW-8 K.S. Mehra- Commissioner, MCD. He accorded sanction for prosecution against accused V.K. Jain. ix. PW-9 Vishv Ratan Bansal- EE, MCD. He was contacted by the CBI to produce the 15 files of the subject properties; when the files could not be traced in their office records, CC No. CBI/70/2019 Page No. 8 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:19 +0530 he wrote letters to all concerned officials. The said 15 files were handed over to his office by accused V.K. Jain (AE). x. PW-10 Mukhwant Singh- Officer Incharge (Building), West Zone, MCD at the relevant time. He took over charge from Moti Lal (PW3) and remained posted till end of 2005. He described the procedure for issuance of demolition notices and proved various documents seized by the CBI during investigation. On seeing the 12 files in which demolition notices were to be served, he deposed that these files were never marked to him and since there are no notings of the JE regarding service of these notices, these files remained with the AE concerned. On seeing the remaining three files in which demolition orders were passed by A.P. Sharma (AE), he stated that since there was no entry in column no. 9 to 13 of misil band register regarding these files, he could say that these files were not put up before his predecessor Moti Lal Sharma. He further deposed that these files were also not put up before him despite demolition orders having been passed. xi. PW-11 Hasruddin Khan- JE (Building) at the relevant time. He proved certain documents seized by the CBI. xii. PW-12 Shiv Charan Chauhan- The Investigating Officer.
STATEMENT UNDER SECTION 313 CrPC
12. After examination of the witnesses, the prosecution evidence was closed by the Ld. APP on 05.06.2025. Statement of the accused Vijay Kumar Jain under Section 313 CrPC was recorded wherein he denied the allegations and claimed to have been falsely implicated. He denied having received the order of CC No. CBI/70/2019 Page No. 9 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:27 +0530 the Hon'ble High Court of Delhi. He further denied that the subject files remained in his custody. He claimed that it was the responsibility of the JE to take back the files from him after his signatures and the OI(B) was to maintain a track of the files. He further stated that he had only assisted the staff in tracing the files but the files were not in his custody. He also stated that he has been exonerated in the departmental enquiry initiated against him. The accused also filed written statement under Section 313 (5) CrPC wherein it was stated that it was the duty of the JE to keep track of his cases; the OI(B), who closes the misil band register on a daily basis, was duty bound to chalk out the demolition plan; the AE alone cannot be held responsible for dereliction of duty; he had given directions to demolish the properties and actual demolition was to be carried out by the JE;
he had to be hospitalized for angioplasty the very next day after passing the order of demolition; the orders of the Hon'ble High Court of Delhi were not brought to his notice; the subject files were traced by him on 31.05.2006 from the office of the then EE V.R. Bansal. No defence evidence was led.
ARGUMENTS
13. I have heard the Ld. APP for CBI and Ld. counsel for the accused.
14. Ld. APP for the CBI submitted that the prosecution has led sufficient evidence to prove guilt of the accused beyond reasonable doubt. It was submitted that after registration of preliminary enquiry, CBI had sought files pertaining to 15 properties of Punjabi Bagh which were booked by the MCD for CC No. CBI/70/2019 Page No. 10 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:35 +0530 unauthorized construction and for which the MCD was asked to take action as per law and file a compliance report by the Hon'ble High Court of Delhi. However, initially the said files remained untraceable; these files were subsequently produced by accused V.K. Jain (AE) from his own custody to the Executive Engineer (Building), West Zone, MCD; on perusal of these files, it was revealed that despite directions for filing compliance report by the Hon'ble High Court, no action was taken on these properties by the officials concerned; during investigation, it was revealed that these files were in possession of accused V.K. Jain (AE) who did not send them to the other officials of MCD for further necessary action and retained these files with him to prevent any action being taken. The prosecution witnesses have proved various documents on record which are sufficient to establish the guilt of the accused and hence, he is liable to be convicted.
15. Ld. defence counsel, on the other hand, submitted that the FIR/RC number and the sections under which it was registered is wrongly mentioned in the charge-sheet, in various communications by the CBI as well as in deposition of the witnesses. Thus, it is not clear under the investigation of which FIR/RC, charge-sheet in the instance case was filed. It is submitted that this was done because initially, the investigating agency was well aware that the present case, at most, is a case of misconduct but FIR was deliberately lodged under the provisions of Prevention of Corruption Act to bypass the requirement of obtaining permission from the Magistrate before investigating a non-cognizable offence. Ld. defence counsel further argued that CC No. CBI/70/2019 Page No. 11 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:43 +0530 the preliminary enquiry continued for about 11 weeks which is in contravention with the law laid down by the Hon'ble Supreme Court in 'Lalita Kumari vs. State of UP'; all the documents were collected during the preliminary enquiry; despite that, FIR was not registered under Section 217 IPC; the Hon'ble High court of Delhi had not directed the CBI to register FIR but only to register a preliminary enquiry.
16. It is further submitted that the unauthorized construction files were initiated by the JE; it was the duty of the JE to keep a track of his files; the JE used to bring files to AE for obtaining his directions which were mostly in a single line; thereafter, the JE used to take back the files from AE and the files never remained in possession of AE. Similarly, after passing of the demolition orders, it was the duty of the OI(B), who was having the details of the files to obtain the files from the AE and take necessary action. AE alone cannot be held liable for non- compliance of the directions of the Hon'ble High Court of Delhi as the matter was in the knowledge of JE, OI(B), EE and even the Deputy Commissioner. Even as per the directions of Hon'ble High Court of Delhi in C.L. Lohia matter, the JE was required to inspect the properties and AE was merely required to grant approvals. Ld. defence counsel further submitted that after signing the demolition notices, the accused V.K. Jain, AE had suffered a heart attack in the office and had to be rushed to the hospital; he could not join his duty for the next 15 days. After issuance of letter dated 25.05.2006 by the EE, the accused V.K. Jain, AE voluntarily came to the office of West Zone, MCD and assisted in locating the files; had he not located the files, the files CC No. CBI/70/2019 Page No. 12 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:05:51 +0530 would have remained untraceable.
17. It was further urged by the Ld. defence counsel that PW6 Ajay Sharma has falsely testified before the court; he was not working under accused V.K. Jain, AE; he could not have even accepted the order of the Hon'ble High Court of Delhi allegedly marked to him by accused V.K. Jain, AE; the CBI has deliberately not seized the original receipt-cum-dispatch register which could have shown that the entries in it were made subsequently to falsely implicate the accused. The sanction granted by the Commissioner, MCD was not proper, entire documents of the case were not placed before him; he has signed on the dotted lines which is evident from the fact that the sanction order bears neither any reference number nor any date; the sanction was granted without application of mind and without considering the entire material on record.
18. It was further submitted that four copies of the notices used to be prepared; the notices were within the knowledge of other officials of MCD; no recovery was effected from the residence of accused during search; the accused was exonerated in the departmental proceedings; evasive replies have been given by the prosecution witnesses in cross-examination and hence, the accused is entitled to benefit of doubt. Reliance has been placed on:-
(i) R.C. Sharma vs. CBI, Crl. Rev. P. No. 965/2003.
(ii) Mam Chand & Ors. vs. State 1999 (1) JCC (Delhi) 218.
(iii) Adesh Kumar Gupta vs. CBI, W.P. (Crl.) No. 725/2015 decided on 02.09.2015 (Delhi High Court).
(iv) MCD vs. S.L. Meena, W.P. (C) 9300/2009 decided on 09.09.2010 (Delhi High Court).CC No. CBI/70/2019 Page No. 13 of 43
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19. I have considered the rival submissions and have gone through the case file. I have also gone through the written submissions and judgments filed on record by the Ld. counsels for the parties.
ANALYSIS AND FINDINGS Procedure
20. To better appreciate the evidence, it is desirable to describe the procedure followed by MCD from booking a property for unauthorized construction up to its demolition, as culled out from the testimonies of the witnesses examined by the prosecution as well as from the documents on record.
21. As and when MCD becomes aware of unauthorized construction, the JE concerned inspects the property and registers a First Information/Inspection Report (FIR). The FIR contains the details of the property, its owner and nature of violation. The JE puts up this FIR before the AE concerned, who makes a note on the margin of the FIR for issuance of a Show Cause Notice under Section 343 and 344 of DMC Act. AE marks the FIR to the JE. Thereafter, the JE prepares the Show Cause Notice and places it before the AE for signatures. After the Show Cause Notice is signed by the AE, it is got served to the owner/occupier by the JE. By way of this Show Cause Notice, an opportunity of personal hearing is afforded to the premises owner to show cause as to why order for demolition of unauthorized construction under Section 343 DMC Act be not issued. In case the premises owner files a response to this notice or appears before the MCD, opportunity of personal hearing is afforded to him/her and CC No. CBI/70/2019 Page No. 14 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:07 +0530 thereafter, a detailed order is passed by the AE either to close the file or for issuance of demolition notice under Section 343 DMC Act. In latter case, the AE marks the file to JE concerned for further action. In case no reply is received to the demolition notice and the construction is found to be unauthorized, the JE concerned initiates a note in this regard and seeks orders for issuance of demolition notice under Section 343 DMC Act from the AE. The AE gives directions for issuance of the said notice and again marks the file to the JE concerned for further action. On receipt of the file, the JE prepares the demolition notice under which the premises owner is granted some time (6 days) to demolish the unauthorized construction on his own, failing which, the premises owner is told that the MCD will demolish the unauthorized structure. Again, the JE places demolition notice before the AE for signatures. After the demolition notice is signed by the AE, it is served by the JE and he makes his report in this regard on the backside of the notice. In case the unauthorized construction is not removed by the owner of the premises on his own, the JE initiates another note sheet and seeks passing of demolition orders from the AE. After giving directions to demolish the unauthorized structure as per law, the AE marks the file to OI(B) for further action.
22. During all these proceedings, the files are also sent to the OI(B) who maintains misil band register which contains details like description of the property, nature of infringement, name of the owner, name of the JE, number and date of issuance of notices, date of passing of the demolition orders and remarks. The misil band register contains consecutive numbered entries CC No. CBI/70/2019 Page No. 15 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:19 +0530 against each FIR and all entries with respect to a particular FIR are made against this entry only. The misil band register is maintained by the OI(B) who puts it before the EE at the end of the day. The EE 'closes' the misil band register on a daily basis so that no new entry could be made on that day. From the testimonies of the witnesses examined by the prosecution, it is revealed that after the Show Cause Notice is signed by the AE, the FIR as well as the Show Cause Notice is placed before the OI(B) who makes requisite entries in the misil band register and issues a "file number" which is put on the FIR as well as on the Show Cause Notice. Perusal of the misil band register further reveals that it also contains the number and date of issuance of the demolition notice under Section 343 DMC Act. Further, the misil band register also contains the date of issuance of the demolition order. It has come in the testimonies of the prosecution witnesses that after issuance of the demolition notice, the file is sent to the OI(B) for further action in consultation with the Executive Engineer. Thereafter, a chart for demolition is prepared in the order of priority and demolition action is initiated.
Retention of files by accused V.K. Jain
23. Admitted position is that 15 properties situated at Road No. 78, West Punjabi Bagh were booked for unauthorized construction on 29.07.2004 by Suleman Khan, JE; all the 15 FIRs were placed before A.P. Sharma, AE who gave directions for issuance of Show Cause Notice under Section 344 (1) and 343 DMC Act in all the files on the same day. The Show Cause Notices under Section 344 (1) and 343 DMC Act were prepared CC No. CBI/70/2019 Page No. 16 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:27 +0530 by the JE, Suleman Khan and signed by A.P. Sharma (AE) on the same day; requisite entries were also made in the misil band register. All these notices were served by the JE Suleman Khan (PW2) by pasting it at the premises in the presence of two department witnesses on 29.07.2004 itself. So far as the owners of properties no. 7/78, 18/78 and 32/78 are concerned, they did not give any response to the Show Cause Notices under Section 344 (1) and 343 DMC Act. Accordingly, on 04.08.2004, the JE, Mohammad Ahmad (PW4) concerned sought approval for issuance of the demolition notice under Section 343 DMC Act from the AE. Requisite approval was granted by AE A.P. Sharma that very day and the demolition notice under Section 343 DMC Act was also signed by him on that day. The said notice was again served through pasting in the presence of two departmental witnesses by the JE Mohammad Ahlmad (PW4) on 04.08.2004.
By way of this notice, the owners of these premises were directed to remove/demolish the unauthorized construction within six days. When no response was received, JE Mohammad Ahmad (PW4) concerned sought approval for issuance of demolition orders vide note sheet dated 11.08.2004. AE A.P. Sharma passed the order for demolition on 11.08.2004 and marked the file to OI(B).
24. With respect to the other 12 properties, their owners appeared before the MCD and submitted their responses dated 31.07.2004. Letters were issued by A.P. Sharma (AE) to these property owners for attending his office for personal hearing. However, before the owner of these properties could be afforded personal hearing, A.P. Sharma (AE) was transferred. He handed CC No. CBI/70/2019 Page No. 17 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:35 +0530 over the charge to his successor accused V.K. Jain (AE) on 01.09.2004. A.P. Sharma (AE), while handing over charge to accused V.K. Jain (AE) also handed over all the files pending with him, including the files of subject 15 properties. Thereafter, accused V.K. Jain, AE gave personal hearings to the owners of these properties on several dates and ultimately passed detailed orders for issuance of demolition notice under Section 343 DMC Act on 28.02.2005. Accused V.K. Jain, AE marked the files to JE (B). The JE (B) Mohammad Ahmad (PW4) prepared the demolition notice under Section 343 DMC Act and placed it before accused V.K. Jain (AE) for his signatures on 04.03.2005.
Accused V.K. Jain (AE) signed the demolition notices on 04.03.2005 itself and again marked the file to JE (B).
25. The allegations against accused V.K. Jain (AE) are that he retained all these 15 files with him without any reason so that further action could not be taken on these files. He did this despite the fact that vide order dated 11.04.2005, the Hon'ble High Court of Delhi had given a direction to take appropriate action as per law against these properties and to file a compliance affidavit within four months. In short, the allegations against accused V.K. Jain (AE) are that despite marking the three files to OI(B) and 12 files to JE (B), he did not send these files to these officials but retained the files with him. It was only when the CBI sought these files, among others, from the MCD during the preliminary enquiry, the then Executive Engineer Vishv Ratan Bansal (PW9) wrote a letter dated 25.05.2006 to five AEs, including accused V.K. Jain, AE informing them that as per the available record, it has been revealed that these files were CC No. CBI/70/2019 Page No. 18 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:42 +0530 pending with them despite they being relieved and asked them to produce the said files for onwards transmission to the CBI. Pursuant to this letter, accused V.K. Jain (AE) produced the subject 15 files and handed them in the office of Executive Engineer alongwith his note dated 31.05.2006.
26. Admittedly, all the 15 subject files were in possession of A.P. Sharma (AE) till 01.09.2004, before he was transferred. The prosecution case is that at the time of handing over charge to V.K. Jain (AE), A.P. Sharma (AE) had handed over all these 15 files to accused V.K. Jain (AE). Even though, no document showing handing over of charge and these 15 files by A.P. Sharma (AE) to accused VK. Jain (AE) has been placed on record, however, so far as the 12 files are concerned, it is not in dispute that these files were in possession of accused V.K. Jain, AE as he had given hearings to owners of these properties on several occasions and had thereafter passed reasoned orders for issuance of demolition notices under Section 343 DMC Act.
27. To prove that the subject files were retained by accused V.K. Jain (AE) with him, crucial testimonies are of PW2 Suleman Khan (JE), PW3 Moti Lal (OI(B)) and PW4 Mohammad Ahmad (JE).
28. PW2 Suleman Khan was the JE at the time when the subject 15 properties were booked; the said properties were booked under his signatures; he remained posted in the West Zone till 02.08.2004; he took all possible subsequent steps viz. preparation of Show Cause Notice under Section 344 (1) and 343 DMC Act, obtaining signatures of A.P. Sharma (AE) on it and CC No. CBI/70/2019 Page No. 19 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:51 +0530 serving the notices to the premises owners in the presence of two department witnesses. After his transfer on 02.08.2004, he was succeeded by PW4 Mohammad Ahmad (JE).
29. In his testimony before the court as PW2, he gave brief description of his duties and the procedure followed for booking of the property, issuance of Show Cause Notices and the entries made in the misil band register. He also proved his signatures, signatures of A.P. Sharma (AE) and accused V.K. Jain (AE) on all the documents in the subject 15 files. He also proved entries from Sr. No. 503 to 517 in the misil band register. He specifically stated that after passing of the demolition order, the file pertaining to property no. 40/78 was sent to the OI(B). In the cross-examination, he informed that the record pertaining to issuance of Show Cause Notices and demolition orders remain with the OI(B); after issuance of demolition order, the file is returned to the OI(B); in case the file is not returned to OI(B), he would call back the file from the concerned JE/AE within 2-3 days. He further admitted that it is the Executive Engineer who is the overall Incharge of the Building Department of the zone and OI(B) is Incharge of the record. In case a file is not returned to OI(B), OI(B) has to find out the said file and take appropriate action. He further stated that after passing of the demolition order, Assistant Engineer becomes functus officio and everything is looked after by Executive Engineer in consultation with the OI(B).
30. After the transfer of PW2 Suleman Khan (JE) so far as the three files pertaining to properties bearing no. 7/78, 18/78 and CC No. CBI/70/2019 Page No. 20 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:06:58 +0530 32/78 are concerned, PW4 Mohammad Ahmad (JE) sought orders from A.P. Sharma (AE) for issuance of demotion notices; he prepared the said notice and obtained signatures of A.P. Sharma (AE) on it; he served these notices to the premises owners in the presence of two department witnesses and finally, on 11.08.2004, he sought directions from A.P. Sharma (AE) for issuance of demolition orders which were passed by A.P. Sharma (AE) on the same day. These three files were marked to OI(B) and the role of PW4 Mohammad Ahmad (JE) with respect to these files came to an end.
31. With respect to the remaining 12 files, after affording personal hearings to the premises owners of these buildings, accused V.K. Jain (AE) passed orders for issuance of demolition notices under Section 343 of the DMC Act on 28.02.2005 and marked the file to PW4 Mohammad Ahmad (JE). PW4 Mohammad Ahmad, JE prepared the demolition notice under Section 343 DMC Act and placed it before accused V.K. Jain (AE) on 04.03.2005. Accused V.K. Jain (AE) signed the said notices on the same day and marked the file to PW4 Mohammad Ahmad (JE).
32. In his statement under Section 161 CrPC, PW4 Mohammad Ahmad (JE) categorically stated that these 12 files never came back to him and remained with accused V.K. Jain (AE) only. In his court statement as PW4, he explained the procedure for booking a property for unauthorized construction, registration of FIR, issuance of show cause notices etc. He identified his signatures on various documents in the files CC No. CBI/70/2019 Page No. 21 of 43 RC-SID E001 2006 Digitally signed by NISHANT CBI vs. Vijay Kumar Jain GARG NISHANT Date:
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+0530
pertaining to the 12 properties for which orders for issuance of demolition notices were passed by accused V.K. Jain (AE). In the cross-examination, he deposed that the FIR is prepared in duplicate; FIR number is given by the OI(B); misil band register is put up before the Executive Engineer everyday in the evening; Executive Engineer has the knowledge as to what action has been taken with respect to each of the properties and he has to ensure that demolition of unauthorized construction is carried out. He further deposed that the OI(B) is duty bound to inform the Executive Engineer in case where files are not received back from AE within the prescribed time. He further informed that on 05.03.2005, accused Vijay Kumar Jain (AE) had to be taken to hospital as he had suffered a heart attack in the office itself.
33. Perusal of the testimony of this witness reveals that in his examination-in-chief before the court, he remained absolutely silent on the aspect as to whether the files in question were received back by him after the demolition notices under Section 343 DMC Act were signed by accused V.K. Jain (AE) and the files were marked to him. He did not depose anything as to whether these files were received by him or they remained in possession of accused V.K. Jain (AE). No specific question in this regard was put to the witness either by the Ld. APP in examination-in-chief or by Ld. defence counsel in the cross- examination.
34. PW3 Moti Lal was the OI(B) at the relevant time. He remained posted as OI(B) in the West Zone till 25.11.2004. In the normal course of business, after demolition orders were passed CC No. CBI/70/2019 Page No. 22 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:07:13 +0530 by A.P. Sharma (AE) on 11.08.2004 in the three files, he would have received these three files either from A.P. Sharma (AE) (till his transfer on 01.09.2004) or from accused V.K. Jain (AE) thereafter. In his statement under Section 161 CrPC, he in clear terms stated that though after passing of demolition orders, these three files were marked to the OI(B), however, these files never came to him and continued to be retained by A.P. Sharma (AE). In his court statement as PW3, he briefly described the procedure for booking a property and making entries in the misil band register. He proved various entries made by him in the misil band register and proved various files dealt with by him. In the cross- examination, he deposed that the custody of unauthorized construction files used to be with him as OI(B) after passing of the demolition orders by AE. The misil band register also used to remain in his custody as OI(B). He reiterated that after passing of the demolition order, the unauthorized construction demolition file used to revert to the OI(B). He further deposed that in case the unauthorized construction files were not received back in 2-3 days, a noting is made in the misil band register after ascertaining the reasons from the JE. If the unauthorized construction file is not received back after 2-3 days, the matter is brought to the notice of the concerned Executive Engineer for further action.
35. Again, in his testimony before the court, PW3 Moti Lal, OI(B) remained absolutely silent on material points and nothing could be deciphered as to whether these three files ever came to him or were retained by A.P. Sharma (AE) or the accused V.K. Jain (AE). No specific question in this respect was put to the witness either by Ld. APP for by Ld. defence counsel.
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NISHANT GARG
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36. The testimonies of these witnesses, thus, do not help the prosecution to establish that all the 15 subject files were retained initially by A.P. Sharma (AE) and thereafter by accused V.K. Jain (AE).
37. PW6 Ajay Kumar Sharma was also one of the JEs posted in the West Zone from August 2004 to February 2006. In his court statement, besides describing the procedure for booking the property for unauthorized construction and proving certain documents whereby 15 subject properties were booked for unauthorized construction, on seeing the files pertaining to properties no. 32/78 (D-9), 18/78 (D-11) and 7/78 (D-12), he deposed that even though these files were marked to OI(B), however, there is no report of the OI(B) as regards any action taken in pursuance of these demolition notices. Thus, these files either remained with A.P. Sharma (AE) or with his successor. On seeing the remaining 12 files, he deposed that even though demolition notices have been issued under the signatures of accused V.K. Jain (AE) however, since the original notices are lying in the file, it can be said that these notices were not served on the parties concerned.
38. In the cross-examination, he deposed that misil band register contains the entries regarding FIR, Show Cause Notices and demolition notices; the Executive Engineer 'closes' the entries on a daily basis. He was not aware if the Executive Engineer examines the register on a daily basis. The OI(B) asks for the files which were not put to him after passing of the demolition notice. He further deposed that an under construction CC No. CBI/70/2019 Page No. 24 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:07:31 +0530 file remains in custody of the JE; after signatures of the AE, it comes back to the JE. He volunteered to add that till the time file is matured, it remains with the JE after which, it is transferred to the OI(B). He denied the suggestion that the JE, AE, XEN and OI(B) keep track of all the cases of demolition. He admitted that the OI(B) and XEN keep track of all cases of demolition where FIR is registered. The witness was not aware as to whether accused V.K. Jain (AE) had to be rushed to the hospital due to heart attack. He volunteered to add that his condition had deteriorated. He was not aware if accused V.K. Jain (AE) was on leave for the next 4-5 days. Lastly, he stated that a copy of the unauthorized construction file is sent to the OI(B) only after a file is matured i.e. after the demolition orders or after order for closing the file is passed.
39. On scanning the testimony of this material witness, it is revealed that on seeing all the subject 15 files, he categorically deposed that the three files in which demolition orders were passed were not sent to the OI(B) for further action and the remaining 12 files in which demolition notices were signed by accused V.K. Jain, AE were not served on the parties concerned. He was categorical in stating that an unauthorized construction file comes to be OI(B) only after it is matured and before that it remains with the JE. The witness was not cross-examined on material facts deposed by him. No suggestion was given to the witness that the three files in which demolition orders were passed by A.P. Sharma (AE) were not retained by A.P. Sharma (AE) or by his successor i.e. accused V.K. Jain (AE). It was further not suggested to the witness that the said three files were CC No. CBI/70/2019 Page No. 25 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:07:38 +0530 sent by accused V.K. Jain (AE) to the OI(B) for further action. With respect to the remaining 12 files, no suggestion was given to the witness that accused V.K. Jain (AE) had sent these files to the JE concerned after signing the demolition notice under Section 343 DMC Act for further serving them on the parties concerned.
40. PW10 Mukhwant Singh was given charge of OI(B) in November 2004, in addition to his duties as the Record keeper. On seeing the 12 unauthorized construction files in which demolition notices under Section 343 DMC Act were signed by accused V.K. Jain (AE) he deposed that these files were never marked to him and so they remained with the AE concerned who had passed the order for issuance of demolition notices. On seeing the remaining three files in which demolition orders were passed by A.P. Sharma (AE) after seeing the relevant entries in the misil band register and finding absence of any entry in column 9 to 13 of misil band register, he stated that these files were not put up before the then OI(B) PW3 Moti Lal Sharma. He further stated that these files were also not put up before him despite that demolition orders were passed by A.P. Sharma (AE).
41. In the cross-examination, he admitted that the FIR booklet and Show Cause Notice booklet are issued to the JE and remains in his custody; entries are made in the misil band register by the OI(B) as and when action is taken by the JE; the unauthorized construction file does not remain in the custody of AE; the FIR, Show Cause Notice and unauthorized construction files are in the knowledge of JE which JE puts up before the AE. He was not CC No. CBI/70/2019 Page No. 26 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed NISHANT by NISHANT GARG GARG Date: 2025.08.07 16:07:45 +0530 aware if the AE signs the file then and there or whether he retains the file with him for a day or two. He admitted that the OI(B) has a duty to keep a track of unauthorized construction files and action taken. He explained that since the volume/number of files is very large, there are instances when track of a file is not kept. He further admitted that the FIR and Show Cause Notices remain in custody of the JE even if the unauthorized construction file is lost; the JE ought to have information about the action taken with respect to a property; it is the responsibility of the JE to pursue a case for taking any action on the property.
42. On examining the testimony of this witness, it is once again seen that the material facts deposed by him have remained unchallenged in the cross-examination. Despite specific statement of the witness, no suggestion was given to the witness that the 12 unauthorized construction files in which demolition notices were signed by accused V.K. Jain (AE) were not retained by him but were sent to the JE concerned. Similarly, with respect to the remaining 3 files, nothing was suggested if these files were in the possession of OI(B) after demolition orders were passed by the then A.P. Sharma (AE). A feeble attempt was made in the cross-examination to suggest that it was the JE in whose possession file remains throughout the proceedings and the AE only writes a single line note and returns it to the JE then and there. However, the witness expressed ignorance on this aspect.
43. From the testimonies of PW6 Ajay Kumar Sharma and PW10 Mukhwant Singh, it can reasonably be inferred that accused V.K. Jain (AE) was in possession of all the subject 15 CC No. CBI/70/2019 Page No. 27 of 43 RC-SID E001 2006 Digitally signed by NISHANT CBI vs. Vijay Kumar Jain NISHANT GARG GARG Date:
2025.08.07 16:07:52 +0530 files which he failed to send to the OI(B) and JE concerned for further action despite passing of demolition orders and signing of demolition notices under Section 343 DMC Act.
44. Relevant to note is that during the cross-examination of PW12 Shiv Charan Chauhan, the Investigating Officer, photocopy of a document Mark PW12/DA was put to the witness by Ld. defence counsel. As per this document, accused V.K. Jain (AE) had handed over charge to his successor S.K. Bansal (AE) on 13.09.2005. As per entry 5 of this document, accused V.K. Jain (AE) had handed over the 12 files to his successor S.K. Bansal on 13.09.2005. Thus, the accused himself admits that he was having the possession of these 12 files with him till 13.09.2005 which clearly shows that even after signing the demolition notices under Section 343 DMC Act in all these files on 04.03.2005, the files remained with accused V.K. Jain (AE) despite that the files were marked to JE, Mohammad Ahmad.
45. From the above discussion, it can reasonably be concluded that accused V.K. Jain (AE) retained the 15 subject files with him illegally. The accused has taken a defence that the files never remained with the AE but were always in the custody of the OI(B) and JE. I do not agree with this contention of the Ld. defence counsel. It has come in the testimonies of the prosecution witnesses that only after passing of the demolition orders, the files used to be sent to the OI(B) for chalking out plan for demolition. Before passing of the demolition orders, the files used to remain with the JE who used to place it before the AE for obtaining necessary directions. Nothing is on record to show that CC No. CBI/70/2019 Page No. 28 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed NISHANT by NISHANT GARG GARG Date: 2025.08.07 16:07:59 +0530 the AE could not have retained the files with him for giving the necessary directions but always used to give the directions then and there, as and when the files were placed before him by the JE.
Production of files by accused V.K. Jain
46. After registration of the preliminary enquiry, the CBI had sought files pertaining to all the 15 subject properties. Vishv Ratan Bansal (PW9), the then Executive Engineer, West Zone, wrote a letter dated 25.05.2006 (Ex. PW9/A) to all the AEs concerned stating that from the available record, it was revealed that the said files were pending with the concerned AEs despite they having been relieved from the office long back. In pursuance to this letter, accused V.K. Jain (AE) visited the office on 31.05.2006 and handed over all the 15 files to the Executive Engineer. He also wrote a detailed note Ex. PW6/B (colly) (2 pages) to the Executive Engineer whereby he stated that he visited the office on 31.05.2006 to trace the said files; the said files, which were with him till 28.02.2005, were traced out from the old records and papers; after signing the demolition orders under Section 343 DMC Act on 04.03.2005, he had fallen sick and had proceeded on leave; he had to be operated for angioplasty/bypass surgery on 06.03.2005 at Ram Manohar Lohia Hospital; the said files had lost sight and were mixed up with old files and this fact was not in his knowledge.
47. In this respect, testimony of PW9 Vishv Ratan Bansal who was posted as Executive Engineer, West Zone, MCD from February 2006 till April 2007 is crucial. In his testimony before CC No. CBI/70/2019 Page No. 29 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:08:07 +0530 the court, he deposed that while he was posted as Executive Engineer, he was contacted by the CBI for obtaining records pertaining to 15 properties situated at West Punjabi Bagh which were being investigated by the CBI. On checking the office records, the files pertaining to the said 15 properties were nowhere to be found in their office. Thereafter, pursuant to a letter written to all the officials concerned, the 15 files pertaining to the case were handed over to his office by way of a letter by accused V.K. Jain (AE). He proved his letter dated 25.05.2006 (D-32) Ex. PW9/A as well as letter dated 31.05.2006 under the signatures of accused V.K. Jain (D-30) Ex. PW6/B (colly) (2 pages). He further informed that it came to his knowledge that the compliance report in C.L. Lohia matter could not be filed before the Hon'ble High Court of Delhi as these 15 files were not in their office but were with accused V.K. Jain (AE).
48. In the cross-examination, he was unable to tell with certainty if the FIR and Show Cause Notice was put up before the AE only for signatures and thereafter, all proceedings were carried out by the JE. He informed that in the usual course, the file is supposed to be with the JE who is to take the demolition action; the OI(B) is the custodian of the records and unauthorized construction file is supposed to be in his custody. He volunteered to add that in practice, there is a constant exchange of record between the OI(B) and the Field Staff for official purpose. He admitted that it is the duty of the OI(B) to keep a track of the unauthorized construction files and in case it is not returned to him, he should call for it. The witness was not aware from where accused V.K. Jain (AE) had procured the subject 15 files; he was CC No. CBI/70/2019 Page No. 30 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:08:14 +0530 also not aware whether accused V.K. Jain (AE) had to be taken to hospital from office on 04.03.2005; he informed that he did not make any enquiry from the OI(B) as to from where accused V.K. Jain (AE) had produced the files.
49. Perusal of the testimony of this witness reveals that the fact that the subject 15 files could not be found in the office of MCD, West Zone despite efforts was not disputed in the cross- examination. The categorical statement made by this witness that these 15 files were not in their office but were with accused V.K. Jain also remained unchallenged. No suggestion was given to the witness that the said 15 files were actually in the office of MCD itself but were mixed up with the old records and were located by accused V.K. Jain (AE) on 31.05.2006. Nothing could be elicited in his cross-examination to disbelieve the facts deposed by him. The witness was an independent person and was not going to be benefited in any manner by falsely implicating accused V.K. Jain with whom he had no prior enmity or animosity.
50. The testimony of this witness is corroborated with the testimony of PW12 Shiv Charan Chauhan, the Investigating Officer who has deposed on the similar lines. In the cross- examination, PW12 Shiv Charan Chauhan admitted that on the day when accused V.K. Jain (AE) handed over the files to Vishv Ratan Bansal, EE, accused V.K. Jain (AE) was not posted in the branch and had already been transferred.
51. The subject 15 files were produced by accused V.K. Jain (AE) pursuant to the letter dated 25.05.2006 (Ex. PW9/A) issued by the Executive Engineer, West Zone. By way of his note dated CC No. CBI/70/2019 Page No. 31 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:08:21 +0530 31.05.2006 (Ex. PW6/B) (colly) (2 pages), the accused V.K. Jain (AE) rather admitted that the files remained in his possession. He sought to justify retention of files with him by stating that immediately after passing the demolition orders on 04.03.2005, he had fallen sick and had proceeded on leave. Pertinent to note is that accused V.K. Jain (AE) nowhere claims that after passing of the demolition orders on 04.03.2005, he had sent the files to JE concerned for serving the said notices to the premises owners.
There was no reason for accused V.K. Jain (AE) to have retained these files with him after passing of orders for issuance of demolition notices on 04.03.2005. With respect to the three files in which demolition orders were already passed by A.P. Sharma, AE on 11.08.2004, no explanation whatsoever was furnished by accused V.K. Jain (AE) vide his note dated 31.05.2006 Ex. PW6/B (colly) as to why the said files remained with him till March 2005 without being sent to the OI(B) for further necessary action which allegedly resulted in the said files being purportedly mixed with the old record.
52. It is further relevant to note that in his note dated 31.05.2006 Ex. PW6/B (colly), accused V.K. Jain (AE) gave no information whatsoever as to from where and with whose assistance he was able to locate the subject 15 files from the office of the MCD. He did not claim that the said subject 15 files were recovered from the office of his successor S.K. Bansal to whom he had allegedly handed over at least 12 of the 15 subject files. He has also not named any official Incharge of old records with whose assistance he was able to recover the said 15 files.
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NISHANT GARG
GARG Date:
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16:08:31 +0530
53. From the above discussion, it stands established that the 15 subject files were produced by accused V.K. Jain (AE) from his own custody. Nothing has come in the testimonies of the prosecution witnesses to conclusively establish that accused V.K. Jain (AE) had suffered a heart attack on 04.03.2005 in the office and had to be hospitalized immediately. Again, there is nothing on record to show that accused V.K. Jain (AE) had undergone angioplasty/bypass surgery or had remained admitted in the hospital for any number of days or remained absent from duty for around 15 days thereafter. The accused has not placed on record any document whatsoever of Ram Manohar Lohia Hospital to prove these facts. The accused had also not summoned his leave record from the MCD to show his absence from office. Adverse inference is to be drawn against the accused for withholding these material documents despite availability.
Communication of High Court order of Hon'ble High Court of Delhi
54. Vide order dated 11.04.2005 in C.W.P. No. 2073-94 titled 'C.L. Lohia & Ors. vs. MCD & Anr.', the Hon'ble High Court of Delhi, while disposing of the said petition gave liberty to the MCD to take such action as is expedient in accordance with law with respect to the 15 subject properties and to file a compliance report within four months. The prosecution case is that despite being aware of this order, accused V.K. Jain, AE failed to take any step with respect to the 15 subject properties by intentionally retaining the files of these properties with him. Accused V.K. Jain (AE), however, has denied having received this order of Hon'ble High Court of Delhi at any time or having any CC No. CBI/70/2019 Page No. 33 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed NISHANT by NISHANT GARG GARG Date: 2025.08.07 16:08:39 +0530 knowledge about it.
55. PW7 Mahesh Kumar Singhla was posted as Executive Engineer (Building), West Zone, MCD from June 2005 to February 2006. In his testimony before the court, he deposed that in June 2005, he had received some papers which were directions of the Hon'ble High Court of Delhi pertaining to C.L. Lohia case for compliance on the part of MCD. He had received these papers from the Deputy Commissioner, West and had marked them to accused V.K. Jain (AE) for compliance. He proved the entries at Sr. No. 396 and 397 of the diary and receipt register, the attested copy of relevant extract of which was placed as D-51 (Ex. PW7/B) (colly) (2 pages). He stated that these entries show that the papers pertaining to C.L. Lohia matter were received by him which he had further marked to accused V.K. Jain (AE). The entries further reflect that accused V.K. Jain (AE) had marked the said papers to Ajay (JE) (PW6). In the cross-examination, he stated that on the basis of entries at Sr. No. 396 and 397 of diary and receipt register Ex. PW7/B (colly), he can say that the file pertaining to C.L. Lohia was marked to AE-III, who was accused Vijay Kumar Jain at the relevant time. He admitted that he had stated before the CBI that the matter of "C.L. Lohia vs. MCD & Ors.", was never brought to his notice at any time. He volunteered to add that this statement was made with respect to booking of the properties as these properties were not booked during his tenure. He denied that entry at Sr. No. 396 and 397 of D-51 (Ex. PW7/B) (colly) were made belatedly at the instance of the CBI.
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56. On perusal of the testimony of this witness, it is seen that he has proved the entries at Sr. No. 396 and 397 of the diary and receipt register of MCD (Ex. PW7/B) (colly) as per which the documents pertaining to C.L. Lohia matter were received by him and were marked to accused V.K. Jain, AE by him. Except a vague suggestion that these entries were made belatedly at the instance of CBI, nothing could be extracted in the cross- examination to falsify these entries. The entries on both the pages of Ex. PW7/B (colly) have been made in continuous serial numbers with continuous dates. There are no gaps in any of the entries and the writing style nowhere reflects that any attempt has been made at any stage to insert an entry subsequently, which was originally not there. No reasonable grounds exist to disbelieve these entries which were made in the ordinary course of business.
57. The testimony of PW7 Mahesh Kumar Singhla is corroborated with the testimony of PW6 Ajay Kumar Sharma, JE, to whom the documents pertaining to C.L. Lohia matter were marked by accused V.K. Jain (AE). In his court statement, he deposed that he had received a copy of order dated 11.04.2005 of the Hon'ble High Court of Delhi which was marked to him by accused V.K. Jain (AE). By way of the said order, the MCD was directed to file an affidavit in C.L. Lohia case. He explained that since he was not having any file on which action was to be taken and the files were being looked after by accused V.K. Jain (AE) himself, he had sent back the order of the Hon'ble High Court to accused V.K. Jain (AE) through proper notings mentioning that no action on his part can be taken till the files are disposed of at CC No. CBI/70/2019 Page No. 35 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:08:54 +0530 his end. He identified his initials on diary and receipt register (D-51) Ex. PW6/C through which he had received the order of the Hon'ble High Court of Delhi in case titled 'C.L. Lohia & Ors. vs. MCD & Ors.' on 20.06.2005. He further deposed that he never received any directions after he had sent back the order of the Hon'ble High Court of Delhi to accused V.K Jain (AE). He stated that to the best of his knowledge, the said order of the Hon'ble High Court of Delhi was not traceable in the MCD office.
58. The witness was not cross-examined on these aspects and thus, these facts deposed by the witness remained unchallenged and uncontroverted in the cross-examination. PW6 Ajay Kumar Sharma was an official witness who had no reason to depose falsely against accused V.K. Jain (AE). He not only deposed about marking of the order dated 11.04.2005 of the Hon'ble High Court of Delhi to him by accused V.K. Jain (AE), he further informed that since the said files were being looked after by accused V.K. Jain (AE) himself, he had sent the files to accused V.K. Jain (AE) through proper notings as no action on his part could have been taken. There is nothing in the cross-examination to disbelieve the testimony of this independent witness who had no axe to grind with accused V.K. Jain (AE).
59. From the testimonies of PW7 Mahesh Kumar Singhla and PW6 Ajay Kumar Sharma, it stands established that the order dated 11.04.2005 of the Hon'ble High Court of Delhi in C.L. Lohia matter, as per which compliance report was to be filed by the MCD was well within the knowledge of accused V.K. Jain CC No. CBI/70/2019 Page No. 36 of 43 RC-SID E001 2006 Digitally signed by NISHANT CBI vs. Vijay Kumar Jain NISHANT GARG GARG Date:
2025.08.07 16:09:01 +0530 (AE); he had marked the said order to PW6 Ajay Kumar Sharma (JE) who, had sent back the file to accused V.K. Jain (AE). The fact that this order of the Hon'ble High Court of Delhi was in the knowledge and possession of accused V.K. Jain (AE) is also established from the document Mark PW12/DA i.e. photocopy of charge hand over by accused V.K. Jain (AE) to his successor S.K. Bansal, AE, which has been relied upon and placed on record by accused V.K. Jain (AE) himself. Perusal of this document clearly reflects that the documents pertaining to the case titled 'C.L. Lohia vs. MCD' were handed over by accused V.K. Jain (AE) to his successor at the time of handing over of charge. In the remarks column, it is specifically mentioned "to pursue the matter for compliance of High Court orders". Thus, it cannot be said that the order of the Hon'ble High Court of Delhi was not in the knowledge of accused V.K. Jain (AE).
60. Ld. defence counsel has argued that by filing only attested copies of diary and receipt register Ex. PW7/B (colly), he was prevented from proving that the entries made in this register were made subsequently in different ink. The argument of the Ld. defence counsel is not sustainable as the accused could have sought production of the original diary and receipt register during examination of the prosecution witnesses as well as by leading defence evidence. However, no such step was taken.
Sanction
61. FIR in the instant case was registered under Section 120B IPC and Section 13 (2) r/w 13 (1) (d) of PC Act. However, after culmination of investigation, the charge-sheet was filed under CC No. CBI/70/2019 Page No. 37 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:09:10 +0530 Section 217 IPC. Before filing of the charge-sheet, sanction under Section 197 CrPC was obtained against accused V.K. Jain from the Commissioner, MCD. Ld. counsel for the accused has submitted that the sanction so granted by the Commissioner, MCD is not proper and it was accorded without going through all the documents of the case and without application of mind.
62. In this respect, testimony of PW8 K.S. Mehra is relevant. He was the Commissioner, MCD at the relevant time and had accorded sanction under Section 197 CrPC qua accused V.K. Jain (AE). In his testimony before the court, he deposed that he had accorded sanction to prosecute accused V.K. Jain (AE) as per rules; he had applied his mind to the material received from CBI including statement of witnesses, documents etc. and had found it to be a fit case to accord sanction. He proved his sanction order dated 'nil' (Ex. PW8/A). In the cross-examination, he deposed that he had gone through all the documents produced before him before according sanction; he had gone through the FIR and the charge-sheet as well; he did not remember whether the sections under which charge-sheet was filed were different from the sections under which FIR was registered; he stated that he had satisfied himself with the facts of the case before according sanction; he did not remember whether requisite sanction under Section 3 of the Delhi Special Police Establishment Act was placed before him before he accorded sanction; he denied the suggestion that he had intentionally not put date under his signatures at the time of signing sanction order (Ex. PW8/A) (colly) as he had signed the draft sanction order given to him by the CBI. He admitted that whenever any letter CC No. CBI/70/2019 Page No. 38 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date: 2025.08.07 16:09:18 +0530 was issued from the department, a reference number, date and name of the department is mentioned on it. He did not remember for how long the documents remained with him before he accorded sanction. He denied the suggestion that the sanction was accorded without application of mind at the behest of investigating agency.
63. From the testimony of this witness, it stands established that the sanction under Section 197 CrPC was accorded by him after going through all the documents, including statements of witnesses, FIR, draft charge-sheet etc and after due application of mind. Perusal of the sanction order Ex. PW8/A (colly) reflects that it is a detailed order and contains all the relevant facts necessary for the competent authority to reach the conclusion whether or not to grant the sanction. Nothing is reflected from the sanction order Ex. PW8/A (colly) that it was accorded without application of mind. Merely because it does not contain any reference number or date, it cannot be said that the draft sanction order was signed by PW8 K.S. Mehra as placed before him by the CBI. Had that being the case, nothing prevented PW8 K.S. Mehra to have put date under his signatures. No particular document has been specified by the Ld. defence counsel which was not placed before the sanctioning authority, which could have tilted the decision in favour of the accused.
64. The testimony of PW8 K.S. Mehra is corroborated with the testimony of PW12 Shiv Charan Chauhan, the Investigating Officer. In his examination in chief, he deposed that sanction under Section 197 CrPC was obtained from the competent CC No. CBI/70/2019 Page No. 39 of 43 RC-SID E001 2006 Digitally signed by NISHANT CBI vs. Vijay Kumar Jain NISHANT GARG GARG Date:
2025.08.07 16:09:25 +0530 authority before filing of the charge-sheet. In the cross examination, he stated that he had sent almost all the documents alongwith the charge-sheet to the competent authority for obtaining sanction; the documents were sent in April-May 2008; the sanction was received in August 2008; the documents were sent through a Constable whose name, he did not remember; the documents and sanction were received back through a special messenger of MCD. He denied the suggestion that the sanction order Ex. PW8/A (colly) was signed on dotted lines. He admitted that sanction is the last step in the investigation. He volunteered to add that in some cases, investigation continues even after receipt of sanction which was the case in the instance case.
65. Testimony of PW12 Shiv Charan Chauhan nowhere casts a dent in the prosecution case and nothing came in the cross- examination to infer that the sanction was granted by PW8 K.S. Mehra without considering the material before him or without application of mind. No reasonable basis exist to doubt the genuineness and authenticity of the sanction order Ex. PW8/A (colly).
Other Defences
66. Ld. counsel for the accused has contended that the RC number and the Sections under which it was registered is wrongly mentioned in the charge-sheet, deposition of witnesses and various communications by the CBI. Thus, it is not clear under the investigation of which RC, charge-sheet in the instance case was filed.
CC No. CBI/70/2019 Page No. 40 of 43RC-SID E001 2006 Digitally signed
by NISHANT
CBI vs. Vijay Kumar Jain NISHANT GARG
GARG Date: 2025.08.07
16:09:32 +0530
67. It is true that the RC number and the sections under which it was registered is mentioned wrongly at various places, however, the original RC which has been filed alongwith the charge-sheet as D-1 clearly mentions the FIR/RC number RC.SID 2006 E001 dated 27.07.2006 under Section 120B and 13 (2) r/w 13 (1) (d) of PC Act. The mistakes appearing in the RC numbers elsewhere appears to be only typographical in nature and do not go to the root of the matter to cause any prejudice to the accused. IO PW12 Shiv Charan Chauhan has clarified in the cross-examination that the actual RC number is RC-SID 2006 E001 dated 27.07.2006 and there are typographical mistakes in the charge-sheet.
68. Another contention of the Ld. defence counsel is that in view of 'Lalita Kumari vs. State of UP & Ors.' case , the preliminary enquiry in the instant case could not have continued for 11 weeks. Suffice it is to note that the judgment in the case of 'Lalita Kumari vs. State of UP & Ors.' (2013) 14 SCR 713 was delivered on 12.11.2013 whereas the preliminary enquiry had culminated in 2006.
69. Ld. defence counsel further asserts is that accused V.K. Jain (AE) alone cannot be held responsible for non compliance of the orders of the Hon'ble High Court of Delhi as the other officials viz. JE, OI (B), EE and even the DC were well aware of the pending unauthorized construction files. This contention is also not sustainable. Other officials of the MCD might also be liable for non-compliance of the orders of the Hon'ble High Court, however, since it was only the accused V.K. Jain (AE) CC No. CBI/70/2019 Page No. 41 of 43 RC-SID E001 2006 Digitally signed CBI vs. Vijay Kumar Jain by NISHANT NISHANT GARG GARG Date:
2025.08.07 16:09:40 +0530 who faced trial before this court, this aspect cannot be gone into. The investigating agency had filed reports dated 16.05.2017 and 14.08.2017 pursuant to the orders dated 24.04.2017 and 17.05.2017 of this court and had clarified the role of other officials of the MCD. Only thereafter, charge for commission of offence under Section 217 IPC was framed against the accused.
70. Lastly, Ld. defence counsel submitted that the investigating agency was aware from the very beginning that at the most, it was a case of misconduct but it deliberately lodged FIR for commission of offence punishable under the Prevention of Corruption Act to bypass the requirement of obtaining permission from the Magistrate to investigate a non-cognizable offence. I am not in agreement with the contention of the Ld. defence counsel. Perusal of the preliminary enquiry report reveals that it specifically mentions that accused V.K. Jain has committed criminal misconduct and has abused his position as a public servant to cause favour to owner of 15 properties. Not only the accused V.K. Jain (AE), but also other officials of MCD and owners of 15 subject properties were made accused in the FIR/RC. Hence, it cannot be said that the FIR was intentionally registered by the investigating agency under the stringent provisions of Prevention of Corruption Act.
CONCLUSION
71. From the above discussion, it can be concluded that accused V.K. Jain (AE) intentionally retained the subject 15 files with him despite passing of orders for issuance of demolition notices in 12 of such files and demolition orders in the remaining CC No. CBI/70/2019 Page No. 42 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain Digitally signed NISHANT by NISHANT GARG GARG Date: 2025.08.07 16:09:47 +0530 three files. He did this to prevent further action being taken against the 15 subject properties despite being aware of the direction of the Hon'ble High Court of Delhi in its order dated 11.04.2005 in C.L. Lohia matter. The prosecution has led sufficient evidence to establish the guilt of the accused beyond reasonable doubt.
72. Accordingly, accused V.K. Jain is held guilty for commission of offence under Section 217 IPC and is convicted for the said offence.
Digitally signed by NISHANT NISHANT GARG GARG Date: 2025.08.07 16:09:56 +0530 Announced in Open Court (NISHANT GARG) on 7th of August, 2025 ACJM-2-cum-ACJ ROUSE AVENUE DISTRICT COURTS, NEW DELHI CC No. CBI/70/2019 Page No. 43 of 43 RC-SID E001 2006 CBI vs. Vijay Kumar Jain