Cbi V. Naresh Chandra & Ors vs Cbi on 21 December, 2018

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Delhi District Court

Cbi V. Naresh Chandra & Ors vs Cbi on 21 December, 2018

                                   1

          IN THE COURT OF SH. SANJIV JAIN
   SPECIAL JUDGE (PC ACT), CBI03, SOUTH DISTRICT,
              SAKET COURT, NEW DELHI


CNR No. DLST010000102003
CC No. 17/12 (4/16)
RC No. 44(A)/2000/CBI/ACB/N.D
U/s 120B IPC r/w Section 420 and r/w U/S 13(2)
r/w 13(1)(d) of Prevention of Corruption Act, 1988
and substantive offence u/s 420 IPC


Central Bureau of Investigation


        Versus


A1     Naresh Chandra
        S/o late Jagdeshwar Dayal
        Prop. M/s Nidhi Builders
        Office Address: Nidhi House,
        B2/1B, Safdarjung Enclave,
        New Delhi
        R/o E152, Saket, New Delhi.                 Accused no. 1

A2     Ram Dandona
        S/o late Panju Ram Dandona
        Prop. M/s Ram Dandona & Associates,
        Architect and Interior Designer,
        C156, Defence Colony, New Delhi.
        R/o D62, Navkunj Apartments,
        87, I.P. Extesion, Delhi - 92.               Accused no. 2

A3     Sandeep Sharma
        S/o Sri Prabha Shankar Sharma,
        JE/MCD/South Zone,

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CBI v. Naresh Chandra & Ors.
                                          2

        R/o 8/178C, Sector - 3,
        Rajinder Nagar, Sahibabad,
        Distt. Ghaziabad, U.P.                                   Accused no. 3

A4     Surinder Pal
        S/o Sh. Harbans Lal Kumar,
        the then ZE(B),
        MCD, South Zone,
        R/o 161, Sainik Vihar,
        Pitampura, Delhi - 34.                                   Accused no. 4

A5     Mohan Jain
        S/o Sri Kapoor Chand Jain
        R/o C4, Jeewan Sudha,
        Juhu Lane, Andheri West,
        Mumbai - 58.                                             Accused no. 5

A6     Deepika Jain
        W/o Sri Mohan Jain
        R/o C4, Jeewan Sudha,
        Juhu Lane, Andheri West,
        Mumbai - 58.                                             Accused no. 5

Date of FIR                          :          24.08.2000
Date of filing of Chargesheet       :          23.07.2003
Arguments completed on               :          19.12.2018
Date of judgment                     :          21.12.2018



JUDGMENT

BRIEF FACTS OF THE CASE

1. The quest in all criminal trials is to arrive at the truth and therefore, the role of the Judge is to cull out the true facts from the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 2 of 168 CBI v. Naresh Chandra & Ors.

evidence led before him and ensure that guilty does not go scotfree and innocent's life and liberty is not jeopardised. This role of the Judge has been explained in the case of Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 345 thus:

A criminal trial is a judicial examination of the issues in the cases and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings, the controlling question being the guilt or innocence of the accused. Since the object is to meet out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not be an isolated scrutiny.

2. This case vide RC No. 44(A)/2000/CBI/ACB/ND was registered u/s 120B IPC r/w 13(1)(d) of the Prevention of Corruption Act, 1988, on a source information against Mohan Jain, Deepika Jain, owners of the property no. B7/105A, Safdarjung Enclave, New Delhi, Ram Dandona, Architect, Naresh Chandra, Proprietor of M/s Nidhi Builders, R.B.S. Bansal, the then ZE (B), MCD, South Zone, Sandeep Sharma the then JE (B) MCD, South Zone and some unknown persons/officials who sometime during 1994 entered into a conspiracy with an object to cause undue pecuniary advantage to the owners and builder who carried out unauthorized RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 3 of 168 CBI v. Naresh Chandra & Ors.

construction on the said property in gross violation of the building bye laws especially with regard to the ground coverage, parking, set back lines and, FAR in utter violation of sanctioned plan.

3. Briefly, the facts as revealed in the investigation are that Naresh Chandra of M/s Nidhi Builders purchased the property from DDA through auction in the name of Mohan Jain and Deepika Jain vide Perpetual Lease Deed dated 15.02.1994. A proposal for sanction of building plan was submitted to MCD on 28.02.1994. The building plans were approved by the Building Plan Committee on 29.04.1994 and released on 10.06.1994. The sanction plans were received by the architect Ram Dandona. Investigation revealed that the plot was auctioned by DDA on 08.12.1993 and was allotted to Mohan Jain and Deepika Jain being the highest bidder for Rs. 62,05,000/. Vishal Jain son of Mohan Jain had participated in the bid as per the attendance sheet dated 08.12.1993 of DDA giving his address as E152, Saket, New Delhi which belonged to Naresh Chandra, builder. The account of Vishal Jain at Vijaya Bank, R.K. Puram was introduced by Naresh Chandra on 07.12.1993 who also transferred the amount from his account to the account of Vishal Jain through which pay orders favouring DDA towards the payment for above plot were made. Form C1 was issued by MCD on 25.08.1994 under the signature of Sandeep Sharma, JE building against a certification from Ram Dandona Architect to the effect that the work has been done in accordance with the building bye laws and no noncompoundable deviations have been found. Investigation revealed that the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 4 of 168 CBI v. Naresh Chandra & Ors.

construction work commenced on 10.06.1994 and the structure of the building was completed on the date of form D1 i.e. 26.10.1994 which was issued by J.P. Dabas, the then JE building, MCD South Zone.

4. A technical committee of MCD Engineers was constituted which examined the building on the request of CBI which observed non compoundable coverage of 652.42 sq.ft in excess of the permissible area of 1769.61 sq.ft in the basement and 949.8 sq.ft in excess of the permissible area of 1769.61 sq.ft on the ground floor, 1009.12 sq.ft in excess of 1769.61 sq.ft on the first floor, 1095.11 sq.ft in excess of 1769.61 sq.ft on the second floor and 1449.04 sq.ft in excess of 1415.69 sq.ft on the third floor. The committee also found noncompoundable deviations in respect of setbacks which was 7 ft in the front and 9 ft on the sides and 6.4 ft on the rear. The FAR was 323.77 as against the permissible FAR of 190. The committee also reported variations in respect of the height of the basement and other features.

5. Investigation revealed that Ram Dandona architect was engaged by Naresh Chandra and was responsible to supervise the construction in accordance with the building bye laws but he allowed the unauthorized construction on all the floors including the basement and deliberately facilitated the builder to encroach more area on all the floors and gave the false certification on the basis of which form C1 and D1 were issued by the MCD.

6. Investigation further revealed that Sandeep Sharma JE (Building) was posted in Ward no. 30 during the period from 23.02.1994 to RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 5 of 168 CBI v. Naresh Chandra & Ors.

05.05.1994 and 19.05.1994 to 23.08.1994 i.e. the period during which the building was constructed. He wilfully did not conduct the inspection of site under construction nor maintained any record/register in this regard as was incumbent upon him to do vide circular no. 10/EE(B)/HQ/93 dated 09.09.1993 of MCD. He with mala fide intention issued form C1 in respect of the property on 25.08.1994 a day after receiving the transfer orders and suppressed this information from his successor J.P. Dabas by not recording this fact in the construction register owing to which the building could not be physically inspected by J.P. Dabas within a week and consequently, the builder was given undue advantage of this situation who continued the construction in violation of the building bye laws.

7. Investigation revealed that J.P. Dabas, JE building after issuing form D1 on 26.10.1994 inspected the site and booked the building for unauthorized construction on 31.10.1994 and got the show cause notice issued on 09.11.1994 for demolition of deviations from R.P.S. Bansal, ZE (B) when no reply was received. He also passed the demolition order on 21.11.1994 and marked the file to the Office Incharge building for necessary action. The sealing process was initiated by R.S.Seharawat, JE (B) who issued the show cause notice for sealing on 29.05.1995. When the builder/owner did not reply to the notice, he issued the sealing order on 27.06.1995.

8. Investigation revealed that Surinder Pal, ZE (B) on 27.11.1995 put up a proposal to ZAC South Zone on the representation of the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 6 of 168 CBI v. Naresh Chandra & Ors.

owner/builder who offered to deposit the compounding fee. He put up a report in respect of compoundable deviations on payment of Rs. 2,39,125/ and noncompoundable deviations required to be removed. The proposal was approved by the ZAC South Zone and the Additional Commissioner (Engineering) and accordingly he issued a letter dated 04.12.1995 calling upon the applicant/owner to deposit the compounding fee and remove the non compoundable deviations within a month failing which already passed sealing order would be executed. Investigation revealed that Surinder Pal did not execute the sealing order when non compoundable deviations were not removed and he instead gave a twist by putting a note dated 13.02.1996 seeking approval for the case to be taken up for hearing without any such request from the party/builder which led to further delay in sealing the property. He endorsed technically erroneous report of his subordinate Sanjeev Jain, JE (B) vide which owner/builder had deposited the compounding fee of Rs. 2,39,125/. As per the policy, 5% of the permissible coverage/FAR could be compounded subject to maximum of 13.5 sq.mtrs but in the said report, 22.58 sq.mtrs of area was compounded leaving certain compoundable fee chargeable against projections/balconies, cupboards, machine room etc.

9. Investigation revealed through the ledger book of the architect Ram Dandona that the payments were made to him by Naresh Chandra and he knew the builder and not Mohan Jain and Deepika Jain.

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10. Investigation also revealed that Naresh Chandra got prepared a GPA and SPA of the said property in favour of his wife from Mohan Jain and Deepika Jain without mentioning the date of its execution, getting it notarized on 09.07.1994. Investigation also revealed that the property was got converted from lease hold to free hold vide Conveyance Deed dated 10.05.1995 through the SPA holder Naresh Chandra on behalf of Mohan Jain and Deepika Jain who denied their signature on the said document. As per the text of this SPA, Mohan Jain and Deepika Jain had authorized Naresh Chandra to get the Conveyance Deed done owing to their ill health but documents show that they were in Delhi on 04.05.1995 and 08.05.1995.

11. Investigation further revealed that Smt. Shashi Singhal sold the property to Naresh Chandra vide sale deed dated 27.11.1995 on the basis of GPA. The sale deed has a reference of agreement to sell and consideration amount of Rs. 1,75,00,000/. Photocopies of Agreement to Sell searched in the premises of Naresh Chandra revealed that in that agreement, no detail of consideration amount was given.

12. During investigation, no criminality was found against Mohan Jain and Deepika Jain. It was found that Naresh Chandra had used them as a front for this deal. No criminality was also found against R.P.S. Bansal and J.P. Dabas who had issued form D1 on 26.10.1994 and booked the deviations after the site inspection on 31.10.1994.

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13. The sanction for prosecution was taken from competent authority against the public servants Sandeep Sharma and Surinder Pal for the offence u/s 120B IPC r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences.

14. After the investigation, accused Naresh Chandra, Ram Dandona, Sandeep Sharma and Surinder Pal were chargesheeted. The names of Mohan Jain, Deepika Jain, J.P. Dabas and R.B.S. Bansal were kept in column no. 2 in the chargesheet.

15. This Court vide detailed order dated 06.08.2003 took the cognizance of the offences against the accused Naresh Chandra, Ram Dandona, Sandeep Sharma, Surinder Pal, Mohan Jain and Deepika Jain and summoned the accused persons.

CHARGE

16. Ld Predecessor of this court vide detailed order dated 19.04.2010 reached at the conclusion that a prima facie case is made out against the accused persons viz. Naresh Chandra, Ram Dandona, Sandeep Sharma, Surinder Pal, Mohan Jain and Deepika. Accordingly, on 20.05.2010, all the accused persons were charged for the offences punishable U/Sec. 120B IPC r/w section 420 IPC and u/s 13(2) r/w section 13(1)(d) of the Prevention of Corruption Act, 1988. Accused Sri Ram Dandona, Mohan Jain, Naresh Chandra, Sandeep Sharma and Deepika Jain were also charged for the offence punishable U/sec. 420 IPC. Accused RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 9 of 168 CBI v. Naresh Chandra & Ors.

Surinder Pal and Sandeep Sharma were also charged for the offence punishable u/sec. 420 IPC, 13(2) r/w section 13(1)(d)of the Prevention of Corruption Act, 1988. All the accused persons pleaded not guilty and claimed trial.

EVIDENCE

17. In order to prove its case, prosecution, examined as many as 29 witnesses. The gist of statements of witnesses is as under:

17.1 PW1 Jai Prakash Dabas was posted as JE building, South Zone MCD in the year 1994. He, after seeing the document D1 dated 26.10.1994 (D1) Ex.PW1/A stated that Form D1 was issued after deposit of fee of Rs. 15/. It contains a certification that the sanitory / water supply work has been executed by the licensed plumber and sainitory contractor. It also contains a verification by the architect that the above work had been inspected by him.

He stated that he had inspected the property B 7/105A, Safdarjung Enclave on 31.10.1994 and lodged the FIR against Deepika Jain and Mohan Jain Ex.PW1/B (D1) since he found noncompoundable deviations from the sanctioned plan. He stated that he joined the area on 24.08.1994 and remained there till 22.12.1994. He placed on record the list of tenure of JEs in the building department, South Zone, MCD ward no. 13 during the period from 01.01.1994 to 30.07.2001(D21) Mark PW1/A. He stated that though on 25.08.1994, he was posted in the area/ward but he had not issued the Form C1(D10) Mark PW1/B and it was issued by the accused Sandeep Sharma. He stated that after RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 10 of 168 CBI v. Naresh Chandra & Ors.

31.10.1994, he had gone to the site 34 times but could not meet the owner/builder even once. He stated that the circular no. 10/E (B)/HQ/93 dated 09.09.1993 (D23) Mark PW1/B1, contains standing instructions regarding inspection by JE (building) of the building under construction in the area of which plan has been sanctioned at the initial stage of construction.

On being cross examined, he stated that the demolition order was passed on 21.11.1994. The sanction plan of the building was passed on 10.06.1994. The structure of the building was completed by 31.10.1994. He was shown the circular no. 38/building dated 05.09.1977 Mark PW1/DA and he stated that the building under construction is kept in priority in the matter of demolition over the buildings which have already been constructed. He stated that he did not carry out the demolition of the building between the period from 31.10.1994 to 22.12.1994. He stated that form D1 was submitted on 26.10.1994 and at that time the building structure was complete. From the register it can be seen that new buildings were unauthorizedly constructed and action in relation to the same was also being taken contemporaneously. He stated that the buildings which were constructed go behind in priority to those buildings which are under construction. He admitted that Form D1 Ex.PW1/A covenants the certification of the licensed plumber and architect only to the extent that the sanitary and water supply work / drainage work is complete. He also admitted that on Ex.PW1/A, the dates of final inspection are blank. He admitted that form C1 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 11 of 168 CBI v. Naresh Chandra & Ors.

is in regard of the underground drainage and pipeline work and same precedes form D1. He admitted that whenever he visited the property after 31.10.1994, he never saw the accused Ram Dandona at the premises. He stated that form D1 was submitted in accordance with the prevalent procedure and he had signed and endorsed the same in accordance with the prevalent procedure. He admitted that the FIR Ex.PW1/B does not indicate any violation of established procedure of drainage and sanitation. He stated that Mohan Jain as on the date of issuance of Form D1 Ex.PW1/A was the owner of the building. He stated that he never maintained construction watch register during his tenure in the building department. He admitted that there is a circular Mark PW1/X1 as per which any JE who is present in the office can accept the C1 form.

17.2 PW2 Rafiq Ahmed was JE (B), Headquarters MCD Delhi. He had processed the file pertaining to the above plot. He had also processed the building plans for construction of the building on the said plot. He proved the sanction release letter dated 10.06.1994 EX.PW2/A (D11) and the sanction plan Ex.PW2/B. He stated that the letter Ex.PW2/A was received by Ram Dandona. He stated that when he inspected the plot on 15.03.1994, the construction had not yet started and the plot was vacant. He had raised query about the size of the plot which was not tallying with the layout plan available in the office vide note dated 15.03.1994 Ex.PW2/C (D11). He stated vide agenda Ex.PW2/D dated 27.04.1994, item RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 12 of 168 CBI v. Naresh Chandra & Ors.

no. 81 of 94, the plan of the above property was approved (note 14 to 16).

He stated that instant C1 form is applied before the text clerk who issues a receipt of Rs. 10/. The form is then presented before the JE present in the office for acceptance and any JE who is present in the office can accept the form. It is not necessary that the form should be accepted by the concerned JE/AE.

He stated that in the year 1994, no building watch register was being maintained in the office. He stated that the construction was started after release of the building plan. He stated that the building sanction plan was processed in accordance with the building bye laws.

17.3 PW3 M.M. DassChief Engineer(retired) explained the procedure to be followed during construction of the building as per bye laws of the MCD. He stated that in this case, the building plan application was submitted on 28.02.1994 by Deepika Jain and Mohan Jain. A notice was issued on 16.03.1994 by AE pointing out the shortcomings in the plan. It was released on 10.06.1994 after the building plan committee approved it. He stated that he was Incharge of the technical committee of MCD which had inspected the site on the request of CBI and submitted a report Ex.PW3/B1 (six pages) along with the forwarding letter Ex.PW3/B2 (D13). He stated that when they inspected the site, Ram Dandona was not there. He stated that they did not take the photographs of the site nor prepared any video and he cannot say RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 13 of 168 CBI v. Naresh Chandra & Ors.

during which period, the deviations came into being. He stated that he did not check or verify the deviations if any from the point of sanitation and drainage. He stated that he cannot say whether the deviations mentioned in the survey report Ex.PW3/B1 came into being after the issuance of Form D1.

He stated that instant C1 form is submitted by the owner and the architect and no site inspection is required. It is received in the zone by the concerned clerk / JE present in the zone. Any JE of the zone can issue/accept instant C1 form. He stated that unauthorized construction can be carried out after the issuance of C1 form and D1 form. Over head tank, underground tank and machine room for the lift in the basement are not covered in FAR. He stated that as per the sanction, machine room was not allowed on the terrace but in the basement.

He stated that complaint Ex.PW7/DC addressed to the Lt. Governor by the residents of Safdarjung Enclave was received in the office of MCD on 07.04.1995 and as per the complaint, unauthorized construction was carried in plot no. B7 /105A, Safdarjung Enclave having the reference of Nidhi Builders and it was alleged in the complaint that the building bye laws were not followed. The noting in this respect was made vide Ex.PW7/DD dated 16.05.1995. He admitted that the signature of Deepika Jain and Mohan Jain do not appear on Ex.PW3/DX or Ex.PW2/A (D

11) as to the receiving of the sanction plan.

He was shown the show cause notice dated 31.10.1994 issued to Mohan Jain and Deepika Jain regarding RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 14 of 168 CBI v. Naresh Chandra & Ors.

unauthorized construction Ex.PW3/Y1 and he stated that as per the notice there were deviations right from the basement upto the third floor. He stated that as per the transfer and postings, J.P.Dabas was JE (B) during the period from 24.08.1994 to 22.12.1994 in the area of Safdarjung Enclave and Rambir Singh Bansal was AE (B) during the period from 20.06.1994 to 24.04.1995. He stated that Deepika Jain and Mohan Jain were issued show cause notice Ex.PW8/D2 dated 29.05.1995 with regard to unauthorized construction and the construction in the said notice was the same as was at the time of original booking i.e. 31.10.1994 and on 29.05.1995 R.S. Sehrawat was the JE (B) and R.K. Bhattacharya was the AE (B).

He stated that accused Surinder Pal was AE (B) during the period from 15.08.1995 to 18.03.1996. He admitted that as per the record, there was no unauthorized construction in the premises during the tenure of the accused Surinder Pal as AE (B). He admitted that once the owner of the building approaches the MCD for compounding of the compoundable portions, it becomes the duty of the JE(B) to inspect and report what portions are compoundable and what are noncompoundable and MCD is under duty to give a hearing to the owner. He stated that the notice Ex.PW4/A given by the accused Surinder Pal was in confirmity with the rules of the MCD and as per the document Ex.PW5/A the hearing was given to the owners thrice i.e. on 07.03.1996, 19.04.1996 and 10.05.1996 and in sealing cases with respect of unauthorized construction, ZE has no power to give RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 15 of 168 CBI v. Naresh Chandra & Ors.

personal hearing to the owner of the building. He stated that there is priority in relation to sealing and demolition of unauthorized construction. The last booked property is demolished first in time. The purpose behind this was to prevent further unauthorized construction. He admitted that as per the record, no occupancy certificate was issued to the owner.

17.4 PW4 Rakesh Mohan was Additional Commissioner, in the Engineering Wing during 1996. He was shown the note at Page 4 dated 23.02.1996 (D10) in respect of sealing of the property in question and he stated that the note Ex.PW4/A bears his signature. He stated that the proposal was made by the accused Surinder Pal for hearing as per the note dated 14.02.1996 for the ZAC and he had fixed the case for hearing. He stated that Mohan Jain and Deepika Jain had addressed a letter to ZAC vide dated 06.12.1995 (page no. 37/C file D10 Mark PW4/1) and in the letter, request for hearing was not made by them. He admitted that letter dated 08.11.1994 related to the proposal to pay the compounding fee whereas the letter dated 06.10.1995 was for seeking an appointment of an official to calculate the compounding fee for the deviation. He stated that based on that letter,additional Commissioner approved the note put up by the ZE vide dated 29.11.1995 and an inspection report was submitted by the JE for the purposes of calculation of compoundable deviation and non compoundable deviation on 02.11.1995 and a letter was written by ZE(B) on 04.12.1995 in which he had mentioned the amount of compounding fee payable and for removal of noncompoundable RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 16 of 168 CBI v. Naresh Chandra & Ors.

structure.

He stated that the letter Mark PW4/1 in the file was put up before him and the letter states at point D that entire matter finally squared up and all notices previously issued on the subject by MCD stand withdrawn'. He stated that the letter also states at point E that the compounding fee has been deposited. He stated that as per the note Ex.PW4/A which has a reference of letter dated 07.12.1995, there were noncompoundable deviations which were not removed and this fact was not mentioned in the letter Mark PW4/1.

17.5 PW5 Vishnu Swaroop was the Additional Commissioner (Engg.) during the period 1996. He was shown the sealing file D 10 pertaining to the above property and he stated that as per the note 4/N, he had given hearing to the party on 19.04.1996 and 15.05.1996 and on both the dates, the respondent did not turn up. On 10.05.1996 he had raised a query that there should be an action against the party for demolition and sealing. He stated that the letter dated 06.12.1995 Mark PW4/1 did not have a request for personal hearing. He stated that there was no such practice for giving personal hearing but after 1986, on the Court directions, hearing was given to the parties under principles of natural justice and there is also a circular in this respect i.e. 0041/Building dated 10.08.1970 Ex.PW5/DA and Ex.PW5/DB. He stated that when he was giving hearing in this matter, the letter Mark PW4/1 was in the file D10 (Ex.PW5/X1). He stated that the file contains at page 51C a request for issuance of Form C bearing the signature of the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 17 of 168 CBI v. Naresh Chandra & Ors.

owner at point X and an application for Form D Ex.PW1/A bearing the signature of the alleged owner at point X. He stated that the alleged owner/builder never requested for hearing and the letter dated 08.11.1994 at page 31C Mark PW5/DC shows that the person signing had informed the MCD that they are prepared to pay compounding fee regarding unauthorized construction if any. He stated that the Surinder Pal ZE (B) had processed the letter Ex.PW5/DC vide Ex.PW5/DD dated 04.12.1995 and thereafter a letter dated 06.10.1995 at page 32/C mark PW5/DE was addressed to the ZAC whereby MCD was asked to depute an officer for calculating the compounding fee.

17.6 PW6 Mehtabuddin KhanOffice Incharge Building Department proved the letter No. D891/Bldg./SZ/2001 dated 07.09.2001 Ex. PW 6/A whereby it was intimated that the accused Sandeep Sharma JE Building was relieved from the charge of Safdarjang Development Area by the orders of the office. He stated that he cannot say on which date Sandeep Sharma handed over the charge or when he took the charge of the other area. He admitted that he was not transferred out of the zone but was given the charge of different area. He admitted that Zonal Engineer building can make internal changes in the office. He stated that J P Dabas and Sandeep Sharma had been working under the same ZE, Building. He admitted that date of receipt of the order is not mentioned but he stated that beneath the signatures of one JE, the date is mentioned as 25.08.1994 at Point A on Ex. PW 6/DB.

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17.7 PW7 Manmohan Singh Dahiya was JE, Building in April, 1996 in South Zone MCD under Ravinder Singh, ZE, Building. He stated that Ravinder Singh, ZE Building had marked him a letter Ex. PW 7/A in file Ex. PW 5/X1 (D10) to submit the latest site position of the property which was submitted vide report dated 17.04.1996 Ex. PW 7/B in file Ex. PW 5/X1 stating that the owner/builder has deposited the compounding fee of Rs.2,39,125/ for compoundable deviations and the owner/builder has not started the rectification work for the noncompoundable deviations till date. He admitted that as per the circular, construction register was required to be maintained by the JE Building but no such register was maintained. He stated that C1 Form is an instant form which is to be issued immediately and it has to be accepted by the concerned JE and in case, he is not available, any other JE available in the office can accept it and there is a circular/order of Deputy Commissioner that Zonal Engineer shall ensure that one JE Building remains available in the office to accept C1 Form. He admitted that separate Receipt Register for this purpose is maintained by the Tax Clerk in the office of ZE, Building. He stated that during his tenure in the area, he never saw any construction activity on the said plot of land. He admitted that he never visited the aforesaid property. He stated that in the complaint Ex. PW 7/DA (D10), it was mentioned that Nidhi Builders was making unauthorized construction on the aforesaid plot and this complaint was marked to ZE, Building.

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17.8 PW8 R.K. BhattarcharyaExecutive Engineer stated that the property B7/105A Safdarjung Enclave was booked for unauthorized construction on 31.10.1994 and the demolition order was passed on 21.11.1994. JE had put up the file for issuing show cause notice for sealing inview of unauthorized construction. The matter was placed before ZAC and Additional Commissioner and after approval, show cause notice was issued for sealing which was served on the owner/builder by pasting/registered post but no reply was received. The file was then put up for final order. Thereafter a note was put up for sealing order before the Additional Commissioner who approved it. He stated that in 1994, there was only one ZE, Building in the entire zone and all the JEs and Officer Incharge had been working under him ZE, Building could make internal changes of the JEs in the zone. He admitted that J P Dabas and Sandeep Sharma were working under the same ZE and at that time, there were 78 JEs in the building. He stated that he was ZE (Building) during the period from May, 1995 to 14.08.1995 but he never visited the aforesaid building and as per the record, R S Sehrawat, JE was entrusted with this job. He stated that the note Ex. PW 7/DD was regarding the action taken by them in respect of unauthorized construction by Nidhi Builders on the above plot. He stated that no rough sketch of unauthorized construction was appended with the notice Ex. PW 8/D2. He admitted that ZE (Building) has no power to give personal hearing to the owners in sealing cases. He stated that in this case, the compounding fee for the basement was also levied. He stated that RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 20 of 168 CBI v. Naresh Chandra & Ors.

there is an office order by which priority of demolition and sealing is determined by the MCD. The first priority is to carry out the demolition/sealing under the court order. Second priority is to carry out the demolition/sealing of commercial structure and the third priority is with regard to the last booked property which is under construction to be demolished/sealed. 17.9 PW9 T. Sadashiva Marla was the Senior Branch Manager in Vijaya Bank, R K Puram branch from July, 1996 to April, 2000. He proved the account opening form and statement of account in respect of Saving Bank A/c No. 13235 of Vishal Jain, A/c No. 7954 of Naresh Chandra, A/c No. 7268 of Shashi Singhal, current A/c No. 1416 of Nidhi Builders and Current A/c No. 1574 of Nidhi Promoters Ex. PW 9/A1 to Ex. PW 9/A10 respectively.

He stated that as per Ex. PW 9/A4, Rs.28.0 lacs were deposited on 07.12.1993 in the account of Naresh Chandra and on the same day, the amount was withdrawn from the said account and was credited in the account of Vishal Mohan Jain vide ledger Ex. PW 9/A2 who had opened the account on 07.12.1993. He stated that as per Ex. PW 9/A2, no OD facility was given in the account of Vishal Mohan Jain. He stated that the account No. 1574 Ex. PW 9/A8 of Nidhi Promoters Pvt. Ltd reflects OD facility and the ledger account of Vishal Mohan Jain Ex. PW 9/A2 reflects credit of Rs.26.05 lacs on 13.01.1994. It again shows a credit of Rs.20.15 lacs from OD Account on 25.01.1994 and after 02.09.1994, there was no withdrawal/deposit in the account of Vishal Mohan Jain except crediting of interest by the bank. He RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 21 of 168 CBI v. Naresh Chandra & Ors.

stated that as per the statement Ex. PW 9/A2, Rs.14,960/ were deposited in the account of Vishal Mohan Jain and a cheque of Rs.10.0 lacs was debited from the account of Vishal Mohan Jain on 08.12.1993 and credited to the account of Naresh Chandra. He stated that in case, cheque is dishonoured for want of funds and, if the accounts of the parties are in the same bank, no entry is made in either of the accounts of the parties.

17.10 PW10 S.K. Peshin was DSP in CBI. He on the authorization of DSP/IO M.S. Singhal conducted the search of the premises of Ram Dandona and Associates at C156, Defence Colony (Top Floor) and seized the documents vide memo Ex. PW 10/1. He stated that at the time of search, Ram Dandona was not present but his employee Mr. Bhatt was present.

17.11 PW11 Manoj Kumar Das was the Assistant Sales Tax Officer in 2000. He had accompanied the CBI team to Safdarjung Enclave at the premises of Naresh Chandra where the search was conducted. He proved the memo dated 25.08.2000 about the seizure of documents Ex. PW 11/1.

17.12 PW12 Y.K. Tyagi had accompanied the CBI team to the office of the accused Ram Dandona at Defence Colony for search. 17.13 PW13 Rakesh Kumar Sabharwal had accompanied the CBI team to the residence of accused Ram Dandona at Navkunj Department, I P Extension, Patparganj, Delhi for search. He proved the seizure memo of documents Ex. PW 13/1.

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17.14 PW14 Ramesh Chand was present when the videography of the buildings situated in Greater Kailash and Safdarjung Development Area was done by the CBI. He proved the memo regarding the proceedings conducted there vide memo Ex PW 14/A. 17.15 PW15 Ms. Jaya Singh was shown the photocopy of the Sale Deed dated 04.03.1996 executed by Naresh Chandra in her favour in respect of flat on the first floor in the rear portion at plot No. 105A/B7 Safdarjung Extension Ex. PW 15/A , original of which she produced in the court. She stated that she had seen the original documents in the name of Naresh Chandra before she purchased the same. She stated that all the negotiations pertaining to purchase of flat were made by her with the accused Naresh Chandra. The broker had verified the documents of ownership of flats in favour of Naresh Chandra and she had relied upon his verification. She admitted that after she purchased the flat, the entire building was sealed by the order of the High Court. Thereafter, she and other purchasers had approached the High Court for desealing. She stated that after the building was sealed, she never approached the accused Naresh Chandra. She stated that she never met the accused Deepika Jain and Mohan Jain whose names are appearing in the Sale Deed Ex. PW 15/A nor she knew them. She stated that apart from Sale Deed Ex. PW 15/A, no other document was handed over to her by the accused Naresh Chandra. 17.16 PW16 Anil Kumar Bhardwaj brought the original Sale Deed of the property No. B7/105A Safdarjung Enclave Extension, rear basement which he had purchased from Naresh Chandra on RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 23 of 168 CBI v. Naresh Chandra & Ors.

14.08.1996 vide Ex. PW 16/A. He stated that he does not remember if he had seen the original Sale Deed of the property in the name of Naresh Chandra when he purchased the basement on 14.08.1996. He stated that as per his knowledge, Naresh Chandra was the owner of the property. He stated that he purchased the property since accused Naresh Chandra had represented that he was the owner of the property.

17.17 PW17 K. Dhananjay Reddi was Deputy Director, LA, Residential in DDA on 24.08.2001. He handed over the certified copies of the documents/files in respect of property No. B7/104A, B7/105A and B7/106A, Safdarjung Development Area including a file F1 (59)/93LSB(R)/PT (running from Page 1 to 48) Ex. PW 17/B collectively. He stated that Page 43 to 45 contain rules/terms and conditions regarding auction of residential plots and as per Rule 1(a), any individual who is not minor and citizen of India could purchase leasehold rights in any one plot by bid in auction if he, his wife/husband, any of his/her minor or dependent children or dependent parents or dependent minor sisters/brother ordinarily residing with him/her do not own in full or in part on leasehold or freehold basis any residential plot or flat or a house nor he has transferred any such plot or flat to anyone in the past. As per Rule 1(b), if the purchaser is married, the bid will have to be given in the joint names of wife and husband and if he is unmarried, he will have to apply for inclusion of name of wife/husband after marriage. He stated that Page 26 to 29 contain the attendance sheet of the bidders who had participated in the auction on 08.12.1993 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 24 of 168 CBI v. Naresh Chandra & Ors.

and at Srl. No.12 mark D1, the name of the bidder was recorded as Vishal Jain against Draft No. 094402 for Rs.1.0 lakh, at Srl. No.14 mark D2 the name of the bidder was recorded as Ravi Garg against draft no. 094400 for Rs.1.0 lakh and against Srl. No.17 mark D3, the name of bidder was recorded as Rakesh Kumar Sharma against draft no. 094401 for Rs.1.0 lakh. He stated that except the above three drafts, the other drafts were not in such series or numbers. He stated that Page 12 of Ex. PW 17/B i.e. bid form on behalf of Deepika Jain and Mohan Jain finds mention submission of draft no. 094402 dated 07.12.1993 for Rs.1.0 lakh, 094403 for Rs.5.0 lacs, 094406 for Rs.5.0 lacs, 094407 for Rs.5.0 lacs issued by Vijaya Bank, R. K. Puram, New Delhi. 17.18 PW18 Inspector Alok Kumar, CBI had visited the premises no.

B7/105A at Safdarjung Enclave Extension with the CBI team. In his presence, videography and photography of the building was done. The pictures of the adjoining buildings were also taken. He stated that the building consisted of a basement, ground, first, second, third floor and terrace. He stated that there was a lift in the building which was also videographed/photographed. He identified the copy of the original video cassette mark X. It is pertinent to mention that the original of the video cassette was not produced in the court.

17.19 PW19 Rambir Singh Bansal was ZE, Building in Green Park South Zone in 1994. His duty was to control the buildings through JE. He explained the procedure relating to sanction of plan of the building. He stated that in this case, the plan was sanctioned by the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 25 of 168 CBI v. Naresh Chandra & Ors.

Building Head Quarters and forwarded to ZE Building on 10.06.1994 which he marked to the concerned JE. He stated that the sealing file D10 contains a letter dated 10.06.1994 mark PW 19/PX in the name of Smt. Deepika Jain vide which the sanction plan mark PW 19/PX1 was communicated to JE Sandeep Sharma on 20.06.1994. He stated that the JE had inspected the area and found some unauthorized construction/deviations. He prepared the FIR Ex. PW 1/B and on that basis, showcause notice dated 31.10.1994 Ex. PW 3/Y1 under DMC Act was issued by him to the owner of the property.

He admitted that in relation to a building or anything connected thereto, MCD recognizes only the owner and it has nothing to do with the builder. He admitted that J P Dabas had inspected the site on 31.10.1994 and prepared the FIR and in that FIR, he had mentioned that on enquiry at the spot, it came to his knowledge that the owners of the property were Smt. Deepika Jain and Mohan Jain R/o B7/104A Safdarjung Enclave. He admitted that the showcause notice Ex. PW 3/Y1 was issued in the name of Mohan Jain and Deepika Jain. Building plans were submitted in the name of Mohan Jain and Deepika Jain and were also sanctioned in their names and the file D10 does not contain any communication by him to the accused Naresh Chandra. He stated that the file D11 contains the joint affidavit of Smt. Deepika Jain and Mohan Jain mark PW 19/D1 attested on 21.02.1994 which were submitted with the proposed sanction plan in the Building Head Quarter and there is no document on record showing that RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 26 of 168 CBI v. Naresh Chandra & Ors.

during the process of construction, there was change in ownership.

He stated that he had issued the showcause notice on the basis of the report of the JE. He stated that the note Ex. PW 7/DD (Part of D10) finds mention about the complaint received from the LG office regarding unauthorized construction/ encroachment being made by the Nidhi Builders at plot No. B 7/105A Safdarjung Enclave. He stated that on the basis of letters Ex. PW 7/DA and Ex. PW 7/DC i.e. the complaints of the residents of the Safdarjung Enclave regarding unauthorized construction, the note was prepared and was marked to JE Building Mr. Sehrawat. He stated that the demolition order dated 21.11.94 Ex. PW 19/D5 (Page 42/C D10) was served on the owners/builder of the property and the file also contains a letter at Page 41C regarding deposit of compounding fee by the owner/builder. He stated that the showcause notice Ex. PW 3/Y1 does not have the acknowledgment of Mohan Jain and Deepika Jain. He stated that there is an endorsement of JE that they refused to accept the notice. He stated that the letter regarding sanction of plan was received by S R Dandona and the notice u/s 333 MCD Act dated 16.03.94 Ex. PW 3/A was issued in the name of Mohan Jain and others at the address B7/104A Safdarjung Enclave and it was also endorsed to Ram Dandona at C156 Defence Colony, New Delhi. He stated that Form D Ex. PW 1/A was issued in the name of Mohan Jain on 26.10.94 i.e. in whose name the building plan was sanctioned. He admitted that he was ZE Building on RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 27 of 168 CBI v. Naresh Chandra & Ors.

26.10.94 and JE of the area was responsible for early detection of unauthorized construction in the area and J P Dabas was the JE of the area at that time. He stated that the building was booked during his tenure and the tenure of J P Dabas for the unauthorized construction but no demolition action was taken during his tenure. He stated that circular Ex. PW 19/DY dated 04.04.86 was applicable at the relevant time and as per the circular, the priority for demolition was on the lower side. He stated that as per Column 7 of Ex. PW 1/B i.e. FIR, the construction was carried out by Deepika Jain and Mohan Jain.

17.20 PW20 Ghanshyam Rai witnessed the search of the residence of accused Ram Dandona at Navkunj Apartment, I P Extension, Delhi vide search memo Ex. PW 13/1 (D4).

17.21 PW21 Naveen Kumar was Assistant Sales Tax Officer. He witnessed the search and seizure of the documents from the premises belonging to Ram Dandona at Defence Colony vide search memo Ex. PW 10/1 (D3).

17.22 PW22 R.S. Dagar was also the member of the search team constituted by CBI which conducted the search in the office of Naresh Chandra at Safdarjung Enclave New Delhi vide search memo Ex. PW 11/1 (D2). He admitted that the plan of the house on plot no. B7/105A Safdarjung Enclave and Conveyance Deed were recovered from the premises vide memo Ex. PW 11/1 alongwith some documents.

17.23 PW23 Ms. Shashi Singhal stated that Mrs Deepika Jain and Mohan Jain had appointed her as their attorney in respect of RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 28 of 168 CBI v. Naresh Chandra & Ors.

property no. B7/105A, Safdarjung Enclave Extension vide GPA Ex. PW 23/B (D24) and SPA Ex. PW 23/A (D17). On the basis of the GPA and SPA, she executed the Sale Deed in favour of Naresh Chandra vide Sale Deed dated 27.11.95 Ex PW 23/C (D

19) on the instructions of Deepika Jain and Mohan Jain. She stated that the property was constructed by Mohan Jain and Deepika Jain who were the family friends of her husband Naresh Chandra. The plot was allotted by DDA to them and a Conveyance Deed of the said plot was executed in their favour by DDA. She stated that she had executed the Sale Deed in respect of the constructed property. She stated that Mohan Jain and Deepika Jain had taken a loan from her husband to purchase the above plot. They returned the small portion of the loan but failed to return the substantial portion of the loan and the portion of the unpaid loan was adjusted towards the sale vide sale deed Ex. PW 23/C (D19).

On being crossexamined, she stated that Nidhi Builders was the firm of her husband. She stated that she had opened Saving Bank A/c No. 7268 in Vijaya Bank, R K Puram branch on 26.08.84 and the application for account opening Ex. PW 23/X1 bears her signatures. She admitted her signatures on the document Ex. PW 9/A5 at Point A and B and that of her husband Naresh Chandra at Point C. She admitted the ledger account document Ex. PW 9/6A in respect of the above account. She stated that she knows Mohan Jain and Deepika Jain for about 20 years being their family friends. They live in Mumbai and she lives at E 152 Saket, New Delhi. She stated that she does not know if plot RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 29 of 168 CBI v. Naresh Chandra & Ors.

no. E152 Saket was allotted by DDA in the joint name of her and her husband (Shashi Singhal and Naresh Chandra). She stated that Nagesh Pathak was friend of her husband but she does not know if he used to live at B7/104A Safdarjung Enclave in 1993/1994. She stated that at that time, the ration card at the above address was in the name of Mohan Jain and Deepika Jain. She stated that she does not know if Nagesh Pathak was posted in Custom Department in Mumbai. She stated that Nagesh Pathak was not used to come in her house but Mohan Jain used to come in her house at that time. She admitted that she had also gone to the house of Mohan Jain and Deepika Jain at Mumbai.

She stated that she cannot produce any document as to the giving of loan by her husband to Mohan Jain nor she can tell the exact loan amount, purpose of loan and year of giving loan. She denied that no loan was given by her husband to Mohan Jain.

She stated that she knows Vishal Jain son of Mohan Jain. She stated that Vishal Jain had requested her husband to get opened an account in his name. She stated that as per her knowledge, Mohan Jain had asked her husband that he needs some land as he regularly visits Delhi but she does not know if her husband ever said to him that he may get allotted a land from DDA in auction either himself or through his representative. She stated that her husband had given money to Vishal Jain since he was short of payment.

She stated that Dr. Ravi Garg is her brother but she does not know Rakesh Kumar Sharma nor she knows that he lives RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 30 of 168 CBI v. Naresh Chandra & Ors.

at B2/18 Safdarjung Enclave. She stated that her brother Dr. Ravi Garg never participated in the auction of the above plot. She stated that her brother lives at Vasant Kunj and not at Munirka but she does not remember where her brother used to live in 1992/1994. She stated that he never lived in Munirka. She admitted that the clinic of her brother Ravi Garg is at Munirka. She stated that Special Power of Attorney Ex. PW 23/A does not bear her signatures nor it was executed in her presence however it was given to her by them. She stated that she never visited the plot at B7/105A during the course of construction. She stated that she does not know who raised the construction over the said plot and how much money was spent on the construction. She was shown Special/General Power of Attorney Ex. PW 23/A and Ex. PW 23/B wherein it was mentioned "In witness whereof, we have executed______"(D17). She stated that both the documents bear the attestation of Notary with date 09.07.94. She denied that GPA was given in her favour to raise construction over plot of land. She admitted that she was Director in Nidhi Promoters Pvt. Ltd with her husband. She stated that she cannot bring the original Sale Deed Ex. PW 23/C since it is not traceable. She stated that she cannot say whether there had been any construction on the plot in question when the GPA was executed in her favour. She admitted that in GPA Ex. PW 23/B and SPA Ex. PW 23/A, there is mention of plot and not the building. She stated that she herself did not get the building constructed on the above plot nor she knows that the plot in question was purchased from DDA for Rs.62.05 lacs. She RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 31 of 168 CBI v. Naresh Chandra & Ors.

stated that she does not remember if she had sold the property to her husband for Rs.1.75 crores. She stated that she does not know in which bank she had deposited the amount of Rs.1.75 crores nor she remembers anything about the amount received or paid or if the amount was paid to Mohan Jain and Deepika Jain. She stated that the loan amount was not transacted in her presence nor any document with respect to the alleged loan was executed in her presence. She admitted that as per Sale Deed Ex. PW 23/C, the vendor after acquiring the plot of land got the building plan sanctioned from MCD vide dated 28.02.1994 and thereafter constructed the five storey building. She stated that she does not know if her husband had paid Rs. 1,52,090/ to DDA for getting the leasehold plot converted into freehold plot. She admitted that she with her husband used to live at E152 Saket but she does not know if the plot bearing E152 Saket was purchased from DDA by the accused Naresh Chandra in his name.

17.24 PW24 Manjit Singh Sawhney stated that on 08.04.1996 Naresh Chandra had executed a Sale Deed in his name and his wife in respect of front portion of the second floor of the property bearing No. B7/105A Safdarjung Enclave, New Delhi vide Ex. PW 24/A. Before purchasing the property, he had conducted the negotiations with the accused Naresh Chandra as to the sale consideration. However, he did not have occasion to see the original chain of documents of the above property. He stated that he never met Mohan Jain and Deepika Jain whose names have appeared in the Sale Deed Ex. PW 24/A. He stated that whole of the building RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 32 of 168 CBI v. Naresh Chandra & Ors.

including his portion was sealed but he does not know by whose order whether MCD or High Court, the building was sealed but later he came to know that it was sealed by the orders of the High Court. He admitted that he did not make any complaint against Naresh Chandra in respect of the Sale Deed.

17.25 PW25 Rajeev Kumar Singh submitted a report Ex. PW 25/B in respect of action taken in respect of property No. B7/105A Safdarjung Enclave, New Delhi.

17.26 PW26 B.S. Yadav was the Executive Engineer Building MCD, South Zone. On 23.04.2009 he handed over the original letter dated 08.04.2009 Ex. PW 26/A alongwith the list of AE/JE (Building) posted in South Zone Green Park during the period from 21.11.94 to 25.05.2005. He also proved the office orders dated 04.04.86 Mark X and 22.11.2000 Mark Y issued from the office the of Commissioner, MCD. He stated that vide letter dated 08.04.2009 Ex PW 26/A, he had informed CBI that the property in question has been regularised by the owners/occupiers under the selfassessment scheme as per MPD 2021. He was shown the Misal Band Register contained in three volumes for the period from 20.06.94 to 31.10.96 mark PW 26/X, mark PW 26/X1 and mark PW 26/X2 and he stated that the property was booked vide serial no. 340 on 31.10.94 as per mark PW 26/X, and as per mark PW 26/X and mark PW 26/X1, 368 properties were booked during the period from 31.10.94 to 31.07.95 and as per mark PW 26/X1 and mark PW 26/X2, 290 properties were booked during the period from 18.08.95 till 11.03.96. He stated that criteria for RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 33 of 168 CBI v. Naresh Chandra & Ors.

priority for sealing action is the same as that for the demolition action. If the demolition action is to be taken on 31 st of March, the same will be taken in respect to the properties booked on 30 th March i.e. the last booked property.

17.27 PW27 Jayant Kashmiri was investigating officer of this case.

He conducted the search in the office and the residence of the accused persons. He also collected the files pertaining to the aforesaid property from the MCD and some documents from DDA in respect of the allotment of the plot. He obtained the sanction for prosecution of the MCD Officials from the competent authority and prepared the chargesheet.

He stated that at the initial stage of investigation, he had requested MCD to constitute a technical team for carrying out the inspection of the property to ascertain the unauthorized construction on the property. He stated that the property was allotted in the name of Mohan Jain and Deepika on 08.12.1993 through open auction by DDA which auction was attended by Vishal Jain son of Mohan Jain as per attendance sheet of DDA wherein he had given his address as that of the residential address of the accused Naresh Chandra. He stated that Vishal Jain had opened an account in Vijaya Bank, R.K. Puram on 07.12.1993 which was introduced by Naresh Chandra from which pay orders were got issued in favour of DDA. The amount in the account of Vishal Jain was deposited by Naresh Chandra on 07.12.1993.

He stated that his investigation revealed that Naresh Chandra was the actual investor in the property and he used the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 34 of 168 CBI v. Naresh Chandra & Ors.

names of Mohan Jain and Deepika Jain for participating in the auction. The perpetual lease deed was made in their favour in February 1994 and building plan was sanctioned by the committee MCD and released in June, 1994. He stated that the plan was received by Ram Dandona, architect whom Naresh Chandra had engaged for the construction on the above property. His investigation revealed that Ram Dandona did not know Mohan Jain and Deepika Jain. He stated that from his office, a ledger mark PW27/A vide seizure memo Ex.PW13/1 (D18) was recovered which reflected the entries dated 15.04.1994 and 15.06.1994 at page 67 showing the receipts of two cheques from M/s Nidhi Builders, an enterprise of Naresh Chandra. He also seized the files from the MCD vide memo Ex.PW27/B (D8). He stated that his investigation revealed that the construction on the aforesaid plot was carried out under the supervision of Ram Dandona who also issued a certificate that there was no unauthorized construction on the said building and based on that certificate, accused Sandeep Sharma, JE(B) issued Form C1 on 25.08.1994 though he was already transferred on 24.08.1994 and he was succeeded by J.P. Dabas. He did not mention this fact in the record of MCD nor informed J.P. Dabas about the issuance of form C1. He stated that in October, 1994, J.P. Dabas had issued Form D1 on the basis of certificate issued by Ram Dandona to the effect that there was no unauthorized construction. When J.P. Dabas found the unauthorized construction, he booked the property on 31.10.1994 and subsequent to this, sealing order was RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 35 of 168 CBI v. Naresh Chandra & Ors.

passed in June, 1995. He stated that no criminality on the part of J.P. Dabas and Rambir Singh Bansal AE was found nor any criminality was found on the part of Mohan Jain and Deepika Jain. They were used as front by the accused Naresh Chandra, builder for acquiring the property. He stated that Surinder Pal ZE(B) had moved a note on the proposal of the owner / builder for payment of compounding fee and issued a notice for depositing of compounding fee for the compoundable unauthorized construction giving the directions to demolish the noncompoundable unauthorized construction. He stated that the owner/builder did not demolish the unauthorized construction and Surinder Pal, instead of executing the sealing order, sent the matter for hearing without such request from the owner/builder which led to the nonsealing of the property allowing the builder to make profits by selling the flats on all the floors. He stated that the technical inspection report Ex.PW3/B2 was received on 31.07.2001 which showed unauthorized construction of noncompoundable nature.

He stated that his investigation revealed that there were forgeries in the documents etc for which he registered a separate case vide RC 8(A)/2002/ACB. He stated that S.R. Dandona had given the wrong certificate that the construction on the aforesaid property was in accordance with the building bye laws and the sanction building plan. He stated that as per the record collected from DDA, the auction was conducted by DDA on 08.12.1993 and the bid of Deepika Jain and Mohan Jain was of Rs. 62,05,000/.

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He stated that he also seized a GPA dated Nil favouring Shashi Singhal wife of Naresh Chandra executed by Mohan Jain and Deepika Jain in respect to the above property and special power of attorney dated Nil which was notarized on 09.07.1994 vide seizure memo Ex.PW27/E (D17). He stated that vide letter dated 14.08.2001 Ex.PW27/F (D19) Naresh Chandra had enclosed copies of the sale deeds Ex.PW23/C. He stated that he also collected the record of postings of AEs and JEs during the aforesaid period Ex.PW27/H vide letter Ex.PW27/G (D21). He also collected the copy of the account opening forms and statements of accounts from Vijaya Bank and also collected the copies of the sale deeds of the buyers/flats mark X (D20) collectively.

On being cross examined on behalf of the accused Ram Dandona he stated that he did not record the statement of mason, beldar, plumber, carpenter, painter who had worked in the building nor he felt it necessary to join them in the investigation. He did not examine the vendor who had supplied the building material nor joined the person living adjoining to the said house nor tried to find out from them as to who was constructing / supervising the building nor took action on the complaint Ex.PW7/DC nor examined the persons who had given the complaint Ex.PW7/DC. He stated that since the complaint did not have addresses of the complainants, he did not join them.

He stated that he did not find any irregularity / illegality or violation of MCD rules and bye laws as to the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 37 of 168 CBI v. Naresh Chandra & Ors.

approval of the building plans. He stated that he was aware that whenever the municipal officer finds any construction beyond the sanction plan, he registers an FIR under the municipal rules. He stated that in this case FIR Ex.PW1/B was recorded by J.P. Dabas, MCD official. He admitted that in the FIR it is not mentioned that the construction in the building was being supervised by the accused Ram Dandona nor J.P. Dabas at any time had told him that the construction was being supervised by the accused Ram Dandona. He admitted that Sandeep Sharma and Rambir Singh Bansal did not tell him nor gave him any document that the construction in the building was being supervised by the accused Ram Dandona nor he found any document showing that Ram Dandona was engaged to supervise the construction of the building. He stated that he does not remember if he had issued any notice to Shankar Singh Negi plumber/engineer who had signed C1 and D1 form but he admitted that he did not join him in the investigation. He admitted that form C1 Mark PW1/B and Form D1 Ex.PW1/A are the preformated documents which are filled up in handwriting. He stated that he cannot say when the non compoundable deviations were made in the building but he stated that since the MCD had registered the FIR on 31.10.1994, the illegal construction was done prior to that. He stated that he did not find any contract between Naresh Chandra and Ram Dandona whereby Ram Dandona was engaged for constructing the entire building but he denied that he has falsely stated that Naresh Chandra had engaged Ram Dandona for the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 38 of 168 CBI v. Naresh Chandra & Ors.

construction/supervision of the building. He denied that as per Municipal bye laws, 7.2.2, form C1 is issued for the underground drainage and sanitary work and it does not have any connection with the remaining part of the building/construction and as per 7.2.3, form D1 is issued for completion of sanitary work and water supply work and it does not have any connection with remaining part of the building/construction. He stated that except Form C1 and D1 accused Ram Dandona did not issue any letter/certificate as to the construction of the building.

On being cross examined on behalf of the accused Surinder Pal, he stated that Form C1 was released in August, 1994, form D1 was released in October, 1994 and the building plans were released in June, 1994. The demolition notice EXPW19/D5( Part of D1) was passed on 21.11.1994. He admitted that there is endorsement on Ex.PW19/D5 to the effect 'demolish as per policy'. He admitted that as per the record, no demolition action was taken during the period from 21.11.1994 to 14.08.1995. He admitted that the sealing order EXPW8/A (part of D1) was passed on 27.06.1995 and as per the record no sealing took place from 27.06.1995 to 14.08.1995. He stated that he does not remember if he had seized the Misalband register. He admitted that the area of the plot in question was more than 250 sq.yds and as per the building bye laws, the construction upto 3½ storeys was permissible. He stated that he cannot say what was the permissible compoundable area on the ground, first, second, third and basement. He admitted that the compounding fee was calculated RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 39 of 168 CBI v. Naresh Chandra & Ors.

by the JE Sanjeev Jain Ex.PW8/D1 (part of D1) and vide note Ex.PW27/DA (part of D10) dated 27.11.1995 accused Surinder Pal had sought approval from ZAC for writing letter to the applicant to deposit the compounding fee and remove the non compoundable deviation and it was approved by the ZAC on 27.11.1995 and additional commissioner on 29.11.1995 and vide letter Ex.PW4/A (part of D10) dated 14.02.1995 Surinder Pal had written to ZAC about the deposit of compounding fee and that the noncompoundable deviations have not been removed so far and if approved the case may be taken up for hearing before the additional commissioner and that ZAC had initialed Ex.PW4/A part of D10 on 19.02.1996 and additional commissioner on 23.02.1996 and as per the note, the hearings were fixed for 07.03.1996, 14.04.1996 and 10.05.1996 but the respondent did not turn up. He stated that as per the list Ex.PW27/H (D21), Surinder Pal remained posted from 15.08.1995 to 18.03.1996 in ward no. 13 south zone.

On being cross examined on behalf of accused Sandeep Sharma, he stated that he had collected transfer and posting orders of MCD officials but did not collect any document as to the relieving/taking over charge by the persons concerned. He stated that he cannot say whether the accused after transfer from one ward to another ward used to sit in the same building but he admitted that there was only one zone in the MCD building. He was shown the certified copy of Form C1 register, Mark PW27/X collectively containing the entry at Srl. no. 163 showing RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 40 of 168 CBI v. Naresh Chandra & Ors.

the date of acceptance of Form C1 as 25.08.1994 and he stated that he did not seize the register during the investigation. He also denied the knowledge of any circular dated 05.05.1989 Ex.PW27/DC as per which any JE present in the office shall accept the form C1.

On being crossexamined on behalf of accused Naresh Chandra, he stated that he did not record the statement of Naresh Chandra on the day when he had met him on the spot nor he called the neighbour to ascertain whether Naresh Chandra was the regular visitor there. He stated that he did not record the statement of any MCD official to the effect that Naresh Chandra had built the property in question. He admitted that the technical committee report does not find mention that the building was constructed by Naresh Chandra. He stated that from the local enquiry, he came to know that the building was constructed by Naresh Chandra, however, he did not record the statement of the persons nor he can tell their names and addresses nor he mentioned this fact in the case diary. He stated that he did not record the statement of Shankar Singh Negi (plumber) to the effect that he was engaged by Naresh Chandra for the plumbing work nor he found any evidence that the building material used in the building used to be purchased by Naresh Chandra. He stated that he does not know if as on now the property has been regularized. He stated that he did not find any evidence that Naresh Chandra had engaged Ram Dandona for the construction of the building but after going through the ledger, he drew this inference. He admitted that in the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 41 of 168 CBI v. Naresh Chandra & Ors.

ledger, the purpose of issuing of cheque was not mentioned. He admitted that the ledger book does not contain any endorsement of Naresh Chandra nor of Ram Dandona nor reflects the property number. He admitted that as per the MCD FIR Ex.PW1/B para 6 and 7, the owners/builders were Mohan Jain and Deepika Jain. He stated that he does not remember if he had come across with any circular/order that the communication issued in the name of the owner has to be replied by the owner and none else or which prohibits a person from corresponding with the MCD on behalf or under the instructions of the owner of the property. He admitted that he did not record the statement of Vishal Jain nor made him witness.

He stated that as per form 1 Ex.PW2/X, page 2 of D 11 and as per form 11, Mohan Jain and Deepika Jain had applied for permission for construction giving details of the coverage on the respective floors and given the certificate that the construction shall be carried out as per the general specifications and they had signed the same as owner. He admitted that the cheques details of which is mentioned in the ledger are not the part of the chargesheet. He stated that he does not know if the compounding fee could only be paid by the owner and none else. He stated that he had received a file from the MCD Ex.PW7/DB (D10) showing illegal encroachment/ construction by Nidhi builders of which accused Naresh Chandra was the proprietor but he admitted that Naresh Chandra was not named in the complaint. He admitted that the show cause notice Ex.PW3/Y1 part of D10 and hearing RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 42 of 168 CBI v. Naresh Chandra & Ors.

notice Ex.PW5/DH (D10) were issued to Mohan Jain and Deepika Jain and the MCD never issued any notice to Naresh Chandra in respect to above property. He stated that he did not receive any correspondence vide which Mohan Jain and Deepika Jain had asked the MCD to correspond with the accused Naresh Chandra stating that they have no connection with the aforesaid property. He stated that he did not find any agreement that Vishal Jain would appear in the bid on behalf of Naresh Chandra and Naresh Chandra would invest in the bid. He stated that the conveyance deed was executed through the SPA holder Naresh Chandra on behalf of Mohan Jain and Deepika Jain. He stated that he did not find any document whereby Mohan Jain and Deepika Jain had revoked the SPA saying that their signatures were forged nor he found any letter that Mohan Jain and Deepika Jain had written to DDA that the Naresh Chandra was the actual owner. He stated that he did not come across with any document whereby Mohan Jain and Deepika had requested DDA to cancel the lease deed and conveyance deed or they had informed MCD that they did not raise any construction on the aforesaid plot nor he found any agreement that Mohan Jain and Deepika Jain had agreed to purchase the plot from DDA on behalf of Naresh Chandra nor any document whereby Mohan Jain and Deepika Jain had informed MCD that the construction was being raised by accused Naresh Chandra. He stated that he did not find any document whereby Mohan Jain and Deepika Jain had complained to MCD that Naresh Chandra had forged their signatures or they had informed MCD RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 43 of 168 CBI v. Naresh Chandra & Ors.

that they had no concern with the property.

On being cross examined on behalf of accused Mohan Jain and Deepika Jain, he stated that during investigation, he came to know that a person who already has land/flat in his name cannot have any another land/flat either in his name or in the name of his spouse. He was shown the terms & conditions for the sale by auction by DDA Ex.PW27/DX1 and he admitted that he had seized this document during the investigation. He stated that it had emerged during investigation that the accused Naresh Chandra had got the dimension of the plot redrawn to 14.3X23 meters against the actual dimension of 11.4X23 meters by manipulation in the drawing. He admitted that at the time of bid, the area of the plot was mentioned as 328 sq.meter (14.3X23 meters) and in the sanctioned building plan, same area was mentioned. He admitted that by increase in the area, two dwelling units could be made on each floor instead of one dwelling unit and he had found two dwelling units on each floor of the building. He stated that during investigation, he had come to know that some documents i.e. SPA etc in the name of Mohan Jain and Deepika Jain were forged and in that respect he had made complaint Ex.PW27/DX2 (RC no. 8A/2002/CBI/ACB) and the FIR was Ex.PW27/DX3 was registered. He admitted that Nagesh Pathak an IRS officer had introduced Mohan Jain and Deepika Jain with the accused Naresh Chandra. He also admitted that Nagesh Pathak had a flat in B7/104A, SDA, adjoining to B7/105A, SDA and at that time Nagesh Pathak was posted in Mumbai. He stated that this RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 44 of 168 CBI v. Naresh Chandra & Ors.

address of Nagesh Pathak was used by Mohan Jain and Deepika Jain in the correspondance. He admitted that at that time, Naresh Chandra and his wife had been living at E152, Saket and it was owned by Naresh Chandra. He stated that Vishal Jain son of Mohan Jain had participated in the auction on the request of Naresh Chandra and at that time Mohan Jain and Deepika Jain were not in Delhi but were abroad and they had been living in Mumbai and not in Delhi. He stated that Naresh Chandra had got the account of Vishal Jain opened in Delhi to facilitate him to participate in the auction and the accounts statement shows an entry of Rs. 28.0 lacs dated 07.12.1993 transferred from the account of Naresh Chandra and on the same day, the amount was withdrawn. He stated that on 07.12.1993, three drafts of Rs. 5 lacs each and one draft of Rs. 1 lac were submitted with the bid form. He was shown the attendance sheet ExPW27/DX5 which contained the name of Vishal Jain E152, Saket at srl. no. 12. He stated that he does not remember if Vishal Jain had requested to release the bid in favour of Mohan Jain and Deepika Jain but after seeing the file he stated that there was no such request. He stated that he does not find any document either from DDA or MCD whereby Vishal Jain was allowed to bid the plot in the name of Mohan Jain and Deepika Jain but he stated that as per the statement Ex.PW9/A2, Rs. 11,99,996/ were credited in the account on 08.12.1993. He admitted that Mohan Jain used to visit Delhi in connection with his business and had requested Naresh Chandra to arrange a flat for him at a reasonable price for his use RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 45 of 168 CBI v. Naresh Chandra & Ors.

in Delhi. He stated that he had called for the originals of GPA. SPA and will in favour of Naresh Chandra from the accused Naresh Chandra and his wife but Naresh Chandra only gave him the photocopies of the same and said that he would give the originals in due course but did not give him the originals. He stated that during investigation, he did not get any evidence that the construction on the plot of land was raised by Mohan Jain and Deepika Jain but he had come to know that Naresh Chandra had raised the construction through the architect Ram Dandona. He was shown the record as to the conversion charges from lease hold to free hold and he stated that the conversion charges were tendered by Naresh Chandra in the name of Mohan Jain and Deepika Jain. He stated that as per the sale deed Ex.PW23/C(D

19) Shashi Singhal had sold the property to Naresh Chandra for Rs. 1.75 crore as GPA of Mohan Jain and Deepika Jain and during investigation, he did not find any oral or documentary evidence as to the payment of the above consideration by Naresh Chandra to Shashi Singhal or by Shashi Singhal to Mohan Jain and Deepika Jain nor the sale deed finds mention the mode of transaction nor he found any such record as to the above transaction.

17.28 PW28 S.P. Aggarwal was the Commissioner MCD from April, 2000 to May, 2002. He accorded the sanction for prosecution against Sandeep Sharma and Surinder Pal u/s 19(1) (c) for the offences u/s 120B IPC r.w 13(2) r.w 13(1)(d) of the P. C. Act 1988 and Substantive Offences being the authority competent to RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 46 of 168 CBI v. Naresh Chandra & Ors.

remove them from the office vide sanction order Ex. PW 28/A. He admitted that he did not mention the date in the sanction order when he granted the sanction. After seeing the file Ex. PW 28/DA, he stated that he had accorded the sanction on 27.03.2002. He stated that he personally did not ascertain the posting of the MCD officials on the aforesaid dates nor perused the report of the technical committee of MCD Engineers nor visited the property. He denied that he mechanically accorded the sanction. He stated that before according the sanction, he had gone through the allegations and the investigation conducted by CBI as well as the documents.

17.29 PW29 M.S. Singhal was posted as DCP in Anti Corruption Branch CBI in 2000. He proved the FIR Ex. PW 29/A (D1) and stated that he had received a letter dated 30.08.2000 (D7) Ex. PW 29/B from Raj Awasthi of M/s Travel Pack alongwith the documents mark PW29/AX (D7). He stated that further investigation was conducted by Jayant Kashmiri. He stated that investigation of this case remained with him till March, 2001 however he did not record the statement of any of the witnesses u/s 161 CrPC during the investigation nor investigated about the Sale Deeds mark PW 29/AX collectively forming part of the letter Ex PW 29/B. Accused Naresh Chandra in his statement during admission denial of documents u/s 294 CrPC vide dated 03.10.2012 had admitted the execution of Sale Deed dated 31.05.96 in respect of property no. B7/105A, 2 nd Floor, RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 47 of 168 CBI v. Naresh Chandra & Ors.

Safdarjung Enclave Extension in favour of Rahul Sharma and Nirmala Sharma vide Ex. PZ.

STATEMENT OF ACCUSED

18. Accused persons were examined u/s 313 CrPC wherein they denied all the incriminating evidence against them and pleaded their innocence.

18.1. Accused Naresh Chandra (A1) stated that he had deposited the compounding fee on behalf of and under the instructions of the owners Mohan Jain and Deepika Jain as they were their family friends. The search in his house was manipulated and the documents were planted on him to falsely implicate him. He, however, admitted that PW23 Shashi Singhal was appointed as Attorney in respect of the property B7/105A, Safdarjung Development Area by the owners Deepika Jain and Mohan Jain. A Special Power of Attorney Ex.PW23/A (D17) and GPA Ex.PW23/B (D17) were executed by them in favour of Shashi Singhal. He also admitted that PW23 in pursuant to the Power of Attorney had executed the sale deed Ex.PW23/C in his name (Naresh Chandra). He stated that he had introduced the account of Vishal Jain on the request of Mohan Jain and Deepika Jain. He had deposited the amount in his account in the form of loan which was taken by Mohan Jain and Deepika Jain from him for purchasing and raising the construction on the plot. Mohan Jain and Deepika Jain were the owners of the property. At their RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 48 of 168 CBI v. Naresh Chandra & Ors.

instance, Vishal Jain had participated in the auction. He never made investment in the property in their names. He denied that he had engaged Ram Dandona as architect for constructing the property. He stated that he had nothing to do with the construction of the property. He does not know if Ram Dandona had supervised the construction. He stated that on their instructions, he had deposited the compounding fee in their name. He denied having forged the documents i.e. sale deeds, indemnity bond etc. He stated that Mohan Jain and Deepika Jain were his family friends. They alongwith their son had taken a loan of Rs.74.20 lacs from him. They took further loan of about Rs.1,00,80,000/ from time to time for raising the construction. Out of the abovesaid loan amount, Vishal Jain had only paid Rs.12.0 lacs which is reflected in his statement of account. Vishal Jain had also issued a cheque bearing No. 405557 dated 26.04.1994 for Rs.62,20,000/ in his favour. However on presentation, the said cheque got dishonoured as the amount exceeded the balance vide cheque return memo dated 26.04.1994. When he sought the return of the abovesaid loan, Mohan Jain and Deepika Jain initially kept on putting him off on one pretext or the other; but subsequently they executed the Sale Deed in respect of property in question in his favour through their SPA/GPA holder Smt. Shashi Singhal. He was bonafide purchaser of the property in question from Mohan Jain and Deepika Jain and was never aware that they had raised RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 49 of 168 CBI v. Naresh Chandra & Ors.

unauthorized construction on the plot in question. MCD never issued any communication to him in relation to the property in question. He stated that the property in question was subsequently regularized.

18.2. Accused Sri Ram Dandona (A2) admitted that form D1 bears his signature but he stated that it was a preformated document and the verification was only with regard to the completion of drainage, sanitary work and connection with water supply line. He had also signed the form D1 Ex.PW1/A only to that extent. He had no knowledge about the lodging of FIR by the Municipal Officer or the reasons for the same. He stated that the sanction plan did not have any kind of violations or deviations at any point of time. He stated that no search had taken place in his premises. He has been falsely implicated. He stated that he was not connected with the construction or supervision of the above property. He never certified at any point of time that the building was free from any kind of deviations or that he ever supervised the construction or day to day activities in the building. He never gave certificate that the work on the property was in accordance with the building bye laws and sanction building plan.

He stated that primarily, he was engaged by Naresh Chandra, who was running his concern under the name and style of Nidhi Builders, only for the purpose of preparing a blue print of a building which he wanted to construct. He prepared a basic plan in accordance with law and submitted with the Municipal Authority which cleared the same and subsequently, he handed RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 50 of 168 CBI v. Naresh Chandra & Ors.

over the plan to Naresh Chandra. He was never engaged for the purpose of constructing, supervising, looking after or for day to day affairs in regard of the building in question. At the time of issuance of Form C1 and Form D1, Naresh Chandra had called him to inspect the sanitary fittings, drainage connections and water connection and only to this extent, finding the same to be in order, he signed Form C1 and Form D1 which were pre formated documents. He never at any point of time supervised the construction. He had no idea as to whether the building constructed by Naresh Chandra was having any deviations.

He received very nominal consideration as his fee for the services he rendered to Naresh Chandra. He stated that MCD regulations and rules clearly provide that Form C1 and Form D 1 are only in regard of sanitary, drainage and water connection but the investigating authority assumed and presumed that he had supervised the building in question.

18.3. Accused Sandeep Sharma (A3) stated that form C1 was accepted by him when it was presented by the Tax Clerk after taking the requisite fee of Rs. 10/. He had signed the same in routine as it was the duty of the JE present in the office to accept the same and return instantly. He was not concerned with the file Ex.PW2/X (D11) or Ex.PW2/A. He stated that the transfer order Ex.PW6/A was issued on 24.08.1994. It was received by him on the next day i.e. 25.08.1994. FIR Ex.PW1/B was issued after two months and six days of his leaving the ward/area. He stated that there was a circular dated 05.05.1989 from the Dy.

RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 51 of 168 CBI v. Naresh Chandra & Ors.

Commissioner that one JE who is present in the office shall accept the form C1 and return it instantly. He had accepted the C1 form in view of the above office order. He stated that false sanction for prosecution was granted on the basis of draft performa supplied by CBI without application of mind.

He stated that he is innocent and no unauthorized construction was raised in his tenure.

18.4. Accused Surinder Pal (A4) stated that he was not posted in the ward/zone on or around 31.10.1994 or 28.02.1994 or 10.06.1994 or 15.03.1994 or 27.04.1994 or 28.03.1994 or 16.03.1994 or 29.04.1994. Since part compliance of the request raised vide letter Ex.PW5/DF written by him after seeking approval from his senior was made, he suggested that a hearing be given to determine as to which portion the owner wants to retain and which portion he wants to remove. He had so suggested as the letter dated 06.12.1995 mark PW1/I addressed to ZAC was marked to him. He was transferred from the office on 18.03.1996 and he was not aware of anything in the said office prior to 14.08.1995 and subsequent to 18.03.1996. He stated that he was not posted in the zone on or around 31.10.1994 or 21.11.1994 nor he was aware of any of the transactions. He stated that he was posted in the concerned office from 14.08.1995 to 18.03.1996. He stated that the sanction is invalid. The commissioner was not competent to remove him from his post. Further, it was accorded without application of mind.

RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 52 of 168 CBI v. Naresh Chandra & Ors.

He never knew Naresh Chandra, Mohan Jain, Deepika Jain and Ram Dandona. He did not take any independent decision in relation to the case pertaining to the property in question and whatever action he took was after the approval of his senior officers and in accordance with the prevailing rules, regulations and practices.

18.5. Accused Mohan Jain (A5) denied having knowledge of form D1 Ex.PW1/A or FIR Ex.PW1/B or form C1. He stated that no communication regarding the alleged deviations was made to him. The property was constructed by Naresh Chandra and not by him or his wife Deepika Jain. The application for sanction of plan was handed over to Naresh Chandra in February/ March 1994 as desired by him and he did not know what further proceedings had taken place in relation to the plot in question. He never met Surinder Pal nor he or his wife made any application for hearing etc in this regard nor they authorized accused Naresh Chandra to sign on their behalf or deposit any amount on their behalf as compounding fee. In fact, they had no concern with the plot in question after February/ March 1994. He stated that the construction on the plot of land was got done by Naresh Chandra. He and his wife live in Bombay permanently. He did not know Ram Dandona. The show cause notice Ex.PW3/Y1 was never received by them as they were not the actual owners. The GPA Ex.PW23/B and SPA Ex.PW23/A were executed by them on the asking of Naresh Chandra as they had no concern with the plot of land in question or its subsequent RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 53 of 168 CBI v. Naresh Chandra & Ors.

construction. They had only asked their son Vishal Jain on the request of Naresh Chandra who was their family friend to participate in the auction on their behalf as they were not in Delhi. As per the GPA, Shashi Singhal was authorized to get the construction done on the plot of land in question. They never received the sanction plan of the plot/building in question. Neither he nor his wife Deepika were the builder / owner of the construction on the plot of land in question. No notice for compounding fee was received by them. They never authorized any person including Naresh Chandra to negotiate in this regard with the concerned authority. He stated that from the IO they came to know that various documents like SPA/ indemnity bond etc purportedly containing their signatures were forged and IO had lodged a complaint against Naresh Chandra resulting into the registration of RC no. 8A/2002/ACB/DLI/CBI and filing of chargesheet against Naresh Chandra in which they had appeared as witness. He admitted that they had passport and on 08.12.1993, they were not in Delhi when the auction of the plot was held by DDA.

He stated that he is a businessman residing at Mumbai. He is dealing in plastic and chemicals. He used to frequently visit Delhi in connection with his business and for that purpose, he wanted to establish a residence /office in Delhi. Nagesh Pathak had introduced him to the accused Naresh Chandra and they became good friends. Nagesh Pathak had a flat in B7/104A, Safdarjung Enclave which was adjoining the plot RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 54 of 168 CBI v. Naresh Chandra & Ors.

in question. Nagesh Pathak was in Custom Department and during that period, he was posted in Mumbai. Accused Naresh Chandra was the builder. They/ their family members and accused Naresh Chandra and his family members used to visit each other either at Delhi or Mumbai. He had asked accused Naresh Chandra to arrange a flat/floor for him in Delhi as he was into the construction business.

In the first week of November, 1993, accused Naresh Chandra telephonically informed him that DDA is going to auction plot in Delhi. He requested him to participate in the auction. He asked him why he himself does not take part in the auction. He then, he told him that being a builder, he cannot participate in such auction. He promised him to give a flat at cost price if the plot is auctioned in his name. He also told him that as per the DDA rules/bylaws, if a person is married, then the plot is to be auctioned in the name of husband and wife. He further informed him telephonically that auction of the plot is going to take place in Delhi in early part of December, 1993. Then he informed him that he and his wife are out of India and thus, cannot take part in the auction. He then requested him to send his son Vishal Jain as their representative and rest of the formalities regarding the finances etc would be done by him. When he and his wife came back to India, his son Vishal Jain told him that he had taken part in the auction and the plot No. B7/105A, Safdarjung Enclave was auctioned in their name and the bank account in his name was got opened by accused Naresh Chandra RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 55 of 168 CBI v. Naresh Chandra & Ors.

in which the money was transferred by accused Naresh Chandra and payments were made to DDA. Vishal further told him that after the formalities, accused Naresh Chandra got various cheques signed from him and kept the same with him so that he could use it at a later stage when he (Vishal) is not available in Delhi. He helped the accused Naresh Chandra for detailing his son in the auction being a good friend. He was neither interested in any plot of land nor in the construction of the same. He stated that in the month of February/March, 94, accused Naresh Chandra approached him at Mumbai and asked him to sign various papers including GPA, SPA, Agreement to Sell etc and even some blank papers for the purpose of getting the construction on the said plot of land because he would not be available all the time for the purpose of other formalities. In the month of February, 1994, he came to Delhi on the request of accused Naresh Chandra for collecting the perpetual lease deed in his name and in the name of his wife. He and accused Naresh Chandra went to DDA office to collect the same. He handed over the perpetual lease deed to him. She stated that the entire construction on the said plot was got done by the accused Naresh Chandra. They never took loan from accused Naresh Chandra for the purchase of the said plot of land. He and his wife signed the papers on the request of Naresh Chandra. They had nothing to do with the said plot of land and construction if any. The Conveyance Deed in their name regarding the plot in question was also collected by accused Naresh Chandra, though, they had RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 56 of 168 CBI v. Naresh Chandra & Ors.

not specifically authorized him to do so on their behalf.

Later he came to know that the plot E152, Saket, New Delhi on which the house was constructed was in the name of accused Naresh Chandra and his wife Shashi Singhal. He also came to know that if any person has a plot of land already allotted by DDA in his name, he cannot participate in any auction of the plot conducted by DDA. Had he known this fact earlier, he would not have extended the help of detailing his son Vishal Jain in the said auction.

He stated that he did not know or had any association with any of the coaccused persons of this case. He or his wife never entered into any criminal conspiracy for commission of any offence. The documents/blank papers/alleged cheques signed by Vishal Jain were misused by accused Naresh Chandra to falsely create a defence as to taking of loan. No loan papers were ever signed by them in favour of Naresh Chandra. He or his wife are not the beneficiary of even a single penny in this deal and they are the victims of the trust reposed by them in accused Naresh Chandra due to friendship.

18.6. Accused Deepika Jain (A6) answered the questions on the lines of the accused Mohan Jain.

She stated that she is a housewife and her husband is a businessman residing at Mumbai and dealing in plastic and chemicals. He used to frequently visit Delhi in connection with his business and thus wanted to establish a residence /office in Delhi. One Nagesh Pathak had introduced them to the accused RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 57 of 168 CBI v. Naresh Chandra & Ors.

Naresh Chandra and they all became good friends. Nagesh Pathak had a flat on the plot B7/104A, Safdarjung Enclave which was adjoining the plot in question. Nagesh Pathak was in Custom Department and during the relevant period, he was posted in Mumbai. Accused Naresh Chandra was the builder. They/their family members and accused Naresh Chandra and his family members used to visit each other either at Delhi or Mumbai. Her husband had asked the accused Naresh Chandra to arrange a flat/floor for her in Delhi as he was into the construction business.

Her husband told her in the first week of November, 1993 that accused Naresh Chandra telephonically informed him that DDA was going to auction plot in Delhi and requested him to participate in the auction. In the early part of December, 1993, she and her husband were out of India and thus they told the accused Naresh Chandra that they cannot take part in the auction. He then requested to send Vishal Jain as their representative and rest of the formalities regarding the finances etc would be arranged by him. On their return, Vishal Jain told them that he had taken part in the auction and the plot No. B7/105A, Safdarjung Enclave was auctioned in their name and the bank account in his name was got opened by the accused Naresh Chandra in which the money was transferred by the accused Naresh Chandra and payments were made to DDA. Vishal further told them that after the formalities, accused Naresh Chandra got various cheques signed from him and kept the same RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 58 of 168 CBI v. Naresh Chandra & Ors.

with him so that he could use it at a later stage when he (Vishal) would not be available in Delhi. They helped the accused Naresh Chandra for detailing Vishal Jain in the auction being a good friend. They were neither interested in any plot of land nor in the construction of the same. In the month of February/March, 94, accused Naresh Chandra approached them at Mumbai and asked them to sign various papers including GPA, SPA, Agreement to Sell etc and even some blank papers for the purpose of getting the construction on the said plot of land because they would not be available all the time for the purpose of other formalities regarding the construction. In the month of February, 1994, they came to Delhi on the request of accused Naresh Chandra for collecting the perpetual lease deed in their name. Her husband handed over the perpetual lease deed to Naresh Chandra. He stated that the entire construction on the said plot was got done by the accused Naresh Chandra. They never took loan from the accused Naresh Chandra for the purchase of the said plot of land. They had signed the papers on the request of Naresh Chandra. The Conveyance Deed in their name regarding the plot in question was also collected by the accused Naresh Chandra, though, they had not specifically authorized him to do so on their behalf.

During the course of investigation, they came to know that various documents i.e. SPA, conversion of leasehold into freehold of plot no. B7/105A, Indemnity Bond, affidavit etc were forged. IO had lodged a complaint in this regard regarding RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 59 of 168 CBI v. Naresh Chandra & Ors.

which after the investigation, the chargesheet was filed in RC No. 8(A)/2002/ACD/Delhi. In that case, they appeared as witness.

She did not know or had any association with any of the coaccused persons of this case. She or her husband never entered into any criminal conspiracy for commission of any offence. The documents/blank papers/alleged cheques signed by Vishal Jain were misutilized by the accused Naresh Chandra to falsely create a defence as to taking of loan. No loan papers were ever signed by them in favour of Naresh Chandra. She or her husband are not the beneficiary of even a single penny in this deal and they are the victims of the trust reposed by them in the accused Naresh Chandra due to friendship.

DEFENCE EVIDENCE:

19. In their defence, accused persons examined as many as two witnesses :

Ms. Manisha Sharma, Ld. counsel for the accused Mohan Jain and Deepika Jain also tendered the copy of the evidence of PW12 Mehar Chand Singhal Ex.A3 recorded in the case RC No. 8(A)/2002/ACD/Delhi. Sh. Varun Deswal, Ld. counsel for the accused Naresh Chandra also tendered the certified copy of the evidence of PW6 Hamad Bava, Ex.A1 in the case RC No. 8(A)/2002/ACD/Delhi. He also tendered the copy of the judgment Ex.A2 in the above case.

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19.1. DW1 Rajeev Kumar Singh was the Asstt. Section Officer, OI building MCD, South. He brought the C form register of the period from 01.01.1992 to 27.03.1996 containing an entry dated 25.08.1994 regarding receipt of form C in respect of the property bearing no. B7/105A, Safdarjung Enclave, New Delhi made by the Text Clerk. He proved the copy of the entry Ex.DW1/A. He admitted that JE/AE/EE had access to the said register. He also brought the Misal Band Register for the period from 20.06.1994 to 30.12.1994, 02.01.1995 to 17.11.1995 and 17.11.1995 to 30.10.1996, the copies of which are Ex.DW1/B, Ex.DW1/C and Ex.DW1/D. He stated that Misal Band registers Ex.DW1/B to Ex.DW1/D contain the entries of unauthorized construction on the properties.

19.2. DW2 Mehar Chand Singhal proved his evidence Ex.A3 recorded in the case RC No. 8(A)/2002/ACD/Delhi. He stated that in 1994 1995 he was Asstt. Director, Lease Administration Branch (Residential) in DDA. Conveyance Deed etc used to be executed before him. The parties along with two witnesses and authorized officers of the department appear before him for execution of Conveyance Deed. He was shown the note Ex.PW7/C in the file and he stated that as per the record, Mohan Jain and Deepika Jain were the allottee of the plot in question. On 10.05.1995, Naresh Chandra, SPA of the allottee had appeared for the execution of the Conveyance Deed. He had inquired from him about the original allottees which he answered that they were not well. He then asked him to call them since there was no urgency and they can extend RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 61 of 168 CBI v. Naresh Chandra & Ors.

the time but he said that he has brought the witnesses etc and the Conveyance Deed may be executed. He stated that as per the Conveyance Deed Ex.PW7/K, Harish Chand Verma who was Superintendent in DDA and one more person had witnessed the deed. Naresh Chandra had shown him the original SPA Ex.PW11/BB. He had also inquired from Harish Chand Verma whether he knew the allottee and the attorney which he answered in affirmative. He proved the note Ex.PW7/J, 19/N and stated that thereafter the Conveyance Deed was executed. He stated that had he known that SPA was forged, he would not have allowed the execution of the Conveyance Deed. He stated that as per the challan Ex.PW14/A, the conversion charges were deposited in the name of Deepika Jain and Mohan Jain but the challan bears the signatures of some different person. He stated that during his tenure, it was never brought to his notice by the allottees that the Conveyance Deed was executed on basis of fraud and misrepresentation nor any request came as to its cancellation or the lease deed nor he received any application from the allottee that the lease deed was executed under the pressure of Naresh Chandra. He stated that at the time of execution of lease deed, copy of the ration card of the allottee was given and in the Conveyance Deed, the address of the allottee was mentioned as B 7/104A, Safdarjung Enclave. He stated that he did not receive any application from the allottees that they are not the owners of the plot but Naresh Chandra was the owner.

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20. It is pertinent to mention that Mohan Jain in his statement dated 12.06.2018 stated that he does not want to summon PW6 Hamid Bava for his cross examination.

ARGUMENTS AND CONTENTIONS:

21. I have heard Ld PP Sh. Vipin Kumar for CBI and Ld counsels for the accused persons.

Arguments on behalf of CBI

22. Ld. PP for CBI Sh. Vipin Kumar reiterated what has been alleged in the chargesheet and submitted that Mohan Jain A5 and Deepika Jain A6, owners of the property bearing no. B7/105A, Safdarjung Enclave, New Delhi, Naresh Chandra A1 (builder) and Ram Dandona A2 (architect), sometime during 1994 entered into a criminal conspiracy with Sandeep Sharma A3 (JE building, MCD) and some other unknown persons/officials with an object to obtain pecuniary advantage. The MCD officials allowed them to carry out the unauthorized construction on the above property in gross violation of building bye laws, especially with regard to ground coverage, parking, set back lines, FAR etc for extraneous consideration.

23. Ld. PP contended that on 08.12.1993, Naresh Chandra of M/s Nidhi Builders purchased the plot in question from DDA in auction in the name of Mohan Jain and Deepika Jain. Vishal Jain son of Mohan Jain had participated in the bid giving his address as E152, Saket, New Delhi which belongs to Naresh Chandra who RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 63 of 168 CBI v. Naresh Chandra & Ors.

had also introduced the account of Vishal Sharma in Vijaya Bank, R.K. Puram and transferred the amount from his account into the account of Vishal Jain from which pay orders were got made in favour of DDA. A perpetual Lease Deed was executed on 28.02.1994, following which a proposal for sanction of building plan was submitted to the MCD on 28.02.1994. The plan was approved by the building plan committee on 29.04.1994 and released on 10.06.1994. The sanction plan was received by Ram Dandona A2. The construction commenced soon after the date of release of the sanction plan. On 25.08.1994, Sandeep Sharma, JE building issued the form C1 of the property against the certification from Ram Dandona to the effect that work has been done on the property in accordance with the building bye laws and no non compoundable deviations have been found. The building was structurally completed on the date on which form D1 i.e. 26.10.1994 was issued by J.P. Dabas, JE Building, MCD.

24. Ld. PP contended that a source information was received by CBI regarding the unauthorized construction. A technical committee of the MCD Engineers was constituted which examined the building. The committee found non compoundable coverage of 652.42 sq.ft in excess of the permissible area 1769.61 sq.ft in the basement, 949.81 sq.ft in excess of the permissible area 1769.61 sq.ft on the ground floor, 1095.12 sq.ft in excess of the permissible area 1769.91 sq.ft on the first floor, 1095.12 sq.ft in excess of the permissible area 1769.61 sq.ft on the second floor and 1449.04 sq.ft in excess of the permissible area 1415.69 sq.ft on the third RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 64 of 168 CBI v. Naresh Chandra & Ors.

floor. Similarly, non compoundable deviations in respect of the set back were 7 ft on the front, 9 ft on the sides and 6.4 ft on the rear. The deviations in the FAR were of 323.77 as against the permissible FAR of 190.

25. Ld. PP contended that Ram Dandona was engaged by Naresh Chandra and was responsible to supervise the construction in accordance with the building bye laws but he allowed the unauthorized construction and deliberately facilitated the builder to encroach more area on all the floors and certified form C1 and D1 furnishing wrong information to the MCD.

26. Ld. PP contended that Sandeep Sharma, JE building was posted in the ward for almost the entire period during which the building was constructed. He wilfully omitted the inspection and did not maintain any register in this regard as was incumbent upon him vide circular no. 10/EE(B)/HQ/93 dated 09.09.1993. He with malafide intention issued form C on 25.08.1994 a day after receiving his transfer orders and deliberately suppressed this information from his successor J.P. Dabas by neither recording it in the building register nor informing J.P. Dabas orally owing to which the building could not be physically inspected by J.P. Dabas within a week and consequently the builder was given undue advantage of this situation to continue the construction in violation of the building bye laws.

27. Ld. PP contended that J.P. Dabas, JE building after issuing instant form D1 on 26.10.1994 inspected the site and booked the building for unauthorized construction on 31.10.1994. He got RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 65 of 168 CBI v. Naresh Chandra & Ors.

issued show cause notice for demolition of deviations. When no reply was received, demolition notice was issued on 09.11.1994. Subsequently, the demolition orders were passed on 21.11.1994. Ld. PP contented that the sealing process was initiated by R.S. Sehrawat, JE Building who issued the show cause notice for sealing on 29.05.1995. When the owner did not reply to the notice, sealing order was issued on 27.06.1995.

28. Ld. PP contended that Surinder Pal, ZE building on 27.11.1995 put up a proposal to ZAC on the representation of the owner/builder for depositing compoundable fee in respect of compoundable deviations for Rs. 2,39,125/ and removal of the non compoundable deviations. This proposal was approved by ZAC and accordingly a letter to this effect was issued on 04.12.1995 giving the builder one month time from 04.12.1995 to remove the non compoundable deviations. Ld. PP contented that Surinder Pal ZE building was expected to submit his report on or around 04.01.1996 and execute the sealing orders but he instead gave a twist when on 04.02.1996 he put up a note seeking approval for the case to be taken up in hearing without any such request from the party/builder despite the fact that non compoundable deviations had not been removed. He did not execute the sealing order which led to delay in sealing of the property. He endorsed the technically erroneous report of his JE. As per the policy, 13.5 sq.meters could be compounded but in the report, 22.58 sq.meter of the area was compounded.

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29. Ld. PP contended that GPA and SPA were got prepared in favour of Smt. Shashi Singhal wife of Naresh Chandra which did not have any date of execution but they were attested by the Notary bearing the date 09.07.1994. The property was converted from lease hold to free hold vide Conveyance Deed dated 10.05.1995 through the SPA holder Naresh Chandra which according to Mohan Jain and Deepika Jain was a forged document as the document did not bear their signatures. As per the SPA, they had authorized Naresh Chandra to get the Conveyance Deed done owing to their illhealth but the record shows that Mohan Jain and Deepika Jain were in Delhi on 04.05.1995 and 08.05.1995. Ld. PP contended that Shashi Singhal sold the property to Naresh Chandra vide sale deed dated 27.11.1995 on the basis of GPA which also refers to an agreement to sell for a consideration of Rs.1,75,00,000/ the copy of which and the Will were recovered from the premises of the accused Naresh Chandra.

30. Ld. PP discussed the evidence of the witnesses and also explained the role of each of the accused persons and submitted that the prosecution has proved its case against all the accused persons beyond reasonable doubt and they are liable to be convicted for the offences for which they have been charged.

Arguments on behalf of accused persons

(a) Arguments on behalf of Naresh Chandra A1

31. Sh. Varun Deswal, ld. Counsel for the accused Naresh Chandra per contra referred the charge against the accused and RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 67 of 168 CBI v. Naresh Chandra & Ors.

submitted that there is no evidence which proves that it was the accused Naresh Chandra who had purchased the property in question in the name of Mohan Jain and Deepika Jain. Neither he appeared in auction nor the lease deed and Conveyance deed were executed in his name. Vishal Jain son of Mohan Jain had appeared in the auction on behalf of Mohan Jain and Deepika Jain. Lease deed and the Conveyance Deed were executed in their name. The accused had only loaned them money for the purchase and construction of plot. When the later failed to return his money, they executed the sale deed through their attorney Shashi Singhal in favour of the accused. The prosecution did not make Vishal Jain as witness for the reasons best known to it. Testimony of PW9 would reveal that a cheque for Rs. 62,20,000/ was issued by Vishal Jain in favour of Naresh Chandra which on presentation was dishonoured vide memo Ex.PW6/DA which was towards the payment of the loan and consequently Mohan Jain and Deepika Jain had to sell the property to Naresh Chandra. Ld. Counsel also referred the sale deed and the testimony of IO who has stated that he did not find any agreement whereby it was agreed that Vishal Jain would appear in the bid/ auction on behalf of Naresh Chandra and Naresh Chandra would invest in the bid. IO has admitted that he never collected any document whereby Mohan Jain and Deepika Jain had written to DDA that Naresh Chandra was the actual owner and they have been shown as the owners by Naresh Chandra. Ld. Counsel contended that the sanction plan was issued in their name. They had submitted number of documents to MCD RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 68 of 168 CBI v. Naresh Chandra & Ors.

clearly admitting that they are the owners of the property and they intend to raise the construction. They never sought cancellation of lease deed/conveyance deed in their favour on the ground that they were not the real owners and in fact Naresh Chandra was the owner and he has committed fraud upon them. Ld. Counsel contended that the possession after auction was handed over by DDA to them and not to Naresh Chandra. The prosecution has failed to bring any evidence which could even remotely suggest that it was the accused Naresh Chandra who got the building plan approved from MCD or he was involved in the building activity let alone unauthorized construction. A bare perusal of FIR recorded by J.P. Dabas would reflect that on inquiry at the spot, the masons and labourers present at the spot had told that the owners and builders of the property were Mohan Jain and Deepika Jain. There is no statement of any of the witnesses which states that Naresh Chandra was ever seen at the spot. He had corresponded with MCD twothree times and deposited the compounding fee at the asking of Mohan Jain and Deepika Jain and that in itself cannot be held as an incriminating circumstance against the accused. IO has deposed that he did not come across with any circular which prohibits any person from corresponding with MCD or depositing the compounding fee on behalf of or under the instructions of the owner. Even the technical committee report does not find mention that the building was constructed by Naresh Chandra nor there is any evidence that Naresh Chandra had engaged the architect namely Ram Dandona. There is no RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 69 of 168 CBI v. Naresh Chandra & Ors.

owner/builder agreement nor there is an agreement showing that Mohan Jain and Deepika had agreed to purchase the plot from DDA on behalf of Naresh Chandra or he remained present during the construction of the above building on the spot. Ld. Counsel contended that there is no document showing that Mohan Jain and Deepika Jain had sought cancellation of bid/auction or they had complained to any authority that Naresh Chandra has cheated them. There is no evidence which could show that Naresh Chandra had any role in the issuance of form C1 and D1. Each and every form and letter were issued by MCD in the name of Mohan Jain and Deepika Jain. Ld. Counsel contended that the compounding fee calculated by MCD was duly deposited. No dues of the MCD were outstanding. It has also come on record, the MCD does not recognize the builder at all, it recognizes only the owner in respect of the property in question. Ld. Counsel contended that the accused was the bonafide purchaser of the property from Mohan Jain and Deepika Jain when they failed to repay the loan taken by them from him. Ld. Counsel contended that now the building has been regularized which is also evident from the testimony of PW26. The ledger entry has not been proved in accordance with the Evidence Act. There is no positive evidence to connect the accused with the alleged offence. Ld. Counsel also referred the judgment which was passed in the case RC No. 8A/2002/ACB/DLI/CBI and stated that the accused is innocent and he has been falsely implicated.

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(b) Arguments on behalf of Ram Dandona A2

32. Sh. Tanvir Ahmad and Sh. Aakash Sherwal, ld. Counsels for the accused Ram Dandona submitted that the prosecution in order to support the allegations qua the accused has relied only on four documents i.e. the Sanction plan Ex.PW2/A which was received by the accused from MCD, Form C1 Mark PW1/B, Form D1 Ex.PW1/A both bearing the signature of accused submitted to the MCD on 25.08.1994 and 26.10.1994 respectively and ledger account Mark PW27/A recovered pursuant to the alleged search in the office of the accused. Ld. Counsel contended that the prosecution has miserably failed to bring forth any cogent evidence or aver any circumstance that there was ever any agreement or meeting of mind between the accused Ram Dandona and other accused persons regarding the construction of the building in question or that any illegal gratification was obtained by the public officials pursuant to any action of the accused or the accused benefited in any way either monetarily or through other means regarding the alleged unauthorized construction carried out at the building in question. The prosecution has failed to bring forth any evidence regarding the time period during which the alleged deviations came into being. Ld. Counsel referred the complaint dated 04.04.1995 Ex.PW7/DA to Ex.PW7/DC written by the residents of the area where the aforesaid plot was located. They had clearly alleged that the construction was still being carried on the plot even during April, 1995. Ld. Counsel contended that the accused was engaged by the coaccused builder RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 71 of 168 CBI v. Naresh Chandra & Ors.

Naresh Chandra only for the preparation of the building plan for the plot in accordance with the building bye laws which he had duly prepared and was sanctioned by the MCD and released to him on 10.06.1994 which he handed over to the accused Naresh Chandra. Further, upon the request of the builder, he signed on Form C1 and D1 which were the formated documents which only pertained to the drainage and sanitary work as specified by regulation 7.2.2 and regulation 7.2.3 of the building bye laws 1983 applicable to the building in question. Ld. Counsel contended that the prosecution has failed to take into consideration the purpose and intent behind the form C1 and D1 which relate only to the water and sanitary work as clearly provided under the bye laws and regulations. Ld. Counsel contended that PW2 has admitted that the building plan was in accordance with the building bye laws and prevalent law which was approved by the building plan committee. Ld. Counsel contended that form C1 and D1 only relate the water supply / drainage/ sanitary works regarding which there was no deviation from the sanction building plan which fact has also been stated by PW1, PW3 and PW19. Ld. Counsel contended that PW1 has admitted that Form D1 Ex.PW1/A covenants the certification from the licensed plumber and the architect only to the extent that the sanitary and water supply work/ drainage work is complete. He also admitted that on Ex.PW1/A the dates of final inspection were blank. He admitted that form C1 is in regard to the underground drainage and pipe line work and the same precedes RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 72 of 168 CBI v. Naresh Chandra & Ors.

form D1. Ld. Counsel contended that the FIR dated 31.10.1994 Ex.PW1/B does not indicate any violation of established procedure of drainage and sanitation. Ld. Counsel contended that accused Ram Dandona was not involved in the supervision of the construction of the building. The prosecution has failed to produce any witness who had identified the accused being present there where the building was being constructed. Ld. Counsel contended that the architect of any project is not necessarily responsible or involved in the supervision of the construction of the project if he had prepared the building plan for the same. The responsibility for overseeing the construction of any building in the area concern is of the JE as evident from the circular dated 09.09.1993 Ex.PW1/D1 (D23) so no criminality can be attached to the architect. Ld. Counsel referred the testimony of PW1, PW3 and PW27 and contended that PW27 has stated that during the course of investigation he did not find any evidence which would have found payments being made by him or towards him in regard to job work, masonry, carpentry, plumbing etc.

33. Ld. counsel submitted that the prosecution has failed to establish the time period during which the alleged deviations had materialized. Ld. Counsel referred the testimony of PW3 who has stated that he cannot state at what period of time, the deviations mentioned therein in the survey report Ex.PW3/B1 whether after issuing form C1 or before the issuance of Form D1 in regard to the aforesaid property came into being. Ld. Counsel contended that the FIR dated 31.10.1994 Ex.PW1/B is defective. It was not RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 73 of 168 CBI v. Naresh Chandra & Ors.

prepared after comparing with the structure of the building in question with the sanction building plan.

34. Ld. counsel contended that the prosecution failed to prove any conspiracy or meeting of minds between the accused persons as there is no iota of evidence in this regard. It was PW1 area JE who was responsible for the supervision of the construction of building but he was not arrayed as an accused. In support of his contentions, ld. Counsel referred the case of Shrey Jha vs. CBI, MANU/DE/8100/2007 and Sanjiv Kumar vs. State of H.P (1999) 2 SCC 288 to contend that association or relation to lead a conspiracy is not enough to establish the intention.

35. Ld. counsel further contended that the accused is not liable for the offences under section 120B IPC r/w 13(2) and 13(1)(d) of the PC Act as the prosecution has failed to establish or bring forth any iota of evidence that any illegal gratification was obtained by the public officials of the MCD pursuant to any action on behalf of the accused. Ld. Counsel contended that it is nowhere alleged in the chargesheet or documents placed on record that the accused personally profiteered illegally or otherwise by issuing form C1 and D1 or for this purpose he received a windfall in any manner nor there is any allegation that the accused ever met any of the public servants belonging to MCD at any point of time or that he entered into any kind of correspondence/ communication with them so as to fasten criminal liability or criminal conspiracy owned to the accused. Ld. Counsel submitted that the prosecution has miserably failed to prove any illegal action on behalf of the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 74 of 168 CBI v. Naresh Chandra & Ors.

architect Ram Dandona and he deserves to be acquitted of all the charges.

36. Sh. Yogesh Kumar Verma, Ld. counsel for the accused Sandeep Sharma contended that in the instant case, the building sanction plan qua the property was released on 10.06.1994. It was received in the office of A3 on 20.06.1994. PW1 had joined the area on 24.08.1994. He has admitted that no demolition was carried out by him between the period from 31.10.1994 to 22.12.1994. He did not inspect the property in question from the date when Form C1 was issued till the date when form D1 was issued. PW1 has admitted that in the form D1 Ex.PW1/A, the date of final inspection is blank and form C1 is in regard to the underground drainage and pipeline and same precedes form D1. He has also admitted that the FIR Ex.PW1/B dated 31.10.1994 does not indicate any violation of established procedure of drainage and sanitation. He has deposed that he never maintained the construction watch register during his tenure in the building department. He has admitted that there is circular Ex.PW1/X1 according to which any JE who is present in the office shall accept form C1. Ld. Counsel contended that according to the prosecution A3 could not have issued C1 form and was required to inform PW1 orally qua the ongoing construction or issuance of C1 form, the entry Ex.DW1/A in the register shows that the receipt of C1 was entered in the register on 25.08.1994 and it was available in RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 75 of 168 CBI v. Naresh Chandra & Ors.

the office. It cannot be said that A3 wilfully omitted to inform about the form C1. It has come in the testimony of PW2 that instant C1 form is applied before the Tax clerk and on receipt of the said form, a receipt of Rs. 10/ is issued by the Tax Clerk. The form is presented before the JE present in the office for acceptance. Any JE who is present in the office can accept the form. It is not necessary that same should be accepted by the concern JE/AE. He did not depose any irregularity or illegality on the part of A3 issuing the C1 form. PW3 has stated that he cannot say at what period of time, the deviations mentioned therein in respect to the aforesaid property came into being whether after issuing of form C1 or before or after the issuance of Form D1. PW3 has further deposed that instant C1 form is submitted by the owner and architect, no site inspection is required, it is received in the zone by the concerned clerk and JE present in the zone accepts/issues C1 form and any JE of the zone can accept or issue the C1 form. Unauthorized construction can be carried out even after issuance of C1 and D1 form. He did not depose any illegality or irregularity on the part of PW3. PW6 has stated that accused Sandeep Sharma was not transferred out of the zone but was given charge of a different area. He has admitted that ZE building can make internal changes in the office. He has stated that J.P. Dabas and Sandeep Sharma had been working under the same office i.e. ZE building south zone. Ld. Counsel referred the dispatch register Ex.PW6/DB containing the signature of one JE on 25.08.1994 and contended that it did not come in evidence of the witness that A3 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 76 of 168 CBI v. Naresh Chandra & Ors.

had handed over the charge on 24.08.1994 or 25.08.1994. PW7 also deposed on the lines of PW3 and stated that there is an office order whereby zonal Engineer shall take necessary steps to ensure that one JE building is available in the office to accept C1 forms. PW8 has also deposed on the lines of PW6 who has admitted that J.P. Dabas and Sandeep Sharma had been working under the same zonal Engineer building. PW19 has admitted that PW1 had inspected the site on 31.10.1994 and he had not inspected the site before 31.10.1994 although the construction was going on from the day of his joining in the area. He has admitted that JE of the area is responsible for early detection of unauthorized construction in that area and J.P. Dabas PW1 was the JE of the area at the relevant time. PW27 could not point out whether the non compoundable deviations had taken place during the tenure of A3. He did not seize the Register maintained during that time containing the entry as to the receipt of the C1 form on 25.08.1994. He also showed his ignorance about the circular dated 05.05.1989 Ex.PW27/DC as per which any JE present in the office shall accept the form C1.

37. Ld. Counsel contended that the sanction for prosecution in the present case was accorded in a mechanical manner without the application of mind. Even PW28 did not mention the date on the order of sanction rendering it of suspect. Ld. Counsel submitted that the document Ex.PW27/DC clearly establishes that any JE can accept the form C1 issued by the architect and it shall be deemed to be accepted by the MCD. There was no mala fide RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 77 of 168 CBI v. Naresh Chandra & Ors.

attribute on the part of the accused to accept the Form C1. Ld. Counsel contended that the construction watch register was not in existence prior to 2001 so the accused cannot be faulted on this count. DW1 has deposed that JE/AE/EE has access to the register Ex.DW1/A. There is no evidence to show that the accused wilfully or otherwise omitted inspection of the said building. There is nothing in evidence to prove that A3 was required to inform PW1 orally qua the ongoing construction in the building or that he failed to discharge his duty on this count. He had got entered the acceptance / issuance of C1 form in the record and as such he was under no obligation to orally inform his successor PW1 qua this property. Ld. Counsel contended that there is no evidence to show that accused obtained any pecuniary gain due to the alleged act.

38. Ld. counsel further contended that the MCD Act is a complete code which deals with the offences under the MCD Act. Sections 343345 deal with the unauthorized construction, order of demolition, orders of stoppage of building work and power of the commissioner to require alteration of work. Section 345A provides for power to deal with the unauthorized construction. Any violation of the provisions provides for prosecution u/s 467 of the Act. Section 468 provides that said offences are compoundable. Ld. Counsel stated that there is not a single word or statement in the CBI case alleging or quantifying any pecuniary advantage derived by the A3 Sandeep Sharma in the entire episode. Ld. Counsel referred the case of Abdulla Mohammad RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 78 of 168 CBI v. Naresh Chandra & Ors.

Pagarkar vs. State (Union Territory of Goa, Daman and Diu, AIR 1980 SC 499 and contended that the accused is innocent and deserves to be acquitted of all the charges against him.

(d) Arguments on behalf of Mohan Jain A5 and Deepika Jain A6

39. Sh. S.K. Saxena and Ms. Manisha Sharma, ld. Counsels for the accused Mohan Jain and Deepika Jain contended that in the chargesheet filed by the investigating officer, accused Mohan Jain and Deepika Jain were named in the list of witnesses. The account of Vishal Mohan Jain in Vijaya Bank R.K. Puram was introduced by the accused Naresh Chandra. The money was transferred from the account of Naresh Chandra in the account of Vishal Mohan Jain. Mohan Jain and Deepika Jain were not in India at the time of auction. Mohan Jain had agreed to take part in the bid for getting a plot in their name on the asking of Naresh Chandra as he and his wife Deepika Jain wanted to purchase a flat at a cost price / reasonable price. They knew Naresh Chandra through Nagesh Pathak, a common friend. Ld. Counsel contended that the whole money for taking the plot in auction was invested by the accused Naresh Chandra. Since Mohan Jain and Deepika were only interested in purchasing the flat so they executed the documents in favour of Naresh Chandra and his wife Shashi Singhal including the SPA, GPA etc in the name of Shashi Singhal Ex.PW23/A and Ex.PW23/B on or during 22.03.1994. They had also given documents i.e. indemnity bond and affidavits in February 1994 which form part of the record Ex.PW2/C (D11).

RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 79 of 168 CBI v. Naresh Chandra & Ors.

Ld. Counsel contended that the Mohan Jain and Deepika Jain had no role in the possession and construction of the aforesaid plot. The application for sanction of building plan was given on 28.02.1994. The building plan was sanctioned on 10.06.1994 vide Ex.PW3/A. The plan was received by the architect Ram Dandona who had received Rs. 35,000/ on 15.04.1994 and Rs. 25,000/ on 15.06.1994 from Nidhi Builders as evident from the ledger. Ram Dandona in his statement u/s 313 Cr.P.C has also stated that he was engaged by Naresh Chandra of Nidhi Builders and he had signed the form C1 Mark PW1/B and form D1 Ex.PW1/A in relation to the plot in question. PW27 has admitted that he did not find the involvement of Mohan Jain and Deepika Jain in the commission of offence nor he found their complicity in the alleged offence. It is also mentioned in the chargesheet that Ram Dandona did not know Mohan Jain and Deepika Jain. All the circumstances lead to an inference that the building was constructed by the builder Naresh Chandra of Nidhi Builders in which the services of architect Ram Dandona were availed. This inference is also strengthened from the complaint of the residents of the building Ex.PW7/DA. Ld counsel contended that the FIR in relation to the unauthorized construction/deviation on the plot was booked by the MCD on 31.10.1994. A show cause notice Ex.PW3/Y1 was issued on the same day in the name of Mohan Jain and Deepika Jain but it was replied by Naresh Chandra on 08.11.1994 vide Ex.PW15/DC (D10, page 31/C). A letter dated 06.10.1995 Ex.PW5/DE was also written by the accused Naresh RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 80 of 168 CBI v. Naresh Chandra & Ors.

Chandra to the ZAC MCD in relation to the depositing of compounding fee where reference of the letter dated 08.11.1994 was given. Another letter dated 06.10.1995 written by Naresh Chandra to ZAC mark PW4/2 is on record. Ld. counsel contended that MCD had written a letter dated 04.12.1995 Ex.PW5/DF to Mohan Jain and Deepika Jain which was replied by the accused Naresh Chandra on 06.12.1995 vide Ex.PW27/DX11 and he had deposited the compounding fee of Rs. 2,39,125/ vide receipt Ex.PW5/DG. Ld. Counsel contended that none of these letters has any mention in what capacity Naresh Chandra had corresponded with MCD.

40. Ld. counsel contended that after 27.11.1995 when Naresh Chandra had become the owner of the plot/building vide sale deed Ex.PW23/C executed by his wife, why he did not mention this fact of his ownership to MCD and signed on behalf of Mohan Jain and Deepika Jain on the subsequent correspondences. Ld. Counsel contended that Mohan Jain and Deepika Jain after executing the documents in February/ March 1994 were not instrumental in the affairs of the plot except the hope that they would purchase a flat from the accused Naresh Chandra at a cost/reasonable price. He, in order to keep them away from the affairs and development of the plot got the property converted from lease hold to free hold vide Conveyance deed Ex.PW7/K which was received by him having his signatures showing himself as SPA holder of Mohan Jain and Deepika Jain Ex.PW11/BB (in FIR RCDAI2002A0008 dt. 22.02.2012). The expert opinion report Ex.PW18/E (in FIR RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 81 of 168 CBI v. Naresh Chandra & Ors.

RCDAI2002A0008 dt. 22.02.2012) shows that the signature of Deepika Jain and Mohan Jain did not match with the specimen signature on the said SPA. Ld. counsel contended that it was Naresh Chandra who had forged their signatures on the SPA. The need to forge the signatures arose because Naresh Chandra did not want to give a flat to them at the cost price. He had earned lacs of rupees in selling the same to PW Jaya and Manjeet vide sale deed forming part of D20.

41. Ld. counsel referred the testimony of PW27 and the document Ex.PW27/DX1 and contended that no person could purchase the plot in auction if he has any other plot or flat or house in Delhi. Ld. Counsel contended that accused Naresh Chandra was having a house bearing no. E152, Saket, New Delhi, hence he was in need of a person who could take part in the bid. In fact, Mohan Jain and Deepika Jain were kept as a front for purchasing the plot in question and they were not aware of his ill intentions. Ld. Counsel contended that the role of Mohan Jain and Deepika Jain in the affairs of the plot ended in March 1994 itself when they had signed various documents. Ld. Counsel contended that they are the permanent residents of Bombay and never lived at Delhi. They were never instrumental in the construction/ deviation of the plot in question nor they earned any money from the plot in question nor they were in the business of construction. Ld. Counsel contended that the investigating agency could not bring on record any incriminating evidence against them and they deserve to be acquitted. In support of his contentions, ld. Counsel referred the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 82 of 168 CBI v. Naresh Chandra & Ors.

case of Paulmeli & Anr vs. State of Tamil Nadu (2014) CCR 98 (SC), State of Tamil Nadu vs. Nalini 1999 Cri.L.J 3124, Chhota Singh vs. State AIR 1964 120 (V 51 C 32) and Joginder Singh vs. The State of Haryana 1974 Cri.L.J 117 (V 80 C 33).

42. Ld. counsel contended that the whole of the investment towards construction was made by the accused Naresh Chandra. He constructed eight flats. In the sale deed executed on 27.11.1995 by the GPA Shashi Singhal in favour of Naresh Chandra, the consideration was shown as Rs 1.75 crores meaning thereby that each flat was sold at Rs. 21.87 lacs. Naresh Chandra sold the flat to the buyers in January/February 1996 onwards at Rs. 45 lacs per flat vide sale deed Ex.PW24/A (D20) meaning thereby that he earned profit of about Rs.23.13 lacs from each flat. Ld. Counsel contended that accused Naresh Chandra never informed MCD about the sale deed as the record of the MCD dated 30.06.1999 (D12(page 12)) Ex.PW3/DY shows that even in the year 1999, the property tax was assessed in the name of Deepika Jain at the address C/o Naresh Chandra E152, Saket, New Delhi. Ld. Counsel contended that accused Naresh Chandra got the signatures of accused Mohan Jain and Deepika Jain on some blank papers which he misused later. Ld. Counsel contended that the plot was lying vacant on 22.03.1994 when the documents were executed by Mohan Jain and others. The building was constructed thereafter. They did not sign any document relating to the conversion of lease hold property to free hold property. The document D16 Mark PW27/DX6 and D17 Mark PW23/6 are of RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 83 of 168 CBI v. Naresh Chandra & Ors.

the period from 10.02.1994 to 22.03.1994. The stamp papers show the date of purchase as 22.03.1994.

43. Ld. counsel contended that the attending circumstances and doctrine of probability show that the construction was raised by none else but the accused Naresh Chandra. Testimony of IO/PW27 is very categorical that he did not find any criminality on the part of accused Mohan Jain and Deepika Jain. There is no oral / circumstantial evidence against the accused in the commission of alleged offence. Ld. Counsel contended that the accused persons did not sell the flats nor were the beneficiary to the illegal construction.

(e) Arguments on behalf of Surinder Pal A4

44. Sh. Riyaz Bhatt, ld. Counsel for the accused Surinder Pal referred the judgment in the case of Abdulla Mohammed Pagarkar vs. State (Union Teritory of Goa, Daman & Diu) 1980 SCC (Cri.)546, Inderjit Singh & Ors. vs. State of Punjab & Ors 1995 SCC (Cri.) 837, C, Chenga Reddy & Ors. vs. State of A.P 1996 SCC (Cri.) 1205 and R. Sai Bharthi vs. J. Jayalalitha & Ors 2004 SCC (Cri.) 377 to contend that a flagrant violation of office orders/ guidelines does not bring the case of an officer within the ambit of criminality. The evidence on record of the case completely exonerates him from each and every allegations brought up against him by the investigating agency. Ld. Counsel referred the testimony of PW3 and submitted that as per the document mark PW21/A, accused had worked as AE building RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 84 of 168 CBI v. Naresh Chandra & Ors.

w.e.f. 15.08.1995 to 18.03.1996. There was no unauthorized construction in question during his tenure as AE building. It has come in the testimony of PW3 that MCD is duty bound to grant a hearing to the owner of the building to know as to which compoundable portions, he wants to retain and which portions he wants to be demolished. Since in the present case, the sealing process had started, as such it was the Addl. Commissioner of the zone to grant hearing to the owner to the above effect. A note Ex.PW4/A was put up by the accused which was in conformity with the rules of the MCD. PW3 has admitted that in sealing cases of unauthorized construction, Zonal Engineer has no power to grant personal hearing to the owner of the building. There is a priority in relation to sealing and demolition of unauthorized construction and there are circulars to that effect. The last booked property is demolished first in time and the purpose behind this is to prevent further unauthorized construction in the area. If there is any error in the compounding fee, the same can be rectified at the time of issuance of the occupancy certificate. PW3 has admitted that in this case no occupancy certificate was issued in favour of the owner. Ld. Counsel contended that when a file is put up before the Addl. Commissioner, he has to apply his mind as to whether the hearing is to be granted or not to the owner of the building. PW4 has stated that he had applied his mind when he passed the order dated 23.02.1996. He has admitted that hearing would not have been given if it was not provided for in the extent rules. Ld. Counsel contended that the letter dated 08.11.1994 and letter RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 85 of 168 CBI v. Naresh Chandra & Ors.

dated 06.10.1995 were received in the office of ZAC from the owners as to the proposal to pay the compounding fee. There was a noting on the letter dated 06.10.1995 wherein ZAC had asked to attend the same. The Addl. Commissioner had approved the note and the letter was written by ZE dated 04.12.1995 in which compounding fee which was payable was mentioned and directions were given for the removal of non compoundable structure. A receipt to this effect was also placed as to the deposit of the compounding fee. Ld. Counsel contended that it has also come in the testimony of PW5 that as per the circular no. 0041/building dated 10.08.1970 Ex.PW5/DA, the party concern, before an order of demolition, should be given adequate opportunity to explain its case and his request for compounding the unauthorized construction be considered. Ld. Counsel also referred the circular Ex.PW5/DB dated 22.11.1986 where the same things have been reiterated. Ld. Counsel contended that in the circular Ex.PW5/DA, it is not mentioned that the request for personal hearing has to be made by the party concerned rather it is mentioned that the duty is cast upon the MCD to give a hearing. Ld. Counsel contended that it has also come in the testimony of PW8 that in case the owner makes an offer that he is ready to pay the compounding fee for the unauthorized construction, it is the duty of the MCD to determine the portion of the unauthorized construction and this is based on the principles of natural justice. He has admitted that without giving personal hearing to the party, the rectification in the building cannot be carried out and u/s 345A RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 86 of 168 CBI v. Naresh Chandra & Ors.

of the DMC Act, it is to be given by the Addl. Commissioner. He has also admitted that ZE building has no power to grant personal hearing to the owner in sealing cases. He has also stated that there is an office order by which priority of demolition and sealing is to be determined by the MCD. The first priority is to carry out the demolition/sealing under the Court order. Second priority is to carry out the demolition / sealing of the commercial structure. The third priority is with regard to the last booked property which is under construction to be demolished/sealed first. PW26 has admitted that when a property is booked for demolition, the record is maintained in the Misal Band Register. Ld. Counsel referred the copies of the Misal Band Registers Mark PW26/X, Mark PW26/X1 and Mark PW26/X2 and contended that PW26 has admitted that the property was booked vide serial no. 340 on 31.10.1994. As per Mark PW26/X and PW26/X1, 368 properties were booked from 31.10.1994 to 31.07.1995 and as per Mark PW26/X1 and Mark PW26/X2, 290 properties were booked from 14.08.1995 to 11.03.96 and the criteria for priority of sealing action is the same as that for demolition action. DW1 brought the original Misal Band Register of the aforesaid period which he proved as Ex.DW1/B, Ex.DW1/C and Ex.DW1/D respectively. Ld. Counsel contended that the aforesaid depositions categorically and completely exonerate A4 on each and every aspect of the allegations raised against him. Ld. Counsel contended that in this case pick and choose policy was adopted by IO. PW J.P. Dabas and R.B. Bansal were left out while the accused Surinder Pal was RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 87 of 168 CBI v. Naresh Chandra & Ors.

made an accused.

45. Ld. counsel also referred the case Sunil Kumar vs. State 2015 (4) LRC 201 (Del.), C.K. Jaffer Sharief vs. State (Through CBI) (2013) 2 SCC (Cri.) 482, R. Balakrishna Pillai vs. State of Kerala 2004 AIR (SC) 1012, Rita Handa vs.CBI Cril. Reviion petition no. 965/2006 decided on 01.08.2008 by Hon'ble High Court of Delhi, Zanjarrao Bhikaji Nagarkar vs. Union of India & Ors (1999) 7 SCC 409 to contend that in a criminal trial, the onus of proving each and every ingredients of the offence alleged is always on the prosecution and it has to discharge the same by leading credible and cogent evidence to prove the guilt of an accused beyond a shadow of doubt. It never shifts on the accused.

46. As regards criminal conspiracy, ld. Counsel contended that the conspiracy in this case is alleged to have been hatched in the year 1994. It has been indisputably established on record that A4 was posted in the concerned section from 15.08.1995 to 18.03.1996. Various officials of MCD especially PW1 and PW19 were posted in the zone between the period of sanction of building plan and completion of construction. PW1 has deposed that no demolition of the building in question was carried out by him between the period from 31.10.1994 to 12.12.1994 which fact was also deposed by PW19. Ld. Counsel contended that the prosecution has not adduced any evidence to even remotely suggest that A4 had any association or acquaintance with any of the other accused.

47. Ld. counsel referred the testimony of PW27 and contended that PW27 has been machiavellian enough to depose before the Court RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 88 of 168 CBI v. Naresh Chandra & Ors.

that putting up the note for hearing by A4 led to non execution of sealing of the property allowing the builder making profits by selling away flats on all floors. Ld. Counsel contended that PW27 did not collect any evidence to even remotely suggest that A4 had any association or acquaintance with the owner / builder.

48. Ld. Counsel contended that the sanction was granted in a mechanical manner by PW28 without application of mind which is even undated. The sanction order Ex.PW28/A is the replica of draft sanction order Mark A. Ld. Counsel referred the case K.C. Singh vs. CBI Crl. Appeal no. 976/2010 of Hon'ble Delhi High Court decided on 10.08.2011 and Mansukhlal Vithaldas Chauhan vs. State of Gujrat AIR 1997 SC 3400. Ld. Counsel contended that corporation is the competent authority to grant sanction u/s 19 of the PC Act and not the commissioner in the case of the accused who is a group A employee. He referred the case G.S. Matharoo vs. CBI, Crl. M.C. 2695/2010 decided on 25.01.2012 by the High Court of Delhi, MCD represented by its Commissioner vs. Dr. Ved Prakash Kanoji & Anr WP (C) 5544/2011 decided on 25.02.2013 by the Division Bench of Hon'ble High Court of Delhi, CBI vs. G.S. Matharoo SLP (Criminal) Nos. 7932 7933/2012 decided on 26.08.2014, North Delhi Muncipal Corporation vs. G.S. Matharoo & Anr R.P (Crl.) No. 162/2015 decided on 13.08.2015, Central Bureau of Investigation vs. Sudhir Mehta Crl. Rev. P. 791/2014 decided on 14.09.2017 and Central Bureau of Investigation vs. Rampat Garg, Crl. Rev. P 636/2012 decided on 14.09.2017. Ld. Counsel contended that the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 89 of 168 CBI v. Naresh Chandra & Ors.

sanction was accorded on the same day, when the file was put up before PW28. It is impossible to go through the documents in a day's time.

Appreciation of evidence and findings:

49. I have bestowed my thoughtful consideration on the contentions raised by the parties and gone through the statements of witnesses and the documents on record and also the case laws referred during the course of arguments.

50. The accused persons have been charged for committing the offence of criminal conspiracy, cheating and resorting to corrupt practices. Before adverting to the merits of rival contentions, brief review of the offences invoked against the accused persons would be necessary and relevant:

Section 120B IPC provides punishment for criminal conspiracy. Criminal conspiracy is defined u/s 120A IPC. To constitute the offence of criminal conspiracy, following ingredients must exist:

(1) There should be an agreement between two or more persons who are alleged to conspire;

(2) The agreement should be to do or cause to be done:

(i) an illegal act, or

(ii) an act which may not itself be illegal by illegal means.

51. The important words used in Section 120A are "agreement"

between two or more persons, "offence" which is defined in Section 3(38) of the General Clauses Act, 1897 to mean any act or omission made punishable by any law for the time being in force.

"Offence" is also defined in Section 2(n) of the Code of Criminal RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 90 of 168 CBI v. Naresh Chandra & Ors.

Procedure, to mean any act or omission made punishable by any law for the time being in force. Further the term used in Section 120A IPC is " illegal" which has been defined in Section 43 of IPC, thus :

"...The word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action, and a person is said to be "legally bound to do" when it is illegal for him to omit. Further, Section 32 & 33 of IPC defines an "act"

means a series of acts and also includes illegal omission..."

Section 420 IPC provides punishment for cheating and dishonestly inducing delivery of property:

"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security shall be punished".

To constitute the offence of cheating, following ingredients must exist:

1. That the representation made by the accused was false;

2. That the accused knew that the representation was false at the very time when he made it;

3. That the accused made the false representation with the dishonest intention of deceiving the person to whom it was made; and

4. That the accused thereby induced that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted.

52. Section 24 IPC defines 'dishonestly'. It reads as follows:

"Whoever does anything with the intention of causing RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 91 of 168 CBI v. Naresh Chandra & Ors.

wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'".

53. Section 25 IPC defines 'fraudulently' and it reads as follows:

"A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise".

Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 reads as follows:

13 Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct

(d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment ..........

Role of the accused Naresh Chandra (A1), Mohan Jain (A5) and Deepika Jain (A6)

54. A perusal of testimony of PW17 and the record Ex. 17/B (D14) would show that an auction for disposal of residential plot at B 7/105A, Safdarjung Extn., New Delhi was held on 08.12.1993 by DDA. An advertisement to this effect was published in the newspaper. The reserve price for the plot of an area measuring 328.90 sq.meters was fixed as Rs. 49,50,932/. Vishal Jain son of RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 92 of 168 CBI v. Naresh Chandra & Ors.

the accused Mohan Jain participated in the auction on behalf of Deepika Jain and Mohan Jain. It has come in the testimony of PW 27 that on that day Deepika Jain and Mohan Jain were abroad. This fact is also evident from their passports Ex.PW27/C and Ex. PW27/D (D15). The bid of Vishal Jain was for Rs. 62,05,000/ which was found to be the lowest. He had deposited the pay orders of Rs. 16,00,000/ dated 07.12.1993 drawn on Vijaya Bank R. K. Puram, New Delhi. In the bid, Vishal Jain had given his address as E152, Saket, New Delhi which belonged to the accused Naresh Chandra. One Ravi Garg had also participated in the bid. It has come in the testimony of PW23 that he was the relative of the accused Naresh Chandra. He had deposited a pay order No. 094400 for Rs. 1,00,000/ for participating in the bid. The pay order deposited by Vishal Jain bears the number 094402 for Rs. 1,00,000/.

55. As per the scheme of DDA as evident from the document Ex. PW 27/DX1 and the testimonies of PW17 and PW27, any individual who is not a minor and is citizen of India may purchase leasehold rights in any one plot by bid in the auction if he/ she, his wife/her husband or any of his / her minor and or dependent children or dependent parents or dependent minor sisters and brothers, ordinarily residing with him / her do not own in full or in part on lease hold or free hold basis any residential plot or flat or house / or have been alloted on hire purchase basis a residential plot or house in Union Territory of Delhi, and, neither he has transferred any residential plot / house or flat to any one in the past nor has RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 93 of 168 CBI v. Naresh Chandra & Ors.

transferred his / her membership in any cooperative house building Society/CGHS in Delhi. If the purchaser is married then bid will have to be given in the Joint Names of wife and husband and if unmarried he / she will have to apply for inclusion of name of wife / husband after marriage.

56. In the bid document, the address of the accused Mohan Jain and Deepika Jain has been mentioned as B7/104A, Safdarjung Enclave Extn., New Delhi. It is pertinent to mention that said flat belonged to Nagesh Pathak, an IRS Officer who at that time was posted in Mumbai. He was a common friend of the accused Naresh Chandra and Mohan Jain. Mohan Jain was also the friend of Naresh Chandra and had visiting terms with him for about 20 years. A ration card in the name of Mohan Jain was also got prepared from that address. PW23 who is the wife of the accused Naresh Chandra has stated that Mohan Jain and Deepika Jain reside at Bombay and Naresh Chanda lives at E152, Saket, New Delhi.

57. Statement of accounts of Vishal Jain in respect of the account opened in Vijaya Bank, R K Puram Branch bearing No. 13235 Ex. PW 9/A2 (D25) and the account opening form Ex. PW 9/A1 (D

25) show that Vishal Jain had opened the account in Vijaya Bank, R K Puram Branch on 07.12.1993 i.e. one day before the date of auction. The account was introduced by the accused Naresh Chandra who had saving bank account No. 7954. It was Naresh Chandra who had transferred Rs. 28,00,000/ from his account No. 7954 on 07.12.1993 from which pay order / bank draft was RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 94 of 168 CBI v. Naresh Chandra & Ors.

prepared. Naresh Chandra also had his OD account No. 1574 with the bank from which on 13.01.1994, Rs. 26,05,000/ and on 25.01.1994 Rs. 20,15,000/ were transferred in the account of Vishal Jain from which Pay Orders for Rs. 26,05,000/ and Rs. 20,15,000/ were got prepared. The statement of account Ex. PW 9/A2 shows that a pay order for an amount of Rs. 11,99,996/ was deposited on 08.12.1993 in the account of Vishal Jain being the excess amount qua the earnest money. It was transferred in the account of Naresh Chandra bearing No. 7954. PW9 also proved the saving bank account No. 7268 of Shashi Singhal wife of Naresh Chandra, current account No. 1416 of Nidhi Builders and current account No. 1574 of Nidhi Promoters belonging to the accused Naresh Chandra. He also proved the statement of accounts of the account No. 7954 Ex. PW9/A4, account No. 7268 Ex. PW9/A6, account No. 1416 Ex. PW9/A7 and account no. 1576 Ex. PW9/A10. He also identified the signatures of accused Naresh Chandra on the specimen signature card Ex. PW 9/3 and that of Shashi Singhal on Ex. PW9/A5.

58. Record shows that all the payments towards the purchase of plot total amounting to Rs. 62,05,000/ were arranged/made by the accused Naresh Chandra. Not a single penny was spent by Mohan Jain and Deepika Jain towards the purchase of plot. It is pertinent to mention that Naresh Chandra had its own plot bearing No. E 152, Saket, New Delhi and as per the rules of DDA, he was not eligible to purchase the plot bearing No. B7/105A, Safdarjung Enclave in auction from DDA.

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59. The record shows that a lease deed in respect of above plot was executed in favour of Mohan Jain and Deepika Jain by DDA vide dated 15.02.1994.

60. Record shows that the accused Ram Dandona was engaged as an architect to prepare the building plan. He prepared the building plan and submitted to the MCD. PW2 had processed the file pertaining to the above plot. He has stated that the sanction plan was released vide letter dated 10.06.1994 Ex.PW 2/A (D11). He also proved the Sanction plan Ex.PW2/B and has stated that the letter Ex.PW2/A was received by Ram Dandona. He has stated that when he inspected the plot on 15.03.1994, the plot was vacant and the construction had not yet started.

61. The record reveals that General Power of Attorney Ex.PW23/B and Special Power of Attorney Ex.PW23/A were executed by Mohan Jain and Deepika Jain in favour of Shashi Singhal. Both the documents are undated but they were notarized on 09.07.1994. These documents are on the stamp papers dated 22.03.1994.

62. It is relevant to reproduce some of the extracts of the GPA Ex. PW 23/B (D17) whereby attorney was authorized:

1. To manage, control and supervise the abovesaid plot in all respects.

2. To get the construction of building / flats on the above said plot and for that purpose to apply for and obtain all necessary permissions under his own signatures, that may be necessary for the said purpose and also get the plan of the building sanctioned from the competent authorities including DDA, MCD or any other local authorities and to obtain building materials such as RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 96 of 168 CBI v. Naresh Chandra & Ors.

cement, iron, bricks on permit or quota basis from the concerned authorities under his signatures.

3. To make additions, alterations in the above said property and in this respect to obtain building materials such as cement, iron, bricks on permit on quota basis from concerned authorities and from that purpose to get the plans for additions, alternations sanctioned from the concerned authorities and to do all other acts, deeds and things in connection thereto.

4. To enter into negotiations for sale for the abovesaid plot and / or the said plot alongwith the said buildings / flats in whole or part in his absolute discretion and to settle the sale consideration and other terms of sale, to receive the advance and earnest money, to enter into any agreement for sale, to execute the same and to issue valid receipt for the advance / earnest money received.

5. To sell the abovesaid plot and / or the abovesaid plot together with the abovesaid building / flats in whole or in part in his absolute discretion, to execute Sale Deed(s) and / or such other suitable documents as may be permissible under law, to admit execution thereof, to receive the balance consideration and / or the full consideration, to appropriate the same, to issue the receipt for the consideration received, to present the sale deed(s) and / or any other subtable documents as may be permissible under the law before the Sub Registrar for registration of the same and to do and execute all necessary acts, deed and things in connection with the said sale, including that of delivering and handing over the possession of the said plot/ building / flats as the case may be.

6. To sign and execute all types of declarations including a declaration as contemplated by the proviso to Section 2 of Delhi Apartment Ownership Act, 1986, Deeds of Apartments referred to in Section 13 of the said act in respect of the apartments constructed on the said plot, RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 97 of 168 CBI v. Naresh Chandra & Ors.

all undertakings, affidavits, indemnity bonds and forms as may be prescribed under the said Act and the rules made thereunder including the Form B as prescribed under Rule 6 of Delhi Apartment Ownership Rules, 1987 and to present all such documents for their registration under the Registration Act, 1908, to admit their execution and to do all other acts, deeds and things in connection with complying with the requirements as prescribed under the said Act and rules made thereunder.

7. .....

8. .....

9. To get the abovesaid property transferred and mutated in the records of the authorities concerned, to sign and submit the prescribed forms, affidavits, indemnity bonds, surety bonds, No objection documents, representations, petition for revision and to do all such acts, deeds and things in connection thereto under his own signatures as may be necessary for the said purpose.

10.To reply to the letters and / or notices received from all authorities / departments and / or from any person, to make correspondence under his own signatures. .........

.......

21.To appoint any further General Attorney and / or any Special Attorney and to delegate all such powers as the abovesaid attorney may in his absolute discretion deem it fit and to present the same and to admit execution thereof before the Sub Registrar for the purpose of registration.

63. Facts & circumstances of the case show that the construction activity on the aforesaid plot started after 10.06.1994 when the sanction was communicated to the owner/architect vide letter RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 98 of 168 CBI v. Naresh Chandra & Ors.

Ex.PW3/DX and the plan was received by the architect.

64. Perusal of the form C1 Mark PW1/B reveals that it was submitted on 25.08.1994. The form D1 Ex.PW1/A was submitted on 26.10.1994. Form C1 and Form D1 were signed by the architect Ram Dandona. In Form D1, he had certified that there were no noncompoundable deviations though in fact there were compoundable and non compoundable deviations. The building was inspected by the JE(B) on 31.10.1994. On finding large scale deviations in the construction, he registered an FIR Ex.PW1/B. On the same day, he issued the show cause notice Ex.PW3/Y1 calling upon the owner to demolish the unauthorized construction within six days. On 08.11.1994, a letter Ex.PW15/DC was addressed to ZE(B) by the accused Naresh Chandra in response to the letter dated 31.10.1994 that the above building has been constructed as per the sanctioned building plan. It was also stated in the letter that even if there is any deviation on the plot/construction beyond the permissible limit, they are prepared to pay the compounding fee for the same if any. All these correspondences show that major construction on the plot of land had taken place during the period after 10.06.1994 till 26.10.1994 when form D1 was submitted to the MCD. Naresh Chandra did not mention in the letter dated 08.11.1994 in what capacity he had written to the ZE (B) whether as an attorney of Mohan Jain and Deepika Jain or other capacity. It is pertinent to mention that Mohan Jain and Deepika Jain had already given General Power of Attorney and Special Power of Attorney in favour of Shashi RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 99 of 168 CBI v. Naresh Chandra & Ors.

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Singhal wife of the accused Naresh Chandra. None of the above notices/letters show the acknowledgment by Mohan Jain and Deepika Jain. The accused Naresh Chandra wrote another letter dated 06.10.1995 Mark DW4/2 giving the reference of the previous letter dated 08.11.1994 stating that the amount of compounding fee regarding the said property has not so far been intimated to him by the MCD. In that letter, he had requested the ZAC to depute an official for calculating the compounding fee if any and to withdraw the notices to square up the matter. In response to the said letter, the compounding fee of Rs. 2,39,125/ was calculated vide report Ex.PW8/D1. The accused Naresh Chandra vide letter Ex.PW27/DX11 dated 06.12.1995 giving the reference of the previous letters and the response of the MCD vide letter dated 04.12.1995 deposited the compounding fee of Rs. 2,39,125/ vide receipt no. 153010 dated 06.12.1995.

65. In the instant case, a sale deed Ex.PW23/C was executed by Ms. Shashi Singhal. Perusal of the sale deed Ex.PW23/C (D19) reveals that it was executed on 27.11.1995 in favour of Naresh Chandra being the general attorney of Deepika Jain and Mohan Jain vide GPA bearing the attestation of the Notary public. The sale deed also has a reference of perpetual lease deed registered as document No. 498, in Addl. Book No1, Volume No. 180, dated 15.02.1994 in the office of the SubRegistrar, New Delhi.

66. As per the sale deed, the sale consideration was Rs. 1.75 Crores.

There is no mention in the sale deed how this amount of Rs. 1.75 Crores was paid by the accused Naresh Chandra or to whom the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 100 of 168 CBI v. Naresh Chandra & Ors.

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amount was paid. According to PW23, she had executed the sale deed in favour of Naresh Chandra on the instructions of Mohan Jain and Deepika Jain who were the family friends of Naresh Chandra. She has stated that Mohan Jain and Deepika Jain had taken a loan from her husband to purchase the above plot. They returned a small portion of loan, but failed to return the substantial portion of the loan and the portion of the unpaid loan was adjusted towards the sale vide sale deed Ex.PW23/C (D19). She could not tell the exact loan amount and purpose of loan. As per the lease deed, the plot in question was purchased for Rs. 62.05 lacs. The sale deed was for Rs. 1.75 Crores. Although the investigating officer did not collect any evidence as to who had spent on the construction but the accused Naresh Chandra in his statement has stated that accused Mohan Jain had taken a loan of about Rs. 1,00,80,000/ from time to time for raising the construction besides taking a loan of Rs. 74,20,000/ towards the purchase of the plot. In the instant case, there is no acknowledgment of the loan taken for construction nor there is any statement of account to show how the loan towards construction was transferred in the account of Mohan Jain/Deepika Jain. Accused Naresh Chandra has stated that the cheque given by Vishal Jain for Rs. 62,20,000/ vide dated 26.04.1994 in his favour was dishonoured. Question arises, when the cheque issued in April 1994 was dishonoured, why he gave the loan to Mohan Jain and Deepika Jain from June onwards for raising the construction. It is not the case that the construction had started before 26.04.1994. Attending RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 101 of 168 CBI v. Naresh Chandra & Ors.

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circumstances rather show that the construction was raised by none else but the accused Naresh Chandra.

67. Testimonies of PW15, PW16 and PW24 and sale deeds Ex.PW15/A, sale deed Ex. PW.16/A, sale deed Ex.PW24/A and the sale deed in favour of Rahul Sharma Ex.PZ would also show that Naresh Chandra had sold the flats constructed on the aforesaid plot of land to them on 04.03.1996, 14.08.1996, 08.04.1996 and 31.05.1996 respectively. Record shows that in all, eight flats were constructed. If we divide the sale consideration by eight, average cost of the flat comes to Rs. 21.87 Lacs. The flats were sold by Naresh Chandra for at about Rs. 45 Lacs per flat. Question arises what made Mohan Jain and Deepika Jain sold the flats on half of the sale price charged by the accused Naresh Chandra. The stand of the accused persons Mohan Jain and Deepika Jain since beginning is that they never made any investment in the said plot/ construction and whole of the investment was made by the accused Naresh Chandra. PW27 in his testimony has also stated that his investigation revealed that whole of the investment towards purchase of plot and construction was made by the accused Naresh Chandra. He was the person who earned profit by sale of the flats and the accused Mohan Jain and Deepika Jain were not the beneficiary of the above flats/ construction.

68. In the instant case, the property was also converted from leasehold to freehold and a conveyance deed Ex.PW7/K (RC No. 8(A)/2002/ACB/Delhi) was executed by DDA in favour of Mohan RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 102 of 168 CBI v. Naresh Chandra & Ors.

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Jain and Deepika Jain through the accused Naresh Chandra. DW2 who was the Assistant Director, Lease Administration Branch, DDA has deposed that as per the record, Mohan Jain and Deepika Jain were the allottee of the plot. On 10.05.1995, Naresh Chandra, SPA of the allottee had appeared for the execution of the Conveyance Deed. He had enquired from him about the original allottee which he answered that they were not well. Although, he offered to extend time but he insisted for execution of the Conveyance Deed Ex.PW7/K. It was witnessed by the Superintendent, DDA Harish Chand Verma who had claimed that he knew the allottee and the attorney. DW2 has deposed that Naresh Chandra had shown him the original SPA Ex.PW11/BB (RC No. 8(A)/2002/ACB/Delhi).

69. The accused persons Mohan Jain and Deepika Jain have denied having executed the SPA Ex.PW11/BB in favour of Naresh Chandra. They have stated that their signatures were forged on the documents. DW2 has stated that had he known that SPA was forged, he would not have allowed the execution of the Conveyance Deed. It is pertinent to mention that a separate case vide RC No. 8(A)/2002/ACB/Delhi was registered against the accused Naresh Chandra and Harish Chand Verma. As evident from the judgment Ex.A2 in that case, the SPA Ex.PW11/BB and some other documents which were submitted at the time of execution of Conveyance Deed were sent to the CFSL along with the specimen signatures of the accused Mohan Jain and Deepika Jain and as per the report of the CFSL Ex.PW18/E (RC No. RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 103 of 168 CBI v. Naresh Chandra & Ors.

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8(A)/2002/ACB/Delhi), Mohan Jain and Deepika Jain had not signed the questioned documents. It is also to be noted that some of the documents bear the date of 03.12.1994 and 23.02.1995 purportedly signed by Mohan Jain and Deepika Jain. Question arises, when Mohan Jain and Deepika Jain had already executed GPA and SPA in favour of Shashi Singhal wife of Naresh Chandra notarized on 09.07.1994 authorising Shashi Singhal to do every act as was necessary in respect of the above plot/ construction, why the necessity arose for making separate SPA in favour of Naresh Chandra for the Conveyance Deed. According to the accused Mohan Jain and Deepika Jain, they had no concern with the aforesaid plot after 23.02.1994 when they executed the documents in favour of Naresh Chandra/his wife Shashi Singhal in respect of the above plot.

70. Perusal of the record and the testimonies of the witnesses would also show that show cause notice dated 31.10.1994 Ex. PW3/Y1 regarding unauthorised construction right from the basement upto third floor was replied by the accused Naresh Chandra on 08.11.1994 vide Ex.PW15/DC (D10, page 31/C). Accused Naresh Chandra vide letter dated 06.10.1995 Ex. PW5/D had also written to ZAC in relation to the depositing of the compounding fee giving the reference of the letter dated 08.11.1994. He had replied to the letter of the MCD dated 04.12.1995 Ex. PW5/DF which was addressed to Mohan Jain and Deepika Jain vide reply dated 06.12.1995 Ex.PW27/DX11 as to the deposit of compounding fee of Rs. 2,39,125/ vide receipt Ex.PW5/DG. It is RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 104 of 168 CBI v. Naresh Chandra & Ors.

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relevant to mention that the reply dated 06.12.1995 was after the execution of the sale deed in his favour vide Ex.PW23/C dated 27.11.1995. He signed the reply on behalf of Mohan Jain and Deepika Jain without mentioning that he has purchased the property from Mohan Jain and Deepika Jain on 27.11.1995 vide sale deed Ex.PW23/C.

71. Question also arises, when Mohan Jain and Deepika Jain had already executed SPA and GPA in favour of Shashi Singhal, what had prevented Naresh Chandra from getting these documents signed from Shashi Singhal, his wife who used to live with him.

72. It is also important to note that before the execution of the above Sale Deed, some residents of the area had made complaints regarding the unauthorized construction on the said plot of land vide complaints Ex. PW7/DA, PW7/DB and PW7/DC dated 04.04.1995. The said complaints find mention that the unauthorized construction was raised by Nidhi Builders, an enterprise of accused Naresh Chandra. It was not mentioned in the complaint that the unauthorised construction was raised by Mohan Jain and Deepika Jain, the allottee of the plot.

73. In the instant case, the premises was booked for the first time on 31.10.1994. Demolition order was passed on 21.11.1994. The sealing notice was affixed on 27.05.1995. Show cause notice was issued on 29.05.1995 and the sealing order was passed on 27.06.1995. Everything was in the knowledge of Naresh Chandra as evident from the correspondence. It is surprising that even then he agreed to purchase such building, where substantial RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 105 of 168 CBI v. Naresh Chandra & Ors.

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compoundable and non compoundable deviations were noticed by the MCD. Further, in the subsequent sale deeds, Naresh Chandra did not disclose that there are non compoundable deviations which are required to be demolished. He sold the flats 'as it is where it is basis', even without taking the occupancy certificate from MCD. As a result of this, the flat buyers suffered, since, their building was sealed and they had to move to the Court for desealing. The question also arises that after 27.11.1995 when Naresh Chandra had become the owner of the building vide sale deed Ex. PW23/C, why he did not mention this fact to the MCD and signed on behalf of Mohan Jain and Deepika Jain on the correspondences which can also be seen from the property tax document of the year 1999 Ex.PW3/DY in the name of Deepika Jain.

74. I find substance in the contention of learned counsel for accused Mohan Jain and Deepika Jain that after executing the documents in February/ March 1994/ July 1994, they were not instrumental in the affairs of the plot or construction. It was the accused Naresh Chandra who used them as a front. As per rules, he being the owner of the property bearing no. E152, Saket could not purchase the plot in question in auction. He offered them a flat at cost/ reasonable price which they accepted, since they were friends for 20 years and used to visit each other's house frequently. Accused Mohan Jain used to come to Delhi frequently. He wanted to purchase a flat and for this reason he made his son Vishal Jain participate in the auction on their behalf. This fact is also fortified RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 106 of 168 CBI v. Naresh Chandra & Ors.

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from the fact that they, immediately after the Lease Deed, executed the documents in favour of Shashi Singhal. There is no document to indicate that they had spent a single penny towards the purchase of the plot or the construction thereon. They signed the documents without doubting on the intentions of the accused Naresh Chandra. They were never instrumental in the construction/ deviations on the plot in question nor they earned any profit from the plot in question nor they were in the business of construction.

75. PW27/investigating Officer has also stated that his investigation revealed that Naresh Chandra was the actual investor in the property and he used the names of Mohan Jain and Deepika Jain for participating in the auction. It was the accused Naresh Chandra who had taken the services of the Architect Ram Dandona, who did not know Mohan Jain and Deepika Jain.

Admittedly, the show cause notices, demolition notice and orders of demolition and sealing by the MCD were issued in the name of Mohan Jain and Deepika Jain but none of the documents show the receipt/acknowledgment of above documents by them. Facts and circumstances clearly point towards the accused Naresh Chandra that he was the main person behind the whole affairs. He misused his relations and put Mohan Jain and Deepika Jain as a front. Record shows that all the correspondence either with DDA or MCD including making of conveyance deed, deposit of conversion charges, payment of compounding fee and squaring up the matter with MCD was done RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 107 of 168 CBI v. Naresh Chandra & Ors.

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by the accused Naresh Chandra and not by the accused Mohan Jain and Deepika Jain. There is not a single acknowledgement of any letter/ notice by them as to the unauthorized construction on the aforesaid building.

76. I find substance in the contention of the accused Mohan Jain and Deepika Jain that they came to know of the alleged construction/deviations only after the case was registered as after March 1994 they were not involved in any of the activity relating to the plot. Since the criminal action had already been initiated by CBI, there was no occasion for Mohan Jain and Deepika Jain to get the documents canceled or inform the authorities that they are not the owners of the property and have no concern with the property or the property belongs to Naresh Chandra.

77. Facts & circumstances clearly show that Naresh Chandra was the main person involved in the purchase of the plot and construction on the plot of land. There were large scale deviations in the building. It was he who financed the whole project keeping Mohan Jain and Deepika Jain as a front who were in need of a flat at a reasonable price which Naresh Chandra had promised to give, since he could not purchase the plot from DDA being the owner of the property E152, Saket, New Delhi. He used the name of Mohan Jain and Deepika Jain. When the construction was completed, he got the sale deed executed from Shashi Singhal GPA of Mohan Jain and Deepika Jain in his favour and sold the flats and earned profit. Shashi Singhal was none else but the wife of the accused Naresh Chandra.

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78. Although, accused Naresh Chandra was acquitted in the case RC No. 8(A)/2002/ACB/Delhi but the report clearly points out that Mohan Jain and Deepika Jain had not signed the documents on the basis of which the Conveyance Deed was executed in their favour through their attorney/ accused Naresh Chandra. PW27 has also admitted that during his investigation he found that Mohan Jain used to visit Delhi in connection with his business and had requested Naresh Chandra to arrange a flat at a reasonable price for his use in Delhi.

79. In the instant case, PW27/IO had requested the MCD authorities to constitute a technical team for carrying out the inspection of the property and to ascertain unauthorized construction etc on the above property. A letter to this effect was given by the IO vide Ex.PW27/A. A technical committee was constituted under PW3 which submitted its report Ex.PW3/D1. On inspection, the committee found the FAR as 323.77 as against the permissible FAR of 190. The compoundable FAR was 4.10 and the non compoundable FAR was 129.67. As per the report, the height of the basement above the ground level was found to be 4'6" as against the permissible height of 4'0" noncompoundable. The temporary structures were found on the terrace. There were roof projections other than the balconies. The compoundable area beyond permissible was also found right from the basement upto the third floor. There were also deviations in the set backs.

80. On a composite analysis of evidence brought on record by the CBI with respect to the procurement of the property in question and RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 109 of 168 CBI v. Naresh Chandra & Ors.

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the payment made to DDA of the auction amount, I am of the opinion that in order to ascertain the factual reality, veil is required to be lifted from the document placed or proved on record. Giving due regards to the account opening form of Vishal Jain, the introducer of the said account is the one from whose account the funds were got transferred which were ultimately utilized for the payment of the auction amount to DDA. This in itself points towards the accused Naresh Chandra to be the one who had actually procured this property using the name of Mohan Jain and Deepika Jain while remaining behind the curtain. It was he who was the ultimate beneficiary who after raising the unauthorized construction disposed of the same with an object to earn profit. Had Mohan Jain to repay the loan being the owner, he instead of selling it through his Power of Attorney would have sold it in the open market which would have fetched him enough amount not only for the payment of loan but he would have also earned profit out of it but that was not to be. The element of dishonest intention/ mens rea is completely missing on the part of the accused Mohan Jain and Deepika Jain which is sine qua non for the offence of cheating. In view of this, I do not find any complicity of Mohan Jain and Deepika Jain in the commission of the alleged offences.

81. TO SUM UP, facts & circumstances of the case show that Naresh Chandra already had a plot bearing no. E152, Saket, New Delhi in his name. As per the rules of DDA, he could not purchase any other property in auction from DDA in his name and in the name RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 110 of 168 CBI v. Naresh Chandra & Ors.

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of his spouse. Mohan Jain was his friend for 20 years. He used to live in Bombay. He used to visit Delhi frequently. He wanted to have a flat in Delhi for his residence/ office at a reasonable price. Naresh Chandra was in the line of construction/builder. He knew that auction of a plot at Safdarjung Enclave was to be made by DDA. He offered him a flat at reasonable cost and at his instances Mohan Jain agreed to participate in the bid in their names. Since he was out of India, he sent his son Vishal Jain to participate in the bid. As per the arrangement, whole finance towards the purchase of plot was arranged by Naresh Chandra who also got opened the account of Vishal Jain in Vijaya Bank, R.K. Puram where he had account. He introduced his account. He transferred the money in the account of Vishal Jain which was used for the purchase of the plot. He got SPA/GPA executed in favour of his wife Shashi Singhal in March 1994 itself which was notarized in July 1994. Naresh Chandra also entered into an agreement to sell Mark X on a stamp paper dated 14.02.1994 with Mohan Jain and Deepika Jain. PW23, after seeing the agreement to sell Mark X, has stated that the signature on the said agreement appears to be of the accused Naresh Chandra on all the pages. The said agreement is undated whereby the sale consideration was fixed for Rs. 67,20,011/. It was mentioned in the agreement that Mohan Jain and Deepika Jain who due to their personal circumstances and other debt obligations are not in a position to pursue the project further and considering that the excavated site is now posing danger to adjoining building and to meet their urgent bonafide RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 111 of 168 CBI v. Naresh Chandra & Ors.

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family requirements and return their loan commitment have agreed to sell and the vendee has agreed to purchase the abovesaid plot on "as it is where it is basis". It was also mentioned that the possession of the abovesaid has been delivered to the vendee (Naresh Chandra) and vendors (Mohan Jain and Deepika Jain) are left with no claim, title or interest in the above said plot and the vendee shall have comprehensive power to construct the building/flats on the said plot of land and to sell the same in whole or in parts and receive consideration.

82. Naresh Chandra also accepted the demolition notice and sealing notice and sent letter to ZAC on 08.11.1994., 06.10.1995 and 06.12.1995 for compounding the deviations in the building. He deposited the compounding fee and wrote a letter that he has paid the compounding fee. He got the plot converted from lease hold to free hold in May 1995 on the basis of SPA purportedly signed by Mohan Jain which he had not signed. Naresh Chandra signed the conveyance deed and deposited the conversion charges. Shashi Singhal on the basis of GPA executed the sale deed in favour of Naresh Chandra on 27.11.1995. By that time the building had already been booked for unauthorized construction/ deviations but he still purchased the building. The sale deed does not find mention how the balance sale consideration was paid or whom it was paid. The attending circumstances show that the construction was raised by none else but the accused Naresh Chandra. He sold the flats to the buyers without telling that there were non compoundable deviations which were to be demolished. The RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 112 of 168 CBI v. Naresh Chandra & Ors.

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building was later sealed and on payment of charges it was desealed by the orders of the court. The residents also made complaints against Nidhi Builders, an enterprise of the accused Naresh Chandra regarding the unauthorized construction. He earned profits by selling the flats at higher price. He remained behind the curtain and put Mohan Jain and Deepika Jain as a front. He was the ultimate beneficiary of whole of the transactions. He had taken the services of Ram Dandona as architect for making the plan and for issuing the instant form C1 and form D1. He did not get the property mutated in his name after the sale deed. He made the application as to the payment towards compoundable deviation on behalf of Mohan Jain and Deepika Jain even though the sale deed had already been executed in his name. He purchased the property fully knowing that there were non compoundable deviations and the building has been booked.

83. For the aforesaid reasons, I am of the view that Naresh Chandra was the main person who hatched a criminal conspiracy to defraud the MCD. He after purchasing the plot in the name of Mohan Jain and Deepika Jain, dishonestly made deviations in the construction on the said plot of land in excess to the permissible area and induced MCD to issue and deliver form D1 and thereby caused wrongful loss to the MCD and corresponding wrongful gain to himself and thus committed the offence of criminal conspiracy and cheating. Although he was directed to demolish the noncompoundable deviations but he did not and delayed it RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 113 of 168 CBI v. Naresh Chandra & Ors.

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and later he sold the flats to different persons whose flats were sealed and they had to bear the expenses for their desealing. Facts & circumstances show that the act and action of Mohan Jain and Deepika Jain was bonafide. They were kept as a front for purchasing the plot in question. Thus, no criminality can imputed against Mohan Jain and Deepika Jain.

Role of the accused Ram Dandona (A2)

84. In the instant case, the prosecution in order to support the allegations against the accused has relied on only the four documents i.e. the building sanction plan Ex.PW2/A, Form C1 Mark PW1/B, Form D1 Ex.PW1/A both bearing the signatures of the accused submitted to the MCD on 25.08.1994 and 26.10.1994 respectively and the ledger account Mark PW27/A recovered pursuant to the search in the office of the accused.

85. PW3 has explained the procedure to be followed during the construction of the building as per the bye laws of the MCD. He has stated that for the construction of plot measuring more than 300 sq.mtrs, an application is submitted to the office of Executive Engineer (Building), Headquarters, Town Hall, Delhi. Concerned JE inspects the area and examines the plan with respect to the master plan and submits his report to the Assistant Engineer who after satisfying himself forwards it to the Executive Engineer who sanctions the plan. The ownership documents, key plans, proposal for construction and affidavits as per the provisions of building bye laws, no dues certificate from the House Tax Department, RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 114 of 168 CBI v. Naresh Chandra & Ors.

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indemnity bond regarding safety of the building in case of basement, supervision certificate of the plumber and architect are submitted. After the sanction of building plan, the copies are sent to the building department of the zonal office and other departments including the owner of the property who intimates the zonal office regarding the date of start of construction. The validity period of sanction of building plan is to be reckoned from the date of its issuance i.e. two years. Junior Engineer (Building) of the zonal office is supposed to keep watch on all the buildings under construction in his area to ensure that the building is constructed as per the sanctioned plan. In case he notices any deviation, he books the deviation, prepares an FIR and submits to Zonal Engineer (Building) for obtaining order for issuance of show cause notice which is issued under the signature of ZE(B). JE is supposed to serve the notice personally on the owner or by pasting it at the site in case of refusal giving three days time to the owner after expiry of which he submits his report to ZE (B) who passes speaking order for issuance of demolition notice. JE (B) then prepares a demolition notice which is issued under the signature of ZE (B) and is served on the owner in the similar manner. The time limit of demolition order is six days from the date of its issuance and after the expiry of demolition notice period, JE(B) submits his report to ZE(B) who passes speaking order for demolition of the property as per the policy of the department and thereafter the file is handed over to the officer Incharge (B). In case of major deviation, JE inspects the site and RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 115 of 168 CBI v. Naresh Chandra & Ors.

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compares the construction existing at site with the approved sanction and deviations, prepares an FIR and puts up before the ZE(B) for issuance of show cause notice which is three days and it is served by the JE. If a reply is received, it is considered as per building bye laws. If the deviation is found non compoundable, demolition notice is issued by the ZE (B). Sometimes sealing orders are prepared when it is feared that the construction is going unabated and it is likely that the owner/building may dispose off the property. The sealing orders are issued under the orders of Deputy Commissioner.

Instant C1 form is issued for taking the water line and sewer line. JE(B) reports to ZE(B) after the site inspection for its approval. If the lines are covered or laid defectively, it is rejected. Form D1 is issued under the signature of JE (B) after the site inspection by the JE when the building is complete and water connections are provided from the overhead tank. There is a provision of instant D1 form which is submitted by the architect and the owner in the zonal office. The occupancy certificate is issued when the building is complete in all respect. JE inspects the site and reports whether any deviation is compoundable or not. After payment of compounding fee, completion certificate is issued by the ZE(B). Architect is responsible to supervise the building whether it has been constructed as per the approved sanction plan and if he is found to have not been discharging his duties properly, matter is referred to the Council of Architect for taking disciplinary action against him.

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86. In the instant case, PW2 JE(B), Headquarters had processed the file pertaining to the above plot. He had also processed the building plan. He proved the sanction release letter Ex.PW2/A (D

11) dated 10.06.1994 and sanction plan Ex.PW2/B and has stated that the letter was received by the architect/accused S.R. Dandona. He has stated that when he inspected the plot on 15.03.1994, the construction had not yet started and the plot was vacant. There was a query about the size of the plot which was not tallying with the layout plan available in the office. He has stated that vide Agenda Ex.PW2/D dated 27.04.1994, the plan of the above property was approved. PW3 has stated that the building plan was submitted by the owner on 28.02.1994. A notice was issued on 16.03.1994 by the AE pointing out the shortcomings in the plan. It was released on 10.06.1994 after the building plan committee approved it. PW19 also deposed on the lines of PW3. In the instant case, none of the witnesses pointed out that the plan was prepared in violation of the building bye laws or rules. It was duly approved by the committee and was communicated to the owner/architect. In fact PW2 has clearly stated that the sanction building plan Ex.PW2/A met all the relevant building bye laws and regulations which he had processed and the building plan committee did not find anything illegal or irregular about it.

87. In the instant case, the prosecution has relied on form C1 and form D1 bearing the signatures of the architect/accused S.R. Dandona to state that the architect/ accused by signing on these forms had certified that the building was being constructed in accordance RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 117 of 168 CBI v. Naresh Chandra & Ors.

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with the sanctioned building plan, thus misguided the MCD officials regarding the construction of the building. Before adverting to the above contentions, it is relevant to reproduce the form C1 Mark PW1/B and form D1 Ex.PW1/A signed by the accused/ architect S.R. Dandona.

(BYE LAW NO.7.2.2) (TO BE SUBMITTED IN TRIPLICATE) FORM 'C' FOR THE INSPECTION OF A UNDERGROUND DRAINAGE/ SANITATION AND PEPELINES BEFORE COVERING THE LINES FOR RESIDENTIAL BUILDINGS UPTO 500 SQ. MTS.) To, The Commissioner, M.C.D. Town Hall, Delhi.

Sir, I/We undersigned hereby give notice of my/ our intention to cover up the drainage work on (date) at (time) in the premises of plot no. 105A, block no. B7 scheme Safdarjung R/Scheme request inspection and approval of the same.

The work was sanctioned by the Municipal Corporation of Delhi vide letter no. 215/B/HQ/94 dated 28.02.1994.

The fees of Rs.10/ has been deposited under cash receipt no. 682039 dated 25.08.94.

      Signature of Owner       Sd/
      Name of Owner            Mohan Jai
      Address of owner         B7/105A, Safdarjung Enclave, New Delhi.

Certified that the drainage/ sanitary work has been executed my supervision and is as per Building Bye Laws, 1983, Drainage Bye and Sanctioned Building Plans.

                Signature of Plumber/ Engineer        Sd/
                Name of Plumber/Engineer:             Shanker Singh Negi

License Number of Plumber/ Engineer: Stamp/seal Address of Plumber/ Engineer: Stamp/seal RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 118 of 168 CBI v. Naresh Chandra & Ors.

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Note:

This notice must reach the Architect/ Engineer/ Supervisor after 10 clear days before the work intended to be covered up. Verified that the above work has been inspected and is in accordance with the Bldg. Bye Laws, 1983 Drainage Bye Laws, of MCD and Sanctioned Building Plans and the work has been carried out within the validity period of Sanctioned Blds. Plans and that no nonCompoundable deviations have been found at the time of inspection and as such the work is approved. Signature of the Architect/Engineer/supervisor Sd/ Name of Architect/Engineer/supervisor Stamp of Ram Dandona and Associates License Number of Architect/ Engineer/supervisor: do Address of Architect/ Engineer/supervisors: do C.A/75/1827 Municipal Corporation of Delhi Building Department, South Zone, Green Park No.163/C/B/SZ/94 Dated: 25.08.1994.

Certified that the above work has been accepted and approved on the basis of certificate of the Licensed Architect/ Engineer/ Supervisor.

Sd/ For Commissioner, Municipal Corporation of Delhi APPENDIX D1 (BYE LAW NO.7.2.3) (TO BE SUBMITTED IN TRIPLICATE) FORM 'D' FOR THE INSPECTION OF SANITARY/ WATER SUPPLY WORK FOR RESL. BUILDINGS UP TO 500 SQ. MT.S) To, The Commissioner, M.C.D. Town Hall, Delhi.

Sir, I/We undersigned hereby give you notice that the drainage work in the premises of Plot No.105A Block No. B7, Scheme Safdarjung R/ Scheme will be completed entirely and ready for your final inspection on (date) at (time) and request for inspection and approval of the same.

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The work was sanctioned by the Municipal Corporation of Delhi vide letter no. 215/B/HQ/94 dated 28.02.1994. The fees of Rs.15/ has been deposited vide G8, R. No. 368027 dated 26.10.94.

      Signature of Owner        Sd/
      Name of Owner            Mohan Jain
      Address of owner          B7/105A, Safdarjung Enclave, New Delhi.

Certified that the sanitary/water supply work has been executed under my supervision and is as per Building Bye Laws, 1983, Drainage Bye and Sanctioned Building Plans.

Signature of Plumber/ Engineering Sd/ Name do Shanker Singh Negi License no. : stamp and seal Address Stamp and seal Verified that the above work has been inspected and is in accordance with the Bld. Bye Laws, 1983, Drainage Bye Laws and sanctioned Bld. Plans and the work has been carried out within validity period of sanctioned building plans and that no Noncompoundable deviations have been found at the time of inspection and as such, the work as approved. Signature of architect/ Engineer/supervisor Sd/ Name do Ram Dandona & Associates License no. : stamp and seal Address Stamp and seal CA/75/1827 Municipal Corporation of Delhi (Bldg. Deptt./South Zone: Green Park) No.252/D/SZ/Bldg./94 Dated: 26/X/94 Certified that the above work has been accepted and approved on the basis of certificate of licensed Architect/ Engineer/ Supervisor.

Sd//26/X/94 For Commissioner, Municipal Corporation of Delhi

88. The above forms are the formated forms in which the details have been mentioned in bold letters.

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89. It is pertinent to note that the aforesaid forms have been prescribed in the regulation 7.2.2 and regulation 7.2.3 of the Delhi Building Byelaws, 1983, which are reproduced herein below:

"7.2.2 Notice for covering up underground drain and sanitary work - The owner/applicant who has been granted building permit shall serve a notice in the form as given in the Appendix 'C' duly signed by a licensed plumber/Engineer along with fee of Rs.10/ for inspection of such work by the officer deputed by the authority at least 10 days prior to the covering of underground drain and sanitary work.

7.2.3 Notice of completion of drain, sanitary and water supply work The owner/applicant who has been granted building permit shall serve a notice in form as given in Appendix 'D' duly signed by a licensed plumber/engineer along with a fee of Rs. 15/ for inspection of such work by the officer deputed by the Authority."

90. PW1, PW3 and PW19, the officials of the MCD have unequivocally stated that form C1 and Form D1 pertain to the sanitary/ drainage/ water work. PW1 has stated that form C1 is in regard of the underground drainage and pipeline work and the same precedes the form D1. He has admitted that in the FIR Ex.PW1/B dated 31.10.1994, he did not indicate any violation of established procedure of drainage and sanitation. PW3 has stated that the applicant lays down the services which is not to be covered before the inspection of the JE. The instant C1 form is issued for taking up the water line and sewer line. JE reports to the ZE after the site inspection for its approval. If the lines are RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 121 of 168 CBI v. Naresh Chandra & Ors.

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covered or laid defectively, the same is rejected. He has stated that he did not notice any deviation in the sanitation during the course of two days visit on the aforesaid property at the time of inspection. He gave the similar answer regarding the drainage. In the instant case, Form C1 was issued by the accused/JE Sandeep Sharma. It was issued on 25.08.1994. There is no evidence with the prosecution that when on 25.08.1994 the C1 form was issued, there was any deviation in the building or the construction was not in consonance with the sanctioned building plan or there were non compoundable deviations. PW1 has stated that he did not inspect the property from the date when form C1 was issued till the date when the form D1 was issued.

91. As regards issuance of form D1, PW1 has deposed that form D1 was submitted in the department in accordance with the prevalent procedure. He had also signed and endorsed the same in accordance with the prevalent procedure. He had inspected the premises only after the submission of the form. He also admitted that the FIR dated 31.10.1994 Ex.PW1/B does not indicate any violation of established procedure of drainage and sanitation.

92. There is no denial of the fact that the form C1 Mark PW1/B and the form D1 Ex.PW1/A do not bear the date below the signature of the architect/accused Ram Dandona but it cannot be lost the sight of the fact that the said forms were signed and accepted by the JE building on 25.08.1994 and 26.10.1994 respectively. The sanction plan was released to the owner / architect on 10.06.1994. On the aforesaid plot of land as evident from the record, four RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 122 of 168 CBI v. Naresh Chandra & Ors.

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floors were constructed from basement upto the third floor. It is an admitted case of the prosecution that the form C1 is issued at the plinth level stage before covering of the underground drainage. The form D1 pertains to the execution of sanitary/ water supply work and connection from the overhead tank to the toilets at different floors. It is issued at the stage when the structural work of the building is completed. It leads to an inference that the four floors were constructed during the period from 25.08.1994 to 26.10.1994.

93. In this case, the architect/ accused S.R. Dandona had issued the certificate in form D1, verifying that the above work was inspected by him which is in accordance with the building bye laws, 1983, drainage bye laws and sanctioned building plans and the work has been carried out within validity period of sanction building plan and that no non compoundable deviations have been found at the time of inspection and as such, the work is approved. The above certificate was verified by PW1 who did the site inspection on 31.10.1994. During inspection, he found major deviations on all the floors including the basement in the shape of excess coverage, set backs, roof projections etc. The deviations were calculated by the JE/AE building vide their report Ex.PW8/D1 which were compoundable and non compoundable. It is improbable rather impossible that the said deviations / unauthorized construction had come up during the period from 26.10.1994 when the form D1 was issued upto 31.10.1994 when the FIR Ex.PW1/B was lodged. Admittedly, the form D1 bears the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 123 of 168 CBI v. Naresh Chandra & Ors.

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signature of the plumber Shankar Singh Negi but he had given certificate only to the extent that the drainage/ sanitary work has been executed under his supervision and is as per building bye laws, 1983, drainage bye laws and sanctioned building plan. He did not give any certificate that there are no non compoundable deviations as has been given by the architect/accused S.R. Dandona. I am not in agreement with the contention of ld. Defence counsel that the certification / form D1 has been misconstrued by the prosecution to state that the certification is for the purpose of giving confirmation of the construction activity to the sanctioned building plan. It is not the case of the accused that PW1/JE Building had given a false report or the FIR Ex.PW1/B was false. He had mentioned all the deviations which were confirmed in the report Ex.PW8/D1 and the technical committee report Ex.PW3/B1.

94. It was contended by ld. Defence counsel that accused Ram Dandona was not involved in the supervision of the construction of the building. I may mention that in the instant case, the prosecution did not produce any witness who had identified the accused being present at the site where the building was being constructed nor the investigating agency collected any evidence including the details of vendors who had supplied the construction material for the execution of the building nor recorded the statement of the individuals from the neighbouring houses / area where the building was constructed. PW3 has also stated that the architect whose signatures are on the sanctioned building plan can RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 124 of 168 CBI v. Naresh Chandra & Ors.

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be substituted by the builder/owner for the purpose of construction. I am in agreement with the contention of ld. Defence counsel that in these circumstances it cannot be conclusively held that the architect/ accused S.R. Dandona was involved/ responsible in the supervision of the construction of the building. The accused in his statement has also stated that he was engaged by the accused Naresh Chandra proprietor of Nidhi Builder for making building plan and for issuing form C1 and D1. He was not at all concerned with the supervision/overseeing the construction of the building over the plot of land. Since in the instant case, he had given a certificate while issuing a form D1 Ex.PW1/A that the above work has been carried out in accordance with the building bye laws and sanction building plan and no noncompoundable deviations have been found at the time of inspection which is contrary to the report of PW1 vide FIR Ex.PW1/B, he can safely be held responsible for his complicity for issuing the false certificate in connivance with the accused Naresh Chandra builder. It was incumbent upon him to see before signing the said form/issuing the certificate that the construction was raised as per the sanction plan and building bye laws. The record clearly shows that the deviations had materialized before he issued the certificate on the form D1 Ex.PW1/A.

95. As regards seizing of ledger from the office of the accused S.R. Dandona where entries as to the receipt of payment on 15.04.1994 for Rs. 35,000/ and on 15.06.1994 for Rs. 25,000/ have been reflected, I agree with the contention of ld. Defence counsel that RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 125 of 168 CBI v. Naresh Chandra & Ors.

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the said entries mark PW27/A (D18 page 67) are not proved in accordance with the Evidence Act as the same do not bear the signature of the accused S.R. Dandona. No opinion from the handwriting expert was taken whether the said entries were in the handwriting of the accused nor there is any evidence to the effect that the aforesaid ledger was maintained during the course of the business of the company owned by the accused S.R. Dandona nor any connecting evidence was found whether the above cheques were issued from the account of M/s Nidhi Builders. It is well settled law that the ledger in the absence of any authentication from an expert is inadmissible in law and cannot be considered as proof. Further in view of the law laid down in the cases, V. D. Jhangan v. State of Uttar Pradesh 1966 SCR(3) 736, CBI v. V. C. Shukla & ors 1998 (3) SCC 410 and S. K. Jain v. Union of India 2008 Crl. A.340, I am of the opinion that entries in books of accounts are not by themselves sufficient to charge any person with liability.

96. The accused in his statement u/s 313 Cr.P.C has stated that he was engaged by the accused Naresh Chandra, proprietor of Nidhi Builders for preparing the plan in respect of the above building. Although, during investigation one file Ex.PW2/X (D11) was seized which contains form for first application erect, reerect or to make material alteration in any place in a building (by law no. 6.1) form 1, form 11 (by law no. 6.2.6) for specification of proposed building, bye law no. 6.2.7 for supervision 1, form for notice for commencement of work (bye law no. 7.2.1) form 3, RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 126 of 168 CBI v. Naresh Chandra & Ors.

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terms of supervision (bye law no. 6.2.8) as per which the accused S.R. Dandona was authorized to carry out the erection/ reerection of the building under his supervision but there is no such written agreement to this effect with the owner nor the above documents bear the signature of the accused S.R. Dandona. There is no evidence to indicate that he had ever connived with the MCD officials or any illegal gratification was obtained by the MCD officials pursuant to any action on his behalf. Admittedly, the materials and the documents placed on record nowhere show that the accused personally profiteered, illegally or otherwise by issuing the form C1 or Form D1 or for this purpose, he received a windfall in any manner but it has been proved that he was party to the criminal conspiracy with the accused Naresh Chandra, builder. He fully knowing that there were noncompoundable deviations in the property, dishonestly issued the form D1, certifying that no noncompoundable deviations had been found at the time of inspection allowing the accused Naresh Chandra to defraud the MCD.

97. In the case of Baliya vs. State of MP (2012) 9 SCC 696, it was held:

15..........The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched once the unlawful combination of minds is RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 127 of 168 CBI v. Naresh Chandra & Ors.

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complete, the offence of criminal conspiracy stands committed....

17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.

98. In the case of CBI vs. K. Narayana Rao (2012)9 Scale 25), it was held:

24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in the matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 128 of 168 CBI v. Naresh Chandra & Ors.

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persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.

99. In Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 (known as Indira Gandhi murder case) it was held:

"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly be proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.

It is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; their need never have been an express verbal agreement, it being sufficient that there was a "tacit understanding between the conspirators as to what should be done..."

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100. For the aforesaid reasons and in view of the case law (supra), I am of the view that both accused S.R. Dandona and Naresh Chandra came together, agreed to pursue the unlawful object of cheating the MCD by making large scale deviations. There was sort of tacit understanding between them as to what should be done. I am of the view that the necessary ingredients of the offence of criminal conspiracy read with cheating (120B IPC r/w 420 IPC) are proved against the accused Ram Dandona (A2).

Role of the accused Sandeep Sharma (A3)

101. As per the allegations of the prosecution, the accused Sandeep Sharma A3, wilfully omitted the inspection of the building site from 20.06.1994 to 25.08.1994 when C1 form in respect of the building was accepted/issued. It facilitated the unauthorized excess construction/deviations against the sanction building plan for the basement of the building to come up. He dishonestly issued form C1 of the above property on 25.08.1994 though he had received his transfer order on 24.08.1994. He deliberately and dishonestly did not maintain any record / register as prescribed under the MCD rules. He deliberately and dishonestly suppressed the said information from his successor J.P. Dabas (PW1) by abusing his official position as such public servant for giving the builder/owner unlawful pecuniary advantage. He entered into a criminal conspiracy with the other accused persons to cheat the MCD and thereby caused wrongful loss to the MCD and corresponding wrongful gain to the builder/owner and himself.

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102. In the instant case, the building sanction plan Ex.PW3/DX qua the property was released on 10.06.1994. The plan was received in the office of Architect S.R. Dandona on 10.06.1994. The construction on the aforesaid plot of land commenced after 10.06.1994. As per the record Ex.PW27/G, the accused remained posted in the ward no. 13 from 19.05.1994 to 24.08.1994. He had issued form C1 Mark PW1/B on 25.08.1994. PW1 has stated that form C1 is issued in regard to the underground drainage and pipeline and it precedes the form D1. He has stated that he did not inspect the property in question from the date when form C1 was issued till the date when form D1 was issued i.e. till 26.10.1994. He has stated that he never maintained the construction watch register during his tenure in the building department nor he was handed over any construction watch register during his tenure by any of the JEs. He has admitted that there is circular according to which any JE who is present in the office can accept the C1 form. He proved the circular Mark PW1/X1. According to PW2, instant C1 form is applied before the Tax Clerk. On receipt of the said form, a receipt of Rs. 10/ is issued by the Tax Clerk. The form is presented before the JE who is present in the office. Any JE who is present in the office can accept the form. It is not necessary that the said form should be accepted by the concerned AE or JE. In the year 1994, no building watch register was being maintained in the office by any of the officials of the MCD. PW3 has stated that the instant C1 form is submitted by the owner/architect and no site inspection is required. It is received in the zone by the concerned RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 131 of 168 CBI v. Naresh Chandra & Ors.

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clerk. JE present in the zone accepts / issues the C1 form. Any JE of the zone can accept/ issue instant C1 form. Unauthorized construction can be carried out even after issuance of C1 & D1 forms. PW6 has stated that in his letter Ex.PW6/A, he had stated that the accused was relieved from the charge of Safdarjung Development area by the order of the office but he was not transferred out of the zone but was given the charge of a different area. He proved the office order Ex.PW6/DA dated 24.08.1994 (D21). He has admitted that ZE building can make internal changes in the office. He has stated that both J.P. Dabas and Sandeep Sharma had been working under the same office i.e. ZE (Building) south zone. He was shown the dispatch letter of the office order received by the JE concern and he admitted that the date of receipt is not mentioned beneath the signature of the JE concern. He also admitted that beneath the signature of one JE, date is mentioned as 25.08.1994 at point A on Ex.PW6/DB.

PW7 has stated that as per the circular no. 10E(B) HQ 93, a construction watch register was to be maintained by JE of MCD. So far as his knowledge goes, no such register was being maintained by the officials of MCD building. C1 form is an instant form and is to be issued immediately. It has to be accepted by the concerned JE but in case he is not available, any JE available in the office can accept it. He admitted that there is a circular/ office order of the DC (Engg.) that the ZE (B) shall take necessary steps to ensure that one JE (B) is available in the office for acceptance of C1 forms. He admitted that a separate receipt RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 132 of 168 CBI v. Naresh Chandra & Ors.

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register for this purpose is maintained by the Tax clerk in the office of the ZE building. PW8 has stated that in the year 1994 there was only one Zonal Engineer (Building) in the entire zone. All the JEs and the Office Incharge had been working under the Zonal Engineer (Building). He was also shown the office order Ex.PW6/DA dated 24.08.1994 and he stated that there was an internal change of the duty of the JEs in this zone. This order was for the JEs posted in the zone. He has stated that Zonal Engineer could make the internal changes of the JEs in the zone. He admitted that JE J.P. Dabas and accused Sandeep Sharma had been working under the same Zonal Engineer (Building) South zone.

103. From the perusal of the above evidence and the record / circular, it is clear that the instant C1 form is submitted to the Tax clerk who on receipt of the said form issues a receipt of Rs. 10/. The form is thereafter presented to the JE present in the office. Any JE who is present in the office can accept the form. It is not necessary that it should be accepted by the concern JE. PW1 has also produced a circular Mark PW1/X1 to this effect which interalia provides that the official not below the rank of JE shall accept the C1 form, The ZE(B) shall take necessary steps to ensure that one JE(B) is available in the office for acceptance of C1 form. This fact has also been stated by PW7 that the Deputy Commissioner (Engg.) has issued a circular/office order whereby ZE (B) shall take necessary steps to ensure that one JE (B) is available in the office for the acceptance of C1 form. He has stated that a separate RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 133 of 168 CBI v. Naresh Chandra & Ors.

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receipt register for this purpose is maintained by the Tax Clerk in the office. DW1 has brought the C1 form register of the period from 01.01.1992 to 27.03.1996. A perusal of the same would reveal that an entry dated 25.08.1994 Ex.DW1/A regarding receipt of form C1 in respect of the property bearing no. B7/105A, Safdarjung Enclave, New Delhi was made by the Tax Clerk. It has also come in evidence that the accused was transferred from the area vide office order but not from the zone. He had been working in the same zone under the same office with PW1 J.P. Dabas, JE(B) who assumed the charge from the accused after his transfer. That being the position, I do not find force in the contention of ld. PP that the accused wilfully omitted the inspection or issued the form C1 on 25.08.1994 a day after his transfer orders and deliberately suppressed the information from his successor J.P. Dabas by neither recording it in the register nor informing J.P. Dabas orally. The entry in this register was made by the Tax clerk and that register was accessible to all the JEs / AE. It is not the case that no entry in the register was made. It is rather improbable that the factum of receiving the C1 form might have not come in the knowledge of his successor JE J.P. Dabas. PW1 did not depose that the accused suppressed this information from him and owing to this, he did not inspect the building within a week. There is nothing in evidence to prove that the accused was required to inform PW1 orally qua the ongoing construction in the building. In the instant case, he got entered the acceptance / issuance of C1 form in the register and as such he was under no RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 134 of 168 CBI v. Naresh Chandra & Ors.

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obligation to orally inform his successor PW1 qua this building. Further, there is no evidence to show that he obtained any pecuniary gain due to the alleged act.

104. As regards maintaining the construction watch register in terms of the circular dated 09.09.1993, it has come in the testimony of PW1 and other witnesses that no such register was being maintained in the zone. It is not the case that he was the only person who had not maintaining such register. Rather, this register was not maintained by his predecessors or successors. Surprisingly, prosecution was launched against the accused and others were let of.

105. In the instant case, relieving order is silent whether the accused was relieved on 25.08.1994 or 24.08.1994. Testimony of PW6 shows that no date of receipt was mentioned by the JE concern beneath his signature. One of the JE had mentioned the date as 25.08.1994 at point A on Ex.PW6/DB beneath his signature. In these circumstances, possibility of the accused relieving from that area on 25.08.1994 cannot be ruled out.

106. Nothing can be inferred from his act and conduct that he deliberately suppressed the information of issuance of form C1 from his successor owing to which the building could not be physically inspected by his successor J.P. Dabas within a week and consequently the builder was given undue advantage of the situation to continue the construction in violation of the building bye laws. Even otherwise, there is no evidence to show that when the form C1 was issued by the accused, there was deviation / RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 135 of 168 CBI v. Naresh Chandra & Ors.

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violation of building bye laws. Nothing can be inferred from the above record and the testimony of the witnesses that the accused abused his official position as such public servant to give builder/owner unlawful pecuniary advantage or he caused wrongful loss to MCD and correspondence wrongful gain to the builder/owner and himself.

107. As regards the contention that MCD Act is a complete code which deals with the offences under the MCD Act and CBI has no jurisdiction to investigate the case, perusal of the record reveal that the accused was charged for the offence of criminal conspiracy, cheating and misconduct as such public servant punishable u/s 13 of the Prevention of Corruption Act, 1988. I am of the view that CBI had jurisdiction to investigate this case.

Role of the accused Surinder Pal (A4)

108. In the instant case, the charge against the accused Surinder Pal was precisely framed on the following premises:

i. A4 entered into a criminal conspiracy with the accused persons during the year 1994.

ii. The object of the conspiracy was to cheat the MCD thereby causing wrongful loss to the MCD and corresponding wrongful gain to himself and other accused persons.

iii. A4 during the period 1994, dishonestly induced MCD to omit to take legal action against Naresh Chandra, Mohan Jain and Deepika Jain against unauthorized RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 136 of 168 CBI v. Naresh Chandra & Ors.

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construction on the plot in question i.e. B7/105A, Safdarjung Enclave by putting a proposal on 27.11.1995 to ZAC on the representation of the builder/owner offering to deposit compounding fee and removal of non compoundable deviations and issuing a letter dated 04.12.1995 to this effect. He was required to submit a report on or before 04.01.1996 but he dishonestly put a note dated 14.02.1996 seeking approval for the case to be taken up for hearing without any request from the builder/owner and he dishonestly endorsed erroneous technical report submitted by the JE and allowed the unauthorized construction to remain on the said property causing wrongful gain to the builder/owner.

iv. A4 during the year 1994, dishonestly allowed Naresh Chandra, Mohan Jain & Deepika Jain to remain in unauthorized construction on said property despite the order of its removal in gross violation of the approved building plan/building byelaws and further dishonestly did not take legal action against builder/owner.

109. A perusal of the record would show that the accused Surinder Pal joined in the zone as ZE (Building) on 14.08.1995. He remained posted till 18.03.1996. In the year 1994, he was not posted in the ward / zone. Prior to his joining in the above zone, Rambir Singh Bansal and R.K. Bhattacharya were the ZE (Building) during the period from 20.06.1994 to 24.04.1995 and 26.04.1995 to 14.08.1995 respectively. PW3 proved the document Mark RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 137 of 168 CBI v. Naresh Chandra & Ors.

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PW21/A and has stated that the accused had worked as AE (Building) during the period from 15.08.1995 to 18.03.1996. He has stated that as per the sealing and booking file Ex.PW5/X1, status of unauthorized construction remained the same after 31.10.1994 and there was no unauthorized construction in the building during the tenure of the accused Surinder Pal. He has stated that an unauthorized construction which would be deviating from the sanction plan may have compoundable and non compoundable portions in it. It is the duty of the JE (Building) to inspect the building and report as to what portions are compoundable and what portions are non compoundable. The owner of the building can also approach the MCD for seeking compounding of the compoundable portions of the unauthorized construction. He has stated that once the owner of the building approaches the MCD for compounding of the noncompoundable portions, it becomes the duty of JE (B) to inspect and report as to what portions are compoundable and what portions are non compoundable. MCD is duty bound to grant a hearing to the owner of the building to know as to which compoundable portions, the owner / builder wants to retain and which portions he wants to be demolished. He has stated that since in the present case, the sealing process had started, it was the Addl. Commissioner of the Zone who had to grant the hearing to the owner of the above building.

110. In the instant case, the premises was booked for the unauthorized construction on 31.10.1994 vide FIR Ex.PW1/B. The show cause RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 138 of 168 CBI v. Naresh Chandra & Ors.

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notice was given to the owner on 31.10.1994 vide Ex.PW3/Y1. The demolition order Ex.PW19/D5 was passed on 21.11.1994. The sealing notice was affixed on the premises on 27.05.1995. Show cause notice of sealing was served on 29.05.1995. Till 12.06.1995, no reply came from the owner. The draft sealing order was prepared on 19.06.1995.

111. Record reveals that a letter dated 06.10.1995 Ex.PW5/D was addressed to the ZAC, MCD on behalf of the owners bearing the signature of the accused Naresh Chandra which has a reference of the letter dated 08.11.1994 Ex.PW15/DC whereby the MCD was requested to depute an official for the purpose of calculating the compounding fee, if any, so that the same could be deposited. It was also requested that all the notices may be withdrawn by MCD and matter may finally be squared up. The said letter was marked by the ZAC to the accused Surinder Pal vide endorsement dated 26.10.1995 for an early action which was marked by the accused Surinder Pal to the JE (Building). Sanjeev Jain JE (Building) prepared a report Ex.PW8/D1 dated 02.11.1995 calculating the compounding fee within permissible limit and beyond permissible limit. He also mentioned the non compoundable covered area in the report. A note was put up by the accused vide Ex.PW27/DA dated 27.11.1995 alongwith the above report calculating the compoundable deviations as Rs. 2,39,125/ and removal of non compoundable deviations. The said note was approved by the Addl. Commissioner (Engg.) vide endorsement at point C on 29.11.1995. A letter dated 04.12.1995 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 139 of 168 CBI v. Naresh Chandra & Ors.

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Ex.PW5/DF was issued asking the owner to deposit the compoundable fee and remove the noncompoundable deviations within a month of the receipt of the letter. On 06.12.1995, a letter Ex.PW27/DX11 was addressed by the accused Naresh Chandra on behalf of the owners to the ZAC having the reference of the letter dated 04.12.1995 and letters dated 08.11.1994 and 06.10.1995 wherein it was stated that as per the order dated 04.12.1995, they have deposited the compounding fee amounting to Rs. 2,39,125/ vide receipt no. 153010 dated 06.12.1995 Ex.PW5/DB. It was mentioned in the letter that now the matter is finally squared up and all the notices previously issued on this subject by MCD stand withdrawn. The said letter was received in the MCD office on 07.12.1995 as evident from the endorsement and diary number of the MCD. Perusal of the note of the accused Surinder Pal contained in the file D10 vide Ex.PW4/A dated 14.02.1996 would show that he had confirmed that an amount of Rs.2,39,125/ as noncompoundable fee in respect of the compoundable deviations existing in the building has been deposited. It was also stated in the note that the owners have not so far removed the noncompoundable deviations as communicated to them. It was mentioned that if approved, this case may be taken up in hearing before the Addl. Commissioner (Engg.) for further necessary orders please. The said note was approved by the Addl. Commissioner on 23.02.1996 and the hearing was fixed for 07.03.1996. The party was communicated of the date of hearing as evident from the note dated 28.02.1996.

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112. A letter dated 03.04.1996 Ex.PW7/A was also written to the owners whereby they were informed to appear before the Addl. Commissioner (Engg.) for hearing for 19.04.1996. Record reveals that the owner/party did not attend the hearing on 19.04.1996 and the Addl. Commissioner adjourned the case for 10.05.1996 for one more opportunity. Again a letter dated 01.05.1996 Ex.PW5/DH was sent to the owner asking the owner to attend the hearing for 10.05.1996. It was mentioned that in case, he fails to attend the hearing, further action will likely be taken by the Asstt. Commissioner (Engg.) as per the DMC Act. A report in this respect was sought by the Addl. Commissioner. On 14.05.1996 a note was put up by his successor ZE (Building) giving the details of the unauthorized construction/ deviations and for demolition action.

113. It is not the case of the prosecution that any unauthorized construction/ deviations in the aforesaid building was carried out in the tenure of the accused Surinder Pal. As regards giving hearing before taking any demolition action, it is also not the case that his successor AE did not send notice to the owner to attend the hearing before the Addl. Commissioner. PW1 has stated that there is a circular dated 05.09.1977 Mark PW1/DA which contains a priority of demolition to be carried out. He has stated that the building under construction is kept on priority in the matter of demolition over the buildings which have already been constructed. The buildings which were constructed go behind in priority to those buildings which are under construction. PW3 has RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 141 of 168 CBI v. Naresh Chandra & Ors.

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stated that once the owner of the building approaches the MCD for compounding of the compoundable portions, it becomes the duty of the JE(B) to inspect and report what portions are compoundable and what portions are noncompoundable and MCD is under duty to give a hearing to the owner. He has stated that the notice Ex.PW4/A given by the accused Surinder Pal was in confirmity with the rules of the MCD. He has stated that as per the document Ex.PW5/A the hearing was given to the owners thrice i.e. on 07.03.1996, 19.04.1996 and 10.05.1996 and in sealing cases with respect of unauthorized construction, ZE/AE(B) has no power to give personal hearing to the owner of the building. He has stated that there is priority in relation to sealing and demolition of unauthorized construction. The last booked property is demolished first in time. The purpose behind this was to prevent further unauthorized construction. He has stated that as per the record, no occupancy certificate was issued to the owner. PW4 has proved his note Ex.PW4/A dated 23.02.1996 in respect of the sealing of the property. He has stated that the proposal was made by the accused Surinder Pal for hearing and as per the note dated 14.02.1996, he had fixed the case for hearing. PW5 has stated that he had fixed the case for hearing on 19.04.1996 and 15.05.1996 and on both the dates, the party did not turn up. On 10.05.1996, he had raised a query that there should be an action against the party for demolition and sealing.

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114. As regards the contention that in the letter dated 06.12.1995 Mark PW4/1, the party did not make a request for personal hearing, PW5 has stated that earlier there was no such practice for giving personal hearing but after 1986, due to Court directions, personal hearing was being given to the parties under the principles of natural justice. He has stated that there are also circulars in this respect dated 10.08.1970 Ex.PW5/DA and dated 22.12.1986 Ex.PW5/DB. He has stated that as per the circular Ex.PW5/DA, the party concern before an order of demolition should be given an adequate opportunity to explain its case and his request for compounding the unauthorized construction has to be carefully considered. It is relevant to reproduce the circular dated 22.12.1986:

Municipal Corporation of Delhi Town Hall, Delhi No. 47/C Dated: 221286 It has been brought to my notice that in several case, the premises or the unauthorized construction has been sealed without initiating any action for demolition of the alleged unauthorized construction. Though it is not a precondition that the show cause notice should be served on the owner/builder u/s 343 & 344 of the DMC Act before premises are sealed, yet in view of the provisions of the Act, it would be proper if show cause notice is served on the owner/builder, before the premises/ unauthorized construction are sealed. If, somehow, it is not possible to do so, the show cause notice should be served immediately after sealing of the premises or the alleged unauthorized construction so that the person concerned has an opportunity of putting forth his case regarding the unauthorized construction.

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The above instructions should be strictly adhered to and cases be completed as soon as possible without any delay.

Sd/ (B.B. Saxena) Deputy Commissioner (E) All concerned

115. It has also come in the testimony of PW8 that ZE building has no power to give personal hearing to initiate sealing process. There is an office order by which priority of sealing is determined by the MCD. The first priority is to carry out the demolition/sealing under the Court order. Second priority is to carry out the demolition/sealing of commercial structure and third priority is with regard to the last booked property which is under construction to be demolished/sealed. He has stated that it is the duty of the MCD to determine which portion of unauthorized construction is compoundable and which portion is not compoundable. In case, it is found that some portion is compoundable, a hearing is to be given to the owner of the building as to which portion he wants to retain. He admitted that without giving personal hearing to the owner, the rectification cannot be carried out. The personal hearing to the owner in the case of sealing u/s 345A of the Act is to be given by the Addl. Commissioner (Engg.).

116. It is also important to refer circulars dated 04.04.1986 Mark X, Mark Y dated 22.11.2000 and Mark PW1/DA dated 05.09.1977 in this regard where priorities for demolition of unauthorized construction have been specified. PW19 has also referred the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 144 of 168 CBI v. Naresh Chandra & Ors.

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circular Ex.PW19/DY dated 04.04.1986 which was applicable at the relevant time.

117. In the instant case, PW26 has brought the Misal Band Register for the period from 20.06.1994 to 31.10.1996 Ex.DW1/B, Ex.DW1/C and Ex.DW1/D. The said record is also proved by DW1 who has stated that the Misal Band Registers contain the entries of the unauthorized construction of the properties. PW26 has stated that the above property was booked vide serial no. 340 on 31.10.1994. As per the record, 368 properties were booked during the period from 31.10.1994 to 31.07.1995 and 290 properties were booked during the period from 18.08.95 to 11.03.96. He has stated that the criteria for priority for sealing action is the same as that for the demolition. If the demolition action is to be taken on 31 st March, the same will be taken in respect of the properties booked on 30 th March i.e. the last booked property.

118. Testimonies of the above witnesses and the record clearly demonstrate that ZE (Building)/accused was not competent to give personal hearing before sealing the building in question. In the instant case, a request had already come for compounding of the compoundable deviations. The party had also deposited the compounding fee. It was to be ascertained by the accused AE/ JE which portions the parties had to get compounded so that non compoundable deviations may be demolished. For ascertaining these facts, a hearing was required. There are also circulars and directions to give hearing to the parties before taking sealing action.

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119. Admittedly, as per the letter Ex.PW5/DF dated 04.12.1995, the party was given time to remove the noncompoundable deviations within a month of receipt of this letter but there is no evidence to this effect when the said letter was received by the owner/builder. Admittedly, the accused initiated the action vide his note dated 14.02.1996 for taking up the case for hearing i.e. after about 40 days but there is no denial from this fact that before taking any action, opportunity of hearing was to be given to the party. It cannot be said that he had given twist by submitting a note dated 14.02.1996 seeking approval for the case to be taken up for hearing without any request from the builder/owner. It has already come on record that even in the absence of the request from the owner/builder, hearing was must which was required to ascertain which non compoundable portion was to be demolished. Rather, a duty was cast upon the MCD to give a hearing as evident from the testimony of PW3 and PW5. The action of the accused was also approved by the two Addl. Commissioners posted there who had fixed the case for hearing but on all the three times, the owners/builder did not turn up. It has also come in evidence that since the sealing process had started, it was the Addl. Commissioner to grant hearing to the owner to the above effect.

120. As regards the contention that the accused endorsed technically erroneous report of his JE since as per the policy 13.5 sq.metr area could be compounded but in the report, 22.58 sq.meter of area was compounded, testimony of PW8 shows that in a building constructed on a plot of land above 250 sq.meters situated on a 24 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 146 of 168 CBI v. Naresh Chandra & Ors.

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meter wide road, 3½ floors were permissible. He has stated that coverage of the basement is as per permissible area coverage on the ground floor and is free from FAR. He has admitted that the portion which is regularized on the ground floor being compoundable is automatically regularized on the basement as well and it is so mentioned in the master plan and building bye laws and in such situations, the owner need not pay the compounding fee for the portion regularized on the basement. PW3 has also stated that overhead tank, underground tank and machine room for the lift in the basement are not covered in FAR. He was also shown the sealing file mark PW5/X1 which contains the report regarding the above property and he has stated that as per the report, the compounding fee for the basement has also been levied. The circulars in this respect are also available on record and as per the circulars/office orders no. F.8/2/90LSG dated 13.12.1990 and No. 8/EE(B)HQ/92 dated 08.12.1992, the powers were given to the authority to compound deviations of excess coverage/ FAR beyond the permissible coverage/FAR to the extent of 10% per floor and the set back. It is further to be noted that in the instant case, the IO did not make the JE Sanjeev Jain liable but held the accused Surinder Pal liable though the report also bears his signature. I failed to understand how the report was technically erroneous.

121. In a criminal trial, the onus of proving each and every ingredient of the offence alleged is always on the prosecution and it has to discharge the same by leading admissible, credible and cogent RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 147 of 168 CBI v. Naresh Chandra & Ors.

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evidence. Suspicion howsoever grave cannot take the place of proof. In case of any doubt, benefit has to be given to the accused. The circumstances from which the conclusion of guilt is to be drawn should be fully established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.

122. In the instant case, there is no material or evidence to indicate that the accused Sandeep Sharma A3 and Surinder Pal A4, the officials of the MCD had any association or acquaintance with any of the accused persons or they acted dishonestly nor there is any material to show or suggest that they derived any pecuniary benefit out of the alleged actions. Nothing can be inferred from the facts & circumstances that they favoured the owners A5 and A6/builder A1 to give pecuniary benefit to them making them liable for the offence u/s 13(1)(d) of the Prevention of Corruption Act, 1988. There may be some procedural lapses on their part but these lapses at the best can be said to be irregularities and not illegalities warranting any criminal action against them.

123. In the case of Abdulla Mohammed Pagarkar vs. State (1980) 3SCC110, it was held that the onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. The irregularities no doubt furnish a circumstance giving rise to a strong suspicion in regard to the bonafides of the appellants in the matter of the execution of the work but suspicion, however strong, cannot be a substitute for proof. It is certainly not permissible to place the burden of proof of innocence RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 148 of 168 CBI v. Naresh Chandra & Ors.

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on the person accused of a criminal charge. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.

124. In the case titled as A. Sivaprakash vs. State of Kerala AIR 2016 SC 2287, it was held:

18. It was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)

(ii). The attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter.

19. In C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 1993: the Supreme Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/awarding the work in violation of circulars, that RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 149 of 168 CBI v. Naresh Chandra & Ors.

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by itself was not sufficient to prove that a criminal case was made out The Supreme Court went on to hold:

"22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar vs. State (Union Territor of Goa, Daman and Diu), (1980) 3 SCC 110:

(AIR 1980 SC 499), under somewhat similar circumstances, this Court opined that mere disregard of relevant provisions of the Financial code as well as ordinary norms of procedural behaviour of Government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial Court and the High Court to the requirements of proof in relation to a criminal charge was not proper........"

20. We, therefore, are of the opinion that the prosecution has miserably failed to prove the charge beyond reasonable doubt and the Courts below have not looked into the matter in a proper perspective. We, thus, allow this appeal and set aside the conviction of the appellant. The appellant is already on bail. His bail bonds shall stand discharged."

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125. In the case titled as C. Chenga Reddy vs. State of A.P 1996 (10) SCC 193, it was held:

21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature.

Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.

22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 151 of 168 CBI v. Naresh Chandra & Ors.

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establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants, in breach of codal provisions instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them.

37. .....................The maximum that can be said against the appellants is that they committed some indiscretion in the matter of allotment of jungle clearance work on nomination basis and also violated codal provisions in the matter of preparation of estimate, drawing up of the agreements and making payments. These acts of omission and commission do give rise to a strong suspicion that the appellants so acted with a view to misappropriate government funds but suspicion, howsoever strong, cannot take the place of proof. The prosecution has in our opinion failed to establish the case against the appellants beyond a reasonable doubt. The conviction and sentence imposed upon the appellants, under the circumstances, cannot be sustained.

52.............................There have been some irregularities committed in the matter of allotment of work to the appellant or breach of codal provisions, circulars and departmental instructions, for preparation of estimates etc and those irregularities give rise to a strong suspicion in regard to the bona fides of the officials of the department and their link with the appellant, but that suspicion cannot be a substitute of proof. The court below appear to have drawn inferences by placing the burden of proving innocence on the appellant which is RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 152 of 168 CBI v. Naresh Chandra & Ors.

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an impermissible course. In our opinion none of the circumstances relied upon by the prosecution against the appellant can be said to have been proved satisfactorily and all those circumstances which are not of any clinching nature, even if held to be proved do not complete the chain of evidence so complete as to lead to an irresistible conclusion consistent only with the hypothesis of the guilt of the appellant and wholly inconsistent with his innocence. The prosecution has not established the case against the appellant beyond a reasonable doubt. This appeal, therefore, succeeds and is allowed. The conviction and sentence of the appellant is hereby set aside.

126. In the case of Chittaranjan Shetty vs. State 2015 15 SCC 569, it was held:

22. On a perusal of the abovementioned judgments, it can be concluded that in order to prove the offence under Section 13(1)(d)(ii) of the Act, it must be established that a public servant has abused his position in order to obtain for himself or for any other person any valuable thing or pecuniary advantage and that in this context the "abuse" of position must involve a dishonest intention.

127. In the case of Surender Kaur vs. State of Haryana 2014 (15) SCC

109), it was held:

16. ..............The standard of proof required in a criminal trial is not of mere preponderance of probabilities but of proof beyond doubt. Applying the above standard, the other appellants are entitled to benefit of doubt. We also find that there is no evidence of taking of pecuniary advantage by Dr. Ravinder Kaur which is necessary for charge under Section 13(1)(d).

Presumption under Section 20 has been wrongly invoked as the same does not apply in respect of the said clause. Thus, her conviction and sentence under the Prevention of Corruption Act cannot be sustained.

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128. After analysing the entire evidence on record and on considering the rival contentions of the ld. Counsels, I am of the view that the prosecution has failed to prove its case against the accused persons Sandeep Sharma (A3) and Surinder Pal (A4) beyond reasonable doubt and they deserve the benefit.

Sanction to prosecute accused Sandeep Sharma A3 and Surinder Pal A4 u/s 19 of the Prevention of Corruption Act, 1988.

129. In the instant case, after the investigation, CBI had requested the competent authority to accord the sanction for prosecution against the MCD officials i.e. Sandeep Sharma A3 and Surinder Pal A4. The sanction was accorded by PW28 vide Ex.PW28/A.

130. PW28 has stated that in the year 20002002, when he accorded the sanction he was the Commissioner MCD and the authority competent to remove the MCD officials from the office. He has stated that in March 2002, the documents were placed before him and after considering the allegations, circumstances of the case, statement of witnesses and other relevant documents in particulars SP report and after independently applying his mind and after getting satisfied that there were adequate and sufficient grounds for according the sanction against the accused persons/ MCD officials, he accorded the sanction. Admittedly, he did not write the date below his signature on the sanction order Ex.PW28/A but he has stated that he had accorded the sanction on 27.03.2002. He RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 154 of 168 CBI v. Naresh Chandra & Ors.

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has stated that in normal course, draft sanction order is prepared by the vigilance department of MCD in consultation with the law department after taking into consideration all the relevant facts which is then perused by the Commissioner and if he finds it in order, he approves it. He has stated that draft sanction order was prepared with his consultation and thereafter the final sanction order was prepared on which he signed. He denied the suggestion that he mechanically accorded the sanction without applying his mind. It was mentioned in the sanction order that the accused persons / MCD officials while working as public servants entered into a criminal conspiracy with the accused Naresh Chandra proprietor of M/s Nidhi Builder and Ram Dandona Architect for allowing the unauthorized construction of a building comprising of basement, ground floor, first floor, second floor and third floor in the property no. B7/105A, Safdarjung Enclave and allowing some further construction on the terrace by abusing their official position as such public servants. The sanction order also has the reference of the technical committee report and the tenure of the MCD officials. It was stated in the sanction order that accused Sandeep Sharma wilfully omitted inspecting the site under construction and did not maintain any record/register as was incumbent upon him vide circular dated 09.09.1993 and he issued form C1 in respect of the property a day after receiving the transfer orders and he deliberately suppressed this information from his successor. He thus facilitated the builder Naresh Chandra in deriving undue pecuniary advantage. Accused Surinder Pal RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 155 of 168 CBI v. Naresh Chandra & Ors.

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instead of taking action as to the execution of the sealing order gave a inexplicable twist when on 14.02.1996, he put up a note seeking approval for the case to be taken up for hearing without any such request from the party/builder despite the fact that non compoundable deviations had not been removed. He did not resort to execute the already passed sealing order which led to further delay in sealing of the property. He endorsed the technically erroneous report of his subordinate JE(B) vide which the owner/builder had deposited the compounding fee. As per the policy, 5% of the permissible coverage/FAR could be compounded subject to maximum of 13.5 sq.mters but in the report, 22.58 sq.meters was compounded. Compoundable charge was not charged for the projection of balconies, cupboards, machine room etc and in this fashion the unauthorized construction was allowed to remain and the builder was able to profit from sale of space to various persons.

131. Testimonies of the witnesses and the record reveal that the accused Surinder Pal being the AE (B) was not competent to give hearing before sealing the building in question. A request had come from the party for compounding of the compoundable deviations. It was to be ascertained which portions, the party had to get compounded so that noncompoundable deviations could be removed. For ascertaining these facts, a hearing was required. There were circulars and directions to give hearing to the parties before taking sealing action. The coverage of the FAR was found to be compounded as per the policy.

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132. The documents and the evidence on record reveal that the action of the MCD officials was bonafide and within the rules. Accused Sandeep Sharma A3 being posted in the same ward accepted the form C1 which was put up before him by the Tax clerk after issuing the receipt of Rs. 10/. As per the circular/office order, any JE who is present in the office could accept the form. The entry to that effect was also made in the register. No material was found that he suppressed this information from his successor/PW1. It has also come in evidence that no construction/ building watch register was being maintained by any of the officials of the MCD. Further, there is no evidence that there was any unauthorized construction of the building when he issued the form C1.

133. Ld. Counsel has contended that PW28 was not the competent authority to accord sanction u/s 19 of the PC Act against the accused Surinder Pal and in this case the competent authority was the corporation. Perusal of the record would reveal that when the alleged offence was committed, he was AE (B) South Zone MCD. The sanction order Ex.PW28/A was passed by the Commissioner on 27.03.2002. By that time, he was promoted to the post of Executive Engineer (Civil) on usual terms & conditions vide order dated 13.11.1997. He became the 'Group A' officer since he started discharging his function as Executive Engineer being 'Group A' officer. This fact is also evident from the record / letter of the DIG CBI dated 26.02.2002 addressed to the Director Vigilance, MCD 90/C of the file Ex.PW28/DA wherein the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 157 of 168 CBI v. Naresh Chandra & Ors.

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designation of the accused has been mentioned as Executive Engineer (MCD) 'Group A' officer. This fact is also mentioned in the SP report at page 82/C contained in the file Ex.PW28/DA reference of which has also come in the testimony of PW28.

134. It is also to be mentioned that the accused had moved an application u/s 311 Cr.P.C for recalling PW28. Notice of the application was given to the CBI and vide proceedings dated 13.08.2018, the application was disposed of on the submission of ld. Counsel that since the reply from CBI has come as to the competence of the Commissioner to accord sanction for prosecution of the accused Surinder Pal who at the time of alleged incident was the Executive Engineer, he does not press for calling of PW28 u/s 311 Cr.P.C as the issue of competence is a legal issue. In Abhay Singh Chautala vs. CBI 2011 (7) SCC 141, it was held that the relevant date of sanction would be the date on which the cognizance was taken of the offence. The accused in that case did not continue to hold the office on the date of cognizance, it was held that there was no necessity of granting any sanction. In the case of G.S. Matharoo vs. CBI Crl.M.C. 2695/2010 decided on 25.01.2012 by the High Court of Delhi, it was held in para 22:

"22. In view of the discussion herein above, the only conclusion that can be drawn in the present case is that the authority competent to remove the petitioner is the Corporation as notified in the schedule to the Regulations on 15th December, 1976 which regulations have neither be rescinded nor amended till date. Thus, the corporation is the competent authority to grant RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 158 of 168 CBI v. Naresh Chandra & Ors.

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sanction under Section 19 of the P.C. Act and not the Commissioner in the case of the Petitioner who is a Group 'A' employee.

135. Against that order, SLP was preferred which was also dismissed.

The review was also filed which was also dismissed vide order dated 13.08.2015.

136. It is well settled law that the question as to the sanction can be raised at any stage of the proceedings. Since in the instant case, the accused was holding the post of Executive Engineer on adhoc basis, which was a group A post, in view of the judgment in the case of G.S. Matharoo (supra), the Commissioner was not the competent authority to accord the sanction for the prosecution against the accused Surinder Pal. I am of the view that the sanction for prosecution against the accused Surinder Pal was bad in law.

137. As regards the accused Sandeep Sharma, when the materials were placed before PW28, it was projected that the accused Sandeep Sharma was in conspiracy with the owners/builders to cause wrongful gain to the builder, he misconducted and abused his official position and caused pecuniary advantage to the owners/builder.

138. Thus, at the stage when the sanction was accorded, there was a prima facie material against the MCD officials/accused persons to prosecute them in the alleged offence. It was only after appreciating the entire evidence in proper perspective, a reasoned conclusion was arrived at.

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139. The purpose to give sanction for prosecution is to apprise the Court to take cognizance of the offence against the public servant. It is an administrative order not passed under any quasi judicial proceedings. It has no effect on the merit of the case. The sanctioning authority has not to act as a Court. It has to form a satisfaction after applying its mind whether the sanction for prosecution should be granted or not. The sanction order and the testimony of PW28 show that he had applied his mind and accorded the sanction after getting satisfied. In the case of Gurbachan Singh vs. Satpal Singh and Ors. 1990 AIR 2009 it was held that the Court must strictly be satisfied that no innocent person, (innocent in the sense of not being guilty of the offence of which he is charged) is convicted even at the risk of letting of some guilty persons. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.

140. In the case of CBI vs. Ashok Kumar Aggarwal, 2014 Crl.LJ 930, it was held that the order of sanction should make it evident that the authority had been aware of all or relevant facts/materials and had applied its mind to all the relevant material. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

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141. In the sanction orders, PW28 has mentioned all the allegations against the accused Sandeep Sharma/MCD official which show that he was aware of all the relevant facts of the case at the time of according sanction to prosecute him. He has mentioned in the order that he has fully and carefully examined the material placed before him. After careful perusal and application of mind, he found that it was a fit case for according the sanction to prosecute the accused Sandeep Sharma.

142. In State of Maharashtra through CBI vs. Mahesh G. Jain, (2013) 8 SCC 119, it was held by the Supreme Court that the sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. The Supreme Court considered various case laws on this issue and crystallized the following principles

"14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances has granted sanction of prosecution.

14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.

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would constitute the offence.

14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.

4.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity".

143. In the instant case the prosecution has placed the original sanction order before this Court and has also examined the sanctioning authority as a witness. In view of the above discussions as well as the principles reiterated by the Supreme Court in Mahesh G. Jain's case supra, a hypertechnical view of the sanction orders cannot be taken. It should also not be lost sight of that the sanctioning authority is not required to conduct a parallel investigation into the offences at the time of grant of sanction. I am of the view that the sanction order vide Ex. PW 28/A to prosecute the accused Sandeep Sharma was the valid sanction order. However, the sanction order vide Ex.PW28/A to prosecute the accused Surinder Pal was the invalid sanction order.

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CONCLUSION

144. Facts & circumstances of the present case show that accused Naresh Chandra who was in the construction business/builder wanted to construct flats on the plot bearing no. B7/105A. Safdarjung Enclave, New Delhi. He already had the property in his name at E152, Saket, New Delhi. He could not purchase the plot B7/105A, Safdarjung Enclave due to the policy of the DDA. He had friendly relations with Mohan Jain for about 20 years. In connection with his business, Mohan Jain used to visit Delhi. They had common friend namely, Nagesh Pathak, who was an IRS Officer and posted in Mumbai. Mohan Jain used to live in Bombay. He wanted some accommodation for his officecum residence at Delhi. Naresh Chandra offered him a flat at a cost price. He agreed to participate in the auction by DDA since he did not have any property in Delhi. It was the accused Naresh Chandra, who arranged whole of the finance for purchase and construction on the above plot. It was Naresh Chandra who engaged Ram Dandona an architect to prepare the building plan. He prepared the plan which was approved by the committee. The plan was released to the architect on 10.06.1994. Thereafter, the construction was raised. Form C1 was submitted to the MCD after the drainage work was completed. It was signed by the architect Ram Dandona. He certified that the work was done as per the approved plan and bye laws and no noncompoundable deviations were found at the time of inspection. The form C1 was accepted by the accused JE (B) Sandeep Sharma on 25.08.1994. Form D1 RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 163 of 168 CBI v. Naresh Chandra & Ors.

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was submitted to the MCD after the water supply and sanitary work was completed. It was signed by the architect S.R. Dandona. He certified that the work was done in accordance with the building bye laws and sanction building plan within the validity period of the sanction building plan and no noncompoundable deviations were found at the time of inspection. The form D1 was accepted by the then JE(B) J.P. Dabas on 26.10.1994. On 31.10.1994, JE(B) inspected the construction and found large scale deviations on all the floors. He recorded the FIR Ex.PW1/B and initiated the process of demolition/sealing. Record reveals that before the construction was started, Mohan Jain and Deepika Jain had executed General Power of Attorney and Special Power of Attorney notarized on 09.07.1994 in favour of Shashi Singhal wife of the accused Naresh Chandra authorizing her to raise construction and sell the property. The record reveals that Mohan Jain and Deepika Jain did not spend any money towards the construction. Shashi Singhal executed a sale deed being attorney of Mohan Jain and Deepika Jain on 27.11.1995 in favour of Naresh Chandra. The sale consideration in the sale deed was mentioned as Rs. 1.75 crores. It was found that whole of the money towards purchase of the plot and construction was spent by the accused Naresh Chandra. This fact is also evident from the complaints given by the residents against Nidhi Builder which was an enterprise of the accused Naresh Chandra. It was Naresh Chandra who signed the documents and letter on behalf of Mohan Jain and Deepika Jain requesting the MCD to compound the RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 164 of 168 CBI v. Naresh Chandra & Ors.

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compoundable deviations. He was the person who deposited the compounding fee. He appeared before DDA for the Conveyance Deed on the basis of Special Power of Attorney and other documents bearing the signature of Mohan Jain and Deepika Jain which they denied having signed. He deposited the necessary charges for conversion of the lease hold plot into free hold plot. He falsely represented before the DDA officials / DW2 that Mohan Jain and Deepika Jain were not well and they had authorized him to execute the documents. He, after getting it converted from lease hold to free hold, sold the flats at a considerable price and earned profit.

145. Facts & circumstances show that it was the accused Naresh Chandra who was managing the whole affairs. He, however kept Mohan Jain and Deepika Jain as a front. He obtained their signatures on some forms in advance which he used during the construction for submitting them to MCD. The beneficiary of the whole of the transactions was none else but the accused Naresh Chandra. He caused the major violations in the building which led the MCD pass the sealing order and the demolition order.

The record shows that Mohan Jain and Deepika did not get a single penny out of the said transactions. Their action was bona fide. Nothing can be inferred from the facts & circumstances that they entered into a criminal conspiracy with the other accused persons in the matter of unauthorized construction by giving GPA and SPA to the wife of the accused Naresh Chandra. The mens rea is missing on the part of Mohan RC No. 44(A)/2000/CBI/ACB/ND 21.12.2018 165 of 168 CBI v. Naresh Chandra & Ors.

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Jain and Deepika Jain. Rather, they were induced and they became the victim of conspiracy.

146. Facts & circumstances clearly show that Naresh Chandra was party to the criminal conspiracy with coaccused Ram Dandona, an architect, who despite there being large deviations dishonestly issued form D1 by submitting a false certificate that there were no noncompoundable deviations though there existed non compoundable deviations, thus facilitated large scale unauthorized construction to come up. Naresh Chandra got delayed the sealing and demolition process resorting to various practices. He sold the flats and earned profit, thus defrauded the MCD and got pecuniary advantage i.e. wrongful gain to himself and wrongful loss to MCD.

147. I am of the view that prosecution has proved its case against the accused Naresh Chandra and Ram Dandona for their having committed the offence punishable u/s 120B r/w section 420 IPC. Prosecution has also proved its case against the accused Naresh Chandra for his having committed the substantive offence punishable u/s 420 IPC. The charges of criminal conspiracy, cheating and prevention of corruption Act are not proved against the accused Sandeep Sharma and Surinder Pal. The charges of criminal conspiracy are not proved against the accused Mohan Jain and Deepika Jain. The charges substantive offence of cheating are not proved against the accused Ram Dandona, Mohan Jain and Deepika Jain.

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ORDER

148. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of the considered opinion that the prosecution has proved its case to the hilt against the accused persons Naresh Chandra (A1) and Ram Dandona (A2).

i. Accused Naresh Chandra (A1) is accordingly held guilty for his having committed the offence punishable u/s 120B r/w 420 IPC and substantive offence punishable u/s 420 IPC and convicted thereunder.

ii. Accused Ram Dandona (A2) is held guilty for his having committed the offence punishable u/s 120B r/w 420 IPC and convicted thereunder. He is acquitted of the offence punishable u/s 420 IPC.

149. This Court is also of the considered opinion that the charges against the accused Sandeep Sharma (A3) for his having committed the offence punishable u/s 120B r/w 420 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 and substantive offences punishable u/s 13(2) r/w 13(1)(d) of P. C. Act and u/s 420 IPC are not proved beyond reasonable doubt. The charges against the accused Surinder Pal (A4) for his having committed the offence punishable u/s 120B r/w 420 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 and substantive offences punishable u/s 13(2) r/w 13(1)(d) of P. C. Act and u/s 420 IPC are not proved beyond reasonable doubt.

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The charges against the accused Mohan Jain (A5) and Deepika Jain (A6) for their having committed the offence punishable u/s 120B r/w 420 IPC and u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988 and substantive offence punishable u/s 420 IPC are not proved beyond reasonable doubt.

150. I therefore acquit the accused persons namely Sandeep Sharma A3, Surinder Pal A4, Mohan Jain A5 and Deepika Jain A6 of the above offences.

151. Their bail bonds be cancelled. Their sureties be discharged. They are, however, directed to furnish bail bond in the sum of Rs.50,000/ each with one surety each in the like amount u/s 437 A Cr.P.C.

152. Let accused Naresh Chandra (A1) and Ram Dandona (A2) be heard on the point of sentence on the date as fixed by the Court.

Announced in the Open Court.

21.12.2018.                                            (Sanjiv Jain)
                                                 Special Judge (PC Act)
                        Digitally              (CBI3), South, Saket Court
                        signed by                       New Delhi
                        SANJIV JAIN
SANJIV                  Date:
JAIN                    2018.12.24
                        14:36:52
                        +0530




RC No. 44(A)/2000/CBI/ACB/ND      21.12.2018                        168 of 168
CBI v. Naresh Chandra & Ors.

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Cbi V. Naresh Chandra & Ors vs Cbi on 21 December, 2018