Delhi District Court
Cbi vs 1 Sh. Madhukar S/O Sh.Yudhishtra, The on 25 January, 2010
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
C C No. 45/04
CBI Vs 1 Sh. Madhukar s/o Sh.Yudhishtra, the
then Joint Director (Housing) Delhi
Development Authority, Vikas Sadan,
New Delhi.
2 Sh. Subhash Chander Jain s/o Sh.
Sripal Jain, the then UDC (Housing)
DDA, New Delhi. (expired on 18.8.99
proceedings against him abated vide
order dt. 3.12.99).
3 Sh. Gian Chand Kaushal r/o 4543/12,
Jai Mata Market, Tri Nagar, N. Delhi
4 Sh. Devender Kaushal s/o Sh. Gian
Chand Kaushal, R/o 4543/12, Tri
Nagar, New Delhi.
R. C No. 6 (A)/92/CBI/ACB/ New Delhi.
Under Section U/s 120-B r/w 467/471 IPC and Sec. 13
(2) r/w Sec.13 (1) (d) of PC Act, 1988
Date of Institution of
case 13.2.1995
Arguments concluded 12.1.2010
on
Date of Order 21.1.2010
1/65
2
Judgment
Brief facts of the case are that Rameshwar Prasad son of
Shri Pheku Ram had applied to the DDA on 4.2.83 for a LIG flat. He
was allotted flat No. P-Dakshini 73-D, Pitampura vide a draw held on
29.3.86. He could not deposit the amount as a result of which, his allotment was cancelled on 17.10.86, an intimation to this effect was sent to him vide letter dt. 17.5.86. Devender Kaushal and Gian Chand Kaushal accused who were running business of property under the name of Shanti Properties, Tri Nagar, approached Rameshwar Prasad and induced him to sell his papers pertaining DDA. Accused Madhukar had been working as Joint Director (Housing) DDA. Accused Gian Chand Kaushal is the father in law of accused Madhukar while accused Devender Kaushal is the son of Gian Chand Kaushal. Rameshwar Prasad gave the registration papers to Gian Chand Kaushal and Devender Kaushal. According to CBI there was a conspiracy between the accused persons for obtaining pecuniary advantage by way of allotment of flats and subsequently selling them dishonestly. In pursuance of this conspiracy, S C Jain put up a note dt. 14.6.90 falsely mentioning therein that the allottee had requested for reconsideration of his case for allotment, although there was no such request. S C Jain recommended for consideration of the case of Rameshwar Prasad. S C Jain had put up the note on 14.6.90 but subsequently, the date of this note was changed to 2/65 3 22.2.90. This note was directly approved by Madhukar accused on 22.6.90 but the date was again changed to 22.2.90. This note was never sent to the officers of the intervening cadres. Subsequently, draw slips were prepared by accused S C Jain allegedly mentioning therein that flat No. 249-A, LIG, Motia Khan had been allotted to Rameshwar Prasad in a mini-draw. He had also prepared a note dt. 29.10.90. The date of this note was subsequently changed to 6.3.90. He put up a note for sending intimation to the allottee. This note was directly approved by accused Madhukar. The intimation letter was prepared by accused S C Jain and signed by accused Madhukar and date was again altered to read 6.3.90. Forgery had also been detected in the demand letter dt. 28.11.90, in which date of draw has been changed from 29.8.90 to 6.3.90. In fact, neither the name of Rameshwar Dayal was there in the minutes of draw dt. 29.8.90, nor this flat No. 249-A, LIG was allotted to Rameshwar Prasad. Cost of the flat was paid to the DDA through draft which was got prepared by Gian Chand Kaushal through Canara Bank, Tri Nagar. Subsequently, papers on behalf of Rameshwar Prasad were deposited with DDA on 14th January, 1991 for issue of possession letter which was finally issued on 17.1.1991. Based on this possession letter, physical possession of flat No. 249-A, LIG, Motia Khan was shown to have been handed over to Rameshwar Prasad on Ist Feb. 91. Accused G C Kaushal and Devender Kaushal approached property dealer at Motia Khan for the sale of this flat. The flat was sold to P 3/65 4 W Pawan Kumar who has stated that he had never met Rameshwar Prasad.
2 One Jagat Kishore had also applied to DDA on 27.9.1985 for registration of one LIG Flat. Jagat Kishore was allotted flat No. 220-MS, Mansarover Park, Delhi in a draw held on 7.6.88. On 29.11.88, Kaushal Kishore Kakkar son of Sh. Jagat Kishore requested DDA for grant of some time to deposit the balance amount towards this flat. This request of Kaushal Kishore was turned down by DDA. Jagat Kishore was informed regarding cancellation of his flat. Devender Kaushal and Gian Chand Kaushal accused approached Kaushal Kishore and induced him to sell his registration papers pertaining to DDA flat for a sum of Rs.14,000/-. On 10th January, 1990, Madhukar accused restored the case of Jagat Kishore without any request from the allottee. Jagat Kishore had already died on 10th January, 1989. On 6.3.1990, S C Jain accused prepared draw slips falsely mentioning that flat No.245 A, LIG, Motia Khan had been allotted to Kaushal Kishore in a mini-draw. There was nothing available on the record of DDA that Jagat Kishore had died and Kaushal Kishore is the only legal heir of Jagat Kishore. Accused S C Jain also recorded a note dt. 6.3.90 in which he falsely mentioned that Kaushal Kishore had been allotted the flat in the presence of two witnesses. He also put up a letter for sending intimation to Kaushal Kishore. This note was directly approved by 4/65 5 accused Madhukar and intimation letter was signed by accused Madhukar and sent to the allottee. The amount towards the cost of this flat was deposited through a bank draft which was got prepared from Canara Bank, Tri Nagar Branch, Delhi. Necessary papers for transfer of registration in favour of Kaushal Kishore were filed with the DDA only on 6.12.90. On the basis of the mutation papers filed by Kaushal Kishore, the flat was transferred in his name and possession of the flat was handed over to Kaushal Kishore. Thereafter, accused Gian Chand Kaushal and Devender Kaushal approached property dealer of Motia Khan to arrange the sale of this flat to some other party.
3 My Ld Predecessor on 1.3.1995 supp lied all the copies required U/S 207 Cr P C to accused. After hearing both the parties a charge for the offence punishable U/s 120- B r/w Sec.467/471 IPC and 13 (2) r/w 13 (1) (d) of the PC Act framed against all the accused vide order dt. 7.8.1998. All the accused pleaded not guilty claimed trial, hence this trial.
4 In order to prove its case CBI has produced following witnesses:
5 PW1 Jalaj Srivastava has proved formal sanction order 5/65 6 Ex PW1/A U/s 19 of P C Act, 1988 and sanction order Ex PW1/B U/s 197 Cr PC.
6 PW2 Rajender Kumar Gupta made oral deposition only. He has not proved any document.
7 PW3 Shri B.K. Garg has proved possession Slips Ex. PW3/A & Ex PW3/B of flat No. 245A, GF and 249A GF, Motia Khan.
8 PW4 Sh. J.P. Gaud has proved file Ex PW4/A, note Ex PW4/B, Ex PW4/C, Ex PW4/D, Ex PW4/E & Ex PW4/F, File Ex PW4/G and note Ex PW4/H & Ex PW4/J. 9 Examination in chief of PW5 Kaushal Kishore Kakkar was recorded, his cross examination deferred but he had never appeared for cross examination in the witness box. He was reported to be died. He has proved various documents Ex PW5/A to Ex PW5/O. 10 PW6 Sh. Rameshwar Parshad has proved application for change of address Ex PW6/A. Letter Ex PW6/B, application for allotment of house Ex PW6/C, Annexure -I DDA Ex PW6/D letter for change of address Ex PW6/E, Letters Ex PW6/F to Ex PW6/H, 6/65 7 Undertaking Ex PW6/J, Affidavit Ex PW6/K and Ex PW6/L. 11 PW7 Vinay Kachru has proved specimen writing of Sh. Madhukar Ex PW7/A1 to A5.
12 PW8 Sh. H S Rawat has proved demand cum allotment letter Ex PW8/A, letter regarding cancellation of allotment Ex PW8/B, Ex PW8/C regarding refund, notes Ex PW8/D,Ex PW8/E and Ex PW8/F and also proved the documents which were already proved by PW4.
13 PW9 Sh. R D Goel and PW10 Sh. Ashok Kumar have proved the documents which were already proved by other PWs.
14 PW11 Sh. O.P. Verma has proved allotment letters Ex PW11/A and Ex PW11/B. He has also proved the documents which were already proved by other PWs.
15 PW12 Sh. Gulshan Kumar Marwah made oral deposition only. He has not proved any document.
16 PW13 Sh. C M Kochar has proved specimen writing and signatures of Subhash Chander Jain Ex PW13/A1 to A15 taken in his presence.
7/65 817 PW14 Sh. S S Sharma has proved the documents which were already proved by other PWs.
18 PW15 Sh. R L Kaushik has proved noting Ex.PW 15/A , Ex PW15/B and Ex PW15/C, file Ex PW15/D, letter Ex PW15/E, note Ex PW15/F and Ex PW15/G and also proved the documents which have already proved by other witnesses.
19 PW16 Sh. Ram Kishan has proved page 6-N Ex.PW 16/A. 20 PW17 Sh. Keshav Ram has proved noting Ex PW17/A, letter Ex.PW 17/B, page 5-N Ex PW17/C and office copy of letter ExPW17/D. 21 Inadvertently PW Manohar Lal Shankhla has also been examined as PW17 who has proved the documents which were already proved by other witnesses.
22 PW18 Sh. P K Nagpal made oral deposition only. He has not proved any document.
23 PW19 Sh. K D Rana has proved carbon copy of 8/65 9 demand letter mark PW19/A, noting Ex.PW 19/C, opinion of Junior Law Officer Ex.PW 19/D, noting Ex PW19/E, letter Ex PW19/F, notings Ex PW19/G, Ex PW19/J,Ex PW19/K, Ex PW19/K1 and also proved the documents which have already proved by other witnesses.
24 PW20 Sh. P K Bansal has proved seizure memo Ex PW20/A and challan No. 778284 Ex.PW 20/B. 25 PW21, PW22 and PW23 are Sh. P V Parsada Rao, Shri Pawan Kumar s/o Sh. R R Katyal and Pawan Kumar s/o Shir Brij Bhushan Lal made oral depositions only. They have not proved any document.
26 PW24 Sh. C P Tripathi has proved the Seizure Memo Ex PW24/A. 27 PW25 Mrs. Manju Dass has proved the documents already proved by PW4.
28 PW26 Sh. Shiv Lal has proved the Seizure memo Ex PW26/A. 29 PW27 Sh. S. Sudesh Chopra has proved Seizure memo Ex PW27/A, pay orders Ex PW27/Band Ex PW27/C. 9/65 10 30 PW28 Sh. S D Arora has proved seizure memo Ex PW28/A vide which file Ex PW28/B pertaining to Bhim Sen Sethi was seized.
31 PW29 Sh. Jyoti Parkash made oral depositions only. He has not proved any document.
32 PW30 Sh. Ajit Kumar has proved challan Ex W30/A. 33 PW 31 Sh. J K Semwal, /GEQD has proved his opinion Ex PW31/A to Ex PW31/D and letter of SP Ex PW31/E, 34 PW32 Sh. A Bala Subramanium, PW33 Sh. Ramesh Puri and PW34 Shri Rajan Narula made oral depositions only. They have not proved any document.
35 PW35 Sh. S. S Walia has proved notings Ex PW35/A to ExPW35/C and also proved the documents already proved by other witnesses.
36 PW36 Sh. C S D Kaushik has proved letter Ex PW36/A and copy of allotment letter Ex PW36/B. 10/65 11 37 PW37 Sh. S K Peshin has proved Passbook Ex PW37/A, seizure memo Ex PW 37/B and file Ex PW37/C. 38 PW38 Sh. M C Joshi, SP CBI has conducted the investigation of this case. He has proved FIR Ex PW38/A, Production Memo Ex PW38/B, Seizure memo Ex PW38/C, search cum seizure memo Ex PW38/D, seizure memos Ex PW38/E and Ex PW38/F1 to Ex PW38/F5.
39 PW39 Inspector J S Emmanuel has proved the statement of Sh. Rajender Kumar Gupta Ex PW39/A. 40 PW40 Sh. S N Gupta has proved seizure memo Ex PW40/A. 41 Statement of all the accused recorded U/S 313 Cr P C. All the accused have denied the case put forward by the prosecution against them and refuted evidence produced by the prosecution against them.
42 Accused Madhukar has stated that he is innocent. He has been falsely implicated by CBI to shield the other named accused persons in FIR who were later on exonerated by CBI and their statements recorded against him to substantiate the case of CBI.
11/65 12There is no incriminating evidence against him on the file.
43 Accused Gian Chand Kaushal has stated that he is innocent. He has been falsely implicated in this case to shield and save the real culprits apart from A-1 and A-3 named in FIR. There is no incriminating evidence against him on the file.
44 Accused Devender Kaushal has stated that he is innocent. He has been falsely implicated in this case to shield and save the real culprits apart from A-1 and A-2 named in FIR. There is no incriminating evidence against him on the file.
45 In their defence accused persons have examined DW1 Sh. Arun Goel. DW -1 has made oral deposition only. He has not proved any document.
46 Arguments heard, file perused.
47 Ld. Sr. PP Sh. D R Saraswati referring the statement of all the witnesses and documents argued that prosecution has proved its case against accused beyond reasonable doubt by producing as many as 40 witnesses. Prosecution has also proved all the relevant documents on the file. PW1 Sh. Jalaj Srivastava has proved sanction for the prosecution of accused Madhukar U/s 19 of P C Act which is 12/65 13 Ex PW1/A and sanction for his prosecution U/s 197 Cr PC Ex PW1/B. It is argued that accused No. 2 Subhash Chand Jain who was also a public servant, being the employee of DDA, has expired during the pendency of case, hence sanction of his prosecution has not been proved. Accused No.3 Gian Chand Kaushal and accused No.4 Devender Kaushal are father in law and brother in law of accused Madhukar. Accused Madhukar abusing his official position in conspiracy and connivance of accused Subhash Chand Jain and accused Gian Chand Kaushal and Devender Kaushal has falsely fabricated the record so as to appear that LIG Flat No.249A was allotted to Rameshwar Prasad and LIG Flat No. 245A, Motia Khan was allotted to Kaushal Kishore in a mini draw while cancellation papers of both of them were purchased by G C Kaushal and Devender Kaushal. It is argued that in these circumstances accused may be convicted.
48 Ld. Defence Counsel for all the accused Sh. Mukesh Thakur argued that sanction for the prosecution of accused No.1 Madhukar has been granted mechanically by PW1 Sh. Jalaj Srivastava without applying his mind, hence it is not valid. PW1 has admitted that he had received a draft sanction order Ex PW1/DA alongwith the calendar of events Ex PW1/DB from CBI. He has also admitted that on the lines of draft sanction order he had accorded sanction for the prosecution of accused Madhukar. Relying upon 13/65 14 Bhagwan Jathya Bhoir Vs. state of Maharashtra, 1992 Crl. L J. 1144 and Balbir Chand Vs. State of Punjab 1991 (3) Recent Criminal Reports page 369, Ld. Defence Counsel argued that sanction for prosecution of accused No.1 is invalid, hence he is liable to be acquitted on this ground alone.
49 It is argued that CBI has named certain persons as accused in the FIR but in the charge sheet CBI has cited two of them, namely Rameshwar Parsad and Kaushal Kishore Kakkar as witness in this case, while their names are also mentioned in column No. 2 of the charge sheet filed in this court. It has been done without adopting due procedure of law, and in violation of procedure to be adopted before making an accused a witness in a case as laid down in Sec. 306 Cr PC. It is a serious lapse on the part of prosecution. It has been done so just to falsely implicate the accused in this case. In this regard Ld. Defence counsel has placed reliance on P.Sirajuddin Vs. State of Madras, AIR 1971 Supreme Court 520.
50 In the FIR as well as charge sheet it is alleged that accused S C Jain in connivance and in furtherance of criminal conspiracy entered between the accused prepared false and misleading notes in the file in respect of registrant which were allegedly, directly approved by A-1 for allotting DDA flats to the registrant. It is also alleged in the charge sheet that names of such 14/65 15 person were not figuring in 'allotment penal' but CBI has not produced any evidence to show the alleged 'allotment penal' was ever existed under which flats were restored. No witness was examined to prove that if any such 'allotment penal' was existed. Charge sheet is based on imaginary conclusion drawn by CBI just to falsely implicate the accused.
51 It is argued that according to the case of CBI false documents were prepared by the accused but there is no evidence on the record that any false document was fabricated or prepared by any of the accused. All the notings were made on the basis of norms and policies laid down by L G., copy of which has been placed in each file and same procedure was adopted in all the similar cases of like nature, suo motu without any specific application moved by respective allottees. In this regard Ld. Defence Counsel referring the statements of PW 4, PW8, PW9, PW15 and PW19, who all are official witnesses of prosecution, argued that these witnesses proved the vital facts showing innocence of all the accused. It is argued that all these witnesses have proved that nothing illegal was done by any of accused.
52 It is argued by Ld. Defence Counsel that witnesses examined by CBI, itself, are coherent and consistent on one point that possession of respective flats in question were handed over to actual 15/65 16 allottees after verifying their physical genuineness and genuineness of documents submitted by them, therefore, it is proved from the evidence of prosecution itself that allottee Rameshwar Prasad and Kaushal Kishore Kakkar had taken possession of the flats themselves on the spot from the DDA officials. In this regard, Ld. Defence Counsel has relied upon the statements of PW 3, PW11, PW14, PW15, PW17 and PW18.. It is argued that possession of the respective flats was taken by the actual allottee and those allottees were dealt with their flats themselves, accused had nothing to do with their flats, they have been falsely implicated in this case by CBI.
53 It is argued that according to prosecution accused Gian Chand Kaushal and Devender Kaushal had approached the registrant whose flats were cancelled and they had allegedly purchased the papers from them but CBI has not produced any evidence to prove these allegations made against the accused. No witness has been examined to show that at any point of time both these accused ever approached the allottees. PW6 Rameshwar Prasad who is one of the allottee has not supported the case of prosecution. He has categorically denied to meet any of these accused or both these accused ever approached him which proves that the case of CBI is false. PW6 has rather proved that he himself made efforts to get his cancelled flat restored and after the restoration of flat to him, he himself had taken its possession. His name was firstly mentioned in 16/65 17 FIR as an accused but lateron without following due process of law, he has been cited as witness therefore, prosecution cannot be allowed to take support of his testimony.
54 It is argued that statement of PW5 Kaushal Kishore Kakkar cannot be read against accused because he has expired before his cross examination by the accused, as the accused could not avail chance of his cross examination hence his evidence cannot be used against them. All the documents proved by this witness are also inadmissible in evidence on the foregoing ground. No reliance can be placed on his testimony for any purpose.
55 It is argued that no illegality was done by accused in restoring the flats in question because it was done in accordance with the policy laid down by the L.G. It is also proved by prosecution witnesses that accused Madhukar, who was Joint Director (Housing), at that time, was competent to hold mini draw. It is also proved by the prosecution witnesses that files could be directly sent to the Joint Director as per rules. Thus, no illegality was done in sending the files directly to Joint Director. PW19 Sh. K D Rana has proved all these facts shattering the case of prosecution totally and proving the innocency of accused. Ld. Defence Counsel has also referred the statement of PW 4, PW8, PW9, PW15 and PW19 in this regard.
17/65 1856 It is argued that there is no evidence on the file that accused have altered the dates in the documents. PW31 J K Samual, Handwriting Expert, has not given any opinion as to who had done the alleged over-writings. Hence these alterations cannot be attributed to the accused Madhukar or S C Jain. PW19 has categorically stated that on 6.3.90 a mini draw was conducted and flats in question were restored, therefore, the opinion of GEQD is not against the accused Madhukar rather proves his innocence.
57 It is argued that no witness has stated that accused Gian Chand Kaushal and Devender Kaushal had sold the flat in question, rather it is proved that nothing illegal was ever done by them, therefore, they have been falsely implicated in this case.
58 It is argued that total evidence produced by the prosecution does not prove the allegations made against the accused, in the charge sheet, beyond reasonable doubt. Prosecution has failed to prove its case. The charge that accused Madhukar has abused his official position, is also not proved, therefore, accused are liable to be acquitted. Ld. Defence counsel has placed reliance on following authorities in support of his arguments:
C.Chenga Reddy Vs. State of Andhra Pradesh, AIR 1996 SUPREME COURT 3390, Ayyasami Vs,. State of Tamil Nadu, AIR 1992 SUPREME COURT 644, S P Bhatnagar Vs. State of 18/65 19 Maharashtra AIR 1979 SUPREME COURT 826 and J A Naidu Vs. State of Maharashtra AIR 1979 SUPREME COURT 1537, R C Mehta Vs. The State of Punjab AIR 1971 SUPREME COURT 1420, State (Delhi Administration ) Vs.N S Giani & Others 1990 (3) Supreme Court Cases 325, Anil Kumar Bose Vs. State of Bihar (1974) 4 Supreme Court Cases 616, Rita handa Vs. CBI 152 (2008) Delhi Law Times 248
59 I have considered all the arguments raised before me by the Ld. Counsels of both the parties and have gone through the record. Accused S C Jain has expired during the pendency of this case on 18.8.99. Fact of his death was verified by S I R L Bhatia of CBI and confirmed that he has expired. My Ld. Predecessor vide his order dt. 3.12.99 has directed that in view of his death proceedings against him abated. Accused Madhukar (A-1), accused Gian Chand Kaushal (A-3) and accused Devender Kaushal (A-4) are now facing this trial. It is undisputed that accused Gian Chand Kaushal is the father in law of accused Madhukar and accused Devender Kaushal is the son of accused Gian Chand Kaushal. Accused Madhukar is a public servant while Gian Chand Kaushal and Devender Kaushal are private persons.
60 It is correct that name of Rameshwar Prasad and Kaushal Kishore Kakkar is in the FIR. In the charge sheet they 19/65 20 have not been cited as accused but their names have been shown in column No.2. It is mentioned in the charge sheet that sufficient evidence has not comforth against Rameshwar Prasad and Kaushal Kishore Kakkar during the investigation to launch prosecution against them, therefore, their names are mentioned in column No.2. in the charge sheet. It is correct that both these have been cited as witness by the IO in this case.
61 FIR is the first information report only. It is not an encyclopedia of the facts or acquisition. It is not necessary that all the persons named in FIR may be involved in the crime, so as to cite them, as accused in the chargesheet. If the investigating agency, after conclusion of investigation, is of opinion that there is lack of evidence against some person named in FIR, it can mention their name in column No.2 of the charge sheet. But because of mentioning of their names in column no.2, they cannot be said as accused unless cognizance is taken against them by the court. In this case, my Ld. Predecessor has not taken cognizance against Rameshwar Prasad and Kaushal Kishore Kakkar after filing of charge sheet in the court. Even accused has not moved any application U/s 319 Cr PC, till today, alleging that there is evidence against both these, therefore, they may be summoned as accused. No evidence appeared against them, even, during the trial. Thus, in any way, at this stage, they cannot be treated at par an accused, therefore, 20/65 21 the facts of authority P Sirajuddin Vs. The state of Madras, AIR 1971 Supreme Court 520 relied upon by Ld. Defence Counsel in support of his argument, are different than that of our case. In these circumstances it cannot be said that investigation in this case is bad and chargesheet is defective, thus there is no merit in the argument that investigating agency without adopting the recourse of section 306 Cr PC has cited both these as witness in this case, therefore, the charge sheet is defective/bad.
62 Even otherwise, for the sake of argument, it is presumed that investigation is defective, still at this stage, defence cannot take advantage of the alleged bad investigation. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 -Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat -
Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."21/65 22
63 Our Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
64 Our Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial- Investigation- Deficiencies in investigation- Effect- Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent- Criminal Procedure Code, 1973- S.157."
65 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
66 It is undisputed that accused Madhukar was working as 22/65 23 Joint Director, Housing in DDA at the relevant time, thus the fact that he was a public servant is well proved on the file. It has not been disputed even on behalf of accused during the course of arguments. PW-1 Sh. Jalaj Srivastava has stated that in December, 1994 he was working as Dy. Secretary to Govt. of India, Ministry of Home Affairs. Accused Madhukar was a DHANICS Officer, working as Joint Director Housing, DDA. President of India is the authority competent to remove him from the service. Sanction for prosecution of accused was approved by Ministry of Home Affairs, Sh. S B Chauhan on 30.11.94 in the name of President. This witness has specifically deposed that he had authenticated the sanction order Ex PW1/A U/s 19 of P C Act, 1988 and Ex PW1/B U/s 197 of Cr PC in the name of Govt. of India. He has also identified his signatures on the same. He has categorically deposed that all the material containing the allegations on the basis of which prosecution was to be launched were placed before Home Minister before granting the sanction for prosecution. In his cross examination this witness has stated that initially only the report of SP, CBI was received thereafter other documents were also called and examined. This witness has admitted that a draft of sanction order Ex PW1/DA was also received. He has also admitted that calender of evidence which is Ex PW1/DB was also received with the request for granting sanction. This witness has also stated that since the matter related to DDA hence comments from Delhi Administration were also called and 23/65 24 matter was finally scrutinised and sanction was accorded.
67 I have gone through the sanction order Ex PW1/A U/s 19 of P C Act, 1988 and Ex PW1/B U/s 197 of Cr PC. Both these sanction orders are detailed orders wherein all the relevant facts and circumstances are mentioned with reference to the relevant evidence, therefore, it cannot be concluded that sanctioning authority had not applied his mind while granting sanction in this case.
68 Our Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and incase the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning 24/65 25 authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
69 I have gone through the authority relied upon by Ld. Defence Counsel i.e. Bhagwan Jathya Bhoir Vs. The State of Maharashtra, 1992 Crl.L.J.1144. Even in Para No.10 of this authority Hon'ble High Court of Bombay has held that IO was well within his right to forward the draft sanction order. But if the sanctioning authority had mechanically accorded sanction then it is bad. From the above discussion it is clear that in our case sanctioning authority has applied his mind and not granted sanction in a mechanical manner, therefore, ratio of law laid down in this authority is not applicable to the facts and circumstances of our case.
70 I have also gone through the authority Balbir Chand Vs. State of Punjab, Recent Criminal Reports, 1991 (3) page 669 wherein it is held as follows:
25/65 26"Prevention of corruption Act, Sections 5 (1) (d) and 5 (2) - Criminal Procedure Code, 1973, Section 197 - Corruption case against Government servant - Sanction issued by Authority - Authority signed a prepared sanction draft which was put up to him - Blank spaces filled by someone else - Authority did not apply its mind - Sanction not valid.
71 As discussed above, in our case, there is categorical statement of PW1 that he had gone through the documents and applied his mind before according the sanction, therefore, facts of our case are different than that of the above cited authorities.
72 Our Hon'ble Supreme Court in this regard in State of Tamil Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) read with S. 161, IPC - Non application of mind and grant of sanction mechanically by sanctioning authority - Basis of acquittal by High Court - High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority - Held, acquittal not justified - There was no infirmity in the order granting sanction - Criminal Procedure Code, 1973 S. 197".26/65 27
73 Similar view has been taken by our Hon'ble Supreme Court in Indu Bhushan Chatterjee vs. State of West Bengal, AIR 1958 SC page 148 and Jaswant Singh Vs. State of Punjab, AIR 1958 SC page 124. In view of above discussion there is no merit in the argument that sanction for the prosecution of accused Madhukar is invalid.
74 According to prosecution accused Madhukar, in connivance and conspiracy of accused S C Jain and his father in law Gian Chand and brother in law Devender Kaushal, dishonestly abusing his official position, had allotted LIG flat no. 249A, Motia Khan to Rameshwar Prasad in a mini draw in lieu of his cancelled flat, cancellation papers of which were purchased by Gian Chand Kaushal and Devender Kaushal, for obtaining pecuniary advantage for them.
75 According to prosecution accused SC Jain had put up note on 14.6.90 but subsequently the date of note was changed to 22.2.90. This note was directly approved by accused Madhukar on 22.6.90 but the date was again changed to 22.2.90. This note was never sent to the officers of intervening cadre. Draw slip was prepared by S C Jain mentioning therein that LIG flat No.249A, Motia Khan had been allotted to Rameshwar Prasad in a mini draw.
27/65 28He has also prepared a note dt. 29.8.90, date of which was subsequently changed to 6.3.90. This note was directly approved by A-1 for sending intimation to allottee. Intimation letter was prepared by S C Jain and signed by A-1. Date was also altered in it as 6.3.90, Even in Demand Letter dt. 28.11.90 date of draw, has been changed from 29.8.90 to 6.3.90. According to prosecution neither the name of Rameshwar was in the minutes of draw dt. 29.8.90 nor LIG flat No.249 A was allotted to him.
76 Rameshwar Prasad had applied for allotment of a LIG flat vide his application Ex PW6/D. He was allotted flat No.73 D, Pitam Pura through a draw held on 19.3.86 under scheme RPS-82. Demand cum allotment letter was issued to him on 7.10.86 but the same has been received back from the postal authorities with the remarks "left without address".
77 Rameshwar Prasad had intimated his change of address vide letter Ex PW6/E which is clear from file Ex PW4/G. Rameshwar Prasad had written a letter dt. 10.1.86 to the Director, DDA Ex PW6/E stating that he had been allotted flat No. 73, D Block PD in Pitam Pura, allotment letter of which was sent to him on his old address inspite of furnishing his latest address, therefore, fresh allotment cum demand letter may be sent to him on his changed 28/65 29 address. He has also written a letter dt. 1.9.86 Ex. PW6/F in above reference. Allotment letter was also sent on changed address but he had failed to comply with the instruction given in allotment cum demand letter dt. 7.10.86 (file Ex PW4/G), therefore, cancellation of the allotment in his favour subject to the recovery of cancellation charges was recommended. On 25.3.88 it was directed to Sh. Chander Bose to note this flat as vacant for further allotment. On 29.3.88 vide note dt. 22.4.88 allottee was directed to pay Rs. 6237.19 as cancellation charges and cancellation letter showing cancellation charges was sent. Dy. Director (H) G vide letter Ex PW15/E dt. 15.7.88 had informed that his flat has been cancelled and asked him to deposit an amount of Rs.6237/- as cancellation charges. In this regard relevant office note is Ex PW4/H. Finally, the allotment of flat in favour of Rameshwar Prasad was cancelled on 5.3.88. Rameshwar Prasad had also deposited cancellation charges Rs.6237.20 vide challan No. 321478 dt. 28.5.88 which is clear from Ex PW6/B. 78 Accused S C Jain had put up a note Ex PW19/J stating that in this case allotment was cancelled due to non payment by allottee but he had requested for re-consideration of his case referring the order of L.G. For reconciliation of such type of cases where allotment was cancelled due to non payment and recommended that his case may be reconsidered for 29/65 30 allotment/restoration to Joint Director (H) i.e. A-1. There is cutting/overwriting of date underneath the initial of S C Jain on this note. It appears that date 14.6.90 has been altered as 22.2.90. A-1 had accepted the above proposal on this note at point Q46 and put his initials. Date underneath his initials has also been altered as 22.2.90.
79 Though accused S C Jain had mentioned in note Ex PW19/J that allottee had requested for reconsideration of his case but there is no such written request of allottee on the file for reconsideration of his case.
80 It is argued that there is evidence of official witnesses that A-1 was competent to reconsider the case suo motu in view of L.G's order. If the case was considered suo motu it should have been mentioned that it is being considered by Joint Director suo motu. If the case was considered suo motu than what was the need of writing that allottee had requested to consider his case.
81 S C Jain had written note Ex PW19/K which is as follows:
"Rameshwar Prasad has been allotted flat No.245A, Motia Khan, Ground Floor under LIG category in the draw held today in presence of .........(cutting)" in presence of Judges.....(cutting) from 30/65 31 ........(cutting) two from outside of DDA. The allotment slips have been pasted duly signed by all the judges may kindly be seen now we may issue intimation letter of allotment as allotted for signing pl."
Joint Director (H) Sd/-
6.3.90 Date underneath the above initials has been altered as 6.3.90 (Q56).
82 This note has been approved by Joint Director (H) i.e. A-1 and date underneath his initial has been altered as 6/3 (Q55). Thereafter S C Jain had recommended for issuance of intimation letter. As per note Ex PW19/K-1 dt. 17.9.90 it was recommended to prepare Demand Letter as per revised cost of the flat. As per note Ex PW15/F, it is advised "please speak" thereafter there is note dt. 30.10.90 "spoken the schedule of revised cost has been seen". After this it has been sent for approval of Joint Director (A-1) on 23/11. Thereafter J D (A-1) has approved issuance of Demand Letter on 28/11.
83 Allotment letter dt. 28.11.90 Ex PW31/C was issued in the name of Rameshwar Prasad. In the column of date of draw, date 31/65 32 has been altered as 6.3.90 (at point Q58) which has been written in blue pen while the previous date and all other writing in this letter is in black pen or appears to be the carbon writing. On observing with the magnifying glass, date which has been strike off, appears to be 22.8.90. There are Similar changes in Ex PW19/B which is the carbon copy of Ex PW31/C. 84 Issuance of possession letter and NOC had been recommended to J D vide note dt. 16.1.91 Ex PW15/G which has been approved by the JD (A-1). On page 20 of file Ex PW4/G there is another note of Dy. Director (Housing) Keshav Ram Ex PW17/A dt. 8.2.91 which is as follows:
"The case discussed with Director (H) II today as desired by him. A letter has been issued to the Ex. Engineer, ND-II not to hand over the possession of the flat till further orders.
Submitted for information.
Sd/- Keshav Ram Dy. Director (Housing)
85 However, possession of flat No.249 A, Ground Floor, LIG, Motia Khan was allegedly delivered vide possession slip Ex PW3/B to Rameshwar Prasad by Junior Engineer on 1.2.91 vide possession letter Ex PW11/B dt. 17.1.91.
32/65 3386 Case of accused Gian Chand and Devender Kaushal is that they have nothing to do with this flat. They do not know any Rameshwar Prasad.
87 Rameshwar Prasad had appeared in the witness box as PW6. He has not supported the case of prosecution at all. He has been declared hostile. In his cross examination by Ld. PP he has admitted that letter Ex PW6/B bears his signatures which is with regard to deposit of cancellation charges. He has specifically stated that accused Devender Kaushal and Gian Chand Kaushal present in court never came to him. He had not met them earlier. He has specifically stated as follows, in this regard:
"Infact Devender Kaushal and Gian Chand had never met me at any point of time. "
88 He has also been cross examined by Ld. Defence Counsel Sh. M P Singh on behalf of accused wherein he has supported the defence of accused and categorically stated as follows:
"It is also correct that accused Gian Chand Kaushal and Devender Kaushal had never met me at any point of time. I am seeing them for the first time in the court."
89 In his cross examination by Ld. PP he has admitted that 33/65 34 undertaking dt. 14.1.91 Ex PW6/J bears his signature at points A and B. 90 Rameshwar Prasad has filed his undertaking Ex PW6/J . This undertaking has been witnessed by Gian Chand as witness No.1. Pay order Ex PW27/C of Rs1,10,164/- dt. 13.1.91 no. 415414 in the name of DDA Housing which has been deposited with DDA in response to allotment cum demand letter on behalf of Rameshwar Prasad was got prepared by Gian Chand Kaushal, it is clearly mentioned on it as follows:
" On account of Gian Chand Kaushal". This pay order was deposited with DDA on behalf of Rameshwar Prasad vide challan No.778284 on 14.1.91. If Rameshwar Prasad was unknown to Gian Chand Kaushal how Mr. Kaushal had got issued pay order of Rs.1,10,164/- from his account which was deposited with DDA? Why Mr. Kaushal had witnessed the undertaking Ex PW6/J?
91 An attempt is made to explain as to how Mr. Gian Chand Kaushal got prepared above referred pay order on behalf of Rameshwar Prasad by producing DW-1, Arun Goel, in defence evidence by accused.
92 In his examination in chief DW1 has stated that in the 34/65 35 year 1990-91 he was living in the neighborhood of Gian Chand Kaushal who was friend of his late father. Rameshwar Prasad was a friend of his father who came to his residence seeking advice of his father with regard to payment of money to DDA on account of allotment of flat. His father had sent him to the house of Gian Chand to enquire about the query of Rameshwar Prasad. Gian Chand Kaushal had advised that there was no harm in submitting money for DDA flat. On the next day, Rameshwar Prasad brought Rs. 1,25,000/- to his father. His father had told him to give this money to Gian Chand Kaushal for making a draft for Rameshwar Prasad, therefore, he had paid this money to Gian Chand Kaushal. This witness has further stated that in the evening his father had stated that Gian Chand Kaushal had sent the prepared draft to him which was handed over to Rameshwar. In his cross examination this witness has admitted that Gian Chand Kaushal was doing business of property dealer in the name of M/s Shanti Properties. He has also stated that Rameshwar Prasad had given them cash amount of Rs.1,25,000/- and draft was got prepared through Gian Chand Kaushal.
93 Above Story given by this witness appears to be concocted and fabricated one on the face of it. Rameshwar Prasad has stated in his statement that he is matriculate. It is also proved that he was a retired public servant, thus, he could himself got 35/65 36 prepared the draft. According to this witness Rameshwar Prasad was friend of his father. At the most his father could have purchased the draft for him. What was the need of sending the cash amount of Rs.1,25,000/- to Gian Chand Kaushal for obtaining a draft. This story again proves to be concocted because of the fact that pay order was of Rs.1,10,164/- and not of Rs.1,25,000/-. In view of above discussion this court is of opinion that DW1 is not a trust worthy witness and this draft was got prepared by Gian Chand Kaushal from his own account.
94 In order to explain the genunity of draw and competency of A-1 to hold mini draw for reconsideration of the cancelled allotment, accused has produced Ex PW4/DG, note forwarded by Joint Director to Vice Chairman/L.G. Accused has also produced ExPW4/DH, order of Sh. Romesh Bhandari, the then L.G, Delhi dt. 20.3.89 , approved on above said note, which is as follows;
"If there are only 30 cases, let us take a liberal humanitarian view and restore registration subject to their going at the end of the queue for retiring persons.
Sd/- (Romesh Bhandari) Lt. Governor, Delhi/20.3.89 95 On the basis of above order of L G, note Ex PW4/J dt. 23/6 was prepared by Sh. S C Jain which was approved vide note Ex 36/65 37 PW4/DA by A-1 on 1.2.90. Vide note Ex PW4/DC dt. 6.2.90, A-1 directed to include this case in mini draw.
96 From Ex PW4/DD it is clear that following note dt. 2.5.89 has been put forward for approval of Vice Chairman, DDA:
"All 46 cases indicated above may be offered an allotment in the next draw. This will finally close the chapter in respect of RPS 82 and RPS-85 allottees.
For approval."
This note was approved which is clear from note Ex PW4/DE and Ex PW4/DF.
97 Thus, it is well proved on the file that only the 46 cases were allowed for reconsideration. List No.I of 12 such allottees and list II of 34 such allottees (total 46) is available on file No. F20(3)90/HG/WG, Housing General, Sh. Bhim Sain Sethi, flat No.161 D, DGII, Bodella, LIG, Ex PW28/B at page No. 207 and 209. Name of Rameshwar Prasad and Jagat Kishore or Kaushal Kishore Kakkar is not included in this list of 46 persons. This was the reason that dates of various notes referred above had been tampered with/antedated because the chapter of reconsideration of allotment was to be closed finally with the above referred list of 46 allottees.
37/65 3898 There is no mention in any of the note available on the file as to how many cases were included in the mini draw. It is also clear from Ex PW19/K referred above, in this judgment that names of judges has not been mentioned and there is cutting purportedly on the names of judges vide which flat No. 249 A, Motia Khan, Ground floor was allegedly allotted to Sh. Rameshwar Prasad. This note is on page No.17 of file wherein date under the initial of S C Jain has been altered as 6.3.90, which is approved by Joint Director (H) (A-1) underneath whose initials date has been altered as 6/3. On the reverse of this page i.e. on page 18 note Ex PW19/K-1 for preparation of Demand Letter is dt. 17.9.90. Had the date of draw 6.3.90 is genuine then why there is this delay of about 6 months for issuing of demand letter? Underneath this note there are other notes dt. 30.10.90, 23/11 and 28/11 on this page. Page No.19 i.e. the next page is having a note of 16.1.91. On the reverse of which i.e. on page 20 there is note of 8.2.91. Thus, it is clear there is no gap of about six months in any note.
99 PW12 Gulshan Kumar Marwah has deposed that in the year 1992 he was a property dealer. There was a premium of Rs. One lac for the ground floor and Rs. 70,000/- for the first floor in respect of sale of DDA flats at Motia Khan, which proves the motive of this conspiracy.
38/65 39100 According to prosecution Jagat Kishore had applied on 27.9.85 for LIG Flat. He was allotted flat No.220-M S Mansarovar park in a draw held on 7.6.88. On 29.11.88 his son Kaushal Kishore requested DDA for grant of some time for deposit the balance amount towards this flat. But his request was turned down and flat allotted to Jagat Kishore was cancelled. According to prosecution, thereafter accused Devender and Gian Chand approached Kaushal Kishore and purchased the papers of cancelled flat from him. On 10.1.1990, A-1 restored the flat of Jagat Kishore who had already died on 10.1.1989. S C Jain had prepared draw slip falsely mentioning that LIG flat No.245 A, Motia Khan had been allotted to Kaushal Kishore in a mini draw inspite of the fact that there was nothing in the record of DDA to show that Kaushal Kishore was the only legal heir of Jagat Kishore. Required documents for transfer of registration in favour of Kaushal Kishore were filed in DDA on 6.12.90 on the basis of which flat was transferred in his name and possession was handed over. Thereafter, Kaushal Kishore and Gian Chand approached the property dealer of Motia Khan and sold the flat to other party.
101 Jagat Kishore had applied for registration scheme-85 for retired and retiring public servants of LIG flat vide his application Ex PW5/A dt. 27.9.85. Flat No.220 at M S Park had been allotted to 39/65 40 Sh. Jagat Kishore through draw of lot held on 7.6.88 (Ex.PW4/B). Demand Letter was issued to him on 15.7.88 but he was admitted in hospital (ExPW35/A). He could not deposited the amount in time, hence his allotment was cancelled vide letter Ex PW8/B dt. 14.11.89. Jagat Kishore was directed to deposit the cancellation charges. His son made a request that because of hospitalisation of his father amount could not be deposited hence time may be extended. This note was forwarded to A D (H)/G vide note Ex PW4/C dt. 22/12. Vide note Ex PW35/A dt. 23/12 it is opined that request may be rejected by Joint Director. Vide note Ex PW4/D dt. 28/12 it is observed that allotment already cancelled on 13.10.88. Vide note Ex PW35/B dt. 6.2.89 it is clear that allotment had been cancelled and Superintendent was directed to inform the allottee for depositing cancellation charges of Rs. 2820/-. Vide note Ex PW35/C refund order was sent for signatures and Sh. R K was directed to note the vacancy who had noted the same vide note Ex PW16/A dt. 14.3.89. Superintendent was directed to take necessary action for release of registration money.
102 Vide note Ex PW8/D at page 9 in the file of Kaushal Kishore dt. 28/12 S C Jain requested for consideration of this case for allotment/restoration of flat to Joint Director(A-1).which was approved by A-1 on 10/1 (point B). Vide note Ex PW8/F dt. 6/3/90 written by S C Jain flat no. 245A allotted to Kaushal Kishore which 40/65 41 is as under:
"Sh. Kaushal Kishore has been allotted flat No.245A Ground Floor under LIG category at Motia Khan in the draw held today in the presence of two judges outside DDA. The allotments slips have been pasted above duly signed by both the judges may kindly be seen. Now we may issue, intimation letter and allotment letter as per allotment for signature please Jt. D (H) G Initial 6.3.90"
103 It bears initials of J D dt. 6/3 qua approval (Q38 & 39). These proceedings are on page No.10/N of file Ex PW4/A of Kaushal Kishore, 245A, Motia Khan, Housing General, 75(12)90/RP8. Accused S C Jain had put up note Ex PW19/B dt. 17.9.90 for preparation of demand letter as per revised cost on page No.11/N of the above said file which was finally approved by J D (A-1) on 23/11. Accordingly, demand letter dt. 28.11.90 Ex PW31/B was issued to Kaushal Kishore with regard to allotment of flat No. 245A, Motia Khan, Ground Floor, Date 28.11.90 on it has been written with blue pen while entire body is written in black pen. In the column of date of draw, date has been altered as 26.3.90 in blue pen after striking the date written in black pen/carbon writing. On observing with the magnifying glass, date which has been strike off appears to be 26.8.90.
41/65 42104 As discussed above while dealing the allotment of flat No. 294A to Rameshwar Prasad in order to explain the genunity of draw and competency of A-1 to hold mini draw for reconsideration of the cancelled allotment, accused has produced Ex PW4/DG, note forwarded by Joint Director to Vice Chairman/L.G. Accused has also produced ExPW4/DH, order of Sh. Romesh Bhandari, the then L.G, Delhi dt. 20.3.89 , approved on above said note, which is as follows;
"If there are only 30 cases, let us take a liberal humanitarian view and restore registration subject to their going at the end of the queue for retiring persons.
Sd/- (Romesh Bhandari) Lt. Governor, Delhi/20.3.89
105 On the basis of above order of L G, note Ex PW8/D dt. 28/12 was prepared by Sh. S C Jain (on page 9/N) which was approved by JD (A-1) on 10/1 on page 9/N of this file. Above note was prepared with reference to note Ex PW8/E on page 8/N, wherein there is reference of L G order about the 16 surrender cases and thereafter 20 surrender cases of RPS Scheme 85.
106 From Ex PW4/DD it is clear that following note dt. 2.5.89 has been put forward for approval of Vice Chairman, DDA:
42/65 43"All 46 cases indicated above may be offered an allotment in the next draw. This will finally close the chapter in respect of RPS 82 and RPS-85 allottees.
For approval."
This note was approved which is clear from note Ex PW4/DE and Ex PW4/DF.
107 Thus, it is well proved on the file that only the 46 cases were allowed for reconsideration. List No.I of 12 such allottees and list II of 34 such allottees (total 46) is available on file No. F20(3)90/HG/WG, Housing General, Sh. Bhim Sain Sethi, flat No.161 D, DGII, Bodella, LIG, Ex PW28/B at page No. 207 and 209. Name of Rameshwar Prasad and Jagat Kishore or Kaushal Kishore Kakkar is not included in this list of 46 persons. This was the reason that dates in the demand letter referred above had been tampered with/antedated because the chapter of reconsideration of allotment was to be closed finally with the above referred list of 46 allottees.
108 There is no mention in any of the note available on the file as to how many cases were included in the mini draw. It is also clear from Ex PW8/F referred above, in this judgment that names of judges has not been mentioned, This note is on page No.10/N of this 43/65 44 file.
109 Kaushal Kishore had allegedly moved undated application Ex PW5/C with regard to transfer of registration in his name (from the name of his father Jagat Kishore) alongwith which he had filed death certificate. Affidavit, indemnity bond, consent letter, specimen signatures and photo, attested copy of ration card. On the basis of which vide note Ex PW15/C dt. 6.12.90 by S C Jain sought the advice of JLO ( H). J L O vide note ex PW19/D dt. 12.12.90 opined that documents are in order, case may be examined for transfer which is on page No.12/N of this file. On the basis of opinion of JLO, S C Jain put up note Ex PW19/E dt. 19.12.90 for transferring of registration/allotment in the name of Kaushal Kishore s/o Late Jagat Kishore to J D H (A-1) which has been approved by him on 21/12 as per date appeared under his initials (Ex PW15/D), Transfer Letter dt. 21.12.90 Ex PW 19/F was issued to Kaushal Kishore informing him the transfer of registration No. 3764 in his name. Even in this letter it is mentioned that registration No.3764 dt. 27.9.85 has been transferred in his name and not the flat No. 245A.
110 Jagat Kishore Kakkar who had moved application for registration of flat died on 10.1.1989. Allotment of flat 44/65 45 No.245A, Motia Khan was made on 6.3.90 in the name of Kaushal Kishore s/o Jagat Kishore vide note Ex PW8/F in the alleged draw, even though there is nothing on the record of DDA to show that Jagat Kishore had died or to show who were his legal heirs.
111 In addition to other documents, one indemnity bond dt. 27.11.90, has also been filed with the undated application allegedly moved by Kaushal Kishore, from which it is clear that before 27.11.90 these documents could not have been filed with the DDA. Thus, DDA was not having the knowledge of the death of Jagat Kishore atleast upto 27.11.90 while the allotment of flat was made in the name of Kaushal Kishore and intimation was sent to him vide ExPW31/B dt. 28.11.90 showing 6.3.90 as alleged date of draw.
112 Kaushal Kishore has appeared in the witness box as PW5 on 28,.2.2001. In his examination in chief he has specifically deposed that his father had applied for a flat in DDA under RPS-85 Scheme, who had died on 10.1.89. After sometime one flat was allotted in favour of his father in Mansarovar Park, due to illness his father could not deposit the amount of flat with DDA. He received cancellation letter from DDA after the death of his father. He had given application to Commissioner DDA dt. 10.10.88 Ex PW5/B. 45/65 46 113 This witness specifically deposed in his examination in chief that two accused persons present in court came to his residence and persuaded him to sell the cancelled registration of flat to them. He gave the registration papers to them. They had given some token money to him. He signed some paper, certificates at the instance of both these accused persons. He has identified his signature on various documents i..e Ex PW5/C, Ex PW5/D (affidavit), Ex PW5/E, Ex PW5/F, Ex PW5/G(photograph), Ex PW5/H (photocopy of ration card), Ex PW5/J (affidavit), Ex PW5/K, Ex PW5/L Ex PW5/M, Ex PW5/N (specimen signature), Ex PW5/O. Actually these are the documents which were obtained by both the accused after paying him token money, as deposed by Kaushal Kishore.
114 On 28.2.2001, after recording examination in chief of this witness, his cross examination was deferred. Thereafter this witness has not appeared for his cross examination on behalf of accused. As per report received in the court he died on 18.3.2002. It is mentioned in ordersheet dt. 27.12.2002 that PW Kaushal Kishore reported to have died. Process servor has also reported on the summon that he has expired. Photo copy of death certificate of K K Kakkar (Kaushal Kishore) showing his death on 18.3.2002 has also been annexed with the report of process servor.
46/65 47115 Ld. Defence Counsel argued that accused has not been granted opportunity to cross examine this witness because of his death, hence neither his statement nor documents proved by him can be relied upon against accused.
116 In these circumstances, whether his statement can be relied upon or not has now become a legal question. Hon'ble High Court of Patna in Sri Kishun Jhunjhunwala Vs. Emperor, AIR (33) 1946 Patna 384 has held as follows:
"Evidence Act (1872) Sec. 33 - Applicability - witness dying before cross examination - Degree of weight to be attached to his evidence depends on circumstances.
It is further held that where a witness dies after examination in chief and before cross examination his evidence is admissible but the degree of weight to be attached to it depends on the circumstances of the case"
117 In this regard Hon'ble High Court of Allahabad in Ahmed Ali Vs. Jyoti Pershad, AIR 1944 page 188 has held as follows:
"Evidence Act S. 33 - Witness dying before cross examination that his evidence does not become inadmissible."
118 In this regard, Hon'ble High Court of Calcutta in Devar 47/65 48 Park Building Pvt. Ltd. Vs. Smt. Madhuri Jalan, AIR 2002 Calcutta, 281 has held as follows:
"Evidence Act (1 of 1872) Ss. 133. 33 - Evidence of person with unfinished cross examination - Admissibility - Evidence of defendant recorded on commission - cross-examination only partly held - death of defendant in meantime - His evidence would not be inadmissible - There is no provision under law that if witness is not cross-examined either in full or part his evidence would be absolutely rendered inadmissible - How much weight shall be attached should be decided considering other facts and circumstances surrounding it - Provision of S.33 would not be applicable in such case."
119 In this regard, our Hon'ble Supreme Court in Mulak Raj Sikka Vs. Delhi Administration, AIR 1974 SC page 1723 has held as follows:
" Where in a Sessions trial the witness whose deposition recorded by the committing Magistrate was sought to be brought on record, could not be found in spite of all reasonable steps taken, including the one taken by High Court during the hearing of appeal, and further although the accused had a right to cross examine that witness in the committing Court, his counsel had preferred not to cross-examine at that stage and had reversed it for the Sessions Court, both the conditions of Section 33 were satisfied and the evidence of such witness recorded in committing Court was 48/65 49 admissible in Sessions trial."
120 Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab 2003 Crl. L J.21 has held as follows:
"Evidence Act (1 of 1872) S. 137 - Cross-examination - Opponent declining to avail himself of opportunity to put his case in cross examination - evidence tendered on that issue ought to be accepted."
121 Hon'ble High Court of Bombay in Turner Morrison and Co. Bombay Vs. K N Tapuria & Ors 1993 Crl. L J. 1384 has held as follows:
"Evidence Act (1 of 1872), Ss. 32 and 33 - Private prosecution - Witness examined before charge but not available for cross-exam. after charge - His evidence must be approached with caution."
122 In view of above discussed law it is clear that the statement of late Kaushal Kishore is admissible in evidence in this case, however, it is to be considered as to how much weight is to be attached to his statement.
123 Case of accused Gian Chand Kaushal and Devender Kaushal is that they do not know Kaushal Kishore or Jagat Kishore.
49/65 50They have nothing to do with flat No.245A Motia Khan. Kaushal Kishore alongwith his application for transferring of registration/allotment of flat in his name, has filed indemnity bond Ex PW5/E. It has been signed by Devender Kaushal s/o G C Kaushal, r/o 3080/224 Tri Nagar, Delhi as witness. Jagat Kishore has also filed consent letter of his brother Raj Kishore and his sister Suman Rani Ex PW5/F which has also been signed by Devender Kaushal s/o G C Kaushal, r/o 3080/224 Tri Nagar, Delhi as witness. It is not the case of both these accused that they have some enmity with Kaushal Kishore. When Kaushal Kishore has no enmity with both these accused why he will depose against them falsely. In these circumstances there is no reason to disbelieve his statement. This court is of opinion that statement of Kaushal Kishore is reliable, hence due weight is to be given to it as it is duly corroborated with the above referred documents.
124 If Devender Kaushal did not know Kaushal Kishore how he had witnessed these documents filed in DDA with regard to flat in question. Pay order Ex PW27/B of Rs.1,09,670/- No.415265 in the name of DDA, Housing which has been deposited in DDA in response to allotment cum demand letter on behalf of Kaushal Kishore, was got prepared by Ved Prakash Jain from Canara Bank, Tri Nagar Branch, Delhi, it is clearly 50/65 51 mentioned on it as follows:
"On account of Ved Prakash Jain"
125 PW27 Sudesh Chopra has stated that this pay order/draft was issued on account of Mr. Ved Prakash Jain who had deposited the amount mentioned in the draft.
126 On 26.2.92 search of shop No.14 Jai Mata Market, Tri Nagar, Delhi-35 run by Sh. Gian Chand Kaushal under the name and style of M/s Shanti Properties dealer was conducted, vide seizure memo Ex PW26/A by Sh. S K Peshin who had seized a passbook mentioned at serialNo.2 of the list of seized property mentioned in the Seizure Memo which is in the name of Ved Prakash Jain. This passbook is Ex PW37/A of saving bank account No. 70166 in the name of Ved Prakash Jain. Sh. S K Peshin has appeared in the witness box as PW37. He has been cross examined at length, not even a suggestions has been given to this witness that this passbook was not recovered by him from the shop run by Gian Chand Kaushal, thus, it is well proved on the judicial file that this passbook was recovered from the possession of Gian Chand Kaushal from his shop. Pay order referred above, deposited with the DDA vide challan Ex PW30/A, in response to the allotment cum Demand Letter of flat No. 245 A, Motia Khan, has been got prepared by Ved Prakash Jain, thus it also proves that it was got prepared at the instance or on 51/65 52 behalf of accused Gian Chand and Devender Kaushal.
127 From consent letter Ex PW5/F filed alongwith the application of Kaushal Kishore for transferring registration/allotment in the name of Kaushal Kishore it is well proved on the file that Jagat Kishore was having two more legal heirs in addition to Kaushal Kishore, then how A-1 had allotted flat in the name of Kaushal Kishore alone on 6.3.90 vide note Ex PW8/F and issued Allotment cum Demand Letter Ex PW 31/B. 128 PW34 Ranjan Narula has stated that in January, 1991 he was doing business of property dealing under the name and style M/s Narula Estate at Motia Khan. Two persons had come to him for sale of flat No.245. One of them had given his name as Devender. Since he did not had any purchaser therefore, he sent them to another property dealer Ramesh Puri owner of M/s A. B Properties. This witness has been cross examined on behalf of accused. His entire cross examination is as under:
"No property dealer can sell the flat unless the original allottee is prepared to sale the flat. All the documents are to be executed by original allottee. I have not met Devender again. He is not present in the court."
129 Ramesh Puri has appeared in the witness box as PW33.
52/65 53In his examination in chief he has stated that Ranjan and Devender met him about the sale of flat No.245 A during the year 1991. That flat was sold to Pawan Kumar. He was the broker of Pawan Kumar. Mr. Raj Kumar Narula was the broker of vendor namely Devender. Payment was made to Vendor. The flat was sold at a premium. He has specifically stated as follows:
"Devender is not present in court today. I cannot recognize him as it is a matter of 13/14 years. "
130 This witness has not been cross examined on behalf of accused inspite of opportunity given to cross examine. This witness has not identified accused Devender present in the court but he has given a reasonable explanation that he cannot recognise him because of lapse of 13/14 years.
131 Pawan Kumar s/o R R Katyal has appeared in the witness box as PW22. He has stated that he had purchased flat No.245 A, Motia Khan, in consideration of about Rs. 2 lac. He never met Kaushal Kishore, actual owner of the flat. He had purchased this flat through Ramesh Puri, This witness has specifically deposed as follows "The purchase of deal of this flat was arranged by Ramesh Puri through some Kaushal Property dealer of Tri Nagar. Subsequently I 53/65 54 sold the flat. In his cross examination this witness has stated that he cannot identify Kaushal of Tri Nagar. He did not know Kaushal personally. "
132 It is argued by Ld. Defence Counsel that all these witnesses as well as PW6 Rameshwar Prasad have not supported the case of prosecution and are hostile witnesses, therefore no reliance can be placed on their evidence. It is correct that many witnesses, in this case, have turned hostile. Now it is well settled preposition of law that evidence of a witness cannot be rejected merely on the ground that he has been declared hostile.
133 In this regard, Hon'ble Supreme Court in Keshoram Bora Vs. The State of Assam cited in AIR 1978 SUPREME COURT 1096 has held as follows:
"It is now well settled that the principle falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities."
134 Hon'ble Supreme Court in Krishna Mochi Vs. State of 54/65 55 Bihar (2002) 6 Supreme Court Cases 81 in this regard has held as follows:-
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to the end. The maxim falsus in uno, falsus in ownibus has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence".
135 Hon'ble Supreme Court in Mohan Singh Vs. State of M.P. 1999 SCC 261 in this regard has held as follows:
It was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective 55/65 56 layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.
136 Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity 56/65 57 is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
137 As discussed above and from the documents referred in the foregoing pages of this judgment it is proved that Devender is the person who is accused in this case, therefore, oral evidence of these hostile witnesses has been duly corroborated by documentary evidence, hence, their oral evidence, to that extent, can be relied upon.
138 It is argued on behalf of A-1 that being a Joint Director, Housing, DDA, he was competent to hold mini draws for allotment of flats. It is argued that all the official witnesses produced by the prosecution have admitted this fact. It is also argued that all these witnesses stated that there is no illegality in the allotment of these flats. It is correct that he was competent to hold genuine mini draws, as per his powers/designation. From the above referred documents 57/65 58 as discussed above it is proved beyond reasonable doubt that mini draw vide which both these flats were allotted, were not genuine. In view of documentary evidence against accused no weight can be given to the oral evidence. No public servant is competent to do illegal acts.
139 From the above discussion, it is proved beyond reasonable doubt that accused No.1 Sh. Madhukar, in connivance and conspiracy of accused S C Jain, Gian Chand Kaushal and Devender Kaushal, who are his close relatives, in order to provide financial benefits to them, has abused his official position by illegally allotting Ground floor flat No.245 A, Motia Khan in the name of Kaushal Kishore Kakkar alone on 6.3.90 while in fact it was not registered in the name of Sh. Kaushal Kishore Kakkar on that date but in the name of late Sh. Jagat Kishore, who had two more legal heirs in addition to Kaushal Kishore. In these circumstances it is proved beyond reasonable doubt that it is not a case of mere negligence but it has been done deliberately with the dishonest intention to cause loss to the department by wrongly allotting flat and benefit to his relatives.
140 It is proved beyond reasonable doubts from the above discussion that dates of notings and dates of passing order by accused 58/65 59 Madhukar and the dates of intimation letter were changed. PW31 Sh. J K Samuwal in his Report Ex PW31/A has also specifically stated so. Relevant portion of his report is as under:
" There are marks of alterations by overwriting and addition in eachof the red enclosed portions stamped and marked Q39, Q42, Q44, Q46, Q47, Q55, Q56, Q58, Q60 and Q63/ The original writings when deciphered read as '(H) G' in red enclosed portion marked Q39; "6.3.90" in red enclosed portion marked Q42, "2-/6" in red enclosed portion marked Q46; "14/6/90" in red enclosed portion marked Q47. "29/8" in red enclosed portion marked Q 56; "29/8/90"
in red enclosed portion marked Q60. It has not been possible to decipher the original writings in red enclosed portion marked Q44 and Q63 completely."
141 But Handwriting Expert has not been able to give opinion about the person who has committed these forgery/cuttings. There is no other evidence on the judicial file in this regard, however, it is proved beyond reasonable doubts that these forged/manipulated/tampered notes were used by accused Madhukar and S C Jain for allotment of flats in the name of Rameshwar Prasad and Kaushal Kishore, cancellation documents of which were purchased by Gian Chand Kaushal and Devender Kaushal.
142 Conspiracy consists in a combination or agreement 59/65 60 between two or more person do an unlawful act or to do a lawful act by unlawful mean. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section.
143 It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The entire 60/65 61 agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place in each and every act done in pursuance of a conspiracy.
144 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. So again it is not necessary that all should have joined in the scheme from the first; those who come in at a later stage are equally guilty.
145 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy.
61/65 62146 The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted plan to carryout an unlawful design / act . Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence.
147 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:
" Generally, a conspiracy is hitched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th 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 the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words 62/65 63 of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other material."
148 From the foregoing discussion in this judgment, it can be inferred that there was an agreement between all the accused to illegally and unlawfully allot the cancelled flats, documents of which were purchased by Devender Kaushal and Gian Chand Kaushal forgiving pecuniary advantage to them.
149 I have carefully gone through all the authorities relied upon by the Ld. Defence Counsel, there is no dispute with the ratio of law down in these authorities, however, every case has its own facts and circumstances, ratio of law laid down in a particular authority is to be applied according to the facts and circumstances of individual case. It is clear from the above discussion that this court has based findings on the substantive and documentary evidence available on the file and has not drawn any presumption U/s 20 of P C Act, 1988, thus, ratio of law laid down in R C Mehta Vs. State of Punjab is not applicable to the facts of our case. Case of prosecution is not based on circumstantial evidence alone. Case of prosecution is well supported by the documents duly proved on the file. Dishonest intention of accused is also apparent, thus, ratio of law laid down in State Vs. N S Giani and C Chenga Reddy Vs. State of Andhra 63/65 64 Pradesh is not applicable in the facts and circumstances of our case. It is not a case of failure of the public servants to perform their duties or administrative lapse on their part but a clear case based on deliberate acts done with dishonest intention, therefore, ratio of law laid down in Anil Kumar Bose Vs. State of Bihar and Reeta Handa Vs. CBI are not applicable to the facts and circumstances of this case.
150 Prevention of Corruption Act is a Social legislation enacted with a view to curb illegal activities of public servants, hence it should be liberally construed so as to advance its objects. In this regard Our Hon'ble Supreme Court in Ram Singh Vs State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
" Prevention of Corruption Act, 1988- Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused-- Interpretation of Statutes--Particular statutes or provisions-- Penal statute - Social Legislation-- Interpretation of."
151 Our Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
64/65 65"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence -If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
152 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused, therefore, accused Madhukar, Gian Chand Kaushal and Devender Kaushal are convicted U/s 120B of IPC r/w Sec. 471 IPC and Section 13 (2) r/w Sec. 13 (1) (d) of PC Act, 1988.
153 Accused Madhukar is also convicted for the substantive offence defined U/s 13 (1) (d) punishable U/s 13 (2) of P C Act, 1988 and U/s 471 IPC only.
Announced in open court ( V K MAHESHWARI ) Dt. 21.1.2010 SPECIAL JUDGE: DELHI 65/65 66 IN THE COURT OF SH. V K MAHESHWARI :SPECIAL JUDGE; TIS HAZARI DELHI C C No. 45/04 CBI Vs 1 Sh. Madhukar s/o Sh.Yudhishtra, the then Joint Director (Housing) Delhi Development Authority, Vikas Sadan, New Delhi.
2 Sh. Subhash Chander Jain s/o Sh.
Sripal Jain, the then UDC (Housing) DDA, New Delhi. (expired on 18.8.99 proceedings against him abated vide order dt. 3.12.99).
3 Sh. Gian Chand Kaushal r/o 4543/12, Jai Mata Market, Tri Nagar, N. Delhi 4 Sh. Devender Kaushal s/o Sh. Gian Chand Kaushal, R/o 4543/12, Tri Nagar, New Delhi.
R. C No. 6 (A)/92/CBI/ACB/ New Delhi.
Under Section U/s 120-B r/w 467/471 IPC and Sec. 13 (2) r/w Sec.13 (1) (d) of PC Act, 1988 ORDER ON SENTENCE:
Vide my separate judgment dated 21.1.2010 accused Madhukar, Gian Chand Kaushal and Devender Kaushal were convicted U/s 120B of IPC r/w Sec. 471 IPC and Section 13 (2) r/w 66/65 67 Sec. 13 (1) (d) of PC Act, 1988. Accused Madhukar was also convicted for the substantive offence defined U/s 13 (1) (d) punishable U/s 13 (2) of P C Act, 1988 and U/s 471 IPC only.
2 Arguments on sentence heard.
3 It is argued on behalf of convict Madhukar that he is not a previous convict, having clean antecedents and commands respect in the society. He is the only bread earner of his family which includes his two sons and wife. He is a senior Govt. Officer and has been falsely implicated by CBI. In these circumstances, lenient view may be taken against him.
4 It is argued on behalf of convict Gian Chand Kaushal that he is a Senior citizen of 71 years of age and is suffering from various ailments including acute arthritis, high blood pressure, diabetes and partial paralysis and generally confines to bed due to old age and ailments. He is unable to walk properly without an attendant as both of his legs are not well due to paralysis. He is not a previous convict, having clean antecedents and commands respect in the society, hence lenient view be taken while passing order on sentence taking into consideration the old age and various ailments the records of which is already on record.
67/65 685 It is argued on behalf of convict Devender that he is not a previous convict, having clean antecedents and commands respect in the society. He is the only bread earner of his family which includes his two minor school going daughters and one minor son. He is also looking after his parents who are old aged and are suffering from various diseases. His father cannot walk without the support of other person and generally he helps him in walking. In these circumstances, lenient view may be taken against him.
6 It is argued on behalf of CBI that convicts are involved in serious criminal case punishable Under Section 120B of IPC r/w Sec. 471 IPC and Section 13 (2) r/w Sec. 13 (1) (d) of PC Act, 1988. They should be awarded maximum punishment and heavy fine may be imposed on them keeping in view of provisions of Section 16 of P C Act.
7 Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to 68/65 69 provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself, it is the widespread public perception that corruption is not or would be not punished, that is detrimental to the society.
8 It is a cherished desire of every one to have one's own house. To have his own house in Delhi, is a herculean task. People work hard throughout their life and make all out efforts to fulfill their dream to own their personal house. To have one's own house in Delhi, now a days is the greatest achievement in the life of every middle class citizen. To rob or cheat people of their dream is likely the impetus that pushes every human being to excel to work hard through life to achieve their dream. It spreads a feeling of mistrust and loss of faith, especially when such acts are committed by public servants. It sets a precedent, in masses, creating a lack of confidence in Govt. Agencies/public undertaking and also creating an atmosphere favoring corruption. Such an act, which suppresses and kills people's dreams, deprive of roof over their heads and spreads in society a feeling of corruption and lawlessness should be given 69/65 70 harshest punishment so as to deter perpetrators of such crime in future and while at the same time reinforcing the faith of people in law.
9 In this case, it is proved beyond reasonable doubts that accused Madhukar, who was the then working as Joint Director, Housing, DDA, in conspiracy and connivance of his father in law Gian Chand Kaushal and brother in law Devender Kaushal, deliberately and dishonestly by abusing his official position, deprived of persons flat allotted to them by purchasing cancellation papers of their flats through his above named close relatives and reallotting the flats in the name of such persons and thereafter sold such flats through his relatives.
10 Our Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana, (1997) 4 S.C.C. 14, has observed that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke.
70/65 7111 Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ram Singh 2000 Crl. L.J. 1401 while dealing with the case of a Sub- Inspector, Excise & District Excise Officer, involved in a case under Section 13(1) (e) of the Act, inter-alia observed as follows:-
" Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."71/65 72
12 So the aforesaid sentiments expressed by the Apex court clearly show that acts of corruption by " Public servants " deserve to be dealt with an iron hand and such public servants do not deserve any sympathy.
13 After considering all the arguments raised before me I consider it proper to award two years RI each to convict Madhukar, Gian Chand Kaushal and Devender Kaushal along with a fine of Rs.25,000/- each (Rs. twenty five thousand only) I D three months S I U/S 120B of IPC r/w Sec. 471 IPC and U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988.
14 Accused Madhukar is also awarded three years RI along with a fine of Rs. 50,000/- ( Rs. Fifty thousand only ) I D three months S I for the substantive offence defined U/s 13 (1) (d) punishable U/s 13 (2) of P C Act, 1988 and two years RI alongwith a fine of Rs.25,000/- (Rs. Twenty five thousand only) ID three months SI for the substantive offence U/s 471 IPC.
15 All the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused. A copy of judgment and this order on sentence be given to each convict free of cost.
72/65 73ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 25 January, 2010
th
SPECIAL JUDGE: DELHI
73/65