Delhi District Court
Central Bureau Of Investigation vs Shri M.N. Sharma on 6 December, 2013
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 20/11
R.C. No. 62(A)/98
Central Bureau of Investigation
Versus
Shri M.N. Sharma
S/o Late Shri Raja Lal Sharma,
R/o 7/142, Lodhi Colony,
New Delhi.
Date of Institution : 04.05.2001
Date of reserving Judgment : 24.10.2013
Date of Pronouncement : 06.12.2013
JUDGEMENT
FACTS The Accused herein Shri M.N. Sharma was appointed as Inspector Grade II in Delhi Administration on 31.07.1980 and worked in Food and Supplies Department. Lateron in May, C.C. No. 20/11 1 of 119 1992 he was shifted as Naib Tehsildar in Land Acquisition Department. He has promoted as Tehsildar in August, 1997. In January, 1998 he was also entrusted the work of Sub Registrar.
2. There was a case registered against Shri M.N. Sharma bearing No. RC 47(A)/98 with the allegations that he in the capacity of SubRegistrar (Rampura) was caught red handed demanding and accepting bribe from a Document Writer (informed to have been acquitted in the said case). During the course of the investigation of the said case a search was conducted at his residence on 2829/08/1998 at 7/142, Lodhi Colony, New Delhi. According to the charge sheet, during the search a lot of incriminating documents showing the investments and acquisition of movable / immovable properties were recovered. Shri H.S. Karmyal who was investigating the said case RC 47(A)/98 had scrutinized all those documents and according to him the Accused was prima facie in possession of assets disproportionate to his known sources of income and, therefore, he had made the complaint dated 19.12.1998 to the C.C. No. 20/11 2 of 119 Superintendent of Police, CBI, ACB, New Delhi stating, inter alia, that the Accused was in possession of assets disproportionate to his known sources of his income. On the basis of the said complaint FIR RC 62(A)/98 (FIR in the present case) was registered under sections 13(2) read with section 13(1) (e) of the Prevention of Corruption Act, 1988 (hereinafter called "Act"). After the investigation of the case, charge sheet was filed. As per the computation given in the charge sheet for the disproportionate assets, the Accused was found in possession of assets worth Rs. 9,37,437.72 acquired during the check period i.e. 1st January, 1988 to August, 1998 in his own name and in the name of his family members. His likely saving during this period were Rs.1,66,735.36, available with him for acquiring the assets. Thus he was found in possession assets to the tune of Rs. 7,70,702.36 disproportionate to the known sources of his income for which he could not give any specific explanation. The Accused was chargesheeted and sent up for trial under section 13(2) read with Section 13(1) (e) of the Act.
C.C. No. 20/11 3 of 119 CHARGE
3. On the basis of the allegations and the documents relied upon by the prosecution a charge was framed against the Accused under Section 13(2) read with Section 13(1)(e) of he Act to which the Accused had pleaded not guilty. ADMISSION OF DOCUMENTS U/S 294 Cr.P.C.
4. During the course of the trial i.e. before and after the charge was framed the Accused had admitted a number of documents under section 294 Cr.P.C. thereby conceding that the said documents may be read in evidence without their formal proof. The details of the said documents are as under:
(i) Document D6 - Letter No. F &S/C&A/992000/1306 dated 21.12.1999 of Smt. Indra Behl, DDO, Food and Supplies, Delhi to the Joint secretary, Directorate of Vigilance, Govt. of Delhi giving details of salary/advances/withdrawals paid to Shri M.N. Sharma as Ex. P1 C.C. No. 20/11 4 of 119
(ii) Document D7 - Letter No. GBSSS1/KN/99/236 dated 18.11.1999 by Shri M.P. Singh, Vice Principal, Kidwai Nagar to A.O., Directorate of Education, Lucknow Road details of salary/advances/withdrawals paid to Shri M.N. Sharma as Ex. P2.
(iii) Document D9 - Personal file of accused Shri M.N. Sharma as Ex.P3.
(iv) Document D11 - Letter No. B and B/A/A/Misc 63233 dated 09.12.99 of Shri Ajay Vatan, OIC, Office of Divisonal Commissioner, Tis Hazari, Delhi giving details of salary/advances/withdrawals also paid to Shri M.N. Sharma as Ex. P4.
(v) Document D12 - Letter dated 20.04.2000 from Aapka Chits Pvt. Ltd. B.O. 46, Gautam Nagar, Delhi giving the details of chits paid by Smt. Sushma Sharma wife of Accused Shri M.N. Sharma as Ex. P5.
C.C. No. 20/11 5 of 119 (vi) Document D13 - Pass Book of Chit B12 of Aapkaa Chits
and receipts in the name of Smt. Sushma Sharma as Ex. P6, P7/1, P7/2, P7/3 and P7/4.
(vii) Document D14 - Receipts of Aapkaa Chits in the name of Smt. Smt. Sushma Sharma as Ex. P7/5, P7/6, P7/7 and P7/8.
(viii) Document D15 - Letter dated 08.07.2000 of Shri V.K. Nayyar, Secretary, Nav Bharat Coop Group Housisng Society, Paschim Vihar as Ex. P12.
(ix) Document D16 - Receipt memo dated 08.07.2000 as Ex. P8.
(x) Document D17 - Photocopy of Member Depoti Register and Membership Register of Nav Bharat Coop Group Housisng Society, Paschim Vihar alongwith relevant papers showing C.C. No. 20/11 6 of 119 entires in respect of Shri M.N. Sharma as Ex. P9, P9/1 and Ex. P9/2.
(xi) Document D18 - Receipt Memo dated 11.07.2000 as Ex. P10.
(xii) Document D19 - Photocopy of Banker's cheque dated 03.03.1993 in respect of Shri M.N. Shamra as Ex. P11.
(xiii) Document D20 - Photocopy of Possession letter dated 22.06.1985 of Nav Bharat CoOp. Group Housing Society Ltd. in the name of Shri M.N. Sharma as Ex. P13.
(xiv) Document D21 - Receipt memo dated 06.07.2000 as Ex. P14.
(xv) Document D22 Photocopy of Allotment letter dated 22.06.1985 of Nav Bharat CoOp. Group Housing Society Ltd. in the name of Shri M.N. Sharma as Ex. P15.
C.C. No. 20/11 7 of 119 (xvi) Document D23 - Copy of Agreement to Sell and purchase and receipt dated 04.03.1999 between Shri M.N. Sharma and Shri Satish Kumar Arora in respect of flat in Nav Bharat CoOp. Group Housing Society Ltd. as Ex. P16. (xvii) Document D24 - Letter dated 20.02.1999 of Delhi State Coop. Bank Ltd., South Ext.1 alongwith statement of account No. 1164 of Shri M.N. Sharma as Ex. P17.
(xviii) Document D25 - Receipt memo dated 24.07.2000 as Ex. P18.
(xix) Document D26 - Original pay in slip of the Delhi State Cooperative Bank Ltd. for deposit of Rs. 98,000 in the account of Shri M.N. Sharma in SB A/c 1164 as Ex. P19. (xx) Document D27 - Certified copy of statement of account No. 4891 of Sh. M.N. Sharma at SBI South Ext. Prt II alongwith letter dated 27.04.2000 as Ex. P20 and P21.
C.C. No. 20/11 8 of 119 (xxi) Document D28 - Certified copy of statement of account No. 11226 of Smt. Sushma Sharma in Indian Bank, South Ext. as Ex. P21.
(xxii) Document D29 - Certified copy of statement of account No. 48383 of Mrs. Sushma Sharma with PNB, Lodhi Road, New Delhi alongwith letter dated 22.02.1998 as Ex. P22. (xxiii) Document D30 - Letter dated 17.05.2000 of Manager, PNB, Lodhi Road, New Delhi with certified copy of Ch. No. 200370 dated 14.08.1996 in the name of Dhir Singh for Rs. 70,000/ from A/c No. 48383 of Mrs. Sushma Sharma as Ex. P23.
(xxiv) Document D32 - Certified copy of statement of account No. MB 8372 of Punjab National Bank of Mrs. Sushma Sharma as Ex. P24.
C.C. No. 20/11 9 of 119 (xxv) Document D33 - Original FDR No. RDX 401178 of A/C No. 8372 M for Rs. 50,000/ dated. 01.01.1995 in the name of Mrs. Sushma Sharma as Ex. P25.
(xxvi) Document D34 - Letter No. DC/343/2000dated 01.05.2000 of Sub Post Master, District Courts, Post Office, Delhi alongwith copy of IVP Sale Register as Ex. P26. (xxviii) Document D36 - Letter No. 206(18)/92/HV/NP/244 dated 16.04.2000 of Dy. Director (Janta) Housing, DDA as Ex. P27.
(xxx) Document D37 - DDA challan receipt No. A42903 dated 30.09.1979 for Rs. 250/ in the name of Shri M.N. Sharma as Ex. P28.
(xxxi) Document D38 & D39 - Letter No. nil dated 09.04.2000 from Shri S.C. Gupta, Secretary of Uttar Pradash Samaj Co.op Housing Building Society Ltd. and receipt of Rs. 5,110 in the name of Smt. Sushma Sharma as Ex. P29 and P30.
C.C. No. 20/11 10 of 119 (xxxii) Documents D40 and D41 - Letter received from
Maharishi Dayanand Cooperative Group Housing Society Ltd. alongwith pass book and receipt of Rs. 15,110 in the name of Smt. Sushma Sharma as Ex. P31 and P32.
(xxxiii) Documents D42 and D43 Fee receipt of Rs. 7,935 and other details received from Fr. Angel School in respect of payment of fees etc. in the name of Smt. Pragya Sharma vide letter dated 35.04.2000 as Ex. P33 and P34. (xxxiv) Document - 45 Electricity bill statement in respect of premises No. 7/142, Lodi Colony since April, 94 to August, 1998 as Ex. P35.
(xxxv) Document - D46 - Letter No. AFO(D)RKP/491 dated 26.05.1999 by Shri N.L. Arora, AFO alongwith electricity bill payment record of H. No. 339, Sadiq Nagar, New Delhi as Ex. P36.
C.C. No. 20/11 11 of 119 (xxxvi) Document D47 - Letter No. File AOTR
C/II/4693197 dated 03.06.1999 alongwith duplicate billfor Tel NO. 4693197 for bills dat ed 01.02.1994, 01.04.1994, 01.06.1994, 01.08.1994, 01.02.1995, 01.04.1995, 01.08.1995, 01.10.1995, 01.12.1995, 01.04.1996, 01.06.1996 and 01.12.1996 consolidated billing w.e.f. 01.02.1997 to 01.06.1999 bill alongwith photocopy of History of telephone as Ex. P17. (xxxvii) Documents D48, D49 and D50 - Share Certificates of Parasampuria Plantations Ltd. in the name of Mrs. Sushma Sharma alongwith other details vide letter dated 19.04.2000 as Ex. P39, P40 and Ex. P40/1 to P40/35. (xxxviii) Document D51, D52 and D53 - LIC policy with premium receipt received from LIC, Model Town, Ghaziabad in the name of Smt. Sushma Sharma alongwith all the necessary details vide letter Ex. P41, P42 and P43.
C.C. No. 20/11 12 of 119 (xxxix) Document D54 and D55 - LIC policy received from
LIC, C29, Community Centre, Nariana Vihar, New Delhi alongwith all the necessary details vide letter Ex. P44 and P45. (xl) Document D56 and D57 - LIC Policy with premium receipt received from LIC, 86, Janpath, New Delhi alongwith all the necessary details vide letter Ex. P46 and P47. (xli) Document D58 - General Power of Attorney dated 26.09.1996 in favour of Smt. Sushma Sharma in respect of Plot measuring 550 sy. Yards, Village SaidulAzaid, Tehsil Mehrauli, New Delhi as Ex. P48.
(xlii) Document Part of D59 - File NO. GBSSS1/KW/99, File No. F8(51)/80 F & S Admn. and File NO. F7(90?Rev. Estt./DC/92, personal files of Shri M.N. Sharma as Ex. P49, P50 and P51.
C.C. No. 20/11 13 of 119 PROSECUTION WITNESSES
5. As a result of admission of the above documents the lot of time of the Court was saved and number of witnesses to be examined in this case was substantially reduced. The prosecution had examined only 11 witnesses in this case. PW1
6. Witness PW1 Shri Ashwani Kumar Jha who was posted as Stenographer at Civil Engineering Department, New Delhi had deposed that on 28.08.1998 he had visited the office of CBI at CGO Complex on the instructions of Director (Vigilance). Alongwith CBI Team he had gone to Lodhi Colony as a part a raiding party to the residence of the Accused at 7/142, Lodhi Colony. He had identified his signatures on the Observation Memo Ex. PW1/A, which was prepared in his presence at the time of the search. He had disclosed that one Shri Mangesh from his office was also part of search party and he too had put his signatures on the said document.
C.C. No. 20/11 14 of 119
7. He had also identified his signatures on the seizure memo (D3) Ex. PW1/B, which was prepared during the course of the said search. As per the entry at Item No. 17 in the search cumseizure memo Ex. PW1/B a sum of Rs. 2,31,629/ had been recovered from the house of the Accused out of which Rs. 6,629/ had been returned to the wife of the Accused Smt. Sushma Sharma for meeting the immediate requirements.
8. This witness also identified Indra Vikas Patra of Rs. 5,000/ Ex. PW1/C referred to at Sl. No. 2 of the above seizure memo Ex. PW1/B and also the documents collectively Ex. PW1/D relating to the transfer of the vehicle No. DL3CD 1649. PW2
9. Witness PW2 Shri Azad Singh who was posted as Inspector on Deputation in the 1992 with CBI / ACB, New Delhi from Delhi Police had deposed that on an authorization under C.C. No. 20/11 15 of 119 section 165 Cr.P.C. handed over to him by Inspector P. Balachandaran, in case R.C.No.47(A)/98 ( earlier case registered referred above) on 28.08.1998, he had conducted the search at the house of the Accused at 7/142, Lodhi Colony, New Delhi wherein two independent witnesses from NDMC including Shri Ashwani Kumar had participated. According to him during the search he had prepared the Observation Memo Ex. PW1/A wherein the names of the articles, year of their acquisition, approximate cost of the articles and mode of acquisition were noted in consultation with the family members of the accused as well as the independent witnesses.
10. He had further deposed that the incriminating documents had been seized by him by Searchcumseizure memo Ex. PW1/B. He had also identified the Indra Vikas Patra, documents relating to the transfer of the vehicle No. DL3CD 1649 Ex. PW1/D seized by him vide seizure memo Ex. PW1/B. He had deposed about the recovery of cash of Rs. 2,31,629/referred in seizure memo Ex. PW1/B. He also made C.C. No. 20/11 16 of 119 reference to the key of locker No. 157 and Key No. 159 of Godrej maintained at PNB, Lodhi Road alongwith two keys of Weston, which were recovered during the search and referred to at Sl. No. 16 on page No. 3 of the SearchcumSeizure Memo Ex. PW1/B. After concluding the search he had handed over all the memos, records, documents, cash etc. to the Investigating Officer in CBI Office.
PW3
11. Witness PW3 Shri Roshan Lal, who was posted as Post Master at District Court's Post Office at Tis Hazari Courts in the year 2000 had supplied a copy of the Sales Register of Indira Vikas Patras (IVP) dated 14.07.1994 Ex. P26 to the CBI official by letter dated 01.05.2000. He had stated that the said Indira Vikas Patra dated 14.07.1994 bearing No. 37C169381 was entered at at Sl. No. 2330 marked X of the said register. The sale price of the said Indira Vikas Patra was Rs. 2,500/ and the amount to be received on maturity after a period of five and C.C. No. 20/11 17 of 119 half years was Rs. 5,000/. He had also identified the IVP Ex. PW1/C which was purchased against the entry No. 2330 mark X. PW4
12. Witness PW4 Shri Pradeep Kumar Chopra had deposed that in the year 1993 he had his own business of exports in the name of M/s Interads Export Division Pvt. Ltd. at 1202, Akashdeep Building, Baarkhamab Road, New Delhi. According to him the car No. DL3CD 1649 was registered in his name. He had sold the said car to one Shri Harminder Singh son of Sardar Singh and delivered the same to Shri Harminder Singh vide delivery receipt Ex. PW4/A. He had identified his signatures on the documents Ex. PW1/D (Colly.) relating to the transfer of the said vehicle. He had also stated that he had received Rs. 75,000/ for selling the said car in cash. He denied having sold the said car to Smt. Sushma Sharma wife of Shri M.N. Sharma for Rs. 75,000/. According to him he had sold the C.C. No. 20/11 18 of 119 car to Shri Harminder Singh and he had not dealt with any other person except Shri Harminder Singh either before or after selling the car.
PW5
13. Witness PW5 Smt. Lalita Rohilla who was posted at DDO in Govt. Boys Senior Secondary School, Kidwai Nagar in the year 1999 had identified signatures of Shri M.P. Singh, Head of Office on the letter Ex. P2 written by him to Administrative Officer (Vigilance), Directorate of Education, Lucknow Road, Delhi forwarding the details of monthwise drawn statement of salary and deductions for the period 12.08.1997 to 27.08.1998.
14. She had also identified the letter dated 03.08.1999 written by Shri M.P. Singh Ex. PW5/B to Administrative Office, District South, Defence Colony, New Delhi whereby the Service Book of Accused Shri M.N. Sharma and his drawn statement was sent to the Administrative Office, District South.
C.C. No. 20/11 19 of 119 PW6
15. Witness PW6 Shri P.S. Bhatnagar, who was Chief Secretary, Government of Delhi from March, 2000 to January, 2002, had deposed that after examining the material on record supplied to me by the prosecuting agency and satisfying himself he had accorded the sanction for the prosecution of the Accused Shri M.N. Sharma Vide Ex. PW6/A. PW7
16. Witness PW7 Shri Dhir Singh, who was a Property Dealer, had identified the Agreement to Sell Ex. PW7/A executed between himself on the on the hand and Smt. Rameshwari Devi and Smt. Sushma Shrma on the other hand for selling property measuring 600 Sq. Yards in Khasra No. 138 in Village Saidulajab, Tehsil Mehrauli, New Delhi.
C.C. No. 20/11 20 of 119
17. He had further deposed that as per the said Agreement he was to be paid Rs. 2 lacs. Initially he had received Rs. 50,000/ before the execution of the Agreement to Sale in the year 1993. After the Agreement to Sale had been executed he had received Rs. 70,000/ in cash and separately also received a Pay Order in the sum of Rs. 60,000/. He was paid another Rs. 20,000/ in cash. He had identified the receipt Ex. PW7/B with regard to having received Rs. 2 lacs. He had clarified that in this receipt the amount of pay order had been shown to be Rs. 80,000/ but in fact it was of Rs. 60,000/ and a cash of Rs. 20,000/. He had produced a certificate from State Bank of Patiala showing that on 01.07.1996 there was a pay order issued from the account of Smt. Rameshwari Devi in his favour for Rs. 60,000/. The said certificate was taken on record and marked as Mark W1.
18. This witness had also identified his signatures on the accompanied affidavit Ex. PW7/C, interalia, stating that he would not cancel the General Power of Attorney executed by C.C. No. 20/11 21 of 119 him in favour of Smt. Sushma Sharma also the Power Of Attorney executed by him in favour of Smt. Sushma Sharma Ex. P48.
19. According to him he had sold this plot to Smt. Rameshwari Devi and Smt. Sushma Sharma. Initially Rs. 50,000/ had been given to him by Smt. Rameshwari Devi. Later on she had given Rs. 60,000/ by way of pay order and another sum of Rs. 20,000/ in cash. Smt. Rameshwari Devi had informed him that she was finding it difficult to arrange for the remaining amount, therefore, she was giving a cheque of Rs. 70,000/ from the account of her daughter in law.
20. In the crossexamination by Ld. PP for CBI, he had also admitted the Cheque Ex. PW7/E of Rs. 70,000/ having been received by him.
PW8
21. Witness PW8 Inspector Alok Kumar who was posted as Inspector with CBI, Vigilance Cell in the year 1998 had C.C. No. 20/11 22 of 119 identified the signatures of Shri H.C. Awasthi the then S.P., CBI, ACB, New Delhi on the FIR Ex. PW8/A and stated that after the registration of the case the investigation was entrusted to Shri P.K. Sharma, Inspector. In February 2000 the investigation was transferred to him. During the course of investigation he had collected various documents. He had decided to keep the check period from 01.01.1988 to the date of search i.e. 28.08.1998 as most of the assets according to him were acquired during the said period. In his testimony he had given the details of the income of the Accused during the said period to be Rs. 5,74,761.19, details of the expenditure incurred during the said period to be Rs. 4,08,025.83 and the assets acquired during the said period to be Rs. 9,27,437.72.
22. He had further deposed that during the course of the investigation he had seized various documents. He had submitted his report to his senior officers and finally a conclusion was reached that the offence under section 13(1)(e) read with Section 13(2) of the Act was made out against the C.C. No. 20/11 23 of 119 Accused. After getting the sanction Ex. PW6/A the charge sheet was filed stating, interalia that the Accused was found in possession of the assets to the tune of Rs. 7,70,702.36 disproportionate to his known sources of income.
23. In the crossexamination as well there were various documents put to him, which were not relied upon by the prosecution and the witness had admitted these documents as having been collected by him during the investigation and also the statements of witnesses recorded by him though not relied upon.
PW9
24. Witness PW9 Shri H.S. Karmyal, who was working as Inspector with CBI, ACB, New Delhi in the year 1998 had deposed that he had made a complaint Ex. PW9/A to CBI on the basis of the scrutiny of documents collected during the course of investigation from the Accused in another case RC NO. 46(A)/98.
C.C. No. 20/11 24 of 119
25. According to him in RC No. 47(A)/98 he had searched the locker of the Accused at PNB, Lodhi Colony in the presence of independent witnesses, namely, Shri K.L. Batra and Shri A.S. Rana officers of the same Branch and had prepared an inventory of the same Ex. PW9/D. PW10
26. Witness PW10 Shri Mangesh Kumar who was posted in the Civil Establishment, Unit1, NDMC in August, 1993 had deposed that he had participated in the search at a Government flat at Lodhi Colony, New Delhi, which was located at the first floor of the building along with his colleague Shri Ashwani Kumar Jha on 28th or 29th August, 1998, after having received the instructions from his Vigilance Department. The witness had identified his signatures on the searchcumseizure memo Ex. PW1/B and also on Observation Memo Ex. PW1/A. C.C. No. 20/11 25 of 119 PW11
27. Witness PW11 Shri Prem Kant Sharma, who was posted as Inspector, with CBI in the year 1998, had deposed that after the registration of the case Ex. PW8/A the investigation of this case was marked to him. During the search he had recorded the statements of 23 witnesses and also collected certain documents, from Shri Karmyal, which were seized during the search conducted at the house of the accused in one another case.
28. This witness had identified document Ex. P17 i.e. a letter received from Delhi State Cooperative Bank Limited with which he had received a statement of account Ex. P17/1 to 5. He had further identified the letter Ex.P22 received by him for PNB along with which statement of account of Smt. Sushma Sharma Ex. P22 had been forwarded.
C.C. No. 20/11 26 of 119
29. He had also deposed that during the investigation he had received letter Ex. P36 from Delhi Electricity Supply Undertaking providing him with the consolidated statements of electricity bills paid by the accused during the period May, 1993 to 1994 Ex. P36. Similarly, he had also received the letter from MTNL whereby number of bills had been forwarded to him related to the period February, 1994 to December, 1998 collectively Ex.P47. The investigation of this case was thereafter transferred to Shri Alok Kumar, Inspector. Statement of Accused under Section 313 Cr.P.C
30. All the incriminating evidence which had come on record in the evidence was put to the accused and his statement under Section 313 Cr.P.C was recorded.
DEFENCE EVIDENCE
31. The Accused in his defence had examined twelve witnesses.
C.C. No. 20/11 27 of 119 DW1
32. Witness DW1 Smt. Chandrawati, who is grand mother of the Accused, was examined in he Court. She has deposed that the Accused was married to his grand daughter Smt. Sushma. She though had stated in her testimony that her husband had given Rs. 50,000/ to both his daughters and also to his grand daughter Sushma i.e. wife of the accused, but she had not supported the case of the defence in the sense that this money was given at the time of death of her husband. She had claimed that this money was given about 34 months before her husband had passed away and this money was not given in her presence.
DW2
33. Witness DW2 Smt. Anju Chopra had deposed that she was a family friend of the Accused. Smt. Sushma Sharma i.e. wife of the Accused was running a Boutique from the Barsati of C.C. No. 20/11 28 of 119 her residence at 7/142, Lodhi Colony. She had been getting stitched clothes from her since 19951996. She used to pay Rs. 80/ in the year 19951996 for getting the ladies suit stitched. Smt. Sushma Sharma had employed a Master Ji who used to work at the said Boutique. Sometimes Smt. Sushma Sharma used to take the measurement herself and sometimes Master Ji used to take the measurement. According her Smt. Sushma Sharma had also employed one tailor but the entire work used to be handled by Smt. Sushma only.
DW3
34. Witness DW3 Shri Manish Vats is the brotherinlaw of the Accused. He had deposed about his late father Surinder Kumar had given Rs. 50,000/ as per the desire of his father to his sisters, namely, Urmila and Gita and also to his own daughter Smt. Sushma Sharma in the presence of all the family members at the time of death of his grand father.
C.C. No. 20/11 29 of 119
35. He further had deposed that, that CBI official had visited their residence for making some inquiries into the matter. At that time he was present at their home though his father was not present. In the absence of his father CBI officers had started making inquiries from his grand mother Smt. Chandrawati (DW1). He could hear that there were some inquiries being made from her by the CBI officials about Rs. 50,000/ and she had informed them that Rs. 50,000/ had been given to her grand daughter Smt. Sushma Sharma and also to her daughters, namely, Urmila and Gita at the time of death of his grand father. He had further explained that his grand mother is 9899 years old. She suffers from memory lapse like any other person of her age. She forgets even days of the week and also remains generally sick.
DW4
36. Witness DW4 Smt. Raj Sharma like the witness PW2 Smt. Anju Chopra had deposed that she was also getting her clothes stitched from Smt. Sushma Sharma. She was residing in C.C. No. 20/11 30 of 119 the same locality. According to her Smt. Sushma Sharma was running her Boutique from her residence. Smt. Sushma Sharma used to charge in the range of Rs. 80100 for stitching ladies suit. She used to take measurement in the flat. She had one tailoring machine in the flat itself and one machine she had in the barsati. She had employed 12 tailors. DW5
37. Witness DW5 Shri Pankaj Goel had deposed that he was a businessman having the business of export of garments in the name of M/s Sorogeeka Exim. In 1991 he was running this business in the name of La Sorogeeka International. According to his testimony Smt. Sushma Sharma was employed with his firm as a Checker. Her job was to check the fabricated home furnishing items before they were finally packed. As per the document Ex. PW8/DXC1 she was getting Rs. 1,500/ as salary from his firm for which there was certificate issued to her by him. He had identified his signatures on the said certificate.
C.C. No. 20/11 31 of 119 According to him she had worked as Checker with him during the period 1991 to 1993 and thereafter she had started her own work and in order to support her he had stared giving her some fabrication work for which she was used to be paid depending upon the nature of the work and its quality. He had identified the document Ex. PW8/DX21 giving the details of the payment which had been made to her during the period from 1993 to 1999 amounting to Rs. Rs. 2,31,280/.
DW6
38. Witness DW6 Shri Harminder Singh son of Late Shri Sardar Singh had deposed that he was in the business of sale and purchase of old cars. His business was in the name of M/s Kukreja Motors. As per his testimony he did not know Shri M.N. Sharma personally. One day sometime in the year 19971998 he had visited the house of Shri M.N. Sharma along with his friend Shri Subhash Sethi, on being asked by Mr. Sethi to accompany him to the house of Shri M.N. Sharma. He was C.C. No. 20/11 32 of 119 carrying with him one envelope with some blank sale letters of cars signed by the sellers. He had informed that usually whenever a customer approached them for selling a vehicle he would be asked to sign blank sale letter and other sale related documents so that once the vehicle is sold to a buyer, the buyer may fill up his name for getting the vehicle transferred in his name. As per his testimony he had taken tea at the residence of Shri M.N. Sharma but inadvertently left behind that an envelope. Later on after one and half years he came to know that the said envelope was left behind by him at the residence of Shri M.N. Sharma. After going through the documents Ex. PW1/D (Colly.) he had stated that they were the same documents which he had left behind at the residence of the Accused Shri M.N. Sharma. As per his testimony for sometime he kept searching for those documents and ultimately got those documents signed afresh from the party. He had identified the signatures on the delivery receipt Ex. PW4/A at the time of taking the delivery of the vehicle from the seller of the vehicle Shri Pradeep Kumar Chopra. He had also stated that the cash receipt dated C.C. No. 20/11 33 of 119 18.07.1997 would show that he had paid Rs. 75,000/ to Shri Pradeep Kumar Chopra.
DW7
39. Witness DW7 Shri Bhagwan Singh had deposed that for the last 40 years he was doing the work of embroidery. He was working independently. According to him, he used to visit different boutiques on his cycle, collect work from them and after finishing the work return the clothes after the embroidery to them and collect payment. As per his testimony he used to visit Smt. Sushma Sharma who was running a boutique at 7/142, Lodhi Colony, New Delhi in the year 19961997 also and collect clothes from her for embroidery. According to him the boutique was located at the first floor. He used to visit her for work and still visit her for work sometimes. He had further deposed even in the last month he had collected the clothes for embroidery from the boutique of the wife of the Accused. He had further stated that the payments used to be made in cash and he was not keeping any record of the work done by him.
C.C. No. 20/11 34 of 119 DW8
40. Witness DW8 Shri Krishan Kumar Karnani had deposed that he was one of the Director of M/s Malav Exports Pvt. Ltd. He did not know accused Shri M.N. Sharma personally and he came to know about him during the course of investigation in this case. As per his testimony one Shri Banarsi Dass who was his friend and working with Ministry of Agriculture had approached him in August, 1998 for a loan of Rs. 2 lacs, which he had advanced. The Loan was returned to him within 2 months. When this investigation had started, he came to know that Shri Banarsi Dass had taken this money to pay to Mrs. Sharma (Smt. Rameshwari Devi, mother of the accused.) During the course of the investigation he had given the statement Ex. PW9/DXD10 to CBI. At the time of recording of the statement he had handed over to the CBI a copy of the cash book of his company, copy of ledger and copy of Memorandum of Articles and Association Ex. PW8/DXD12 and Ex. PW8/DXD13. He had forwarded these documents to the Investigating Officer vide letter Ex. PW9/DXD11.
C.C. No. 20/11 35 of 119 DW9
41. Witness DW9 Smt. Sushma Sharma who is the wife of the Accused. According to her she was married to Shri M.N. Sharma in 1989. After getting married she had started living at Kotla i.e. her sasural. In 1991, she had joined two years Diploma course at International Polytechnic for Women at South Extension, Delhi for Fashion Designing. She had completed the course in the year 1993. As a part of the course she was required to visit different export houses and different places to know and learn about the embroidery work, stitching work etc. As a part of this exercise she had also visited M/s La Sorogeeka at Okhla, Delhi and had been there at their workshop at Govindupuri for about a week. They were in need of a "Checker". Since she was undergoing the regular diploma course, she had joined them as part time "Checker". She had joined them as part time checker in August / September, 1991 and had continued to work with them in the same capacity till about January, 1993. She was being paid Rs. 1,500/ per C.C. No. 20/11 36 of 119 month for this job. She, however, left this job because of final exams in April, 1993. She also left the job because she wanted to set up her own business. When she informed her employer about it, they offered her to work with them as Checker but since she had expressed to them her desire to set up her own business they had suggested that if she wanted she could work for them by doing their fabrication work on job work basis. She was also interested in taking up that kind of work from them keeping in mind that in case she were to set up larger business at any point of time, it would be better if she remains in touch with them. After her exams were over in April, 1993 she had tied up with a person known to her who was having a set up in Govindpuri itself and doing fabrication work. Thereafter she had started doing fabrication work for M/s La Sorogeeka through the said person.
42. In 1993 they had shifted to Lodhi Colony; therefore, she had started her Boutique in the barsati of the house. Her family friends, people from the neighbourhood and other known to C.C. No. 20/11 37 of 119 persons used to provide her work of designing and stitching clothes. Initially she had only one tailor and subsequently she had employed one more tailor. During this period as well she continued to have work for M/s La Sorogeeka. She continued to get this work till 2000. She was getting paid by M/s La Sorogeeka on the basis of the order which were was placed on her. She was earning from M/s La Sorogeeka anywhere in between from Rs. 2,000/ to Rs. 5,000/ per month. The work was given to her by way of kachha challan only and she was also being paid in cash. After this case was registered she had asked them to provide her the details of the payment and had collected those details from them and handed over the same to her husband for being submitted to his own Department as well as to CBI. She had identified the certificate issued to her by her employer M/s La Sorogeeka Ex. PW8.DXC1 wherein her income from 1993 to 1999 was shown as Rs. 2,31,280/.
43. She had next explained that at the time of marriage she had received shagun of around Rs. 16,000 - 17,000/ from C.C. No. 20/11 38 of 119 relatives and family members. After some days of the marriage, one of their family friend Master Charan Singh had visited them and suggested that there was a Housing Society in which some vacancies were available for membership and if she wanted she could take the membership of the said Housing Society in her name. Out of the said amount of Rs. 16,000 - 17,000/ she had given Rs. 15,000/for the membership of the said society for which there was a receipt issued to her. She had identified the receipt and also pass book of Maharishi Dayanand Cooperative Group Housing Society Ltd. Ex. P32 on record. She also stated to have applied for membership of another society, namely, The Uttar Pradesh Samaj House Building Society for which she had paid Rs. 5,000/ from her own savings. She had identified the receipt Ex. P30 issued for the payment of Rs. 5,110/ for the membership of the said society.
44. In respect of the plot purchased from Shri Dhir Singh she had deposed that her mother in law had paid Rs. 50,000/ in 1996 to Shri Dhri Singh for the purchase of the plot. He had also C.C. No. 20/11 39 of 119 asked his mother in law to make the remaining payment for the purchase of the said plot. At this she had issued a cheque of Rs. 70,000/ in favour of Shri Dhir Singh. She had handed over this cheque to his mother in law who had handd over the same to Shri Dhir Singh. There was an Agreement to Sell executed in the joint name of her mother in law and herself. According to her out of Rs. 70,000/, Rs. 25,000/ had been given to her by her husband and remaining amount was from her own savings. She also deposed about Rs. 50,000/being given to her by her father and her grand mother after about a month of passing away of her grand father.
45. She had deposed about the search conducted on 28.08.1998 by stating that the articles of the cost were being written the CBI officers of their own were writing the cost of the articles on the higher side despite their being given correct cost of the said articles. She had taken them to barsati where there were two paddle tailoring machines lying. There were also stitched clothes lying hanging on a stand and there was one C.C. No. 20/11 40 of 119 table lying there and also there were clothes pieces (waste cuttings) lying about. They, however, did not take notice of it. She had told that the stitched clothes were of the customers. This too was also not taken into account They were also informed that the money which was lying in the house had been returned by one Shri Banarsi Dass to her mother in law which he had taken from her by way of a bearing cheque earlier. Her mother in law demanded the money to be given to her but the CBI officials refused by saying that money would be returned to her in 67 days. On that day only about Rs. 6,000/ was returned to her.
46. According to her Shri P.K. Sharma from CBI had visited her residence once after the raid alongwith one female officer and they had visited the barsati and gone around her house. At that time she was taking measurement of a female customer and there were two tailors also working in the barsati. They had made inquiries from the tailors and from her. They had taken from her the records relating to th measurements which she used to take of the customers and other tailoring books and C.C. No. 20/11 41 of 119 diaries. She had identified the same in the court as Ex. PW8/DXd2 to D4. She had also identified her statement Ex. PW8/DXD5 which she had given to Shri P.K. Sahrma. She had further identified her Diploma from Internatonal Polytechnic for Women, South Extension Ex. PW8/DXD1, which was seized during the investigation. In respect of the income she had deposed that somewhere in the last of 1994 she had running a boutique at her residence in Lodhi Colony, Delhi . Initially she had income from it of around Rs. 25500 to Rs. 3000/ per month. Later on it increased over a period of time. In the year 1995 she had earned about Rs. 35,000/ after meeting of the expenses. Though she has not keeping the records but in the year 1996 her income must have gone up. Though according to her it was difficult to give any particular figure in that respect but in the year 1997 she must have earned Rs. 50,000/ and similarly more or less amount she must have earned in the year 1998. According to her she was not keeping any record of earning, therefore, it was a bit difficult for her to give such a figure.
C.C. No. 20/11 42 of 119
47. In respect of stitching of the clothes initially she was charging Rs. 60 to Rs. 150/ for a simple ladies suit depending on the nature of design and the kind of embroidery which was required to be done. It could be even higher if there was lining to be done by charing double the normal charges. According to her it continued to increase as per the market rates. In the year 1998 she must have charged minimum Rs. 100/ for simple suits depending upon the nature of work to be done and it could go upto Rs. 200 to Rs. 250/. Initially she used to have less work in the year 1994 and she only was to call the tailor twice in a week and later on she had employed two regular tailors, one of them was a Master Tailor, who used to do cutting etc. and also stitched clothes and other was her helper. On an averge she was stitching even 34 suits in a day. Depending on the season this number could increase.
DW10
48. Witness DW10 Shri Arvind Kumar, Lekhpal with the Govt. of Uttar Pradsh and posted at Tehsil Modinagar had deposed C.C. No. 20/11 43 of 119 that the Investigating Officer of this case had visited him and he had supplied tothe Investigating Officer certain documents viz. Ex. PW8/DXB3 (colly.) running into 3 pages. He had also identified his statement given to the Investigating Officer Ex. PW8/DXB2. His statement appears to be confined to the agricultural land which the accused owned alongwith others in the village Bhojpu, Tehsil Modinagar, District Ghaziabad under 2 khata Nos. 663 and 664. He had given the total land to be 9 bighas and 12 biswani in all. As per his testimony the land in Khata No. 663 had total number of 5 khatedars including the accused and the land in khata No. 664 had total number of 5 khatedars including the accused.
DW11
49. DW11 Shri Mahesh Pal was also from the Tehsil Modinagar where he was posted as Revenue Clerk. After seeing the documents Ex. PW8/DXA1 (colly.) he had deposed that this letter had been dispatched to Shri Alok Kumar C.C. No. 20/11 44 of 119 Inspector on 14.7.200 vide entry 1616 by Tehsildar Sh A.K. Lal. He had brought alongwith him copy of register by which the said letter had been dispatched. The same was exhibited as Ex DW11/A. He had also brought alongwith him the documents, which were sent alongwith the said letter i,e, Khatoni Register of Village Khanjarpur, Village Machhari and Village Bhojpur of different periods. The photocopies of the said relevant entries were taken on record and exhibited as Ex. DW11/B1 to B5, C1 & C2 and D1 and D2. He had also identified the orders of the Naib Tehsildar Ex. Ex. DW11/C2A in respect of transfer of the land vide serial No. 00393 of Khatoni of Village Machhari in the name of Madhwa Nand and three others from 30.06.2007 and also orders of the Naib Tehisldar of the same date Ex. DW11/D2A passed for transfer of land in village vide entry at serial No. 00878 in the name of Shri Madhwa Nand and others. DW12
50. DW12 Shri Tej Pal Singh who was posted as Chief Manager, Kotla Mubarakpur Branch of Punjab National Bank, C.C. No. 20/11 45 of 119 placed on record the statement of account of Smt. Rameshwari Devi i.e. mother of the accused from 26.12.1997 to 02.08.2000 certified under the Banker's Book Evidence Act Ex. DW12/A wherein it was shown that on 07.03.1998 an amount of Rs. 2 lacs was paid to Smt. Rameshwari Devi vide cheque No. 806. This account was stated to have been opened on 19.12.1978. He had placed on record the computerized information he had collected in respect of the said account Ex. PW12/B. He had stated that this account was lying dormant for long and probably the account holder had expired. Last time the pension was credited in the account on 28.10.2005.
HEARING OF SUBMISSIONS
51. I have gone through the record of this case as well as the written submissions submitted on behalf of accused. I have also heard Ld. PP for CBI as well as Ld. Defence Counsel.
52. The Ld. PP for CBI had submitted that the accused had by and large admitted the case of the prosecution with regard to C.C. No. 20/11 46 of 119 the assets found in his possession and his salaried income. According to him if the accused wanted to give explanation with regard to the assets found in his possession and if he wanted to bring on record that he had some income of their own from agriculture and his wife and mother had also some income than it was for the accused to establish the same. He had submitted that the expression "known sources of income" means the sources of income which were in the knowledge of the prosecution. If accused had any other income, other than known to the prosecution, then the burden to prove the same would be on the accused.
53. By and large the submissions of the Ld. Prosecutor is correct that the accused has admitted almost all the documents collected by the prosecution during the course of investigation and relied upon. The submissions of the accused, however, had been that the investigation had withheld a lot of information and documents which had been collected by the investigating agency itself and it had been selective in its approach in relying C.C. No. 20/11 47 of 119 upon the documents without giving any explanation as to why the documents which were in favour of the accused were not relied upon. It had also been submitted on behalf of the accused if all the documents had been taking into account than perhaps this chargesheet would not have been filed. He had pointed to the statement made by the investigating officer in the court that as far as the report of the investigating officer was concerned there was no case against the accused for being possessing assets disproportionate to the known sources of his income. Methodology
54. As per the case of the prosecution the accused was found to be in possession of assets to the tune of Rs. 7,70,702.36 disproportionate to the known sources of his income. The accused during the trial had admitted large number of documents related to his income as well as the items related to verifiable expenditure and the assets both movable and immovable. By and large the focus of the trial of this case had C.C. No. 20/11 48 of 119 been that the accused had provided explanation for the assets which were found during the course of the search at his residence and also had made reference to the fact that while calculating his income neither his income from agriculture nor the income of his wife including the cash gifts received by her wife at different occasions not taken into account though the assets in her name were counted as the assets belonging to him. The submission had also been made that the money belonging to his mother had also been counted as his despite the fact she had independent income of her own. Since there is not much of dispute in respect to the factual aspects of the matter I feel it to be appropriate that one may look at the defenses of the accused as to his income, income of his wife, explanation given by him as to various assets etc. It may also be noted here that he is not required to prove the same beyond reasonable doubt but just on the basis of preponderance of probabilities. Deduct such amounts from the value of disproportionate of assets shown in this case, in case the accused is able to establish the same and finally determine if C.C. No. 20/11 49 of 119 the accused has or has not been be able to account for the disproportionate assets alleged to have been found in his possession.
Membership of housing societies:
55. According to the item mentioned at serial no. E of the table of verifiable expenditure in the chargesheet, during the search there was a receipt of Rs. 15,000/ recovered in the name of the wife of the accused regarding the payment made for the payment of membership of a Group Housing Society named Maharishi Dayanand Group Housing Society, New Delhi. This document stand exhibited as P32. The explanation offered by the accused was that this amount was paid by the wife of the accused which she had received at the time of their marriage. He had drawn attention to the fact that their marriage took place on 10.02.1989 and this membership was acquired on 27.02.1989. Smt. Sushma Sharma was examined as Defence Witness DW9. She had deposed :
C.C. No. 20/11 50 of 119 "At the time of my marriage I was given shagun of around Rs. 16,000 - 17,000/ by our relatives and family friends. After some days of my marriage one of our family friend namely Master Charan Singh had visited us and had suggested us that there was a Housing Society in which the vacancies were available for membership and if we wanted we could take the membership of the said Housing Society in my name. Out of the amount of Rs. 16000 - 17000 which I had with me, I had given Rs. 15,000/ for the membership of the said Housing Society. There was a receipt issued for the same. I can identify the same if shown to me.
(At this stage document D41 is shown to the witness which is a receipt and also a pass book of Maharishi Dayanand Cooperative Group Housing Society Ltd. already Ex.P32) It is the same receipt which was issued after I had paid Rs. 15,000/ for the membership of the said Society."
56. Inspector Alok Kumar had also made inquiries in this regard from one Sh. Charan Singh Verma. Sh. Verma had also written a letter Ex. P31 to Insp. Alok Kumar wherein he had stated that he was the President of the society from 1987 to C.C. No. 20/11 51 of 119 1990. He was well known to Late Sh. Raje Lal Sharma (father of the accused M. N. Sharma who was a teacher) being a Teacher in a Government School. In February 1989 he had attended the marriage of the accused with Sushma. Since their Society was permitted to increase their membership, he had offered membership of society to Smt. Sushma as she had sufficient cash received at the time of marriage as shagun etc. and on his persuasion she had given him Rs. 15,110/ in cash.
57. This explanation given does not appear to me to be far fetched. On the contrary it appears to be quite plausible. It is very common that at the time of the marriage a bride receives cash gifts from relatives, friends etc. and there is generally no account kept of such cash gifts. The cash gifts stated to have been received in the range of Rs. 16,000/ to 17,000/ is reasonable and thus believable. I am accordingly accepting this explanation. Let this amount be deducted from amount of disproportionate assets.
C.C. No. 20/11 52 of 119 Excess valuation of household articles:
58. It was submitted during the course of arguments that the valuation of the household articles during the time of the searches were deliberately kept on higher side. It was submitted that the fact had also been confirmed by the independent witnesses those who had been examined in this case. The total amount as to the valuation of the household articles as per the observation memo is Rs. 1,69,255/.
59. It may be noted that for house hold articles it is always not possible to produce the receipts/bills and the valuation of such articles is made on the basis of the assessments made in consultation of the members of the CBI team, independent witnesses and family members. Usually the value as to the determination of such articles is a matter of assessment.
70. The independent witness PW1 Sh. Ashwani Kumar Jha had deposed C.C. No. 20/11 53 of 119 "At the time of valuing the cost of the articles which were recovered, the CBI officials used to consult us as well as the family members and mention the value of the articles by adding Rs. 100/ or Rs. 200/ therein. For example I would explain that there was an old refrigerator lying in the barsati. According to us the value of the said refrigerator must have been Rs. 400/ to Rs. 500/, but the CBI officials had recovered the value of the same as Rs. 1,000/."
71. On the same aspect other independent witness PW10 Sh. Mangesh Kumar had deposed:
"Q. (The attention of the witness is drawn to the rates being Mentioned in Ex. PW1/A.) Can you tell the Court If these rates had been written in your presence?
Ans. The rates had been written in my presence. As the articles were being recovered, the rates of the said articles were being asked from the lady of the house (wife of the person whose house was being searched) and also from us and after consulting the lady of the house and also us the rates were mentioned.
I would like to say that there was, however, some C.C. No. 20/11 54 of 119 conflict with regard to the rates being mentioned by the lady and the rates being mentioned in the said document. Whatever rates the lady was giving the CBI officials were recording the rates higher than that. The rates, which were being mentioned were 2030% higher than the rates being quoted by the said lady."
72. Thus in my view the valuation of the household articles mentioned in the observation memo cannot be trusted and going by the statements of the independent witnesses in my view they could be said to be 20% to 30% higher then their actual value. To be on the safe side I am taking this value higher by 20%. The same would come out to be Rs. 33,851/. Let this amount be deducted from the value of the disproportionate of assets.
Recovery of cash of Rs. 2,31,629/
73. As per the seizure memo there was a cash of Rs. 2,31,629/ recovered during the search from the house of the C.C. No. 20/11 55 of 119 accused. The case of the defence is that out of the said money Rs. 2,00,000/ belonged to the mother of the accused Smt. Rameshwari Devi. There was a loan of Rs. 2,00,000/ given to one Sh. Banarsi Dass, a friend of the father of the accused, by his mother by a bearer cheque of Rs. 2,00,000/. The amount of Rs. 2,00,000/ recovered during the search was the same amount which was returned to the mother of the accused a couple of days before the search for being deposited in her account. It was also submitted by the defence that this is a defence which was invented not later on but a defence which was there from the very beginning. Even during the search the mother of the accused had claimed that the said money belonged to her.
74. After going the record I find that the cross examination of the witness PW 10 Sh. Mangesh Kumar would show that the mother of the accused even at the time of the search claimed this money to be her own. The relevant part of the cross examination of this witness reads as under: C.C. No. 20/11 56 of 119 "Q. Please look at the entry at Sl. No. 70 of Rs. 2,31,629/ in Ex. PW1/B and informed this court as to whether the amount mentioned herein of Rs. 6,629/ was returned to the lady of the house by the CBI officials of their own or she and demanded the same?
Ans. The old lady in the house was quarreling by the CBI officer of old age claiming the money to be her own and was asking to return the same. I do not remember the exact amount but something like Rs. 6,000/ had been demanded by the lady of the house to be given to her for household expenses and the same had been accordingly given by the CBI officials to her.
Q. Would it be correct to say that the old lady in the house was the mother of the person in whose house the search was being conducted and she was claiming Rs. 2 lacs to be her money and asking the same to be given to her?
Ans. It is correct."
75. It may be noted that this is not in dispute that the mother of the accused was financially independent. Her husband was a government servant and after his death she was receiving family C.C. No. 20/11 57 of 119 pension. It had also been admitted by the IO Insp. Alok Kumar where he had stated that:
"It is correct that father of the accused was a Teacher. It is correct that Smt. Rameshwari Devi was receiving family pension after the death of her husband."
76. It is also evident from the statement of Sh. Tejpal Singh who had appeared on behalf of the bank that an amount of Rs. 2,00,000/ was collected by a bearer cheque by Sh. Banarsi Dass from the account of Smt. Rameshwari Devi i.e. the mother of the accused on 07.03.1998.
77. During the investigation Insp. Alok Kumar had recorded the statement of Sh. Banarsi Dass who had stated the same thing to the IO. It was informed that unfortunately said Sh. Banarsi Dass had expired.
78. In the same sequence the defence had examined witness Sh. K. K. Karnani who had also given his statement during the C.C. No. 20/11 58 of 119 investigation to the effect that the said Sh. Banarsi Dass had taken a loan from him of Rs. 2,00,000/ in August 1988. According to the defence Sh. Banarsi Dass had returned the money to Smt. Rameshwari Devi a couple of days before conducting the raid.
79. DW8 Sh. K. K. Karnani during his testimony had deposed that he had a business by the name of M/s Malav Exports. Sh. Banarsi Dass was his friend. In August 1998 he had requested for a loan of Rs. 2,00,000/ which he had advanced to him. This loan was returned to him by the said Sh. Banarsi Dass within a period of 2 months. His statement too was also recorded during investigation. He had identified the said statement as PW8/DXD10. He had handed over to CBI cashbook of his company, copy of ledger and copy of memorandum of articles and also by a forwarding letter signed by him on behalf of company. He had identified the forwarding letter Ex. PW8/DXD11 and also the other documents Ex. PW8/DXD12 and 13. I have seen the copy of the cash book from 01.08.98 to C.C. No. 20/11 59 of 119 31.10.98 which shows the advance of Rs. 2,00,000/ been given by M/s Malav Exports to Sh. Banarsi Dass and it being returned to the company on October 22. This statement was signed by Sh. Arun Kumar Aggarwal, Chartered Accountant after verifying from Books of Accounts of M/s Malav Exports. In this context it may be noted that the raid was conducted at the residence of the accused on 28.08.98.
80. The statement of Sh. Banarsi Dass Ex. PW8/DXD9 was admittedly recorded by the investigating officer on 28.07.2000 wherein he also had made reference to the fact that in August 1998 Smt. Rameshwari Devi had asked him to returned the money and he had then borrowed the money from Sh. K. K. Karnani i.e. DW8 on 18.08.1998 and later on 25/26.08.1998 he had returned the money to Smt. Rameshwari Devi. He had returned this money to Sh. Karnani on 22.10.1998. He had supplied the copy of the pass book of his account no. 038232 of PNB, Lodhi Road where there was an entry dated 17.10.1998 that he had received Rs. 2,00,000/ by cheque from a finance C.C. No. 20/11 60 of 119 company he had deposited the same on 22.10.1998. He had withdrawn the said Rs. 2,00,000/ through his nephew Sh. Neeraj Kakkar for being returning to Sh. K. K. Karnani i.e. M/s Malav Exports Pvt. Ltd. The investigating officer had cross verified these facts from Sh. K. K. Karnani as is evident from the statement of Sh. K. K. Karnani he had recorded Ex. PW8/DXD10. Sh. Alok Kumar, IO PW8 was examined in the court. It appears that the only reason to suspect this entire transaction was that "The money was returned in cash and there was no necessity for him to brought so much of money in cash all the way from Faridabad where he was residing". I find this reason to be a little far fetched to disbelieve the entire transaction between Smt. Rameshwari Devi and Sh. Banarsi Dass and between Sh. Banarsi Dass and Sh. K. K. Karnani specifically when all these transactions were backed by relevant entries in the books of accounts of M/s Malav Exports and the account of Smt. Rameshwari Devi. There could be reason to deny this transaction if his observation had been that these transactions were fake and only created subsequently to suit the C.C. No. 20/11 61 of 119 defence of the accused. It is a matter of record that these entries were in existence prior to the date of the raid. Moreover Sh. Banarsi Dass in his statement not only said that he had borrowed the money from a finance company by way of a cheque to return Rs. 2,00,000/ which he had borrowed from Sh. Karnani i.e. M/s Malav Exports. This is an angle which should have been explored by the investigating officer that if he actually had taken the money from a finance company on 22.10.1998 and withdrawn the same to M/s Malav Exports on 22.10.1998 itself as it would have lent credibility to his statement that since he was under pressure to return the money to Smt. Rameshwari Devi he had borrowed the money from M/s Malav Exports and when he was under pressure to return the money to M/s Malav Exports he had further borrowed the money from a finance company through a cheque. It is unfortunate that Sh. Banarsi Dass had expired during the course of time and thereby the accused lost a opportunity to produce him as a witness in the court.
C.C. No. 20/11 62 of 119
81. Coming back to the statement of witness Sh. K. K. Karnani recorded in the court, it was submitted by Ld. PP for CBI that his statement cannot be believed as it is difficult to imagine that on 04.10.2000 he was called by CBI he could arrange to took out the statement from the records and then getting it verified from Chartered Accountant and submitted the same to CBI on the same day. In his cross examination this witness had stated that :
"I do not remember at what time I had visited the CBI office on 04.10.2000 . . . . . . . . . . It is, however, correct that I must have visited the CBI office during the working hours that is to say from 10 A.M. to 5 P.M. The office of my Company used to open at 10 A.M. I cannot say now at what time the said forwarding letter Ex.PW8/DXD11 had been typed in my office. It was typed by the typist employed in the Company, though I had given him a rough draft for typing written by me in my own hand. The name of Sh. Alok Kumar Inspector on the covering letter was mentioned by me in the draft which I had prepared for being typed by the typist.
Q. Would it be correct to say that you had visited your Chartered Accountant with the documents Ex.
C.C. No. 20/11 63 of 119 PW8/DXD12 and Ex. PW8/DXD13 and had got the same certified by him?
A.: The Chartered Accountant had visited my office. He had gone through the computerized records where this record was maintained. He had taken out the print outs and after having satisfied himself, had attested the same. It is not noted on Ex. PW8/DXD12 or Ex. PW8/DXD13 that the computer from which the print out was taken was in order. (Vol.) It was not a practice to note such a thing on any such certification.
The accounts of the company were maintained only on the computer and not manually.
Q.; Was it not possible to manipulate the records relating to the accounts of the Company before out the print out?
A.: The accounts of the Company on the computer were from the day one and it was not possible to manipulate the record of the Company for a particular period."
82. I do not find any thing unusual in getting the statement prepared on the basis of record and getting it verified from the C.C. No. 20/11 64 of 119 Chartered Accountant. It is not such a task which could not have been accomplished in a short duration of time. It is apparent that if some one receives a notice from CBI he would show a level of urgency to supply the information required for. On the contrary the supplying of information in such a short period of time would negate the chances of manipulation. He could have supplied the information on such a short notice only if it was readily available with him. Had he taken longer period to supply the information there could be a case of allegation against him of manipulating the records and then supplying the information. I find nothing in the cross examination of the witness which can discredit his testimony. Even in the absence of the examination of the witness Sh. Banarsi Dass or Smt. Rameshwari Devi in court though their statements had been recorded under section 161 Cr.P.C gives sufficient reasons to say that in all probability the money was advanced by Smt. Rameshwari Devi to Sh. Banarsi Dass who had returned the same in cash a few days before the raid on 28.08.1998 after having borrowed Rs. 2,00,000/ from Sh. K. K. Karnani on 17.08.1998. I accordingly conclude that the C.C. No. 20/11 65 of 119 accused had been able to established that out of the total Rs. 2,31,629/, Rs. 2,00,000/ belonged not to the accused but to his mother Smt. Rameshwari Devi. This amount be deducted from the disproportionate of assets of Rs. 7,70,702.36. Income of Smt. Sushma Sharma wife of the accused.
83. Ld. defence counsel had submitted that CBI while submitting the chargesheet had concealed the income of the wife of the accused though it was in possession of ample proof that she was a professional fashion designer and was running a boutique.
84. I have seen the record and have find that on the record there is a certificate on record Polytechnic for Woman, New Delhi Ex. PW8/DXD1 certifying that Ms. Sushma Sharma i.e. the wife of the accused had been awarded diploma in fashion designing in April 1993. This certificate was supplied by Smt. Sushma Sharma to the Investigating Officer Sh. P. K. Sharma. It C.C. No. 20/11 66 of 119 is not the case of the prosecution that this certificate collected during the investigation was fake or false. Thus it can be safely said that Smt. Sushma Sharma wife of the accused was having a diploma in fashion designing from Polytechnic for Woman, New Delhi in April, 1993. It was submitted by the Ld. PP for CBI that merely holding a diploma in fashion designing is not a guarantee that a person holding such a diploma would be running necessarily a boutique or doing some business of this nature. I am of the view that if a person is holding such a diploma than odds are in favour that such a person would also be utilizing his/her professional qualification for earning. May be setting up her own business relating to fashion designing like a boutique or getting an employment somewhere.
85. In any case there is enough material on record to show that during the period when the raid was conducted at the residence of the accused she was running a boutique from the barsati of her residence.
C.C. No. 20/11 67 of 119
86. First of all one finds that in the observation memo itself, there is a mention of a sewing machine having been found in the barsati of the said house and other items like a cloth hanging stand, a table fan etc. The relevant part of the observation memo Ex. PW 1/A reads as under: "IX Barsati
1.One sewing machine make merit 1980 Rs. 400/ Purchased
2.One cloth hanging stand 1989 Rs. 100/ "
3.One table fan local make 1965 Rs. 100/ "
4.One dari 1994 Rs.300/ "
5.One old Godrej refrigerator 1980 Rs.1000/ Purchased 165 liters (out of order)"
87. Then there is also a statement of the witness PW1 which clearly shows that there was some business of stitching of garments been run from the barsati. This witness had deposed:
"(At this stage the attention of the witness is drawn to page no. 10 relating to Barsati of Ex.PW1/A). It is correct that as mentioned from Sr. No. 1 to 5 articles were found in the barsati of the house. Although I C.C. No. 20/11 68 of 119 had just briefly seen the barsati but my impression was that some tailoring work was being done in the barsati. I had also noticed some cloth shreds (katerne) lying about in the barsati. The place was looking dirty. By dirty I mean that there were cloth waste which was lying about. It is correct that I had noticed that in the barsati on the cloth hanging stand some stitched garments were also hanging. Although Mrs. Sharma had said a lot of things, but I recollect that she was getting the tailoring work done in the barsati with the help of tailor. We had, however, not found any tailor at that time. We must have reached the barsati during the search at about 7.308.00 P.M."
88. The fact that there was no tailor found in the barsati at the time of the search can be attributed to the fact that it was being searched at 7.30 - 8.00 pm and in all probability the tailor must have left by that time. The fact that this witness had visited the barsati had been corroborated by the other independent witness PW 10 Sh. Mangesh Kumar who had deposed that he had not visited the barsati during the search but it was the other witness i.e. PW 1 Sh. Ashwani Kumar Jha who was taken to the barsati C.C. No. 20/11 69 of 119 by a lady officer and a sikh officer of CBI, part of the raiding team. He had deposed:
"There was also a barsati on the terrace of th first floor. I had not visited the barsati during the search. The lady officer and the sikh officer from the CBI had taken Shri Ashwini Kumar Jha to the barsati whereas I had remained in the flat with the other officers who were conducted the search."
89. Secondly after this raid had been conducted on 27.08.1998, the investigating officer Sh. P. K. Sharma to whom this investigation was handed over had visited the residence of the accused and had recorded the statement of one Munna tailor Ex. PW8/DXD6 who had confirmed that he had been working as tailor with Smt. Sushma Sharma. He, however, was not examined by the defence in the court as according to the accused his address was not traceable but the testimony of Sh. P. K. Sharma in this respect is sufficient to show that it was clearly informed by this person that he was working as tailor with Smt. Sharma. He had deposed in this regard as under: C.C. No. 20/11 70 of 119 "It is correct that during the investigation I had recorded the statement of one Shri Munna, Tailor. The said statement bears my signature at point A. The statement is already Ex. PW8/DXD6. The statement which I had recorded was correct in the sense that I had recorded the statement in the manner he had narrated the same. On the day I had recorded the statement of Shri Munna I had also personally interrogated him and during the interrogation also he had confirmed that he was working for Smt. Sushama Sharma."
90. It is obvious that he did not find anything suspect in the statement of said Sh. Munna.
91. One may further notice that on his visit Smt. Sushma Sharma had not only supplied to him the above diploma in fashion designing but also one measurement book Ex. PW8/DXD2, order book Ex. PW8/DXD3 and income tax return. It also does not appear to me from his statement that he found the said documents to be not genuine. Though he had collected the income tax return but same was not supplied to the court but C.C. No. 20/11 71 of 119 the one order book and one measurement book were submitted to the court. (It has not been explained that as to why the Income Tax Return was not supplied after a direction had been given to place on record all the unrelied documents vide order dated 20.01.2010).
92. Thirdly, Smt. Sushma Sharma too had deposed in the court as witness DW9 that she was running a boutique from her residence. There is nothing much in the cross examination of this witness to disbelieve her.
93. Fourthly the accused had also examined one Sh. Bhagwan Singh as DW7 who according to him used to visit the boutique of Smt. Sharma and collect clothes from her for embroidery and also DW2 Smt. Anju Chopra and DW4 Smt. Raj Sharma who deposed that they used to get clothes stitched from Smt. Sharma. Though these witnesses had not produced any document of having clothes stitched from Smt. Sushma Sharma or Bhagwan Singh having received any money from Smt. C.C. No. 20/11 72 of 119 Sharma but I am not inclined to discard their testimony on this ground. Neither the accused nor his wife Smt. Sushma Sharma has claimed that she has been working on a large scale and most of her customers were apparently from their neighborhood. She had deposed that initially in the year 1994 she had less work and she used to call tailor twice in a week and later on as her work had increased she had employed two tailors. One of them was Master tailor who used to do cutting etc. and also stitch the clothes and other was his helper. On an average she used to stitch some times even 34 suits in a day. I am of the view that if a person is operating on such a small scale and that too from a small portion of her flat and where largely the clientale was confined to some known to persons the maintenance of formal records was not expected.
94. In the overall circumstances where the sewing machine was found lying in the barsati and also newly stitched clothes fund having at the time of season the testimony of the witnesses Smt. Anju Chopra and Smt. Raj Sharma that they were used to C.C. No. 20/11 73 of 119 get stitched clothes from Smt. Sushma Sharma can be believed.
95. In the above given circumstances in my opinion it can safely be said that Smt. Sushma Sharma was running a boutique from her residence during the period from 1994 to 1998. That is to say that in my opinion in all probability the wife of the accused had earnings of her own from the boutique she had running from her residence which in my view should have been worked out by the Investigating Officer to be taken into account at the time of arrival of final figure of disproportionate of assets. The same, however, has not been done in this case. On the contrary the investigating agency had been negligent to the extent that it had lost the copies of income tax return supplied by the wife of the accused during the course of the investigation which could have given some idea about her income during the said period. In her deposition in the court she had deposed about her income as follows: "Q.: Can you tell the court how much was your income from the boutique you were running?
C.C. No. 20/11 74 of 119 A.: I had started this boutique somewhere in the last of 1994. It is still running. My earnings from this boutique initially were around Rs. 2500/ to Rs. 3000/ per month. Lateron it had increased over a period of time. In the year 1995 I must have earned Rs. 35,000/ after meeting all the expenses. In the year 1996 I must have earned around the same amount. (Vol.) I was not keeping any account of my earnings, therefore, it is difficult to give any particular figure. In 1997 I must have earned around Rs. 50,000/. In the year 1998 it could be Rs. 50,000/ or may be less or more. I was not keeping a formal record of my earnings, therefore, it is a bit difficult for me to give such a figure. (Vol.) I had never thought that one day I would be required to give information as to how much I was earning during the said period."
96. It has already been observed above that she was a running a boutique at her residence though on a very small scale. Considering the overall pictures she had given of her earning in the court it can be safely said that he must have been earning Rs. 2,500/ to Rs. 3,000/ per month. In the absence of the precise figures I take it that she was earning Rs. 2,500/ per month on an average after meeting all the expenses on an C.C. No. 20/11 75 of 119 average. According to her testimony she had started her boutique some time in last of 1994. I take it as December 1994. Thus from December 1994 till August 1998 in my opinion it can be said that in all probability she must have earned at least Rs. 1,12,500/. Since all the articles found in her house and the immovable property jointly purchased by her with her motherin law Smt. Rameshwari Devi have been attributed to the accused it would be appropriate to add this income in the income of the accused himself and consequently deduct this amount from the figure of disproportionate of assets.
Working with/for M/s La Sarogeeka
97. Smt. Sushma Sharma had deposed in her deposition about her employment with M/s La Sarogeeka initially and then also doing fabrication work for them. Her deposition in this regard is as under: "In the year 1991 I had joined Two years Diploma course at International Polytechnic for Women at South Extension, Delhi for Fashion Designing. I had C.C. No. 20/11 76 of 119 completed the same in the year 1993. As part of the course we were required to visit different export houses and different places to know and learn about the embroidery work, stitching work etc. As a part of this exercise I had visited M/s La Sarogeeka at Okhla, Delhi and had been at their workshop at Govindpuri for about a week. They were in need of a "checker". Since I was undergoing the regular diploma course, I had joined them as part time "checker". I had joined them as part time checker in August/September 1991 and had continued to work with them in the same capacity till about January 1993. They used to pay me Rs. 1500/ per month for this job. I had left this job because I had final exams in April 1993. One another reason for leaving this job was that I was interested in having my own set up. I had informed this fact to them as well. They had offered me to work with them as Designer. Since I had expressed to them that I wanted to have my own set up, they had suggested that if I wanted I could do work for them even as part of that independent set up i.e by way of doing their fabrication work. I was also interested in taking up that kind of work from them keeping in view that in case at any point of time I wanted to have a larger set up, I should remain in touch with them. After April, 1993 i.e. after my exams were over, I had tied up with a person known to us who was having this set up in Govindpuri itself and who was doing C.C. No. 20/11 77 of 119 fabrication work. Thereafter, I had started doing the fabrication work of M/s La Sarogeeka through the said person.
In 1994 after we had shifted to Lodhi Colony, I had started my own boutique in the barsati of our house. My family friends, people from the neighborhood and other known to persons used to provide me work or designing and stitching clothes. Initially I had only one tailor and subsequently I had employed one more tailor. I still continued to have work from La Sarogeeka. I continued to work for them till 2000. I was paid by La Sarogeeka on the basis of the orders which were placed to me. M/s La Sarogeeka was in the business of furnishings and, therefore, they used to place orders for doing the embroidery work etc. of bed sheets, table covers, cushion covers etc. I used to earn from this business from M/s La Sarogeeka anywhere in between from Rs. 2000/ to Rs. 5,000/ per month. Whatever work was given to me it was generally by way of kachha challan only and I was made payments also in cash, however, after this case registered, I had asked them to give me the details of the payments they had made to me over a period of time, I had to do it because I was not maintaining the records of the payments which were being made to me. I had taken the said details of the payments and handed over to me my husband who had submitted the same to his C.C. No. 20/11 78 of 119 own Department as well as to CBI. I can identify the same if it shown to me.
(At this stage document Ex. PW8/DXC1 page no.60 and 64 is shown to the witness) The certificate at page no. 60 of Ex.PW8/DXC1 is the cerificate which was given to me showing that I was working with M/s La Sarogeeka International at a salary of Rs. 1500/ per month from August 1991 to January 1993. The document at page no. 64 of Ex.PW6/DXC1 would show that during the period from 1993 to 1999 I had received in all Rs. 2,31,280/ from La Sarogeeka International for the job work of stitching, embroidery etc. of cushion covers, table clothes and other items."
98. Her testimony in this regard had been supported by defence witness DW5 Sh. Pankaj Goel. He was apparently the Prop. of M/s La Sarogeeka International. He had identified the certificate at page no. 60 of Ex. PW8/DXC1 (coll.) which he had given to Smt. Sushma Sharma for having work with him as a checker and also the certificate at page no. 64 of Ex. PW8/DXC1 (coll.) for payments being made to her from 1993 to 1999 for undertaking work of stitching, embroidery etc. of C.C. No. 20/11 79 of 119 cushion covers, table covers etc. for M/s La Sarogeeka. His testimony with this regard is as under: "I know Mrs. Sushma Sharma. She was working with our firm as a Checker. Her job involved checking the fabricated home furnishing items before they were finally packed. Although I do not remember now, but as per the document at page no.60 Ex.PW8/DXC1 (collectively), she was getting Rs.1500/ as the salary from us for which I had also given her this certificate. This certificate bears my signatures at point A. This certificate is correct. It must have been issued after checking the records. As a Checker she had worked with me for about two years during the period 1991 to 1993 as I can see from this certificate. She had thereafter started working of her own, in order to support her, we had also started giving her some fabrication work, for which we used to make her payment depending upon the nature of work which was given to her and its quantity."
99. Besides the above certificates of 15.07.2000 and 17.07.2000 showing that Smt. Sushma Sharma was employed as a part time checker from 1991 to 1993 and she was drawing C.C. No. 20/11 80 of 119 a salary of Rs. 1,500/ per month during the said period and the other certificate showing that she was paid Rs. 2,31,280/ from 1993 till 1999, there is no other record to show either that she was employed with M/s La Sarogeeka or she had done any job work for them. According to the Ld. PP for CBI, the accused had failed to produce any books of accounts or vouchers in order to establish this fact. As per the submissions made by the Ld. PP for CBI in the absence of the primary records, the said certificates cannot be accepted on their face value. He had also submitted that apparently these certificates had been provided after the raid just to support the case of of the accused. When the witness Sh. Pankaj Goel was particularly questioned about the availability of the original records he had deposed that the only criteria for them for preserving records was if the records were legally required or not. If they were not legally required they could be destroyed. He could nor produce any record in support of any payment being made to La Sarogeeka, in support Smt. Sushma Sharma in her testimony had admitted that the said certificates were issued to her on her request. She C.C. No. 20/11 81 of 119 had deposed that :
"Whatever work was given to me it was generally by way of kachha challan only and I was made payments also in cash, however, after this case registered, I had asked them to give me the details of the payments they had made to me over a period of time, I had to do it because I was not maintaining the records of the payments which were being made to me."
100. This fact had also not been denied by Sh. Pankaj Goel. In his testimony he has deposed "It would be correct to say that these details have been provided on the request made by Smt. Sushma Sharma".
101. In the statement she had given under section 161 Cr.P.C she had not made any reference to her having employed part time or having worked with M/s La Sarogeeka. It appears to be a later introduction. I also find that in one of the documents which is a LIC Policy the name of Baby Veenu of 25.08.1992, the age of baby Veenu has been given to be 2 years. I find it C.C. No. 20/11 82 of 119 extremely hard to accept that with such a small baby at home she could have found time to undertake a part time job after her study hours. In any case I would have liked some primary evidence being produced in order to established that Smt. Sushma Sharma had worked as a part time checker with M/s La Sarogeeka during the period August 1991 to January 1993. The certificate of part time employment and the certificate of payment being made to Smt. Sushma Sharma on account of job work being done are of the year 2000. I am sure the said primary documents on the basis of which the said certificates being issued must have been available with M/s La Sarogeeka because it is only on the basis of the said documents the said certificates could have been issued. It is not clear that what prevented M/s La Sarogeeka to retain the primary documents related to the said certificates specially when they were issued on the request of Smt. Sushma Sharma knowing that they could be utilized as evidence in the court. Thus I find that the evidence in terms of the said certificates is inadequate to reach the conclusion that she had any income from M/s La Sarogeeka for C.C. No. 20/11 83 of 119 doing any job work for them or she had worked part time with them at any time.
Immovable Assets:
102. As per the Charge Sheet the accused was found in possession of a plot measuring 550 square yards in Village Saidullajab, Teh. Mehraulli, New Delhi. The value of this land has been given to be Rs. 2 lacs.
103. As per the documents on record Ex. PW7/A, PW7/B, PW7/C and Ex. P48 there was an agreement to sell executed between Smt. Rameshwari Devi that is the mother of the accused and Smt. Sushma Sharma that is the wife of the accused with regard to a plot of land at Village Saidullajab, Teh. Mehraulli, New Delhi. The receipt of Rs. 2 lacs Ex. PW 7/B shows that the seller Sh. Dhir Singh (PW7) had received Rs. 2 lacs from Smt. Rameshwari Devi and Smt. Sushma Sharma. He had given the details of the sale as under: C.C. No. 20/11 84 of 119 "1. Rs. 70,000/ (Rupees Seventy Thousand only) vide Cheque No. 200370, dt. 14/8/96, drawn on P.N.B Lodhi Colony, Delhi.
2. Rs. 80,000/ (Rupees Eighty thousand only) vide pay order no. dated drawn on State Bank of Patiala, Defence Colony, New Delhi.
3. Rs. 50,000/ (Rupees Fifty thousand only)."
104. During the investigation the Investigating Officer Shri P. K. Sharma had interacted with Smt. Rameshwari Devi and had recorded her statement in this regard. In his crossexamination Sh. P.K. Sharma had stated "It is correct that I had recorded the statement of Smt. Rameshwari Devi which is already Ex. PW8/DX8. It bears my signatures at point A. I had recorded the statement in terms of the narration given by her. I had not added anything in it from my side".
105. In her statement to Shri P.K. Sharma U/s 161 Cr.P.C. Smt. Rameshwari Devi had stated "during 199192 Shri Dhir Singh of Village Saidullajab, New Delhi had carved out an agricultural C.C. No. 20/11 85 of 119 land into smaller plots. Shri Dhir Singh was having General Power of Attorney to sale the plots. So, I approached him and paid an advance of Rs. 50,000/ in cash from my resources from my Account No. 746 Punjab National Bank, Kotla on 29.10.1993 for one plot measuring about 550 square yards. The plot was agreed to be sold for Rs. 2 lacs and Shri Dhir Singh had agreed to accept the consideration in installments. In about MayJune 1996 Shri Dhir Singh insisted for payment of balance amount and accordingly I approached my daughterinlaw Smt. Sushma to arrange some money and she paid Rs. 70,000/ by drawing from her Account No. 48383 maintained in Punjab National Bank, Lodhi Road. The rest of the money was paid by me. Consequently the plot was acquired and agreement to sale was executed jointly in my name and Sushma Sharma. The GPA was also executed in name of Sushma Sharma to protect our interest in the said plot."
106. Shri Dhir Singh was examined as a witness on behalf of the prosecution in this case he had identified the agreement to C.C. No. 20/11 86 of 119 sell Ex. PW7/A, Ex. PW7/B and EX. PW7/C i.e. the Agreement to Sell, his affidavit and the receipts with regard to Rs. 2 lacs being received by him. He had deposed in the Court about the receipt of the money as follows:
"Initially I had received Rs. 50,000/ before the execution of above agreement to sell in the year 1993, after this agreement to sell had been executed. I had received a cheque of Rs. 70,000/ and also separately received a pay order in the sum of Rs. 60,000/ and another cash of Rs. 20,000/".
107. He had explained that in the receipt the pay order which had been given to him was mentioned as Rs. 80,000/ but in fact he received a pay order of Rs. 60,000/ and a cash of Rs. 20,000/. He had brought to the Court a certificate issued by State Bank of Patiala showing that on 01.07.1996 there was a pay order issued from the Account of Smt. Rameshwari Devi in his favour for Rs. 60,000/. He had placed on record a photocopy of the certificate issued by the Bank, Mark W1.
108. At another stage of his examination he had again repeated C.C. No. 20/11 87 of 119 "The initial payment of Rs. 50,000/had been given by Smt. Rameshwari Devi. She had also given to me a pay order of Rs. 60,000/ and also cash of Rs. 20,000/". She had said she was finding it difficult to arrange for the entire money, therefore, she was giving me a cheque of Rs. 70,000/from the Account of her daughterinlaw Smt. Shushma."
109. I have seen the crossexamination of this witness by Ld. PP for CBI and I find that in the entire crossexamination there is no reference to the fact that the money which was given to Shri Dhir Singh did not belong to Smt. Rameshwari Devi but to the accused. The line of crossexamination was mainly based on the fact that in the receipt the amount of pay order had been shown to be Rs. 80,000/ and not Rs. 60,000/ which he had explained by saying that it was a mistake and realizing this mistake he had visited Smt. Rameswari Devi and had taken her to the bank from where he had taken the certificate Mark W1.
110. After the above statement of Smt. Rameshwari Devi had C.C. No. 20/11 88 of 119 been recorded by the Investigating Officer Shri P.K. Sharma. It was his duty to have probed the truth before attributing the money spent by Smt. Rameshwari Devi towards the purchase of the said plot to the accused. In fact this is an exercise which was neither taken by the Investigating Officer Shri P. K. Sharma nor by the witness Inspector Alok Kumar who had taken over the investigation from Shri P.K. Sharma.
111. I am of the opinion that it was for the prosecution to have proved beyond reasonable doubt that the money spent by Smt. Rameshwari Devi for the purchase of the said plot belonged not to Smt. Rameshwari Devi but to the accused. It is only thereafter the accused could have been asked to explain how had he acquired the said property in the name of his wife and mother or he had funded his mother for the purchase of the said property. There is, however, not even an attempt on the part of the prosecution to establish the fact that the money stated to have been given by Smt. Rameshwai Devi did not belonged to her but to the accused. It is not the case of the prosecution itself that C.C. No. 20/11 89 of 119 Smt. Rameshwari Devi did not have any regular income of her own or she was not in a position to acquire the said property without the money being provided by the accused.
112. I am of the view in the above circumstances the prosecution has not been able to establish that the amount of Rs. 1.30 lacs stated to have been given by Smt. Rameshwari Devi to Shri Dhir Singh for the purchase of the said plot did not belong to Smt. Rameshwari Devi but the accused. In my opinion, therefore, the said amount of Rs. 1.30 lacs needs to be deducted from the Disproportionate Assets. Since, the benefit of the income of Smt. Sushma Sharma has already been given above by deducting her income from the Disproportionate Assets there is no necessity of deducting the amount of Rs. 70,000/ stated to have been spent by Smt. Sushma Sharma from the Disproportionate Assets.
Receipt of Rs. 50,000/ at the time of death of her grandfather by Smt. Sushma Sharma: C.C. No. 20/11 90 of 119
113. It was submitted on behalf of defense that soon after the death of the grandfather of the wife of the accused as per the wishes of her grandfather Rs. 50,000/ had been given to her as well as Rs. 50,000/ had been given to her mother and her aunt (Mausi).
114. Obviously, there was no written record of this cash gift being given. In order to establish this fact the defense had examined the grandmother of the wife of the accused as DW1. She had stated that her husband had passed away about 18 years back and had given Rs. 50,000/ each to their two daughters namely Urmila and Geeta and also to their granddaughter Sushma. She, however, had added that this money was given about 34 years before he had passed away and this money was not given in her presence. According to her he had given this money to them himself.
115. Witness DW3 the brotherinlaw of the accused i.e. brother of the wife of the accused had deposed that his late C.C. No. 20/11 91 of 119 father Sh. Surinder Kumar as per the wishes of his grandfather had given Rs. 50,000/ to Smt. Sushma Sharma and also to Smt. Urmila and Smt. Geeta. This money was given in presence of the family members including himself. He had tried to explain that his grandmother had appeared before this Court is 99 years of age, she suffers from memory lapses. She even forgets days or the weeks and generally remains sick. It was submitted on behalf of the accused that considering the age the deposition of his grandmother DW1 that the money was given 34 years prior to the death of her husband and that too not in her presence may be ignored and instead the deposition of the witness DW3 may be believed.
116. As has already been noted above that there is no documentary proof of this money being given to Smt. Sushma Sharma. The proof of this fact, therefore, completely hinged over the oral testimony to have come on record. It appears to me that when the accused had decided to introduce his mother inlaw as witness in this case he must have known as to C.C. No. 20/11 92 of 119 whether she suffer from memory lapses or not or that she generally remains sick. Since, he still decided to introduce her as a witness in this case I assume that the accused was convinced that she was capable of deposing in the Court. The testimony of the witness DW3 Sh. Manish Vats appears to me nothing more than an attempt to cover up the deposition of DW1 Smt. Chandravati who had not deposed in the Court as the accused would have desired. Though Smt. Sushma Sharma had also deposed in the Court that she had received Rs. 50,000/at the time of death of her grandfather but as I have already stated above this defence hinged only on the quantity of the oral evidence in the absence of he written document and therefore, without any corroboration I am not inclined to accept the testimony of Smt. Sushma Sharma in this regard. Considering all the testimonies of witnesses which have come on record in my opinion the accused has failed to establish that his wife Smt. Sushma Sharma had received Rs. 50,000/ at the time of death of her grandfather.
C.C. No. 20/11 93 of 119 Income from Agriculture:
(A) Income per pucca bigha
117. From the information collected by the Investigating Officer himself the accused had agricultural land in different villages of western UP and he had income from the said land. In all fairness the Investigating Officer should have made a calculation of the income the accused had from the agricultural land and given its benefit to the accused. The case of the prosecution is silent as to why the benefit was not given to the accused of his income from agriculture. I have seen the letters on record given by the Tehsildar of the income of the accused of the land per bigha and also there are detailed statements recorded under section 161 Cr.P.C of different Patwari's giving the precise description of the land. It is also evident from these statements that this agricultural land was ancestral land in the hands of the accused and was available to him during the check period.
118. The letter Ex. DW8/DXA1 (Colly.) of the Tehsildar written C.C. No. 20/11 94 of 119 to the Investigating Officer shows that the income from one Pucca Bigha of the land was in the range of Rs. 18000 - Rs. 20000 per year. It also gives me an impression that this perhaps was the income given of the year 2000. The check period in this case, however, ends in August 1998. It is, therefore, quite possible to say that the income in the year 1988 must have been less than the income in the year 2000. The accused in his written submissions has given the income year wise and I find on close examination that he has scaled down the income from 1998 to 1988 gradually which seems to me is quite believable, considering that the income from the land per bigha was in the range of Rs. 18,000/ to Rs. 20,000/ (per pucca bigha). The said table reads as under: Year Income per bigha in Rs.
1988 9,000/
1989 9,000/
1990 9,200/
1991 9,500/
1992 9,800/
C.C. No. 20/11 95 of 119
1993 10,000/
1994 10,200/
1995 10,500/
1996 11,000/
1997 11,500/
Till Aug 1998 6,000/
Total 1,05,700/
119. In the absence of anything being submitted to the contrary I am accepting the said figure as the income per bigha (pucca) during the check period. That is to say accused had an income of Rs. 1,05,700/ per bigha during the check period. (B) Extent of land :
120. There had been detailed examination of witness Sh. Mahesh Pal, Revenue Clerk, in defence who had given the detailed account of the agricultural land in the hand of the accused. There is nothing in the cross examination of the witness which may create any doubt about his testimony. Further his deposition is based on the revenue records C.C. No. 20/11 96 of 119 maintained in the ordinary course of business. His testimony is based on the same documents which were collected during the course of the investigation.
121. The detailed account of the land which he has given in his deposition reads as under: "I have today brought with me the following registers:
1. Khatoni Register of Village Khanjarpur for the period (Phasli year) 1410 to 1415.
2. Khatoni Register of Village Machhari for the period (Phasli year) 1414 to 1419.
3. Khatoni Register of Village Bhojpur for the period (Phasli Year) 1410 to 1415.
The entry at Sr. no.00110 of Khatoni of Village Khanjarpur would show that the land Khasra no. 388'Ka' and Khasra no.390 measuring 0.164 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Ram and six others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/B1.
The entry at Sr. no.00163 of Khatoni of Village Khanjarpur would show that the land Khasra no.388 C.C. No. 20/11 97 of 119 'Kha' measuring 0.101 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Ram and five others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/B2.
The entry at Sr. no.00164 of Khatoni of Village Khanjarpur would show that the land Khasra no.420 measuring 0.051 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Ram and one another. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/B3.
The entry at Sr. no.00167 of Khatoni of Village Khanjarpur would show that the land Khasra no.418 measuring 0.052 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Ram and three others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/B4.
The entry at Sr. no.00341 of Khatoni of Village Khanjarpur would show that the land Khasra no. 419measuring 0.051 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Ram and five others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/B5.
C.C. No. 20/11 98 of 119 The entry at Sr. no.00259 of Khatoni of Village Machhari would show that the land Khasra no.853 measuring 0.048 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Lal.
The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/C1.
The entry at Sr. no.00393 of Khatoni of Village Machhari would show that the land Khasra no.855 measuring 0.139 hectares is in the name of Sh.
Shiv Dutt S/o Ram Rikh. This land was subsequently transferred in the name of Sh. Madhwa Nand and three others by the orders of the Naib Tehsildar, Bhojpur dated 30.6.2007. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/C2 and the orders of the Naib Tehsildar is now Ex.DW11/C2A.
The entry at Sr. no.00470 of Khatoni of Village Bhojpur would show that the land Khasra no.32 measuring 1.778 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Lal and four others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/D1.
C.C. No. 20/11 99 of 119 The entry at Sr. no.00878 of Khatoni of Village Bhojpur would show that the land Khasra nos. 251'Ka", 39, 44'Ka', 43'Cha', 83'Ka' and 250 measuring 2.256 hectares is in the name of Sh. Madhwa Nand @ Radhey Shyam S/o Raje Lal, Shiv Dutta and four others. The photocopy of the said entry is taken on record and original returned. The same is now Ex.DW11/D2. It may be clarified that the share of Sh. Shiv Dutt was distributed among the rest on the basis of his Will vide order of Naib Tehsildar, Bhojpur dated 30.6.2007, the same is now Ex.DW11/D2A. "
122. If the said statement is reduced into mathematical term it would reduced as under: Village Hectare of land Share of the Land in the hands of accused accused Khanjarpur 0.164 1/7 0.023 Khanjarpur 0.101 1/6 0.016 Khanjarpur 0.051 ½ 0.025 Khanjarpur 0.052 ¼ 0.130 Khanjarpur 0.051 1/6 0.008 Machhari 0.048 Full 0.048 Machhari 0.139 ¼ 0.034 Bhojpur 1.778 1/5 0.355 Bhojpur 2.256 1/5 0.451 Total land in the hands of the accused in hectares. 1.09 C.C. No. 20/11 100 of 119 Total land of the accused = 1.093 hectares 1 = 5.33 pucca bigha* (C) Calculation of earnings :
123. On the basis of the income arrived at above per bigha during the entire check period and the land in the hands of the accused would be as under
Total income = Total land X Total income per bigha = 5.33 X 1,05,700/ = 5,63,381/ (D) Net income:
124. In arriving at the net income it is necessary to take into account that there must be some expenses incurred towards the purchase of seeds, fertilizers, electricity, other such inputs which may be called as "Input Expenses". He must also be paying some amount of money to the tiller of the land as the accused himself claims the he was in government employment and he must not be tilling the land himself. One may call such expenses as "tilling expenses".
1 One Hectare of land = 4.88 pucca bigha C.C. No. 20/11 101 of 119
125. According to the general practice available 1/4 of the total th income is passed on to the tiller of the land and it appears to me that from the total income coming into the hands of the accused rd after deducting the "tilling expenses" at least 1/3 must be going into meeting the "input expenses".
126. Reducing the above narration into the mathematical term the same would read as under:
1. Tilling Expenses = ¼ of Total Income = 1,40,845/
2. Input Expenses = 5,63,381 - 1,40,845 = 4,22,536/3 = 1,40,845 Net income = Total income - (1+2) = Rs. 2,81,691/
126. Let this amount be deducted from the disproportionate of assets given.
Telephone Bill : C.C. No. 20/11 102 of 119
127. The Total amount attributed to the telephone bills is Rs. 1,00,694/. I have gone through the documents related to the telephone bills i.e Ex. P37 (D47) and the duplicate telephone bills / telephone payment details attached alongwith it. The same are as follows: Period of bill Amount
1. 16/11/9315/01/94 1709/
2. 16/01/9415/03/94 1500/
3. 16/03/9415/05/94 1203/
4. 16/05/9415/07/94 1591/
5. 16/11/9415/01/95 3733/
6. 16/01/9515/03/95 1459/
7. 16/03/9515/05/95 1481/
8. 16/05/9515/07/95 1531/
9. 16/07/9515/09/95 1459/
10. 16/09/9515/11/95 1480/
11. 16/01/9615/03/96 1582/
12. 16/03/9615/05/96 1869/
13. 16/09/9615/11/96 1588/
14. 01/02/97 1494/
15. 01/04/97 1202/
16. 01/06/97 1472/
17. 01/08/97 1392/
18. 01/10/97 1685/
19. 01/12/97 1430/
20. 01/02/98 1695/
21. 01/04/98 1555/
22. 01/06/98 1939/ ____________ Total 36,049/ C.C. No. 20/11 103 of 119
128. On counting the same I have found that the total payment made for cycles beginning from 16/11/93 upto June 1998 i.e. 55 months comes to Rs. 36049/ or to say on an average he was paying Rs. 655/ per month or to say Rs. 650/ per month st towards telephone bill. For the rest of the period i.e. from 1 th January 1998 to 15 November 1993 i.e. 69 months and 15 days to say 70 months the total payment attributed is Rs. 64,645/. That is to say on an average of Rs. 923/ per month have been shown as the telephone charges incurred by the accused during this period. There is no basis given as to how this figure has been arrived at. It is clearly on the higher side. It was submitted on behalf of the accused that "In the year 1998 the telephone tariffs were very low and telephones were sparingly used as the telephone density during that period was very low. That is to say you could make telephone calls to only a few number of persons. The expansion of telephones really took place only after 1995." He had further added that according to the accused he must not have incurred not more than 7,000/ on telephone bills during the period from 1988 to C.C. No. 20/11 104 of 119 1993. Though I am not prepared to accept that during the period 1988 to 1993 i.e. over a period of 5 years he had spent only Rs. 7,000/ on telephone bills but I do accept the argument that during the period of 19881993 the tariffs were low and the telephone density as also low and, therefore, it was not possible to make the calls on an average of Rs. 923/ per month. In any case if the payments are averaged out on the basis of the subsequent period from 1993 to 1998 for which the bills are available, it should still not go beyond Rs. 300/ to 500/ per month. I am, therefore, taking that he had been spending Rs. 400/ per month on telephone charges during the period 1993 to June 1998. Thus the payment made during this period of 70 months would be Rs. 28,000/. Thus the excess amount shown towards telephone charges would be Rs. 36,645/. This amount is to be deducted from the value of disproportionate of assets. Electricity Bills :
129. It was submitted by the Ld. defence counsel that in the list of the verifiable expenditure towards electricity bills an amount C.C. No. 20/11 105 of 119 of Rs. 22,011/ (Rs. 1351 + 20,660) has been shown. According to the CBI manual this amount forms part of the non verifiable expenditure, therefore, this amount should form part of Rs. 1,25,702/ shown as non verifiable expenditure in the charge sheet being 1/3 of the total salary of the accused. In other words this should be removed from the list of verifiable expenditures. In turn it would mean that it should be added into the likely savings of the accused during the check period, thus be deducted from the value of disproportionate assets. I have not been shown any such manual or the copy thereof. Even if it was so I would still like to treat it as verifiable expenditures as it can be easily verified from the payments of bills made by a person. There cannot be any hard and fast rule that the electricity bills should constitute part of nonverifiable expenditure. I am, therefore, not inclined to deduct this amount from the disproportionate assets.
Amount of purchase of car :
130. In the charge sheet there is a reference to a Maruti Car C.C. No. 20/11 106 of 119 bearing no. DL3CD1649 owned by the accused made under the heading movable assets. Its value has been given to be Rs. 75,000/. The accused had claimed that he did not own the said Maruti Car at all. The papers related thereto were accidentally left behind at his residence by a car dealer who had visited his residence alongwith a common friend.
131. It has not been disputed that during the search there were documents recovered relating the said vehicle collectively Ex. PW1/D(D44). These documents were two form No. 29, two form No. 30, one cash receipt, one insurance transfer form and one registration certificate related to the vehicle no. DL3CD1649. One of the copies of form no. 29 has the name of the registered owner and also his signatures. It is undated. It also does not bear the name of the buyer. The other form no. 29 only has the number of the vehicle thereon and the signatures of the registered owner i.e. the seller. Similarly, on both copies of form no. 30 there is only no. of vehicle mentioned and the signatures of the seller. The cash receipt is though dated C.C. No. 20/11 107 of 119 18/07/1997 and it also has the signatures of the seller Sh. Pradeep Chopra and the vehicle no. besides the amount of Rs. 75,000/ mentioned thereon. It is, however, not mentioned that from whom the money had been received. Further there is also a blank form only bearing the number of the vehicle and the signatures of the seller with regard to the transfer of the insurance. There is also an registration certificate forming part of the said Ex. PW1/D in the name of Sh. Pradeep Kumar Chopra, the registered owner of the vehicle/seller.
132. Sh. Pradeep Kumar Chopra was examined as PW4 in this case. He had denied in his testimony that he had sold this car to Smt. Sushma Sharma i.e. the wife of the accused though it was found to be so mentioned in his statement u/s 161 Cr.P.C Ex. PW4/PX1. According to him he had sold this vehicle to one Harminder Singh who had also given him a delivery receipt. He had produced the said receipt in the court which was taken on record and Ex. as PW4/A. Though the name of Sh. Harminder Singh s/o Sh. Sardar Singh was referred in the statement u/s C.C. No. 20/11 108 of 119 161 Cr.P.C of Sh. Pradeep Kumar Chopra but it seems Sh. Harminder Singh was not examined by the investigating officer and his statement was also not recorded. He, however, was examined in defence by the accused as DW6. He had deposed that he had visited the house of the accused in 199798 alongwith his friend namely Sh. Subhash Sethi and left one envelope at his residence inadvertently. After 11½ years he was informed by Sh. Sharma the he had left some papers at his residence. He had explained in his testimony that after the said documents were left behind by him inadvertently at the residence of the accused for sometime he had searched for those documents and ultimately got these documents afresh signed by the party.
133. Once the said set of documents were recovered during the search at the house of the accused they would prima facie shows that the vehicle was sold to the accused or any of his family member and that he was the owner of the vehicle. The burden thereafter then shifted to the accused to prove otherwise C.C. No. 20/11 109 of 119 u/s 106 of the Indian Evidence Act. The accused indeed made such an effort to discharge his burden by putting across the following points:
(i) Though the said documents may have been recovered from his residence but neither the vehicle was found at his residence nor it was taken into possession by CBI during the investigation.
(ii) Shri Pradeep Kumar Chopra PW4 clearly denied having sold the vehicle to Smt. Sushma Sharma and as far as he has concerned he had sold the vehicle to Shri. Harminder Singh.
(iii) Shri Harminder Singh had also confirmed this fact that the vehicle was sold to him and not to Smt. Sharma.
(iv) Shri Harminder Singh had explained that as to how he had left behind the papers at the residence of the accused inadvertently.
C.C. No. 20/11 110 of 119
139. Though the defence had been carefully built up by the accused but there are many facts which make this entire story not believable.
140. Firstly, the house of the accused was located on the first floor and it is not unlikely that the vehicle may have been parked at some distance from the house. This is not a clinching evidence that the vehicle did not belong to the accused.
141. Secondly, the story introduced by the witness DW6 Sh.
Harminder Singh of having visited the house of the accused and having left the papers inadvertently at the house of the accused on the face of it appears to be not believable for the following reasons :
(a) The blank documents for the transfer of the vehicle were extremely important documents as on the basis of the said documents the vehicle could be transferred by anyone in his C.C. No. 20/11 111 of 119 name. It is merely impossible if the said envelope with such important documents having been left by the witness DW6 Sh.
Harminder Singh at the residence of the accused would not have been discovered by the accused soon after the witness Sh. Harminder Singh had left the house of the accused and he would not have come back to the house of the accused in search of documents.
(b) According to Sh. Harminder Singh it was after about a year the accused had informed him that certain papers had been left behind by him at the residence of the accused. Meaning thereby accused knew about the fact that the said documents belonged to witness Sh. Harminder Singh and if it was so why did the accused not return those documents to the witness Sh. Harminder Singh at the earliest.
(c) Most importantly according to the DW6 Sh. Harminder Singh the vehicle was sold to some third party within 3 months of the vehicle being delivered to him and once he had C.C. No. 20/11 112 of 119 discovered that he had misplaced the documents he had got a set of fresh papers signed from the registered owner of the vehicle Sh. Pradeep Kumar Chopra PW4. Sh. Pradeep Kumar Chopra, however, makes no reference to the facts that he had executed two sets of documents for the transfer of the vehicle. From his testimony it appears that once he had executed the cash receipt and the delivery receipt Ex. PW4/A both dated 18/07/97 for him it was the end of the matter.
I am of the view that in the context of the case it was an extremely important matter and this witness would nor have missed this fact in his statement that he had executed not one set of documents related to the transfer of vehicle but two set of documents after he had been approached by witness Sh. Harminder Singh.
(d) Sh. Harminder Singh has claimed that he did not know the accused personally and he happened to visit the residence of the accused alongwith a common friend Sh. Subhash Sethi. It is unusual for a person to visit the house of another unknown to C.C. No. 20/11 113 of 119 him unless there is some special reason for it. The story of his visiting the house of the accused with a common friend has also not been satisfactory proved as the so called common friend Sh. Subhash Sethi was not examined in the court.
142. In the above given circumstances in my opinion the accused has failed to discharge th burden u/s 106 of the Indian Evidence Act that as to how he was in the possession of the registration certificate of the vehicle alongwith the documents of its transfer if it were not for the fact that he was the de facto owner of the vehicle.
Miscellaneous Expenses:
143. There was one Indira Vikas Patra Ex. PW1/C recovered during the course of the search. It was submitted in the court that wife of the accused Smt. Sushma Sharma DW9 had deposed that the said Indira Vikas Patra of Rs. 2,500/ was given to her by her grandfather for her daughter. I have gone C.C. No. 20/11 114 of 119 through her statement and found no deposition having been made in this regard. I, therefore, take it that it belongs to the accused.
144. It is submitted that there is an entry of Rs. 250/ being paid as registration money to DDA in the year 1979 vide receipt Ex. P28(D37). It is stated that since it did not form part of the check period it could not have been taken into account while calculating the disproportionate of assets. I find this to be correct and, therefore, the said amount be deducted from the amount of disproportionate of assets.
145. In the observation cum search memo there is a reference to 70 books being found in the house of the accused of the period "1970 onwards". It is not clarified that as to how many books out of these 70 books were acquired after 1988. In the absence of any specific reference being made I assume that most of these books would belong to the precheck period i.e. the books had been acquired prior to 1988. It can also be looked C.C. No. 20/11 115 of 119 from another angle that the books acquired after 1988 would be very small in number considering the expressions used "old books" and their value would be so small considering that the total value of the books is given only Rs. 2,000/ that their value may be considered as insignificant and, therefore, ignored. This amount be deducted from the disproportionate of assets. Conclusions:
146. The value of the disproportionate of assets shown in the chargesheet is Rs. 7,70,702.36. The above discussion would show that while calculating the disproportionate of assets neither the income from agriculture nor the income of the wife of the accused from tailoring business was taken into account which itself would comes around Rs. 3,94,191/. The accused has been successful in explaining that the amount of Rs. 2,00,000/ found at his residence at the time of search belongs to her mother and also Rs. 1,30,000/ was given by her mother towards purchase the plot at Saidullajab village out of her funds, C.C. No. 20/11 116 of 119 who apparently had income of her own. He has also been able to establish that there had been an excess valuation of household goods of the accused found at his residence by 20%. The accused has also been able to establish that the payment of Rs. 15,000/ towards the membership of Maharishi Dayanand Group Housing Society by his wife was out of her own funds. Similarly, there had been wrong adding of Rs. 200/ towards registration paid to DDA; Rs. 2,000/ added for old books; and wrong valuation of telephone bills by Rs. 36,600/. Thus the deductions in all to be made out of the disproportionate of assets would be Rs. 8,12,047. In fact the same would be greater than the value of disproportionate of assets shown in this case. In mathematical terms the deductions to be made from disproportionate of assets would be:
(i) Membership of housing society 15,110
(ii) Excess valuation of household articles 33,851
(iii) Cash recovered during search 2,00,000
(iv) Income of wife of the accused 1,12,500 C.C. No. 20/11 117 of 119
(v) Amount paid for purchase of plot at village Saidullajab by the mother of accused. 1,30,000
(vi) Income from agricultural land 2,81,691
(vii) Excess amount of telephone bill 36,645
(viii) Registration money paid to DDA 200
(ix) 70 old books 2,000 Total 8,12,047
147. Thus the accused in my view has been successful in disproving the case of the prosecution that he was in possession of assets disproportionate to his known sources of his income. I am accordingly acquitting the accused of having committed the offence under section 13(1)(e) of P.C. Act punishable under section 13(2) of the P.C. Act.
File be consigned to Record room.
Announced in the Open Court ( L. K. GAUR )
on 6 of December, 2013 Special Judge (CBI)9
th
Central District, Delhi.
C.C. No. 20/11 118 of 119