Delhi District Court
Cbi vs Raj Sarogi on 8 April, 2024
1
IN THE COURT OF SPECIAL JUDGE:
PC ACT (CBI) - 04, ROUSE AVENUE COURTS, DELHI.
CNR No. DLCT11-000481-2021
CBI No. 65/2021
R.C. DAI 2000-A-0043
CBI/ACB/New Delhi
Under Section 120-B IPC r/w
Section 13 (2) r/w 13 (1) (d) of PC Act 1988.
OLD CASE OF YEAR 2001
CENTRAL BUREAU OF INVESTIGATION (CBI)
VERSUS
1. RAJ SAROGI
S/o late Gajanand Sarogi
R/o H.No. E-5, Maharani Bagh
New Delhi
(Private Person) (A-1)
2.MANJU SAROGI
W/O Raj Sarogi
R/o H.No. E-5, Maharani Bagh
New Delhi(Private Person) (A-2)
3. J.K. Malhan
S/o late Payare Lal Malhan
R/o H.No. J-3, 2nd Floor, Saket
New Delhi (Private Person) (A-3)
4. Ranjan Shukla
S/o M.C Shukla
R/o H. No. B-1/1153, Vasant Kunj
New Delhi (Proceedings dropped vide order
dated 17.11.2017.) (A-4)
5. Yogender Pal Singh
S/o Ram Singh
CBI No.65/2021 Page 1 of 90
2
R/o H. No. A-1/105, Sector-3
Rohini, Delhi. (Proceedings dropped vide order
dated 17.11.2017.) (A-5)
6. Ashwani Kumar Batra
S/o D.M Batra
R/o H. No.7, Bahu Bali Enclave, Karkarduma
Delhi-110092 (Discharged vide order
dated 11.07.2011 of Hon'ble Delhi High Court.)
(A-6)
7. D.K. Gupta
S/o not mentioned
R/o H. No. A-172
Meera Bagh, Delhi (Proceedings dropped vide order
dated 17.11.2017.) (A-7)
8.A.K. Ganjoo
S/o T.N Ganjoo
R/o 149, Greater Kailash
Part-II, New Delhi ( Private Person ) (A-8)
Date of Institution 17-02-2001
Date of Start of 14-12-2023
Arguments
Date of Conclusion of 13-03-2024
Arguments
Date of Judgment 08.04.2024
JUDGMENT
FACTUAL MATRIX OF THE CASE
1. The present RC/FIR was registered by the Central Bureau of Investigation (CBI) on the basis of source/reliable information received to the effect that Raj Sarogi (A-1) and Manju Sarogi (A-2), owners of Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi, J.K. Malhan (A-3), CBI No.65/2021 Page 2 of 90 3 Builder/Proprietor of M/s J.M Construction Pvt Ltd and A.K Ganjoo (A-8), Architect, sometime during the year 1997 entered into a criminal conspiracy with D.K. Gupta (A-7) Assistant Engineer/Executive Engineer and R.S Sehrawat, Junior Engineer who were posted in Building Department of Municipal Corporation of Delhi (MCD), South Zone, Delhi and other unknown persons/officials. The object of the criminal conspiracy was to cause undue pecuniary advantage to the owner's / builders of the said property by allowing them to carry out unauthorised construction on Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. The unauthorised construction was allowed to be raised in gross violation of the building bye-laws especially with regard to the ground coverage, parking, setback, Floor Area Ratio (FAR), number of dwelling units, basement etc. It was further alleged that in pursuance to the aforesaid conspiracy, the aforesaid MCD officials by abusing their official position dishonestly omitted to take any action against the owners/builders of the said property while the unauthorised construction was being carried. A.K Ganjoo (A-8), the Architect was also alleged to be part of criminal conspiracy.
1.1 It revealed that during the said continuation of the conspiracy, D.K. Gupta (A-7), A.K. Batra, S.B. Bhardwaj, R.S Shukla, Ranjan Shukla (A-4), Yogender Pal (A-5) remained posted in MCD, South Zone, at different spells and joined the conspiracy by willfully omitting to take any legal action for the unauthorised construction for extraneous considerations. The said omission/willful lapses caused undue pecuniary advantage CBI No.65/2021 Page 3 of 90 4 to the owners/builders . The said unauthorised construction had excess area of 337 square metres, on all the floors. This unauthorised construction is beyond compoundable limits according to building bye-laws. The part of the said property was being misused for commercial purposes.
Details of Investigation
2. The investigation in the matter was carried out which revealed that Raj Sarogi (A-1) and Manju Sarogi (A-2) had purchased Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi, measuring 1200 square yards from Smt. Prem Tannan and Sh. Vikram Tannan through their general power of attorney for a sum of Rs. 28.80 lacs. The said property at the time of sale consisted of three bed rooms, kitchen, dinning and drawing room at the ground floor and one bed room on the first floor. The sale deed was executed between the parties on 25.09.1997 in continuation of agreement to sell dated 01.09.1982.
2.1 Further investigation in the matter revealed that Raj Sarogi (A-1) and Manju Sarogi (A-2) entered into an agreement/collaboration with builder J.K. Malhan (A-3),
proprietor of M/s J.M Construction Pvt Ltd during the year 1996. As per the agreement, J.K. Malhan (A-3) agreed pay Rs.4.25 Crore to A-1 and A-2 and would take up the construction of the property. After the construction of the property, A-3 would give left wing of the building to Sarogi's (A-1 and A-2) and right wing would be under his ownership.
CBI No.65/2021 Page 4 of 90 52.2 On 08.07.1997, Raj Sarogi (A-1) and Manju Sarogi (A-2) submitted proposed plan with MCD (Headquarter) for construction of 3-1/2 storey building at site E-23, Poorvi Marg, Vasant Vihar, New Delhi. The said proposed plan was duly signed by A-1 and A-2 as well as A.K Ganjoo (A-8), Architect alongwith existing building plan. In continuation to the above submission of building plan, Raj Sarogi (A-1) submitted one application on 13.08.1997 with Executive Engineer ( Building), MCD requesting for reducing the building plan from 3-1/2 storey to 2-1/2 storey. He also submitted fresh building plan for construction of 2-1/2 storey. The change in the building plan was done as there were certain clarifications yet to be clarified in respect of MPD-2021 for allowing 3-1/2 storey. Accordingly, in response to the application of Raj Sarogi (A-1), Shri M.R Mittal, A.E ( Building) HQ MCD Town Hall, sent one letter to Raj Sarogi (A-1) and Manju Sarogi (A-2) for rectifying certain errors/omissions. The copy of the notice was also sent to A-8, the Architect. Thereafter, plan in respect of 2-1/2 storey submitted by Raj Sarogi (A-1) was dealt in File No. 749/B/HQ/97 and was approved on 25.11.1997. The approved plan was sent to the owner of Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi, vide letter No. 749/B/HQ/97/SW/176 dated 25.11.1997.
2.3 On 21.08.1998 Raj Sarogi (A-1) and Manju Sarogi (A-2) then submitted another revised plan duly signed by them and A.K Ganjoo (A-8), the Architect for construction of the CBI No.65/2021 Page 5 of 90 6 basement, ground floor, first floor, second floor and third floor on the said plot. In pursuance to the revised plan submitted by Raj Sarogi (A-1), Sh. B.K. Garg, JE (Bldg.) HQ MCD inspected the site and gave his report on 01.09.1998. He reported that the covered area constructed at site at basement floor is more than the covered area sanctioned vide File No. 749/B/HQ/97 dated 25.11.1997. But the representative of the applicant clarified that the same is within the permissible limit and provision made vide Gazette Notification dated 23.07.1998 and he is ready to pay the compounding fee for the same as per the provisions of building- bye laws. B.K. Garg, thus, submitted his note to AE ( Building) for sanction of proposal subject to submission of other documents by the party. The said proposal was considered by M.R Mittal, A.E who with his recommendation submitted the file to Executive Engineer. Accordingly, the Executive Engineer approved the revised building plan as proposed by the subordinates. After depositing the compounding fee and compliance of short-comings, the revised proposed plan was sanctioned on 06.01.1999. The said sanctioned plan was sent to Raj Sarogi (A-1) and Manju Sarogi (A-2) vide letter No. 2/4/AE-I/B/HQ/99 dated 06.01.1999 2.4 The investigation further revealed that A.K Ganjoo (A-8) submitted the signed building plan of the owners with MCD on all the three occasions. He further gave a certificate that building will be constructed under his supervision as per the approved building plan. However, the investigation revealed that he failed to supervise the construction of the building . Further, A-8 did CBI No.65/2021 Page 6 of 90 7 not report to MCD that he is not supervising the building as per his undertaking given to MCD. The circumstantial evidence revealed that he was in full knowledge about the unauthorised construction carried out at the said property. Hence, it is alleged that A-8 too was also a part of the conspiracy between the owner/builders/MCD officials.
Irregularity in Issuance of Form C and D
3. The investigation further revealed that Raj Sarogi (A-1) vide letter dated 10.12.1997 intimated ZE ( Bldg.), MCD, South Zone regarding start of the construction over the said property as per sanctioned building plan. A-1 submitted application for issue of C-form on 07.08.1998 after depositing the required fees through receipt No. 23094. The application for C-form was signed by Radhey Shyam, Sanitary Plumber, without mentioning any date below his signature. The investigation revealed that then Raj Sarogi (A-1) applied for issue of D-form vide receipt No.40005 dated 14.08.1998 alongwith the certificate of Sh. R. Samal, Licensed Plumber and Sanitary Plumber. The D- certificate was also issued on the same day on the recommendation of Ranjan Shukla (A-4) (J.E) by D.K Gupta, Assistant Engineer, MCD. The investigation in this regard thus revealed that D-form was issued within 7 days of issue of C- form and the same was issued at a stage when building was not even ready in all aspects in respect of sanitary/ water pipelines and fittings. The evidence collected during investigation establishes that D-form has been issued even before it was due by the accused public servants namely D.K. Gupta (A-7), CBI No.65/2021 Page 7 of 90 8 Ranjan Shukla (A-4) with malafide intention of causing undue favour of owners/builders of the building in pursuance of their conspiracy with the private persons. The investigation also revealed that the file having C and D Forms has no such record to show the procedure as mandated through instructions issued by MCD Commissioner in 1988 was followed by D.K. Gupta (A-7) and Ranjan Shukla(A-4) which mandates thorough checking of building.
Unauthorised Construction
4. During the investigation a Technical Committee was constituted by MCD on the request of CBI to examine this building and report the deviations made by the owner/builder in the construction vis-a-vis from the sanctioned plan/ building bye-laws. The said committee reported that the building has been constructed in violation of Floor Area Ratio (FAR) as against the permissible FAR of 160, the same has been constructed with FAR of 189.79. Out of this only 1.75 is compoundable and remaining FAR of 28.04 is non-compoundable. The Committee further reported that the building is being used for commercial purposes as against the permissible use of domestic purposes. There is also non-compoundable encroachments on the right side set back and non-permissible temporary construction over terrace floor. Besides it, there were roof projections, partition wall in rear set back, width of balconies, specification of two service staircases and construction of pergola being not as per building bye-laws.
CBI No.65/2021 Page 8 of 90 9Alleged Role of MCD Officials.
5. It is further alleged that D.K. Gupta (A-7) the then A.E (building) and Ranjan Shukla (A-4), J.E ( Building) have intentionally omitted to inspect/record inspection note qua the construction of building at various stages as required under the Instructions issued during the year 1988. It was done with a view to cause undue favour to the owners/builders. Further, Ranjan Shukla (A-4) submitted a false report on 07.08.1998 that the building was being constructed as per building bye-laws and got issued the C-form despite the encroachments. A-4 deliberately did not take any action for the said deviations with dishonest intention. Even the report submitted by B.K. Garg, JE (Building) who inspected the building on 01.09.1998 reported that the covered area of basement is more than the sanctioned building plan.
5.1 Further, D.K. Gupta (A-7), AE ( Building) too deliberately overlooked the omissions, despite the fact that he was supposed to inspect the building at various stages. As per the Instructions of 1988, A-7 was required to intimate the Executive Engineer (Co-ordination), MCD, HQ about the construction of the building so that the Committee constituted by the Commissioner, MCD may inspect the building at various stage of construction. Further, A-7 did not take any approval of ADC/ZAC before issuance of C and D forms. As the investigation revealed that the building was being constructed in violation of building bye-laws and deviations from sanctioned building plan, both A-4 and A-7 were required to book, seal and CBI No.65/2021 Page 9 of 90 10 demolish the unauthorised construction. The said accused persons deliberately did not act due to their dishonest intention to give undue favour to owners/builders. Further, form D has been issued on 14.08.1998 by both the accused persons within 7 days of issue of Form-C. It is, thus, established that at the time of issue of Form-D, the building was under construction, but the same was issued. Both A-4 and A-7 got issued Form D to the owner by abusing their official position in pursuance of criminal conspiracy with the owners and others.
5.2 The investigation further revealed that upon the transfer of D.K. Gupta (A-7) A.E (B), Sh. A.K. Batra (A-6) joined as AE ( Building), MCD, South Zone on 31.08.1998 who too joined in criminal conspiracy with other accused persons. He too deliberately omitted to take action against the unauthorised construction carried out in Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. He also omitted inspection of the said property at various stages. He also did not inform the Executive Engineer ( Co-ordination) MCD HQ for inspection of the building. A-6 also deliberately did not take any action in terms of the orders of the Commissioner, MCD, with a view to give undue favour to the owners/builders as per the conspiracy.
5.3 It is further submitted that on transfer of Ranjan Shukla (A-4), J.E ( Building), Yogender Pal Singh (A-5) joined as J.E (Building), MCD on 08.03.1999 who too joined criminal conspiracy with other accused persons. A-5 made several visits during his tenure when the unauthorised construction was in CBI No.65/2021 Page 10 of 90 11 progress in the said property, but he deliberately omitted to take actions with a view to cause undue favour to the owner/builder in pursuance of the criminal conspiracy. The investigation revealed that the said property was booked for unauthorised construction by Yogender Pal (A-5), J.E ( Building), South Zone, MCD on 01.12.2019 and was approved by Naveen Garg, Z.E. On the same day the show cause notice was issued to the owners of the property for submitting their explanation within three days. A-1 submitted his explanation on the same day and requested for regularization of the building. In his application, Raj Sarogi (A-1) stated that some unauthorisation portion would be demolished by him. However, A-1 deliberately omitted to demolish the unauthorised constructions i.e (i) extra space occupied on left and right side set backs (ii) extra space occupied on rear side set back (iii) space occupied by covering the court yard and (iv) excess area covered in the basement. Investigation also disclosed that Yogender Pal Singh (A-5) too submitted wrong report about demolition carried out by him during the month of December,1999. He also omitted to report the deviations/unauthorised construction in the building in violation of Building Bye-Laws/ Sanctioned Building Plan.
5.4 The said property was again inspected by Sh. Ranjan Shukla (A-4), J.E ( upon transfer of A-5) who submitted his report on 21.02.2000 qua the unauthorised construction which had been removed by the owner by then. A-4 reported that there is around 15% non-compoundable area and some area on each floor can be compounded. On the basis of said report, order for CBI No.65/2021 Page 11 of 90 12 sealing of the said building was passed by D.C South Zone on 13.03.200 and A-4 was asked to execute the sealing order and report. However, Ranjan Shukla (A-4) instead of sealing the building immediately marked the file to the clerical staff and deliberately did not take any action till 28.03.2000. A-4 submitted his report mentioning that he tried to seal the premises on 28.03.2000 but could not do so due to large number of crowd gathered at the site and local police advised to so next time. The said report was sent to A.E ( building) on the same day who merely put his signatures on it. The investigation further revealed that Ranjan Shukla (A-4) had intentionally evaded the sealing of the said building in order to cause undue favour to the builder/owner and failed to comply with the directions issued by his superiors. The building was finally sealed by Sh. Naveen Garg, AE ( Building) in April 2000.
Misuse of the Property
6. Lastly, it is further alleged that owner/ builder of the property did not send any notice of completion of the building deliberately as the building was in violation of building bye-laws etc and therefore, the question of issuance of occupancy certificate did not arise. Non-submission of notice of completion is in violation of building bye-laws under Para 7.5.2. The owner/builder, in contravention to requirement of building bye- laws as under Para 7.5.1, started using the building. In furtherance of criminal conspiracy, different floors of the building were either sold or given on rent by owners/builders.
CBI No.65/2021 Page 12 of 90 137. Thus the charge-sheet concludes that the aforesaid facts disclose the commission of offence punishable under Section 120-B IPC r/w 13 (2) r/w 13 (d) of P.C 1988 by accused Raj Sarogi (A-1), Manju Sarogi (A-2), both owners of the property, J.K. Malhan (A-3), the builder, A.K Ganjoo (A-8 ), the Architect Ranjan Shukla (A-4), J.E, Yogender Pal (A-5), D.K. Gupta (A-7), A.E and A.K. Batra (A-5),AE. Further it reveals substantive offence under Section 13 (1) (d) r/w 13 (2) of PC Act against A.K. Batra, AE, (A-6), D.K. Gupta (A-7) Assistant Engineer, Ranjan Shukla (A-4), JE and Yogender Pal (A-5) JE (all being the officials of Building Department, South Zone, MCD). It is further concluded that no evidence has come forth to substantiate the allegation against MCD officials namely R.S Sehrawat and S.B Bhardwaj. The competent authority accorded the sanction for prosecution of accused Ranjan Shukla (A-4), JE, Yogender Pal (A-5), JE, D.K. Gupta (A-7) Assistant Engineer and Sh. A.K. Batra, A.E (A-6) under Section 19 (c) of PC Act 1988.
CHARGE
8. Ld. Predecessor took cognizance of the offences on 11.04.2001 and accused persons were, accordingly, summoned. After supplying the copies and hearing the arguments on charge, on 16.11.2016 charges were framed against accused namely Ranjan Shukla (A-4), Yogender Pal (A-5) and D.K. Gupta (A-7) for the offences punishable U/s 13 (2) read with Section 13 (1)
(d) of PC Act 1988 and separate common charge against all the accused persons punishable under Section 120-B IPC read with CBI No.65/2021 Page 13 of 90 14 Section 13 (2) read with 13 (1) (d) of the PC Act 1988 on 19.11.2016. All the accused persons pleaded not guilty and claimed trial.
8.1 That A.K. Batra (A-6) was discharged vide order dated 04.07.2011 in Criminal MC 976/2009 passed by Hon'ble High Court of Delhi by observing that there is no material against him, the then Assistant Engineer, Building Department South Zone.
8.2 During the course of trial , the proceedings against three accused persons/ MCD officials viz; Ranjan Shukla (A-4), Yogender Pal Singh (Y.P. Singh) (A-5) and D.K. Gupta (A-7) were also dropped vide order dated 17.11.2017 passed by the Ld. Predecessor on the ground of invalidity of the prosecution sanction under Section 19 of the PC Act.
8.3 The prosecution, in order to prove its case, has examined 28 witnesses following which statement of accused persons under Section 313 Cr.P.C was recorded in which they chose not to lead any evidence in their defence.
Prosecution Witnesses
9. Sh. Sanjeev Garg (PW-1) deposed that he had supplied the building material as mentioned in bills dated 19.10.1998, 20.11.1998, 15.12.1998, 25.01.1999 and 31.03.1999 to J.M Construction at the site E-23, Poorvi Marg, Vasant Vihar, New Delhi.
CBI No.65/2021 Page 14 of 90 159.1 PW-1 further stated that he handed over the documents as mentioned in production-cum-seizure memo dated 29.11.2000 Ex. PW1/1 . He further proved the bill no.231 dated 19.10.1998 as Ex.PW1/2, bill no.241 dated 10.11.1998 as Ex.PW1/3, bill no. 248 dated 15.12.1998 as Ex.PW1/4, bill no. 252 dated 25.01.1999 as Ex.PW-1/5 and bill no.274 dated 31.03.1999 as Ex.PW1/6.
10. Sh. J.P. Bhargava (PW-2) was the Meter Superintendent, Delhi Vidyut Board in R.K. Puram District during 1995-96 and remained there till his retirement in 2003. PW-2 thereafter explained the procedure of obtaining new electric connection during that period.
10.1 PW-2 proved the production-cum-seizure memo dated 26.12.2000 (D-30) Ex.PW-2/1 through which he handed over the documents as mentioned in the said seizure memo to Inspector CBI. PW-2 further proved the manual meter book sheet as Ex.PW2/2 (D-31) in respect of K. NO. 129341 and 129342 issued in the name of Raj Sarogi and Smt. Manju Sarogi . PW-2 also identified signature of S.R Jaiswal on Ex.PW-2/2. PW-2 further proved the original K.No Proforma No. AEZ- 1602/D/RKP/KP-16 dated 07.09.1999 as Ex.PW2/3 (D-32) which was issued by P.C Sehgal, AE, DESU No. 6837 Zone 1602 (D) RKP. He further stated that as per the procedure, a permanent meter can only be installed when the construction of the building of that floor was complete.
CBI No.65/2021 Page 15 of 90 1611. Sh. Rajender Samal (PW-3) is the plumber and was issued licence No.531 by MCD.
11.1 PW-3 further deposed that he had worked at E-23, Poorvi Marg, Vasant Vihar, New Delhi in the year 1998. He had installed sanitary fittings at that address and signed Form C and D. He identified his signatures on Form D (part of D-6) Ex.PW- 3/A. He further stated that he did not put any date on the said document. He also stated that he had not filled up the said form and when he signed the same, it was not filled in. He signed the said form as was asked by Sh. Jugal Sahab and Sarogi. He identified Jugal Sahab ( A-3) and Sarogi ( A-1) in the court. He though was not able to disclose how much work was done by him at the said house/site by the month of August 1998 or any government official visited the said house for inspection. He was accordingly declared declared hostile and was also cross- examined by Ld. Sr. Public Prosecutor for CBI.
12. Sh. Jagannath Tayal (PW-4) deposed that he was in the business of supply of building materials from the year 1982 to 2005. He further stated that he had supplied/sold bricks to one customer in Vasant Vihar area for 5-6 months.
12.1 PW-4 further deposed that CBI had made enquiries from him . He proved the letter dated 21.12.2000 (Part of D-29) as Ex.PW-4/A through which he had given details of transactions as per the query made by the CBI. PW-4 further proved the leaf of ledger (part of D-29) as Ex.PW-4/B containing details of CBI No.65/2021 Page 16 of 90 17 transactions being inquired by CBI. He also got exhibited document Ex.PW-4/C which is the fair copy of contents in Ex.PW-4/B.
13. Sh. Piyush Bajpai (PW-5) deposed that he joined MCD as LDC in January 1989. During September 1998 to May 1999, he worked as Assistant Zonal Inspector in Special Assessment Unit, Circle-20 R.K. Puram, Sector-9, New Delhi. It was his duty to inspect the properties for purpose of assessment of property tax in Circle No. 20. He also used to inspect under construction properties, maintain Building Watch Register (BWR), send notice to the owner after completion of the construction of the building for change of rateable value and inform Joint Assessor and Collector about such entries in BWR.PW-5 further stated that he was called at CBI office during the year 2003-2004. CBI officers recorded his statement. PW-5 identified his handwriting as well as the official noting of his department pertaining to the aforesaid period recorded on 18.12.98, 21.12.98 and 28.12.98 as Ex.PW-5/A. 13.1 He further deposed that noting dated 18.12.98 was written by him on the basis of some representation made by Sh. Sadhu Singh, representative of assessee of property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. Vide second noting dated 21.12.1998 relates to his inspection of aforesaid property and its entry made in BWR ( 1998-99) at Serial No. 39. As per the said noting, construction of second floor of aforesaid property was in progress and lastly vide noting dated 28.12.98, he (PW-
CBI No.65/2021 Page 17 of 90 185) on behalf of A &C Department, had issued no dues certificate to the aforesaid property.
14. Sh. Tarsem Singh (PW-6) is the Electrical Contractor. He further deposed that he worked at Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi as electrical contractor from May 1998 to July 1999. At the time when he completed his job in July 1999, construction of that building was complete from basement to third floor. There were two dwelling units on each floor.
15. Sh. Jugal Kishore (PW-7) is a Carpenter Contractor.PW- 7 deposed that in 1998-99, he was called by CBI officer in their office at Lodhi Colony. He told the CBI officer that he had worked at Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. PW-7 had handed over the diary (D-15) which he used to maintain regarding details of payments received by him in respect of the above-site. He identified the said diary (D-15) as Ex. PW7/A . He further deposed that he had received the last payment in the sum of Rs.10,000/- in respect of the said site in July-August 2000. He further deposed that he did not see any government official visiting the building under construction except the contractor. He further proved production-cum-seizure memo dated 04.12.2000 (D-23). PW-7 was cross-examined by Ld. Sr. PP for CBI as he resiled from some part of his earlier statement and denied the suggestion regarding visit of JE ,MCD and having conversation with builder .
CBI No.65/2021 Page 18 of 90 1916. Phool Chand (PW-8) is the Private Security Guard who deposed that in the year 1998-99, he worked as Watchman at Property No. E-23,Vasant Vihar, New Delhi. J.K. Malhan (A-3) who was building the said site had employed him as Watchman. PW-8 too was cross-examined by Ld. Sr.P.P for the CBI as he resiled from his statement given to CBI and denied the suggestion of any meeting of builder/owner with MCD officials .He also denied the case of CBI regarding unauthorized construction.
17. Mehtabuddin (PW-9) is the official from Vigilance Department of MCD . He deposed that in October 2000, on the instructions of his Dy. Director, he had handed over sanction building plan, C &D Form and other certain documents of property no. E-23, Vasant Kunj, New Delhi, to CBI officer Om Prakash. The said documents were seized vide seizure memo dated 23.10.2000 Ex.PW9/A (D-22) ( collectively).
17.1 PW-9 further supplied the documents which are seized vide seizure memo D-33 dated 07.02.2001. Thereafter, he identified the documents which were handed over by him to CBI official i.e. :
(i) D-3 the file regarding Sanction Building Plan seized vide Memo Ex.PW-9/A.
(ii) D-2, the file regarding revised Sanction building dated 21.08.1998 seized vide memo Ex.PW-9/A.
(iii) D-4, the file regarding application for regularization dated 01.12.1999 seized vide memo Ex.PW-9/A CBI No.65/2021 Page 19 of 90 20
(iv) D-14, the file regarding rejection of application in respect of the same property dated 11.09.1996 seized vide memo Ex.PW-9/A.
(v) D-6, the file regarding Form C & D seized vide memo Ex.PW-9/A.
(vi) D-5, the file regarding notices issued under Section 343 & 344 (1) DMC Act, seized vide memo Ex.PW-9/A.
(vii) Note dated 07.02.2001 part of D-34 regarding Form C & D form and photocopy of register containing entries of Form C & D and
(viii) Lastly, receipt dated 14.08.1998 regarding the payment for Form C & D.
18. Rakesh Kumar (PW-10) is the Record Keeper , MCD. He deposed that he knew Ranjan Shukla and and Y.P Singh who were J.E Building Department. He identified his signatures on seizure memo dated 30.01.2001 (D-26) Ex.PW-10/A. PW-10 too was cross-examined by Ld. Sr.P.P for the CBI as he turned hostile in respect of his some part of his statement under Section 161 Cr.P.C and failed to identify the documents in the handwriting of accused MCD officers.
19. Narinder Pal Singh (PW-11) is in the marble supplier . Enquiry was made from him by CBI regarding supply of marble to J.K. Malhan (A-3) at site no. E-23, Poorvi Marg, Vasant Vihar, New Delhi. He provided the copy of bill to CBI through which marble was supplied to Mr. Malhan. The original bill was not available with him as the same was weeded out after seven years.
CBI No.65/2021 Page 20 of 90 2120. Avinash Kumar Aggarwal (PW-12), Retired Electrical Inspector, Govt of Delhi who worked in the office of Electrical Inspector, Labour Department, Government of Delhi. He was called at CBI office for enquiry about file related to 23 Poorvi Marg, Vasant Vihar, Delhi for installation of lift. M/s J.M Constructions Pvt Ltd had applied for installation of lift in the said property in April 1999. He inspected the site and found machine room and shaft of lift in order at the site and therefore, issued permission to erect the lift. He further deposed that at that time, ground plus three floors were completely constructed in that building and the machine room was constructed above third floor.
20.1 PW-12 further deposed that he again inspected the property in October 1999 and checked the installation of lift in all aspects including safety measures which were in order. Accordingly, he issued licence to run the lift. He proved the file pertaining to the installation of lift as Ex.PW-12/A (D-10), production-cum-seizure memo dated 14.12.2000 (D-24) as Ex.PW-12/B. PW-12 further proved his inspection report as Ex.PW-12/C, permission granted to J.M Construction Pvt Ltd for erection of lift at the site Ex.PW-12/D, the receipt of deposit of amount of Rs.40/- by aforesaid firm for inspection and issuance of licence Ex.PW-12/E. He identified his signature on application of the said firm seeking licence to run the lift Ex.A-3/P-14. PW-12 further got exhibited the licence issued by him as Ex.PW-12/F and notings as Ex.PW-12/G and Ex.PW-
CBI No.65/2021 Page 21 of 90 2212/H.
21. Ved Prakash Bhardwaj (PW-13) deposed that in December 2000, he was posted as Architectural Assistant, Chief Architect Office, MCD, Kashmere Gate, Delhi. He was asked by Chief Architect to prepare some building plans at the instance of CBI. He accordingly accompanied CBI officials and prepared building plans as per their demands. He proved the building plan (part of D-38) as Ex.PW-13/A pertaining to the existing building E-23, Poorvi Marg, Vasant Kunj, New Delhi. He had prepared the said plan with his associate namely Ramphal (Survey Officer) after taking measurements of existing building. He had visited the said property with S.S Mittal (Draughtsman Grade-1), Chaman Lal Sahani (Assistant Architect) and Ramphal ( Survey Officer). The plan depicts portion of existing building from basement to second floor of the said building.
21.1 PW-13 further proved the existing building plan for third floor, fourth floor and site plan (part of D-38) as Ex.PW-13/B.
22. M.R Mittal (PW-14), Retired Executive Engineer MCD, deposed that in the year 1997-1998, he was posted as AE (Civil) in MCD Building Head Quarter Branch. His job was to process and scrutinize the building plans in order to check whether the same was in accordance with building by-laws. As per the procedure, before construction of any building, the owner was required to submit building plan for approval in MCD CBI No.65/2021 Page 22 of 90 23 alongwith proof of ownership, no dues certificate from House Tax Department. The J.E. (Building) was supposed to check the site and its status. The J.E. was also to scrutinize the building plan. The J.E used to prepare site inspection report and forward the same to A.E. The A.E, then, used to forward the material to Executive Engineer ( Building) HQ for approval. On the basis of sanction granted by Executive Engineer, the A.E used to issue the sanction order and used to sign on the approved building plan.
22.1 Form C used to be issued by Zonal Office of MCD before covering the sanitary lines and Form-D used to be issued by Zonal Office on completion of structure as well as sanitary lines. He further deposed that the building sanction plan used to be forwarded to Zonal Office and it was there duty to ensure the construction as per the sanction plan. That while issuing C & D form, sanitary lines were checked to see the same are in accordance with building plan. PW-14 proved the file dated 08.07.1997 (D-3) relating to Sanction Plan of property in question. He also identified the scrutiny report prepared by B.K Garg (PW-15 herein), J.E. including the shortcomings as Ex.PW-14/A. The compliance letter dated 13.08.1997 issued by him to the owner of the building vide Ex.PW-14/B. Thereafter, he proved the noting whereby recommendations for approval of building plan was made vide Ex.PW-14/C. He also proved the recommendations on the said proposal of Executive Engineer namely M.M. Das as Ex.PW-14/D. CBI No.65/2021 Page 23 of 90 24 22.2 He further deposed that the power to approve the basement plan lied with Superintendent Engineer and at that point of time M.M. Das was also looking after the work of Superintendent Engineer. The note concerning basement is Ex.PW-14/E. The Sanction letter dated 25.11.1997 is Ex.PW- 14/F. The map of sanctioned building plan is Ex.PW-14/I and the elevation map is Ex.PW-14/J. He also proved the letter dated 13.08.1997 of owners of the building ( A-1 & A-2) as Ex.PW-14/K making request for building plan .
22.3 He also proved the file seeking revision of the sanctioned building plan. The noting is Ex.PW-14/L whereby he recommended the revised building plan. The noting concerning approval of basement is Ex.PW-15/B and Ex.PW-14/M. He also proved the letter issued by him to the owners (A-1 & A-2 )of the building and the Architect (A-8) as Ex.PW-14/N ( part of D-2) . The said note was approved by Executive Engineer vide noting Ex.PW-14/O and PW-14/P. He also proved the last sanction building plan dated 06.01.1999 and the letter is Ex.PW-14/Q ( Part of D-2). The last building plan is Ex.PW-15/E and the elevation plan is Ex.PW-15/F. 22.4 He further clarified that the date mentioned as 05.1.1999 on page 23 of D-2 is a clerical error and the date of sanction is 01.09.1998. ( None of the other witnesses including other MCD officials clarifies the said alleged error )
23. B.K. Garg (PW-15), Assistant Engineer, North MCD, CBI No.65/2021 Page 24 of 90 25 deposed that he worked as J.E ( Buidling) HQ, MCD from the year 1996 till 1999. The area of Vasant Vihar was within his jurisdiction. In respect of plot measuring 300-400 square yards, the owners used to move the application before the desk clerk and the same used to be forwarded to him for scrutiny. He used to check the application to be in the proper format and particulars of the owner matching with the description of the property. He also used to check the proposed building plan on the parameters of bye-laws. He also used to inspect the site so as to check the surroundings of the building laws etc. If any shortcoming used to be there, he used to file his report to A.E ( Building) HQ and invalid notice (IN) used to be issued by A.E to the owner/applicant for rectification of the shortcoming. In case of no short-coming, the file used to be put up directly by him to the A.E for sanction of the plan.
23.1 In case of revised building plan on the basis of changed bye-laws, the site used to be inspected so as to see if the existing structure is in accordance with new building bye-laws. If found in conformity, the report used to be prepared for sanction of revised building plan and forwarded to A.E ( building). He identified his report prepared in the present case dated 01.09.1998 with respect to revised building plant as Ex.PW- 15/A. He inspected the property and found work being in progress at basement and ground floor which were within the permissible limit of new building bye-laws. He mentioned about six shortcomings and recommended to pass sanction order. The said proposal was approved by Executive Engineer. Thereafter, CBI No.65/2021 Page 25 of 90 26 he prepared the proforma for approval of basement as Ex.PW- 15/B and it was also proved by Superintendent Engineer ( Building), HQ. Thereafter, IN was issued to the applicant and noting in this regard is Ex.PW-15/C after getting approval of M.R Mittal, A.E. He also calculated the amount for additional FAR, stacking charges, compounding fee vide his note Ex.PW- 15/D and the file was sent to desk clerk. The sanction letter dated 06.01.1999 was issued by A.E ( Building) and he also signed the same which is Ex.PW-15/E. The proposed structure in the same is shown in Red Ink and the existing structure in normal Blue or Black Ink. The revised building plan was accompanied with another building plan showing basement floor plan, front elevation, rear elevation, section and terrace plan as Ex.PW-15/F.
24. S.S Malani (PW-16) is from M/s Scan Elevator Ltd. He deposed that in around October 1998, they had submitted quotation for supply and installation of lift at 23 Vasant Vihar, New Delhi, to M/s J.M. Constructions. Their quotation was accepted by M/s J.M. Constructions.
24.1 He further deposed that they started the work at said property in April 1999 which was finished in August 1999. He further deposed that customer has to sign application i.e Form A and has to submit the elevator drawing. The said drawings are submitted with Electrical Inspectorate which is under Labour Commissioner, Govt of Delhi. After inspection of the site by the Inspector concerned, erection permission is issued. After submission of requisite fee and Form B, Inspector again visits CBI No.65/2021 Page 26 of 90 27 the site and conduct all the tests. Thereafter, licence to run the lift is granted. PW-16 submitted that he had received the licence and handed over the same to Mr. Malhan. He further deposed that it is not necessary that complete building should be constructed, however, it is necessary that lift shafts should be complete and the same meets all safety measures.
24.2 PW-16 deposed that the lift at the aforesaid property was installed for ground plus three floors with capacity of five passengers. The contract file regarding the project of installation of lift as Ex.PW-16/A. 24.3 He failed to admit or deny the suggestion on behalf of the CBI as to whether ground plus third floor was complete at the time of start of work by them or the courtyard behind the space meant for lift was uncovered or it being merged with the main building.
25. Satyendra Pal Aggarwal (PW-17) Retired Commissioner MCD, is the Sanctioning Authority. CBI had sent request letter alongwith various documents for sanction order against D.K. Gupta , Y.P Singh and others. He further deposed that the said letter was received by Director (Vigilance) and the same was put up before him alongwith note. After going through all the documents including case diaries, he accorded sanction for prosecution of three accused persons, two of them were D.K. Gupta and Y.P. Singh. He proved the said sanction orders as Ex.PW-17/A ( collectively) (D-46).
CBI No.65/2021 Page 27 of 90 2826. R.K. Sharma (PW-18), Retired Executive Engineer deposed that in 1999, he was posted in South Zone Building Department as AE and he identifed the signatures and handwrting of Ranjan Shukla JE and DK Gupta AE on various documents. He further deposed that one Naveen Garg was also working in MCD as AE in 1999 and identified his signatures as well.
26.1 PW-18 proved the noting dated 26.06.2000 as Ex.PW- 18/A (D-6) and identified signature of Ranjan Shukla and C Form dated 07.08.1998 as Ex.PW-18/B(D-6). He further identified signature of Sh. D.K. Gupta on D Form dated 14.08.1998 Ex.PW-3/A (D-6). He further got exhibited the First Information Report dated 01.12.1999 as Ex.PW-18/C (D-5) and identified signatures of Naveen Garg on the same.
27. Pushkar Sharma (PW-19), Retired Superintending Engineer, MCD deposed that in 2000-2001, Commissioner of MCD had formed a technical team on the basis of requisition of CBI for inspection of some properties wherein unauthorised constructions were raised. The said team was headed by M.M. Dass (SE) and he was one of the member of the said team. There were two A.Es who were probably M.R Mittal and V.P. Gupta. The CBI took the said team to 3-4 sites and showed them the sanction site plan. The team was asked to check the deviations in the constructions raised. The Architect Section was asked to prepare the plan of existing construction. A.Es were asked to CBI No.65/2021 Page 28 of 90 29 prepared comparative report/chart of the deviations in the sanctioned plan and existing plan. He alongwith Mr. Dass checked the same and gave their report to CBI. PW-19 proved the letter dated 01.02.2001 as Ex.PW-19/A given by him to Inspector Om Prakash regarding inspection of E-23 Poorvi Marg, Vasant Kunj. There were three enclosures alongwith said letter i.e technical note with its annexure, plans of the existing building and sanctioned plan. He further got exhibited the technical note alongwith annexure as Ex.PW-19/B (collectively).
27.1 He further deposed that whatever were the deviations, the same were mentioned in report Ex.PW-19/B.
28. Shanker Lal (PW-20) S/o Jhabar Ram is Civil Contractor who had taken the contract to construct a building at Vasant Kunj around 20-22 years back. He was engaged by Mr. J.K Malhan. He raised basement, ground floor, first floor and second floor and finished his work.
28.1 He further deposed that Architect who prepared the site plan of that building was Mr. A.K. Ganju who met him once or twice for seeking some clarifications in the site plan at his residence cum office. A-8 did not visit the property in his presence. He raised the construction as per approved site plan and there were no deviations in the construction.
He was declared hostile by CBI and he denied the suggestions that he had not raised construction as per plan or MCD JE used to visit the site and talk to A-3.
CBI No.65/2021 Page 29 of 90 3029. Shanker (PW-21) S/o Palku Singh worked as Chokidar in a property at Vasant Vihar and was engaged by Mr. Malhan. He further stated that he worked at the said property for about one and half year. The property was under construction from basement. During the construction, he was asked to work at some other property in Greater Kailash on the instructions of J.K. Malhan. After some time, he was shifted back to the same property at Vasant Kunj and by that time, it was completed upto third floor from basement. On the third floor of the property, there were three servant quarters besides water tanks. He further deposed that MCD officials used to visit the property and meet J.K. Malhan.
30. Dinesh Kumar (PW-22) worked as carpenter with Mr. Jugal Kishore (A-3). He further stated that probably in the year 2000-2001, Mr. Jugal Kishore had given him some wood work in a property No. E-23, Poorvi Marg, Vasant Kunj, New Delhi.
30.1 PW-22 identified his handwriting on Ex.PW-7/A (D-15) which is a diary containing the entries made by him in respect of payment received. The said diary also had entries pertaining to the said property mentioning words "E23 or JK Malhan".
31. Madhu Sudan Singhal (PW-23) deposed that he was posted as DSP ACB CBI. Investigation of the case was handed over to him by the then S.P CBI on 24.08.2000. The case was registered on 24.08.2000. Searches were conducted at the CBI No.65/2021 Page 30 of 90 31 premises of accused named in the FIR on the basis of authorization under Section 165 (3) Cr.P.C. The case was transferred from him to Inspector Om Prakash on 28.08.2000. He proved the FIR as Ex.PW-23/A (D-1).
32. P.C Sehgal (PW-24) worked as Assistant Engineer, District R.K. Puram, Delhi Vidyut Board, New Delhi. He identified his signature on D-32 Ex.PW-2/3 which is the original K Number Proforma dated 07.09.1999.
33. Ram Phal (PW-25) stated that in 2000, he worked as Survey Officer in Architect Department, Kashmere Gate Office, MCD, Delhi. He identified his signature on D-38 Ex.PW-13/A and Ex.PW-13/B which are existing survey plan.
34. V.P. Gupta (PW-26), Retired Executive Engineer, deposed that he retired from the post of Executive Engineer (Planning) MCD in 2005. He identified his signature on Ex.PW- 19/B ( collectively ) (D-37) which is the technical note on the observation with regard to checking of property no. E-23, Purvi Marg, Vasant Vihar, New Delhi. He was part of team constituted at the request of CBI.
35. Brij Nath (PW-27) worked as Stone Fixer in the properties in Delhi. He further stated that he was given contract to fix stones in the said property by Mr. Malhan (A-3). He further stated that he did not know if any Govt officials used to visit the said property during the period he worked there.
CBI No.65/2021 Page 31 of 90 3236. Om Prakash (PW-28) is the Investigating Officer (I.O). He deposed that he received the investigation of the present case from DSP Mr. M.S Singhal on 28.08.2000. During the course of investigation, he collected documents and recorded the statement of witnesses under Section 161 Cr.P.C and thereafter filed chargesheet on 07.02.2001.
36.1 PW-28 identified his signature on production-cum-seizure memo dated 23.10.2000 Ex.PW9/A (D-22) through which he seized file no. 749/B/HQ/1997 dated 08.07.1997 in respect of plot no. E-23, Poorvi Marg, Vasant Vihar, New Delhi from MCD. He got exhibited the said file as Ex.PW-28/1 (collectively). He further stated that through seizure memo (D-
22) Ex.PW9/A, he had also seized file no. 523/B/HQ/1998 dated 21.08.1998 in respect of the aforesaid plot. He got exhibited the said file as Ex.PW-28/2 ( collectively).
36.2 PW-28 also got exhibited file no.1459/RZN dated 01.12.199 regarding regularization application of the plot Ex.PW-28/3 ( collectively), file no. 1143/B/HQ/1996 dated 11.09.1996 Ex.PW-28/4 ( collectively), file relating to C & D form of the said plot Ex.PW-28/5 ( collectively) and file relating to sealing of the said plot as Ex.PW-28/6 through seizure memo D-22 Ex.PW-9/A ( collectively).
36.3 Further, he got exhibited production-cum-seizure memo dated 04.12.2000 (D-23) Ex.PW-28/7. Through said seizure CBI No.65/2021 Page 32 of 90 33 memo Ex.PW-28/7, PW-28 seized one executive diary of Timber Sales Corporation.
36.4 PW-28 further deposed that vide seizure memo D-24 Ex.PW-12/B, he seized file no. ED3 (6618)/99/DSW of M/s J.M Constructions regarding installation of lift at plot no. E-23, Poorvi Marg, Vasant Vihar, New Delhi. He further deposed that he seized bill book of Sanjeev Garg through seizure memo D-25 dated 29.11.2000 Ex.PW-1/1. He exhibited the same as Ex.PW- 28/8 ( collectively).
36.5 PW-28/IO also seized file of Action Taken Report w.e.f 01.12.1999 to 15.12.199 with respect to the above-said plot through seizure memo D-26 Ex.PW-10/A. He got exhibited the same as Ex.PW-28/9 ( collectively). Further, PW-28 seized one file consisting note sheet and correspondence in respect of aforesaid plot. He got exhibited the same as Ex.PW-28/10 ( collectively).
36.6 PW-28 identified his signature on production-cum-seizure memo (D-27) dated 16.01.2001 as Ex.PW-28/11. He seized carbon copy of bills running pate 8 to 17 in respect of supply of cement of bags etc to J.M. Construction Pvt ltd through seizure memo D-27 (Ex.PW-28/11) and got exhibited the same as Ex.PW-12/12 (collectively). Further, PW-28 identified his signature on production-cum-seizure memo dated 26.12.2000 (D-30) Ex.PW-2/1 through which he seized K.No Proforma No. AEZ-1602/D/RKP/KP-16 dated 07.09.1999. Through Ex.PW-
CBI No.65/2021 Page 33 of 90 342/1 (D-30), PW-8 also seized one manual meter book sheet of K.No. 129341 and 129342 Ex.PW-2/3.
36.7 PW-28 also identified his signature on production-cum- seizure memo 07.02.2001 (D-33) as Ex.PW-28/13. He deposed that through the said seizure memo, he had seized one note dated 07.02.2001 from Executive Engineer, South Zone, regarding C & D Form in respect of Plot No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. He got exhibited the same as Ex.PW-28/14 (collectively). Further, PW-28 got exhibited production-cum- seizure memo dated 18.12.2000 (D-35) as Ex.PW-28/15. He deposed that through the said seizure memo, he seized one file No. LM-462 relating to the installation of lift at plot No. E-23, Poorvi Marg, Vasant Vihar, New Delhi (Ex.PW-28/16). PW-28 identified his signature on letter (D-36) addressed to MM Das under his signature as Ex.PW-28/17.
36.8 PW-28 identified the signature of the then DSP P.L Meena on search list (D-40) dated 25.08.2000. He deposed that the said search list (Ex.PW-28/18) was handed over to him during the course of investigation. He also identified signature of DIG Mukesh Sahay on letter dated 07.09.2000 (D-42) as Ex.PW- 28/20. He got exhibited letter dated 20.09.2000 (D-44) addressed to the then DIG as Ex.PW-28/21 and deposed that the said letter was marked to him during the investigation. Lastly, he got exhibited office order dated 30.11.2000 of MCD addressed to the then DIG, CBI as Ex.PW-28/22 which was marked to him during the investigation.
CBI No.65/2021 Page 34 of 90 3536.9 IO/PW-28 further deposed that during the investigation, he found the construction from basement since beginning was in deviation to the sanctioned plan. The sanctioned plan was revised twice. He further found the said deviation/unauthorised construction was beyond compoundable limit. A technical committee was also constituted at the request of CBI for inspection of Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi, which gave its report. No action was taken by then J.E, A.E and E.E of the area for booking the property while it was being raised or taking action against unauthorised construction except of some cosmetic demolition in the property. The Executive Engineer did not refer the unauthorised construction to the Head Quarter. The Form C was submitted without any date by J.E Mr. Ranjan Shukla and Form D was issued within seven days of submission of Form C though the construction was still going on in the property. File qua the form C and D should have been forwarded to Assistant Deputy Commissioner, MCD for approval but the same was never forwarded by the J.E and A.E, E.E to ADC for approval.
He was extensively cross-examined on behalf of the accused persons .
Statement of the Accused Persons
37. After closure of prosecution evidence by the CBI, statement of accused persons under Section 313 Cr.P.C was CBI No.65/2021 Page 35 of 90 36 recorded. Statement of J.K. Malhan (A-3) under Section 313 Cr.P.C was recorded on 16.09.2023. Statement of A-2 Manju Sarogi and Raj Sarogi (A-1) and A.K. Ganjoo (A-8) under Section 313 Cr.P.C was recorded on 20.10.2023 and 07.11.2023 respectively. None of the accused persons chose to lead any evidence in defence.
37.1 J.K. Malhan (A-3) further stated in his statement under Section 313 Cr.P.C that he has been falsely implicated in the present case. He never met any private person or MCD official. Further, there are no allegations against him that he had advanced any illegal gratification to any MCD official. The evidence produced by the prosecution shows that MCD official had taken appropriate action against unauthorised construction in the building at the relevant time. There is no infirmity in issuance of Form C and D. The case filed by the I.O is based upon assumptions ignoring the evidence on record.
37.2 Manju Sarogi (A-2) in her statement under Section 313 Cr.P.C pleaded innocence and false implication in the matter. She stated that she is merely the co-owner in the property in question. She never visited the property during construction nor met any of the person involved in the work.
37.3 Raj Sarogi (A-1) in his statement under Section 313 Cr.P.C too pleaded innocence and false implication. He further stated that he is merely the co-owner in the said property. He never interacted with any person involved in the work except the CBI No.65/2021 Page 36 of 90 37 builder who used to appoint and deal with the individuals. The construction work at the site such as taking approvals, sanction etc was the responsibility of builder. He only visited the site on a few occasions to oversee the work as the agreement with the builder was time bound.
37.4 Lastly, A.K. Ganjoo (A-8) stated in his statement under Section 313 Cr.P.C also pleaded innocence and false implication. He stated that he is handicapped person and cannot even stand on his own. Due to said disability, he never visited the site in question. A-1, A-2 and A-3 had approached him to prepare the plan for the site in question which was prepared by him and got sanctioned at different intervals according to the requirements. No MCD official ever met him. There are no allegations of illegal gratification advanced to public servant/MCD official by private person/accused. The evidence produced by the prosecution shows that MCD official had taken appropriate action against unauthorised construction in the building at the relevant time. There is no infirmity in issuance of Form C and D. The case by I.O is based upon assumptions ignoring the evidence on record.
Arguments of CBI
38. Ld. Senior Public Prosecutor for the CBI argued that the present FIR was registered on the basis of the source information regarding unauthorised construction carried out at Property No. E-23, Poorvi Marg, Vasant Vihar, New Delhi. J.K. Malhan (A-3) CBI No.65/2021 Page 37 of 90 38 was builder and proprietor of M/s J.M Construction Pvt Ltd and A.K Ganjoo (A-8) was the Architect. Raj Sarogi (A-1) and Manju Sarogi (A-2) were the owners of the aforesaid property wherein extensive unauthorised construction was carried out during the period 1998-2000. The said unauthorised construction was carried out in conspiracy with the MCD officials with the object of causing pecuniary advantage to the accused persons. The factum of unauthorised construction and it being against the building sanction plan issued by the MCD stands proved through the report of Technical Committee of the MCD (D-37 & D-38). The said committee was constituted at the request of CBI during the investigation of the case. The said report clearly brings forth the extensive unauthorised construction carried out at the premises and the same being not compoundable. As far as A-8 is concerned, he was the architect. As per the obligation and undertaking given by him at the time of sanction building plan, he was supposed to supervise the entire construction and ensure that it is as per the sanctioned building plan. His undertaking which put the onus upon him of supervision is part of document D-2.
38.1 It is further argued by the Sr. PP for the CBI that the present case of criminal conspiracy is based upon circumstantial evidence and the one of most crucial circumstantial evidence in the present is the process of issuance of Form C and D by the officials of MCD named in the present case as accused. The rules and regulations for issuance of the said forms were given completely ignored by the MCD officials which shows criminal CBI No.65/2021 Page 38 of 90 39 conspiracy between MCD officials, the owners of the building and the builder and the architect. It is further argued that though the proceedings against three of the MCD officials i.e Ranjan Shukla (A-4), Yoginder Pal Singh (Y.P. Singh) (A-5) and D.K.Gupta(A-7) stands dropped by the order of Ld. Predecessor dated 17.11.2017, but the said order was passed on the ground of invalidity of the prosecution sanction against them under Section 19 of the PC Act. It is not the order on merits and thus, the said order will have no bearings on the merits of the case against the accused persons who have faced the trial. Even otherwise, the said order of dropping the proceedings is under challenge before the Hon'ble High Court. The private accused persons now facing trial cannot claim any benefit out of the said order .
38.2 It is further argued by Ld. Sr. PP for CBI that another crucial circumstantial evidence for proving the criminal conspiracy between the MCD officials and the private persons named is the false demolition report Ex.PW-28/10 filed by A-5, J.E Building. The contents of the said demolition report have been proved to be false. Rather, it shows that only cosmetic demolition was carried out which again raises a finger of suspicion against all the accused persons. Apart from the said documents, the reliance is also placed upon the testimony of Shanker Lal (PW-20) S/o Jhabar Ram, Civil Contractor and Shanker (PW-21) S/o Palku Singh who worked as Chowkidar at the premises in question. They both deposed that MCD officials used to visit during the time when the construction was going on. The sealing order of D.C, South Zone, MCD, too was CBI No.65/2021 Page 39 of 90 40 not executed by A-4, which again shows collusion between the accused persons. Thus, it is apparent that MCD officials named in the present case who worked either as Junior Engineer or Assistant Engineer in the Building Department, South Zone , MCD failed to discharge their duty of stopping unauthorised construction or take necessary against them due to ulterior motives. Hence, their case stands proved against the accused no.1,2,3 and 8 for the offence of criminal conspiracy.
Arguments on behalf of Raj Sarogi (A-1) & Manju Sarogi (A-2)
39. Per contra, Ld. Counsel for A-1 and A-2 argued that they are the owners of the premises in question and had engaged the services of A-3 for raising the construction. The building plan for raising the construction was duly got approved from MCD firstly on 25th of November 1997 and thereafter revised on 6 th of January 1999. The last plan allowed raising of three and a half storey at the said premises. As far as A-2 is concerned, no iota of evidence has come on record to show that she had any involvement at all in raising of the construction. She has been arrayed as an accused merely because she is the co-owner of the premises. As far as the aspect of unauthorised construction is concerned, the same was compoundable at that point of time.
39.1 Ld. Counsel for A-1 and A-2 further argued that witness viz; Rakesh Kumar (PW-10) and Shanker Lal (PW-20) turned hostile and denied any connect of the accused person with any CBI No.65/2021 Page 40 of 90 41 MCD officials in raising of the construction at the site. Thus no evidence of criminal conspiracy has come on record .
39.2 Apart from the said factual arguments, Ld Counsel further argued that no evidence on record has come for proving the substantive offence under Section 13 (d) of the P.C Act as there is no demand or acceptance of bribe which is sine-qua-non for proving the said offence. The public servants are no longer accused persons in the present case, therefore, without the presence of the public servants, the charge against them for the offence under Section 120-B read with Section 13 (1) (d) and 13 (2) of PC Act does not survive.
39.3 Ld. Counsel for A-1 & A-2 has relied upon the following judgments in support of his pleas:
(i) Jawahar Lal Das V. State of Orissa 1991 AIR 1388.
(ii) Pavana Dibbur V. Directorate of Enforcement 2023 SCC OnLine SC 1586 Arguments on behalf of J.K. Malhan (A-3)
40. Ld. Counsel for A-3 has argued that Ld. Predecessor was pleased to drop proceedings against all the accused public servants on the ground of invalid sanction under Section 19 of the PC Act vide order dated 17.11.2017. Therefore, the private persons cannot be convicted for the offence of conspiracy under Section 120-B IPC, as the allegations are that they conspired CBI No.65/2021 Page 41 of 90 42 with public servants to commit the offence under Section 13 (1)
(d) and 13 (2) of PC Act. The conspiracy to commit substantive offence cannot be established without the prosecution of public servants.
40.1 The second aspect of legal arguments advanced on behalf of A-3 is that as per the Constitutional Bench of Hon'ble Supreme Court in Neeraj Dutta V. State of NCT of Delhi (2023) 4 SCC 731, the proof of demand and acceptance of illegal gratification is a sine-qua-non in order to establish the guilt of the accused public servant under Section 7 and 13 of PC Act. In the present case in hand, it is not even the prosecution case that public servants ever demanded or accepted any legal gratification from anyone. Therefore, the offence under Section 13 (1) (d) of PC Act does not survive.
40.2 It is further argued on behalf of A-3 that as far as irregularity if any, if any in issuance of Form C and D are concerned, I.O Om Prakash (PW-28) in his cross-examination admitted that he did not seize the file containing noting with respect to the movement of Form C & D. PW-28 did not even file the bylaws/rules governing the procedure for the issuance of Form C & D. Therefore, there is no evidence to show that form C & D were issued in violation of any bylaws or rules of MCD. M.R Mittal (PW-14), A.E and B.K. Garg (PW-15), the then J.E too in their cross-examination admitted that the said Forms can be issued even when the building was not complete and without issuance of completion certificate.
CBI No.65/2021 Page 42 of 90 4340.3 Further, on the allegations of cosmetic demolition being carried out by public servants, the records (part of D-4 and D-5) of MCD itself show that the demolition was carried out from 01.12.1999 to 03.12.1999. On 06.12.1999, show cause notice was issued by concerned Executive Engineer (Building) South Zone, MCD to A-1 giving him 30 days time for removal of the remaining unauthorised construction. The said direction was given in pursuance of the directions of Deputy Commissioner, South Zone (part of D-5 page 2/N). Even the sequence of events which occurred after the completion of said 30 days again shows that the concerned J.E had put the report stating that the builder had not rectified the non-compoundable deviations. Therefore, no special treatment was given to the accused persons as has been alleged by the prosecution.
40.4 It has been further argued on behalf of A-3 that reliance placed upon the Technical Committee Report (D-36 and D-37) qua unauthorised construction is misplaced as the report was given on the basis of inspection carried out on 20 th November,2000 i.e after around five months of the registration of the present case. It has also come on record that the construction in the building even carried out after March 2000. Therefore, it cannot be stated that the demolition report earlier given by J.E was false or the report qua extent of unauthorised construction being incorrect.
40.5 It is further argued that as far as the charge of criminal CBI No.65/2021 Page 43 of 90 44 conspiracy is concerned, not even a single witness has deposed that any of the five persons named in the present case met the named public servants. The mere occasional visits by unidentified MCD officials cannot be the ground for presuming any criminal conspiracy or agreement between them.
40.6 In support of his arguments, Ld. Counsel for A-3 has relied upon the following judgments:
(i) Neeraj Dutta (supra) case
(ii) A. Subair V. State of Kerala (supra) case
(iii) A.K. Ganjoo V. CBI (Criminal MC No. 2384/2011)
(iv) Raj Kumar Singh @ Raju @ Batya V. State of Rajasthan (2013 ) 5 SCC 722
(v) Jawahar Lal Das V. State of Orissa 1991 AIR 1388.
(vi) Mahal Singh (supra) case Arguments on behalf of A.K. Ganjoo (A-8)
41. Ld. Counsel for A-8 also argued on the similar lines by stating that there is no evidence on record to show any agreement to do any illegal act as required under Section 120 B IPC. The mere negligence in not supervising the construction by the Architect cannot be the ground for presuming any criminal conspiracy. It has also come on record that A-8 is a physically handicapped person and being incapable to even enter the under- construction building. Further, the reliance is placed upon para 7.1 of Building Bye-laws which clearly puts the onus upon the owner of the building for carrying out the work in accordance with the bye-laws. The role of the architect comes at the stage of giving notice of completion which was never issued in the CBI No.65/2021 Page 44 of 90 45 present case.
41.1 No evidence has come on record of A-8 having taken any undue advantage or pecuniary advantage from any of the person related in the present case which is sine-qua-non under Section 13 (1) (d) of PC Act. In a similar case, the accused herein has been discharged by the Hon'ble Delhi High Court in case titled A.K. Ganjoo V. CBI (Criminal MC No. 2384/2011).
41.2 In support of his arguments, Ld. Counsel for A-8 has relied upon the following judgments:
(i) Bhagwan Swarup Lal Bishan Lal V. State of Maharashtra (1964) 2 SCR 378
(ii) State of Maharashtra V. Som Nath Thapa 1996 (4) SCC 659
(iii) K.R Purushotaman V. State of Kerala (2005) 12 SCC 631
(iv) Kanti Prasad Tyagi V. State 2014 (142) DRJ 351
(v) Major S.K. Kale V. State of Maharashtra 1977 SCC ( Crl.) 356.
(vi) S.P Bhatnagar V. State of Maharashtra 1979 SCC (Crl) 323.
(vii) R. Sai Bharathi V. J. Jayalalitha & Ors 2004 Cr. Law Journal
286.
Rebuttal Arguments on behalf of CBI.
42. In rebuttal, Ld. Sr.PP for the CBI argued that it was the duty of the Zonal Office to ensure the check upon the CBI No.65/2021 Page 45 of 90 46 unauthorised construction and due to this reason only, the concerned Junior Engineer and Assistant Engineer who were supposed to periodically visit the premises have been named as accused after getting their prosecution sanction.
42.1 As far as the issue of demand and acceptance of bribe is concerned and the reliance placed upon the judgments referred by the accused persons is misplaced as all the said cases pertain to the trap cases where the bribe was demanded by the public servants and subsequently accepted. The present case is of criminal misconduct under Section 13 (1) (d) sub-clause (ii) &
(iii). The object of the criminal conspiracy was to give pecuniary advantage to the private individuals as they got benefit from the unauthorised construction raised.
42.2 Further, as far as the argument of irregularity in issuance of Form C & D is concerned, it is proved from the record Form C & D were issued with a gap of seven days which is not feasible. The instructions issued by MCD Commissioner for thorough checking of deviations in constructions before issuance of the said Forms were also not followed which again reflects the connivance and conspiracy of the MCD officials of Zonal office. The reliance is placed upon page 47 and 39 of D-2 which is the certificate of A-8 to MCD with the undertaking that he will ensure that the construction is carried out as per the sanction building plan. The factum of unauthorised construction is not rebutted by any of the accused persons which in turn, shows the criminal conspiracy between the MCD officials and the private CBI No.65/2021 Page 46 of 90 47 individuals who are the beneficiaries.
Legal Objections as to the Maintainability of the Charges
43. Ld. Counsels for the all the accused persons argued that the prosecution has failed to establish the case of demand and acceptance of bribe which is "sine qua non" for the offence under Section 13 (1) (d) read with 13 (2) of PC Act. They have been charged for the offence punishable under Section 120-B IPC read with Section 13 (1) (d) read with 13 (2) of PC Act and therefore, in absence of any evidence of demand and acceptance of bribe, they cannot be convicted in the present case. In this regard, the reliance is placed upon judgment in case Neeraj Dutta (supra) case and others, A. Subair V. State of Kerela (2009) 6 SCC 587, Mahal Singh V. State of Delhi 2023 SCC OnLine Del 5334, Kanti Prasad Tyagi (supra) case and Major S.K. Kale (supra) case.
43.1 The case of the prosecution herein is not a trap case involving demand and acceptance of bribe by the public servant with a motive or reward for doing or forbearing to do any official act. Rather, the case of the prosecution is that of criminal misconduct by a public servant's punishable under Section 13 (1) (d) (ii) r/w 13(2) of the PC Act. As per the allegations in the chargesheet, the public servants who at that point of time were either working as J.E or A.E ( Building Department), South Zone, MCD, abused their position as such. They failed to take any action qua raising of unauthorised construction by the private individuals i.e A-1, A-2, A-3 and A-8 in order to give CBI No.65/2021 Page 47 of 90 48 pecuniary advantage to them. Therefore, the reliance placed upon the aforementioned judgments on the aspect of demand and acceptance of bribe is misplaced. All the said cases as referred were under Section 7 and Section 13 (1) (d) read with Section 13 (2) of PC Act.
43.2 The said issue of prosecution of public servant for criminal misconduct and as to whether the establishment of demand of illegal gratification being necessary has been discussed by the Hon'ble Delhi High Court in case titled Madhu Koda Vs. State through CBI, Crl. Appeal No. 1186/2017 dated 22.05.2020. The relevant paragraphs of the said judgment are reproduced hereunder for the sake of convenience and clarity:
"30. Although the above proposition appears attractive, a closer examination of the aforesaid decisions clearly indicate that the same cannot be read as authorities for the proposition that demand of an illegal gratification is a necessary condition for convicting a public servant for an offence of misconduct, as contemplated under Section13(1)(d) of the PC Act. This is for two reasons. First of all, the plain language of Section 13(1)(d) of the PC Act does not indicate that a demand of illegal gratification by the public servant is an essential ingredient of an offence of misconduct.............
35. In this case also, the prosecution had neither established nor was required to establish that the accused had demanded or obtained any illegal gratification for obtaining for any person any valuable thing or pecuniary advantage.
36. Thus, the contention that it is necessary for the prosecution to establish a demand for illegal gratification for sustaining the allegation of an offence under Section 13(1)(d) of the PC Act as in force prior to 26thJuly 2018, is without merit.CBI No.65/2021 Page 48 of 90 49
37. Having stated the above, it is also necessary to observe that mere arbitrary or unreasonable exercise of official power to confer any benefit or pecuniary advantage to an unconnected party, may be not be sufficient to impute that the exercise of such power is culpable misconduct under sub-clause (ii) of clause (d) of sub-section (1) of Section 13 of the PC Act. First of all, it would be necessary for the prosecution to establish that the public servant had abused his official position; that is, used it for wrongdoing and for a purpose he ought not to have. Secondly, the same was for securing a valuable thing or pecuniary advantage for himself or for any other person, without any public interest. Obviously, if the third person, who has acquired a valuable thing or pecuniary advantage, is unconnected with the public servant, it would be difficult to accept that the conduct of the publics servant is culpable in terms of Sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the PC Act."
43.3 Thus, the legal position has been elaborately explained above with respect to the interpretation of the clause (ii) (d) of Section 13 (1) of PC Act. The prosecution of the offenders under the said Clause does not require establishment of demand and acceptance of bribe. The prosecution rather has to establish the case of abuse of office by the public servant by arbitrary and unreasonable exercise of official. The object of said exercise is to confer benefit or pecuniary advantage either to himself or to any other private individual without any public interest. In the present case, the allegations are that the concerned JE/AE, Building Department, South Zone , MCD abused their office so as to give undue pecuniary advantage to owners/builder named herein. Therefore, the argument regarding non-maintainability of the charge in absence of demand and acceptance of bribe is without any legal basis. The judgments relied upon are not applicable in the present case.
CBI No.65/2021 Page 49 of 90 5043.4 The second legal argument addressed on behalf of the accused persons is on the ground that all the public servants named in the present case viz; Ranjan Shukla (A-4), Yogender Pal (A-5), Ashwani Kumar (A-6) and D.K. Gupta (A-7) stand discharged. Therefore, the case of the prosecution that private persons now facing trial hatched the criminal conspiracy with public official's does not at all survive.
43.5 To appreciate the said contention on behalf of the accused persons, the sequence of the events which took place in the present case and the grounds of discharge of the said accused persons are the most crucial one. As far as public servant A.K. Batra (A-6) is concerned, he was discharged even prior to framing of charge by the Hon'ble Delhi High Court on 04.07.2011 in Criminal MC No. 976/2009.
43.6 Now coming to role of other public servants who were charged vide order dated 19.11.2016 for the offence under section 13(1) (d) r/w 13(2) of PC Act and offence u/s 120 B IPC. However, said remaining public servants i.e. Ranjan Shukla (A-
4), Yogender Pal (A-5) and D.K. Gupta (A-7) were then discharged during the course of trial in the present case vide order dated 17th November 2017 on the ground of invalidity of the prosecution sanction. The said order was passed after the examination of Sanctioning Authority Satyendra Pal Aggarwal (PW-17). After the discharge of the said public servants/MCD officials, A-1 and A-2 also filed the application under Section CBI No.65/2021 Page 50 of 90 51 258 Cr.P.C seeking dropping of proceedings, A-3 filed the application under Section 19 seeking the same relief and lastly A-8 filed the application under Section 245 Cr.P.C seeking discharge. Thus, the plea now raised has already been taken by the all the said private individuals and the said applications stands dismissed by the Ld. Predecessor vide order dated 2 nd of July 2022.
43.7 It has already been held by the Ld Predecessor that the question of invalidity of sanction under Section 19 of PC Act is not applicable qua them and therefore, they cannot take any benefit qua its invalidity as given to the public servants.
43.8 Even otherwise, the charge framed against the said private individuals is that of entering into criminal conspiracy with the public servants and the object of the criminal conspiracy was to carry out illegal and unauthorised constructions by abuse of official position by the public servants. Even otherwise, the discharge order dropping of proceeding order dated 17 th November 2017 quite apparently reflects that the said proceedings were dropped merely on account of invalidity of sanction with no discussion on merits of the charge. The said dropping of proceedings against the public servants does not exonerate them of the charges and the prosecution has all the rights to approach the Sanctioning Authority with the fresh request for sanction for their prosecution as has been held by the Hon'ble Supreme Court in case titled Nanjaappa V. State of Karnataka MANU/ SC/0788/2015.
CBI No.65/2021 Page 51 of 90 52Thus, legal grounds taken by Ld counsel for all the accused persons do not hold good and stand rejected.
Appreciation of Arguments/Analysis of Evidence
44. Now coming to the factual matrix of the case . The case of the prosecution initiated consequent to the registration of the RC/FIR on 24th of August 2000. The said RC/FIR was registered on the basis of source information against A-1 and A-2, the owners of the building, A-3 being the builder and A-8 being the Architect and some of the officials of MCD Building Department. The allegations were that the MCD officials by abusing their position failed to take action against the owners and builder while the unauthorised construction was being raised in violation of sanctioned building plan. The entire case of the prosecution rests upon the allegations of criminal conspiracy and for proving the same the prosecution has primarily relied upon the circumstantial evidence. This is the sole charge charge framed against the private individuals now facing trial.
45. Before discussing various facets of circumstantial evidence, the contents of the charges framed against the accused persons needs to be deciphered. The charge framed against the private individuals as well as the public servants (since discharged) is reproduced hereunder:
"CHARGE I, Jitendra Kumar Mishra, Special Judge (PC Act), CBI, Karkardooma Courts, Delhi, do hereby charge CBI No.65/2021 Page 52 of 90 53 you accused (1) Raj Sarogi, (2) Smt. Manju Sarogi, (3) Sh. J.K. Malhan, (4) Sh. Ranjan Shukla, (5) Sh. Yogender Pal (7) Sh. D.K Gupta & (8) Sh. A.K. Ganjoo as under:
That you all above accused persons being public servants during the year 1997 to 2000, in furtherance of your common intention agreed to hatch and entered into criminal conspiracy with each other with an object of causing undue pecuniary advantage to themselves and/or owners/builders by allowing them to carry out illegal and unauthorised construction on the property bearing No. E-23 Poorvi Marg, Vasant Vihar, New Delhi, by abusing your official position and further facilitated your co- accused persons namely Sh. Raj Sarogi (A1), Smt. Manju Sarogi (A2), Sh. J.K. Malhan (A3) ( Builder & Proprietor of M/s J.M Construction Pvt Ltd ) and Sh. A.K. Ganjoo (A8) Architect in raising the unauthorised construction with an object to cause pecuniary advantage to the above-named co-accused persons and thereby you all committed criminal offence punishable U/s 120-B IPC r/w Section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988.
And I direct that you all be tried by this Court for the above-said offences."
45.1 So, as per the contents of the charges framed against the accused public persons as well as private persons, the criminal conspiracy is alleged to be hatched somewhere during the year 1997 to 2000. The object of the agreement to criminal conspiracy was to cause undue pecuniary advantage to the owners/ builders by allowing to carry out illegal and unauthorised construction. It has already been observed that for CBI No.65/2021 Page 53 of 90 54 proving the said charge of criminal conspiracy amongst the accused persons prosecution has primarily placed reliance upon the circumstantial evidence.
45.2 Before discussing the merits of the said circumstantial evidence, the underlying principles of governing the cases based upon circumstantial evidence needs to be appreciated. The landmark judgment of Hon'ble Supreme Court in this regard is Sharad Birdhichand Sarda V. State of Maharashtra 1984 AIR SC 1622 wherein the principles of appreciation of circumstantial evidence were culled out as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 CrlLJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except CBI No.65/2021 Page 54 of 90 55 that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
45.3 Another judgment of Hon'ble Supreme Court in case titled Raj Kumar Singh (supra) case on the said aspect is relevant and para-21 of the same is reproduced hereunder for the sake of clarity and convenience:
"21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt."
45.4 So, in view of the settled legal proposition of law in the cases governing the circumstantial evidence, the merits of the CBI No.65/2021 Page 55 of 90 56 present case proved by the prosecution needs to be looked into.
Unauthorised Construction.
46. The first set of allegations raised by the prosecution are that right after the sanction of first building plan on 8 th July 1997, the unauthorised construction was carried out with the connivance of officials of Zonal Building Department, MCD. It is the admitted fact that A-1 and A-2 became owner of the premises in question which measures about 1200 square yards by virtue of sale deed dated 25 th of September 1997. The said sale deed was executed in terms of earlier agreement to sell dated 21st September 1982. Accordingly, A-1 and A-2 approached the MCD with the proposed building plan for construction of three and a half storey building on 8 th of July 1997. The said application was moved with Headquarter, MCD, Town Hall which was the Competent Authority to sanction the building plan.( Part of D-3 Ex. A-1/P-9 (collectively P-19 & P-20) The said plan was submitted through A-8 being the Architect alongwith the existing building plan. But the said building plan submitted was revised by the applicants on 13 th Aug. 1997 by reducing it from three and a half storey to two and a half storey. The said plan for two and a half storey building was sanctioned vide File No. 749/B/HQ/97 dated 25 th of November 1997 and conveyed to the owners. Again, owners submitted another application through their Architect (A-8) alongwith revised building plan for raising/ constructing three and a half storey on 21st Aug. 1998. The said revised building plan was again acted upon by HQ, MCD and an inspection was carried out by B.K. CBI No.65/2021 Page 56 of 90 57 Garg (PW-15), the then J.E (Building). He submitted his inspection report dated 1st September 1998 Ex.PW-15/A (Part of D-2), which is the most crucial document.
46.1 Surprisingly, contents of the said report puts over a serious question mark over the said first limb of the allegations of the prosecution that unauthorised construction was raised since the beginning i.e when the first building plan was sanctioned in the year 1997. As per the report Ex.PW-15/A, Sh. B.K Garg (PW- 15 ) submitted as under:
"11) Site inspected the work seen in progress at basement and ground floor and the construction carried out at site so far within the permissible limits of B.B.L 1983 & MPD2001 with its amendments. The covered area constituted at site at basement floor is more than the covered area sanctioned vide file no. 749/B/HQ/97 dt. 25.11.97. But the representative of the applicant clarified that the same is within the permissible limit and provisions made in the gazette notification dated 23/7/98 and he is ready to pay the compounding fees for the same as per the provisions of building bye laws which may be taken in order ................."
47. Thus as per this categorical report, the construction as on 1st of September 1998 was being carried out within the permissible limits of Building Bye-laws 1983 as well as MPD- 2001. Though he reported that the covered area at the basement was more than the sanctioned plan dated 25 th November, 1997, but the same was within the permissible limit of Gazette Notification dated 23rd of July 1998. No recommendation was made by him or any of his senior officer's who approved his inspection report qua the said additional permissible construction at the basement. So, it has to be presumed that as on the date of CBI No.65/2021 Page 57 of 90 58 submission of said report, the construction was being carried out as per the prevailing building bye-laws.
48. The connected allegations to the said fact is the claim of the prosecution that the first report given by Ranjan Shukla (A-
4), JE dated 07.08.1998 at the time of issuance of Form C was false as there were encroachments at the set back area which he failed to report. The said allegation, on the face of it, appears to be incorrect when seen in light of the above-referred un-rebutted report Ex.PW-15/A ( Part of D-2). It is not the case of the prosecution that the report dated 01.09.1998 was also false one or the officials at Headquarter MCD were also involved in the conspiracy. The report of B.K. Garg (PW-15) only states that though coverage of basement area is more than the sanctioned plan, but it is within the permissible limit of Gazette Notification dated 23rd of July 1998. His recommendation for approval of revised building plan never recommended for carrying out any rectifications or demolition in this regard. In case there were any encroachments on the set back area on the left, right or rear side, he should pointed out the same and recommended for it rectifications/removal before approving the revised plan. But none of the said recommendation was made by BK Garg JE, HQ, MCD after inspection.
48.1 The Investigating Officer (I.O) Om Prakash (PW-28) too admitted about the contents of the said report (Ex.PW-15/A) of B.K. Garg (PW-15). PW-28 further admitted to the fact that the said revised building plan was sanctioned on 6 th of January 1999 CBI No.65/2021 Page 58 of 90 59 after depositing of compounding fees and compliance of all the short-comings. He further admitted to the fact that he did not find any factual error in the report or noting made by B.K. Garg (PW-15), Junior Engineer or concerned Executive Engineer. Therefore, the first set of allegation regarding the report of Ranjan Shukla (A-4 ) (since discharged), the then J.E ( Building Department) South Zone dated 07.08.1998 (Part of D-6, Ex.PW- 18/B) being false having not reported about encroachments on the set back area is rebutted by the subsequent document of the prosecution itself. It also rebuts the case of prosecution regarding unauthorised construction since passing of first Sanction Plan.
49. The second set of incriminating circumstance alleged by the prosecution for proving the case of criminal conspiracy among the private individuals and the MCD official is the factum of unauthorised construction being allowed to be raised and the demolition of unauthorised construction taken up in December 1999 to be only a cosmetic exercise.
49.1 The prosecution has alleged that the officials of MCD, Building Department, South Zone, MCD viz; D.K. Gupta (A-
7) A.E (Building) and Ranjan Shukla (A-4) J.E. (Building) as well as AK Batra ( AE) ( Since discharged ) were under the obligation to inspect the building at the various stages of construction but they deliberately omitted to do so and the reasons for the same was dishonest intention. The object behind said failure to perform the duty was to give pecuniary advantage CBI No.65/2021 Page 59 of 90 60 to the private persons. The basis of the said allegations is the obligation upon the aforesaid J.E and A.E of Building Department as specifically enumerated in Instructions of Year- 1988 issued by MCD. The Sanction Order (Ex. PW-17/A) too reiterates the said fact that the said officials failed to follow the Instructions of Year-1988. The second limb of the obligation under said instruction was to intimate about the inspection to Executive Engineer (Co-ordination, HQ MCD). But, surprisingly, the said instructions of the Year-1988 were neither seized during investigation nor were examined by the investigating authority. Therefore, in the said backdrop, the oral version of MCD officials become relevant.
49.2 The first crucial witness of proving the said fact is Satyendra Pal Aggarwal (PW-17), the then Commissioner, MCD/ Sanctioning Authority. He proved the Sanction Order as Ex. PW17/A, but, his cross examination on the said aspect is the most crucial one. He admitted in his cross examination that the instructions of the year 1988 as mentioned in the Sanction Order were not specifically put up before him. He, further, in the cross examination stated that from the period April 2000 to April, 2002, there was no post in the name of Executive Engineer (Co- ordination) in MCD. He further stated that he did not hear about the said particular post during his posting at MCD. PW-17, thereafter, tried to wriggle out of the non-examination of said Instructions of 1988 by claiming that the general instructions existed about inspection of the buildings under construction at various stages by JE's and AE's. But, admittedly, the Sanction CBI No.65/2021 Page 60 of 90 61 Order (Ex.PW-17/A) talks about specific Instructions of the year 1988, but surprisingly, neither the Sanctioning Authority nor the Investigating Authority in this case examined or seized those instructions. Rather, PW-17 himself put a question mark over the said instructions by categorically admitting that there was no post in the name of Executive Engineering (Co-ordination) at MCD to whom as per the Sanction Order, the said report of periodical inspection, was to be submitted by JE/AE. Therefore , the testimony of PW-17 itself puts a question mark over the said complicity as alleged.
49.3 The second most crucial version in this regard is that of Mr. M.R Mittal (PW-14) who was A.E (Civil) Building HQ, MCD in the year 1997-98 when the sanction plans were approved. He clarifies about the said issue in the cross examination by deposing as under:-
"After receipt of the sanction plan approved by building HQ, the officials of the Zone were not required to visit the on-going construction site on daily basis, but they were under obligation to visit the site at the time of receipt of a request for issuance of C Form, issuance of D- Form, issuance of completion certificate, if any complaint in this respect of on going construction in relation to a particular building or if on visual inspection any additional floor was notice by the officials of the building department."
49.4 So, his version too proves that there was no obligation on the part of concerned JE or AE of the zone of building department to periodically visit for seeing the construction of the building in question. They were supposed to visit only on coming across any complaint or through any other mode. Apart CBI No.65/2021 Page 61 of 90 62 from the versions given by PW-14 and PW-17, none of the other witness has deposed about the said fact concerning the obligation on the part of the concerned AE or JE of the Zone for monitoring the construction for finding out the unauthorized construction.
The very said issue has also been discussed by the Hon'ble High Court in its order dated 04.07.2011 concerning Ashwani Kumar Batra (A-6) wherein it has been observed that the MCD did not constitute the three teams to carry periodical checks of the building as envisaged in their order/Instructions dated 31.10.1988. Thus, it has to be held that the said instructions despite being issued, were never acted upon.
49.5 Even if, for the sake of arguments, it is believed that the said officials were duty bound to periodically inspect the property in question, which as per the case in hand they failed to do so, no assumption can be drawn of said failure being on account of some criminal conspiracy. Mere negligence in the performance of official duty cannot lead to any presumption of it being inspired due to extraneous reasons. The positive evidence has to be produced by the prosecution in this regard that the said omission was on account of some extraneous reasons which seems to be lacking herein.
49.6 The very same issue has been discussed by the Hon'ble Supreme Court in Chenga Reddy And Ors vs State Of Andhra Pradesh, AIR 1996 SC 3390 as under :-
"On a careful consideration of the material on the record, we are of the opinion that though the prosecution CBI No.65/2021 Page 62 of 90 63 has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet. non of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellant and wholly incompatible with their innocence.
In Abdulla Mohammed Pagarkar v. State (UnionTerritory of Goa, Daman and Diu), [1980] 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and con-tractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the Stale may have suffered financially, particularly by allot-ment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them"
49.7 In the present case too the raising of unauthorised construction by the owners my raise strong suspicion of involvement of MCD officials, but that in itself cannot establish their guilt.
50. The next set of incriminating circumstance against all the accused persons named in the charge-sheet is the demolition activity qua the unauthorized construction. It was carried out CBI No.65/2021 Page 63 of 90 64 during the period starting from 01.12.1999.
51. It is the case of the prosecution that only a cosmetic demolition was carried out which shows criminal conspiracy between MCD officials and private persons named herein. Y.P. Singh (A-5) J.E in his report qua demolition claimed that he demolished eight servant quarters alongwith toilet blocks at the the terrace floor, extended balcony of third floor, two guard posts and partition walls etc. However, during the investigation, it was found that only four servant quarters were demolished. He failed to demolish the major part of unauthorized construction which was subsequently found out in the Technical Report (Ex. PW- 19/B).
51.1 The documents (part of D-5 Ex.PW28/6 collectively) are relevant in this regard and throws light over the sequence of events which took place. Firstly the property in question was booked for raising of unauthorised construction and subsequently, demolition action thereupon. The first document in this regard is the First Information Report (FIR) dated 01.12.1999 (Ex.PW-18/C) wherein the said unauthorized construction was booked by the JE Y.P Singh (A-5) concerned. The description of the unauthorized construction in the said report, itself puts a question mark over the case of the prosecution. The concerned JE himself booked the property for unauthorised construction and record does not in any manner reflect that the said first action was initiated upon instructions of some higher official of MCD or any other law enforcement CBI No.65/2021 Page 64 of 90 65 agency. The JE concerned (A-5) who is stated to be one of the conspirator on his own acted against the construction which demolishes the case of prosecution of the involvement of JE/AE in allowing the raising of unauthorised construction. If indeed they were acting in collusion with owners of the building , then what promoted them to book the property on their own.
51.2 As per the said report of JE, it was noted down that there are deviations in the property under construction against the Sanction Plan dated 06.01.1999 (Part of D-5 Ex.PW-28/6) in the shape of excess coverage at basement, ground floor, first floor, second floor and third floor. He further reported that there is infringement in the set back at all the floors. Thereafter, the note in this regard was put up by the J.E. concerned on 03.12.1999 wherein he informed A.E as well E.E about booking of the property for unauthorized construction as well as issuance of show cause notice u/s 343 and 344 of DMC Act. He further reported that no reply to the show case notice has been received and further orders were sought. Upon the same vide note dated 03.12.1999 the AE (Building), on the very same day recommended for issuance of show cause notice u/s 345-A of DMC Act which authorizes for sealing of the building where unauthorized construction has been carried out. The said note traveled right upto Deputy Commissioner, South Zone, MCD and accordingly the show cause notice was ordered to be issued.
51.3 The second note was, thereafter, put up by the J.E CBI No.65/2021 Page 65 of 90 66 building on 06.12.1999 (Part of D-5 Ex.PW-28/6) wherein he reported that as per the direction of the higher authorities, the demolition programme was fixed and following actions were taken. The relevant part of the note is reproduced hereunder:-
"8 servant rooms demolished above third floor completely. Two Guard Post and partition walls in front set backs at Ground and extended balconies at Second and Third Floors were also demolished.
Apart from above, booked file No. 123/B/UC/SZ/99 in the shape of deviations against sanctioned bldg. plan i.e excess coverage at BM, GF, FF, SF & Third Floor and infringement in set back at GF, FF, SF and Third Floor. The dwelling units are as per sanctioned bldg. plan. Subsequently, sealing action U/s 345-A of DMC Act has been initiated. Further action will be taken as per policy of MCD."
51.4 The said note again travelled upto the Deputy Commissioner, South Zone, MCD, who interestingly recommended for no further action for demolition and giving one month's time to the owner for removing the unauthorized construction/ deviations. It was further directed that in case of failure to do so within stipulated period, the demolition may be resumed.
51.5 Accordingly, the notice was issued to (A-1) on 07.12.1999 ( part of D-5, Ex.PW-28/6 ( collectively ) giving 30 days' time for removal of the unauthorized non-compoundable deviations. The next report in terms of the compliance of the said notice is dated 10.01.2000 (Part of D-5 Ex.PW-28/6). The contents of the said report puts the entire case of the prosecution in a dock. The contents are reproduced hereinunder:-
"Sub: Sealing case in respect of Property No. E-23, Poorvi CBI No.65/2021 Page 66 of 90 67 Marg, Vasant Vihar, New Delhi, U/s 345A of DMC Act 1957.
As per instructions from EE (B)/SZ I alongwith AE (B) Inspected the above mentioned premises and found that the owner/builder has not rectified the non-
compoundable deviations and on the other hand has repaired some portions of the building.
Submitted please Sd.
J.E (Bldg.)/SZ."
51.6 Though the identity of said JE building is not proved by the prosecution, but as per the posting details record, he is Y.P. Singh (A-5). He is one of the accused /conspirators as all the JE (Buildings) during the relevant period have been charge-sheeted. It is apparent that the said JE, in a prompt manner after the passing of the stipulated period, reported to his higher officials about non-rectification of non-compoundable deviations. The second fact he reported which is the most crucial one that the owner has repaired some portions, which it appears, was earlier demolished. The veracity of the said report is uninvestigated.
51.7 It is not the case of the prosecution that the said report is manipulated one or was inserted at later period of time by MCD officials in order to save their skin. Therefore, in the said backdrop, the contents of the said report have to be taken as true and correct which puts a question mark over the claim of the prosecution regarding the officials of Building Department of the South-zone acting in conspiracy with the private individual's. In case there was the conspiracy, the concerned JE could have easily not reported or given a false report after the expiry of stipulated time, which was given on the directions of Deputy CBI No.65/2021 Page 67 of 90 68 Commissioner, South-Zone, MCD. On the contrary, the J.E rather reported about the misconduct on the part of the owners of having repaired the portions of the building which where demolished in the previous exercise of demolition.
52. So, the sequence of events which seems to have taken place after booking of the property for unauthorized construction on 01.12.1999 till the said report of J.E (Building) dated 10.01.2000, rather reflects that Building Department, MCD Officials on their own initiated the action for booking the property and took necessary steps in this regard. In case they were acting in collusion with builders/owners, they could have conveniently omitted to perform their duty. It is also surprising to know that Naveen Garg, A.E Building, who was also involved in the abovesaid acts of booking the property, its demolition or issuance of show cause notice under Section 345A was not even named despite he being on the similar footing as that of other MCD officials. As per the case of CBI, only cosmetic exercise of demolition was carried out. If that was the scenario, the Note dated 30.12.1999 (Part of D-5 Ex.PW-28/6) of Naveen Garg, A.E ( Building) also puts him the dock.
Demolition Activity 52.1 The next limb of the case of the prosecution is that the demolition report furnished by J.E. through his note dated 06.12.1999 (part of Ex.PW-28/6 collectively of D-5) is false. The subsequent report ( D-37 Ex. PW-19/A) of Technical CBI No.65/2021 Page 68 of 90 69 Committee constituted after the registration of the present case found several of the said portions which were stated to be demolished to be in existence.
53. To appreciate the set of allegations, the period when the said inspection for Technical Committee constituted by the MCD for carrying out the inspection needs to be appreciated. As per the technical committee report, the technical committee visited the property for finding out its condition vis-a-vis the sanction plan dated 06.01.1999 somewhere in November, 2000. On the contrary, the first exercise of demolition was carried out with effect from 1.12.1999 to 03.12.1999. So there is a gap of around eleven months in the preparation of technical note from that of the first phase of demolition exercise. Even their Letter, Ex. PW19/A, dated 01.02.2001 also points out that they have prepared the note on the basis of existing structure.
53.1 In case, the investigating authority had found that the demolition report furnished vide note dated 06.12.1999 ( D-5, part of Ex.PW-28/6 ( collectively ) of JE building, South-Zone, to be false, then the query should have been put to the technical committee to report about the age of the unauthorized structure. Any finding as to the age of the unauthorized structure could have thrown light over the falsity of the earlier report. But the Letter dated 01.02.2001, Ex. PW-19/A reflects that no such request was made by CBI to the committee and, therefore, no such observation has been recorded by them in the report. Even no FSL opinion as to the age of the unauthorized construction CBI No.65/2021 Page 69 of 90 70 has been sought. Therefore, the averment about the demolition report ( D-5, part of Ex.PW-28/6 collectively) furnished by J.E Y.P. Singh to be false is not proved by the above discussed material .
54. Another crucial fact in this regard is the testimony of Jugal Kishore (PW-7) and Dinesh Kumar (PW-22). They both were deployed as Chowikdar in the said building during the period July-August 2000 and year 2000-2001 respectively. Their version too proves that the construction work was still being carried out, even after the booking of the property in December 1999 or the demolition action thereof. Another document of the prosecution i.e invoice no. 244 dated 28 th of March, 2000 ( part of D-28, part of Ex.28/12 collectively) issued by Jai Guru Agencies in favour of M/s J.M Construction Pvt. Ltd owned by A-3 too reflects that around 300 cement bags were delivered at the said property in March 2000. No investigation has been carried out as to the purpose of delivery of said huge quantity of cement at the property in question when it was already booked for unauthorised construction and demolition action being taken. The only inference could be that construction continued even till its sealing in April 2000.
54.1 I.O/ Om Prakash (PW-28) in the cross-examination when confronted with the said fact, pleaded ignorance. It appears that no investigation was carried out by Investigating Authority with respect to the said fact of raising of the construction in March/April 2000, till the time it was sealed despite the seizure CBI No.65/2021 Page 70 of 90 71 of above-referred invoice of dated 28.03.2000. Therefore, the said evidence too puts a question mark over the claim of the prosecution regarding the report of Y.P Singh (A-5), J.E qua the demolition carried by him to be false.
55. The another set of document relied upon by the prosecution D-7 (Ex.PW-28/9) also puts a question over their case. It is the demolition action cumulative report qua the unauthorised construction carried out by South Zone, Building Department, MCD. The said report was furnished by the Executive Engineer on 17.12.1999 wherein he informed about the demolition action taken by them and 17 programmes were fixed in this regard. Out of the said 17 programmes, only 8 demolition programme/drive were carried out as the police force was provided. The said report also concerns the property in question. The report again traveled upto Deputy Commissioner, South Zone who approved the same on 27 th of December, 1999 by appreciating the efforts and further recommended to keep it up. The contents of the said document seems to have not been investigated which also puts a question mark over the allegations of no prompt action being carried out by the officials of Building Department of South-zone at the property in question. The said Deputy Commissioner namely Sh. V.K. Dev was not even joined in the investigation and inquired about his supervision and comments upon the said demolition report Ex.PW-28/9 (D-7).
56. Further, the note dated 3rd of December 1999 part of D-8 CBI No.65/2021 Page 71 of 90 72 Ex.PW-28/10 elaborates about the demolition programme carried out in the area of Vasant Vihar from 1 st of December till 3rd of December 1999. The demolition was carried out at the property in question on two dates i.e 02.12.1999 and 03.12.1999 as numerated above in the note (already reproduced). The said report is accompanied with the photographs reflecting demolition in the property in question. But it is apparent from the testimony of PW-28 as well as the contents of the chargesheet that the authenticity of the said photographs was never investigated. No query was raised to the Technical Committee with the respect to the authenticity of the said photographs so as to reach to the conclusion that the report of demolition being false or cosmetic only. Hence, it has to be concluded that the said said set of circumstantial evidence too do not prove the case of the prosecution.
Form- C & D
57. The next set of incriminating circumstance alleged by the prosecution is the irregularities and favours shown to the accused persons (builder/owners) while issuing Form C and D by the concerned A.E and J.E i.e D.K. Gupta (A-7) and Ranjan Shukla (A-4) respectively. It is alleged that Ranjan Shukla (A-
4), J.E Building submitted a false report dated 07.08.1998 (part of D-6, Ex.PW-18/B) which led to the issuance of Form C. The second part of the allegation is that Form D was issued within seven days of issuance of Form C which again shows criminal conspiracy between the owners and others. It is physically CBI No.65/2021 Page 72 of 90 73 impossible to construct the entire building of said size within seven days.
58. To appreciate the said set of allegations, the first issue which requires to be seen is the guidelines or building-bye laws governing the process of issuance of said Form C and D. Surprisingly, none of the said guidelines, bye-laws were either seized or examined by the Investigating Officer (I.O) Om Prakash (PW-28) for the reasons best known to him. Rather, PW-8 in the cross-examination expressed his complete ignorance about the knowledge of building-bye laws of MCD or MCD Act. Without having even gone through the building-bye laws, PW-28 seems to have conducted the entire investigation and filed the charge-sheet by simply relying upon the Technical Committee report.
58.1 CBI has further claimed that the competent authority for approval Form C and D was Assistant Deputy Commissioner, MCD, but in the present case, the same was never forwarded by the A.E, J.E or Executive Engineer (EE) to ADC for approval. Then, the first question arises as to why the concerned Executive Engineer (EE) has not been named as an accused despite the said glaring lapse as per the case of the CBI. There is no answer to the said aspect in the entire charge-sheet.
58.2 PW-28/I.O in the cross-examination expressed ignorance as to the process of issuance of Form C and D. He further admitted the fact that he never examined or read over the CBI No.65/2021 Page 73 of 90 74 building bye-laws relating to the issuance of Form C and D nor the same have been seized. He claimed that he was informed and shown the building bye-laws by concerned officials at the relevant time, but no such witness has been cited or examined by prosecution who provided the said important piece of information to the Investigating Authority. Surprisingly, the Investigating Authority even failed to seize the file containing notings with respect to the movement of approval of Form C and D file as admitted by PW-28. So, it has to be observed that the said part of the allegations seems to have been levelled without examining even movement of the file having the notings or examining the concerned policy guidelines or building bye- laws .
58.3 The Sanction Order Ex.PW-17/A qua D.K. Gupta (A-7) and Ranjan Shukla (A-4) too alleges about the said lapses regarding issuance of Form C and D. It has further been narrated that the approval of concerned ADC/ZAC has not been taken as per the available records. But, the sanctioning authority Satyendra Pal Aggarwal (PW-17) while deposing in the Court, admitted to the fact that he never called for the files of Form C and D before according the sanction. So, the basis of the averment made in the Sanction Order (Ex.PW-17/A) that the approval was not sought from Competent Authority seems to be on the basis of conjectures or hearsay evidence.
58.4 As far as the Competent Authority for issuance of Form C and D is concerned, M.R. Mittal (PW-14), the then A.E, CBI No.65/2021 Page 74 of 90 75 (Building) Headquarter, MCD, in cross-examination puts the entire case of the prosecution on the said aspect in the dock. He claimed that at the relevant time, Z.E used to be the competent authority for issuance of Form C and D and not ADC as alleged in the chargesheet. Hence, it has to be concluded that the allegations of CBI that Competent Authority for issuance of Form C and D being of ADC, South Zone MCD is not proved by any evidence and is based upon hearsay.
59. The next limb of the case of the prosecution on the said aspect is the falsity of the report of A-4 dated 01.08.1998 (Ex.PW-18/B).
59.1 To appreciate the said report, the object behind the issuance of Form C and D needs to be looked into. M.R. Mittal (PW-14) clarified that Form C is issued before covering the sanitary lines and Form D is issued on completion of the structure as well as sanitary lines. The contents of Form C (Ex.PW-18/B) itself throws light over the object for issuance of said certificate to the owner. It is a kind of intimation by the owner of the building which is under construction and is certified by the plumber before covering the sewerage/drainage lines as well as ensuring its cleanliness. The concerned plumber gives a certificate that the sewerage lines have been thoroughly cleaned and the lines have been laid as per the approved plan.
59.2 Now, comes the role of concerned J.E which is CBI No.65/2021 Page 75 of 90 76 enumerated in the last part of the certificate by J.E and A.E under their signatures dated 07.08.1998. The J.E concerned gave the certificate (Ex.PW-18/B) with the following noting:
"I have inspected the site and found the sanitary lines as per BBL."
59.3 So, the limited object of the inspection only is to see that the sanitary lines and covering of drainage etc is done as per the Building bye-laws and it has nothing to do with the other part of construction being raised.
59.4 M.R Mittal (PW-14) too in his cross-examination clarified that issuance of Form C and D has no connection with the regularisation of the structure of the building. Even the said Forms can be issued before completion of the building which appears to be the case qua the premises in question. As far as the falsity of the report of J.E dated 07.08.1998 (Ex.PW-18/B) qua construction is concerned, it has already been observed ( Paragraph No.48 of judgment) that at that point of time, the revised sanction application was being processed at the MCD Headquarter, and the inspection was carried in the premises in question on 01.09.1998 by B.K. Garg (PW-15). He did not notice any illegality in the under-construction building except in the basement which too was permissible as per the building bye- laws prevalent at that point of time subject to payment of compounding fees. Therefore, the allegation that the report of J.E dated 07.08.1998 (Ex.PW-18/B) being false is not corroborated by other evidence. Even it appears to be mis- interpretation of the object behind issuance of Form C. CBI No.65/2021 Page 76 of 90 77
60. Now coming to the allegations qua the irregularity in issuance of Form D which is alleged to be issued within seven days of issuance of Form C. It is alleged by the CBI that it was not possible to raise the entire construction within a period of seven days. In this regard, the testimony of PW-3 ( plumber ) is relevant.
60.1 It has also been alleged that Rajender Samal (PW-3) who gave the certificate on Form D Ex.PW-3/A while the document was blank. PW-3 gave the certificate, as per the allegations, on the asking of A-1 and A-3. PW-3 in his cross-examination clarifies the said aspect by stating that he is an illiterate person and he used to sign Form C and D . He never used to fill up the forms himself wherever he worked. The said Forms used to be signed whenever there was work of new construction. In the present case, he signed the Form-D Ex.PW-3/A dated 14.08.1998 when GI and CI pipes were installed/fitted. Thus, his version clarifies that the sanitary work which is the object behind issuance of Form D was complete. The completion of the entire work in under- construction building cannot be equated with the completion of sanitary work.
60.2 The testimony of B.K. Garg (PW-15) in this respect is the most crucial one which throws light over the said issue and the required time gap between the issuance of Form C and D. He clarified that Form D is issued after laying down of sanitary lines in accordance with the building bye-laws. Raising of CBI No.65/2021 Page 77 of 90 78 complete structure as per the plan is not necessary for the same. He further clarified that one can apply for issuance of Form D after gap of two days. In the present case, the gap is of that seven days. In the absence of seizure of the concerned guidelines of building bye-laws in this regard, the version given by PW-15 on the said aspect has to be taken as true and correct. Thus by taking into account the version of B.K. Garg (PW-15), no irregularity can be said to be there in issuance of Form D Ex.PW-3/A within seven days of issuance of Form C (Ex.PW- 18/B). Further, PW-15 puts a question mark over the allegations over the said part of the allegations by claiming that Form C and D have no relation with the regularity or irregularity of the structure of the building. The said certificates can be issued even on the same day on the submission of the application form.
60.3 Therefore, the testimonies of above said witnesses do not in any manner probablise the allegations of any irregularity in issuance of Form C and D. Even otherwise, the most glaring aspect on the said part of the allegations is the non-seizure of relevant building bye-laws and guidelines as well as non- examination and non-seizure of noting files qua movements of said Forms.
Sealing Order and its Execution
61. The last set of incriminating circumstantial evidence relied upon by the prosecution to prove the allegation of criminal conspiracy between the MCD officials and the private individual's is the inordinate and unexplained delay in executing CBI No.65/2021 Page 78 of 90 79 the sealing order under Section 345-A of DMC Act. It was passed by the then Deputy Commissioner Vijay Dev, South Zone, MCD. The precursor to the passing of the said sealing order is the booking of the property for unauthorised construction and it has already been observed that the booking action was initiated vide FIR Ex.PW-18/C dated 01.12.1999 which was lodged by J.E Y.P Singh (A-5) ( Ex.PW-18/C part of D-5) and approved by Naveen Garg, A.E ( Building). That pursuant to the lodging of the said FIR, in terms of Section 343 and 344 of DMC Act, appropriate notices were issued to owner Raj Sarogi (A-1). Firstly, the notice dated 01.12.1999 was issued which is a show cause notice (part of file Ex.PW-28/6 collectively ) to A-1 seeking reply as to the unauthorised construction raised at the property in question. The reply to the said notice was to be furnished within three days. As the owner of the property in question refused to receive the said notice, the notice was affixed at the property on 02.12.1999.
61.1 The second show cause notice (part of file Ex.PW-28/6 collectively ) as to why demolition order should not be passed qua unauthorised construction was issued on 08.12.1999 under the signatures of Naveen Garg, A.E ( Building). The said notice was also served by way of affixation by accused Y.P. Singh (A-5), J.E ( Building) on 10.12.1999. The report with respect to the said notices under Section 343 & 344 of DMC Act was later on submitted by J.E concerned (A-5) on 17.12.1999 ( Part of Ex. 28/6) wherein he reported that no reply has been received and J.E (A-5) sought approval for passing of demolition order.
CBI No.65/2021 Page 79 of 90 8061.2 The said request was processed vide separate noting and K.D Akolia, the then Deputy Commissioner, South Zone, MCD on 07.12.1999. ( part of Ex.28/6 ) .DC South Zone , instead of passing demolition order, ordered for giving 30 days time to the owner for removing the unauthorised construction/deviations and in case, he fails to do so in the stipulated period, demolition may be resumed.
62. Similarly, the another set of documents (part of D-4 Ex.PW-28/3) reflects that simultaneously with the issuance of show cause notices, A-1 approached the office of Executive Engineer (EE) through his request dated 01.12.1999 seeking regularisation of the building and being ready to pay the compounding fees. The notings on the said regularization application (though not proved) reflect that the same was marked by Executive Engineer (E.E) to Assistant Engineer (A.E) namely Naveen Garg who recommended for rejection of the said application. The said recommendation was approved by the Executive Engineer on 03.12.1999 and accordingly the show cause notices for demolition /sealing of property were issued.
62.1 So, it is apparent from the said set of documents two simultaneous set of action, one initiation of demolition proceedings through issuance of show cause notice under Section 343 & 344 of DMC Act and second the consideration of regularisation application were carried out between the period 01.12.1999 to 06.12.1999 . The entire chain of command right CBI No.65/2021 Page 80 of 90 81 from Junior Engineer till Deputy Commissioner, South Zone, MCD were involved. Only after getting the approval of the actions from the higher authorities, demolition orders were passed or application for regularization was rejected. But, the glaring lapse on the said aspect is the non-joining of crucial players involved in the said exercise by the investigating authority. Neither the concerned Executive Engineer (EE), nor the Deputy Commissioner were ever joined in the investigation nor have been named as prosecution witnesses.
62.2 It is reflected from the record itself that the Deputy Commissioner only recommended for giving 30 days time before passing the demolition order through his noting dated 07.12.1999 ( Part of D-5 Ex.PW-28/6 collectively). The time was given despite the recommendations of A.E and J.E (A-5) recommending passing of demolition order as well as seeking approval of sealing action under Section 345-A of DMC Act. So, in a way favour has been given by the Deputy Commissioner and not by A.E and J.E as is the case of the prosecution. But the said Deputy Commissioner appears to be have not even been examined during investigation .
63. Now, coming to the next part of the action consequent to giving of said 30 days for removal of the unauthorised construction to the owner. The report was furnished by J.E (A-5) on 10.01.2000 ( part of D-5, Ex. PW28/6 collectively) that the owner has failed to rectify the non-compoundable deviations and has rather got repaired some portion of it. So, the said action CBI No.65/2021 Page 81 of 90 82 thereafter led to the passing of demolition order and sealing order under Section 345-A of DMC Act dated 11.01.2000 (Part of Ex.PW-28/6 collectively ) (D-5). The directions were given by the Deputy Commissioner, South Zone, MCD to the Assistant Engineer ( Building) South Zone for executing the said order in the following words:
"I authorise Asstt. Engineer (Bldg), South Zone of the Area, to execute forthwith the above order in the manner prescribed under Rule 3 of the DMC ( Sealing of Unauthorised Construction) Rules, 1986 and shall exercise the powers mentioned in the Rules and to report immediate compliance to the undersigned."
63.1 It appears from the record that before execution of the said sealing order, another request dated 13.01.2000 (Ex.PW- 28/6) was received from Raj Sarogi (A-1) in the office of MCD on 17.01.2000 seeking regularization as well as being ready to pay penalty/compounding charges. The said letter was addressed to Deputy Commissioner, South Zone, MCD. The report on the same was called, but it is not clear nor proved by prosecution as to the identities of the officials who dealt with the said request. Be that as it may be, the report was then submitted by A.E namely Naveen Garg and Ranjan Shukla (A-4) on 11.02.2000 ( part of D-5 Ex. 28/6 collectively) reporting about the present status of the building and non-compoundable areas on each floor. The area chart as submitted show non-compoundable area in the following manner:
Basement 287.69 SFT CBI No.65/2021 Page 82 of 90 83 Ground 630.90 do First Floor 630.90 do Second Floor 611.28 do Third Floor 810.28 do
63.2 The said note was then dealt with by Executive Engineer. But, it is not clear from the said note as to what action was approved by the higher authorities as notings are incomplete.
64. Another report was put up by the J.E and A.E on the said aspect on 21.02.2000 (part of D-5 Ex.PW-28/6 colly.), wherein above said facts were again reiterated. It was again reported that non-compoundable area on each floor is approximately 15 % . It was further recommended that 13.5 square metres excess can be compounded on deposit of Rs.1,55,925/- by the owner. Again the note moved to the level of Executive Engineer and he recommended for executing sealing order under Section 345-A DMC Act already passed on 11.01.2000 by Deputy Commissioner, South Zone, MCD. The said recommendation was approved by Deputy Commissioner on 13.03.2000 and accordingly the obligation was put on Ranjan Shukla (A-4), J.E, to execute the sealing order. A-4 gave the following noting which seems to be the basis of the present case against MCD officials that they failed to take timely action :
"Put up file on the next date of mass demolition programme"
Dated 21.03.2000."
64.1 The next noting is dated 28.03.2000 whereby he reported CBI No.65/2021 Page 83 of 90 84 to his higher officials that the premises could not be sealed due to gathering of crowd and local police advice to attempt on next time. The truthfulness or falsity of the said report is un-investigated. No record is seized form the local police as to whether the said sealing order was tried to be executed in the presence of police . Secondly if indeed effort was made , what were the reasons for its non-execution. None of the police officials have been named as a prosecution witness for throwing light over the truthfulness of the said noting of said Ranjan Shukla (A-4), J.E. 64.2 Thereafter, again, it appears that the said sealing order was not executed and in the meantime, another representation dated 14.04.2000 Ex.A-3/P-16 (Part of D-19) was moved by A-
1. It was addressed to Deputy Commissioner, South Zone, MCD wherein two month's time was sought for rectification. The report on the said representation was sought and Ranjan Shukla (A-4), J.E submitted his note dated 20.04.2000 ( Part of Ex.PW- 28/6 collectively of D-5). The part of the said note though raises strong suspicion over his conduct which is reproduced hereunder:
"Thirdly he has submitted that he is demolishing the annexe block at his own voluntarily. As per site inspection it is found that the third & second floor of the annexe block has been demolished by him. Further, labout is demolishing the annexe block and rectification work is going on.
The owner has deposited Rs. 1,45,925/ on 25.04.2000 and he has already deposited Rs.10,000/- earlier. Total Rs. 1,55,925/- has been deposited by him for the excess compoundable area at his own.
The owner has requested to consider his case and he wants two more month time to complete the CBI No.65/2021 Page 84 of 90 85 rectification work. As per site report rectification work is going on and the report is submitted for further necessary orders."
64.3 Surprisingly, the note has been put on 20.04.2000, but the as per the contents of the same, it talks about the deposit of Rs.1,45,925/- as compounding fees by the owner on 25.04.2000. So, it appears that the note was either submitted with a back date or with some assurance from the owner of the building ( A-1 ) . The said recommendation which appears to be backdated of giving two month's time as well as approving of deposit of compounding fees was approved by both Assistant Engineer and Executive Engineer. The matter was put up before the Deputy Commissioner, South Zone, MCD put his foot down and ordered as under:
"1. Sealing order be executed immediately.
2. When once sealing orders have been issued and at 6/N, I have ordered to execute the same, no such recommendation should have been sent by Ex. En (B). In future, such things will be viewed seriously."
Therefore, the said direction ultimately led to the sealing of the property on 28.04.2000.
65. In the said backdrop, the first issue which remains un-investigated is the procedure of sealing of the property in terms of sealing order under Section 345-A DMC Act. As already been discussed above, the authority of sealing the property was conferred upon Assistant Engineer, South Zone area by the Deputy Commissioner. Then why at the first instance, the Executive Engineer or the A.E concerned Naveen Garg (who both are not named in the present chargesheet) marked the CBI No.65/2021 Page 85 of 90 86 sealing order for its execution to J.E concerned ( Ranjan Shukla (A-4) ). The entire chargesheet is silent with respect to the complicity and role of Executive Engineer and A.E namely Naveen Garg who too played the role in delaying the execution of sealing order passed under Section 345-A of DMC Act.
65.1 In this regard the Rules which govern the process of sealing of the property throws light over the said issue. Rules 3 of The Delhi Municipal Corporation (Sealing Of Un- Authorised Construction) Rules, 1986 governs the said issue and it clearly stipulate that only the official concerned who is authorised by the Commissioner has the authority to execute it.
65.2 In the present case in hand, it has already been observed above that the authority was conferred upon Naveen Garg, A.E ( remained posted as AE w.e.f 25.11.1999 to 26.04.2000) to execute the sealing order by the Deputy Commissioner. But, instead of performing his duty, he put the onus upon Ranjan Shukla (A-4), J.E. Further, delegation of the said authority was legally impermissible in light of Rules 1986. But, the prosecution has failed to examine the said issue nor examined any witness who could have thrown light over the said issue of delegation. In the light of the said circumstances, not much credence can be given to the said sole incriminating circumstance against the MCD officials named in the charge- sheet Ranjan Shukla (A-4), JE.
65.3 The stark fact which emerges from the record is that CBI No.65/2021 Page 86 of 90 87 despite the approval of the execution of sealing order under Section 345A of DMC Act by Deputy Commissioner on 13.03.2000, it remained un-executed till 28.04.2000. The said period is unexplained and no doubt raises grave suspicion. But, it has already been discussed that the onus of the same was upon the concerned A.E ( Building) who has not even been charge- sheeted. Therefore, the said sole circumstance which, no doubt, is incriminating one, cannot be read against the remaining accused persons for purposes of criminal conspiracy as the official concerned has not even been booked.
Direct Evidence
66. Now coming to the direct evidence produced by prosecution to prove the case of criminal conspiracy between the MCD officials and private individuals named in the present case. It has relied upon the oral versions of few of the witnesses examined. The first witness on the said aspect is Rajender Samal (PW-3) who was engaged by A-3 for performing the sanitary work. But, he did not support the case of the prosecution on the aspect of any purported visit by any of the MCD officials and they having met Raj Sarogi (A-1) or J.K. Malhan (A-3) in this regard. Therefore, the testimony of PW-3 on the said aspect does not help the case of prosecution.
66.1 The second witness examined by prosecution is Shanker Lal (PW-20) S/o Jhabar Ram, Civil Contractor who constructed the entire building being engaged by J.K. Malhan (A-3). He CBI No.65/2021 Page 87 of 90 88 claimed that he raised ground floor, first floor, second floor of the building. He further claimed that he raised the construction as per the approved site plan and there was no deviations in the construction. Though the said part of his testimony is in contradiction to the admitted documents i.e Technical Committee Note Ex. PW-19/B Collectively. He further claimed that MCD officials used to visit the site during the construction and as per him, they visited twice or thrice. But, he denied the suggestion of the prosecution, MCD J.E used to visit the site and used to talk to A-3. His version thus at best throws light on the fact of occasional visits by some unnamed MCD official. His version is bereft of necessary details i.e. identification of the official, date, month or year of the said visit or the purpose of the visit. Hence, it cannot be assumed that the officials named in the present case were the officials who visited the site or they had any interaction with the accused persons in pursuance of the criminal conspiracy .
66.2 Shanker (PW-21) S/o Palku Singh who worked as Chowkidar at the property in question for a period of around one and a half year too claimed that MCD officials used to visit the property and meet A-3. But again his version is also bereft of necessary details concerning the identity of the MCD officials, purpose of their visit and date, month or year of such visit. It is not even clear from his cross-examination as to the period when he worked as Chowkidar as he failed to disclose about the same.
66.3 Further, Jugal Kishore (PW-7) who worked as a Carpenter CBI No.65/2021 Page 88 of 90 89 in the property in question and Phool Chand (PW-8) who too worked as a 'Watchman' denied having seen any MCD official visiting the property in question or having any complicity with A-1 or A-3. Apart from the testimonies of the said witnesses, no direct oral evidence has come on record showing complicity between the MCD officials named in the present case with A-1, A-3 or A-8. Rather, to be concluded that half hearted attempt was made for collecting the said evidence during the investigation on the said aspect. Therefore, the direct evidence too does not, in any manner, probalises the case of the prosecution regarding conspiracy between MCD officials and private individuals.
67. The allegations of misuse of property are also unproved for want of seizure of concerned Regulations or Rules. In absence of same, it cannot be presumed that the duty to prevent the misuse of property was upon AE/JE of Building Department, South Zone, MCD.
Conclusion
68. In view of the above facts, reasons and observations,it has to be concluded that the case of the prosecution on the charges of criminal conspiracy between the private individuals and public servants is based on mere suspicion, conjectures and assumptions. The mere fact raising of unauthorized construction by the owners or building does not ispo facto lead to a conclusion that it was done with connivance or conspiracy with MCD officers. The evidence of prior agreement for criminal CBI No.65/2021 Page 89 of 90 90 conspiracy between has to be proved as a fact , which the prosecution has miserably failed to prove in the present case. The judgment delivered by the Hon'ble Delhi High Court in a connected matter cited as A.K.Ganju ( Supra) case too is applicable herein wherein too the case of prosecution was discarded on account of non availability of the evidence of prior agreement to prove the charge of criminal conspiracy.
69. In light of the above-discussed reasons ,I am of the considered view that the prosecution has failed to prove its beyond reasonable doubt case against A-1, A-2, A-3 and A-8 under Section 120-B IPC r/w Section 13 (2) r/w 13 (1) (d) of P.C Act. Therefore, Raj Sarogi (A-1) & Manju Sarogi ( A-2), J.K. Malhan (A-3) and A.K. Ganjoo (A-8) are acquitted of the offences charged with. Their bail bonds are cancelled and sureties stand discharged. They are directed to furnish fresh bail bonds under Section 437-A of Cr.P.C.
It is though clarified that nothing expressed herein shall have any bearing on case against Ranjan Shukla (A-4), Y.P Singh (A-5) and D.K Gupta (A-7) against whom proceedings stands dropped vide order dated 17.11.2017.
File be consigned to Record Room after due compliance.
Announced in the open Court (GAGANDEEP SINGH)
th
on 8 April 2024 Special Judge, PC Act, CBI-04
Rouse Avenue Courts, New Delhi
CBI No.65/2021 Page 90 of 90