Delhi District Court
(C.B.I. vs . Dr. Suresh Kumar Srivastav) on 23 April, 2016
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV)
Dated : 23.4.2016
: IN THE COURT OF MS. ANU GROVER BALIGA :
SPECIAL JUDGE : C.B.I. (P.C.ACT)
DWARKA COURT COMPLEX, NEW DELHI.
C.C.No. : 38 / 2011
FIR No. : RC1(A)/2005/ACUIX
dtd . 01.02.2005
U/s. :13(2) r/w section 13 (1) (e)
of Prevention of Corruption Act, 1988.
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
...Through
[Sh. Harish Gupta,
Sh. Harshmohan Singh and Ms. Shashi
Ld. Public Prosecutors for CBI]
V e r s u s
DR.SURESH KUMAR SRIVASTAV
@ Dr. S.K. Srivastav, the then Director General,
Indian Meteorological Department (MD),
New Delhi.
R/o.: A386, Sector19, Noida, U.P.
... Accused.
...Through
[Sh. Harish
Gulati and Sh. Anindya Malhotra,
Ld. Counsels for the accused]
C.C.No:38 / 2011 Page No.1 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV)
Dated : 23.4.2016
Date of Institution : 18.12.2006
Date of reserving judgment : 01.04.2016.
Date of pronouncement : 23.04.2016
: J U D G M E N T :
1.The accused has faced trial in the present case for having committed the offence of criminal misconduct as defined under section 13(1)(e) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) and punishable under section 13 (2) of the said Act.
2. Briefly stated the assertions on which the present charge sheet has been filed against the accused are as follows :
(i) On the basis of a source information received, CBI registered FIR bearing no. RC1 (A)/2005/ACUIX in ACUIX Branch of CBI, New Delhi on 18th December 2006 against the accused, Dr. Suresh Kumar Srivastav, the then Director General, Indian Meteorological Department (hereinafter referred to as IMD), New Delhi, for having in his possession pecuniary resources or property, C.C.No:38 / 2011 Page No.2 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 disproportionate to his known sources of income and for which he could not satisfactorily account for.
(ii) The following facts emerged during investigation of the aforementioned FIR (the check period for the investigation was taken to be between 01.09.1996 to 02.02.2005 as it was during this period that accused S.K. Srivastav while posted in different capacities was alleged to have acquired huge assets both movable and immovable):
(a) That the accused had joined services in Indian Meteorological Department in 1973 and on 01.01.2004 was promoted as Director General of Meteorology, New Delhi and served in this capacity till he took voluntarily retirement on 15.01.2005. Further, that he was married to Kamini Srivastav and had two daughters namely Mrs. Shivalika Garg and Ms. Prerna Srivastava. Both his wife and his daughter Mrs. Shivalika Garg were not employed while his daughter, Ms. Prerna Srivastava a Post Graduate in M.Sc. Electronics was employed.
(b) At the beginning of the check period, the assets in the possession of the accused were found to be comprising of immovable C.C.No:38 / 2011 Page No.3 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 asset i.e. Flat no. 91, Plot No. 8, Pitam Pura, New Delhi at Mausam CGHS, as also movable assets i.e. jewellery worth Rs. 96,000/ and household articles worth Rs. 74,450/ besides bank balance in the name of the accused and his family members to the tune of Rs. 1,71,361/ as also two FDRs of Rs. 30,868/. Thus, at the beginning of the check period, accused was found to be in possession of assets, both movable and immovable worth Rs. 6,08,645/ (The said assets have been shown in Statement A filed along with the chargesheet).
(c) The investigation revealed that during the year 2000 the accused had acquired an immovable property namely premises bearing House No. A386, Sector 19, Noida, UP, which assertedly was purchased in the name of the wife of the accused for a consideration of Rs.19 lakhs. At the end of the check period apart from the said property, the movable assets in the name of the accused and his family members were found to be a Santro Car, jewellery worth Rs. 2,78,581/, other house hold items worth Rs. 2,46,200/ and amounts to the tune of Rs.
11,45,741/ in various bank accounts held by him and his family C.C.No:38 / 2011 Page No.4 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 members. Thus, the total assets both movable and immovable in the name of the accused and his family members at the end of the check period was calculated to be Rs. 43,38,201/ (The said assets have been shown in Statement B filed along with the chargesheet) and therefore, the assets acquired during the check period were determined to be Rs. 37,29,556/ (BA).
(d) Investigation further disclosed that the income of the accused during the check period included his salary income of Rs.13,15,683/ which he had received from Indian Meteorological Department as also Rs.1.5 lakhs which he had withdrawn from his GPF as also income from interest and the sale of his vehicle. The rental income earned by his wife and daughter Mrs. Kamini Srivastav and Prerna Srivastav upto March, 2004 was also included in the income of the accused and thus the total income of the accused and his family members during the check period was calculated to be Rs. 33,84,356/ (The details of the said income has been shown in StatementC filed along with the chargesheet).
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Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
(e) The expenditure incurred by the accused and his family members during the check period was found to be Rs. 31,51,385/ of which Rs. 14,46,484/ had been found to be spent by the accused through 11 credit cards of different banks. (The details of the said expenditure has been shown in StatementD filed along with the chargesheet).
(f) After taking into account the likely savings of the accused, investigations thus disclosed that the accused was in possession of disproportionate assets worth Rs. 34,96,585/. ([BA]+D C).
3. At this stage, it is relevant to mention that though for the sake of brevity each and every assertion with respect to nature of assets being held by the accused and his family members and the various expenditures made by them is not being set out in detail herein, the following material facts do require specific mention :
a) During investigation it was revealed that though the accused had informed his department that the property at House No. C.C.No:38 / 2011 Page No.6 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 A386, Sector 19, Noida was acquired during check period by his wife and daughter Prerna Srivastav and had been purchased by them with their personal savings and by some loans taken from relatives, it had infact been purchased through money laundering. The actual facts were that none of the relatives had given any loan to the wife or daughter of the accused. During investigations relatives of the accused from whom the loan was purportedly taken gave statements to the investigating agency that they had not given any loan to the accused or his wife or his daughter and that it was the accused, who had deposited cash amounts in their accounts and thereafter they had issued cheques in favour of the seller of the immovable property.
b) Investigations further revealed that though the monthly take home salary of the accused was only Rs. 5,307/ in September 1996 and Rs. 20,511/ in January 2005, he had incurred a very high expenditure of Rs. 14,46,484/ through 11 credit cards of different banks during the check period and these cards were used extensively for payment of bills of various hotels/restaurants, purchase from C.C.No:38 / 2011 Page No.7 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 departmental stores and duty free shops, expenses towards maintenance of vehicles as also expenses in countries like Thailand, Singapore, Malaysia, Kathmandu, China, Bratislava, Austria, Germany, U.K., Switzerland, etc.
c) Further though the wife of the accused and his daughter Ms. Prerna were shown to be dependent upon the accused, they were found to have 11 bank accounts in 11 different banks situated in Delhi, Pune and Noida and an amount of Rs. 11,45,741/ in total was found to be existing in the said bank accounts.
4. On the basis of the material placed on record, Ld. Predecessor of this Court had framed charges against the accused S.K. Srivastava for having been found in possession of assets, movable and immovable to the tune of Rs. 34,96,585/ in his name and in name of his family members which were disproportionate to his known sources of income for which he could not satisfactorily account for and for thus having committed offence defined under section 13 (1) (e) and punishable under section 13 (2) of PC Act.
C.C.No:38 / 2011 Page No.8 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
5. Accused pleaded not guilty to the charges framed against him and sought trial.
PROSECUTION EVIDENCE:
6. Prosecution in order to prove its case has examined 45 witnesses.
7. The witnesses examined by the prosecution to substantiate their case can be broadly categorized in seven categories.
8. The First category of witnesses examined by the prosecution consists of the officials summoned from the IMD to prove the salary and allowances paid to the accused during the check period. The officials examined in this regard are :
(i) PW1 Sh. Ram Bhajan Thapa, Meteorologist, GradeI.
(ii) PW28 Sh. Bhoomi Rao, Administrative Officer.
(iii) PW29 Sh. Dev Raj, Drawing and Disbursing Officer.
(iv) PW30 Sh. Jai Prakash, Administrative Officer. C.C.No:38 / 2011 Page No.9 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
9. The Second category of witnesses includes the witnesses examined by the prosecution from the various banks in which the accused and his family members had their accounts/credit cards issued. The officials who have been examined in this regard are :
(i) PW4 Sh. Jagdish Salwan, Legal Officer, Citi Bank, Connaught Place, New Delhi.
(ii) PW19 Sh. Pratap Singh, Security Consultant, American Express Bank, Udyog Vihar, Gurgaon.
(iii) PW24 Sh. P.C. Salagare, Assistant Manager, UCO Bank, Shivaji Nagar, Pune.
(iv) PW25 Sh. Piyush Tiwari, Associate Vice President, HSBC Bank, Noida.
(v) PW32 Sh. Sukhbir Singh, Manager, Central Bank of India, Jor Bagh, New Delhi.
(vi) PW33 Sh. Pawandeep Singh, Sr. Officer, ABN Ambro Bank, Noida.
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Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
(vii) PW34 Sh. Munish Vashist, Assistant Manager, State Bank of India, Credit Card Division, Gurgaon.
(viii) PW36 Sh. Surender Kr. Mishra, Manager, UCO Bank.
(ix)PW38 Sh. S.C. Sharma, Chief Manager, Punjab National Bank.
(x) PW39 Sh. Anupam Goel, ABN Ambro Bank.
(xi) PW40 Sh. Harish Kr. Gupta, Sr. Manager, Punjab National Bank.
(xii) PW43 Sh. Javed Chauhan, Manager, Standard Chartered Bank, Fraud Control unit.
10. The Third Category of witnesses includes the relatives of the accused, who have been examined to prove that they had not granted any loan to the accused for purchase of immovable property at Noida. The same are :
(i) PW10 Ms. Sushila Garg, Motherinlaw of Shivalika Srivastav, daughter of the accused.
(ii) PW11 Sh. Rajendra Kumar Garg, Fatherinlaw of Shivalika Srivastav, daughter of the accused.
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Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
(iii) PW16 Ms. Shivalika Garg, daughter of the accused.
(iv) PW17 Sh. Vivek Garg, Soninlaw of the accused.
(v) PW27 Smt. Vinod Srivastav, Sister of the accused.
(vi) PW44 Sh. Saurabh Srivastav, Nephew of the accused.
11. The Fourth Category of witnesses examined by the prosecution are those who were summoned to prove the immovable/movable assets purchased/acquired by the accused during the check period. The said category consists of :
(i) PW2. Sh. Satyavir Singh, Registration Clerk from the office of SubRegistrar, Sector16, Noida, UP.
(ii) PW5 Sh. J.P. Totla, Share Broker / Director in JPT Securities Ltd.
(iii) PW6 Sh. Jai Shankar Lohani, Employee of Gautam Auto Malviya Nagar, New Delhi.
(iv) PW7 Sh. Rajesh Luthra, Owner of Shop R.K Vision at 89, Khanna Market, Lodhi Colony, Delhi.
(v) PW14 Sh. Ravinder Katoch, General Manager, Harpreet C.C.No:38 / 2011 Page No.12 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Motors, Gurgaon.
(vi) PW15 Sh. Ravinder Kumar Sharma, Accountant in Shiva Motors, Sahibabad, Ghaziabad.
(vii) PW20 Sh. Sohan Singh Rawat, Deliver Executive in Samara Hundai Company, Lajpat Nagar, New Delhi.
(viii) PW22 Sh. Parmod Anand, Sales and Job Executive in Tanvi Aircon Company.
(ix) PW26 Sh. Suresh M. Nayyar, Sr. Manager at M/s Tribhuwan Dass Bhimji Zaveri, Janpath, New Delhi.
(x) PW31 Sh.Vijay Goel, Jeweller and approved valuer who has valued the gold jewellery acquired by the accused.
12. The Fifth Category of witnesses examined have proved the expenditure incurred by the accused during the check period and consists of :
(i) PW3 Sh. Inderjeet Singh, Proprietor of M/s Guru Teg Bahadur Tent House.
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(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
(ii) PW8 Sh. R.P. Bhoriya, Section Officer, NDMC.
(iii)PW9 Sh. Parveen Kumar, Authorized agent of Bajaj Allianz General Insurance Co. Ltd.
(iv) PW18 Sh. Dhanna Singh, Secretary of Mausam Coop. Group Housing Society.
(v) PW21 Sh. Shammi Kapoor, Official M/s Kotak Mahindra Bank Ltd.
(vi) PW23 Sh. Subhash Chand Chauhan, Salesman, M/s Gulshan Electric Store, Khan Market, New Delhi.
13. The Sixth Category of witnesses have proved the income tax returns filed by the accused and his family members. This category consists of :
(i) PW35 Sh. H.U. Khan, Income Tax Officer, Ward 31(2), CR Building, IP Estate, New Delhi.
(ii) PW42 Sh. S.C. Verma, Assistant Commissioner of Income Tax, Circle 40 (1), New Delhi.
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Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
14. The Seventh Category of witnesses includes those who remained associated with the investigation of the present case in one form or the other, on the request of the main investigating officer PW45, Sh. A.K. Pandey, Inspector, CBI, ACUIX, New Delhi. This category consists of :
(i) PW12 Sh. Hemant Kumar, Employer of Ms. Prerna Srivastava (daughter of the accused).
(ii) PW13 Sh. V.K. Singh, Tenant of Ms Kamini Srivastava and Ms. Prerna Srivastava (wife and daughter of the accused).
(iii) PW37 Sh. V.K. Mishra, Investigating Inspector (Vigilance).
(iv) PW41, Sh. R.N. Azad, Additional S.P, CBI, ACUIX.
15. The depositions of these aforementioned witnesses are not being narrated herein for purposes of brevity and the relevant portions thereof and the documentary evidence produced by them have been referred to wherever necessary later in the judgment. C.C.No:38 / 2011 Page No.15 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
16. The evidence led by the aforementioned witnesses was put to the accused and his statement was recorded under section 313 Cr.PC. In the said statement accused has interalia stated that during his entire professional career he had achieved excellence in research and was awarded various medals and awards and that recognizing his merit, he was elected as President of Commission for Instrument - a body constituted by World Meteorological Organization (hereinafter referred to as WMO) for a tenure of four years and that he was again reelected as President of the said body in 2002. According to the accused till date he is the only Indian who has been so elected as President twice. The accused has further stated before the Court that as President his office and secretariat was located in WMO, Geneva and in order to discharge his duties as President of the Commission, Member of executive council of WMO and assignments given by Govt. of India and WMO, he was deputed more than 30 times to various countries and each time he was duly paid the allowances/remunerations by Govt. of India and WMO as per Govt. Office orders and WMO travel Authorizations. C.C.No:38 / 2011 Page No.16 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
17. The accused has further stated that for all such visits his Travel allowance (T.A) as in Air ticket was given to him by Govt. Of India and UNDP and that the deputation allowances were paid by UNDP, Lodhi road, New Delhi and Respective Indian Embassies in foreign countries for Govt. of India Projects. The accused has further narrated that during his foreign trips the local transport was provided by the host and most of the time lunch and dinner was given by the hosts free of cost and thus he had meager expenditure during his foreign visits. It is also the submission of the accused that the expenses made by him were usually minor such buying a sandwich or shopping for household things for my family and these expenses were made via credit card as the same was an easier option. The accused has further stated that both WMO and Indian High commission abroad used to pay him in Travellers Cheques (TCs) which he used to bring back to India and get them encashed. Thus, according to the accused the purchases that he made during his foreign trips were made from the income that he received for his foreign deputations. The accused has also specifically stated that he was able to C.C.No:38 / 2011 Page No.17 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 save more than 70% of his deputation allowances and that he had also furnished proof of the same to the IO of this case but that the said IO deliberately did not take the same into consideration. According to the accused he had earned more than 30.0 lakhs in his foreign assignments mostly during check period and the evidence of the income can be found in stamps in his diplomatic passports, list of remuneration provided by IMD and WMO and the vouchers of payments made to him in India. He has also asserted that the same were available with CBI during their investigation in files bearing no. M68/05, M167/05, M114/05 and M 103/05 and that though these files were seized by the IO, he has deliberately not included various allowances / cash paid to him in calculation of his income. According to the accused total allowances that were paid in cash by his department and WMO was approximately Rs. 30 lacs and the same was saved by him and that he had deposited the said amount in his bank as cash deposits and the investigating agency has deliberately not included the said amounts while calculating his income but on the other hand have shown the various purchases made by him C.C.No:38 / 2011 Page No.18 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 through credit cards as his expenditure.
18. The accused has pointed out that in the charge sheet filed his total assets till September 1996 have been shown to be less than Rs. 5 lacs, which is completely grossly undervalued considering that he had completed more than 20 years of service.
19. As regards the property bearing no. A386, Sector - 19, Noida, the defence taken by the accused is that he had purchased the said property for Rs.19 lacs from his savings and by taking temporary loans from his close relatives and friends. He has sought to explain that out of the said sale consideration, an amount of Rs. 13,00,000/ was paid through his relatives account through 16 cheque directly to Ms. Sonia Anju Khatri, owner of the house and the reason to pay through number of cheques was that a priest had told him that the house, which was Sher Mukhi suffered from a serious "Vastu Dosh" and to cure the same the priest suggested him to purchase the house through at least 7 persons so that the effect of Vastu Dosh could get divided and reduced. C.C.No:38 / 2011 Page No.19 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
20. Apart from the above assertions, the accused has pointed out various anomalies in the calculation of his income and expenditure, which according to him have wrongly inflated his expenditures and reduced his income.
21. According to the accused he has been falsely implicated in this case because as DG in May 2004 he had held a presentation before Honorable Prime Minister Man Mohan Singh regarding modernization of IMD pursuant to which IMD was immediately granted Rs 500 crores for its modernization and that this was the beginning of all his troubles as a group of vendors started pressurizing him to support their projects and when he refused they started threatening him. It is the assertion of the accused that said vendors through one Kusum Sehgal, a lady who runs a NGO got filed a PIL based on false allegations against him in High Court and that when the said PIL was dismissed by the High Court, the said lady approached CBI with false information and allegations and that the CBI without even C.C.No:38 / 2011 Page No.20 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 making preliminary inquiries registered a patently false FIR against him, arrested him, raided his house and falsely implicated him in this case.
22. In support of his defence, the accused has examined 20 witnesses in all. DW1 R.C. Bhatia and DW7 Ashok Kr. Bhatnagar are high ranking officials retired from the Indian Meteorological Department who have interalia deposed about the practice of WMO and UNDP of paying allowances to the officials of IMD, who were required to attend various meetings of WMO.
23. DW2 Kewal Krishan, DW3 Dheeraj Kumar, DW4 Anil Kolarkar, DW8 Surender Bhagri, DW10 Anand Prakash, DW11 H.C. Nanawat, DW12 Gaurav Nagpal, DW14 Shivam Kumar Sinha, DW16 Harish Uni Krishnan, DW17 Prabash Kumar, DW18 Jagdish Salwan, are all officials of various banks, summoned by the accused to prove the interests earned by him from the amounts existing in the bank accounts held by him / his family members in the said banks.
24. DW5 Sanjay Bisht, DW6 Shiv Kumar Singh Tawar, DW9 Aditya Srivastava, DW19 Sh. V.K. Soni and DW20 Sh. C.C.No:38 / 2011 Page No.21 of 109
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(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Shailender Sharma are officials of the IMD who have been summoned by the accused to prove his service / salary records and the allowances that were paid to him during his various deputations abroad.
25. DW13 Sanjay Kr. Piplani has been produced in the witness box by the accused to prove the salary / income received by his daughter and DW15 Subhash Kaushik, an official from the Noida Authority has been summoned by the accused to prove the certified completion plan of his property bearing no. A386, Sector 19, Noida.
26. On behalf of the prosecution Ld. Special Public Prosecutor Sh. Harish Gupta had made part submissions and after his transfer Ld. Public Prosecutors for CBI, Sh. Harsh Mohan Singh and Ms. Shashi have concluded the arguments. Ld. Defence Counsels Sh. Harish Gulati and Sh. Anindaya Malhotra, on the other hand have advanced the arguments on behalf of the accused.
27. Ld. Public Prosecutors have mainly contended that the prosecution has been able to prove its case against the accused beyond all reasonable doubt and in support of this contention they have relied upon C.C.No:38 / 2011 Page No.22 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the deposition of the witnesses recorded during trial particularly the witnesses who have proved bank accounts held by the accused and his family members and the credit card payments made by the accused and the own relatives of the accused who have proved that the accused had acquired the immovable property i.e. the house at Noida through his ill gotten income. Ld. Prosecutors have pointed out that the entire evidence brought on record by the prosecution clearly proves that the accused was found in possession of assets disproportionate to his known sources of income during the check period and that he miserably failed to satisfactorily account for the disproportionate assets that were found in his possession during the check in period. They have also pointed out that though the accused in his defence evidence has made an attempt to prove that he had received approximately Rs. 20 lacs as allowances / remunerations from the Government of India and WMO, the said amount cannot at all be considered as income earned by the accused for firstly the said allowances were paid towards reimbursement of the actual expenses incurred by the accused during his foreign visits and secondly it was for C.C.No:38 / 2011 Page No.23 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the accused to have proved that he was able to make some savings from the said amounts, which he has failed to do so. Ld. Prosecutors have also contended that the accused was bound to have declared the said amounts in his income tax returns, if at all he had been able to make any savings from the allowances provided to him by the various authorities and that since admittedly the accused did not make any such disclosures in his income tax returns, this Court cannot at all presume that the accused was able to make any savings out of the said allowances. It is the contention of the Ld. Prosecutors that the provisions of Section 13 (1) (e) make it clear that once the prosecution has discharged the initial onus of proving that the accused being a public servant was found in possession of assets disproportionate to his known sources of income, the onus shifts on the accused to prove other sources of income and to satisfactorily account for the assets in his possession and according to the Ld. Prosecutors the accused in the present case has miserably failed to discharge the said onus.
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(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
28. In support of their contentions Ld Public Prosecutors have relied upon the following judgments :
• R. Janakiraman Vs State (2006) 1 Supreme Court Cases 697. • Hindustan Petroleum Corporation Ltd. & Ors. Vs Sarvesh Berry (2005) 10 Supreme Court Cases 471.
• CSD Swami Vs The State AIR 1960 Supreme Court 7. • State of M.P Vs Awadh Kishore Gupta & Ors., AIR 2004 Supreme Court 517.
• State Vs Bharat Chandra Roul 1995 Crl. L.J 2417. • N.P. Jharia Vs State of MP (2007) 7 Supreme Court Cases 358. • Lalita Kumari Vs Government of UP & Ors. (2014) 2 SCC 1.
29. In rebuttal, Ld. Defence Counsels for the accused Sh. Harish Gulati and Sh. Anindaya have vociferously contended that the present charge sheet has been malafidely filed by CBI and that the malafide intentions of the CBI are apparent from the fact that the investigating agency waited for the accused to retire and registered the present FIR after 15 days of the retirement of the accused so as to C.C.No:38 / 2011 Page No.25 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 circumvent the requirement of obtaining sanction for prosecuting the accused for they were well aware that the appointing / sanctioning authority would have never granted them the sanction to prosecute the accused for there was no material against the accused at all and that the accused during his entire career had been a meritorious scientist and researcher who had won many international awards for his contribution in the field of Meteorology. It has been pointed out by Ld. Defence Counsels that as per the own assertions made in the chargesheet, on the basis of information that the accused had for illegal gratification awarded contracts for supply of various technical items to cartels of firms owned by his own relatives and acquaintances, the investigating agency had raided fourteen premises on 02.02.2005 and on 04.02.2005 but had failed to recover even an iota of evidence in this respect against the accused which clearly belies the allegation in the FIR that the accused was a habitually corrupt official. According to Ld. Defence Counsels despite the said failure of the investigating agency, they chose to arrest the accused on 04.02.2005 itself on the flimsy ground of him having been C.C.No:38 / 2011 Page No.26 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 found in possession of disproportionate assets. It is the contention of the Ld. Defence Counsels, the investigating agency had no valid grounds to arrest the accused and they resorted to do so only to pressurize him into admitting false facts of corruption against himself. They have pointed out that the investigating official blatantly narrated false facts in the FIR and in his deposition to the effect that the accused had stored his ill gotten money in the basement of his house at Noida when admittedly the said house does not at all have a basement. Ld counsels have also contended that the Investigating Officer did not even bother to hold a preliminary inquiry into the assets of the accused though the CBI manual itself lays down that such an inquiry should be held before an accused is arrested. It is also their contention that despite the fact that during investigation the accused furnished all the material to the investigating official with respect to the allowances and the remunerations earned by him during his foreign visits, the investigating official refused to carry out any verification of the same and simply chose to keep the said material with himself, till the time one of the Ld. Predecessors of this C.C.No:38 / 2011 Page No.27 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Court on a prayer made by the accused directed that the material seized by the IO in this regard be returned to the accused. It is the contention of Ld. Defence Counsels that the own evidence lead by the prosecution makes it apparent that the IO has on the basis of his own whims and fancies reduced the income of the accused and inflated his expenditure only to falsely implicate him in this case. In particular, Ld. Defence Counsels have pointed out that the calculations of income and expenditure made by the Investigating agency are incorrect for the following main reasons :
● Though the PNB bank account statements of the accused proved by the prosecution itself reflect that the accused had taken two loans amounting to Rs. 1,16,000/ from Standard Chartered Bank during the checkin period, the IO deliberately did not include the said loan amounts in his income. Similarly, though the said statements reflected that the accused had earned an interest of approximately Rs.1,00,000/ on an FD made in PNB, the IO chose to ignore the same.
C.C.No:38 / 2011 Page No.28 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 ● Though the IO chose to include the payments made by the accused through his credit cards as his expenditures, he deliberately did not include in his income the cash advances withdrawn by the accused through ATM amounting to Rs.2,45,687/.
● Despite being aware that the wife and daughter of accused namely Kamini and Prerna Srivastav had a rental income of Rs. 5,39,318/ from a property at Noida, the IO wrongly considered the same as only Rs. 1,93,200/ despite being shown the lease agreements in this regard.
● Though the IO chose to include the expenditures made by his wife and his daughter in the expenditure account of the accused, he did not deliberately include the annual salary of Rs. 2,07,000/ earned by his daughter Ms. Prerna Srivastav during the checkin period. ● None of the interest amounts earned by the accused in his saving bank accounts in total amounting to Rs. 97,541.78/, was included in the income earned by the accused during the checkin period. ● The IO deliberately inflated the house hold expenditures of the C.C.No:38 / 2011 Page No.29 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 accused by not only including the actual payments made through credit cards by the accused for payment of electricity, water, accommodation charges and for purchase of other house hold items but by also taking an amount of Rs. 4,38,561/, being one third of the net salary of the accused during the checkin period towards the household expenditures.
● Similarly, the IO inflated the value of jewellery found in possession of accused by not only including the valuation of the said jewellery by a Government valuer but by also including the amounts paid by the accused to the jewellers for the same jewellery.
30. In addition to the aforementioned anomalies in the calculations done by the IO, the Ld. Defence Counsels have also pointed out infirmities in some other heads of income / expenditure which will be discussed point wise a little later in the judgment. Further, apart from the asserted mistakes done by the IO, the contention of the Ld. Defence Counsels is also that as per the provisions of Income Tax Act, accused was not required to reflect the savings made by him during his foreign C.C.No:38 / 2011 Page No.30 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 visits, in his income tax returns or pay tax on the same and since the accused has led sufficient evidence to prove the said savings, the same should be included in his income. As regards the allegation of the prosecution that the accused had acquired the house at Noida by money laundering, acquisition of the house at Noida, Ld. Defence Counsels have submitted that the accused in his statement under section 313 Cr.PC has already explained as to why he chose to take cheques of different amounts from his relatives for the purchase of the same and their contention is that the prosecution witnesses produced have also supported this explanation tendered by the accused and that therefore this Court must also accept the same. They have also submitted that the evidence led by the accused with respect to the savings made by him, makes it clear that the said house was also acquired by the accused from his savings and not from any illgotten money. Ld. Defence counsels have also prayed that this court must take into consideration that during his entire career, there was not a single vigilance complaint against the accused. According to them had the accused been a dishonest officer he C.C.No:38 / 2011 Page No.31 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 would not have used credit cards to meet his expenses but instead would have resorted to cash transactions. They have also pointed out that a cash amount of mere Rs. 40,000/ was recovered from his residence which clearly belies the allegation made in the FIR that the accused had stored in his home huge amounts of cash acquired dishonestly by him.
31. In support of their contentions Ld Defence counsels have relied upon the following judgments :
• Vineet Narain & Ors. Vs Union of India & Anr. (1998) 1 SCC
226.
• Ashok Tshering Bhutia Vs State of Sikkim (2011) 4 Supreme Court Cases 402.
• K. Veeraswami Vs Union of India & Ors. (1991) Supreme Court Cases (Crl.) 734 3SCC 655.
• N. Ramakrishnaiah Vs State of Andhra Pradesh (2008) 17 Supreme Court Cases 83.
• M. Krishna Reddy Vs State Deputy Superintendent of Police Hyderabad 1992 (4) SCC 45.
• Krishnanand Vs The State of Madhya Pradesh AIR 1977 SC
796.
32. I have carefully considered the submissions made by the C.C.No:38 / 2011 Page No.32 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 learned counsels and have gone through the entire material on record. As regards the foremost contention of the accused that the present charge sheet has been filed malafidely against him by the IO without conducting any preliminary inquiry, suffice is to state that the trial in this case cannot be held to be vitiated even if no such inquiry was held. Further though no doubt the investigating officer appears to have made incorrect statement about the existence of a basement in the property of the accused situated in Noida, in the considered opinion of this court, once the chargesheet has been filed and the entire evidence on behalf of both the parties is before this court now, the intention of the IO in filing the present chargesheet does not remain of much relevance, for this court can now itself examine the authenticity of the allegations made against the accused in the chargesheet. As narrated herein above the investigating agency has filed four statements namely, A, B, C and D reflecting therein the details of assets and income earned by the accused and the expenditure incurred by the accused during the check period 1.09.1996 to 02.02.2005. This court shall now consider each of the said C.C.No:38 / 2011 Page No.33 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 statements to examine whether the prosecution has been able to prove that the amounts calculated in the said statements are correct.
33. The first of these statements namely, statement - A, consists of the assets held by the accused at the beginning of the check period and includes one flat owned by him in Pritampura, house hold items recovered during the search on 02.02.2005 (as per the own case of the prosecution the said house hold items appeared to have been acquired by the accused prior to the check period) and the cash amounts existing in his bank accounts prior to 01.09.1996, two FDs and some jewellery weighing approximately 200 grams. In view of the testimony of the IO PW45 A.K. Pandey and the bank statements proved by the bank officials PW24, PW32, PW38, PW40, this statement has not been seriously disputed by the Defence (though initially the value of the jewellery items was being disputed by the Ld Defence counsels on the ground that the IO has not given any reasons for arriving at the valuation of the jewellery, the said contention was given up when it was pointed out to the Ld Defence counsels that no rebuttal evidence has been led by C.C.No:38 / 2011 Page No.34 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the accused to prove what other jewellery items were acquired by the accused prior to the check period, the information of which was given by him to the Department). As per the same the assets held by the accused before the check period i.e. 01.01.1996 have been calculated at the value of Rs. 6,08,645/ and in view of it being undisputed, it is being taken to be such by this court also.
34. The statement B consists of the assets found in possession of the accused at the end of check period and includes apart from the one flat at Pritampura, another immovable property, namely, a plot in Noida purchased in the name of the wife of the accused for a value of Rs. 19 lacs, cash of Rs. 40,670/ and some household items which were recovered during the search at the residence of the accused on 02.02.2005 and which the prosecution asserts to have been acquired by the accused after 01.09.1996 and of the value being Rs. 2,46,200/, various cash amounts discovered in the 14 bank accounts held by the accused and his wife and daughters, jewellery found in a bank locker in the name of accused and his wife, of the value of Rs. 2,78,581/ and two C.C.No:38 / 2011 Page No.35 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 vehicles, namely a Santro car and one Bajaj Auto. In order to prove the assets mentioned at serial no. 5, 6, 7, 8, 9, 10 15, 16, 17, 18 of the said StatementB, namely the cash amounts, vehicles and jewellery, officials from various banks/companies namely PW5, PW6, PW7, PW14, PW 15, PW19, PW20, PW24, PW26, PW31, PW32, PW33, PW36, PW39, PW40 have been examined by the prosecution. The deposition of these witnesses and the record produced by them is not being disputed by the accused (Though initially the amounts being shown at serial no. 10 and 19 to be existing in the bank accounts of the accused and his wife in UCO Bank, Nizamuddin and in Indian Overseas Bank, Noida were being disputed, the challenge to the same was later on given up when it was pointed out to the Ld. Defence Counsels that the said amounts have been even proved during the defence evidence by DW3 and DW8).
Thus the assets mentioned in the said entries of StatementB are to be taken to be proved. Further as regards the entries 3 and 4 namely the list of household articles recovered during the search at the residential premises of the accused proved by the IO PW45 and the cash amount of C.C.No:38 / 2011 Page No.36 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Rs. 40670/ though the same are also not being disputed by the accused, it has been pointed out on behalf of the Defence and admitted by the prosecution that there is an arithmetical error in the calculation of the value of the household articles described in the list Ex.PW37/B and the correct value of the said articles comes to Rs. 2,36,200/ and not Rs. 2,46,200/ as reflected in entry 3 of the statementB. Thus an amount of Rs. 10,000/ will have to be deducted from the value of assets reflected in statementB on this account.
35. What is also being disputed in the said statement is the amount of Rs. 19 lacs, the value of the immovable property namely plot no. A386, Sector19, Noida, UP acquired by the accused in the name of his wife and the cash assertedly found in four of the bank accounts, namely, existing in Bank of Maharashtra Pune, Sangali BankPune, Standard Chartered BankChankyapuri and South Extension.
36. As regards the immovable property said to have been acquired by the accused in the name of his wife, admittedly the accused had informed his Department that the said property had been purchased C.C.No:38 / 2011 Page No.37 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 by his wife and his daughter with their own savings and loans taken from relatives. The prosecution has however produced the own relatives of the accused in the witness box to prove that the entire amount paid towards the sale price was that of the accused only and no loans were advanced by any of his relatives by issuing cheques in favour of the earstwhile owner of the said immovable property as sought to be contended by the accused. PW10 Ms. Sushila Garg and PW11 Sh. Rajendra Kumar Garg are the parentsinlaw of the daughter of the accused Ms. Shivalika and both of them in their depositions have narrated that in December 2000 the accused had deposited amounts of Rs. 2,24,000/ and Rs. 2,50,000/ in cash in their bank accounts and in lieu thereof they had issued cheques for the same amounts in favour of one Ms. Sonia Anju Khatri on the request of the accused. They have explained that the accused had informed them that he wanted to purchase a house in Noida from Ms. Sonia Anju Khatri and that therefore they on his request had issued the cheques in favour of the said lady. Both these witnesses in their cross examination have stated that the accused had informed them that there C.C.No:38 / 2011 Page No.38 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 was some vastu dosh in the said house and to remove the same the money was to be paid to the seller by different persons and that they had informed this fact to the CBI when their statements were recorded. These two witnesses have duly proved the deposit slips vide which the amounts were deposited in their banks by the accused. The testimony of these two witnesses is not being disputed by the accused. Apart from the said two witnesses the prosecution has also examined the daughter and soninlaw of accused, Ms. Shivalik Garg and Sh. Vivek Garg as PW16 and PW17. Though these witnesses have not supported the assertion of the prosecution that they also had received cash amounts in lieu of the cheques issued by them in favour of Ms. Sonia Anju Khatri and both of them have interalia deposed that they had given a total amount of approximately Rs 2 lacs to the accused as a loan and the cheques were issued by them in this respect, in the considered opinion of this court, it is being rightly contended by the prosecution, that they have falsely deposed to this extent. This is so because both of them have admitted that cash amounts approximately of Rs. 2 lacs mentioned in deposit slips C.C.No:38 / 2011 Page No.39 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Ex.PW11/A, Ex.PW10/G, Ex.PW11/H, Ex.PW10/D and Ex.PW11/B had been deposited in their bank accounts in December 2000 just before they had issued the cheques in question and have been unable to give any valid explanation for the said deposits. It is obvious that PW16 being the daughter of the accused and PW17 being his soninlaw have deposed falsely in his favour and it is clear that if their depositions are read in entirety alongwith the depositions of PW10 and PW11, the only inference that can be drawn is that they had not contributed any amount towards the purchase of the house in question or given any loan to the accused for the said purchase.
37. Next are the depositions of PW27 Smt. Vinod Srivastav and PW44 Sh. Saurabh Srivastav, the sister and nephew of the accused. Both these witnesses have categorically stated in their examinationinchief that they had not issued any cheques in favour of Ms. Sonia Anju Khatri. Both of them have stated that they had given blank cheques in favour of the accused on his request. PW27 has explained that her deceased husband owned a property in Pitam Pura C.C.No:38 / 2011 Page No.40 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 which was let out on rent and the accused on her request used to collect the rent therefrom and deposit the same in her bank account with PNB Jor Bagh and that apart from rent she had also authorized the accused to incur expenses for the maintenance of the property and for the same she had issued blank cheques in his favour. PW44 has also given a similar explanation for issuing blank cheques in favour of the accused. The depositions of both these witnesses therefore make it clear that they had not granted any loan to the accused for the purchase of the immovable property in Noida. The submission of the accused that since both these witnesses in their crossexamination have admitted that he had settled all their accounts, his utilization of the cheques issued by them, for purchasing the property in Noida cannot be termed as a misappropriation and in fact should be considered as a loan which he took and repaid, is absolutely without any merit. Though the submission of the accused that he had got issued cheques from different persons in favour of Ms Anju Khatri, the seller of the immovable property of Noida to remove the vastu dosh of the sher mukhi house can be believed in view of C.C.No:38 / 2011 Page No.41 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 depositions of PW10 and PW11, it is amply clear from the depositions of the witnesses, PW10, PW11, PW16, PW17, PW27 and PW22 that none of them had contributed any amount towards the property acquired by the accused in Noida and therefore the entire amount of the said acquisition i.e Rs. 19 lacs, has been rightly included by the prosecution in statementB.
38. As regards the total cash amount of Rs. 89,792/ shown to have been found existing in the accounts of the accused and his family members in the four banks namely Bank of Maharashtra, Pune, Sangali Bank, Pune, Standard Chartered Bank, Chanakyapuri and South Extension and Indian Overseas Bank, Noida, it has been pointed out by the Ld. Defence Counsels that the prosecution has not summoned any official from the said banks to prove the statement of accounts allegedly held by the accused in the said banks and therefore the contention is that the cash amounts reflected in the said accounts cannot at all be included in the assets of the accused. There is no rebuttal to the said contention of the accused. Since the prosecution has not bothered to summon any C.C.No:38 / 2011 Page No.42 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 witness from the said four banks pointed out by the learned Defence Counsels, the cash reflected in the said statements filed on record by the prosecution cannot, in the considered opinion of this court, be read in evidence and therefore cannot be included in the assets found in possession of the accused at the end of the check period. As such an amount of Rs. 89,792/ will have to be deducted from the total valuation of assets done by the investigating agency in statement B and if one deducts the said amount and the amount of Rs. 10,000/ (explained in para 34), the value of assets in Statement B will have to be considered as Rs. 42,38,409/.
39. Coming now to the StatementD, in respect of the total expenditure made by the accused during check in period, in the same, the investigating agency has included the household expenditure made by the accused during the check period, the payments made by him for acquiring two cars, some jewellery, a colour TV, an air conditioner, the payments made to various banks/mobile companies against the credit cards and mobile phones used by the accused and his family members, C.C.No:38 / 2011 Page No.43 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 expenditure incurred by the accused on the occasion of the marriage of his elder daughter and the tuition fees paid by the accused for his younger daughter. In order to prove the amounts mentioned in the said statement, the prosecution has examined the following witnesses - PW3, PW4, PW8, PW9, PW18, PW19, PW22, PW23, PW25, PW26, PW33, PW34, PW39, PW43, PW45. The testimony of these witnesses and the documentary evidence including credit card statements brought on record by these witnesses, except that of PW3, PW22 and PW45, has not been seriously disputed by the accused. PW45 is the main Investigating Officer Sh. A.K. Pandey and his testimony with respect to the Statement D has been questioned by the accused on the following grounds :
(i) The first and foremost contention made by the defence counsels is that the IO has wrongly computed house hold/kitchen expenses incurred by the accused during the said period. It has been pointed out by the Ld. Defence Counsels that the IO has first of all deducted 1/3 rd of the salary of the accused towards house hold expenses and has included an amount of Rs. 4,38,561/ under the said head in StatementD and thereafter in the C.C.No:38 / 2011 Page No.44 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 same statement has also included an amount of Rs. 68,544/ towards the expenditure incurred by the accused towards the payment of water and electricity bills of his residence and various expenditures made by the accused for purchase of household items, by using his credit cards. The contention of the defence is that either the IO could have deducted 1/3 rd amount from the salary of the accused towards house hold expenses or he could have considered the actual expenditure made by the accused in this regard and he could not have added both the said amounts to arrive at the expenses incurred by the accused in this regard. It has also been pointed out by the Defence that infact a circular NO. 21/40/99PD (Pt) dated 29.11.2001 issued by CBI itself makes this issue clear and that despite the said circular, being in operation, the IO of this case deliberately to inflate the expenditure of the accused in the cheque period included both the aforementioned amounts.
In the considered opinion of this court, the submissions made by the Defence in this regard are absolutely correct. The circular issued by the CBI and referred to by the Ld Defence Counsels clearly C.C.No:38 / 2011 Page No.45 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 prescribes that nonverifiable expenses such as kitchen, household, clothing etc. should be taken 1/3rd of gross salary as last resort after attempting to quantify the expenses broadly in each of these heads by verification. In the said circular it is also clearly mentioned that electricity and water charges should not be computed separately when unverifiable expenditure is computed in the abovementioned manner. It is apparently clear from the said circular that firstly 1/3 rd of the gross salary is to be deducted not only towards mere kitchen expenses but is also to include expenditure made on household items, clothings, water and electricity charges and secondly, this deduction amounting to 1/3 rd of the gross salary is to be presumed only if the investigating official has been unable to verify the expenses broadly in each of the said heads separately. Now, in the present case, the IO, PW45, A.K. Pandey on being confronted, during his crossexamination with various entries of Ex. PW25/B, Ex PW43/A, Ex. PW4/E, Ex.PW4/C1 to Ex. PW4/C35, Ex PW4/F, Ex PW19/C (statements relating to the credit card expenditures, made by the accused) has categorically admitted that the said entires C.C.No:38 / 2011 Page No.46 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 relate to the expenses incurred by the accused for purchasing various household items and further that he has not considered the same at all while deducting 1/3rd of the salary of the accused towards household expenditure. Similarly, despite verifying during investigation (vide Ex. PW8/A and Ex. PW45/J) that accused had made a payment of Rs. 68,554/ towards water and electricity bills raised with respect to his residence, the said IO in his crossexamination has admitted that he included this amount in the expenditure made by the accused in addition to deducting 1/3rd of the salary of accused towards household expenses. The explanation sought to be given by the IO and the investigating agency is that the 1/3rd of the salary is to be deducted only for expenses which cannot be verified by their very nature, such as kitchen expenses. In the considered opinion of this Court, the said interpretation adopted by the IO is completely misplaced and is also contrary to the own circular issued by the CBI. It will be relevant to mention that though initially Ld. Prosecutor for the State Sh. Harshmohan Singh also had tried to support the explanation tendered by the IO, he however, did not press this C.C.No:38 / 2011 Page No.47 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 argument when the Ld. Defence Counsels placed reliance on the aforementioned circular issued by the CBI itself. In the considered opinion of this court in view of the own circular issued by the CBI, once the IO had been able to verify the actual expenditure made by the accused towards electricity and water consumption / house hold items/ clothing and had already included the said amounts in the expenditure StatementD, the investigating agency cannot be allowed to deduct 1/3 rd of the gross salary of the accused on account of household expenditure and the interests of justice demand that the prosecution is only allowed to deduct only 10% of the gross salary of the accused under the head of kitchen expenses which could not be verified by their very nature. Therefore, the amount of Rs. 4,38,561/ considered by the CBI (1/3 rd of the salary of the accused) against house hold expenditure in statement D has to be reduced to an amount of Rs. 1,31,568/.
(ii) The next contention of the Ld. Defence Counsels with respect to the testimony of the IO is that the IO has included the expenditure made by accused for the same three pieces of jewellery C.C.No:38 / 2011 Page No.48 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 namely one gold kangan, two earrings and one gold locket chain, under three different heads in StatementD. It has been pointed out on behalf of the defence that the entire jewellery seized from the accused was got valued from a government valuer PW31 Vijay Goel and the said valuer had evaluated the entire jewellery recovered from the accused at a value of Rs. 2,78,581/ and this amount was included in the StatementB i.e as value of assets (jewellery) acquired by the accused during the checkin period. Now, out of the said jewellery, bills for the aforementioned three pieces of jewellery, namely Ex. PW16/M4, Ex.PW16/M5 and mark A were seized by the IO during the search of the house of the accused and the payments of Rs. 2281/ and 20,854/ reflected in the bills Ex.PW16/M5 and mark A were included by the IO in the expenditures made by the accused and in addition, the payment of Rs. 24,250/ that was made against the bill Ex. PW16/M4 by the accused vide his credit card and reflected at point C in Ex. PW25/B was also included by the IO separately under the expenditures made by the accused using his credit card. The explanation sought to be given by the IO in this regard, C.C.No:38 / 2011 Page No.49 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 in his crossexamination is that the pieces of jewellery mentioned in the valuation report Ex. PW31/A do not tally with the items mentioned in the bill seized during the search of the house of the accused. Ld PP for the CBI has also similarly sought to contend that due to the differences in the weights of the jewellery items in the valuation report Ex. PW31/A and the bills in question, it cannot be stated that the bills are for the same pieces of jewellery for which the bills have been recovered. In the considered opinion of this Court it has been rightly contended by the defence in rebuttal that since the valuer PW31 did not take the weight of each of the jewellery items recovered separately, the prosecution cannot on the basis of some presumptions contend that the weight of the item do not tally. In the considered opinion of this court, the three pieces of jewellery mentioned in the aforementioned bills, do find mention in the list of jewellery seized from the house of the accused and if there was any doubt with respect to some differences in weight of the said pieces in the valuation list and in the bills, it was for the IO to have made a thorough verification of the same. The onus of proof in this respect C.C.No:38 / 2011 Page No.50 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 cannot be shifted upon the accused at all, in view of the similarity of description of the said pieces of jewellery in the valuation list and in the bills in question. Thus, in this regard, a total amount of Rs. 47,385/ is required to be deducted from the StatementD.
40. The testimony of PW22 Pramod Anand, Sales Executive of M/s Tanvi Aircon is being disputed by the Defence on the ground that the same does not at all prove that the accused had made an expenditure of Rs. 13,500/ on account of purchase of an old split AC from the said firm. Admittedly the prosecution has shown an amount of Rs. 13,500/ to have been spent by the accused for the purchase of an old split AC and in this respect has relied upon a receipt Ex.PW22/A which has been proved by PW22. This witness has interalia deposed that his wife Ms. Jolly Anand was doing the business of sale and purchase of air conditioners during the year 20022006 and vide the receipt Ex.PW22/A bearing the signatures of his wife, an old air conditioner mentioned therein was sold to a person for an amount of Rs. 13,500/. In his cross examination he admits that the said receipt does not mention to whom C.C.No:38 / 2011 Page No.51 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 was the said AC sold. According to the prosecution since the said receipt was recovered from the house of the accused, it should be presumed that he only had purchased the AC mentioned in the said receipt. The accused on the other hand has disputed that the said receipt was recovered from his house. In the considered opinion of the court the contention being made by the accused has to be accepted for the said receipt does not find mention in the search memo Ex.PW37/B assertedly prepared by the IO during the search of the house of the accused and neither has the IO deposed anything with respect to the said receipt having been so recovered from the house of the accused. In the absence of any evidence that the receipt Ex.PW22/A was recovered from the house of the accused, no presumption can be made that he only had purchased the AC mentioned in the receipt. Thus it is being rightly contended by the accused that the amount of Rs. 13,500/ shown to have been spent by him for purchase of the aforementioned AC is also to be deducted from statementD.
41. The testimony of PW3 Inderjeet Singh, proprietor of a tent C.C.No:38 / 2011 Page No.52 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 house is also being disputed by the accused. The prosecution had summoned this witness to prove that the accused had paid an amount of Rs. 35000/ to this witness for providing tent services on the occasion of the marriage of his daughter. PW3 in his deposition has stated before the court that the accused had paid to him either an amount of Rs.30,000/ or an amount of Rs. 35,000/ for the booking of tent for the marriage of his daughter which had taken place on 4.12.1999. The accused is disputing the statement of PW3 on the ground that this witness has not produced any receipt to show that he had been paid any amount by the accused. It has also been pointed out by the Ld Defence counsels that the witness himself was not sure whether it was an amount of Rs. 30,000/ or it was an amount of Rs. 35,000/ that was paid to him. In rebuttal Ld Public Prosecutors have contended that the mere fact that this witness has not produced any receipt in support of his deposition does not shake his credibility in as much as he has given the exact date of the marriage of the daughter of the accused and the same has not been disputed by the accused. They have submitted that at the most the accused can be C.C.No:38 / 2011 Page No.53 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 granted a benefit of Rs. 5,000/ on account of the witness not being sure of the exact amount paid to him by the accused.
42. In the considered opinion of this court also the testimony of PW3 cannot be doubted merely because he has been unable to support the same with documentary evidence. It is quite acceptable that a person running a small tent house would not have maintained till the year 2009, when he was examined in court, a receipt that was provided to him ten years back, in 1999. Further it is also to be taken note of that the accused has not suggested it to the witness that his daughter was not married on 4.12.1999, the date given by the witness. If the accused was wanting to seriously dispute the testimony given by this witness, he could have easily either in his own defence brought evidence to show that somebody other than PW3 had provided the tent services on the marriage of his daughter or suggested the same to this witness. In the considered opinion of this court an amount of Rs. 30,000/ (and not Rs. 35,000/) will have to be taken as the expenditure incurred by the accused on the tent services provided by PW3 on the marriage of his daughter and only a C.C.No:38 / 2011 Page No.54 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 benefit of Rs. 5,000/ can be granted to the accused in this regard.
43. The next contention of the defence with respect to StatementD is that the prosecution has not proved the payments made by the accused assertedly to Airtel Mobile Company and to Hutch Company for the mobile phone being used by him and his wife which have been reflected in entries 26 and 27 of StatementD and that therefore the amounts reflected against the said entries namely Rs. 1,39,761/ and Rs.
19,0,20/ should be deducted from the said statement. Similarly, it has also been pointed out by the accused that the prosecution has not brought forward any evidence to show the payments of Rs. 1750/ and Rs. 1965/ towards the tuition fees of his daughter were assertedly paid by the accused to Jamia Millia and reflected in entry 30 of the said statement. No contention in rebuttal has been made on behalf of the prosecution in this respect and therefore in the considered opinion of this court the aforementioned amounts will also have to be deducted from statementD.
44. In view of the discussion in the preceding paragraphs after deducting all the aforementioned amounts (Rs. 3,06,993/, Rs. 47,385/, C.C.No:38 / 2011 Page No.55 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Rs. 13,500/, Rs. 5,000/, Rs. 1,39,761/, Rs. 19,020/, Rs. 1,750/ and Rs. 1965/) the expenditure made by the accused during the check period and reflected in StatementD will have to be taken as Rs. 26,16,011 /.
45. Coming now to the StatementC, it consists of the income calculated by the investigating agency to have been earned by the accused and his family members during the check period. The salary income of the accused mentioned in the said statement have been proved by the prosecution by examining the officials of the IMD namely PW1, PW28, PW29 and PW30. As per the records produced by these witnesses the net salary income of the accused during the check period was Rs. 13,15,683/ and the same has not been disputed by the accused.
46. As regards the remaining computation of income shown in the said statement, the first contention of the defence with respect to the same is that the investigating officer has not included the salary earned by the daughter of the accused Ms. Prerna Srivastav during the period April 2004 to February 2005. Learned defence counsels have pointed out that though in StatementC at serial no. 17 and 18 the salary C.C.No:38 / 2011 Page No.56 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 earned by Ms Srivastav for the years 20022003 and the year 20032004 has been included, the investigating officer has malafidely not included the salary earned by Ms. Srivastav w.e.f April 2004 to February 2005. Admittedly, DW13 Sh. Sanjay Kumar Piplani, a witness summoned by the accused in his defence has deposed that Ms. Prerna Srivastav had worked with M/s S.T. Micro Electronics during the aforementioned period and he has proved the salary details of Ms. Srivastav during the said period as Ex.DW13/A. This witness has also proved the copy of form 16 which was issued by the company in favour of Ms. Srivastav and the same has been proved as Ex.PW13/B. The said documents clearly reflect that Ms. Prerna Srivastav had earned an amount of Rs. 2,07,000/ during the said period. Now the only explanation given by the investigating officer in this regard is that he did not include the said salary as in the year 2004 Ms. Prerna Srivastav had opened an independent bank account in her own name in which her salary was being credited and the contention of the Ld prosecutor therefore is that since the time Ms. Srivastav opened her independent bank account and C.C.No:38 / 2011 Page No.57 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 her salary was getting credited in the same, it could not be included in the income of the accused. In the considered opinion of this court the said contention and the explanation given by the IO cannot be accepted as sufficient for not including the said amount of Rs. 2,07,000/ in the income of the accused, when the investigating agency itself, on the ground that the daughter of the accused resided with him has included all the expenditures made by her (reflected in the credit card statements of the accused) in the expenditures incurred by the accused. Further admittedly, no effort whatsoever has been made by the investigating officer to collect the statement of independent bank account assertedly opened by Ms. Prerna Srivastav for depositing her salary therein. Had the prosecution proved the said statement to reflect that no withdrawals had been made there from, their contention that the daughter having an independent bank account for her salary was not contributing towards the income of the accused could have been upheld. In the absence of the same the said salary will have to be included in the income of the accused if the prosecution has chosen to include the expenditures made C.C.No:38 / 2011 Page No.58 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 by the said daughter towards purchase of said cloths, jewellery etc. in the expenditure account of the accused.
47. The second contention of the Defence with respect to statement C is pertaining to the amounts shown at serial no. 9, 10, 11, 12. The amounts of Rs. 42000/, Rs. 1,08,872/, Rs. 1,18742/ and Rs. 58,800/ have been shown in the said entries to be the gross total income earned by the wife of the accused from property and other business during the assessment years 200203, 200304, 200405 and 200506 respectively. Now admittedly, as per the own testimony of the Investigating Officer, PW45 A.K. Pandey, he has relied upon the incomeTax returns filed by the wife of the accused, Ex.PW35/B, Ex.PW35/C, Ex.PW45/X, Ex.PW45/Y to arrive at the said amounts and the same includes the rental income of Rs. 1,93,200/ earned by the wife of the accused from a property bearing no. A386, Sector19, Noida and reflected in the aforementioned incometax returns. The contention of the Defence however is that the IO could not have arrived at the said amount of rental income by merely relying upon the incomeTax returns C.C.No:38 / 2011 Page No.59 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 filed by the wife of the accused. Ld Defence counsels have pointed out that the own witness of the prosecution PW13 B.K. Singh has clearly deposed before the Court that during the period July, 2001 to September, 2004, he being the Director of M/s B.K. Consimpex Pvt Ltd, the tenant in the aforementioned property, had paid Rs. 5,39,318/ in total towards the rent and out of the same Rs. 2,33,318/ was paid to Kamini Srivastava and Rs. 3,06,000/ to Ms. Prerna Srivastava. Ld. Defence Counsels have further pointed out that admittedly, this witness, during investigation had supplied the complete details of the aforementioned payments made by him to the aforementioned relatives of the accused, vide the document Ex. PW13/B and yet the IO deliberately chose to ignore this document and merely gave a benefit of Rs. 1,93,200/ to the accused under this head. The contention of Ld PP for CBI in this regard is that since during investigation, the income tax returns of Ms. Kamini Srivastava revealed that she had declared a rental income of only Rs. 6000/ per month from the aforementioned property, it is only the said amount that was taken into consideration by the IO and according to Ld. PP for State, the IO C.C.No:38 / 2011 Page No.60 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 was justified in doing so.
48. I am afraid that the said contention of the prosecution cannot be upheld because admittedly the income tax return filed by Prerna Srivastava have not been collected at all by the investigating agency while on the other hand the defence has pointed out that the bank passbook of Indian overseas Bank pertaining to saving account No. 10069 of Kamini Srivastava and Prerna Srivastava reflects the corresponding credit entries with respect to the details of the cheques mentioned in Ex. PW13/B. The document Ex. PW13/B contains the details of all the cheques that were issued by the tenant company in favour of Kamini Srivastava and Prerna Srivastava during the entire period of July, 2001 till September, 2004. The said document clearly reflects that a total amount of Rs. 5,39,318/ was paid by M/s B.K. Consimpex Pvt Ltd., to Ms. Kamini and Prerna Srivastava. The said witness has also proved on record the rent agreement that was executed between the aforementioned company and Mrs. Kamini Srivastava and the said lease agreement Ex. PW13/A also clearly reflects that the rent of C.C.No:38 / 2011 Page No.61 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the said premises were fixed at Rs. 14,000/ per month. This witness in his deposition before the Court has clarified that though the lease was executed only by Ms. Kamini Srivastava, on request of the accused, the lease rent was split into two parts and the amounts of Rs. 8000/ per month and Rs. 6000/ per month were paid vide cheques in the accounts of Kamini Srivastava and Prerna Srivastava. In such view of details furnished by this witness, including the cheque numbers vide which the payments mentioned in Ex. PW13/B were made, the IO cannot at all be held to be justified in ignoring the details of payment furnished to him by PW13 vide Ex.PW13/B and in including only the amount of rent declared as received by Kamini Srivastava in her income tax returns. Rentals received vide cheques by the family members of an accused facing investigation for possessing disproportionate assets cannot at all be ignored by an investigating official while calculating the income of the accused, if the investigating official has chosen to include the expenditures made by the accused for his family members in his expenditure. Further, it is also to be noted that even the rental income C.C.No:38 / 2011 Page No.62 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 reflected in the income tax returns of Ms. Kamini Srivastava, Ex.PW35/B, Ex.PW35/C, Ex.PW45/X, Ex.PW45/Y which have been considered by the IO, have not been correctly computed for the IO has failed to take into consideration that by virtue of Section 24 of the Income Tax Act, an assessee is entitled to deduct 1/3 rd of the total rental income received, as standard deduction from the rental income earned in a particular financial year. Based on the details furnished by PW13 vide Ex. PW13/B, it is therefore, to be held that against the rental income of Rs. 1,93,200/ considered by the IO as the income received by the accused from the property in question, the correct amount of income that is to be considered is Rs. 5,39,318/ and therefore, under this head an amount of Rs. 3,46,118/ is to be added in the StatementC.
49. The next contention of the Ld. Defence Counsels with respect to this table is that the investigating officer has not included therein the benefit of the interest amounts that had accrued during the check period to the accused and his family members with respect to the bank accounts held by them. Ld Defence Counsels have submitted that C.C.No:38 / 2011 Page No.63 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the investigating officer very conveniently has only taken the balance reflected in the pass books of various bank accounts held by the accused and his family members, at the end of the check period and has not taken into account the amount of the interest accrued therein. On the other hand, the contention of the investigating agency is that the benefit of the interests credited in the bank accounts of the accused and his family members has been given and that the consideration of the balance reflected in the pass books at the end of the check period for the said purpose has not caused any prejudice to the accused. In the considered opinion of this court, the contention of the defence in this respect is correct and will have to be upheld for the interest which accrues on the savings made by a public servant is a legitimate source of income and therefore, should have been included in the computation of the total income of the accused. The interests that are reflected in the various statements of the accounts held by the accused and proved by the prosecution and defence are as follows:
(i) The interest amount of Rs.10,145/ accrued in the saving bank account C.C.No:38 / 2011 Page No.64 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 no. 3710 of the accused and his wife existing in Punjab National Bank. PW38 Sh. S.C. Sharma and DW2 Kewal Krishan, both officials of the PNB have proved the statements of this account and the passbooks (Ex. PW38/B, Ex. PW41/DY2, Ex. DW2/A, Ex. DW2/B and Ex. DW 2/C) and the said statements show the credit of the following interest amounts : Ex. DW2/A, in particular reflects the below mentioned amounts on the following pages : Page. Date Amount No.
1. 09.01.2001 473.00
2. 03.01.2002 1,390.00
3. 09.02.2002 583.00
4. 03.01.2003 2,617.00
5. 09.12.2003 502.00
7. 03.04.2004 403.00
9. 09.08.2004 137.00
9. 09.08.2004 204.00 6,309.00 Ex. PW-41/DY2 reflects the below mentioned amounts on the C.C.No:38 / 2011 Page No.65 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 following pages :-
Page. Date Amount
No.
1. 09.12.1996 1,014.00
2. 03.13.1997 1,505.00
3. 03.16.2000 1,317.00
3,836.00
(ii) The interest amount of Rs. 20,596/ accrued in the saving bank account no. 011313 of the wife and the daughter of the accused existing in Central Bank. PW32 Sh. Sukhbir Singh an official of the Central Bank of India has proved the statement of this account (Ex. PW32/O and Ex. PW32/P) and the said statements show the credit of the following interest amounts on the pages mentioned below : Page. Date Amount No.
1. 07.10.1998 482.00
1. 01.09.1999 1,173.00
1. 07.02.1999 1,850.00
1. 01.10.2000 2,191.00 C.C.No:38 / 2011 Page No.66 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
1. 07.01.2000 2,162.00
2. 01.01.2001 2,676.00
2. 07.02.2001 1,181.00
2. 01.01.2002 1,004.00
2. 07.01.2002 1,624.00
3. 01.01.2003 1,247.00
3. 07.01.2003 1,155.00
3. 01.01.2004 1,118.00
4. 07.01.2004 756.00
4. 0.10.1.2005 1,977.00 20,596.00
(iii) The interest amount of Rs.4,835/ accrued in the saving bank account no. 09173 of the accused existing in Central Bank. The said amount is reflected in the passbook of the said account, Ex. PW41/DY 1, which was admitted to have been seized by PW41 Sh.R.N.Azad, IO and the said passbook shows the credit of the following interest amounts on the pages mentioned below : Page. Date Amount No.
1. 07.10.1998 46.00
1. 01.09.1999 93.00 C.C.No:38 / 2011 Page No.67 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
2. 07.02.1999 95.00
2. 01.10.2000 97.00
2. 01.01.2001 939.00
2. 07.02.2001 908.00
4. 01.01.2001 791.00
6. 07.01.2002 755.00
7. 01.01.2003 766.00
7. 07.01.2003 166.00
8. 07.01.2000 179.00 4835.00
(iv) The interest amount of Rs.25,131.35 accrued in the saving bank account no. 7029 of the accused and his wife existing in UCO Bank. The said amount is reflected in the statements of this account, Ex. PW35/B, Ex. DW3/A and is also particularly mentioned in Ex. DW3/B, the certified copy of statement pertaining to accrued interest. The said documents have been proved by PW36 Surender Kumar Mishra and DW3 Dheeraj Kumar, both officials of UCO Bank and Ex. DW3/B certifies the credit of the following interest amount : Amount C.C.No:38 / 2011 Page No.68 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 25,131.35
(v) The interest amount of Rs.13,516.23/ accrued in the saving bank account no. 320445914 of the accused existing in American Express Bank. The said amount is reflected in the statement of this account, Ex.
PW19/E, proved by PW19 Pratap Singh, an official of the American Express Bank on the following pages : Page. Date Amount No.
2. 09.29.2000 1,416.60
4. 03.31.2001 1,884.84
6. 09.29.2001 1,791.27
8. 03.30.2002 2,223.77 10 09.28.2002 1,249.85 12 03.31.2003 1,603.74 14 09.29.2003 557.85 15 12.31.2003 459.78 16 01.04.2004 474.22 17 03.31.2004 469.74
18. 06.30.2004 445.17
19. 09.30.2004 312.67
20. 12.31.2004 315.43 C.C.No:38 / 2011 Page No.69 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
21. 03.31.2005 311.30 13516.23
(vi) The interest amount of Rs.23,318.20 accrued in the saving bank account no. 10069 of the wife and daughter of the accused existing in Indian Overseas Bank. The said amount has been proved by DW8 Surender Bagri, an official of the Indian Overseas Bank from the passbook of the accused Ex. DW8/B and admittedly the same passbook is being relied upon by the prosecution to claim that the accused had a savings of Rs. 3,76,585.20 in the said account.
Amount 23,318.20
50. Thus the total amount of Rs. 97,541.78/ (the total amount reflected in all the aforementioned bank accounts) which has been earned by the accused and his wife and daughter from their various saving accounts has to also therefore be included in this statement C.
51. Further apart from the aforementioned interest earned by the accused and his family members, it has also been pointed out by the C.C.No:38 / 2011 Page No.70 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 accused that he had earned an interest of Rs. 1,00,922/ on a fixed deposit that he had made from his savings account bearing no. 3710 in PNB Bank but that the IO instead of including this entire interest amount in the computation of statement C has merely included an amount of Rs. 29,476/ under the said head. Ld Defence Counsels have pointed out that PW38 S.C Sharma, Asstt General Manager of PNB Bank, Circle Office, Patiala, a witness summoned by the prosecution to prove the saving account statement of the accused in the said bank has clearly deposed that vide credit transfer voucher, Ex. PW38/E an amount of Rs. 2,50,922/ was transferred in the said account of the accused from the ODFD account of the said bank only. (The term ODFD refers to an FD account in which the FD is made by using the amount from a saving bank account of a customer). Ld. Defence counsels have also pointed out that the amount of the initial FD stands proved to Rs. 1,50,000/ from D6, (a part of the document Ex.PW45/V) the statement of the bank account bearing number 3710 of the accused and his wife existing in PNB. Now the Ld. Prosecutors for CBI are not disputing that this amount of Rs. C.C.No:38 / 2011 Page No.71 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 2,50,922/ transferred in the saving bank account of the accused was on account of the maturing of the FD of Rs. 1,50,000/ made by the accused in the year 1997 by utilizing the amount available with him in his aforementioned saving bank account in PNB. Their contention is that since the accused in his income tax returns has reflected only an amount of Rs. 29,476/ as the interest earned by him on the said FD, the IO included only the said amount as income in statement C prepared by him. Now, the statement C filed on record by the IO clearly shows that he has only considered the income tax returns of the accused for the assessment years 200203 and 200304 to arrive at an amount of Rs. 29,476/ as the interest earned by the accused from the said FD account with the PNB. Thus it is not the case of the prosecution that the accused had not reflected the interests earned by him on this FD in his income tax returns for the assessment years prior to 2002 but their mere assertion is that from the documents collected from the accused, these were the only two amounts that they could determine as interests earned by the accused. In the considered opinion of this Court, when admittedly in the present case, C.C.No:38 / 2011 Page No.72 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the IO has not collected all the income tax returns of the accused from the Income Tax Authorities but has merely relied upon those which he recovered from the premises of the accused, it cannot be held at all that in the previous assessment years the accused did not reflect these amounts as the interests earned by him. In the considered opinion of this court at the time of preparation of statement C, once the IO had become aware that the accused had earned interests from a FD with PNB, it was his duty to have verified the entire amount of interest earned by the accused from the said FD. On the failure of the IO to have done so, there cannot be stated anything wrong on part of the accused to have proved the earning of the said interest from his bank account statement proved by PW38 which are being relied by the prosecution. Thus, this Court holds that the IO should have included the total interest of Rs. 1,00,922/ as the interest accrued on this FD and included the same in statement C instead of merely including the amount of Rs. 29,476/ and therefore on account of this discrepancy, a benefit of Rs. 71,446/ will have to be added in statement C. C.C.No:38 / 2011 Page No.73 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
52. The next contention of the defence with respect to the statement C is that the accused had taken a loan amount of Rs. 1,16,000/ from Standard Chartered Bank and had also withdrawn cash of Rs. 2,44,890/ from the ATM using his credit card during the check period and that both these amounts should have been included in the income of the accused but that the IO failed to do so. In this respect, Ld Defence Counsels have pointed out that the accused in his defence had summoned Sh. Anand Prakash, Manager Legal, Standard Chartered Bank and this witness (DW10) has proved on record, the details of the transactions pertaining to credit card used by the accused and the said records (which have been exhibited on record as Ex DW10/A and B) clearly reveal that a loan of Rs. 41,000/ was extended by Standard Chartered Bank to the accused on 16.2.2004 and a loan of Rs. 75,000/ was extended to the accused on 27.4.2004. Ld Defence counsels have also pointed out that when the investigating officer PW45 A.K Pandey was confronted with the said loan amounts, he admitted that he had not included the said amounts in the income of the accused, for the same had not come to his C.C.No:38 / 2011 Page No.74 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 knowledge.
53. In the considered opinion of this court, in view of the records Ex. DW10/A and DW10/B proved by DW10, the accused has been able to prove that he had been extended a total loan amount of Rs. 1,16,000/ from Standard Chartered Bank and the said amount will have to be included in the income of the accused. It will be relevant to mention herein that though initially Ld. Prosecutors for CBI Sh. Harish Gupta and Sh. Harshmohan Singh had objected to the mode of proof of Ex. DW10/A and Ex. DW10/B on the ground that the same were not accompanied by a certificate of DW10 under section 65 B of the Evidence Act, the said objection was subsequently given up when the Ld Defence Counsels had pointed out that even the statement of bank accounts of the accused brought on record by the prosecution witnesses are not accompanied by any such certificate. Both the Ld. PP and Defence Counsels had then submitted before this court that where the statement of bank accounts of the accused have been brought on record by an authorized official of the bank, both the sides will not dispute the C.C.No:38 / 2011 Page No.75 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 same.
54. The next contention of the defence with respect to statement C is that though the IO has included in statement D, all the expenditures made by the accused using his credit cards he has not included the cash withdrawals made by the accused using his credit card, in the income of the accused. The contention of the Ld. Defence Counsels is that the cash withdrawals made by a person using his credit card are in the nature of a loan. They have pointed out that DW18 Sh. Jagdish Salwan, Manager Citibank, Connaught Place has clearly deposed in the said regard. On the basis of the deposition given by this witness, it is the contention of the Ld. Defence Counsels that the cash withdrawals made by the accused using his credit cards in various banks, proved vide Ex.PW19/B, Ex.DW14/A, Ex. DW14/B, Ex DW12/A should all be included in the income of the accused and that if one does so, an amount of Rs. 2,44,890/ has to be included in the income of the accused and in the Statement C. They have pointed out that during crossexamination, the IO PW45 A.K Pandey has categorically admitted that he had not added C.C.No:38 / 2011 Page No.76 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 the cash withdrawals made by the accused using his credit cards in his income. The submission of Ld. Prosecutors in this regard is that since the accused has not proved that he had repaid the said cash withdrawals from his known sources of income, only the repayment of the said cash withdrawals reflected in the credit card expenditure statements have been rightly included in his expenditure.
55. In the considered opinion of this court, the submission made by the Ld. Prosecutors is absolutely incorrect and without any merit. Once the investigating agency is including all the expenditures made by the accused using his credit cards in computing the total expenditure incurred by the accused during the check period, it will have to include the cash withdrawals made by the accused using the said credit cards in the income of the accused in the said period. DW18 Sh. Jagdish Salwan, Manager of the Citibank summoned by the accused in his defence has explained that whenever, a credit card holder withdraws any cash from the ATM using the credit card, the bank, considers the same as a cash advance and charges a particular licence fee on such withdrawal and the C.C.No:38 / 2011 Page No.77 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 same is reflected in the credit card statement of the customer. The deposition of this witness makes it clear that a credit card holder is given the facility of withdrawing cash from the ATM using his credit card and the bank considers the said withdrawal as an advance given to the customer for his expenditure. In the considered opinion of this court, the accused is right in contending that such cash withdrawals made by him using his credit card have to be taken into account, while computing his income for cash withdrawn from a bank using a credit card is a legal source of having funds. Even if the contention of the Ld. Prosecutors that the expenditures reflected in the credit card statement were not made by the accused from his known sources of income i.e his salary, is taken to be correct, the cash taken from the bank itself will have to be reduced from the expenditure reflected in the credit card statement of the accused or added to his income. As such this court hereby holds that the amount of cash withdrawals made by the accused i.e of an amount of Rs. 2,44,890.06/ which is reflected in the aforementioned exhibits, will have to be added to his income.
C.C.No:38 / 2011 Page No.78 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
56. In view of the above discussion after adding all the aforementioned amounts (Rs. 2,07,000/, Rs. 3,46,118/, Rs. 97,541.78/, Rs. 71,446/, Rs. 1,16,000/, Rs. 2,44,890.06/) the income earned by the accused during the check period and reflected in StatementC will have to be taken as Rs. 44,67,351.84/.
57. In view of the discussion herein above, the computation of income and expenditure on the basis of the Statements A, B C and D during the check period will have to be taken as follows :
Sr. Particulars Amount (in
No. Rs.)
1. Assets held as on 2.2.2005 (StatementB) 42,38,409/
2. Assets held as on 1.9.1996 (StatementA) 6,08,645/
3. Assets acquired during check period (BA) 36,29,764/
4. Expenditure during check period (Statement 26,16,011/ D)
5. Total Assets and Expenditure during check 62,45,775/ period (Sl. No. 3+4)
6. Income during check period (StatementC) 44,67,351.84/
58. Thus as per this computation, the accused can be stated to have been found in possession of pecuniary resources of the value Rs. C.C.No:38 / 2011 Page No.79 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 17,78,423/ which, as per the investigating agency, the accused could not satisfactorily account for. The contention of the accused however is that he had satisfactorily accounted for the said amount to the Investigating Officer but the Investigating Officer despite being aware of the said amount being earned by the accused from his known sources of income, malafidely filed the chargesheet against him without even holding a preliminary inquiry. It has been pointed out by Ld Defence counsels that during investigation it had come to the knowledge of the investigating official PW45 A.K. Pandey that during his services as a Central Government employee, the accused was deputed on more than 30 occasions to various countries and each time, he was paid allowances/remunerations by Government of India and World Meteorological Organization (hereinafter referred to as WMO) but that the IO did not take the said allowances/remunerations in computing the income of the accused and their contention is that had the investigating officer done so, there would not have been any case of disproportionate assets made out against the accused. Ld Defence counsels have also C.C.No:38 / 2011 Page No.80 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 pointed out that the accused before this court has narrated in detail, at the time of tendering his statement under section 313 Cr.P.C, about the said deputations and the nature of the allowances paid to him. Though the said narration is not being repeated herein for sake of brevity (and has already been narrated in paras 16 and 17 of this judgment), to put it briefly, the contention of the accused is that the said allowances were not towards travel/daily allowances but were towards deputation allowance that was paid to him for rendering his services in the capacity of the President of Commission for Instrument (WMO Body) and that during the various conferences held by the WMO, it is the WMO which used to take care of all his food and other miscellaneous expenses and therefore he was able to save more than 70 % of the deputation amounts and that the said savings were a lawful source of income for him, the benefit of which should have been granted to him by the investigating agency. According to the accused, at the time of his arrest, the deputation orders issued by the Government of India in this regard, were all taken into custody by the IO (file M114/2005 Ex. PW41/DY6) and the IO despite C.C.No:38 / 2011 Page No.81 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 being aware of the said orders and of the said allowances paid to the accused did not verify the same or include them in the income of the accused.
59. Now the contention of the Ld. Public Prosecutors for the CBI in this regard is two fold. Their first submission is that the investigating agency was under no obligation to verify the said asserted allowances because as per the very nature of the said allowances, the same were paid to cover the actual travel, hotel and daily expenses of the accused in the foreign countries and were therefore to be spent and not saved. In support of this contention Ld Prosecutors have relied upon the judgments pronounced by the Hon'ble Supreme Court in R. Jankiraman's case and CSD Swamy's case (supra). Their second submission is that since the accused did not declare the savings that he made if any, in his income tax returns or to the Government of India, the said savings cannot be included in the "known sources of income" of the accused, as defined in the explanation to section 13 (1) (e) of the PC Act.
60. In reply, the contention of the Defence is that the accused C.C.No:38 / 2011 Page No.82 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 was not under any obligation to declare the savings made by him in any income tax returns and in this regard reliance has been placed upon section 10 (7) of the Income Tax Act.
61. In rebuttal, the contention of the prosecution is that the amounts paid to the accused while on deputation were in the nature of allowances and would be covered under the provisions of section 10 (14) of the Income Tax Act and would have been exempted only upto the actual amount spent by the accused and in this respect reliance is also been placed upon a circular issued by the Central Board of Direct Taxes.
62. I have carefully considered the submissions made by the Ld counsels and have gone through the relevant provisions of the Income Tax Act. In the considered opinion of this court, the reliance of the prosecution on section 10 (14) of the Income Tax Act and the circular of CBDT, to contend that the accused was bound to have declared his unspent allowances and pay tax thereon, is absolutely misplaced. At this stage, it would be necessary herein to reproduce the subsection (7) and (14) of Section 10 of the Income Tax Act.
C.C.No:38 / 2011 Page No.83 of 109
Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016
63. Section 10: In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included (7) any allowances or perquisites paid or allowed as such outside India by the Government to a citizen of India for rendering service outside India (14) (i) any such special allowance or benefit, not being in the nature of a perquisite within the meaning of clause (2) of section 17, specifically granted to meet expenses wholly, necessarily and exclusively incurred in the performance of the duties of an office or employment of profit, to the extent to which such expenses are actually incurred for that purpose:
(ii) any such allowance granted to the assessee either to meet his personal expenses at the place where the duties of his office or employment of profit are ordinarily performed by him or at the place where he ordinarily resides, or to compensate him for the increased cost of living, (as may be prescribed and to the extent as may be prescribed).
64. In the considered opinion of this Court, keeping in view the C.C.No:38 / 2011 Page No.84 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 above provisions, the accused is rightly relying upon sub section (7), to contend that the allowances paid to him for his deputation in foreign countries, is not to be considered a part of his taxable income for the purposes of Income Tax Act and therefore there was no requirement for him to declare such allowances or the savings made therefrom. The said subsection makes it clear that if any allowances are paid or allowed to a citizen of India by the Government for rendering service outside India, the same shall not be included in his income to be declared for the purposes of the Income Tax Act. As narrated herein above, admittedly, in the present case, the accused is a Central Government employee who was being paid allowances outside India by the Government of India or he was allowed by the GOI to be paid allowances by the WMO as is clear from the deputation orders (part of Ex. DW9/B collectively). The contention of the prosecution that since the said allowances were granted to meet the travel/daily expenses of the accused in the foreign countries, the same, in view of subsection (14) of Section 10 of IT Act, were to be exempted only to the extent to which such expenses were actually C.C.No:38 / 2011 Page No.85 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 incurred is completely misplaced. In the considered opinion of this Court subsection (7 ) and sub section (14) of Section 10 of the Income Tax Act are completely exclusive. SubSection (7) comes into play when the assessee is a Central Government or a State Government employee and is being paid allowances outside of India by the Government of India or by any outside agency with the permission of the Government of India. On the other hand, subsection (14) would deal with all Government employees, who are being paid allowances interalia for tours inside India and other assesses who are not government employees and who are been paid allowances, interalia, during foreign and inside India tours. Infact the circular issued by CBDT being relied upon by the prosecution also makes the said position very clear. The said circular provides as under :
65. Instruction No. 1407F No. 200/24/80IT (AI) dated 21.7.81 from Central Board of Direct Taxes. These instructions are pertaining to daily allowance and its taxability and provide as under: C.C.No:38 / 2011 Page No.86 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 "Section 10 (14) of the Income Tax, 1961 exempts any special allowance or benefit, not being in the nature of entertainment allowance or other perquisites within the meaning of Section 17 (2), specifically granted to meet the expenses wholly, necessarily and exclusively incurred in the performance of the duties of an office or employment of profit, to the extent to which such expenses are actually incurred for that purpose. Daily allowance given to employees of the Central and State government for their official tours within India qualify for exemption under Section 10(14) to the extent the allowances are actually spent in the performance of their duties. In cases where employees of the Central/State Government go abroad on official duty, the allowances granted to them are exempt from tax in terms of Section 10 (7) provided the employee is a citizen of India. The requirement of its having been spent actually which is present in Section 10 (14) is absent in Section 10 (7). In the case of allowances given by all other employers to their employees whether for official tours in India or abroad the relevant provision is Section 10 (14) and such allowances are exempt only to the extent the expenses are actually incurred in the performances of C.C.No:38 / 2011 Page No.87 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 duties.
Instances have been brought to the notice of the Board where a part of the foreign exchange allowed to certain executives as daily allowance for tours abroad was brought back in India as the amount saved. To the extent the allowances was brought back to India unspent, the allowance was not wholly spent within the meaning of section 10 (14) and the saving thereof would not qualify for exemption from Income Tax in the hands of such employees.
In view of the position brought out above, the Board desires that in the case of an employee, other than that of the Central/State Government, who has received daily allowance for tour abroad, the incometax officers should go into the question whether any part of the allowance has been brought back to India and if so the amount be brought to tax.
These instructions may be brought to the notice of all officers working in your charge. (Emphasis supplied)."
66. Now the Ld. Prosecutors for the CBI are relying upon the last two paragraphs of the aforementioned instructions to contend that the C.C.No:38 / 2011 Page No.88 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 allowances, if any, brought back to India unspent by the accused, were liable to be taxed and therefore declared. I am constrained to observe that the reliance of the Ld. Prosecutors on the aforementioned instruction and their interpretation thereto is completely incorrect. The underlined portion of the said instructions makes it clear that in cases of employees of Central/State Government, who go abroad on official duty there is no requirement of either spending the entire allowances for seeking the exemption nor the last paragraph of the said instructions applies to such employees. The said instructions made it apparently clear that the allowances that remained unspent by the accused, during his foreign tours were completely exempt from taxation and thus in the considered opinion of this court, the mere fact that the accused did not declare them the same in his income tax returns cannot be made a ground to not consider the same as a lawful source of income for him.
67. Coming now to the other contention of the prosecution namely that by the very nature of the allowances i.e TA/DA given to the accused they should be deemed to have been spent by the accused, Ld. C.C.No:38 / 2011 Page No.89 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 Defence counsels have pointed out that in both the Jankiraman's case and CSD Swamys case, the Hon'ble Supreme Court has only referred to Travelling allowance (TA) to not be automatically included as the income of the government servant and the Hon'ble Supreme Court has explained that travelling allowance is ordinarily meant to compensate the officer concerned for his outofpocket expenses incidental to the journeys performed by him for his official tours. According to the Ld Defence counsels based on the said definition, the allowances that the accused is relying upon in the present case cannot be considered as travel allowances at all and that therefore the same should have been included by the Investigating Officer in the income of the accused. In the alternative they have further submitted that in the aforementioned two judgments the Hon'ble Supreme Court has itself made it clear that though travel allowances may not be automatically considered as a source of income, it is open to the government servant to lead evidence to show that he had infact saved something out of the said allowances and if the court accepts such evidence then the same can be included in the income C.C.No:38 / 2011 Page No.90 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 of the accused. Their submission therefore is that in view of the evidence led by the accused in the present case this court must hold that the accused was able to save about 70% of the total cash allowances/deputation allowances that were paid to the accused during the check period.
68. In rebuttal, the Ld Public Prosecutors have submitted and pointed out that the deputation orders issued in favour of the accused refer to the allowances to be paid to him as daily allowance/subsistence allowance/per idiem and the nature of the said allowances is exactly that of travelling allowances and are meant to compensate the officer concerned for his outofpocket expenses that he may incur during his tour, such as food and telephone call expenses and that therefore in view of the judicial dicta laid down in R. Jankiraman's case and CSD Swamy's case, the Investigating Officer was fully justified in not including the said allowances in the income of the accused. They have further contended that the evidence led by the accused proves merely a saving of Rs. 5,72,712/ and that the evidence led by him is not at all C.C.No:38 / 2011 Page No.91 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 sufficient to hold that he had been able to save 70% of the total deputation allowances paid to him.
69. This court has carefully considered the submissions made by all the Ld counsels and has also considered the evidence which has come on record in this regard. In the considered opinion of this court the evidence brought both by the prosecution and the accused in this regard clearly shows that the airticket/other travel expenses/hotel accommodation were not a part of the cash allowances that were paid to the accused during his visits abroad. The accused had summoned DW9 Aditya Srivastava, Asstt Meteorologist from the RTI cell of the IMD and this witness has proved on record the list of foreign deputations that the accused was sent on during the period 1990 to June, 2004, the allowances paid to him by GOI and the office orders passed with respect to the same. The same have been exhibited as Ex. DW9/B collectively. Admittedly, the list of foreign deputations is also a part of file D84 (M584/05) which was apparently seized during investigation by the IO from the office of DGM, IMD, Lodhi Road, New Delhi. The own witness of the C.C.No:38 / 2011 Page No.92 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 prosecution PW30, Jai Prakash, DDO from the office of Director General of Meteorology who was summoned to prove the gross salary of the accused during the check period has also proved, (during his cross examination when he was confronted with the said file), that the said list was given to the investigating agency and during his crossexamination the said list was exhibited as Ex.PW30/DX. Now as per the said list, during the check period i.e w.e.f 1.9.1996 to 2.2.2005, the accused was sent on deputation on 26 occasions to different countries and was paid deputation allowances in the amounts mentioned in the said list, on each of the said occasions. Admittedly as per the said list and as per deputation orders, filed alongwith the said list by DW9, on some occasions it was the Government of India which paid the deputation allowance to the accused and also incurred expenditure towards the air travel/hotel accommodation while on some it was WMO which incurred the entire expenses on account of hotel accommodation, travel expenses and the deputation allowance and on some occasions both WMO and GOI shared the said expenses but clearly on all occasions as per the C.C.No:38 / 2011 Page No.93 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 deputation orders, the allowances that the accused is relying upon were separate and distinct from the travel allowances (including the air ticket) and hotel accommodation charges. The deputation orders clearly provide that apart from hotel accommodation, air ticket, contingency fares for local conveyance etc., the accused would be entitled to cash allowances. It is these cash allowances that the accused is averring that have not been considered by the IO malafidely.
70. No doubt as pointed out by the Ld Public Prosecutors, the deputation orders referred to the allowances to be paid to the accused as daily allowance/subsistence allowance/per idiem, it also has to be taken note of that the allowances being paid to the accused by the WMO, in his capacity of being the President of WMO, was huge and that therefore it cannot be deemed or presumed, as sought to be contended by the prosecution that the said huge amounts must have been spent entirely by the accused. It has been rightly pointed out by the Ld Defence counsels that the judicial dicta laid down by the Hon'ble Supreme Court does give a right to the accused in the present case to lead evidence to show that he C.C.No:38 / 2011 Page No.94 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 was able to save much of the said allowances and therefore be entitled to claim the said savings as a part of his income. Thus even if the contention of the prosecution that the allowances being relied upon by the accused, were in the nature of travel allowances only and the investigating agency should not be outrightly faulted for not having included the aforementioned allowances in the income of the accused, is accepted it is also clear that this court is bound to look into the evidence led by the accused to show that he was able to save a substantial amount of the allowances in question.
71. Now the prosecution is not disputing that the accused was sent on deputation to various countries during his services by the GOI and as narrated herein above the document Ex.DW9/B contains the list of foreign deputations that the accused was sent on during the check period 1990 to June 2004. The expenditures incurred by the GOI on the various deputation visits/tours have also been provided in the said list which is a part of Ex.DW9/B (collectively), also proved as Ex.PW30/DX while the deputation allowance paid by the WMO to the C.C.No:38 / 2011 Page No.95 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 accused have been proved vide Ex.DW19/DC collectively. Since the IMD did not provide the exact amount of deputation allowance paid to the accused but provided the lumpsum expenditure incurred by the GOI towards the hotel accommodation and the deputation allowance, this court has relied upon the deputation orders that are a part of Ex.DW9/B (Collectively) which clearly mention the cash allowances that were handed over to the accused and as per the said documentary evidence, the GOI paid a total amount of Rs. 3,25,165.25/ to the accused on account of deputation allowances (the said calculation was made during the course of final arguments in the presence of Ld PP and was confirmed to be correct). As regards the allowances paid by WMO the document Ex.DW19/DC (collectively) reflects that WMO paid an amount of $ 22,323.35 i.e INR Rs. 10,45,564.96/ to the accused on the said account for the period 20002005 (initially the accused was relying upon the testimony of DW7, Ashok Bhatnagar, Additional Director General of Meteorology, IMD and the documents provided by him Ex.DW7/A and Ex.DW7/A1 for calculation of this amount however when during the C.C.No:38 / 2011 Page No.96 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 course of final arguments the prosecution took an objection to the mode of proof of these documents and contended that since the documents Ex.DW7/A and Ex.DW7/A1 had not been received by IMD from WMO directly but had been handed over to DW7 in his personal capacity the documents should not be read in evidence, the accused had filed an application u/s 311 Cr.P.C for leading additional defence evidence and had then summoned DW19 and DW20, both officials of the IMD and both these witnesses had proved the same information as provided in Ex.DW7/A and Ex.DW7/A1, vide Ex.DW19/DC - this document was thereafter not disputed by the prosecution). Further since the WMO was not in a position to provide the deputation allowances paid to the accused prior to the year 2000 due to some technical problem in the computerized data (Y2), the accused has relied upon the deputation orders and upon the entries of foreign exchange reflected in his passports for the period prior to 2000. Now the total amount of foreign exchange reflected in his passports Ex.PWDZ2 and Ex.PWDZ3 for the period November 1996 to October 1999 is $11,522.00 i.e in INR 4,50,164.85 admittedly the C.C.No:38 / 2011 Page No.97 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 deputation allowances were paid by UNDP, Lodhi Road, New Delhi on behalf of WMO and the amounts paid by UNDP were reflected in the diplomatic passports issued to and used by the accused apart from one occasion when he was sent on deputation to Geneva, Switzerland for the period 1526 June, 1998. For the said visit as per the deputation order appearing on page 22 of Ex.DW9/B (collectively), the accused was paid the deputation allowances by the WMO and in the absence of the WMO furnishing the said details, this court has taken the said amount to be Rs. 90,000/ which is the average amount that was being paid by the WMO for a period of eleven days (in the considered opinion of this court since the prosecution is not disputing the deputation orders and the deputation order on page 22 of Ex.DW9/B (collectively) categorically records that the accused will be paid deputation allowances for eleven days by the WMO and the entries in the passport of the accused Ex.PWDZ2 reflects that the accused had visited Geneva during the said period, it can be justifiably taken that he would have been paid this amount of Rs. 90,000/). Now if all the aforementioned amounts are added the total C.C.No:38 / 2011 Page No.98 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 deputation allowances paid to the accused comes to an amount of Rs. 19,10,895/.
72. Now to show that he was able to save more than 70% of the said allowances the accused has summoned Sh. H.C. Nainawat, Manager, Central Bank of India, Ashoka Hotel, New Delhi, Sh. Prabash Kumar, Operation Officer, Standard Chartered Bank, New Delhi and Sh. R.C. Bhatia, who worked on the post of Director General of Meteorology, IMD from 01.12.2006 till 28.02.2008.
73. DW11 Sh. H.C. Nainawat, Manager, Central Bank of India had been summoned by the accused to prove the encashment of various traveller cheques that had been presented by the accused in the said bank for encashment during the period 1996 till 2005. Though this witness did not bring the summoned record and informed the court that it is very difficult to trace out the said records as the same were more than seven years old, he on being shown ten encashment receipts of Central Bank of India seized from the house of the accused by the IO and a part of Ex. PW41/DY6 and Ex. PW41/DY7 confirmed that the said C.C.No:38 / 2011 Page No.99 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 receipts had been issued by the Central Bank of India against encashment/conversion of foreign currency into Indian Rupees. The deposition of this witness is being disputed by the prosecution only on the ground that the receipts were not issued in his presence - the said challenge is hardly of any merit for the prosecution itself has produced most of its official record evidence in the same manner. The receipts proved by this witness clearly shows that an amount of Rs.2,26,495/ was got encashed by the accused by presenting the traveller cheques issued in his favour by UNDP in the months of May 1998 and October 1998, November 2004 and January 2005.
74. DW17 Sh. Prabhash Kumar, summoned by the accused has interalia deposed that D38, a document already proved by the prosecution itself as Ex.PW19/E is a statement issued by M/s American Express Bank which now stands amalgamated with M/s Standard Chartered Bank and the term 'Amx' appearing at points B, C and D on Ex.PW19/E means 'American Express Traveller Cheque Deposit'. He has further deposed that whenever an account holder C.C.No:38 / 2011 Page No.100 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 deposits a traveller cheque with the bank, a corresponding credit entry in equivalent Indian rupees is made in the account of the account holder. Thus as per the deposition of this witness the amounts of Rs. 1,22,593/, Rs. 96,400/ and Rs. 1,27,224/ mentioned at points B, C and D in Ex.PW19/E are the amounts that were credited in the account of the accused when he deposited travellers cheque with the Bank for encashment. Since Ex.PW19/E is a document proved by the prosecution itself, the amounts shown in the said statement cannot be disputed by them and therefore as per the said statement the accused has been able to prove that another amount of Rs. 3,46,217/ was saved by him from the allowances given to him. Thus the accused has been able to prove the actual saving of Rs. 5,72,712/.
75. Now the question is whether the accused should be given the benefit of only this amount as being contended by the prosecution or should this court accept, as contended by the Defence that accused has led sufficient evidence to show that in all probability he had been in a position to save about 70% of the deputation allowances that were C.C.No:38 / 2011 Page No.101 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 granted to him. The submission of Ld Defence counsels in this regard is that the accused had summoned an official from the Central Bank of India to prove all the encashment receipts issued by this bank at the time of depositing of travellers cheques by the accused with them and that no fault can be attributed to the accused if the said official could not produce the entire record summoned by the accused due to the lapse of considerable period of time. They have further submitted that after the accused was arrested in this case and was inquired about his assets he had given a written explanation in which he had mentioned the fact of the encashment receipts issued by the Central Bank of India and therefore it is their contention that the investigating agency was always aware of the said encashment receipts but did not bother to collect the same from Central Bank of India. In the alternative they have contended that in the absence of the availability of the proof of the actual savings made by the accused if 70% of the deputation allowances cannot be included in the computation of the total income of the accused, the same should atleast be considered as a satisfactory explanation for the excess amount in the C.C.No:38 / 2011 Page No.102 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 hands of accused. They have pointed out that the deposition of DW1 R.C. Bhatia also supports the assertion of the accused that the deputation allowances given to the officials of IMD for attending conferences organized by WMO remained substantially unspent.
76. Sh. R.C. Bhatia, DW1 has interalia deposed that in his capacity as Director General, IMD, he was a permanent representative of India with WMO and was also elected as Executive Member of Council of WMO in 2007 and had to attend various meetings / conferences organized by the WMO. He has further deposed that whenever he was nominated by IMD to attend the said meetings / conferences deputation orders used to be issued by the approval of Government of India and in pursuant thereto he was paid deputation allowances either by WMO or by Government of India. He has specifically deposed that whenever allowances used to be issued by WMO, UNDP, on the basis of orders given to it by WMO used to issue him travelers cheque for his use in foreign countries. He has further gone on to depose that the said allowances were not TA/DA and that many a times these allowances C.C.No:38 / 2011 Page No.103 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 were not spent in entirety as breakfast and other meals were provided in the meetings / conferences and that he used to save substantial amount from the allowances which he used to get from UNDP. The accused is relying upon the deposition of this witness to contend that this witness has categorically deposed that the breakfast and meals were provided in the conferences / meetings only and therefore it is being contended that the said deposition supports the assertions of the accused that he was able to save more than 70% of the deputation allowances. The deposition of this witness has been disputed by the prosecution only on the ground that he did not produce any documentary evidence of his attending various meetings / conferences in Geneva. It is not being disputed that he held the same post i.e. of Director General of IMD as of the accused - in such facts the mere fact that he did not produce documentary evidence to show that he was also nominated to attend various conferences abroad is hardly sufficient to disbelieve his testimony in this regard. If the prosecution was so desirable for this witness to produce his deputation orders, they could have easily asked the witness to produce the same. In the C.C.No:38 / 2011 Page No.104 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 considered opinion of this court, the deposition of this witness can be read to corroborate the assertion of the accused that in the various meetings / conferences, that he attended, food / meals were usually provided by the organizers only and that the deputation allowances were left substantially unspent on this account and thus the submission of the accused that in all the conferences that he had been deputed to attend, the meals were provided during the conferences itself cannot be brushed aside lightly as sought to be done by Ld Prosecutors.
77. Further this Court also agrees with the Ld. Defence Counsels that it would infact be a travesty of justice if the accused is held responsible for non maintenance of the record by the Central Bank of India. On his part the accused had summoned an official from the Central Bank of India to produce all the encashment receipts issued by the said bank in his favour and it is only due to the failure of the said bank in not maintaining the said record that the accused could not prove the exact amount of savings made by him. It would also be relevant to note that if one considers the total amount paid by the WMO to the C.C.No:38 / 2011 Page No.105 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 accused as deputation allowances, approximately Rs. 8,334/ was being paid to the accused per day for his daily expenses which in the present case can be stated to be inclusive only of some meals that the accused may have required apart from breakfast or lunch for admittedly the accused had used his credit cards for making other purchases of gifts, household items etc. while on such tours and the Investigating Officer has already included the said expenses in StatementD. Clearly this court can reasonably presume that such an amount could not have been spent entirely by the accused on such meals. In the absence of proof of the actual savings made by the accused, for no fault of his, in the facts and circumstances of the present case, this court, on the basis of the evidence led by DW1, DW11, DW17 and taking into consideration the actual amount that was paid to the accused per day, is satisfied that the accused on preponderance of probability, can claim that he was able to save 70% of the deputation allowances paid to him. In the considered opinion of this court, the use of words 'satisfactorily account' in clause (e) of sub section (1) of Section 13 of the PC Act does give an indication that the C.C.No:38 / 2011 Page No.106 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 degree of proof required from the accused is not that of proof beyond reasonable doubt but that of preponderance of probability. The Hon'ble Supreme Court in the case titled and reported as N. Ramakrishnaiah Vs State of A.P. (2007) 7 SCC 358 has explained the words 'satisfactorily account' to mean that for the excess amount found in his possession, an accused should offer a plausible explanation to a court, which is worthy of acceptance. In the same judgment it has also been held by the Hon'ble Court that the term 'income' necessarily has to be understood as meaning an amount received which has a nexus to one's labour, or expertise and qua a public servant, such income would be what is attached to his office or post. According to the judicial dicta laid down in the said case it is only a receipt from windfall, gains of graft, crime or immoral secretions by persons that would not be considered as income. In the present case the amounts of deputation allowances were admittedly paid to the accused on account of the post/office of President of WMO he held and therefore, in the considered opinion of this court, the accused is entitled to claim that the amounts saved by him from the allowances in question C.C.No:38 / 2011 Page No.107 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 do offer a plausible explanation for the amount that he has been found in possession in excess of his other income, even if the unspent amount of the deputation allowances is not included in the income of the accused on account of his failure to prove the exact amount of savings made by him. Thus in view of the evidence brought by the accused on record this court finds the explanation of the accused that he was able to save 70% of the deputation allowances, which comes to Rs. 13,37,626.50/, worthy of acceptance.
78. Now if one deducts this amount from Rs. 17,78,423/ (the amount computed as excess in the hand of the accused), the accused is left with only an unexplained amount of Rs. 4,40,796.50/. Admittedly the said amount is less than even 10% of the total income of the accused, (which is taken to be Rs. 44,67,352/). The Hon'ble Supreme Court in R. Krishna Reddy's case and Krishnanand's case (supra - the judgments relied upon by the Ld Defence counsels) has clearly held that if the excess found in possession of a government servant is comparatively small - if it is less than 10 % of the total income of the government C.C.No:38 / 2011 Page No.108 of 109 Judgement in the matter of:-
(C.B.I. Vs. DR. SURESH KUMAR SRIVASTAV) Dated : 23.4.2016 servant it would not be right to presume that the government servant had been guilty of criminal misconduct as defined by section 13 (1) of the PC Act.
79. In view of the said judicial dicta and the discussion made by this court in the preceding paragraphs, this court is therefore of the considered opinion that the accused is entitled to be granted the benefit of doubt and it is to be held that the prosecution has not been able to prove beyond all reasonable doubt that the accused was guilty of criminal misconduct on account of having been found in possession of disproportionate assets. As such this court hereby acquits the accused of the offence that he has been charged with.
Announced in the open court today Dated : 23.4.2016 (ANU GROVER BALIGA) SPECIAL JUDGE : CBI (PC ACT) DWARKA COURTS : NEW DELHI C.C.No:38 / 2011 Page No.109 of 109