Delhi District Court
C.B.I. vs . 1. S. S. Rathore on 9 April, 2014
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No.02/13
Unique Case ID No. 02401R0576442007
C.B.I. Vs. 1. S. S. RATHORE
S/o Sh. Parmanand
R/o Flat No.10/1, Delhi
Administration Flats,
Probyn Road, Delhi.
2. DD MITTAL (SINCE DIED)
S/o Sh. RC Mittal,
R/o 4, Battery Lane, Civil Lines,
New Delhi.
3. VINOD MITTAL
S/o Late Sh. DD Mittal
R/o 4, Battery Lane, Civil Lines,
New Delhi.
4. MANOJ MITTAL
S/o Late Sh. DD Mittal
R/o 4, Battery Lane, Civil Lines,
New Delhi.
RC No. : DAI2001A0025
u/Ss : 120B r/w 420 IPC and Sec. 13(1)(d)(iii)
r/w 13(2) of the POC Act, 1988 and
substantive offence u/S. 420 IPC
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 1 of 118
Date of Institution : 30.05.2007
Received by transfer on : 20.03.2013
Arguments Concluded on : 09.04.2014
Date of Decision : 09.04.2014
Appearances:
Sh. S. Krishna Kumar, Ld. PP for CBI.
Sh. Riyaz Ahmed Bhat, Ld. counsel for A1 SS Rathore.
Sh. Manoj K. Singh and Sh. Vishal Gera, Ld. counsels for accused Vinod
Mittal
Ms. Rebecca M. John, Ld. Sr. Counsel alongwith Sh. Vishal Gosain, Ld.
Counsel for Manoj Mittal.
JUDGMENT
CHARGE SHEET 1.0 Briefly stated the facts are that in the year 1919 Notified Area Committee (hereinafter referred to as "NAC") purchased 7.86 aces of land from Lala Raghubar Dayal for a sum of Rs.9,200/ vide a sale deed duly registered on 11.02.1919. The NAC leased out the entire land to M/s. Edward Keventer of Aligarh Dairy Firm for a period of 30 years commencing from 01.11.1920. Upon expiry of the lease period in favour of M/s. Edward Keventer on 31.10.1950, the NAC vide resolution date 29.11.1950 terminated the lease and lessee was notified to handover the possession of the land. In the year 1958, the Govt of India took decision to transfer the Nazul Land Management to Delhi Administration and care of land within the jurisdiction of NAC, was transferred to the L&DO. The eviction proceedings were initiated against M/s. Edward Keventer CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 2 of 118 Ltd. (successors). While matter rested, thus Sh. Rati Ram claiming to be in occupation of land measuring about 17 bighas 14 biswa filed a suit against Union of India and L& DO seeking a decree of permanent injunction against the defendants from dispossession stating therein that he was in occupation of land and cultivating the same since many years as "Gairmarusi tenant". The civil court by order dated 10.03.1966 dismissed the said suit on the ground that the said suit was barred under the provisions of Public premises (unauthorized occupant) Act 1958 and therefore, the suit was not maintainable. Sh. Rati Ram filed an appeal against this order. The Appellate Court remanded back the trial and the Trial Court again dismissed the suit holding that plaintiff was not the tenant in the said land and was not in possession of the same prior to 1962. In the meanwhile, Sh. Rati Ram had also made a request to NAC on 01.02.1967 for 99 years of lease in his favour claiming to be in the possession of the land for about 15 years. During this, Sh. Rati Ram died on 25.12.1969 leaving behind his wife Smt. Ram Piari and his son Kanwal Singh. The legal heirs of Sh. Rati Ram again filed an appeal in the year 1974 and the Appellate Court vide order dated 27.08.1974 inter alia held that legal representatives of Late Sh. Rati Ram were unauthorized occupant of the public land, however, they may not be dispossessed without due process of law. In the meanwhile Govt. of India sanctioned 4.61 acres of land to Delhi Administration for construction of staff quarters and 3.044 acres with DDA for development and maintenance of CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 3 of 118 the land as green. DDA upon getting the possession initiated proceedings under PP Act in the year 1974 against the legal representatives of Late Sh. Rati Ram and while these proceedings were pending before Estate Officer, it transpired that Smt. Ram Piari and Kanwal Singh sold the entire land of 17 bigha 14 biswa in favour of 17 persons by registered sale deed dtd. 26.05.1989, namely, 1. Sh. Parveen Kumar, 2. Ms. Shobha Sehra
3. Sh. Mittar Parkash 4. Ms. Kanchan Bala 5. Sh. Gulzari 6. Sh. Bharat Bhushan 7. Sh. Sarabjit Sharma, Advocate 8. Sh. Ashok Kumar 9. Sh. Ashok Arora 10. Sh. Mahesh Kumar 11. Sh. Prem Kumar 12. Smt. Sunita Sehra 13. Sh. Harish Kumar 14. Sh. Rajesh Kumar 15. Ms. Suman Sehra
16. Sh. Virender Kumar 17. Ms. Snehlata.
Investigation revealed that the mutation of land consisting of khasra No. 594, 564, 202 and 203 (17 bigha and 14 biswas) was effected in the revenue record in the name of Late Sh.Rati Ram by the then Naib Tehsildar on 28/7/89 and on the same day the mutation was made in favour Smt. Ram Piyari and Sh.Kanwal Singh, the legal heirs of Late Sh.Rati Ram. The mutation was also effected on that very day in the name of 17 persons who had purchased the said land from Smt. Ram Piyari and Sh. Kanwal Singh. Investigation revealed that Sh. Risal Singh (Naib Tehsildar), Sh. Chotte Lal (Patwari) and Sh. Bhoom Singh (Patwari) were in connivance with each other for getting the mutation effected in such a manner. Investigation further revealed that out of the total 17 bighas and 14 biswa of this land, 11 bighas was transferred to St. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 4 of 118 Jesus Education Society D3/45, Janakpuri New Delhi vide unregistered memorandum of settlement dtd. 26/5/89. Sh. Sarabjit Sharma was the Chairman of the said Society, who applied for NOC on 08.07.91 for running a primary school on the aforesaid land and the NOC was issued to the society on 20.11.1991 by Late Sh. J.D. Jain, the then Competent Authority (Under Secretary) without verifying the status of said land. It is pertinent to mention here that the case of the prosecution is that the entire land 17 bigha 14 biswa was located within the urban agglomeration of Delhi and the Urban Land (Ceiling and Regulation) Act, 1976 imposed a bar on holding of land in Delhi beyond a maximum of 500 sq. meters. Allegedly, the order of NOC was illegal as the land should have been assessed from the date of operation of the Act and Late Sh.JD Jain, issued an NOC on the basis of misinterpretation of the related provisions of ULCRA. The NOC was granted without any return having been filed by the buyers as stipulated under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "ULCRA"), with the competent authority. Investigation also revealed that standing committee of MCD vide its decision No. 1359/STG dtd. 30.01.1992 approved the lay out plan of School on the above said khasras and the land use of this khasra was earmarked for Primary School. However, the Society did not construct any school on this land and in the year 1995, the entire land was sold to A2, A3 and A4 in the name of 13 of the following companies vide sale deed dated 05.04.95:
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 5 of 118
S.No. Name of the Purchaser Companies/Persons Area of Land.
M/s Chavan Rishi Buildwell Pvt. Ltd. through Director 1 Bigha 2 Biswas Sh. Manoj Mittal, registered office (RO) 4, Battery 1 Lane, Civil Lines, Delhi and M/s Vinman Build Well Pvt. Ltd. through its Director Sh. Vinod Mittal, RO, 201/6, Kaushalya Park, Hauz Khas, Delhi M/s Qutab Developers Pvt. Ltd. through Director Sh. 1 Bigha Vinod Mittal, RO, 201/6, Kaushalya Park, Hauz Khas, 2 Delhi and M/s Chavan Rishi Builders Pvt. Ltd. through its Director Sh. Manoj Mittal (RO) 4, Battery Lane, Civil Lines, Delhi.
M/s Varun Estates Pvt. Ltd through its Director Vinod 1 Bigha Mittal, RO Ground Floor1, Arunachal Building, 19, 3 Bara Khamba Road, New Delhi and JMD Build Well Pvt. Ltd. through its Director Sh. Manoj Mittal, RO 4, Battery Lane.
M/s Number One Exports Pvt. Ltd. through its 1 Bigha 2 Biswas Director Sh. Vinod Mittal, RO, 201/6, Kaushalya Park 4 and M/s Qutab Construction Pvt. Ltd. through its Director Sh. Manoj Mittal, RO, 201/6, Kaushalya Park. M/s Number One Developers Pvt. Ltd. through its 1 Bigha 2 Biswas Director Sh. Vinod Mittal, RO, 201/6, Kaushalya Park 5 and M/s Vinman Construction Pvt. Ltd. through its Director Sh. Manoj Mittal, RO, 201/6, Kaushalya Park. M/s Qutab Buildwell Pvt. Ltd. through its Director Sh. 1 Bigha 6 Vinod Mittal, RO 201/6, Kaushilya Park and Sh. DD Mittal R/o 4, Battery Lane.
M/s Chavan Rishi International Ltd.through its 1 Bigha Director Sh. DD Mittal, RO 4, Battery Lane and M/s 7 Cosmos Builders and Promoters Ltd. through its Director Sh. Vinod Mittal, 4, Battery Lane.
M/s Vinman Developers Pvt. Ltd. through its Director 1 Bigha 2 Biswas 8 Sh. Vinod Mittal, RO 201/6, Kaushilya Park and Rajinder Mittal S/o Sh. DD Mittal r/o 4, Battery Lane. M/s Chavan Rishi Construction Pvt.Ltd through its 1 Bigha 2 Biswas 9 Director Sh. Vinod Mittal RO, 4, Battery Lane and Sh Manoj Mittal S/o Sh. DD Mittal r/o 4, Battery Lane.
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 6 of 118 M/s Qutab Chemicals Pvt. Ltd. through its Director Sh. 1 Bigha 2 Biswas. 10 Manoj Mittal, RO 201/6, Kaushilya Park and Sh. Vinod Mittal S/o DD Mittal, r/o 4, Battery Lane.
In the said sale deed dated 05.04.95, there was mention of sale deed dtd 20/5/1943 purported to be registered on 31/5/1943 and the resolution of 1943 of the NAC in favour of Late Sh. Rati Ram regarding transfer of ownership of land in his favour. Allegedly, A1 SS Rathore, the then competent authority under ULCRA issued NOC to the accused persons illegally in pursuance to the criminal conspiracy on 1/11/95 without going into the issue of title of the land and title holding of each person separately.
In the meanwhile, Sh. Girdhari Lal Tiwari filed a civil writ petition 3830/1996 regarding unauthorized transfer of 17 bigha 14 biswa of land and unauthorized construction made on 10 bigha 14 biswa on such land situated at Model Town. A prayer was made to pass an order to demolish the construction raised on this land. During the pendency of the of said writ petition the Hon'ble High Court of Delhi was pleased to refer the sale deed dated 20.05.1943 and the resolution register containing resolution dated 02.01.1943 to CFSL. The CFSL vide its opinion dated 19.09.1998 opined that the original writing on page nos. 214 to 217 of the sale deed register have been chemically erased / removed and the alleged sale deed thereon have been over written. The Hon'ble High Court was pleased to inter alia hold as under:
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 7 of 118
"In terms of the aforesaid order passed by this court the CFSL has filed its report giving its opinion that the said resolution dated 02.01.1943 and the sale deed dated 20.05.1943 are forged documents giving reasons for arriving at the aforesaid conclusion. We have ourselves perused the sale deed and the subject resolution. The deed of sale dated 20.05.1943 ex facie is not a genuine document. A bare perusal of the same would indicate that the existing English writings in the said sale deed have been written after washing out the original writings by the method of application of some chemical / physical earser. Remnants of original writing at some portion are still visible. Application of chemical substance for washing off the original writings has affected the colour and texture of the paper. The handwriting expert also in his report has highlighted such features. He has also opined that the black ink used in the writing is different and that the same sale deed has been written using two different inks. He has also found that the signatures of the President and the Secretary in the mentioned documents have also been forged. He has also opined that resolution dated 2.1.1943 and 11.3.1943 are also forged and substituted in the proceeding register of the Notified Area Committee. Reasons for the same have been given and on perusal we are convinced that the reasons are cogent and correct."
1.2 The prosecution has alleged that the sale deed and resolution of the year 1943 pertaining to the land in question surfaced only in the year 1995, as Sh. Rati Ram did not mention this when he filed a civil suit in the year 1965 against alleged illegal dispossession, nor did the same was produced during the further litigation in the court or before Estate Officer. Investigation further revealed that Smt. Ram Piyari and Sh. Kanwal Singh, legal heirs of Late Sh. Rati Ram sold the land in question to the above said 17 persons in the year 1989 claiming their right of ownership as per Punjab Tenancy Act. The resolution and the sale deed purported to be of year 1943 were prepared some time after June, 1989. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 8 of 118 A3 Vinod Mittal authorized signatory of Chavan Rishi Apartments vide its application dated 19.07.1995 addressed to the Town Planer, MCD applied for approval of lay out plan for group housing at village Malikpur Chhavani and submitted copies of Standing Committee resolution dated 20.01.1992 granting the approval of lay out plan for school, copy of letter of approval of site for primary school, copies of sale deeds, copy of memorandum of settlement dated July, 1995 authorized by all the purchasers of the land, authorizing A3 to act on their behalf to get the building plan sanctioned for residential group housing scheme in the name and style of M/s. Chavan Rishi Apartments. The buyer companies through their Directors also applied for NOCs with the Competent Authority of ULCR vide their application dated 03.07.1995 in respect of the aforesaid land and filed statements under Section 6(1) and 15 of ULCR Act, 1976. The companies through their Directors / Managers also filed affidavits that these companies and persons do not have any vacant land / built up property in India except plot / building mentioned in the statement under Section 6(1) of ULCR, 1976. The case of the prosecution is that the affidavit was filed by the following persons as Directors of the companies and individuals even though some of them had other lands in Delhi:
S.No. Name of the Purchaser Companies/Persons Area of Land. 1 M/s Chavan Rishi Buildwell Pvt. Ltd. through Director 1 Bigha 2 Biswas Sh. Manoj Mittal, registered office (RO) 4, Battery (Total area 927.268 Lane, Civil Lines, Delhi and M/s Vinman Build Well sq. mtrs., claimed CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 9 of 118 Pvt. Ltd. through its Director Sh. Vinod Mittal, RO, 463.634 sq.mtrs by 201/6, Kaushalya Park, Hauz Khas, Delhi each) M/s Qutab Developers Pvt. Ltd. through Director Sh. 1 Bigha Vinod Mittal, RO, 201/6, Kaushalya Park, Hauz Khas, (Total area 842.819 2 Delhi and M/s Chavan Rishi Builders Pvt. Ltd. through sq. mtrs., claimed its Director Sh. Manoj Mittal (RO) 4, Battery Lane, 421.409 sq.mtrs by Civil Lines, Delhi. each) M/s Varun Estates Pvt. Ltd through its Director Vinod 1 Bigha Mittal, RO Ground Floor1, Arunachal Building, 19, (Total area 842.819 3 Bara Khamba Road, New Delhi and JMD Build Well sq. mtrs., claimed Pvt. Ltd. through its Director Sh. Manoj Mittal, RO 4, 421.409 sq.mtrs by Battery Lane. each) M/s Number One Exports Pvt. Ltd. through its 1 Bigha 2 Biswas Director Sh. Vinod Mittal, RO, 201/6, Kaushalya Park (Total area 927.268 4 and M/s Qutab Construction Pvt. Ltd. through its sq. mtrs., claimed Director Sh. Manoj Mittal, RO, 201/6, Kaushalya Park. 463.634 sq.mtrs by each) M/s Number One Developers Pvt. Ltd. through its 1 Bigha 2 Biswas Director Sh. Vinod Mittal, RO, 201/6, Kaushalya Park (Total area 927.268 5 and M/s Vinman Construction Pvt. Ltd. through its sq. mtrs., claimed Director Sh. Manoj Mittal, RO, 201/6, Kaushalya Park. 463.634 sq.mtrs by each) M/s Qutab Buildwell Pvt. Ltd. through its Director Sh. 1 Bigha Vinod Mittal, RO 201/6, Kaushilya Park and Sh. DD (Total area 421.409 6 Mittal R/o 4, Battery Lane. sq. mtrs., claimed 842.819 sq.mtrs by each) M/s Chavan Rishi International Ltd.through its 1 Bigha Director Sh. DD Mittal, RO 4, Battery Lane and M/s (Total area 927.268 7 Cosmos Builders and Promoters Ltd. through its sq. mtrs., claimed Director Sh. Vinod Mittal, 4, Battery Lane. 463.634 sq.mtrs by each) M/s Vinman Developers Pvt. Ltd. through its Director 1 Bigha 2 Biswas Sh. Vinod Mittal, RO 201/6, Kaushilya Park and (Total area 927.268 8 Rajinder Mittal S/o Sh. DD Mittal r/o 4, Battery Lane. sq. mtrs., claimed 463.634 sq.mtrs by each) CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 10 of 118 M/s Chavan Rishi Construction Pvt.Ltd through its 1 Bigha 2 Biswas Director Sh. Vinod Mittal RO, 4, Battery Lane and Sh (Total area 927.268 9 Manoj Mittal S/o Sh. DD Mittal r/o 4, Battery Lane. sq. mtrs., claimed 463.634 sq.mtrs by each) M/s Qutab Chemicals Pvt. Ltd. through its Director Sh. 1 Bigha 2 Biswas.
Manoj Mittal, RO 201/6, Kaushilya Park and Sh. Vinod (Total area 927.268 10 Mittal S/o DD Mittal, r/o 4, Battery Lane. sq. mtrs., claimed 463.634 sq.mtrs by each) It is pertinent to mention here that the NOC for Bhatinda Chemicals Ltd. for 7 bighas of land out of the said land was not sought from the competent authority.
The investigation revealed that the clearance from Competent Authority of ULCR was required for approval of lay out plan. The different companies of A2 to A4 through Directors / persons applied for NOCs with the Competent Authority of ULCR vide their application dated 03.07.1995 and filed statements under Saction 6(1) and 15 of ULCR Act, 1976 and affidavits that these companies and persons do not have any vacant land / built up property in India except plot / building mentioned in the statement under Section 6(1) of ULCR, 1976.
The investigation revealed that the authorized companies controlled by A2 to A4 filed statement under Saction 6 (1) as required under Saction 15 of ULCR Act, 1976 alongwith the other documents. Ms. Nirmala Gupta, Advocate filed her vakalatnama in each case alongwith application. In their identical applications the persons CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 11 of 118 representing the various companies submitted that all the 20 purchasers of the land are interested to construct Group Housing Society on the entire plot of 9013.3389 meters (10 bigha and 14 biswa) out of the above khasra, which is permissible under master plan as the land use under master plan is residential and the holding of each person is within ceiling limit of 500 sq. metes as required under Saction 4 (1) (a) of ULCR Act, 1976. The investigation revealed that in April, 1955 when the sale deed was executed in favour of A2 to A4 a settlement deed was also executed between the buyers and the sellers vide which it was informed to the sellers that litigation against Ram Piari in regard to above land under title DDA Vs. Ram Piari was pending in the Court of Ms. Urmila Rani, the then Ld. Additional District Judge. This settlement deed had signatures of A2 and A3, however, the accused furnished false information to the Competent Authority that no litigation is pending pertaining to the land in question.
The investigation revealed that M/s. St. Jesus Education Society was granted exemption under Saction 19 (VII) on 20.01.1991 and this fact was in the knowledge of A3 as he had submitted photocopy of letter dated 17.01.1992 of the Commissioner, MCD alongwith his application submitted to the Town Planer, MCD for sanction of a lay out plan in which there was mention about the NOC granted in the year 1991 by the Competent Authority. However, this fact was concealed from the Competent Authority and it was revealed that NOC was applied by CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 12 of 118 furnishing false information and concealment of true facts. The Competent Authority was neither informed about the litigation between the DDA and Smt. Ram Piari, nor was informed about the earlier exemption granted to the educational society under Saction 19 (VII) of ULCR Act. Had it been disclosed the sanction granted to the educational society was liable to be withdrawn under Saction 20 (2) of ULCR Act and the land would have been declared surplus in the hands of the declarants. The CBI has alleged that this land was surplus and liable to be vested, if Ram Piari and Kanwal Singh are considered as owners of the land in the year 1976, when ULCR Act, 1976 came in force.
1.5 The investigation revealed that A3 Vinod Mittal, Director of M/s. Bhatinda Chemical Ltd., which owned land measuring 7 bigha in the above khasras malafidely did not intimate acquisition of the said land to the Competent Authority, to avoid the land having been declared surplus and acquired by the government. The investigation also revealed that the M/s. JMD Build Well Pvt. Ltd., M/s. Vinman Developers Pvt. Ltd. through its directors Sh. Vinod Mittal and Sh. Vinod Mittal in individual capacity bought land measuring 1364 sq. meters including 124.39 sq. meters built up area in property No.8 in Battery Lane, Civil Lines, Delhi by sale deed duly registered on 26.11.1996. A2 Sh. D.D. Mittal (since expired) had duly witnessed the sale deed. A4 Manoj Mittal was shown as the tenant in one of these properties and therefore A2 to A4 had CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 13 of 118 knowledge that the companies in question had purchased the above land and therefore if purchase of this land had been informed to the Competent Authority, the Competent Authority would have not granted the NOC and the land would have been declared as excess land.
The investigation revealed that in the sale deed dated 01.04.1995, the land in question is shown as agricultural land, whereas the same is shown as Gross residential in the Master Plan in the year 1962 and MPD2001. The use of the land as per Zonal Plan under Master Plan 1962 was for primary school. However, the applicants in their application stated that the "land use" under the Master Plan 2001 is residential. The investigation revealed A1 admitted the genuineness of these companies without any separate documents of registration / incorporation and issued a common order for all persons and companies on a common address and issued a single notice to M/s. Chavan Rish Apartments, which shows that A1 had knowledge that these all persons are members of the same family. Allegedly during the proceedings only late Sh. D.D. Mittal and Ms. Nirmala Gupta, Advocate appeared for all the companies. Allegedly the Competent Authority by granting the NOC to the companies defeated the basic object of the act. The competent authority ought to have considered these companies as separate identity and should have ascertained the holding of these persons individually or directors of other companies. It is pertinent to mention here that the NOC granted by A1 dated 01.11.1995 was quashed by Hon'ble Vijay Kapoor, the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 14 of 118 then Lt. Governor in suo moto revision proceedings under Section 34 of the ULCR Act on 22.09.1998.
It has been alleged that A1 Competent Authority issued the NOC illegally without examining that whether the title of the land has validly passed. The CBI has alleged that A1 in pursuance to the conspiracy with A2 to A4 granted NOC and abused its officials position. The CBI has concluded in the chargesheet that no criminality can be attributed to the officials of MCD, who approved the lay out plan and referred their lapses to the department for initiation of departmental action for major penalty against them. The investigation could not ascertain that who had committed forgery of the documents pertaining to the 1943 documents. The CBI reached to the conclusion that Smt. Ram Piari and Kanwal Singh merely inherited land from Sh. Rati Ram being legal heir and were not knowing the forgery of sale deed. Sh. Kanwal Singh has since expired and Smt. Ram Piari has not been sent for trial being aged and illiterate. The CBI has also concluded that 17 persons who bought the land form Smt. Ram Piari and Sh. Kanwal Singh in the year 1989 were bonafide purchasers and had no knowledge of the forgery of the sale deed and resolution of the year 1943. Similarly, the kingpin for effecting the mutation of year 1989 on the same day was held to be Sh. Rishal Singh, the then Naib Tehsildar, who had also expired. The investigation revealed that 13 different companies which were represented by Late Sh. D.D. Mittal, Sh. Vinod Mittal and Sh. Manoj Mittal filed the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 15 of 118 applications for grant of NOC before Competent Authority alongwith affidavit misrepresenting that the said companies and individual had only land in question under Section 6 (1) of ULCR Act. The accused persons willfully and purposely with the object to deceive did not not disclose that these companies had land, other than declared in the affidavit. The accused persons also in pursuance of a criminal conspiracy amongst themselves and others did not inform about pendency of the matter "DDA Vs. Ram Piari" under PP Act against Ram Piari in the court of Ms. Urmila Rani, ADJ which was fixed for 25.04.95. Had these informations been furnished in proper perspective, the NOC could not have been granted. In pursuance of the criminal conspiracy, Sh. S.S. Rathore the then Competent Authority, ULCR also willfully and purposely by abusing his official position did not call for the required additional information.
CBI filed the chargesheet against A1 SS Rathore, A2 DD Mittal (since died), A3 Vinod Mittal an A4 Manoj Mittal for the offence u/S 120B r/w Sec. 420 IPC and Sec 13(2) r/w Sec. 13(1)(d) of the POC Act, 1988 and substantive offence u/S 420 IPC in the matter of illegally issuing NOC under ULCRA in respect of the aforesaid property. The sanction was also filed against A1 SS Rathore u/S 19 of the PC Act, 1988. The chargesheet was filed on 30.05.2007 and after the cognizance having been taken, copies were supplied to the accused persons. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 16 of 118 CHARGE 2.0 Vide detailed order dtd. 10/5/2013, charge u/S 120B IPC r/w Sec. 13(1)(d)(iii) r/w 13(2) of the POC Act, 1988 and Sec. 420 IPC was made out against all accused persons. Offence u/S 13(1)(d)(iii) of the POC Act, 1988 was made out against A1 SS Rathore and substantive offence u/S 420 IPC was made out against all accused persons. Charge was framed accordingly to which accused persons abjured their guilt and and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution examined 47 witnesses in support of its case. 3.1 PW1 Sh. SC Sharma, the then Dy. Chief Vigilance Officer, Ministry of Urban Development, Govt. of India had sent the communication Ex.PW1/A on the directions of Hon'ble High Court of Delhi, to CBI in February 2001 for detailed investigation in regard to the alleged encroachment of government land at Model Town, Delhi. 3.2 PW2 Sh. Rajneesh Tingal, the then Under Secretary, Ministry of Home Affairs, Govt. of India, proved the sanction order Ex.PW2/A issued on behalf of Hon'ble President of India against A1 SS Rathore. A1 SS Rathore was Group 'A' officer at the relevant time and Hon'ble President of India was competent to remove him and such powers CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 17 of 118 were delegated to the Home Ministry. In the cross examination, the witness admitted that the sanction order Ex.PW2/A does not reflect that it had the approval of the Home Ministry. The witness denied the suggestion that the sanction was granted mechanically without any application of mind.
3.3 PW3 Sh. KC Aggarwal, Special Secretary, Urban Development, Govt. of Delhi, worked as competent authority (Urban and Ceiling), Govt. of India in the year 199495 and was conversant with the Urban Land (Ceiling and Regulation) Act, 1976. Sh. KC Aggarwal deposed that A1 SS Rathore had taken over as competent authority after his transfer. The witness proved the impugned order dtd. 1/11/95 passed by A1 SS Rathore as Ex.PW3/A. PW3 deposed that in his opinion certain things could have been seen by A1 before passing the order Ex.PW3/A such as transfer of title to the applicant who had applied for assessment of urban land and secondly, various companies applying for separate entitlement should have been closely looked into to consider whether lifting of corporate veil was warranted as well the declaration regarding no other holding of land could have been verified by referring to income tax records of the concerned persons. PW3 deposed that the competent authority has to make assessment of land as per law and there is a statutory provision in ULCRA, which overrides provisions in other enactments, and this enables to lift the corporate veil in suitable cases so CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 18 of 118 as to ensure that the purpose of land ceiling law is not defeated by incorporating many companies. As per ULCRA any land including agricultural land, falling within the municipal limits is taken as urban land for the purpose of the said act. He proved the returns filed under ULCRA by the various companies as Ex.PW3/B (Colly) in file No. CAD/11790/95/ULC and CAD/11791/95/ULC (D14 & D14/2). The witness stated that in all such statements in Col.8 of Part B of the return, applicant has informed that no litigation was pending. Similarly, in Annexure 'C' the applicant /company has stated that "not applicable" with regard to the particulars of any pending litigation and similar information has been given in Annexure 'F' of the statement regarding exemption claimed. The witness also proved the affidavits filed by A3 Vinod Mittal and A4 Manoj Mittal as Directors of the different companies as Ex.PW3/C to Ex.PW3/U. The affidavits Ex.PW3/C, Ex.PW3/D, Ex.PW3/E, Ex.PW3/F, Ex.Pw3/G, Ex.PW3/H and Ex.PW3/K are of A3 Vinod Mittal with address at 201/6, Kaushalya Park, Hauz Khas, New Delhi. In affidavits Ex.PW3/J, Ex.PW3/L, Ex.PW3/M, A3 Vinod Mittal has given the address as 4, Battery Lane, Civil Line, Delhi. The affidavit of Late Sh. DD Mittal, Ex.PW3/N also showed the address of 4, Battery Lane, Civil Lines, Delhi and similarly, the affidavit of Mr. Sandeep Kapoor Ex.PW3/O, affidavit of A4 Manoj Mittal Ex.PW3/P, Ex.PW3/R were at the address 4, Battery Lane, Civil Lines, Delhi. The affidavit of A4 Manoj Mittal Ex.PW3/Q, Ex.PW3/S and Ex.PW3/T was at the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 19 of 118 address of 201/6, Kaushalya Park, Hauz Khas, New Delhi. The witness stated that the covering letter of all the affidavits are more or less in respect of paper, typing, formatting etc., and the same advocate Mrs. Nirmala Gupta appeared for all the companies and individuals. PW3 stated that during his tenure as competent authority there was a case of seeking exemption regarding 4, Battery Lane. The property in this case was in the name of Methodist Church. In the cross examination on behalf of A1 SS Rathore, PW3 admitted that the document Ex.PW3/DA and Ex.PW3/DB bear his signatures. In the cross examination on behalf of A4 Manoj Mittal, PW3 admitted that the order passed by the competent authority is subject to appeal u/S 12, 13 and 33 of ULCRA. The witness also admitted that u/S 38 of ULCRA punitive measures have been made and offences of the companies have been laid down u/S 39 of the Act. The witness did not recall that he had dealt with the application u/S 6(1) of the ULCRA relating to the present case at the initial stage. He denied the suggestion that actually he had dealt with such applications and had made no adverse notings about their maintainability or sustainability in law or facts. The witness stated that the details of the previous owners and chain of ownership can be furnished in Col. No. 14 of Part B of the proforma statement u/S 6(1) of ULCRA. The witness admitted that a 'person' as defined u/S 2(i) of ULCRA includes an individual as well as a company or an association or body of individuals, whether incorporated or not. The witness stated in the cross examination that he has not brought any rule, CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 20 of 118 guideline, notification which specifies that under ULCRA companies having common directors and common registered offices ought to be considered as a single unit nor the witness could state that there exists any such rule, guideline, notification which specifies that under ULCRA companies having common directors and common registered offices ought to be considered as a single unit. The witness voluntarily stated that Sec. 42 of the ULCRA permits lifting of corporate veil for purposes of assessment of the vacant land. The witness was confronted with his own order Ex.PW3/DB as competent officer in which Sh. Albel Singh, Principal Officer had filed an affidavit stating that none of the 07 entities held any other vacant land / built up property in India and in this case, Sh. SC Nanda, Adv had appeared on behalf of the defendants and argued the case. PW3 admitted that under ULCRA there is no provision which defines the term 'corporate veil'. The witness also admitted that u/S 6(1) of ULCRA there is no requirement of filing income tax returns alongwith declaration.
PW3 admitted that CBI had registered a case RC No. DAI A0034/05 against him for holding disproportionate assets. The witness denied the suggestion that his statement in this case was recorded by CBI in June 2004. The witness stated that as far as he remembered, his statement would have been recorded by the CBI somewhere in 2006 or 2007. Ld.PP confirmed at this stage that no statement of this witness was recorded in 200607 and his statement was recorded by the CBI only in CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 21 of 118 June 2004. The witness stated that he was not aware that a preliminary enquiry was being conducted against him by CBI, when his statement was recorded by the CBI in the present case. The witness denied the suggestion that in view of the circumstances, he had no other option but to make a tailor made statement before the CBI. In cross examination on behalf of A3 Vinod Mittal, the witness stated that the effect and purpose of the order passed by A1 SS Rathore was to make assessment of vacant land under ULCRA. The witness admitted that as per statement u/S 6(1) of ULCRA none of the applicant company was holding more than 500 sqm vacant land. Sh. Manoj K. Singh, Ld. counsel for A3 also during the cross examination confronted the witness by the order passed by him as competent authority Ex.PW3/DB and Ex.PW3/DA dtd. 14/9/94. Sh. KC Aggarwal feigned ignorance regarding the facts of this case. Sh. KC Aggarwal stated that there is no provision for grant of NOC under the Act. However, he voluntarily stated that there is a departmental circular to the effect that NOC is to be granted by the competent authority. The witness admitted that A3 Vinod Mittal had filed a complaint against him in the Land & Building Deptt. However, he voluntarily stated that the complaint filed by Mr. Vinod Mittal was found to be false and severe strictures were passed against Sh. Jagdish Sagar, the then Secretary, Land & Building who entertained the complaint.
3.4 PW4 Sh. SM Mehta from M/s M/s. Architect Combine at CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 22 of 118 41, Community Center, East of Kailash, New Delhi had worked for M/s Chavan Rishi Apartments and had prepared the drawings for the housing projects. Sh. SM Mehta proved the drawings as Ex.PW4/A and Ex.PW4/B. The witness stated that as per Ex.PW4/A the proposed housing project was to come up on khasra no. 594, 564, 202 and 203 in Village Malikpur, Chavani, Mall Road, Delhi. During the cross examination on behalf of A3 Vinod Mittal, the witness stated that the building plan prepared by him was with respect to one composite group housing. In cross examination on behalf of A4 Manoj Mittal, the witness admitted that the drawing of the building which was prepared by him was approved by the MCD after approval of the standing committee. 3.5 PW5 Sh. Prem Singh Sehrawat, Patwari deposed about the procedure of mutation of land in respect of ownership and and cultivator under the Punjab Land Revenue Act. The witness stated on oath that the Delhi Reforms Act was enacted in the year 1954 but the Punjab Land Tenancy Act, 1887 is still in force. Sh. Prem Singh Sehrawat stated that for acquisition of a land the government is required to serve a notice u/s 4 and 6 of Land Acquisition Act and thereafter, objections were filed u/s 5A of the Land Acquisition Act. Thereafter notices are issued u/s 9 and 10 of above said act to the land owners or the persons who are in possession of the same. Such persons files the objections pursuant to such notices before Land Acquisition Collector. PW5 further stated that CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 23 of 118 subsequently depending upon the urgency the possession is taken u/s 14 or 17 of the Land Acquisition Act (LAC).
PW5 Sh. Prem Singh Sehrawat stated that as per Jamabandi Register of village Malikpur Chavani, Delhi for the year 194950 page 74, Ex.PW5/A, pertaining to khata khatoni no. 33/163 and as per column no. 4 the land is a government land under the control of Deputy Commissioner. The witness also stated that as per page no. 59/60 of the mutation register (Intekaal Register) Ex. PW5/B as per which vide mutation no. 338 dtd. 03/04/1951, having signatures of Naib Officer Kanoongo and Tehsildar, the land falling in khasra no. 591/201, 594/564/202, 203, 567/205, 595/306, 569/207 is the government land. PW5 also deposed that as per Jamabandi register of the year 196667 relating to village Malikpur Chavani, page 39 Ex.PW5/C, the notified area committee, Civil Station, Delhi is the owner of land falling in khasra no. 569/207( 1 bigha 3 biswa), 591/201 (06), 203 min (part 7 bigha), 567/205 (1 bigha), 595/206 (9 bigha 14 biswa). PW5 Sh. Prem Singh Sehrawat further stated that as per Jamabandi register of the year 199091 relating to village Malikpur Chavani Ex.PW5/D, there were 354 shareholders of land khasra no. 594/564/202 (7 bigha 4 biswa gairmumkin i.e. non cultivated) and khasra no. 203 (10 bigha 10 biswa gairmumkin i.e. non cultivated). He also proved the mutation record from 416 to 428 as Ex.PW5/E and identified the writings of Sh. Bhum Singh, Sh. Chote Lal Patwari and Sh. Rishal Singh, Naib Tehsildar. PW5 CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 24 of 118 stated that Sh. Bhum Singh who was Patwari with him had made a remark at point X in red ink that the land falls within Municipal Limit and has not been acquired, on 10.07.1989 when the mutation entry was made. During cross examination on behalf of A3 Vinod Mittal, the witness stated that NOC is required to be taken from Revenue Department before sale deed is to be executed with respect to agricultural land and the purpose of issuance of NOC is to certify that the land exist in the seller name alongwith description of properties and this land is not under acquisition proceeding and has not been acquired as well there is no mortgage lien or property free from any kind of title defect. The witness also stated that SubRegistrar is obliged to register the Sale Deed after receiving the NOC as stated above. The witness admitted that same position existed in the year 1989 and 1995. He also stated that as per record mutation no. 417 dated 10.07.89 pertains to Khasra no.203 (land measuring 7 bigah), which had been inherited by Kawal Singh and Ram Pyari after death of Rati Ram. As per the mutation no.428 dated 10.07.89 pertaining to Khasra no.564 / 594/202 and 203 (land measuring 17 bigah 14 biswa), 1 bigah of land had been mutated in the name of Sarabjeet Sharma s/o Sh.K.D.Sharma from Kawal Singh and Ram Pyari by virtue of Sale Deed. Vide mutation no.418 to 434 pertaining to Khasra no.564 / 594/202 and 203 (land measuring 17 bigah), 1 bigah of land each has been mutated in the name of various persons as mentioned in the respective Sale Deeds were transferred from Kanwal Singh and Ram CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 25 of 118 Pyari. The witness admitted that as per record, the land was agricultural land, however, it was noncultivated land. On the basis of Jamabandi, the witness stated that even in the year 196667 the land was shown as non cultivated. The witness was not able to say whether the land was irrigated or not during this period. The witness stated that he cannot explain the description of land under khata khatoni no.33/163 of the year 194950 nor he could precisely inform on the basis of the record that whether khata khatoni no.33/163 is anyhow connected with khasra no. 594/564/202/203. PW5 stated that the khasra no.594/564/202 is 7 bigah 4 biswa and khasra no.203 had 10 bigah and 10 biswa of land. In the cross examination on behalf of A4, the witness stated that the land is transferred in the name of the buyer from the seller by the revenue officials after checking the revenue records of the previous years. He also stated that entries in Jamabandi Register are up dated after every 4 years and NOC are issued on the basis of verified revenue record of the preceding year. The witness also stated that the NOC's which were issued in 198990 in respect of Sale Deed executed in favour of 17 persons must have been issued after checking the record of the previous years. 3.6 PW6 Sh. Nand Lal, Kanoongo had worked with Bhoom Singh, Patwari and also knew Chotey Lal, Kanoongo. He identified mutation register of the year 1989 and proved the same as Ex.PW 5/E. He stated that Bhoom Singh had not sent this record to him for verification. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 26 of 118 In the cross examination, Sh. Nand Lal stated that Kanoongo is senior to Patwari and supervises the work of Patwari. However, he stated that he did not ask for this record from Bhum Singh as he was not aware about this case.
3.7 PW7 Sh.Gyan Chand Gupta deposed regarding sale of part of the property in dispute by Sh. Ashok Sehra to Sh. Radha Krishna Somany. The witness knew Sh. Ashok Sehra and Sh. Radha Krishna Somany. He stated that at that time, the land in question was vacant. He had taken part in the negotiations for purchase of this land as Sh. Radha Krishna Somany wanted to construct a temple on this land. It is pertinent to mention here that the witness stated that Sh. Ashok Sehra had shown him sale deed and other relevant documents of this property but did not show any document regarding education institute. The sale deed dtd. 11/4/94 executed by Mahesh Sehra in favour of Smt.Chandu Somany for a consideration of Rs.1,94,000/ relating to 1 bigah of land in khasra no. 203 and 564/594/202 situated in revenue estate of Malikpur Chawani has been proved as Ex.PW7/A. In the cross examination on behalf of A4, the witness submitted that he had examined the title of the property before it was purchased by Mr.Somany and they purchased the land only after they saw the NOC.
3.8 PW8 Sh. Radha Krishan Somany deposed on oath that he CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 27 of 118 alongwith his wife Smt. Chandu Somany and brother Shyam Sunder Somany had purchased 01 bigha land each falling in Khasra No. 203 and 594/564/202 situated in the revenue estate of Village Malikpurchavani, Delhi from Smt. Snehlata w/o Sh. Virender Kumar Sehra, Sh. Mahesh Sehra s/o Sh. Manohar Lal Sehra and Sh. Rajesh Kumar Sehra S/o Sh. Manohar Lal Sehra respectively through separate sale deeds Ex.PW8/O, Ex.PW8/P and Ex.PW8/Q. PW8 also proved the sale deed executed by Sh. Ashok Arora and others in favour of M/s Qutub Build Well Pvt. Ltd. and Sh. DD Mittal, M/s Vinman Build Well Pvt. Ltd. and Sh. Rajinder Mittal, M/s Chavan Rishi International Ltd. and Cosmos Builders Promoters Ltd., M/s Number One Developers Ltd. and M/s Vinman Build Well Pvt. Ltd., M/s Number One Developers Ltd. and M/s Vinman Build Well Pvt. Ltd., M/s Varun Estates Pvt. Ltd. and M/s JMD Build Well Pvt. Ltd., M/s Qutub Chemicals Pvt. Ltd. and Sh. Vinod Mittal, M/s Chavan Rishi Construction Pvt. Ltd. and Sh. Manoj Mittal, M/s Chavan Rishi Construction Pvt. Ltd. and M/s Vinman Build Well Pvt. Ltd., M/s Qutub Developes Pvt. Ltd. and M/s Chavan Rishi Builders Pvt. Ltd., M/s Bhatinda Chemicals Ltd. as Ex.PW8/A to Ex.PW8/N. These sale deeds were in respect of the operation of the land relating to Khasra No. 203594564/202. The witness identified his signatures as well as signatures of his brother Shyam Singh Somany and his wife Smt. Chandu Somany at point B & C .
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 28 of 118 3.9 PW9 Sh. Hemraj Uniyal, an official from the Dy.
Commissioner's office, Delhi deposed that during the period 1985 to 1988, Sh. JP Singh, was Sub Registrar1, Kashmere Gate, Delhi. The witness also informed the name of other officials posted at the relevant time. Sh. Hemraj Uniyal identified the signature of Sh. JP Singh, Sub Registrar 1 on the sale deeds executed on 26/5/89 which are Ex.PW9/A1 to A17.
3.10 PW10 Sh. Suraj Singh was Peon in the office of Sub Registrar2, Kashmere Gate, 1989. He stated that at that time the office of Sub Registrar I & II were located in the same building almost adjacent to each other on the ground floor. However, in the cross examination, the witness stated that the records of Sub Registrar I & II were used to be kept separately. It is correct that nobody could enter the Record Room without proper authorization.
3.11 PW11 Sh. Shabapati Pandey was posted in the office of Dy. Commissioner, Delhi at the relevant time. He stated that Sh. Ram Saran Sharma used to be the Record Keeper and he used to assist him in day to day work.
3.12 PW12 Sh. Deepak Aggarwal, an employee in M/s Chavan Rishi International Company stated that he joined the said company in the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 29 of 118 year 1987 as an Accountant and after 06 months he was transferred to sister concern M/s Sarvapriya Constructions. M/s Chavan Rishi International Company had its registered office at 4, Battery Lane, Civil Lines, Delhi and Sh. Vinod Mittal was the owner of the company. Sh. Deepak Aggarwal stated that M/s Cosmos Builders and Developers was also sister concern of M/s Chavan Rishi International Ltd. and Sh. Vinod Mittal, was one of its Directors.
3.13 PW13 Sh. Devender Singh Khatri, a practicing Advocate had worked with Sh. Sarabhjit Sharma, Advocate, merely stated that he knew one Sh. Ashok Arora. PW13 expressed his ignorance regarding M/s Chavan Rishi Apartments and any dealing of Mr. Sarabhjit Sharma with it. The witness identified the signature at point A of Sh. Sarabhjit Sharma on the application for mutation Ex.PW13/A of land bearing Khasra No. 564/594/202 and 203, addressed to Tehsildar, Delhi dtd. 31/7/87. 3.14 PW14 Sh. SR Sapra, the then Estate Officer had conducted the case against Ram Piyari under Public Premises Act. He proved the file pertaining to this as Ex.PW14/A. Sh. SR Sapra stated that he conducted first hearing on this case on 29.11.1990 and proved the order dtd. 4.10.1990 as Ex.PW14/B and order dtd. 29.11.1990 as Ex.PW14/C. The witness proved the order dtd. 25.7.1991 as Ex.PW14/D and passed the separate order of the same date as Ex.PW14/E. In the cross examination, CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 30 of 118 the witness stated that the case before him was filed by DDA to declare Rampiari as a unauthorized occupant in the public land. The witness admitted that he had stated before IO that proceedings had to be dropped against Rampiari because there is no evidence that the land in question was transferred to L& DO by the notified area committee. 3.15 PW15 Sh. RP Goel, the then Reader in the Court of Sh.JP Singh Sub Registrar1 stated that office of Sub Registrar1 and Sub Registrar2 was located in the same floor, however, the record of both used to be kept separately.
3.16 PW16 Sh. BP Sharma deposed regarding the submission of building plan. Sh. BP Sharma stated that he was working in the Building Headquarter, Town Hall, Chandni Chowk as Asst. Engineer and his duty was to check the building report of the concerned area JE. The witness stated that as per procedure the owner submits a building plan through a registered architect which is submitted to the office Tax Clerk. Four copies of the building plan alongwith ownership documents are submitted and some other required forms such as certificate of the license architect, house tax etc are submitted. Thereafter, the Tax Clerk sends the concerned file to the area JE. The JE then inspects the site, then he puts up the report before the concerned Asst. Engineer. After the AE approves, an IN (invalid )notice is issued to the owner as well as the architect. If the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 31 of 118 objections are met with, then the file remains with the JE. After the building plan is sanctioned, then the charges are deposited. When the plan is finally sanctioned, then one copy of the sanction plan is sent to the house tax department. If the land is used for the purpose of agriculture, then the file is sent to the Town Planning Deptt at Kashmere Gate, Delhi. Thereafter, the Town Planning Deptt submits its report and after the report is received from the department, the same is considered by the Building Headquarter. The witness proved the file No. 118/B/HQ/96 dtd. 25/1/96 (D20/1) relating to proposed building plan of Group Housing Society relating to Khasra No. 594/564/ 202 and 203 at Mall Road, New Delhi as Ex.PW16/A. He stated that as per the plan, the authorized signatory for Chavan Rishi Construction Pvt. Ltd was A3 Vinod Mittal. The witness stated that the master plan 2001 and the drafts zonal plan under the master plan does not concern their department and it concerns the Town Planning Department of MCD. Sh. BP Sharma admitted that in the sale deed Ex.PW16/B and Ex.PW16/C dtd. 5/4/95 in favour of M/s Vinaman Build Well Pvt. Ltd. & Ors. and as per the said sale deed, the land is referred to as agricultural land. He stated that after the file was received from Town Planning Deptt., the building plan was sanctioned. In answer to a Court Question, the witness stated that the building plan of a Group Housing society can be sanctioned on the agricultural land provided the layout plan is sanctioned by the Town Planning Deptt and the Standing Committee. He also replied in answer to the Court Question CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 32 of 118 that the Town Planning Deptt. can allow the change of land use irrespective of master plan and draft zonal plan subject to the permission of competent authorities. However, he stated that since he has not dealt with this file, therefore, he cannot say that whether the change of land use was permitted in this case or not. In the cross examination on behalf of A3, the witness stated that the building plan in this case was sanctioned properly as per the then existing rules and the Standing Committee had also approved the layout. The witness proved the decision of the standing committee with respect to the layout of Group Housing at Malikpur Chavani, Model Town on Khasra No. 594/564/202 and 203 as Ex.PW16/DA. He also proved the resolution of the standing committee with respect to Group Housing Society as Ex.PW16/DB and the letter Ex.PW16/DC regarding approval of layout plan for Group housing Society in question.
3.17. PW17 Sh. LD Ganotra, was working as Head of the Technical Department in the office of L&DO at the relevant time and his duty was primarily to look after the work relating to encroachment on the Government land. The witness stated that the files relating to the land in question D10/1 to D10/5 were transferred from Notified Area Committee to the office of L&DO relating to the land in question and thereafter, used to be maintained in his office in the normal course of business and the same has been proved as Ex.PW 17/A1 to A5. An objection has been CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 33 of 118 raised to the mode of proof. However, I consider that the witness has specifically stated that the files used to be maintained in the normal course of business, hence, the objection cannot be sustained. Sh. LD Ganotra, proved the agenda dtd. 22/6/1948 in file Ex.PW17/A5, in the second part of which Sh. NN Sehgal of 3, Bhagwan Dass Road, New Delhi had intimated that as he had purchased the entire concern of Delhi business from M/s Edward Keventar Ltd., the lease of the aforesaid plot of land may be transferred to him on the existing terms and conditions. The witness also proved letter No. 1634/50 dtd. 27/6/1950 in file Ex.PW17/A5 (page No. 5) written by the Managing Director of Delhi Land and Finance Ltd. wherein he had proposed to the Dy. Commissioner of Delhi, stating inter alia that his company wants to purchase land measuring 29 bighas 17 biswas in Khasra No. 594/564, 203, 596/206, 569/207, 867/205, 591/209, of Village Malikpur Chavani, which was owned by the Govt. as Ex.PW17/A6. The witness also proved the resolution No. 18 dtd. 29/11/1950 of Notified Area Committee, at page 45 to 47 of the said file vide which the lease had been terminated and it was resolved that it would not be renewed. The lessee was to be notified to handover possession of the land at once according to the terms of the expired lease and further, the land be properly advertised for open auction. The witness proved the resolution as Ex.PW17/A7. The letter dtd. 19/12/1950 at page 59 of the file Ex.PW17/A8 was also proved by which the Secretary, Notified Area Committee, sent communication to CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 34 of 118 GM, Edward Keventer (Successors Ltd.) to communicate that it has been decided not to renew the lease. The witness also proved the noting at page 87 of the file Ex.PW17/A5 on the letter dtd. 30/1/1951, as Ex.PW17/A9 wherein it was inter alia mentioned "it should be notified to him that the Committee does not recognize his tenancy as the lessee has no right to sub lease the land without the consent of the Committee." During the deposition the Ld. Defence counsel have raised objections as to the mode of proof, however, I consider that such objections cannot be sustained as witness has specifically deposed on oath that the documents were maintained the department in the normal course of business and were more than 30 years old at the time of seizure. In the cross examination, the witness admitted that he cannot tell the name of the officer who had who had made the noting Ex.PW17/A9. The witness also admitted during cross examination on behalf on behalf of A4 that he merely produced the record before the Court. The witness also admitted that Estate Officer decided the matter in favour of Ram Piari w/o Ratiram and rejected the claim of DDA and L&DO.
3.18 PW18 Sh. PR Mogha, Assistant Director (Survey), Unauthorized Colony Cell, DDA stated that he had been monitoring records of transfer of land to DDA from L&DO and Ministry of Rehabilitation after having taken charge from his predecessor Sh. DS Ashirwad, the then Dy. Director, DDA. PW18 Sh. PR Mogha had handed CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 35 of 118 over the files D15 Ex.PW14/A, D16 Ex.PW18/A to CBI containing notesheet at page 1 bearing notification No. 1810 dtd. 20/7/74 Ex.PW18/B. The witness also proved the notification No. 1810 dtd/ 12/7/74 as Ex.PW18/C, which is part of file D15 and D15A. The objection raised by Ld. Counsel regarding mode of proof also cannot be sustained as the files were bring maintained in the official course of business in the office of the witness. In the cross examination, the witness admitted that he did not have any personal knowledge and have deposed mainly on the basis of record.
3.19 PW19 Sh. Sunil Kumar Mehra, Sr. Town Planner, MCD deposed that he is a qualified Architect. He proved the files related to the sanction plan of St. Jesus Education Society. In the cross examination, the witness stated that he joined MCD in September 1992 and by that time this matter was already over and he has deposed only on the basis of records. The witness deposed that the preamble note is culmination of the entire proceedings with respect to LOSC and Standing Committee proceedings and sanction of layout. The witness also admitted that ownership is verified every time afresh if the layout plan is again filed with respect to the same land, since changes in ownership may occur as well as development control norms may also change.
3.20 PW20 Sh. Mahesh Kumar was posted as Under Secretary CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 36 of 118 in the Land & Building Department, Vikas Bhawan, ITO and in that position, his duty was to issue No Objection Certificate (NOC) under the ULCR Act after taking permission from the Secretary Land and Building. The witness stated that application was to be filed by the Society/trust under the ULCR Act and application used to be marked to Assistant by him and then processed by the Assistant. The file then used to be put up before him and ultimately, before Secretary Land and Building for necessary approvals for grant of NOC. Sh Mahesh Kumar proved the letter dtd. 8/7/91 written by St. Jesus Education Society Ex.PW20/B vide which they had applied for NOC. The file was collectively proved as Ex.PW20/A. The witness deposed that the office of competent authority was used to be under Secretary Land and Building. The jurisdiction of the competent authority was only to ascertain whether there was any excess land or not and also to ascertain whether group housing society /trust is doing profitable or non profitable business. The NOC could be granted in non profitable functions. He also stated that in the event of group housing society/trust has been granted NOC under ULCRA, that group housing society/trust is not permitted to sell the land further in terms of the Act. Sh. Mahesh Kumar stated that NOC of St. Jesus Education Society was granted for Primary School in the land falling khasra No. 594/564/202 and 203 of Vill. Malikpur Chavani and therefore, this land could not have been further sold and if any such land is sold, it is null and void. The witness stated that in this case, since the ULCRA was repealed, no notice CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 37 of 118 could have been issued. He also proved the order of the Hon'ble LG dtd. 22.9.98 vide which the order of A1 SS Rathore was set aside as Ex.PW20/C (colly). He also proved the report of the Assembly Committee as Ex.PW20/D. In the cross examination on behalf of A1, the witness admitted that competent authority under ULCRC works under the over all supervision of the Secretary, Land & Building. He stated that the only and basic function of the competent authority was to determine whether a particular entity is holding the land within the ceiling limit as prescribed under the Act or beyond it. In cross examination on behalf of A3, the witness stated that the purpose and object of the order passed by A1 SS Rathore was that he did not declare holding of excess land by the parties and on the basis of the order of A1, the parties could apply for sanction plan to MCD. Though the witness was not able to tell that which specific provision was violated by A1 SS Rathore, however, the witness voluntarily stated that A1 should have seen that transfer of land from Educational Institute to the private parties was illegal. The witness admitted after having gone through the record that there was no record vide which the educational institute had transferred the land to the private parties.
3.21 PW21 Sh. Charanjit Singh deposed about the procedure regarding the registration of immovable properties. In the cross examination on behalf of A4, the witness admitted that the registration of CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 38 of 118 the property takes place after the SubRegistrar satisfies himself from the available record about the genuineness of the transaction and when he is convinced that there is no dispute with regard to the property in question and the registration of the document implies that the document is legitimate.
3.22 PW22 Sh. Sanjeev Kumar Punj was Cashier in the officer of Sub Registrar 1 from 1987 to 1991 and worked under Sh. JP Singh, Sub Registrar1. The witness stated that Sh. Uniyal was Incharge of maintaining book No. 1, which relates to the maintenance of sale deeds and peshi register used to be maintained by Reader, Sh. RP Goel. 3.23 PW23 Sh. SR Ahluwalia, Retired Officer from MCD deposed about the procedure of submission of building plan. 3.24 PW24 Sh. Satish Kwatra identified the signatures of Late Sh. JP Singh and sale deed Ex.PW19/A1 o A17.
2.25 PW25 Sh. Virender Singh was Patwari in the notification branch from the year 1987 to March 1990. He proved the entries 6059 to 6069 in Despatch Register Ex.PW35/A and the numerical entries No. 10160 to 10165 in the register Ex.PW25/B. The witness stated that in the LR register (D19) pertaining to Vill. Malikpur Chavani page No. 49 and CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 39 of 118 50 green paper Ex.PW25/C were pasted and the same were distinct from others. However, the witness stated that the register had not been maintained by him nor was it under his custody.
3.26 PW26 Sh. NJ Thomas had merely forwarded certain files vide letter Ex.PW26/A. PW27 Sh. SC Gupta proved the letter dtd. 25/6/02 Ex.PW27/A written by him to CBI regarding sending of files pertaining to Chawan Rishi Apartments.
PW28 Sh. Ram Bhool Singh handed over the documents to CBI vide production cum seizure memo dtd. 27/6/02 Ex.PW28/A. PW29 Sh. Rajender Prakash proved the letter dtd. 18/9/03 Ex.PW29/A addressed to CBI vide which the roznamacha record of the Revenue Estate Malikpur Chavani for the year 198990 was forwarded. As per this record, the roznamcha for the period 197374 and 197475 were destroyed and for the period 198889 were not deposited.
PW30 Sh. Shatrughan Poddar proved the production cum seizure memo dtd. 6/6/01 as Ex.PW30/A. PW31 Sh. MS Rawat proved the production cum seizure memo dtd. 3/10/01 as Ex.PW31/A. PW32 Sh. Jamna Das proved the letter dtd. 1/10/04 Ex.PW32/A regarding custody of the relevant record with the Hon'ble High Court of Delhi in connection with CWP No. 3830/96 Girdhari Lal CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 40 of 118 Vs. UOI & Ors. which was requested to be forwarded to the CBI.
PW33 Sh. Somdutt proved the search cum seizure memo Ex.PW33/A conducted at Flat No. 1/6, Rishi Apartments, 4 Battery Lane, Rajpur Road, Civil Lines, Delhi which was entirely in the possession of A2 DD Mittal (since expired).
3.27 PW34 Sh. Vishnu Swaroop Sharma proved his letter dtd. 27/9/2000 addressed to Municipal Secretary, MCD Ex.PW34/B vide which he forwarded letters dated 17.01.92 and 12.01.96, as annexures and the decision of the Standing Committee dated 21.01.92 and 15.01.96. PW34 proved the letter dtd. 17/1/92 vide which a preamble for transfer of lay out , a preamble for approval of lay out plan for school on khasra No. 594/564/202/203 was put up before the Standing Committee and the Standing committee gave its decision No.1359 dated 20.01.92 approving the layout plan for school. Sh. Vishnu Swaroop Sharma also proved that Sh. OP Kelkar, Addl. Commissioner Engineering, MCD vide letter dtd. 12/1/96 requested the Standing Committee to sanction layout plan for Group Housing Society and the proposal was approved by the Standing Committee vide decision No.3376 dated 15.01.96. The witness stated that since the corporation was under suppression, Sh. Jagdish Sagar was exercising the power of Standing Committee. In the cross examination on behalf of A4 Manoj Mittal, the witness admitted that lay out scrutiny committee used to make recommendation to the Commissioner for its CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 41 of 118 approval after examining each and every aspect, with reference to the Delhi Master Plan and Zonal Plan and only after approval of the Commissioner, the matter used to be put up before the Standing Committee. The witness also admitted that DDA officials were required to advise the committee with reference to the Master Plan and Zonal Plan and a copy of the Agenda of the meeting of the Standing Committee used to be sent to the DDA before the meeting. The purpose behind sending a copy of the Agenda to the DDA was to take note of any technical glitch in case it was raised by the DDA so that the same could be brought to the notice of LOSC. It also came in the cross examination of this witness that the Standing Committee would ensure the land use before approval of any layout plan and if the process is duly followed by the concerned parties / applicants, then the same would be considered as being in consonance with the existing laws and norms.
3.28 PW35 Sh. Shamsher Singh proved the letter Ex.PW35/B written by Sh. BK Bagga, the then Chief Town Planner. In the cross examination, the witness stated that he has seen the letter Ex.PW35/B for the first time and he has no knowledge about the same.
3.29 PW36 Sh. Tilak Raj Bhasin stated that he sold property No. 4C, Flag Staff, Civil Line, Delhi to A3 Vinod Mittal in the year 1995 for about Rs.6065 lakhs. The witness stated that the sale deed was not CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 42 of 118 executed however, General Power of Attorney (GPA) and other documents were executed.
3.30 PW37 Sh. Ramesh Kumar Goel, the then JE(Civil) in Building Headquarter stated that at the relevant time Urban Land Ceiling Act was applicable and in pursuance of that if any building plan is submitted on a land more than 500 mtrs. (around 600 sq. yds) then they used to check, whether the party has taken permission from the competent authority (ULCRA). The witness had handed over the building plan file (Part I and II) pertaining to Group Housing Scheme at Village Malikpur Chhavni Ex.PW16/A and Ex.PW37/B to the CBI. The witness stated that he had initiated the file on receipt of an application for building plan submitted by A3 Vinod Mittal on 25/1/96 and the building plan was finally approved on 08.05.96 and sanction was released on 16.05.96.
3.31 PW38 Sh. Abhay Singh, Record Keeper, MCD is a witness regarding the sanction plan of St. Jesus Education Society. He stated that the proposal Ex.PW38/A was received from Town Planning Department on which the Standing Committee took a decision dtd. 20/1/92. 3.32 PW39 Sh. Akhlaqur Rehman stated that the Register Ex.PW39/A, contains the details of the sale deeds registered in the said CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 43 of 118 office from page 1 to 400. He stated that the writing at page No. 214 to 217 handwritten in English has not been correctly and properly entered. He proved the portion encircled Q1 at page 214, Q2 at page 215, Q3 at page 216 and Q4 at page 217. (Deed of sale dtd. 20/5/1943 between Notified Area Committee, Delhi and Rati Ram). The witness further stated that the the sale deed dtd. 20/5/43 does not find mention in the index register pertaining to the Sub Registrar Office, Kashmere Gate for the year 1943. He also proved the Index Register Ex.PW39/B in which the witness went through this register to find the names of the seller and the purchaser of the said sale deed dtd. 20/5/1943 between Notified Area Committee and Rati Ram, registered on 31/5/1943 in Register Ex.PW39/A but did not find mention of such a sale deed in the register. However, PW39 stated that the record reveals that the original sale deeds written in Urdu on page No. 214 to 217 on register Ex.PW39/A was rubbed off by somebody and instead the aforesaid document dtd. 20/5/1943 in English language has been overwritten illegally in the said register. In respect of the actual document registered at page No. 214 to 217 of Register Ex.PW39/A, the witness stated that on checking the index register Ex.PW39/B with reference to the page No. 214 to 217 and Volume No. 2262, it is found that the original document was sale deed between Dharam Singh S/o Bholu R/o Narela and Mullar S/o Bhagmal R/o Narela. In cross examination, the witness admitted that he cannot say when and who had smudged the paged 214 to 217 of Ex.PW39/A. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 44 of 118 3.33 PW40 Sh. MN Sharma proved the sale deed dtd. 26/5/89 Ex.PW9/A1 to A17 executed by Sh. Kanwal Singh in favour of 17 different buyers and identified his signature at point X1 and X2. The witness stated that at the time of execution of the sale deed both the sellers Sh. Kanwal Singh and Smt. Ram Piyari were present and alongwith them one of the purchaser namely Sh. Sarabjit Sharma was also present. He stated that sellers had taken transfer permission from the the ADM (LA)/ Tehsildar Notification Delhi u/ 8 of Delhi Land Reform (Restriction on transfer) Act, 1972 in the form of NOC. The witness also stated that the subject matter of the same was agricultural land total measuring 17 bighas and 14 biswas described as khasra No. 203(1010), 594/564/202(74) situated in the Revenue Estate of Vill. Mallikpur Chavani. He also stated that since the NOC was issued, hence there was no need to check the previous title of the sellers and and in all the sale deeds, it was mentioned that the seller is the sole and absolute owner and there was no reference or reliance on any previous sale deed or any other document.
Sh. MN Sharma further deposed that on or about 5/4/1995, Sh. Devender Khatri, Adv again approached him for further sale of the above said land. The witness signed the necessary documents as a witness and in token of drafting the same. He stated that for the second round of sale, Sh. Prem Kumar Sehra, Harish Kumar Sehra, Suman Sehra, CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 45 of 118 Virender Kumar Sehra, Sobha Sehra, Sarabjit Sharma, Praveen Kumar and Smt. Sunita Sehra executed a power of attorney dtd. 24/2/95 in favour of Sh. Ashok Kumar Sehra. Similarly, Mittar Parkash, Ms. Kanchan Bala and Sh. Bharat Bhushan executed power of attorney dtd. 24/2/95 in favour of Sh. Ashok Arora. On the basis of aforesaid power of attorney, sale deeds were executed. The original sale deeds were proved as Ex.PW40/X1 to X13, the Registrar copy of the same were already ExPW8/A to Ex.PW8/N. The witness further stated that in all the sale deeds reliance has been placed on sale deed dtd. 20/5/1943 registered as No. 1970 in book 1, Volume 2262, pages 214 to 217, registered on 31/5/1943 in the office of Sub Registrar1, Delhi. He also stated that sale deed mentions the NOC No. 1561 dated 24.03.1995 issued by Tehsildar (Notification) on the back side of first page and further, there is narration in the Sale Deed regarding the sellers having obtained NOC under Section 8 of the Delhi Lands (Restriction on Transfer) Act, 1972 from the Office of Tehsildar (Notification) in page 15 of the Sale Deed. The witness further stated that the chain of documents of ownership have been mentioned w.e.f. Sale Deed executed on 20.05.1943 onwards. It also came in the testimony of this witness that the total area of 17 bighas and 14 biswas, which was stated to be originally in the name of Sh. Rati Ram, the sale deed Ex.PW40/X2, continue to remain undivided as per this document. It was the undivided share of 1 bigha and 2 bishwas, which was being sold under the sale deed. The witness made a verbittum CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 46 of 118 statement regarding the 13 sale deeds. In the cross examination on behalf of A3 Vinod Mittal the witness admitted that all the formalities were duly completed for the registration of documents in respect of the sale deed of the years 1989 and 1995. He also stated that in each of these sale deeds, there was no legal encumbrances for further sale of properties mentioned therein. In the cross examination on behalf of A4 Manoj Mittal, the witness admitted that in view of the NOC granted u/s 8 of Delhi Land Reforms (Restriction on Transfer) Act, 1970, there was no legal impediment in the transfer of the land. The witness also admitted that as a bonafide purchaser, the purchasers in the above sale deeds were not required to make any further querry regarding titles of the previous owners, after having seen the abovesaid NOC. PW40 further stated that the NOCs u/s 8 of Delhi Land Reforms (Restriction on Transfers) Act are present in each of the sale deeds seen and identified by him. 3.34 PW41 Sh. Harjit Singh Bedi deposed regarding the procedure of submission of layout plan. He stated that after submission of layout plan, the Town Planning Department scrutinizes the proposal and also verifies the land use of the site in question and also conducts site inspection. After scrutinizing the case, an invalid notice is issued to the applicant for the required compliances. After the complete compliances, the case is put up to LOSC (Layout Scrutiny Committee) and after approval of the layout plan from LOSC the case is sent to fire department CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 47 of 118 and Delhi Urban Art Commission. On receipt of approval from the said departments, the case is finalized as per LOSC and put up before Standing Committee of MCD for its approval.
3.35 PW42 Sh. Brahm Pal was a witness regarding search conducted at premises No. 1/6, Rishi Apartments, 4 Battery Lane, Rajpur Road, Civil Lines, Delhi and proved the search cum seizure memo Ex.PW33/A and the proved the documents seized during the search. 3.36 PW43 Sh. Dhani Ram Sharma, the then Tehsildar (Notification) during the period February, 1990 to MarchApril, 1992 deposed that before sale / purchase of agricultural land, an application used to be submitted by the parties in the office of the concerned Sub Registrar which was used to be sent to the Tehsildar (Notification). The Tehsildar (Notification) used to mark the application further to Kanungo / Patwari, who used to submit the status report. The status report is given regarding whether the land proposed to be sold, is covered by some notification for acquisition of land under Land Acquisition Act, after checking the records available with Kanungo / Patwari. It was also used to be examined whether there is any violation of Section 33 of the Delhi Land Reform Act which prohibits fragmentation of land below 8 standard acres. After the kanungo / Patwari / Naib Tehsildar prepare the report, the same is forwarded to the Tehsildar (Notification) and then to Land CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 48 of 118 Acquisition Collector and thereafter to ADM (Land Acquisition) for final approval. After approval, the status report is dispatched from the office of Tehsildar (Notification) to concerned SubRegistrar. The witness was declared hostile by the Ld. PP . In the cross examination by the Ld. PP, the witness stated that Register D19 did not use to remain in his custody. After going through the Register, he stated that after page No. 48, the page No. 51 is appearing and thus, the original pages No. 49 and 50 are missing.
3.37 PW44 Inspt. Sri Bhagwan was part IO who had obtained the sanction for prosecution Ex.PW2/A against A1 SS Rathore and filed the chargesheet.
3.38 PW45 Sh. Virender Thakran part IO proved the FIR Ex.PW45/A. He proved the CFSL report as Ex.PW45/B and other documents seized during the investigation. In the cross examination on behalf of A4 Manoj Mittal, the witness stated that he had only seized the documents and thorough investigation was conducted by subsequent IO. Inspt. Virender Thakran stated that he also did not examine the 17 buyers pursuant to the sale deed executed in 1989 during the course of investigation conducted by him. He also stated that investigation remained with him for more than 02 years and during these two years he did not conduct any effective investigation and kept on asking and collecting the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 49 of 118 documents.
3.39 PW46 Sh. Daniel Masih, Naib Tehsildar at the relevant time deposed regarding the procedure of mutation of land. 3.40 PW47 Sh. Surender Malik, subsequent IO stated that he was entrusted with the investigation of this case during January 2004 from PW45 Sh. Virender Thakran. He proved the various communications received by him during the course of investigation and the documents seized by him. In the reexamination IO stated that he had served a notice u/S.91 Cr.P.C. to SubRegistrar, Kashmere Gate, for providing certified copies of Sale Deeds in respect of property No.8(3), Under Hill Lanes, Civil Line, Delhi and proved office copy of the sale deed as Ex.PW47/J1 to J4. In cross examination on behalf of A4, IO stated that A3 Vinod Mittal was the authorized representative of M/s. Chawan Rishi Apartment. He admitted that till the time investigation remained with him it largely revolved around the violation of various provisions of ULCRA. In the cross examination, the IO admitted that initially Kanwal Singh and Ram Piari and the 17 buyers were suspects and were interrogated by him. He also stated that during the course of investigation, he had never given any finding that no criminality can be attributed to the above said persons. It is pertinent to mention here that PW47 who conducted substantial investigation specifically stated that he CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 50 of 118 did not give any clean chit to the 17 buyers of 1989 and thereafter, the investigation was transferred to Inspt. RS Bedi, who has not been examined by the prosecution and from Inspt. RS Bedi, the investigation was transferred to Inspt. Sri Bhagwan. Inspt. Sri Bhagwan also did not state the grounds and circumstances in which these 17 buyers were put in Col. No.2.
It is pertinent to mention here that IO admitted that as per Ex.PW5/E (D11) i.e. mutation dtd 28.07.89, the land was mutated by Naib Tehsildar firstly in the name of Rati Ram and then his legal heirs Kanwal Singh and Ram Piari and thereafter in the name of 17 buyers who were the immediate beneficiaries of both the mutations. He stated that Naib Tehsildaar Risal Singh had passed the order of mutation after examining the report of the then Patwari Bhoom Singh, sale deed dated 31.05.43 and the affidavit of Bhagwan Dass, Power of Attorney Holder of Smt. Ram Piari and Kanwal Singh, page 3 of Ex.PW45/D (D11). The IO also admitted that as per pages 20, 25, 30, 35, 40, 45, 50 of Ex.PW45/D, these are applications for mutations addressed to the Tehsildaar Delhi by individual buyers of the 1989 transaction. He admitted that on perusal of these documents, it appears that the individual buyers had themselves referred to the sale deed dated 31.05.43 and had written copy enclosed at point A of each of these documents. The witness voluntarily stated that he did not find the said copy to be enclosed with each of the application. Inspt. Surender Malik admitted that as per the record, the existence of the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 51 of 118 sale deed dated 31.05.43 was relied upon by the individual buyers of 1989 at the time when they moved the application for mutation before the Naib Tehsildar in July 1989. It is also correct that accompanying the affidavit of Bhagwan Dass at pages 3,4, 5, 6 and 7 of Ex.PW45/D is the copy of the sale deed dated 31.05.43.
IO also stated that the order dated 25.07.91 of Estate Officer Ex.PW14/E (D15) there is a mention of sale deed dated 31.05.43 and copy of the sale deed was also annexed with the order of Estate Officer and this order of Estate Officer was produced by Sh. Ashok Kumar, one of the said 17 buyer. Further in the cross examination, the witness admitted that sale deeds Ex.PW47/J1 to J12, were registered on 26.11.1996. but the same were presented in the year 1995. STATEMENT OF ACCUSED 4.0 Accused persons in their statement u/S 313 Cr.PC have denied the allegations levelled against them.
A1 SS Rathore in his statement u/S 313 Cr.PC stated that the allegations made against him in the complaint Ex.PW1/A on the basis of which FIR Ex.PW45/A was registered, are incorrect and misconceived. He expressed his ignorance to most of the questions and stated that the legal procedures are a matter of record. A1 SS Rathore stated that he had given the determination under ULCRA on the basis of the documents made available to him, the declarations, the affidavits to the best of his CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 52 of 118 capability and understanding. He further stated that initially, there was proposal only for departmental action against him, however, lateron, without any justification, he was implicated in the present case. A1 stated that he has since been retired and contesting the departmental action which is pending with Central Administration Tribunal.
A3 Vinod Mittal in his statement u/S 313 Cr.PC stated that there are no allegations of falsification, tampering or interpolation of any document qua him in the present FIR Ex.PW45/A and stated that the complaint Ex.PW1/A and the FIR are totally misplaced and false. In respect to the affidavits Ex.PW3/C to M, A3 Vinod Mittal stated that he was not having the title of the land and actual physical possession of any other land at the time affidavits were sworn and deposited. In respect of the sale deeds dtd. 17/2/95 ExPW47/J1 to J12, A3 Vinod Mittal stated that these sale deeds were registered on 26/11/96 and actual possession and the title of the land was not there on 30/1/95. A3 Vinod Mittal denied having been executed any deed of settlement Ex.PW47/E between Ashok Kumar and others with himself, A3 DD Mittal (since expired) and A4 Manoj Mittal. A3 Vinod Mittal further stated that charghesheet has been falsely filed against him and he has not violated any provisions of law. A3 stated that he did not submit any false/incorrect statement or affidavits before the competent authority acting under the ULCRA which got repealed in the year 1999. A3 Vinod Mittal stated that Hon'ble High Court had not ordered any investigation qua any violation of the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 53 of 118 provisions of ULCRA, which itself was a self contained Code containing the penal provisions for furnishing wrongful information before the competent authority and the same was repealed before the registration of the FIR.
A4 Manoj Mittal in his statement u/S 313 Cr.PC, denied the allegations levelled against him and expressed his ignorance towards the procedures. In respect of the statements made u/S 6 (1) of ULCRA, A4 Manoj Mittal referred the same as a matter of record. However, he stated that the documents attributed to him have not been legally proved as to bearing his signatures. He further stated that he had never participated or dealt with any of the processes pertaining to ULCRA. In respect of the affidavits Ex.PW3/P to Ex.PW3/U, A4 made a similar statement that he had never been the part of the process pertaining to ULCRA and did not participate in filing any such application and the documents have not been proved as to be bearing his signatures. A4 Manoj Mittal stated that he has been falsely implicated in the case at the instance of IO who at all times knew that he had nothing to do with the day to day affairs of the questioned companies. He further stated that he had nothing to do with the alleged transactions pertaining to ULCRA nor was he authorized to deal with any authority in relation to any permission /NOC etc. A4 further stated that he had not made any misrepresentation nor did he cause any wrongful gain to himself or wrongful loss to any authorities as had neither visited any such authority nor taken part in any such process. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 54 of 118 A4 Manoj Mittal further stated that he has been falsely implicated by the IO to favour the 17 different buyers who had purchased the disputed property in question and further got it mutated in their favour in the year 1989. He further stated that the investigation has been tainted from the beginning and he has been victimized on the basis of false and fabricated evidence.
ARGUMENTS 5.0 Sh. S. Krishna Kumar, Ld. PP for CBI has argued that the prosecution has successfully proved its case against the accused persons beyond reasonable doubts. It has been submitted that criminality of the accused persons and clear cut conspiracy amongst them is apparent from the applications u/S.6(1) of ULCRA, 1976 moved by A3 and A4 for grant of NOC before A1 SS Rathore. In those applications, accused persons have made a false submission. It has further been submitted that alongwith the applications A3 Vinod Mittal and A4 Manoj Mittal have filed the affidavits in which they have made a false claim that they did not have any other land except the land in question. Ld. PP submitted that competent authority cannot be so vague that bare perusal of the affidavit would not have stuck to his mind that the transactions in the name of the various companies are merely sham transactions and in fact the entire transaction was carried out by A3 Vinod Mittal being assisted by A4 Manoj Mittal. Ld. PP submitted that it was a fit case where A1 SS CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 55 of 118 Rathore should have lifted the corporate veil and passed the order in accordance with the spirit of ULCRA, 1976. Ld. PP further submitted that it was the duty of the competent officer to act within the purview of the law and in accordance with the fulfillment of the intention of ULCRA which aimed at equal distribution of land. It has been submitted that order passed by A1 SS Rathore clearly reflects the malafide intention, mensrea and non application of mind. A1 SS Rathore by his acts and deeds, cheated his own office. Ld. PP submitted that the documents on the record clearly proves that A3 Vinod Mittal and A4 Manoj Mittal had other properties at 4C, Flag Staff Road, Civil Lines, Delhi and 8, Under Hill Lane, Civil Lines, Delhi, besides the property in question and therefore, property in question was bound to be resumed to the State in accordance with the provisions of ULCRA.
In respect of 17 buyers and transaction in 1989, Ld. PP submitted that record reveals that as far as possession of Rati Ram and his legal heirs is concerned, that has not been disputed. Ram Piari and Kanwal Singh have merely sold the possession to the 17 persons and furthermore, those 17 persons also sold the only possessory title to the Somanys'. Ld. PP submitted that those transactions were genuine and no criminal act can be attributed to them. In respect of the mutation effected in July 1989, Ld. PP submitted that at that stage the mention of 1943 sale deeds alongwith applications moved for the mutation again seems to be a manufactured document because as per record 1943 sale deeds came into CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 56 of 118 existence only somewhere after 1994. Ld. PP submitted that the documents and act and deeds of the accused persons clearly reflects that the forgery was committed by A3 Vinod Mittal and A4 Manoj Mittal but in absence of charge to this effect, he cannot argue more on this aspect. Ld. PP submitted that the conspiracy amongst the accused persons is crystal clear on the record and the accused persons are liable to be convicted.
5.1 Sh. Riyaz Ahmed Bhat, Ld. counsel for A1 SS Rathore submitted that the prosecution has miserably failed to prove its case against the accused. It has been submitted that A1 SS Rathore has been charged for the offence u/S.13(1)(d)(iii) of POC Act as well as for the offence of conspiracy u/S.120B IPC r/w S.420 IPC with other accused persons. Ld. counsel submitted that presumption u/S.20 POC Act is not available to the prosecution and therefore, the prosecution is duty bound to prove their case by way of clear, cogent, creditworthy and admissible evidence. It has been submitted that there is golden principle of criminal jurisprudence that there is always a presumption of innocence in favour of the accused and therefore, the prosecution is under bounden duty to prove its case beyond reasonable doubt. In respect of conspiracy, Ld. counsel for A1 SS Rathore submitted that there is no material, even for the name sake, on the record, from which an inference of conspiracy can be drawn. It has further been submitted that prosecution has failed to prove any CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 57 of 118 proven circumstance from which such inference can be drawn. Sh. Bhat, Ld. counsel submitted that conspiracy cannot be held to be proved merely at the asking of the prosecution and the evidence either direct or indirect has to be proved by the prosecution.
In respect of charge u/S.420 IPC, Ld. counsel for A1 SS Rathore submitted that in the present case the prosecution has charged A1 SS Rathore, competent authority in ULCRA for the offence of cheating alongwith misconduct which in itself is a contrary. Ld. counsel read out Section 415 IPC alongwith its explanation and its illustration. It has been submitted that bare perusal of this provision makes it clear that for such an offence there are always two entity, one who deceive and another who is being cheated. It has further been submitted that the perusal of ULCRA as well as the evidence on record suggest that the order dated 01.11.95 passed by A1 SS Rathore in the capacity of competent authority is only an order and not NOC. There is provision in ULCRA which provides grant for NOC. It has been submitted that order dated 01.11.95 was not the sole criteria for sanction of NOC. In respect of this contention, Ld. counsel relied upon the testimony of PW16 BP Sharma, PW19 Sunil Mehra and PW34 Vishnu Swaroop Sharma. Ld. counsel submitted that procedure as stated by PW16 and PW19 makes it clear that the sanction was granted after taking into account various aspects and approval was not granted merely on the basis of NOC dated 01.11.95.
Sh. Riyaz Ahmed Bhat, Ld. counsel assailed the testimony of CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 58 of 118 PW3 KC Aggarwal and PW20 Mahesh Kumar. It has been submitted that testimony of both these witnesses is neither admissible nor reliable. Ld. counsel submitted that prosecution intended to place these witnesses as an expert whereas, they do not fall in the category of expert witness. Ld. counsel relied upon :
1. Ramdas Vs. Secy. Of State, AIR 1930 All 587 ;
2. United States Shipping Board Vs. The Ship "St. Albans", AIR 1931 PC 189 ;
3. Campbell Vs. Rickards, SC 2N&M 542 ;
4. State of HP Vs. Jai Lal & Ors., (1999) 7 SCC 280 ; and
5. Ramesh Chandra Aggarwal Vs. Regency Hospital Ltd. & Ors., AIR 2010 SC 806.
Sh. Riyaz Ahmed Bhat, Ld. counsel submitted that bare perusal of above said judgments would make it clear that they do not fall within the category of expert. It has further been submitted that A1 SS Rathore has passed the impugned order exercising the power under ULCRA and Section 33 of the Act provides appeal preferred against and therefore, PW3 KC Aggarwal was not at all capable of making any comment upon the order of A1 SS Rathore. Ld. counsel submitted that any order passed by an authority can be challenged before the senior authority and a person of parallel jurisdiction cannot be permitted to comment upon the same.
Sh. Riyaz Ahmed Bhat, Ld. counsel has drawn the attention of the court towards the order of Hon'ble LG dated 22.09.98, Ex.PW20/C CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 59 of 118 to buttress the point that Hon'ble LG had not attributed any malafide or any extraneous consideration. It has been submitted that A1 SS Rathore might have erred or committed any lapse but nowhere committed any misconduct u/s.13 of POC Act. Ld. counsel also invited attention of the court to the order of Hon'ble High Court of Delhi dated 21.08.2000 which has also not attributed any malafide on the part of A1 SS Rathore. Ld. counsel submitted that in fact order dated 01.11.95 passed by A1 SS Rathore came into consideration before the Hon'ble High Court as the Mittals placed reliance upon lay out plan passed by MCD and order dated 01.11.1995 passed by A1 SS Rathore. Sh. Bhat, Ld. counsel submitted that evidence placed by prosecution is far from satisfactory and the conviction cannot be based upon the same. It has further been submitted that the prosecution has failed to prove the forgery on the record.
Proceeding further, Ld. counsel for A1 SS Rathore submitted that prosecution has also failed to bring any material on the record that the act and conduct of A1 SS Rathore falls within the category of misconduct. In support of his contentions, Ld. counsel relied upon :
1. Abdula Mohd. Pagarkar Vs. State, 1980 SCC (Cri) 546 ;
2. Inderjit Singh Vs. State of Punjab, 1995 SCC (Cri) 837 ; and
3. C. Chenga Reddy Vs. State of A.P., 1996 SCC (Cri) 1205.
On the point of sanction, Sh. Riyaz Ahmed Bhat, Ld. counsel submitted that prosecution has miserably failed to prove sanction in accordance with law. Ld. counsel submitted that section 6.2 of Vigilance CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 60 of 118 Manual specifically provides the procedure to prove the sanction which reads as under :
"6.2 The validity of a sanction issued by the Central Government may be proved by the prosecution by production of the following documents in the court :
1. a copy of the notification issued under Article 77(2) of the Constitution referred to above ;
2. a copy of the Gazette Notification relating to the appointment of the officer signing the order to the office held by him at the time of the issue of the order of sanction."
It has also been submitted that procedure for obtaining sanction of Central Government has been defined under Chapter 10 of Vigilance Manual and this procedure has also not been followed by the prosecution. It has further been submitted that the absence of sanction u/S.197 Cr.P.C. is also fatal to the case of the prosecution. It has also been submitted that the prosecution also had to obtain the sanction u/S.197 Cr.P.C. Similarly, that the sanction u/S.19 POC Act has not been proved as per law. Ld. Counsel relied upon Matajog Dobey Vs. HC Bahri, AIR 1956 SC 44.
Last but not the least, Ld. counsel submitted that A1 SS Rathore had passed the order exercising the power under ULCRA and is therefore protected u/S.77 of IPC and section 40 of the ULCRA which provides as under :
"40. Indemnity : No suit or other legal proceeding shall lie against the Government or any officer of Government in respect of anything which is in good faith done or intended to be done by or under this Act."CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 61 of 118
Reliance has also been placed upon State of Maharashtra Vs. YP Sawant, 1977 CrLJ 1477.
5.2 Sh. Manoj K. Singh, Ld. counsel for A3 Vinod Mittal submitted that prosecution has miserably failed to prove its case against the accused persons. Ld. counsel submitted that the golden principle of criminal jurisprudence is that it is the prosecution who is required to prove its case beyond reasonable doubt. In this regard, reliance has been placed upon State of Madhya Pradesh Vs. Sheetla Sahai and Ors. (2009) 8 SCC 617, in which it has been inter alia held as under :
"There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence."
Ld. counsel further submitted that first and foremost, he would like to argue on the applicability of Section 13(1)(d) of POC Act, in this case. It has been submitted that Section 13(1)(d) POC Act is not at all attributed in the present case as the prosecution has not brought on record even an iota of evidence to prove mensrea on the part of the accused persons. It has been submitted that judgment of Sukhram Vs. CBI, Crl. A. 536/2002 decided on 21.12.2011, relied upon by this court at CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 62 of 118 the stage of charge is distinguishable on the facts and circumstances of the case. It has further been submitted that even thereafter, there is another judgment of Hon'ble High court in which again it has been held that mensrea is an essential ingredient of misconduct as defined u/S.13(1)
(d) of POC Act. Reliance was placed on CK Jaffer Sharief Vs. State (through CBI), 2013 (11) SCC 206, in which it was inter alia held as under :
"13. Section 13(1)(d) of the Act may now be extracted below :
"Section 13 : Criminal misconduct by a public servant - (1) a public servant is said to commit the offence of criminal misconduct,
(a)......
(b)......
(c ) .....
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest. Or
(e)........"
14. A bare reading of the aforesaid provision of the Act would go to show that the offence contemplated therein is committed if a public servant obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means; by abusing his position as public servant or without any public interest. The CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 63 of 118 aforesaid provision of the Act, i.e, Section 13(1)(d) are some what similar to the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947.
....
16. A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be found in the work "Criminal Law" by K.D. Gaur. The relevant passage from the above work may be extracted below:
"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
17. It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 64 of 118 staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar vs. State of Kerala[1] while considering the provisions of section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same."
Sh. Manoj K. Singh, Ld. counsel in particular relied upon judgment of Anil Maheshwari Vs. CBI, 2013 (136) DRJ 249 that presumption u/S.20 of POC Act is not available for an offence u/S.13(1)
(d) of POC Act, 1988, in which it has been inter alia held as under :
"21. The definition of offence of criminal misconduct under Section 13(1)(d) of the PC Act shows that the pecuniary advantage or advantage of any valuable thing to himself or to the other person should be coupled by either corrupt or illegal means or abusing the position as a public servant or without any public interest. It may be noted that it is the duty of a public servant to pass orders like award of tender, claim etc. Thus, merely causing pecuniary advantage to someone will not hold the public servant liable for criminal misconduct under Section 13(1)(d) of the PC Act, as by awarding a tender or claim the pecuniary advantage is bound to follow. The prosecution is bound to prove that the pecuniary advantage or the valuable CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 65 of 118 thing to that person was obtained either by corrupt or illegal means or by abusing the position or without any public interest. It may be further noted that the presumption under Section 20 PC Act is not available for an offence of criminal misconduct under Section 13(1)(d) PC Act. In absence of proof by the prosecution of corrupt or illegal means, abuse of position or without any public interest, the prosecution cannot be said to have proved the offence under Section 13(1)(d) PC Act punishable under Section 13(2) PC Act. In the present case the prosecution has failed to either prove that corrupt or illegal means were used by Appellants Vinod Kumar Bhutani or Rajesh Kohli or they abused their position or that the claim was passed without any public interest. Hence neither substantive offence under Section 13(1)(d) read with 13(2) PC Act nor the conspiracy thereof can be said to have been proved against the Appellants."
In respect of conspiracy, Ld. counsel submitted that law of conspiracy is very well settled. The prosecution is required to prove incriminating circumstances beyond reasonable doubt, which forms a complete chain of circumstances so as to prove the guilt of the accused persons. Ld. counsel submitted that the prosecution cannot ask the court to presume the things and the offence of conspiracy also cannot be held to have been proved merely on the basis of presumption. In this regard, Ld. counsel relied upon Anil Maheshwari's case (supra), in which it has been inter alia held as under :
"37. Thus, each incriminating circumstance has to be proved beyond reasonable doubt and thereafter the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In Firoizuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 66 of 118 596 relied by learned counsel for CBI, reliance was placed on Regina Vs. Murphy (173 Eng. Reports 508). J. Coleridge while summing up for the jury summed up the law of conspiracy but added a word of caution. It was laid down that to draw an inference of conspiracy, the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent errors and incidents should not enter the judicial verdict. On the basis of aforesaid discussion it is clearly evident that the prosecution has failed to prove the substantive charges and charges with the aid of Section 120B IPC against the Appellants. Hence they are acquitted of the charges framed. The Appellants, who are in custody, be released forthwith if not wanted in any other case. Appeals are disposed of accordingly. Consequently, the bail applications have become infructuous and are disposed of as such."
It has been reemphasized by Ld. Counsel that for misconduct as defined u/S.13(1)(d) of POC Act, the presumption u/S.20 POC Act is not applicable and in view of the judgment of Apex Court in CK Jaffer's case (supra), the mensrea is an essential ingredient to be proved for the offence of misconduct. In respect of the facts of the present case, regarding grant of sanction, which is a substratum of the case of the prosecution, Ld. counsel relied read out the entire testimony of PW3 KC Aggarwal. Ld. counsel submitted that PW3 KC Aggarwal has been examined by the prosecution so as to prove the procedure for the grant of NOC by the competent authority as well as in respect of nuances of ULCRA. It has been submitted that PW3 KC Aggarwal is not a reliable CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 67 of 118 witness at all. He has acted just contrary to what he has deposed before the court. Ld. Counsel also read out the order passed by PW3 KC Aggarwal and proved the same Ex.PW3/DA and Ex.PW3/DB to assail his testimony. Ld. counsel submitted that in view of the contradictory statement made by PW3, he is certainly an unreliable witness. It has been submitted that A3 Vinod Mittal and A4 Manoj Mittal had moved applications u/S.6(1) of ULCRA before the competent authority, before A1 SS Rathore joined the office. It has been submitted that it has also come in the testimony of PW3 KC Aggarwal that he had handed over the charge to A1 SS Rathore and therefore, PW3 KC Aggarwal was the predecessor to A1 SS Rathore. It has been submitted that therefore, it can be inferred that the applications were moved during the tenure of PW3.
Sh. Manoj K. Singh, Ld. counsel further in his argument has demolished the evidence of PW3 KC Aggarwal. It has been submitted that the orders passed by him Ex.PW3/DA and Ex.PW3/DB apparently reveals that he himself has not followed what he has deposed in his evidence against the accused persons. Ld. counsel submitted that this witness has been produced by the prosecution as a witness expert on ULCRA and on the procedure and his own orders Ex.PW3/DA and Ex.PW3/DB rather supports the case of the defence more than the prosecution. It has further been submitted that this witness is not at all reliable. He himself had been facing an inquiry under disproportionate assets case and therefore, had no alternative but to depose as per the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 68 of 118 dictate of the prosecution. In regard of the trustworthiness of PW3 KC Aggarwal, Ld. counsel relied upon Zwinglee Ariel Vs. State of Madhya Pradesh, AIR 1954 SC 15, Lallu Manjhi and Anr. Vs. State of Jharkhand, AIR 2003 SC 854 and Ashok Narang Vs. State, 2012 II AD (Delhi) 481. Ld. counsel submitted that testimony of PW3 as a whole is not reliable and is liable to be rejected as unworthy of credit. It has also been emphasized that PW3 in his testimony has taken a somersault and therefore, his testimony is unreliable and untrustworthy. Ld. counsel submitted that substratum of the case of the prosecution is that the accused persons entered into conspiracy and in pursuance to that conspiracy the private persons procured NOC under ULCRA and in pursuance to that conspiracy by way of misrepresentation and suppression of facts, got a valuable document in the form of NOC and thus, committed the offence of cheating as well as the offence of misconduct u/S.13(1)(d) of POC Act, 1988. Ld. counsel submitted that infact the bare perusal of the ULCRA would reveal that NOC was not at all required and it was a wrong legal advice to A2 DD Mittal (since died), A3 Vinod Mittal and A4 Manoj Mittal that they filed the application u/S.6(1) of ULCRA. In support of this contention, Ld. counsel relied upon West Bengal Properties Ltd. & Anr. Vs. State of West Bengal & Ors. AIR 1994 Cal 82 to bring home the point that NOC was not required at all.
"It must be borne in mind that mere raising a construction on any land has nothing to do with the ownership of the land and CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 69 of 118 that by making construction one does not become the owner of the land in question. If a land is excess of the ceiling limit under the Urban Land (Ceiling and Regulation) Act, 1976 in that event the same vests to the State from encumbrances and that at any point of time if it conies to the notice of the authorities concerned that any land was in excess of the ceiling limit, the same shall stand vested to the State and a party cannot claim any right over the same. The Urban Land (Ceiling and Regulation) Act, 1976 did not contemplate any restriction and/or condition for the purpose of making construction on any vacant land if the vacant land was beyond the ceiling limit, in that event by making more construction nothing wrong is done. Section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 provides that no person holding a vacant land in excess of the ceiling limit shall transfer in excess limit and if such transfer is made, the same would be deemed to be null and void. Whether or not land is covered under the Land Ceiling Act or whether it was within the ceiling limit or not are matters for the Urban Land Ceiling Authorities and not for the Municipal Authorities. For obtaining the plan and making a construction does not and cannot change the nature of the right, title and interest in the land in question. If it is in excess of the Ceiling limit, even if construction is made on such land, the same should stand vested to the State. The Municipal authorities are only concerned with the planning of the cities and to see that no construction is made save in accordance with the sanctioned plan and after complying with the conditions and restrictions imposed under the municipal laws. It had no jurisdiction to adjudicate on the question of ownership of the land in question. The Municipal authorities are concerned with the prima facie title of the applicant in such land. The sanctioning of plan did not and could not create any right, title and interest in the land in question if it is not otherwise there and as such it is beyond the scope of the powers of the municipal authorities under the Act and lay down any procedure travelling the scope and ambit of the Act which had no nexus with the object sought to be achieved by sanctioning of such plan under the law."CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 70 of 118
Ld. Counsel also read the statement of prosecution witnesses to buttress his point that none of the provision of ULCRA provides any NOC to be granted . It has been submitted that it was a misinterpretation of ULCRA and MCD also under the wrong notion had been asking the applicants to apply for NOC before the competent authority of ULCRA.
Ld. counsel submitted that as he has argued earlier that since there was no mensrea on the part of the accused persons, the offence of misconduct u/S.13(1)(d) of POC Act is not made out. It has further been submitted that there is also no material on the record which could lead to the conclusion that there is any conspiracy amongst the accused persons. On the similar lines, Ld. counsel submitted that offence of cheating is also not made out against the accused persons. In order to attribute the offence of cheating, dishonest intention has to be there since inception of the offence. In the present case, applications u/S.6(1) of ULCRA were moved by the private persons even before A1 SS Rathore came to occupied the post. Ld. counsel invited the attention of the court to the cross examination of PW3 KC Aggarwal, wherein he admitted that he had handed over the charge to A1 SS Rathore in August 1995 and the record shows that the applications were moved in the present case in July 1995. It has been submitted that since NOC were not at all required in the present case, therefore, by no stretch of imagination it can be held as valuable security. Ld. counsel submitted that there was a wrong CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 71 of 118 perception that they were asking for NOC which was not at all required under the provisions of law. Ld. counsel also submitted that dishonest inducement, suppression and conspiracy cannot coexist with the same person in the one act.
In respect of the allegation that the accused persons were holding excess land or land in addition to the land in question and since this was not disclosed before the competent authority, they apparently had committed the offence of cheating. In this regard, Ld. counsel submitted that the bare perusal of Ex.PW47/J1 to J12 indicates that these sale deeds were registered in the year 1996. Ld. counsel submitted that title of immovable properties is not transferred till the sale deeds are registered. Ld. counsel referred to S.54 of the Transfer of the Property Act as well as relied upon judgments in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr., AIR 2012 SC 206 and A. Manicka Mudaliar Vs. Murugesa Mudaliara and Tiruchengode Weavers Cooperative Production and Sales Sangam, (2012) 2 LW 28.
In A. Manicka Mudaliar's case (supra) it has been inter alia held as under :
"13. In these appeals, it is admitted that the suit land property was alloted to the appellant by the Sangam and both the Courts concurrently held that the appellant entered into two agreements of sale Exs.B4 and 5 and also executed an unregistered document Ex.B6 in favour of the 1st respondent. Even though, an unregistered sale deed was executed by the appellant in favour of the 1st respondent and the appellant alleged to have received the entire sale consideration, the title to the suit property will not CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 72 of 118 pass until the sale deed is registered and in this case, admittedly, Ex.B6 is not a registered document and it is an unregistered sale deed.
14.As per the provision of Transfer of Property Act and also the provisions of Registration Act, title passes only after registration and in the absence of registration, the 1st respondent cannot claim title over the suit property and without appreciating the basic principles, both the Courts erred in holding that the 1st respondent became the owner of the property after the execution Ex.B6, as he has paid the entire sale consideration.
15.Further, under section 49 of the Registration Act, the 1st respondent cannot claim any title over the property through Ex.B6 as the same was not registered and he can make use of section 49 of the Registration Act only for the purpose of proving his possession and that can be used to protect his possession as per section 53A of the Transfer of Property Act. Further, being an unregistered sale deed, the recitals regarding payment of consideration cannot be looked into."
Ld. Counsel further argued and read out the order of Hon'ble LG dated 22.09.98, Ex.PW20/C again to bring home the point that there was no allegation at any point of time that there was any element of conspiracy or criminality against the accused persons. It has been submitted that Hon'ble LG was pleased to set aside the order of A1 SS Rathore dated 01.11.95 merely on the basis that there was nothing on the record to suggest that the companies, who had filed the applications u/S. 6(1) of ULCRA, were duly registered under the Companies Act. Hon'ble LG was further pleased to held that competent authority should have traced back Ram Piari and Kanwal Singh who had not filed the return u/S.5(3) and 6(1) of ULCRA and apparently they were holding excess CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 73 of 118 land in violation of ULCRA and this land was likely to be resumed with the State. Therefore, the order of A1 SS Rathore was set aside. Ld. counsel further invited the attention of the court towards the testimony of PW14 SR Sapra who has proved on record the order dated 25.07.91, Ex.PW14/E wherein it was held that DDA and L&DO failed to prove any record to show that the land in question belonged to them. Ld. Counsel further invited the attention of the court towards the testimony of PW5 Prem Singh Sehrawat and read out the cross examination of this witness to show that mutation were duly effected in the name of 17 buyers from whom the present accused persons had bought the land in question and sale deeds were duly executed under the provisions of law.
Ld. counsel also read out the testimony of PW20 Mahesh Kumar to show that he also admitted that there is no provision for the grant of NOC under ULCRA. Ld. counsel submitted that in fact his client himself is a victim and has already filed civil suit against the seller of 1995 sale deed and therefore, he himself has been cheated and is victim of entire transaction. It has been submitted that the prosecution has miserably failed to prove its case against accused Vinod Mittal.
Sh. Manoj K. Singh, Ld. Counsel submitted that Hon'ble High Court of Delhi in S. Ram Yadav Vs. CBI & Ors., 2013 (137) DRJ 131 while entertaining the petition against framing of charge by the Ld. Trial Court inter alia held that an error committed by an official, howsoever negligent cannot be termed as criminal misconduct on all CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 74 of 118 accused. Reliance has been placed upon para 10 of the judgment which reads as under:
"10.The allegations against the Petitioner are that the Petitioner has failed to see that the property was mortgaged with UPSIDC, the area in question was less which could also be verified from the sale deed. No doubt the Petitioner has committed an error in not noticing the difference in the area, however negligence cannot amount to criminal misconduct in all cases. The Petitioner has suggested safeguards which were not adhered to by the bank. Further the bank gave the credit facilities even before the legal search report was submitted by the Petitioner. Thus, it cannot be said that the bank acted on the report of the Petitioner herein. It is also contended that the Petitioner failed to visit UPSIDC to find out whether property was mortgaged or not. It may be noted that the documents of the property were accompanied by a valuer report and nonexamination of the records of the UPSIDC cannot lead to irresistible conclusion that the Petitioner acted in connivance with the other coaccused."
In respect of the allegation of the prosecution regarding other property owned by A3 Vinod Mittal, Ld. counsel has submitted that as far as property bearing No. 8(3), Under Hill Road, Civil Lines, the sale deed of which has been proved as Ex.PW47/J1 to J12, it has come on record that these sale deeds were registered on 26/11/96 and therefore, the title of the same was not with A3 Vinod Mittal on the date on which application u/S 6(1) of theULCRA was moved.
In respect of other property at 4C, Flag Staff, Civil Line, Delhi, Ld. Counsel has relied upon the testimony of PW36. PW36 himself has admitted in his testimony regarding this property also that sale deed was not executed and only general power of attorney (GPA) and other documents were executed. Ld. counsel submitted that therefore, it CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 75 of 118 cannot be taken that A3 Vinod Mittal had any property other than the property in question. Sh. Manoj K. Singh, Ld. counsel submitted that PW3 Sh. KC Aggarwal has made false and frivolous statement and for which the Court may proceed against him as per law. In respect of the earlier sanction granted u/S 19 to St. Jesus Education Society, Ld. counsel submitted that Sec. 19(iv) provides that if exemption has been granted u/S 19 ULCRA such NOC cannot be used for any purpose other than for the purpose for which exemption has been granted. It has been submitted that in the present case, since the primary school was not constructed thereofre, the accused persons had rightly moved an application u/S 6(1) under the ULCRA. Sh. Manoj K. Singh, Ld. counsel concluded his arguments by reading out the order of the Hon'ble High Court dtd. 21.2.2000 Girdhari Lal Tiwari Vs. Union of India, Crl. Writ Petition No. 3830/96 on the basis of which CBI had registered the present case. In para 28 of this judgment, the Hon'ble High Court was pleased to order as under:
"We also feel that this is an appropriate case where the Central Bureau of Investigation should be directed to make an enquiry with regard to the entire transactions including the forgery and fabrication of documents which are proved and established. The CBI shall make investigation and those who are found responsible for such manipulations and misdeeds of tampering, falsifying and interpolation of official record, shall be proceeded with in accordance with law. In terms of the aforesaid directions and observations both the writ petitions stand allowed to the aforesaid extent."
Ld. counsel submitted that order of the Hon'ble High Court CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 76 of 118 was only to investigate the forgery, fabrication of misdeeds and interpolations of official record. It has been submitted that there was no direction for investigation against the accused persons. Therefore, it has been submitted that CBI has acted beyond its roof. In this regard, reliance has been placed upon Ms. Mayawati Vs. Union of India & Ors., 2012 (8) SCC 106.
5.3 Ms. Rebecca M. John, Ld. Sr. Counsel assisted by Sh. Vishal Gosain, Ld. counsel for A4 Manoj Mittal has argued vehemently that prosecution has miserably failed to prove its case against the accused persons. Ld. Senior Counsel submitted that the CBI has acted in a partial manner, the investigation has been conducted unfairly and actual culprits who bought the land in 1989 and got the land mutated in their name on the basis of 1943 sale deed have been let off by the CBI for the reasons best known to them. Ld. Senior Counsel submitted that the defence has been able to bring on record the material to show that the forged sale deed dtd. 31/5/43 and the resolution were in existence much before A4 Manoj Mittal came into picture and infact, the 17 buyers of 1989 led by Sh. Sarabhjit Sharma had moved an application for mutation on the basis of such sale deed and this fact has been admitted by PW47 Inspt. Surender Malik in the cross examination. However, Ld. Sr. Counsel was hesitant to add that at this stage, that Sec. 319 Cr. PC may not be invoked as it would seriously prejudice her client as they have already CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 77 of 118 opened their defence and it would not be in the interest of justice to proceed against them at this stage. However, a serious indictment be made against the prosecuting agency as well as the persons who have been let off. Ms. Rebecaa John, Ld. Senior Counsel submitted that the pivot of the charge against the accused persons revolves around the order dtd. 1/11/95 passed by A1 SS Rathore which as been termed as NOC under ULCRA and that order has been assailed primarily on the ground that A1 failed to lift the corporate veil and he also did not take into account the fraud committed. Ld. Senior Counsel submitted that the charge framed by this Court particularly under the third head is defective and flawed. It has been submitted that there is a dictomy in the charge as A1 SS Rathore has been misrepresented by A3 Vinod Mittal and A4 Manoj Mittal, but the reverse of that cannot be true. Ld. Senior Counsel primarily flagged the issues that firstly whether A4 Manoj Mittal was in possession of the land beyond 500 Sqm; secondly, whether the title of the land purchased in 1995 was fraud and thirdly, whether the accused persons entered into conspiracy to obtain any wrongful gain or cause any wrongful loss to anyone. Ms. Rebecaa John, Ld. Senior Counsel invited the attention of the Court towards the testimony of PW3 Sh. KC Aggarwal. It was further submitted that this witness is not at all reliable. He made a contradictory statement and actually not followed himself what he has been stating in his own testimony. It was pointed out that prosecution proved on record the orders passed by PW3 Sh. KC Aggarwal Ex.PW3/DA and DB CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 78 of 118 wherein it is apparent that he also issued the NOC on the affidavits filed by a single person and did not lift the so called "corporate veil". Ld. Senior counsel read out the cross examination conducted of this witness to reemphasize the point that ULCRA itself provides the remedy for the law and order passed under the Act. The witness admitted that u/S 38 of ULCRA punitive measures have been made and offences of the companies have been laid down u/S 39 of the Act. Ld. Senior Counsel further submitted that going by the testimony of PW3 itself makes it clear that as per application u/S 6(1) ULCRA filed by the accused persons, none of the applicant company was holding 500sqm of land. Ld. Senior Counsel invited the attention of the Court to the cross examination of PW3 wherein he has admitted that he has not brought any rule, guideline, notification which specifies that under ULCRA companies having common directors and common registered offices ought to be considered as a single unit nor the witness could state that there exists any such rule, guideline, notification which specifies that under ULCRA companies having common directors and common registered offices ought to be considered as a single unit. Ld. Senior Counsel also invited the attention of the Court to the cross examination conducted by Sh. Manoj K. Singh, Ld. Adv. for A3 Vinod Mittal, wherein, the witness admitted that under ULCRA there is no specific provision which defines the term 'corporate veil'. In this regard, Ld. Senior counsel placed reliance R.Sai Bharti Vs. J. Jayalalitha & Ors., 2004 (2) SCC 9 and placed particular reliance CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 79 of 118 upon para 49 and 50 to emphasize that if there is any violation of any departmental rule/guidelines not having statutory force cannot come within the purview of definition of misconduct. Ld. Senior Counsel submitted that as per Sec. 2(i) of the ULCRA which defines "person", it is clear that under the definition of 'person' it includes an individual as well as a company or an association or body of individuals, whether incorporated or not. It was submitted that therefore, the companies in the present case very well fall within the definition of a 'person' and they in their right had applied for NOC and submitted the application u/S 6(1) ULCRA. It is submitted that prosecution has not proved that such companies were not distinct entity. The onus was on the prosecution. Merely, saying that the companies were only sham and infact the private persons were the owners of the land cannot be accepted, unless and until proved by the prosecution in accordance with the law. Ld. Senior counsel submitted that no evidence has been led regarding the corporate veil or the lifting of it or to show that these companies were the sham companies. The concept "corporate veil" do not find mention in the ULCRA and therefore, the prosecution merely has drawn this fancy work and kept the accused persons and the Court guessing without getting any admissible evidence regarding this. Ld. Senior Counsel submitted that PW3 in his testimony stated that A1 should have seen the income tax returns to ascertain that whether actually the companies in question were distinct entity or were the sham. However, it is submitted that there is no CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 80 of 118 requirement of filing ITR and this has duly been admitted by PW3 during his cross examination. Ld. Senior Counsel placed reliance upon CK Jaffer Sharief Vs. State, 2013 CRLJ 1341.
In regard to the sale deed dtd. 31/5/43 having come into existence before A4 Manoj Mittal came into existence, Ld. Senior Counsel relied upon the testimony of PW5, PW14, PW22 and PW47. Ld. Senior Counsel submitted that the bare perusal of the testimony of these witnesses would make it clear that the flawed sale deeds of 31/5/43 were in existence much before A4 Manoj Mittal having came into the picture in the present case. Ld. Senior Counsel submitted that A4 Manoj Mittal was not authorized signatory of M/s Chavan Rishi Apartments and this has duly been admitted by PW16 Sh.BP Sharma and PW47 Inspt. Surender Malik in the cross examination, nor the prosecution has brought any material on the record that A4 had taken any part in the submissions of the application u/S 6(1) ULCRA. Ld. Senior Counsel submitted that the prosecution has not proved by way of positive evidence that the applications were either submitted by A4 or the affidavits duly signed by him were filed before the competent authority. The CBI for the reasons best known to them did not take the specimen signatures of A4 nor sent the same to CFSL for comparison. Ld. Senior Counsel submitted that merely because the affidavits allegedly filed by A4 before the competent authority has been exhibited does not mean that the same has been proved in accordance with the law. In respect of this proposition, Ld. Counsel has CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 81 of 118 particularly placed reliance upon Sudir Engineering Company Vs. Nitco Roadways Ltd., 1995 (34 DRJ, wherein it was inter alia held as under:
"14. When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box, it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.
15. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of number is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence ofp utting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which depsoing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.
16. This makes the position of law clear. Any practise contrary to the abovesaid statement of law has no sanctity and cannot be permitted to prevail."
Ms. Rebecca M. John, Ld. Sr. Counsel reemphasized that the prosecution cannot be said to have discharged the onus merely by exhibiting the documents and these documents cannot be read unless and until proved in accordance with the law. Taking further the arguments, CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 82 of 118 Ld. Sr. Counsel submitted that it seems that CBI was not interested in the prosecution of the case since beginning as even they did not make the companies in the present case, accused. Even as per the case of the prosecution the private person signing the documents and submitting the documents on behalf of the companies. However, surprisingly, the companies do not find mention in the chargesheet filed by the CBI. Ld. Sr. counsel also submitted that concept of vicarious liability cannot be fastened and in this regard has placed reliance upon R.Kalyani Vs. Janak C. Mehta & Ors., (2009) 1 SCC 516, which is reproduced herein below :
"29. The allegations contained in the first information report, therefore, do not disclose an offence against Respondents 1 and 2. They have in their individual capacity been charged for commission of offences of cheating, criminal breach of trust and forgery. As there has never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Penal Code, did not and could not arise.
32. Allegations contained in the FIR are for commission of offences under a general statute. A vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. A legal fiction must be confined to the object and purport for which it has been created.
41. If a person, thus, has to be proceeded with as being vicariously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company."CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 83 of 118
In respect of this Ld. Sr. counsel has also placed reliance upon State through CBI vs. Sikander Lal Jain & Ors., Crl. Appeal No. 334 of 1980 dtd. 14.08.2008 wherein it was inter alia held as under:
"11. This Court first takes up the case against respondents 2 and 3. The learned Senior counsel for the respondents is right in the contention that no specific role has been attributed to either of them to connect them with the offences in question. They appear to have been roped in because they happened to be the partners of Jain Finance Company which financed the purchases of the chassis. However, the said firm has itself not been arraigned as an accused. In Maksud Saiyed v. State of Gujarat 2007 (1) SCALE 318 the Supreme Court was considering the question whether a vicarious liability could attach to the director of a company, where the company is a principal accused. Holding that the concept of vicarious liability of directors is alien to the IPC, the Supreme Court explained that in the absence of specific allegations against the directors individually, they could not be prosecuted for an IPC offence. This would equally apply in the present case where in the absence of the firm being made an accused, its individual partners cannot be charged with IPC offences. There is no evidence to show that respondents 2 and 3 were themselves individually involved in the commission of the offences or the offence of conspiracy. The prosecution has attributed all the substantive acts to accused No.1 Sikander Lal Jain. Therefore, the conclusion of the learned ASJ in the impugned order acquitting respondents 2 and 3 cannot be faulted with. No case is therefore made out for interfering with the acquittal of the respondents No.2 and 3."
Ld. Senior Counsel also placed reliance upon Keki Hormusji Gharda & Ors. Vs. Mehervan Rustom Irani & Anr., (2009) 6 SCC 475, wherein it was held as under:
"17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 84 of 118 vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director of the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company."
Ld. Sr. Counsel has also relied upon SK Alagh Vs. State of Uttar Pradesh & Ors., (2008) 5 SCC 662, wherein it was inter alia held as under:
"20. We may, in this regard, notice that the provisions of the Essential Commodities Act, the Negotiable Instruments Act, the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, etc. have created such vicarious liability. It is interesting to note that Section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the Explanations appended to Section 405 of the Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company alongwith the company but even in a case falling under Section 406 of the Penal Code vicarious liability has been held to be not extendable to the Directors of officers of the company. (See Maksud Saiyed V. State of Gujarat, (2008) 5 SCC 668)."
Ms. Rebecca M. John, Ld. Sr. Counsel submitted that the prosecution has also attributed the criminality of the accused persons on the ground that they have falsely represented before the authorities that the land was agricultural land whereas it was residential land and fell CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 85 of 118 within the urban agglomeration. In respect of the nature of the land prosecution itself examined PW16 Sh. BP Sharma and PW34 Sh. Vishnu Swaroop Sharma. Ld. Sr. Counsel submitted that the bare reading of the testimony of both the witnesses prove that as far as the issue regarding the nature of land that has undergone the scrutiny of the various authorities and after having examined all the issues regarding this, the standing committee sanctioned the plan for construction of the group housing society. It was submitted that in a specific answer to the court question PW16 has replied that group housing society can be constructed even on an agricultural land after permission of change of land use. In respect to the false averments made in the application u/S.6(1) of the ULCRA regarding pendency of the litigation, Ld. Sr. Counsel submitted that the prosecution has not proved any such agreement wherein the fact regarding pending of litigation was conveyed to A3 Vinod Mittal. Ld. Sr. Counsel submitted that this Court cannot go beyond the evidence on record and things cannot be presumed or to be presumed only because the same has been mentioned in the chargesheet. Ld. Sr. Counsel submitted that infact the 1995 buyers were the bonafide purchasers and they purchased the land after going through all the formalities, all the necessary permissions and NOC have been granted by the Revenue Authorities. In this regard, Ld. Senior Counsel relied upon the cross examination of PW40 wherein he admitted that after NOC granted in Delhi Land Reforms (Restriction on Transfer) Act, there was no legal impediment in the transfer of the land. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 86 of 118 Ld. Sr. Counsel also relied upon the cross examination of PW47 in this regard. The very basis of prosecution initiated against the accused persons in this case is wrong as the ULCRA provides the complete remedy/punishment for the offence committed regarding the violation of the Act. It has been submitted that the plea of the prosecution that the prosecution can continue as the offence was committed while the ULCRA was in existence cannot stand in view of Sec. 4 of the ULCRA Repeal Act, 1999. Sec. 4 of the Act specifically provides about abatement of legal proceedings which reads as under:
"4. Abatement of legal proceedings: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority."
In regard to Sec. 120B, Ld. Senior Counsel submitted that the prosecution has miserably failed to prove the charge of conspiracy against her client. It has been submitted that this is a case where there is no evidence in respect of the conspiracy having been adduced by the prosecution. It has been submitted that to fasten the charge of conspiracy there has to be legally admissible evidence on record and it cannot be fastened on conjectures and surmises. In this respect, Ld. Senior Counsel CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 87 of 118 relied upon the observation made by Hon'ble Supreme Court in Subramainan Swamy Vs. A. Raja, (2012) 9 SCC 257 in para 63, which is as under:
"63. Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting between Shri P. Chidambaram and Shri A. Raja would not by itself be sufficient to infer the existence of a criminal conspiracy so as to indict Shri P. Chidambaram. Petitioners submit that had the Minister of Finance and the Prime Minister intervened, this situation could have been avoided, might be or might not be. A wrong judgment or an inaccurate or incorrect approach or poor management by itself, even after due deliberations between Ministers or even with Prime Minister, by itself cannot be said to be a product of criminal conspiracy."
Ld. Senior Counsel has placed reliance upon State of Kerala Vs. P. Sugathan & Anr., (2000) 8 SCC 203, wherein it has been inter alia held as under:
12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. This Court in V.C. Shukla v. State [1980(2) SCC 665] held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 88 of 118 case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
13. In Kehar Singh vs. State [AIR 1988 SC 1883] it was noticed that Section 120A and Section 120B IPC have brought the Law of Conspiracy in India in line with English Law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In case where criminal conspiracy is alleged, the court must enquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not to be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120B of the Indian Penal Code."
Ld. Sr. Counsel also relied upon CBI Vs. K. Narayana Rao, (2012) 9 SCC 512, wherein it has been held as under:
"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 89 of 118 illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation in other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmised or inference which are not supported by cogent and acceptable evidence."
Reliance has also been placed upon PK Narayanan Vs. State of Kerala, (1995) 1 SCC 142, wherein it has been held as under:
"9. It is pertinent to note that the accused were also charged under Section 120B read with Section 201 alleging that in pursuance of the criminal conspiracy the accused tampered with the evidence of murder after the occurrence to screen the offenders and that a false information was given to the police. Both the courts below have held that there is no material whatsoever to establish the same. It can thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the few above mentioned circumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct of A1 in not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence."
In respect of Sec. 420 IPC, Ld. Senior Counsel submitted that the prosecution has also miserably failed to prove the offence of CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 90 of 118 cheating against the accused persons. It has been submitted that prosecution has not led even an iota of evidence on record to prove that order dtd. 1/11/95 suffers from any legal infirmity or there was any element of cheating in it and in case, it being set aside by Hon'ble LG, nothing left to proceed further. Ld. Sr. Counsel submitted that to attract Sec. 420 IPC, the prosecution is bound to prove that :
1) Inducement.
2) Delivery of Property.
There is nothing on record to suggest that her client had induced A1 SS Rathore in any manner or there has been any delivery of articles/property in any case. The order dtd. 1/11/95 was merely a declaration by A1 and merely issuance of such NOC did not give any valuable security in the hands of her client. In support of her contention, Ld. Senior Counsel relied upon Devendra & Ors. Vs. State of Uttar Pradesh & Anr., (2009) 7 SCC 495, wherein it was held as under:
"14. It was, however, submitted that by reason of execution of a deed of sale claiming title over the property to which the appellants were not entitled to, the respondent complainant had been cheated. It is difficult to accept the said contention. Appellants had not made any representation to the respondent No. 2. No contract and/ or transaction had been entered into by and between the complainant and the appellants.
16. In V.Y. Jose v. State of Gujarat and Anr. [(2009) 3 SCC 78], this Court opined:
"14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 91 of 118
i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out."
It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract."
In respect of the contention of prosecution that A4 Manoj Mittal had other properties besides, the property in question. Ld. Senior Counsel submitted that the best case of the prosecution that A4 Manoj Mittal was only a tenant in this property though no tenancy agreement has been proved on the record. Ld. Senior counsel submitted that in view of the same, her client is liable to be acquitted.
5.4 In rebuttal, Sh. S. Krishna Kumar, Ld. PP submitted that as far as the plea taken by Ld. counsel for A4 Manoj Mittal that signatures of Manoj Mittal has not been proved, is concerned, the same is CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 92 of 118 without any basis in view of section 3 and 114 of Indian Evidence Act. It has been submitted that PW3 KC Aggarwal during his testimony has duly proved the affidavit filed by Manoj Mittal and Ld. Defence counsel had not cross examined the witness that these affidavits do not bear the signatures of Manoj Mittal. Ld. counsel submitted that even this plea has not been taken at the stage of charge and therefore, this plea taken by the accused is an afterthought and without any basis.
In respect of repeal of ULCRA, Ld. PP relied upon provisions of Indian Evidence Act including Section 3, 5, 7 and 8 of the Indian Evidence Act. Ld. PP submitted that in the present case prominently, the facts and issues are :
1) Whether A1 SS Rathore abused his official position with a view to favour accused Manoj Mittal and Vinod Mittal in the matter of issue of NOC dated 01.11.95 ;
2) Whether accused Manoj Mittal and Vinod Mittal conspired with each other to deceive the office of competent authority for issue of said NOC by misrepresenting that there were 20 different entities ;
and
3) whether A1 SS Rathore joined the conspiracy and aided in the said conspiracy by concealing material facts and by misrepresenting facts in the NOC dated 01.11.95.
Ld. PP submitted that other relevant facts to be proved by CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 93 of 118 defence are that the said property was actually purchased by Manoj Mittal and Vinod Mittal but the purchasers were shown to be 20 different entities. Similarly, the actual applicants for NOC were accused Vinod Mittal and accused Manoj Mittal but the applicants were shown to be 20 different entities. Ld. PP submitted that the motive was to cross over the provisions of ULCRA and these sham companies were made and false applications were made only in order to overtake the provisions of this Act. It has been submitted that the repeal of this Act and abatement of proceedings as provided under this Act would not mean that the said Act was not in operation during the said period.
As far as burden on prosecution to prove that the companies were sham and the real owners of the property were accused Vinod Mittal and Manoj Mittal, is concerned, Ld. PP submitted that prosecution has duly discharged this burden by proving 13 sale deeds executed on 05.04.95 by way of testimony of PW40 MN Sharma and the fact that after grant of NOC dated 01.11.95 by A1 SS Rathore, these 20 companies vanished from the scene. It has also been submitted that only A3 Vinod Mittal submitted the application dated 19.07.95 for sanction of layout plan before Town Planner and in this application he has not given any reference to any of these companies and the application before Building Department was submitted by accused Vinod Mittal on 25.01.1996. Ld. PP submitted that it has been established by the prosecution on the basis of sequence of events that the various companies with either accused CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 94 of 118 Vinod Mittal or accused Manoj Mittal, as Directors has been shown as purchasers of the land for the purpose of overcoming the ceiling limit of vacant land which could be held by a person at the relevant time. Ld. PP also placed reliance upon the testimony of PW37 Ramesh Kumar Goel in respect of the plea taken by the accused persons that none of the said companies impleaded as an accused and the concept of vicarious liability cannot be invoked against accused Manoj Mittal. Ld. PP submitted that infact A3 Vinod Mittal and A4 Manoj Mittal had purchased this land alongwith A2 DD Mittal (since expired) and it has only been shown to have been purchased by 20 different entities for overcoming the ceiling limit of ULCRA.
In respect of defective investigation as alleged by Ld. Defence counsels, Ld. PP submitted that it has been proved on record that in the sale deed Ex.PW9/A1 to A17 executed on 26.05.89 by Late Kanwal Singh and Ram Piari in favour of 17 different buyers, there was no reference of forged sale deed dated 20.05.1943. Ld. PP submitted that the same was misused to show mutation dated 25.07.89 in favour of 17 purchasers and Jamabandi register for the year 199091. Ld. PP submitted that in fact these documents also fall within the category of manipulated documents and it is not clear as to when and who manipulated these documents and therefore, present accused persons cannot be totally exonerated from these allegations. Ld. PP further submitted that when 08.07.91 an application was made to competent authority for NOC on CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 95 of 118 behalf of St. Jesus Education Society by Sh. Sarabjit Sharma, no reliance was placed on any such mutation and copy of khasra girdawari for the period 1989 to 1990 which shows land in the name of Notified Area Committee. Even in the sale deed dated 11.01.94 executed in favour of Somani's no reliance was placed on sale deed of 1943. However, Ld. PP very fairly admitted that in order dated 25.07.1991 passed by Sh. SR Sapra (PW14), Estate Officer in proceedings u/S.4 of Public Premises Act, 1971 against Smt. Ram Piari, one Ashok Kumar appeared on behalf of himself and 16 other buyers and filed the copy of sale deed dated 20.05.1943. Ld. PP sought to place reliance upon statement of PW12 Deepak Aggarwal recorded u/S.161 Cr.P.C. wherein he has stated that as per resolution register of NAC, it is resolved that the land measuring 17 bighas and 14 biswas be sold to Ratiram. However, Ld. PP fairly submitted that PW12 did not confirm this fact.
Ld. PP has also filed detailed submission in reply to the arguments by Sh. Manoj K. Singh, Ld. counsel for accused Vinod Mittal. It has been submitted that there is sufficient material on the record to conclude that the accused persons in conspiracy with each other and A1 SS Rathore committed the misconduct as well as the offence of cheating. 6.0 I have heard Sh. S. Krishna Kumar, Ld. PP for CBI, Ms. Rebecca M. John, Ld. Sr. Counsel assisted by Sh. Vishal Gosain, Advocate Sh. Riyaz Ahmed Bhat, Ld. counsel and Sh. Manoj K. Singh, CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 96 of 118 Ld. counsel assisted by Sh. Vishal Gera, Advocate, and have perused the record.
At the outset, I deem it my bounden duty to record the appreciation particularly for Sh. S. Krishna Kumar, Ld. PP for CBI who strenuously argued for the CBI and placed arguments with his heart and soul for the CBI. The appreciation for Ms. Rebecca M. John, Ld. Sr. Counsel and Sh. Manoj K. Singh assisted by the associates also goes beyond words. They have assisted this court in a very fair manner in respect of both, law and fact.
CONCLUSION 7.0 Proceedings in the present case were initiated on the basis of order of Hon'ble High Court in Civil Writ Petition No.3830/96 dated 21.08.2000. The operative para No.28 of the said order is reproduced as below :
"We also feel that this is an appropriate case where the Central Bureau of Investigation should be directed to make an enquiry with regard to the entire transactions including the forgery and fabrication of documents which are proved and established. The CBI shall make investigation and those who are found responsible for such manipulations and misdeeds of tampering, falsifying and interpolation of official record, shall be proceeded with in accordance with law. In terms of the aforesaid directions and observations both the writ petitions stand allowed to the aforesaid extent."
The bare perusal of this para would make it clear that CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 97 of 118 Hon'ble High Court had directed the CBI to conduct an enquiry with regard to the entire transaction including forgery and fabrication of documents which are proved and established. CBI was also directed by the Hon'ble High Court to make investigation and those, who are found responsible for such manipulation and misdeeds of tampering, falsifying and interpolation of official records. In pursuance to the directions of Hon'ble High Court, CBI registered a FIR No. RC DAI2001A0025 u/Ss 120B r/w 420, 467, 468, 471 IPC and Sec. 13(2) r/w 13(1)(d) of the POC Act, 1988, Ex.PW45/A on 01.03.2001. A formal complaint in this regard was also filed in this case by PW1 SC Sharma. Pursuant to the registration of FIR, CBI conducted a detailed investigation and after detailed investigation, CBI filed the chargesheet and only 4 persons were sent for trial and 25 persons were not sent for trial. The chargesheet running into 49 pages are the detailed narration of facts. The facts in the present case have undergone scrutiny many times including by the Hon'ble High Court during the course of writ petition No.3830/96. However, the court considers it appropriate to discuss some of the relevant points made by the prosecution in the chargesheet. The main allegation against the accused persons are contained in para 2 of page 40 of the chargesheet which reads as under :
"It is obvious from above that NOCs of it from competent authority was applied by furnishing aforesaid false information and concealing the true facts. Had it been informed that a court case was pending on the above land, the then competent authority (CA) would not have given the NOCs in respect of the above land. The information with regard to CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 98 of 118 exemption u/S.19(VII) was not furnished as the applicant society had not constructed the school. If this fact had come to the notice of the CA, that the land has not been used for the purpose for which exemption was granted, the exemption granted to the society would have been withdrawn as per provision of Section 20(2) of the Act as the exemption was given to the society and not to any person. The land would have been declared surplus to the ceiling limit. This land was surplus even otherwise if we consider Ram Piari and Kanwal Singh as owners of the land in the year 1976, when ULCR Act, 1976 came in force."
In respect of the nature of land, CBI in its chargesheet in para 2 at page 41 stated that the land is shown as agricultural land but actually this was not agricultural land as the same has been shown as gross residential in the Master Plan - 1962 and MPD - 2001. It has further been submitted that use of land as per Zonal Plan under Master Plan - 1962 was for primary school, whereas, all the applicants in their applications stated that the land use under the Master Plan 2001 is a residential land. CBI stated that this land was part of an urbanized area as per notification No.F.9(2)/66 - Law Corp. dated 28.05.1966 under section 507(A) of the DMC Act, 1947.
In respect of the criminality attributed to A1 SS Rathore, it has been submitted in para 3 of page 41 that "in view of the aforegoing Sh. SS Rathore, CA should have assessed the land from the commencement of ULCRA dated 17.02.76 as the land was not agricultural land and the khasra girdawari enclosed with the statement u/S.6(1) of DD Mittal, etc. showed that this land was not used for agriculture purpose also there was no record which shows that the seller CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 99 of 118 in the year 1989 had filed any statement u/S.6(1) of Sec. 15 of the Act. As per the provision of Sec.5(3) of the Act, Smt. Ram Piari and Kanwal Singh could not have sold their excess share of land in the year 1989 to the 17 purchasers." It was further alleged in the chargesheet that "A1 SS Rathore admitted the genuineness of these companies without any supported document of registration/incorporation. He issued a common order for all persons and companies on a common address and issued a single notice to M/s. Chavan Rishi Apartment. It shows that he had knowledge that these are members of the same family - though Section 2(1) ULCRA does not include a company within the definition of the person and provision of the companies Act also warrant each companies to be treated as a separate person, yet the basic objective of the act was to prevent concentration of Urban Property in the hands of a few persons and speculation and profiteering therein. It is defeated that when it had come to the knowledge of the CA that all companies are constructing a Group Housing Society for profiteering."
It is also advantageous to refer to para 2 of page 46 of the chargesheet wherein CBI has alleged that the mutation order dated 28.07.89 in the name of Rati Ram was passed without verifying the correctness of the sale deed dated 31.05.1943. Other than the mutation order dated 28.07.89 there was no evidence as to whether the copy of sale deed was presented by Kanwal Singh or any other person. CBI concluded that they have not been able to establish as to who had committed the said CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 100 of 118 forgery.
CBI gave clean chit to the 17 buyers and it was specifically mentioned in para 1 of page 47 of the chargesheet that there is no evidence that 17 buyers having knowledge about the forged sale deed of 1943 and they purchased the land from Smt. Ram Piari and Kanwal Singh through duly executed sale deed against consideration paid by each of the 17 buyers and therefore, they appear to be bonafide purchasers and cannot be held criminally liable.
CBI concluded that 13 different aforesaid companies which were represented by A2 DD Mittal (since expired), A3 Vinod Mittal and A4 Manoj Mittal to avoid the provisions of ULCRA filed their applications for grant of NOC before the competent authority. The applications filed u/S.6(1) and S.15 of ULCRA alongwith affidavits misrepresented that the said companies and individuals had only vacant land in question in India u/S.6(1) of ULCRA. The investigation concluded that the accused persons willfully and purposely with the object to deceive did not project that these companies had land other than the declared in the affidavit and in pursuance to the criminal conspiracy amongst themselves and others did not inform about the pendency of the matter "DDA Vs. Ram Piari" under PP Act against Ram Piari in the court of Ms. Urmila Rani, the then ADJ, which was fixed for 25.04.95. The investigating agency submitted that had these informations been furnished in proper prospective, the NOC could not have been granted. In CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 101 of 118 pursuance of the criminal conspiracy, A1 SS Rathore, Competent authority ULCRA, did not willfully and purposely by abusing official position call for the required additional information. 7.1 CBI filed the chargesheet u/S.120B r/w S.420 IPC and S. 13(2) r/w S.13(1)(d) of POC Act, 1988 against A1 SS Rathore, A2 DD Mittal (since expired), A3 Vinod Mittal and A4 Manoj Mittal and charges were framed against the accused persons u/S.120B IPC r/w Sec. 13(1)(d)
(iii) r/w 13(2) of the POC Act, 1988 and Sec. 420 IPC and charge u/S 13(1)(d)(iii) of the POC Act, 1988 against A1 SS Rathore and substantive offence u/S 420 IPC, vide detailed order dated 10.05.2013.
Thus, the prosecution was bound to prove that :
i) the accused persons were in conspiracy with each other ;
ii) in pursuance to the conspiracy, they committed cheating with the State by furnishing false information and misrepresentation before the competent authority and obtained NOC by fraudulent means;
and
iii) A1 SS Rathore committed misconduct by issuing NOC and abused his official position in pursuance to the criminal conspiracy. 7.2 The first and foremost thing to be proved for the prosecution is that whether the accused persons were in conspiracy with each other. In regard to the conspiracy, section 120A of the IPC defines criminal CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 102 of 118 conspiracy which reads as under :
"120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done,
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy ; Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
The elements of a criminal conspiracy have been stated to be:
a) an object to be accomplished ;
b) a plan or scheme embodying means to accomplish that object ;
c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means ; and
d) in the jurisdiction where the statute required an overt act.
The punishment of criminal conspiracy has been defined u/S. 120B IPC. In regard to the criminal conspiracy, Ld. Defence counsels have cited number of judgments. The law regarding criminal conspiracy is very well settled. In order to prove the conspiracy amongst the accused persons, the prosecution is bound to prove that there was meeting of mind amongst them. There has to be cogent and creditworthy evidence on record to prove that there was an agreement between the parties to do a CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 103 of 118 particular job. Mere association or relation is not enough to establish the same. It is correct that it is not possible to prove conspiracy by direct evidence. However, a few bits here and a few bits there on which prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. The prosecution is bound to show that all means adopted and illegal act done were in furtherance of the object of the conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy. Reliance can be placed on John Pandian Vs. State, JT 2010 (13) SC 284.
In the present case, the prosecution has not been able to bring any admissible, credible or cogent evidence on record that there was even a whisper of conspiracy between A1 SS Rathore on one hand and A3 Vinod Mittal and A4 Manoj Mittal, on the other hand. Merely because A1 SS Rathore took over as the competent authority after the transfer of PW3 and passed the order dated 01.11.95, would not mean that he was in conspiracy with A3 Vinod Mittal and A4 Manoj Mittal. The order of competent authority may be illegal per se or might have been passed without following due procedure of law, but that would not make him guilty for the offence of conspiracy with the accused persons. I do not find any material on record to attribute conspiracy amongst A1 SS Rathore, A3 Vinod Mittal and A4 Manoj Mittal.
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 104 of 118
In the similar fashion, the conspiracy can not be presumed between A3 Vinod Mittal and A4 Manoj Mittal merely because they happen to be brothers and doing the business together. Many business are held in partnership or in the form of companies where number of persons get together and do the business. The act of doing such business would not per se mean that they are in conspiracy with each other. However, if their association results into any illegal action or commission of illegal things, it may subsequently lead to an inference that there is conspiracy, but for that there has to be some material on record that they had agreed to do or cause to do an illegal act or an act which is not illegal but by illegal means. Therefore, it has to be seen that whether A3 Vinod Mittal and A4 Manoj Mittal had committed an illegal act or had agreed to do an act which was not illegal but by illegal means. In order to find out these, it has to be seen whether the act and conduct of A3 Vinod Mittal and A4 Manoj Mittal attract the ingredients of section 120B IPC or S.420 IPC or the offence u/S.13(1)(d) of the POC Act. Before coming to the role of A3 and A4, I consider that it would be advantageous to look into the offence of misconduct which is primarily against A1 SS Rathore. 7.3 The offence of misconduct has been defined u/S.13(1)(d) of POC Act, which reads as under :
"13. Criminal misconduct by a public servant: (1) A CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 105 of 118 public servant is said to commit the offence of criminal misconduct,
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ."
The necessary ingredients of Section 13(1)(d) are as follows :
1) accused was a public servant;
2) accused used corrupt or illegal means or otherwise abused his position; and,
3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage.
The allegation against A1 SS Rathore is that, he passed an illegal order violating the provisions of ULCRA and thus, committed an offence of cheating as well as abused his official position in order to cause advantage to A3 and A4. The charge against accused persons were framed u/S.13(1)(d)(iii) of POC Act, 1988. Thus, the prosecution was required to prove that A1 SS Rathore while holding office as a public CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 106 of 118 servant obtained any valuable thing or pecuniary advantage for A3 and A4 without any public interest. The question herein would be that whether A3 and A4 obtained any valuable thing or pecuniary advantage from A1 by virtue of his order dated 01.11.95. It has come in the evidence of various prosecution witnesses that there is no provision of NOC under ULCRA. It has also came in the evidence of PW37 Ramesh Kumar Goel that during that time ULCRA was applicable and in pursuance to that if any building plan is submitted on the land more than 500 sq. mtrs. then MCD used to check, whether the party had taken permission from the competent authority. It has also come in the cross examination of PW3 that there is no specific provision for grant of NOC under the Act. PW3 stated that there is a departmental circular to the effect that NOC is to be granted by the competent authority. However, PW3 could not furnish copy of such circular nor did he remember the number, date or any other particular of the circular. Prosecution has also not produced any order, rule, guideline of MCD which could provide the mandate for grant of NOC under ULCRA. In this regard, Ms. Rebecca M. John, Ld. Sr. Counsel has relied upon R. Sai Bharati's case (supra) wherein it has been held by the Apex court that the Code of Conduct not having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention thereof by the Chief Minister, cannot be construed to impose a legal prohibition. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 107 of 118
In the present case, defence has emphasized that there was no statutory force for the grant of NOC and therefore, any alleged misdoing or wrong doing of it cannot invite the criminal liability. Here it would be also advantageous to mention that S.38(3) of ULCRA specifically provides that if any person who is under an obligation to file a statement under this Act files a statement which he knows or has reasonable belief to be false, he shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or both. Thus, there is a specific provision laid down by the legislation for the prosecution and punishment of the violation of ULCRA. The legislation in its wisdom decided to repeal this Act and specifically provided u/S.4 that all legal proceedings before any court shall stand abated with the repeal Act 1999 dated 18.03.1999.
The concept of misconduct has also come up for discussion before the Apex court in various cases. It is a settled proposition that in order to convict a person u/S.13(1)(d), there must be evidence on record that accused has obtained for himself or any other person any valuable thing or pecuniary advantage. In J. Alexander IAS Retd. Vs. CBI, 2002(2) KCCR 1363, the hon'ble High Court while hearing the petition against framing of charge inter alia held that even if the allegations made in the FIR and the material collected by the prosecution during investigation as enunciated in the chargesheet or the material itself are taken on their face value and accepted in their entirety, at the most it CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 108 of 118 would show that the petitioner has violated the norms and procedure, but do not prima facie show constituting any offence under Section 13(1)(d) punishable under Section 13(2) of the PC Act. Mere violation of the norms and procedure would not bring the accused per se within the definition of misconduct. There has to be categorical evidence on record that the accused has misconducted or has obtained any advantage for himself or for any other person. Recently, the Apex Court in CK Jaffer Sharief Vs. State, 2013 CRLJ 1341 concluded that if in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. In the present case, the prosecution has heavily relied upon the testimony of PW3 Sh. KC Aggarwal to demolish the order dtd. 1/11/95 passed by A1 SS Rathore. However, I consider that testimony of PW3 Sh. KC Aggarwal is not reliable at all. In any case it is the only opinion of PW3 which cannot be taken on it's face value. The defence was able to show orders passed by PW3 on similar lines which were in total contradiction of the orders passed by PW3. A1 SS Rathore while passing the order might have over looked certain facts, might not have been properly able to interpret the provisions of ULCRA, however, I consider that there is nothing on record to show that he was in conspiracy with A3 and A4 or his act and conduct CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 109 of 118 fell within the definition of Sec. 13(1)(d)(iii) of the POC Act, 1988. In the similar fashion, I do no see any evidence on record that A1 SS Rathore has committed any offence of cheating with the State. Therefore, as far as A1 SS Rathore is considered, prosecution has miserably failed to prove its case against him. Hence, A1 SS Rathore stands acquitted. 7.4 Now coming to the case of A3 Vinod Mittal and A4 Manoj Mittal. The crux of the case against A3 Vinod Mittal and A4 Manoj Mittal is that they in conspiracy bought the land from 17 different buyers by virtue of sale deed dtd. 5/4/95 and in the said sale deeds reliance was wrongly placed upon forged sale deeds dtd. 31/5/43. The accused persons A3 Vinod Mittal and A4 Manoj Mittal entered into a conspiracy by which they created 20 sham companies only in order to overcome the provision of ULCRA and after buying these properties, they concealed the facts from the competent authority, moved applications u/S 6(1) of the ULCRA and by way of fraudulent means obtained NOC and then also applied for building plan before the MCD and relying upon the forged and fabricated documents were able to get the NOC. The Court would confine itself to the charge framed against A3 and A4. The charge framed against A3 and A4 is limited to the obtainment of NOC from A1 SS Rathore. In this regard, as far as sale deed dtd. 31/5/43 is concerned, that has already been held by the Hon'ble High Court in writ petition No. 3830/96 vide order dtd. 21/8/2000 that the same is forged document. The parties before me in CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 110 of 118 this trial have also not taken any plea regarding the genuineness of these documents. CBI already in its chargesheet expressed its helplessness to point out that who committed the forgery. Therefore, the only one thing which was very paramount in the present trial was that when did these forged documents saw the light of the day and who were the persons who used these documents. The question mark upon the title of A3 and A4 also largely depends upon this fact. It was a very serious matter where an attempt was made by certain miscreants and land grabbers and they almost succeeded in grabbing the public land. Had it not been civil writ petition No. 3830/96 before the Hon'ble High Court and the dynamic order of the Hon'ble High Court being passed, the people of this city would have been deprived of a big chunk of the land in the heart of the city. It is really distressing to note that how the private persons and public persons enter into a conspiracy to eat away the land as a shark. The Hon'ble High Court posed faith and gave the solemn responsibility to the CBI to investigate this serious offence. It is no more in dispute that this land is in the possession of the State and is being used as a park. The big question which looms large before this Court is that whether CBI has been successful in discharging its responsibility. The Court with a very heavy heart and with all disappointment and conscious of its responsibility, records its displeasure over the investigation conducted by the CBI. It seems that CBI only completed the formalities by registering the case and summing up a chargesheet and threw it before the Court. It is CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 111 of 118 such a disappointment to see that the averments made in the chargesheet were not even in consonance with the documents on record. There are documents on record which have been proved during the cross examination of PW47 Inspt. Surender Malik that the forged sale deed of 1943 were used by 17 different buyers in the year 1989 while getting the mutation effected. The plea of the Ld. PP that these documents also fell within the category of manipulated documents and it cannot be said with certainty that these documents were infact created or forged by whom is self contradictory. It has also come on record that PW47 Inspt. Surender Malik who conducted substantial part of the investigation stated before the Court on oath that while investigation these 17 buyers were also suspect and were interrogated by him. In all fairness, Inspt. Surender Malik stated that he did not give clean chit to 17 buyers but it is surprising that CBI in its chargesheet in para 47 went on to write that they were the genuine buyers and no criminality could be attributed to them. What were the reasons to give clean chit has been held back from the Court, when it had come on record, the source of these documents and the persons who had produced the same. This Court fails to understand that what stopped the CBI to investigate this fact. What was the need and compulsion for the CBI that they simply stated about the Revenue Officer and MCD that they can only be liable for departmental action but they considered it appropriate to proceed against A1 SS Rathore. It seems that CBI held back more than revealing. It is a classic case where the direction of the CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 112 of 118 Hon'ble High Court has not been properly followed. I consider that complete investigation was not made and CBI presented only half baked chargesheet and therefore, it is necessary and obligatory for the CBI to fully comply with the directions of the Hon'ble High Court in letter and spirit and it would be desirable for the CBI to conduct the investigation on all the aspects. They must keep in mind that Hon'ble High Court had specifically directed the CBI to conduct the investigation into the entire transactions. But the CBI confided itself only to the aspect of grant of NOC.
7.5 Now coming to the role of A3 and A4. The case against A3 and A4 as primarily made out in the chargesheet is :
(i) that the accused persons misrepresented that the said companies and individuals have only vacant land in question in India and did not disclose that these companies had land other than declared in the affidavit ;
(ii)they did not disclose about the pendency of matter DDA Vs. Ram Piari under PP Act in the court of Ms. Urmila Devi, the then ADJ ;
(iii)the information with regard to exemption u/S.19(7) was not furnished as the applicant Society had not constructed the school.
At the outset these facts on which CBI has based the prosecution seems to fall within the purview of S.38(3) of ULCRA. CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 113 of 118 Accused persons allegedly withheld certain material evidence from the competent authority and opened themselves for prosecution u/S.38(3) ULCRA. However, in order to adjudicate the matter finally, it would be necessary to examine that whether the prosecution has been able to prove these facts. It is a settled principle of criminal jurisprudence that prosecution is duty bound to prove its case against the accused persons beyond reasonable doubts. The burden of proof as defined u/S.101 IEA specifically provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The prosecution has filed the chargesheet and asked for the judgment against A3 and A4 for the liability attributed on the acceptance of facts. The prosecution has asserted some facts and therefore they are liable to prove this fact. Section 102 of IEA also provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
The golden principle that the prosecution is duty bound to prove its case comes out of section 102 which provides that prosecution would fail if the prosecuting agency fails to give evidence in this regard. The exception as enumerated from S.103 to 106 never shifts the onus of proof. It provides that if initially prosecution has discharged its onus and it has been able to place some evidence on record within the special CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 114 of 118 knowledge only of the other party, then the party can be asked to prove those facts. First, it is for the prosecution to prove the facts which they have asserted in their chargesheet. Prosecution asserts that A3 and A4 did not disclose about the pendency of litigation under PP Act in the court of Ld. ADJ. However, I do not find any material on record that any such agreement was entered into between the parties or any petition was actually pending in the court of Ld. ADJ under PP Act or this fact was in the knowledge of A3 and A4. In the criminal trial, things cannot be presumed, it has to be proved on record. In the criminal trial, an individual is pitted against the might of the State. The duty of the State is to prove the allegations against the accused.
In respect of the other land held by the accused persons, besides the land in question, again the prosecution has miserably failed on this count. In respect of the property at 8(3), Under Hill Road, Civil Lines, Delhi, it has come on the record that the sale deed were executed in 1996 much after the application u/S.6(1) of ULCRA was filed before the competent authority. Section 54 of the Transfer of the Property Act, provides as under :
"54. "Sale" defined : "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 115 of 118 instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
In this regard, Ld. Defence Counsel for A3 has placed reliance upon Suraj Lamp's case (supra) wherein it has been inter alia held as under :
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
In respect of the other property at 4 Battery Lane, Civil Lines, Delhi, prosecution has examined PW34 Vishnu Swaroop Sharma who has specifically stated that no sale deed was registered in this case. Thus, the prosecution has miserably failed to prove that the accused CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 116 of 118 persons were holding any property other than the land in question.
In respect of the exemption u/S.19(7) of the ULCRA, I consider that here also, the CBI took the plea even without going into the provisions of the Act. The bare perusal of the proviso of S.19 provides that the exemption under this clause shall apply only so long as such land continues to be required and used for such purposes by such trust. Thus, the exemption granted u/S.19 to the St. Jesus Education Society was valid only for the reason that the primary school was to be constructed on the same. This court has also not found any evidence on record that A3 knew about the NOC granted to St. Jesus Educational Society.
It has come on the record that PW40 Sh. MN Sharma in his testimony has admitted that in the sale deed there is a specific mention of grant of NOC u/S.8 of Delhi Land Reforms (Restriction on Transfer) Act (in short "DLR Act"). It has also come during the cross examination of PW40 Sh. MN Sharma that after the NOC granted u/S.8 of DLR Act there was no legal impediment in the transfer of the land. The witness also admitted that as a bonafide purchaser, the purchasers in the above sale deeds were not required to make any further query regarding titles of the previous owners. He also admitted that NOCs u/s 8 of DLR Act are present in each of the sale deeds. It has also come on the record that the Estate Officer vide order dated 25.07.1991, Ex.PW14/E dismissed the proceedings under PP Act against the DDA holding that the land in question having been purchased by 17 persons and therefore, the said land CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 117 of 118 could not be public land. It is also worth to note that in Civil Writ Petition also, A3 and A4 alongwith other respondents had taken a plea that they are bonafide purchasers and even they deposited the money during the pendency of the writ petition.
7.6 I consider that in view of the discussions made hereinabove, prosecution has not been able to prove its case against A3 and A4 and hence, they are entitled to benefit of doubt. However, in view of the para 28 of the judgment of Hon'ble High Court dtd. 21.02.2000, CBI is expected to conduct further investigation in terms of the directions contained therein. Since, it is an important and sensitive matter arising out of the order of Hon'ble High court, the CBI would keep this Court updated with respect to the steps taken in this regard. 8.0 As discussed above, A1 SS Rathore, A3 Vinod Mittal and A4 Manoj Mittal are acquitted for the offence u/S.120B IPC r/w Sec. 13(1)(d)(iii) r/w 13(2) of the POC Act, 1988 and Sec. 420 IPC and substantive offence u/S.420IPC and u/S.13(1)(d)(iii) of the POC Act, 1988 in RC No.DAI2001A0025.
File be consigned to Record Room.
Announced in Open Court (Dinesh Kumar Sharma )
on 09.04.2014 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 118 of 118
CC No.02/13 CBI Vs. SS Rathore & Ors. RC No.25(A)/01
09.04.2014
Present : Sh. S. Krishna Kumar, Ld. PP for CBI
All accused on court bail are present.
Sh. Jacob John, Ld. Proxy counsel for A1 SS Rathore
Sh. Manoj K. Singh, alongwith Sh. Vishal Ghera, Ld. counsels for accused Vinod Mittal Sh. Vishal Gosain, Ld. Counsel for accused Manoj Mittal. Further final arguments heard.
Vide separately announced judgment dictated and announced in the open court, A1 SS Rathore, A3 Vinod Mittal and A4 Manoj Mittal are acquitted for the offence u/S.120B IPC r/w Sec. 13(1)(d)(iii) r/w 13(2) of the POC Act, 1988 and Sec. 420 IPC and substantive offence u/S.420IPC and u/S.13(1)(d)(iii) of the POC Act, 1988 in RC No.DAI2001A0025.
Accused persons are on bail. Their bail bonds canceled. Sureties discharged. Original documents of the surety, if any, be returned against proper acknowledgment.
In terms of Section 437(A) Cr.P.C., all the accused persons are directed to furnish bail bond in the sum of Rs.20,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
File be consigned to RR.
(Dinesh Kumar Sharma) Spl. Judge (PC Act), CBI : 09.04.2014 CBI Vs. SS Rathore & Ors. CC No. 02/13 Page 119 of 118