Delhi District Court
Special Judge (Pc Act) Cbi vs Unknown on 26 August, 2017
CBI/19/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Registration No. : CBI/19/2016
Under Section : 120-B, 109 IPC r/w Sec. 9 of P.C. Act, 1988.
Zone : CBI/ACB/ND
FIR No. : RC/56(A)/1996
CNR No. : DLET01-000009-1999
In the matter of :-
CBI
VERSUS
1. SH. ANUP KUMAR SRIVASTAVA
S/o Sh. V.S. Srivastava,
Joint Commissioner (Customs) Admn. & Prev.
New Custom House, IGI Airport, New Delhi,
R/o. H.No.R-7, New Palam Vihar,
Gurgaon, Haryana.
2. SH. S.M. BATRA (Already expired)
S/o. Sh. G.C. Batra,
R/o. C-6/20, Model Towan, Delhi.
3. SH. RATTAN KAUL (Already expired)
S/o. Sh. H.P. Kaul,
R/o. Everest House, Opp. Pawan Cinema,
GT Road, Ghaziabad, U.P.
4. SMT. MANJU MADAN
W/o. Sh. Narenra Nath Madan,
R/o. C-487, First Floor,
Defence Colony, Delhi-110014
5. SH. R.P. GUPTA (proceedings dropped vide order dated 02.08.2007)
S/o. Sh. B.R. Gupta,
R/o. 9, New Krishna Nagar, Delhi-51.
6. DR. I.P GUPTA
S/o. Late R.P. Gupta,
O/o. E-15/13, 1st Floor, Krishna Nagar, Delhi-51
R/o. H.No.9, Gali No.1, Near Radhey Puri,
Jain Mandir, Krishna Nagar, Delhi-51.
Page 1 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
CBI/19/2016
7. SH. HAWA SINGH
S/o. Sh. R.S. Ohlan,
R/o. AB-16, Miyanwali Nagar,
Paschim Vihar, New Delhi-87.
8. SHRI A.K. GUPTA
S/o. Sh. U.K. Gupta,
Joint Secretary, Jagjiwan Co-op.
House Building Society Ltd.,
R/o. H.No.112, Harsh Vihar,
Pitam Pura, Delhi-110034. ...........ACCUSED PERSONS
Name and particulars of complainant : Source Information
Date of Institution : 15.12.1999
Date of receiving in this Court : 15.12.1999
Date of reserving judgment : 16.08.2017
Date of pronouncement : 26.08.2017
Decision : Accused A1, A4, A6, A7 & A8
are acquitted
(Section 437-A Cr.P.C. complied with on behalf of accused A1, A4,
A6, A7 & A8)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. Briefly stated, on the basis of a source information present case was registered by CBI. It is case of CBI herein that accused A.K. Srivastava (A1) and accused S.M. Batra (A2) approached office bearers of a society namely Jagjiwan Cooperative House Building Society Ltd (herein after referred to as society) with demand of gratification to exercise personal influence over the then union minister for urban development namely Smt. Sheela Kaul and to help the society in obtaining NOC for raising construction of flats over its land. They demanded an amount of Rs.5 lakh from office bearers of society to be paid to Sh. Ratan Kaul (A3) towards first installment of illegal gratification. The total amount demanded by A1 and A2 was Rs.30 lakh, which was to be paid to A3.
CBI has come up with the case that amount of Rs.5 lakh was obtained by A1, A2 and A3 from accused A7/Sh. Hawa Singh on 24.02.1994 at Page 2 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 H.No.9, Moti Lal Nehru Marg, New Delhi (residence of Smt. Sheela Kaul). As per chargesheet, A1 and A2 had taken A7 to the residence of Smt. Sheela Kaul on 24.02.1994 and A7 handed over cash amount of Rs.5 lakh to A3 at the instance of A1 and in presence of A2. Other office bearers as well as Sh. O.P. Sahani were kept waiting outside the residence of Smt. Sheela Kaul.
2.Thereafter, on 24.04.1994, A1 and A2 visited office of society and further demanded payment of Rs.5.94 lakh by way of bank drafts in the sum of Rs.49,000/- favouring Sh. Ratan Kaul (A3) and his three sons namely Vivek Kaul, Ashish Kaul and Shantanu Kaul as well as in favour of Sh. Suresh Butani and Smt. Manju Madan (A4). Sh. Ratan Kaul and his three sons along with Smt. Manju Madan (A4) and Sh. Suresh Butani were also given membership of the society towards gratification. All these application forms for membership were filled in by A3. The bank drafts as well as bankers cheque were issued from SBI, Khureji Khas Branch. Sh. R.P. Gupta (A5) had got prepared five demand drafts dated 25.04.1994 by paying cash amount and the bankers cheque was prepared by him by debiting his saving account. Thereafter, additional amounts were paid to aforesaid six persons i.e. Ratan Kaul, his three sons, Smt. Manju Madan and Sh. Suresh Butani by way of bankers cheque, which were got issued by debiting saving account of R.P. Gupta being maintained at SBI Khureji Khas. After making payment of Rs.10.94 lakh to Sh. Ratan Kaul besides giving membership of society to six persons, office bearers of the society felt betrayed because their file for grant of NOC to the society to develop the land and construct flats on it was not cleared. According to CBI, A5/Sh. R.P. Gupta wrote a letter dated 18.07.1994 to A1/Sh. A.K. Srivastava with a copy sent to A3/Sh. Ratan Kaul. He requested in this letter to get the work of society done after giving reference to the payments made for this work. Similar letter was written to A2 as well. CBI could recover photocopies of these letters Page 3 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 from residence of A2 and A3, during search conducted on 10.07.1996. Another letter dated 10.08.1994 was also written by A5/Sh. R.P. Gupta to Deepa Kaul (wife of A3) reiterating fact of payments made to A3 through A1. Similarly, another letter dated 31.08.1994 was addressed to A3 by A5, which was sent at the official residence of Smt. Sheela Kaul and once again factum of payments made to A3 was mentioned therein. A3 wrote a letter of denial on 19.09.1994, which was addressed to A5. CHARGE :-
3. After completion of investigation, accused persons namely Sh. Anup Kumar Srivastava, Sh. S.M. Batra, Sh. Rattan Kaul, Smt. Manju Madan, Sh. R.P. Gupta, Sh. I.P. Gupta, Sh. Hawa Singh and Sh. A.K. Gupta were chargesheeted for offences punishable under Section 120-B r/w section 109 IPC & section 9 of Prevention of Corruption Act. On 03.09.2003, charges were framed against all eight accused persons for aforesaid offences, to which they pleaded not guilty and claimed trial.
4. Accused A2, A3 and A5 had already expired and case was abated against them on 19.03.2016, 25.02.2010 and 02.08.2007, respectively during the proceedings.
PROSECUTION EVIDENCE :-
5. Prosecution examined 45 witnesses in support of its case, as per following descriptions :-
Name Description Exhibited Documents PW1/Sh. He was working as LDC in Ex.PW1/D-A (Statement u/s 161 Daulat 1993-94 and was posted as Cr.P.C.) Singh Personal Staff Minister of Negi Urban Affairs i.e. Smt. Sheela Kaul. He knew Ratan Kaul, Deepa Kaul, Sh. Ashish Kaul, Sh. Vivek Kaul, Sh. Shantanu Kaul as they were family members of Sheela Kaul.Page 4 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-2/Sh. He was UDC, who N.V.L. Rao remained posted at the residence of Sheela Kaul from 1991 till 1995. He knew her family members and Sh. A.K. Srivastava who was collector and who used to meet Sheela Kaul.
PW-3/Sh. He was Branch Manager in Ex.PW3/A(Account opening form R.S. Dixit SBI, Khureji Khas from of M/s Jagjeewan Housing Co-
June 1998 to December op. Society)
1999. He handed over Ex.PW3/B1 to Ex.PW-3/B5 (five
various documents from his applications dated 25.04.94) branch to CBI and exhibited those documents. Ex.P-3W/C(application of SBI, Khureji Khas Branch dated 27.0.94) Ex.PW-3/D1to Ex.PW-3/D6(six applications of SBI Khureji Khas Branch dated 30.04.94) Ex.PW-3/E1 to Ex.PW-3/E6(six applications of SBI dated 06.05.94) Ex.PW-3/F(The seizure cum production memo) Ex.PW-3/G(statement of account in respect of account of sh. R.P. Gupta bearing no. 11780) Ex.PW-3/H1 to Ex.PW-3/H6 (six bankers cheque dated 30.04.94 for Rs. 20,000/- each) Ex.PW-3/I-1 to Ex.PW-3/I-6 (six bankers cheques dated 06.05.94 for Rs. 30,000/- each) Ex.PW-3/J (The cheque dated 30.04.94 for Rs. 1,20,150/- by Kusam) Ex.PW-3/K (cheque dated 06.05.94 for Rs. 1,80,150/-) Page 5 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-3/L(cheque dated
26.04.94 for Rs. 49,025/- for issuance of banker's cheque for Rs. 9,000/- as mentioned at Sr. NO. 3 of Ex.PW-3/F) Ex.PW-3/M1 to Ex.PW-3/M2 (2 Credit vouchers dated 03.05.94 for Rs. 50,000/-, Rs. 25,000/-) Ex.PW-3/N (credit voucher dated 04.05.94 for Rs. 2,50,000/-) PW-4/Sh. He was Asst. Manager in Ex.PW-4/A (Seizure memo vide M.M. PNB, New Rajinder Nagar, which certain bank documents Gupta New Delhi in June 1999. He were handed over to CBI) also handed over certain documents from his bank to CBI and exhibited the same.
PW-5/Sh. He was working in Urban Ex.PW-5/X(Statement u/s 161 E. Development Ministry from Cr.P.C.) Nagarjan May 93 to 95. He was posted at the residence of Sheela Kaul, alongwith Mr. Nagpal, Mr. Daulat Singh Negi and Sh. N.V.L. Rao.
They used to be there one
by one and they used to
attend the office at
residence. He was declared
hostile by CBI.
PW-6/Sh. He was accountant in SBI, Ex.PW-6/1 (Bank draft for Rs.
Ayodhya Khureji Khas, Delhi from 49,000/- in favour of Smt. Manju
Prasad May 1991 to May 1994. He Madan)
identified signature of Sh. Ex.PW-6/2(Bank draft for Rs.
R.P. Dua (the then 49,000/- in favour of Sh. Vivek
Manager) on A/c opening Kaul)
form of current account in
the name of Jagjeevan Ex.PW-6/3(Bank draft for Rs.
Cooperative House Building 49,000/- in favour of Sh.
Society. He proved bank Shantanu Kaul)
draft in favour of Manju Ex.PW-6/4(Bank draft for Rs.
Madan, Sh. Vivek Kaul, 49,000/- in favour of Sh. Ashish
Shantanu Kaul, Ashish Kaul)
Page 6 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Kaul, Ratan Kaul and Ex.PW-6/5(Bank draft for Rs. identified his signature on 49,000/- in favour of Sh. R. Kaul) same. Ex.PW-6/DA (statement He also identified signature recorded u/s 161 Cr.P.C.) of Sh. R.P. Gupta on receipt of draft and cheque issued by R.P. Gupta.
PW-7/Sh. He was Desk Officer in Ex.PW-7/1 & Ex.PW-7/2 (File Kanwal Ministry of Urban No. J-13029/1/93/DD-II-A Vol. I Das Development during the &Vol-II maintained in Ministry of period 1993-94, he used to Urban Development, deal with the matter Government of India) pertaining to Delhi Division. Ex.PW-7/1A(note bearing He proved files pertaining to signature of Sh. Vijay Kumar) seeking permission for Ex.PW-7/1B (forwarding letter starting building activities on dated 02.04.1993 vide which the land by M/s Jagjeewan petition was received alongwith Co-op. House Building enclosures in Ministry) Society. He proved official notes and letters in this file Ex.PW-7/1C (enclosure of by identifying signature of Ex.PW-7/1B) Sh. Vijay Kumar (The then Ex.PW-7/1D (reminder letter under secretary), Sh. dated 21.05.93 sent from office Banerjee (Dy. Secretary), of DDA, New Delhi) Sh. Pillai and Sh. P.K. Ex.PW-7/1E(Note dated Thungon.
24.05.93)
Ex.PW-7/1F(Note dated
05.08.93 in the handwriting of
Sh. Banerjee, Dy. Secretary,
Ministry of Urban Development)
Ex.PW-7/1G(Letter dated
13.08.93 sent by Sh. Ranbir
Singh, Commissioner cum
Secretary, DDA)
Ex.PW-7/1H (Preliminary
comments on the petition)
Ex.PW-7/1J(letter dated
13.08.93 bearing signature of
Sh. Vijay Kumar, the then Under
Secretary)
Page 7 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-7/1K(Note dated 13.08.93 bearing signature of Sh. Vijay Kumar, US) Ex.PW-7/1L(office note dated 28.07.93 bearing signatures of Sh. P.K. Thungon, Minister of State, Urban Development, Government of India.
Ex.PW-7/1M(Note dated
02.09.93 of Sh. Vijay Kumar)
Ex.PW-7/1N(Note in the
handwriting.
Ex.PW-7/1O (Note saying
'discuss please'which was
returned to Director)
Ex.PW-7/1P (Note of Director
bearing his signature)
Ex.PW-7/1Q (note dated
06.09.93 put up by R. Banerjee,
the then Director markingthe file
to PS to MOS (UD))
Ex.PW-7/1R (note dated
25.11.93 of Sh. P.K. Thungon,
MOS (UD) to UDM)
Ex.PW-7/1S (Note dated
25.03.94)
Ex.PW-7/1T (Note dated
25.03.94of R. Banerjee)
Ex.PW-7/1U (Note dated
27.03.94)
Ex.PW-7/1V(note of Sh. R.
Banerjee bearing his signature)
Ex.PW-7/1W(note of Sh. R.
Banerjee bearing his signature)
Ex.PW-7/1X(note of Sh. A.P.
Sinha denying the permission as
it conflicted with the policy of the
Government of India)
Page 8 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-7/1Y(note of Sh. K. Padmanabhiah to attend the petition's committee to properly examine letter dated 19.02.94).
Ex.PW-7/1Z(Note of Sh. R. Banerjeet sent to A.P. Sinha) Ex.PW-7/2(Note dated 06.05.94 bearing signature of Kanwal Das) Ex.PW-7/3(Note dated 06.05.94 explaining the position of th Petition's Committee) Ex.PW-7/4(Note dated 09.05.94 of Sh. A.P. Sinha) Ex.PW-7/5 (letter dated 09.05.14 addressed to Sh. J.P. Jain) Ex.PW-7/6 (letter dated 17.05.94 in which there is noting with regard to feasibility of converting the Cooperative House Building Society into a Group Housing Society.
Ex.PW-7/7 (note dated 16.06.94 with regard to expediting reply to their letter dated 17.05.94) Ex.PW-7/8 (representations at page no. 255 to 280) Ex.PW-7/9 (acknowledgement fromk the office of Smt. Sheila Kaul, alongwith letter dated 19.02.94 of Sh. Pius Tirkey) Ex.PW-7/10 (letter dated 02.03.94 of Sh. Pius Tirkey) Ex.PW-7/11 (acknowledgement received on 20.09.94 from the office of Smt. Sheila Kaul) Ex.PW-7/12 (reply of letter dated 17.05.94 from the Registrar of Cooperative Societies) Page 9 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-7/13 (Note dated 20.07.94 submitting the file to Director (DD).
Ex.PW-7/14 (Note of Director (DD) Ex.PW-7/15 (Note of Secretary) Ex.PW-7/16 (letter of Dr. I.P. Gupta addressed to Secretary Urban Development) Ex.PW-7/17 (Note dated 27.07.94 in reference to letter of Dr. I.P. Gupta) Ex.PW-7/18 (Note dated 28.07.94) Ex.PW-7/19 (note dated 02.08.94 wherein it was mentioned that the copy of reference had already been sent to DDA for furnishing report/comments in the matter) Ex.PW-7/20 (Draft DO letter for issuance to DDA for approval in pursuance to his note dated 19.08.94) Ex.PW-7/21 (note dated 16.09.94 for issuance of a reminder to DDA) PW-8/Sh. He was Assistant Engineer Ex.PW-8/1 (letter dated 08.02.99 A.B. Talloo in building section of DDA in vide which six files relating to 1999. Jagjeewan Cooperative Group He handed over six files Housing Society were handed relating to Jagjeewan Co- over to CBI) op. Group Housing Society Ex.PW-8/3 (Note dated 02.04.93 to CBI. rejecting the proposal and He proved his letters to CBI request of the society for and the files given to CBI. sanction of building plan and layout) Page 10 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-8/4 (Handing over memo of file no. 5 of Jagjeevan Cooperative Group Housing Society) Ex.PW-8/5 (letter alongwith its annexure written by Anil Kumar, Vice Chariman DDA to Sh. M.S. Srinivasan, Jt. Secretary) Ex.PW-8/6 (letter dated 13.02.98 placed in file D-39) Ex.PW-8/DA (statement of PW A.B. Talloo) PW-9/Sh. He worked as Desk Officer Ex.PW-9/1 (note dated 05.12.94 A.S. in Delhi Division of Ministry thereby directing to examine the Verma of Urban Development from reference) December 1994 to August Ex.PW-9/2 (note dated 06.12.94 1997. He had dealt with the of Sh. R.K. Singh, Director) file relating to Petition's Committee of Lok Sabha Ex.PW-9/3 (note dated 07.12.94 regarding permission for of Director (DD) starting building activities on Ex.PW-9/4 (note dated the land of Jagjeewan 05.12.1994 vide reference was Society. received by Shri A.P. Sinha, Joint Secretary, H.D. from Jagjeevan Co-operative House Building Society Vasant Kunj, New Delhi and he directed to examine this reference) Ex.PW-9/5 (note dated 14.12.94 running into two pages sent to Director (DD) Ex.PW-9/6 (note dated 29.12.94 whereby receipts (letters/O.Ms/Notes) from the society were added with file Ex.PW7/1 and submitted file to Director (DD).
Ex.PW-9/7 (receipts (letters/O. Ms/Notes) at page no.388 to
396) Page 11 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-9/8 (Note dated 30.12.94 of Sh. R.K. Singh, Director (DD) Ex.PW-9/9 (Note dated 03.01.95 of Sh. Subramani whereby it was informed that the concerned O.M. of Lok Sabha was placed in the part file volume II) Ex.PW-9/10(Note dated 05.01.95, whereby a copy of letter dated 23.12.94 of Jagjiwan Cooperative Society and further directed that the comments on the various points raised in that letter be furnished to them urgently) Ex.PW-9/11(note dated 20.01.95 with regard to seniority of Jagjeewan Cooperative Society) Ex.PW-9/12(Note dated 23.01.95 of sh. R.K. Singh) Ex.PW-9/13(note dated 09.05.95 of Sh. A.P.Sinha whereby it was informed that the society was taking contradictory stands in letters dated 10.01.95 and 25.01.95) Ex.PW-9/14(letter dated 10.01.95 mentioning therein that the members of the society were not agreeable to the proposal of acceptance of flats) Ex.PW-9/15(letter dated 25.01.95 whereby it was requested for expediting for issuance of NOC for construction of flats on the land of society) Ex.PW-9/16 to Ex.PW-9/32 (notes dated 20.04.95, 25.04.95, 17.05.95, 22.05.95, 01.06.95, 09.06.95, 22.06.95, 21.07.95, 03.08.95, 30.10.95, 13.02.96, Page 12 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 15.03.96, 22.05.96, 30.05.96 and 04.06.96 from (3/N to 8/N) Ex.PW-9/33 (six references which were received individually which were placed on page nos.
187 to 302 C of file Ex.PW-7/2 (total pages 116 pages)) Ex.PW-9/33(page no. 271) (copy of complaint addressed to President of India by Dr. I.P. Gupta, which was forwarded by Prime Minister's Office vide letter dated 15.04.96) Ex.PW-9/33(page no. 273) (complaint) Ex.PW-9/33(page no. 302) (copy of requisition received from CBI) Ex.PW-9/DA to Ex.PW-
9/DC(letter dated 15.04.96 from Prime Minister's Office, 12.04.96 of President of India and Petition/letter dated 03.04.96 addressed to President of India by Jagjeewan Cooperative Society.
Ex.PW-9/DD (Copy of letter
issued by Ministry)
PW-10/ He joined Jagjeewan Ex.PW-10/1 (letter dated
Sh. Gopal Society in 1992 as part-time 07.08.95 of the society) Madolia accountant and worked Ex.PW-10/2 to Ex.PW-10/23 there till 2010. He was (photocopies of documents i.e. declared hostile by CBI. ledger sheets, receipts and membership register (totally 22 copies)) Ex.PW-10/X (statement u/s 161 Cr.P.C. of witness) Ex.PW-10/24 (copy of letter dated 18.07.94) Page 13 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-10/25 (photocopy of letter dated 19.12.94) Ex.PW-10/26 (photocopy of letter dated 27.04.95 written by O.P. Sahni to Smt. Deepa Kaul) Ex.PW-10/27 to Ex.PW-10/29 (Photocopies of receipts issued in the name of Rattan Kaul, Shantanu Kaul nd Ashish Kaul) Ex.PW-10/30 to Ex.PW-10/32 (photocopies of receipts issued in the name of Shantanu Kaul, Vivek Kaul and Rattan Kaul) PW-11/ She worked as a Clerk with Ex.PW-11/A (file relating to Smt. M/s Jagjeevan Co-op. membership of Sh. Ratan Kaul Kamla House Building Society Ltd. containing page 1 to 75) Gupta and identified signatures of Ex.PW-11/B (file containing Sh. R.P. Gupta and Sh. I.P. document D-11 (E)) Gupta on the account opening form of the Ex.PW-11/PA (Statement of Jagjeevan Co-op. House witness) Building Society Ltd. She was declared hostile by CBI.
PW-12/ On 15.07.99, he was Ex.PW-12/1 (seizure memo vide Sh. K.C. working as Daftri in Central which certain documents were Gulati Bank of India, Ghaziabad handed over to CBI) Branch and handed over Ex.PW-12/2 (pay in slip dated documents to CBI. 04.05.94 of SB account of Shantanu Kaul vide which a sum of Rs.49,000/- was deposited in the SB account no. 21449.
PW-13/ He was working as LDC in
Sh. L. Ministry of Urban
Raghaven Development during the
dran year 1993 and during 1993
he was informally posted in
the office of Ms. Sheela
Kaul and used to operate
the
Page 14 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 computer and diary the papers. He deposed of diarying the file regarding permission for starting building activities on the land of M/s Jagjeewan Co-
op. House Building Society.
PW-14/ He was Branch Manager, Ex.PW-14/1 (letter dated
Sh. Anil SBI, South Extension 30.07.97 addressed to CBI vide
Sharma Branch, in July 1997 and which certain documents were
had handed over certain sent to CBI)
documents to CBI. Ex.PW-14/2 (certified copy of
statement of account of
jagjeewan Cooperative Society)
PW-15/ He was Assistant Manager Ex.PW-15/1 (seizure memo
Anil SBI, Mayur Vihar Branch, in dated 15.10.99 vide which
Kumar July 1997 and had handed certain documents were handed
Pushkar over certain documents to over to CBI)
CBI.
PW-16/ He was Manager Central Ex.PW-16/1 (seizure memo
Sh. P.K. Bank of India Wrightganj, dated 13.07.99)
Jain Ghaziabad, in 1999 and Ex.PW-16/2 (Pay in slip dated
had handed over certain 28.05.94 mentioned at serial no.
documents to CBI. 1 in Ex.PW16/1)
Ex.PW-16/3 ( Pay in slip dated
04.05.94 for Rs.20,000/-
mentioned at serial no. 1)
Ex.PW-16/4 (Pay in slip dated
28.05.94 for Rs.30,000/-
mentioned at serial no. 3)
Ex.PW-16/5 (certified copy of
statement of account of Ashish
Kaul)
Ex.PW-16/6 (certified copy of
statement of account of
Shantanu Kaul)
Page 15 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-17/ He was working as Sr. Ex.PW-17/1 (letter dated Sh. S.N. Manager Central Bank of 09.07.99 vide which Aggarwal India Ghaziabad, in 1999 documents/vouchers were and had handed over furnished to CBI) certain documents/vouchers Ex.PW-17/2 (letter addressed to to CBI. Sh. P.C. Sharma vide which witness sent detail of SB A/c of Sh. Rattan Kaul to CBI) Ex.PW-17/3 (True copy of statement of Sh. Ratan Kaul) PW-18/Sh. He was Addl. Commissioner Ex.PW-18/1 (letter dated Rajendra Vigilance, Directorate 04/21.10.99 vide which Prakash General of Vigilance, photocopy of leave applications, Customer and Central transfer TA voucher no. 6951 Excise, Delhi, who had sent and one application to appear for photocopy of leave examination relating to accused application, transfer TA A.K. Srivastava was sent by him Voucher no. 6951 to CBI. to CBI.
Ex.PW-18/2 (enclosures running into 8 sheets) PW-19/ She was working as Asst. Ex.PW-19/1 (letter dated Smt. Registrar Office of Registrar 18.03.98) Suman of Cooperative Society, Ex.PW-19/2 (letter dated Sabharwal Govt. of NCT of Delhi. 28.04.97 of Sh. I.P. Gupta) Ex.PW-19/3 (Original list from page 1 to 40) PW-20/ He was working as Sr. Asst. Ex.PW-20/1 (seizure memo Sh. in NMDC in July 1997, who dated 10.07.96) Shobha was a search witness. Ex.PW-20/2 (file containing Ram certain documents including loan file of Jagjeewan Cooperative Society) Ex.PW-20/3 (Bank pass book of Ms. Manju Madan of SB A/c No. 20049 at Khan Market).
PW-21/Sh. He was working as a Tally Ex.PW-21/1 (search list)
Parkash Clerk in the year 1996 in Ex.PW-21/2 (register seized
Naryan Mumbai Port Trust and was during search)
Sawant a search witness to office of
A1.
Page 16 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-22/Sh. In the year 1987, he was Ex.PW-22/1 (file with regard to R.D. working as Addl. Director allotment of type-V flat to Sahay Policy in Nirman Bhawan, accused Sh. A.K. Srivastava at New Delhi and handed over Mumbai) certain documents to CBI in Ex.PW-22/2 (Handing over note respect of accused A.K. dated 08.01.97 in respect of Srivastava. three files pertaining to Mr. K.T.Zimak, Sh. Narender Singh and Sh. A.K. Srivastava) Ex.PW-22/3 (Note dated 07.06.93 with regard to request of allotment of Flat no. F2 Napean Sea Road, Hyderabad Estate, Mumbai of Sh. A.K. Srivastava) Ex.PW-22/4 (photocopy of representation of Sh. A.K. Srivastava addressed to Hon'ble Minister had minuted on 09.06.93 that 'F2 at Napean Sea might be allotted) PW-23/Sh. In the year 1993 he was Ex.PW-23/1 (Note dated 19.06. Manish posted as Asst. Director 93 with regard to allotment of Baijal (Region) in Directorate of type-V flat to accused Sh. A.K. Estate and dealt with the Srivastava at Mumbai) files related to accused Sh. Mark PW-23/2 (Note having A.K. Srivastava. endorsement of Sh. C.D. Tripathi having his endorsement) Ex.PW-23/3 (Note of witness at page 2/N of the file) Ex.PW-23/4 (note with reference to letter dated 29.06.93 of Sh.
A.K. Srivastava for allotment of flat no. G-21, N.S. Road, Mumbai in lieu of flat no. F-2, N.S. Road, Mumbai) Ex.PW-23/5 (Sanction letter dated 30.06.93 addressed to Estate Manager, Mumbai) Ex.PW-23/6 (office copy of letter dated 30.05.93) Page 17 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-24/Sh. He was Addl. Treasurer in Ex.PW-24/P1 (statement of O.P. Jagjeewan Cooperative witness u/s 161 Cr.P.C) Sahani House Building Society Ltd.
and gave details about the members of said society PW-25/Sh. He was posted as Inspector Ex.PW-25/1 (seizure memo D.K. Singh CBI ACB Branch and seized dated 09.08.96) documents in the present Ex.PW-25/2 (membership file of case. Sh. Shantanu Kaul) Ex.PW-25/3 (membership file of Sh. Aashish Kaul) Ex.PW-25/4 (membership file of Sh. Vivek Kaul) Ex.PW-25/5 (membership file of Ms. Manju Mdan) Ex.PW-25/6 (membership file of Sh. Suresh Bhutani) Ex.PW-25/7 (seizure memo dated 30.08.96) Ex.PW-25/8 (seizure memo dated 05.08.96) Ex.PW-25/9 (File D-12 regarding correspondence for getting NOC by Jagjeewan Cooperative House Building Society) Ex.PW-25/10 (photocopies of specimen signatures of Ratan Kaul (D-57) (S-1 to S24)) Ex.PW-25/11 (photocopies of specimen signatures of Ratan Kaul (D-57) (S-1 to S24)) Ex.PW-25/12 (seizure memo dated 30.08.96) Page 18 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-26/Sh. He was Commissioner Land Ex.PW-26/1 (letter dated K.J. and Projects DDA in the 20.08.1983, addressed to Sh. Alphons year 1993. Vide letter dated R.V. Pillai, Addl. Secretary, 20.08.1983, addressed to Ministry of Urban Development Sh. R.V. Pillai, Addl. regarding para-wise comments Secretary, Ministry of Urban on the petition submitted by Development regarding members of Jagjeewan para-wise comments on the Cooperative House Building petition submitted by Society) members of Jagjeewan Ex.PW-26/2 (comments on the Cooperative House Building petition submitted by members Society. of Jagjeewan Cooperative House Building Society) Ex.PW-26/3 (DO letter dated 26.04.94 addressed to Mr. A.P. Sinha, Jt. Secretary M/o of Urban Development running into three pages) PW-27/ In the year 1996, he was Ex.PW-27/1 (search cum seizure Sh. posted as Jr. Clerk in memo) Chnder NDMC and was witness to a Parkash house search conducted at Gautam C-6/20, Model Town.
PW-28/ He was the Dy. Secretary Ex.PW-28/1 (Note dated Sh. R. with Government of India in 25.05.93 of Sh. Vijay Kumar with Bannerji the Ministry of Urban regard to putting up draft DO Development at the relevant letter from AS (P) to VC, DA for time and has proved certain approval). notes regarding Jagjeewan Ex.PW-28/2 (Endorsement dated Cooperative House Building 26.05.93 of Under Secretary) Society.
Ex.PW-28/3 (Note dated 29.05.
(year is not mentioned)
Ex.PW-28/4 (Note dated
05.08.93 of Sh. Vijay Kumar,
Under Secretary)
Ex.PW-28/5 (Note dated
12.08.93 of Sh. Vijay Kumar,
Under Secretary)
Page 19 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-28/6 (Note dated 12.08.
(year is not mentioned) of Sh.
A.P. Sinha, Jt. Secretary)
Ex.PW-28/7 (Note dated
12.08.93 of Sh. R.V. Pillai, Addl.
Secretary)
Ex.PW-28/8 (Note dated 12.08.
(year is not mentioned) of Sh.
A.P. Sinha, Jt. Secretary)
Ex.PW-28/9 (Note dated 13.08.
(year is not mentioned) of Sh.
A.P. Sinha, Jt. Secretary)
Ex.PW-28/10 (DO letter
addressed to Sh. R.V. Pillai,
Addl. Secretary)
Ex.PW-28/11 (DO letter sent by
Sh. Piyush Tirkey addressed to
Sh. K. Padmanabhiah)
Ex.PW-28/12 (Office
memorandum dated 22.03.94
calling upon Ministry of Urban
Development to give evidence in
the matter of petition)
PW-29/ He was working as CBI
Sh. Inspector Anti Corruption
Parkash Branch and was the
Balchand member of search team
Bhiwandk conducted in the office of
ar Sh. Anup Kumar Srivastava
situated at New Custom
House, Mumbai.
PW-30/ He was posted as Telegram
Sh. Messenger at Janpath, New
Satender Delhi in the year 1996 and
Singh was witness to
search/seizure of
documents.
Page 20 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-31/ He is the witness to the Ex.PW-31/1 (seizure memo of Sh. L.D. search conducted at the pass book of Sb A/c No. 25812 Bhoria residential premises of Sh. of Sh. Rattan Kaul) Rattan Kaul at Ghazibad Ex.PW-31/2 (pass book of Sb and seizure to the A/c No. 25812 of Sh. Rattan documents recovered from Kaul) there.
Ex.PW-31/3 (search cum seizure memo dated 10.07.96 regarding residential premises of Sh.
Rattan Kaul at Ghaziabad) Ex.PW-31/4 (register mentioned at Sr. No. 64, having telephone numbers of various persons consisting page 1 to 192) Ex.PW-31/5 (photocopy of letter dated 10.08.94 of Sh. Ram Prakash Gupta addressed to Smt. Deepa Kaul mentioned at Sr. No. 1 in Ex.PW-31/3) Ex.PW-31/6 (Photocopy of letter dated 14.09.94 of Sh. Rattan Kaul addressed to Sh. Ram Prakash Gupta mentioned at Sr. No. 2 in Ex.PW-31/3).
Ex.PW-31/7 (Photocopy of letter dated 19.12.94 of Sh. Hawa Singh addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 3 in Ex.PW-
31/3).
Ex.PW-31/8 (Photocopy of letter dated 27.04.95 of Sh. O.P. Sahni addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 4 in Ex.PW-31/3).
Ex.PW-31/9 (Envelope bearing signature of witness) .
Ex.PW-31/10 (Telegram message of Sh. Hawa Singh to Sh. Rattan Kaul mentioned at Sr. No. 5 in Ex.PW-31/3).
Page 21 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-31/11 (Telegram message of Sh. A.K. Gupta addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 6 in Ex.PW-31/3).
Ex.PW-31/12 (Carbon copy of letter dated 21.08.95 of Sh. A.K. Gupta addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 7 in Ex.PW-
31/3).
Ex.PW-31/13 (Telegram message of Sh. Hawa Singh addressed to Sh. Rattan Kaul mentioned at Sr. No. 8 in Ex.PW-
31/3).
Ex.PW-31/14 (Photocopy of letter dated 16.03.96 of Sh.
Shyam Bihari Lal addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 9 in Ex.PW-31/3).
Ex.PW-31/15 (Photocopy of letter dated 27.04.95 of Sh. O.P. Sahni addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 4 in Ex.PW-
31/3).
Ex.PW-31/16 (Photocopy of letter dated 01.04.96 of Sh. A.K. Gupta addressed to Sh. Rattan Kaul mentioned at Sr. No. 11 in Ex.PW-31/3).
Ex.PW-31/17 (Photocopy of letter dated 03.04.96 of Sh. I.P. Gupta addressed to Dr. S. D. Sharma, President of India mentioned at Sr. No. 12 in Ex.PW-31/3).
Ex.PW-31/18 (Photocopy of letter dated 04.04.96 of Page 22 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Sh. Shyam Bihari Lal addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 13 in Ex.PW-31/3).
Ex.PW-31/19 (Carbon copy of letter dated 01.04.96 of Sh. A.K. Gupa addressed to Sh. Rattan Kaul mentioned at Sr. No. 14 in Ex.PW-31/3).
Ex.PW-31/20(Photocopy of letter dated 10.05.96 of Sh. Desh Raj Mahajan addressed to Sh.
Shyam Bihari Lal mentioned at Sr. No. 15 in Ex. PW-31/3).
Ex.PW-31/21(Photocopy of letter dated 17.05.96 of Sh. A.K. Gupta addressed to Sh. Desh Raj Mahajan, Adv. mentioned at Sr. No. 16 in Ex. PW-31/3).
Ex.PW-31/22(Photocopy of letter dated 18.05.96 of Sh. A.K. Gupta addressed to Sh. Desh Raj Mahajan, Adv. mentioned at Sr. No. 17 in Ex. PW-31/3).
Ex. PW-31/23(Photocopy of letter dated 18.07.94 of Sh. Ram Prakash Gupta addressed to Sh.
A.K. Srivastava mentioned at Sr. No. 18 in Ex. PW-31/3).
Ex.PW-31/24 (Photocopy of letter dated 07.08.95 of Sh. A.K. Gupta addressed to Sh. Rattan Kaul and Smt. Deepa Kaul mentioned at Sr. No. 19 in Ex.PW-31/3).
Ex.PW-31/25 (Receipts bearing no. 2749, 2750 & 2751 all dated 06.05.94 with envelope mentioned at sr. no.21 in Ex.PW-
PW-31/3).
Page 23 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Ex.PW-31/26 (Photocopy of letter dated 26.04.96 of Dr. I.P. Gupta addressed to Sh. Rattan Kaul mentioned at Sr. No. 22 in Ex.PW-31/3).
Ex.PW-31/27 (performa application form of membership of Jagjeewan House Building Society mentioned at Sr. No. 23 in Ex.PW-31/3).
Ex.PW-31/28 (envelope of registered AD of Sh. Ram Prakash Gupta addressed to Sh.
Rattan Kaul alongwith acknowledgement receipt mentioned at Sr. No. 24 in Ex.PW-31/3).
Ex.PW-31/29 (counter foild of pay in slip of Bank of India, Khan market vide which Rs. 30,000/-
were deposited in the A/c No. 25812 of Sh. Rattan Kaul on 17.05.94 mentioned at Sr. No. 25 in Ex.PW-31/3).
Ex.PW-31/30 (photocopy of sheets related to Sh. Narender Madan mentioned at Sr. No. 27 in Ex.PW-31/3).
Ex.PW-31/31 (Receipts bearing no. 2716, 2718 and 2719 all dated 14.03.94 of Jagjeewan Cooperative Society mentioned at Sr. No. 29 in Ex.PW-31/3).
Ex.PW-31/32 (letter dated 31.08.94 of Sh. Ram Prakash Gupta addressed to Sh. Rattan Kaul mentioned at Sr. No. 61 in Ex.PW-31/3).
Page 24 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-32/ He is also the witness to the Ex.PW-32/1 (is the original letter Sh. N.R. search conducted at the of Ex.PW-31/7).
Sharma residential premises of Sh. Further, he has proved all the
Rattan Kaul at Ghazibad seizure and documents as
and seizure to the proved by PW-31.
documents recovered from
there.
PW-33/ He was the inspector CBI
Sh. Prem ACB, who is the witness to
Kant the search conducted at the
Sharma house of Sh. Gyan Chand
Batra and Sh. Sunder
Mohan Batra, C-6/20,
Model Town, Delhi.
PW-34/ He was the inspector CBI
Sh. A.K. ACB, who was the member
Malik of search conducted at
Ghaziabad.
PW-35/ He was the team leader of
Sh. Alok the team, which conducted
Kumar a search u/s 165 Cr.P.C. at
the house of Sh. S.M. Batra
at Model Town, Delhi.
PW-36/ He was the member of the
Sh. Arvind search team, conducted at Kapoor the house of Mrs. Manju Madan.
PW-37/ He is the accused put in the Ex.PW-37/A (membership
Sh. column no. 2 of application form of Jagjeewan
Suresh chargesheet. Cooperative House Building
Bhutani Society Ltd. in respect of
membership of witness)
Ex.PW-37/B (Affidavit of
witness)
Ex.PW-37/C (Statement of
witness)
Page 25 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-38/ He was the member of Sh. Vivek search team which Dhir conducted search and seizure in the office chamber of Sh. Anup Kumar Srivastava at New Custom House, Mumbai and proved the documents seized.
PW-39/Dr. He was the retired GEQD Ex.PW-39/1 (letter D-65) B.A. Vaid scientific examiner of Ex.PW-39/2 (Q1 was an handwriting and documents, application form of Jagjeevan who had examined certain Cooperative House Building documents sent by Society Ltd.) Superintendent of police, CBI, ACB, New Delhi. Ex.PW-39/3 (Q2 was an application form of Jagjeewan Cooperative House Building Society Ltd.) Ex.PW-39/4 (Q3 was an application form of Jagjeewan Cooperative House Building Society Ltd.) Ex.PW-39/5 (Application form of Jagjeewan Cooperative House Building Society Ltd.) Ex.PW-39/6 (Q5, Q5/1 & Q5/2 which are on an application form of Jagjeewan Cooperative House Building Society Ltd.) Ex.PW-39/7 (Q6 was a letter head dated 23.03.1996 of webbing and belting factory Pvt.
Ltd.) Ex.PW-39/8 (Q7 was a letter dated 14.09.1994 head of webbing and belting factory Pvt.
Ltd.).
Ex.PW-39/9 (Q8 was a letter head dated 27.04.95 of Jagjeewan Cooperative House Page 26 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Building Society Ltd.).
Ex.PW-39/10 (Q9 was taken from page No. 2 of Jagjeewan Cooperative House Building Society Ltd. dated 19.12.94) Ex.PW-39/11 (Q10 was taken from letter head of Jagjeevan Cooperative House Building Society Ltd. dated 19.12.94) Ex.PW-39/12 (S-1 to S-24 these were the specimen handwriting and signatures of one Sh. Ratan Kaul) Ex.PW-39/13 (S-25 and S-26 these were the specimen signatures of one Sh. O.P. Sahni) Ex.PW-39/14 (S-27 to S-29 these were the specimen signatures of one Sh. Hawa Singh) Ex.PW-39/15 (conclusion of examination of documents and opinion of expert) Ex.PW-39/16 (two sheets upon which opinion of expert was based) Ex.PW-39/17 (letter dated 31.12.99, vide which documents, opinion and reasons were returned to CBI.
Page 27 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-40/ During September 1994 to Ex.PW-40/1 (letter dated Sh. June 1997, he was working 01.05.96 vide which documents Narender as Chief Manager, Bank of were handed over to CBI) Prasad India, Khan Market branch. Ex.PW-40/2 (letter dated During that period he had 02.05.96 vide which documents handed over documents to were handed over to CBI) CBI.
Ex.PW-40/3 (passbook of Vivek Kaul bearing A/c no. 26536 of Bank of India, Khan Market).
Ex.PW-40/4 (Pay in slip for a sum of Rs. 49000/- in the A/c No. 26536 of Sh. Vivek Kaul).
Ex.PW-40/5 (Pay in slip for a sum of Rs. 49000/- in the A/c No. 26536 of Sh. Vivek Kaul) Ex.PW-40/6 (pay in slip of Rs.
20,000/- in the A/c no. 26536 of sh. Vivek Kaul) Ex.PW-40/7 (pay in slip dated 09.05.94 of Rs. 20,000/- in the A/c no. 20049 of Ms. Manju Madan) Ex.PW-40/8 (pay in slip dated 09.05.94 of Rs. 49,000/- in the A/c no. 25812 of Sh. R.Kaul) Ex.PW-40/9 (pay in slip dated 14.05.94 of Rs. 20,000/- in the A/c no. 25812 of Sh. R.Kaul) Ex.PW-40/10 (pay in slip dated 19.05.94 of Rs. 30,000/- in the A/c no. 25812 of Sh. Rattan Kaul) Ex.PW-40/11 (pay in slip of Rs.
30,000/- in the A/c no. 20049 of Ms. Manju Madan) Ex.PW-40/12 (pay in slip of Rs.
30,000/- in the A/c no. 26536 of Sh. Vivek Kaul) Page 28 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 PW-41/ He was Superintendent of Ex.PW-41/1 (FIR of case RS Sh. police, CBI ACB, who 56(A)/96/DLI dated 09.07.96 Narendra registered the FIR.
Nath
Singh
PW-42/ He was inspector, CBI ACB,
Sh. C.B. Mumbai and conducted
Pole search in the office
premises of Sh. A.K.
Srivastava.
PW-43/ He was Assistant Ex.PW-43/A (letter dated
Sh. B. Commissioner Vigilance, 05.01.2000 thereby forwarding
Swaminat who had forwarded the the leave file of A.K. Srivastava)
han leave file of Sh. A.K. Ex.PW-43/B (leave file/personal
Srivastava to CBI. file of Sh. A.K. Srivastava).
PW-44/ He was the IO of the case, Ex.PW-44/1 (letter dated
Sh. P.C. who investigated the 11.06.96 of Sh. A.S. Verma,
Sharma present case. Desk Officer, Ministry of Urban
Affairs and Employment
forwarded file in connection with
inquiry in PE-3(A)/96-DLI.
Ex.PW-44/2 (file no. F3(29)/91-
MP Volume 1 having pages 1 to
140 of M/s Jagjeewan
Cooperative House Building
Society maintained by DDA).
Ex.PW-44/3 (file no. F3(29)/91-
MP Volume III having pages 224
to 377 of M/s Jagjeewan
Cooperative House Building
Society maintained by DDA).
Ex.PW-44/4 (file no. F3(29)/91-
MP Volume IV having pages 378
to 461 of M/s Jagjeewan
Cooperative House Building
Society maintained by DDA).
Ex.PW-44/5 (file no. F3(29)/91-
MP Volume V having pages 462
to 662 of M/s Jagjeewan
Page 29 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Cooperative House Building Society maintained by DDA).
Ex.PW-44/6 (file no. F3(29)/91- MP Volume VI having pages 663 to 783 of M/s Jagjeewan Cooperative House Building Society maintained by DDA).
Ex.PW-44/7 (receipt of the letter dated 15.07.99 on 16.07.99) Ex.PW-44/8(chargesheet, list of witness and documents) Ex.PW-44/9(file of membership of Smt. Prem Batra) Ex.PW-44/10(Telephone diary of Sh. S.M. Batra) Ex.PW-44/11(folder regarding petition) Ex.PW-44/12(file containing documents of Jagjeewan Cooperative House Building Society Ltd. and photocopies of drafts of various person).
Ex.PW-44/13(supplementary list of documents and witnesses) Ex.PW-44/D1 (letter which is part of Ex.PW 25/9) PW-45/ During the year 1999, he Ex.PW-45/A (letter dated Sh. Ravi was posted as OIC, Account 27.12.1999, vide which he Kant Kohli Documentation in ANZ handed over certified copy of Grindlays Bank, Sansad statement of account no. Marg, New Delhi and he 01SEP0517200 of Sh. Ashish had handed over some Kaul and certified copies of documents to CBI. credit vouchers for the month April to June 1994)
6. PLEA OF ALL ACCUSED PERSON UNDER SECTION 313 CR.P.C. ● PLEA OF ANUP KUMAR SRIVASTAVA (A1) :-
A1 took plea that In September/October 1994, a dispute arose between Indian Revenue Service, (Customs and Central Excise) Page 30 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Group A Association and the CBI in Bombay, on the arbitrary, unwarranted and highhanded action of CBI against the officers of the Customs and Excise Service and during that time, he was Joint. Secretary (Zonal Secretary, West Zonal Unit) of IRS (C&CE), Group A Association and was leading the protest against the CBI. He was given all the powers by the general body of the association to deal with the protest against the CBI. The dispute was that CBI with malafide intention issued advertisements in the leading newspapers soliciting complaints against Customs & Central Excise Department, defaming them and started conducting search at the office and residence of an Assistant Collector of Customs on some technical grounds and humiliated him and his family members badly. The dispute could be resolved only after the intervention of the highest level of governance from both the department i.e. CBI and Central Board of Excise and Customs (CBEC), Department of Revenue. Thereafter, a high level team of CBI and of CBEC flew from Delhi to Mumbai and held discussions with them and cases could be withdrawn only after agreeing of CBI to the requests of the aforesaid association and written norms/guidelines were laid down after joint discussion, for any action by CBI. CBI also agreed not to issue advertisements soliciting complaints against Customs and Central Excise Officials in the media. The SP, CBI, Mumbai who was primarily responsible for precipitating this situation was surrendered pre- maturely to his parent cadre. Since under compelling circumstances, CBI had to back track their action and to give written undertaking, they nursed a grudge against him and to take revenge from him falsely implicated him in this case, to finish his bright career and to harm and defame him to the core. However, due to his honest working, they could not catch him in any case relating to customs and thus, later on in 1996, he was falsely framed in a totally unrelated Page 31 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 case as their sole purpose was to search his house on some pretext or the other as they wanted to defame him and finish his bright career. During search and assessment of his records, nothing incriminating was found against him and thus, CBI became desperate to somehow frame him in this case falsely and thus, when he got transferred from Mumbai to Delhi in November 1999, CBI filed present chargesheet on the basis of false, forged, fabricated and legally inadmissible evidences with the sole motive to somehow implicate him. All the statements recorded u/s 161 Cr.P.C. are false, fabricated and same were procured during these 4-5 months only. The falsity of these statements is evident from the fact that nobody had deposed anything against him in their evidence. The malafide and motivated action of the CBI against him is also evident from the fact that the statements of PW-43 to PW-46 recorded u/s 161 Cr.P.C. were prepared on 13.12.99 and 14.12.99, though the chargesheet was completed and forwarded on 13-14/12/99 itself for filing the same in the court.
Furthermore, their malafide intention is evident from the fact that he was made A1 without having any motive and gain and without any single legally admissible evidence oral or documentary whatsoever against him, with the sole intention to defame and harass him, so as to completely ruin his bright career, owing to grudge against him. ● PLEA OF SMT MANJU MADAN (A4) :-
A4 took plea that she was falsely implicated in the present case so as to protect the real culprits such as Smt. Sheela Kaul, the then Minister of Union Government and her grandsons. She also disclosed about role of Sh. Ratan Kaul, who was trying to acquire benami property and she had no financial transactions with the Jagjeevan Society. ● PLEA OF SH. I.P. GUPTA (A6) :-
A6 took plea that he was innocent and had been falsely implicated in this case as all the statements recorded u/s 161 Cr.P.C. were false Page 32 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 and fabricated. The malafide and motivated action of the CBI was evident from the fact that the statements of PW43 to PW46 u/s 161 Cr.P.C. were prepared on 13.12.99 and 14.12.99. Though, the chargesheet was forwarded on 13-14/12/1999 itself for filing the same in the court concerned. He had never written any letter to the President of India and the letters exhibited were photocopies and same were forged and fabricated and do not bear his signatures. He did not know who had written these letters. In the year 1996, one Smt. Tripta Bhatia w/o Swami Raj Baldev was the member of the society her husband Swami Raj Baldev was not even the member of the society but still he filed a false writ petition no. 3563/1996 before the Hon'ble High Court of Delhi claiming President of the Society. His petition was disposed of on 21.09.99 with directions to the RCS to conduct the election of the society after verifying the membership and other records of the society. The election of the MC was conducted by the RCS. He did not file any petition before the petition committee of lok sabha and he was not having any knowledge of the same. He never met A1, A2, A3, A4, Sh. Rattan Kaul as well as Ms. Sheela Kaul and any of her family members. He never visited the official residence of Ms. Sheela Kaul i.e. 9, Moti Lal Nehru Marg. Neither he nor the society got prepared bank draft/pay orders to deliver the same to Sh. Ratan Kaul, Ashish Kaul, Vivek Kaul, Manju Madan, Shantanu Kaul, Suresh Bhutani or any other person. Even no cash was paid by him to anybody. He had no personal interest or any benefit from the same. Sh. R.P. Gupta was neither the member nor the Manager of the society. He was never authorised to represent the society or to do any act on behalf of society anywhere or to deal with anybody on behalf of society. He never attended any meeting with A1 and A2 and never accompanied Sh. Hawa Singh and Sh. O.P. Sahani at the official residence of Smt. Sheela Kaul at any point of time. The signatures on Page 33 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 the letters did not bear his signatures. His signatures appear only at (D-23) i.e. Ex.PW-3/A at point C, C1 and C2. Even the entire chargesheet did not bear his signature. Even the witnesses PW 10, PW 11 and PW 24 have denied his signatures on the alleged letters. His admitted signatures on exhibit PW-3/A were not sent for comparison with the disputed signatures on the alleged forged letters as it was explicit that it would not tally with his admitted signatures. No illegality had been committed either by him or by the society. The society was pursuing their remedy before the Hon'ble High Court of Delhi and in other courts by filing writ petitions and legal proceedings. There was no legally admissible evidence against him. Sh. Shyam Bihari Lal Advocate had never been the advocate of the society. ● PLEA OF SH. I.P. GUPTA (A7) :-
At the relevant time, he was vice president of the society and was never the president of the society. He also took plea almost on same lines as was taken by A6 in his statement under Section 313 Cr.P.C. He further pleaded that IO had falsely implicated him on false and flimsy grounds.
● PLEA OF SH. A.K. GUPTA (A8) :-
He was innocent and had been falsely implicated in this case as there was no evidence against him as his name was Ashootosh Kant son of Sh. Uma Kant Gupta and he had always been known as "Ashootosh Kant" which was also evident in all his academic records beginning from class nursery to MBA. Moreover, his passport and all other legal/official documents/certificates were in the name of "Ashootosh Kant". He had never been known as "A. K. Gupta" under any circumstances and his residential address had always been E-174, Kamla Nagar, Delhi - 110007, which was his birth place. He had never lived or resided at E-15/13, Krishna Nagar, Delhi which was registered office of the Jagjiwan Cooperative House Building Society Page 34 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 and ascribed to A.K. Gupta, Joint Secretary in the charge-sheet filed by CBI. He had never been Joint Secretary of the society nor associated with it nor had been member of the society in any manner/capacity whatsoever and never paid any membership fee or signed any affidavit for obtaining membership of the said society. PW10, PW11, and PW24 had admitted that A.K. Gupta was joint secretary of the society from the beginning of the year 1992, when he was merely of 19 years of age and as per rules of the Delhi Cooperative Societies Act, a person, over the age of 21 years was eligible to become an office bearer of a society. He had never contested any election for any post whatsoever in the said society. Furthermore, in the year 1991-1995, he was pursuing B.Tech (Mechanical Engineering) from Guru Nanak Dev Engineering College situated in Bidar, Karnataka and immediately after completing B.Tech in 1995, he started pursuing MBA from Hindu Institute of Management Studies, Sonepat Haryana and completed MBA in 1997. He could not have had represented the society in any manner as on 25.04.94, when said "A.K. Gupta" allegedly applied for making of demand draft. He was studying in third year (VI Semester) of Mechanical Engineering in Bidar, Karnataka and none of the IOs ever called/summoned him. IO deliberately did not inquire into the membership details or any election records of the society as nothing had been filed on record to show his association with the society. IO had failed to bring on record any documents which could prove the said "A.K. Gupta" is Ashootosh Kant. IO failed to confront him with any letters/documents which had allegedly been written by the said "A. K. Gupta". He had never written any letters and never applied for making any draft of any amount whatsoever.
ARGUMENTS MADE ON BEHALF OF ACCUSED PERSONS AS WELL AS CBI :-Page 35 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 ARGUMENTS MADE ON BEHALF OF A1
7. Crux of arguments made by ld. senior counsel for A1 are as follows :-
Sh. A.K. Srivastava (A1) was allegedly part of group receiving Rs.5 lac on 24.02.1994 from Hawa Singh. He has been charged for offences u/s 120B IPC & 9 PC Act only and to show proximity of A1 with Minister, CBI has relied upon PW1/Sh. Daulat Singh Negi, PW2/Sh. N.V.L. Rao, PW5/Sh. E. Nagrajan and PW44/IO. There is no evidence at all to show his proximity or visit to Minister. There is no evidence to show if A1 visited Delhi on 24.02.1994 from Mumbai to receive cash amount. There is no call record or other evidence collected by IO to show, if A1 was communicating with Minister. None of the witnesses said that any accused including A1 received any amount or gave any amount of gratification. IO conceded that no evidence is there to show receipt of money or other allegations. PW24/Sh. O.P. Sahni was star witness of CBI, who said that he did not know A1. Signature on letter of I.P. Gupta was not proved. Letter dated 03.04.1996 is the basic and most important evidence, which is a photocopy. PW10 and PW11 also did not identify the letter or signature thereupon. Earned leave for period from 21.02.1994 to 25.02.1994 was applied by A1 vide earned leave application i.e. Ex.PW18/2 for family function. On record there is a photocopy only and same was objected for want of mode of proof, but CBI did not rectify the objection. There was no application for station leave on behalf of A1 to his department. PW45 identified signature of A1, but he had not seen him while signing these documents. At the most, it could be said that A1 was on leave from 21.02.1994 to 25.02.1994, but his travel to Delhi was not proved. PW44/IO conceded that even custom department did not conduct any enquiry against A1 for stating false facts, if any, in leave application.
Letter Ex.PW9/DC dated 03.04.1996 is not proved to be written by A7 and it is only photocopy. Ex.PW31/5 dated 10.08.1994 was Page 36 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 not proved in the handwriting of R.P. Gupta (A5) and it is only photocopy. It was not proved to show, if addressee ever received this letter. Ex.PW31/6 i.e. letter from A3 to A5 was not proved and it is only a photocopy. Ex.PW31/7 i.e. another letter from A7 to A3 is also a photocopy and signature etc. was not proved. IO admitted that he did not send any letter to CFSL. Contents of these letters cannot be read. There is no witness who identified signature of any accused on any letter. List of payments was also not proved against A1. There is nothing to suggest that A1 was in Delhi to receive any money or to meet Minister or to meet co-accused i.e. A5 to A7.
ARGUMENTS MADE ON BEHALF OF A4
8. Crux of arguments made by ld. counsel for A4 are as follows :-
Given role to A4 was membership with other family members of A3. PW44 gave one line difference between A4 and other family members of A3, as the reason to charesheet A4 only. PW44 did not take specimen signature of A4 and no document was collected from Bank of India, Khan Market. Application of membership was not proved to be in the handwriting and signature of A4. Money deposited in the account of A4 was without her knowledge. CBI did not prove that said account had any signature of A4 on account opening form or other card and thus, connection of A4 with said account was not proved. Therefore, there was no occasion of conspiracy or abetment of offence under Section 9 of PC Act.
ARGUMENTS MADE ON BEHALF OF A6 and A7
9. Crux of arguments made by ld. counsel for A6 and A7 are as follows :-
When allegedly A1 and A2 approached A6 and A7 with their proposal, the offence under Section 9 of PC Act was already committed at that time itself. Therefore, there was no occasion of conspiracy or abetment of offence under Section 9 of PC Act. Society is not a juristic or natural person, therefore, any person as referred in Section 9 of PC Act is not Page 37 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 satisfied. Accused A6 and A7 are not covered in 'any person'. Furthermore, which rule was violated in this case, is not explained by CBI. There is no evidence to show that illegal means was adopted to get NOC. If no case is made out for Section 120B IPC, then Section 109 IPC is also not sustainable. PW24 was treasurer in society, who allegedly accompanied A6 and A7 for payment of Rs.5 lakh on 24.02.1994. However, PW24 did not support prosecution and he was the only office bearer of society examined by CBI. PW44/IO did not seize any document or evidence to show visit of any accused to residence of Minister i.e 9, M.L. Nehru Marg, New Delhi on 24.02.1994. CBI relied upon PW24 to prove this visit, but he also did not support prosecution. Thus, there is no evidence to show such visit. There is no DD which was got prepared by A6 and A7 and it was so admitted by IO. A5 was not related to society at all and IO did not verify such fact.
Gratification has to be in tangible form or valuable security, but membership in society is not property or valuable security. PW19 was examined to show that membership was given by A6 and A7. Ex.PW19/3 is the list of all members, which was proved by PW19, but none of persons allegedly given membership are mentioned in this list. Thus, none of three alleged forms of gratification is proved on the record.
Letter dated 03.04.1996 was allegedly sent by A6, but his signature was never taken for comparison nor it was sent to CFSL. PW3 and PW6 were bank officials, who did not vouch for person, who applied for DDs. A6 to A7 are not connected to alleged DDs. Seizure proceeding's witnesses i.e PW32 and PW31 were also not consistent. PW39 i.e. CFSL expert could not give any opinion on signature of A7. PW7, PW9, PW26 and PW28 brought official files in respect of NOC and none of accused approached them for any favorable note nor Minister or her relative directed them to give favorable note. File was processed in legal manner. PW44/IO stated that he had taken specimen signature of Page 38 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 A6, but did not send to CFSL. He did not verify the genuineness of signature on letter dated 03.04.1996 nor sent the same to CFSL. ARGUMENTS MADE ON BEHALF OF A8
10.Crux of arguments made by ld. counsel for A8 are as follows :-
Duty of CBI was to fix the identity of this accused including, parentage etc. However, even chargesheet does not give any particular viz parentage, address etc. of A8. A8 had been shown Joint Secretary in 1989, but he was a minor at that time, who could not have become even a member of this society. PW3 and PW6 were bank officials, who proved some drafts being issued from bank, but no evidence was brought by CBI to show that A8 had procured those drafts. IO mentioned address of A8 in charge sheet as E-15/13, which was not his address. It was official address of society. No one knows who gave application to obtain drafts, though draft was received by Sh. R.P. Gupta. PW6 could not identify signature of any accused on all the documents shown to him. PW6 did not come across signature of A8 and he admitted that he did not know A8. IO said that there were many A.K. Gupta as member of society. There is no evidence to show that A8 went to bank or worked as Joint Secretary of society or he participated in any transaction. PW10 did not remember that who was Joint Secretary of society at the relevant time of his employment. Nothing came against A8 so as to link him with society. May be A.K. Gupta was existing on papers. PW10 could not identify signature on letter dated 07.08.1995, which was shown to be signed by A8. PW10 said that he had seen the signature of President & office bearers of society in the course of his employment. PW11 also did not identify signature of A.K. Gupta on letter dated 03.04.1996 at serial no.7 and 11. There must be application form or other document to become member of society, but IO/PW44 admitted that he did not seize any such document qua A8 or document to show parentage, address or identity proof of A8. He did not obtain specimen signature of A8. IO said that Page 39 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 there might be many A.K. Gupta, but he did not make enquiry about a particular A.K. Gutpa being Joint Secretary. There is no evidence that A8 was signatory of any letter or entered into conspiracy. There is no forensic evidence and only photocopies were proved, against law of evidence. DW1/D is receipt of society in the name of A.K. Gupta dated 02.07.1982, when A8 was 9 years old. DW4/D4 is a notice given for GBM in society and proved from records of register, which shows that society was in existence on 20.07.1982 i.e. much before 1994. Page 3 of this exhibit mentions one A.K. Gupta as member of executive body, though A8 was a minor at that time and he could not be even member of this society. Ex.DW3/1 shows school admission register mentioning date of birth of A8 as 10.03.1973.
ARGUMENTS MADE ON BEHALF OF CBI
11.Crux of arguments made by ld. Sr. PP for CBI are as follows :-
PW2 deposed that A1 used to meet Minister. PW3 deposed that all DDs were made from the account of A5 and some applications were filed by A8. DDs were made in favour of A4. PW6 also corroborated version of PW3. PW7 proved file of society (i.e. D2, D3) as Ex.PW7/A and Ex.PW7/2. PW9 referred to letter sent by A6 to The President, which was received by him through PMO. Thus, this letter (D11) was in the file. Photocopy of same letter was found at the residence of A2 and A3. PW10 said that A7 was President, A6 was Secretary and A5 was Manager of the society. PW11 said that A8 was Joint Secretary. PW15 proved entries of bank account of A5. PW20 is witness to house search of A4. A loan file i.e. Ex.PW20/2 was recovered, which shows payments to A4. PW43 proved file of A1 related to leave application. Ex.PW43/B (page 603) is application for earned leave from 21.02.1994 to 25.02.1994. Ex.PW43/B (page 607) is application for earned leave to attend marriage in the family with LTC, but no station leave was taken by A1. Thus, A1 was in habit of going out of station without taking station Page 40 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 leave.
12.PW19 proved the list of members of society i.e. Ex.PW19/3, as on 31.03.1997. This list mentions A8 as member of this society as well as his parentage. Ex.DW1/F; Ex.DW4/P1 (srl. No.86); Ex.DW4/P3; Ex.DW4/P6 and Ex.DW4/P9, mention parentage and address of A8. Ex.DW1/F, Ex.DW1/G and Ex.DW1/H also mention same parentage and address of A8. A5/R.P. Gupta is maternal grand father of A8; Vibha Gupta is mother of A8 and V.K. Gupta is father of A8, who were also members and office bearers of this society. A8 deposed as DW1 and he in his cross-examination dated 01.04.2016 said that his mother was Vice President of society and he narrated his relation with I.K. Gupta and R.P. Gupta.
13.PW20 and PW30 were witnesses to search at residence of A4. Letters written by A8 to A4, from A4 to A6 etc. mentioning payment of gratification was recovered. Letters are part of Ex.PW20/2. Passbook of A4 i.e. Ex.PW20/3 shows that money was debited from the account of A4. PW27 was witness to search at the residence of A2 and recovery of a diary of A2 mentioning name and number of A1 and A7. PW31 and PW32 were witnesses to search at the residence of A3. All communications between accused persons were recovered there. Copy of letters sent to PMO etc. were also found. Thus, a link is established among co-accused persons. Accused had come to know about enquiry being conducted by CBI and subsequent letters showing manipulated story were also found. PW40 proved passbook of A3 and A4 apart from others.
CERTAIN JUDGMENTS RELIED UPON BY ACCUSED PERSONS
14.Ld. counsel for Dr. A.K. Srivastava (A1) relied upon following judgments :-
● State of Kerala v. P. Sugathan & Anr., 2000 SCC (Cri) 1474. ● P.K. Narayanan v. State of Kerala, (1995) 1 SCC 142.Page 41 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 ● Sita Ram v. State of Rajasthan, (1975) 2 SCC 227. ● Om Prakash v. State of Haryana & Anr., (1979) 4 SCC 495. ● Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr. (2009) 6 SCC 681.
● Prakash Cotton Mills Pvt. Ltd. v. Municipal Commissioner for Greater Bombay & Ors.1982 SCC OnLine Bom 12. ● Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491.
● Sudhir Engineering Company v. Nitco Roadways Ltd. 1995 IIAD Delhi 189.
● M. Abbas v. State of Kerala, (2001) 10 SCC 103. ● L.K. Advani v. CBI, 1997 (41) DRJ.
● Sarwan Singh & Ors. v. State of Punjab, 1957 SCR 953.
15.Ld. counsel for Ms. Manju Madan (A4) relied upon following judgments :-
● Mahendra Singh Chotelal Bhargad v. State of Maharashtra & Ors. (1998) 2 SCC 357.
● Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC
116. ● Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808. ● C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193. ● Subramanian Swamy v. A. Raja, (2012) 9 SCC 257. ● Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, (2013) 5 SCC 722.
● Nar Singh v. State of Haryana, (2015) 1 SCC 496. ● Leo Roy Frey v. Suppdt. Distt. Jail, AIR 1958 SC 119. ● Wolfgang Reim & Ors. v. State & Anr., (2012) SCC Online Del3341.
● K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631. ● V.C. Shukla v. State, (1980) 2 SCC 665. ● CBI v. V.C. Shukla, (1998) 3 SCC 410.
16.Ld. counsel for Sh. I.P. Gupta (A6) and Sh. Hawa Singh (A7) relied upon following judgments :-
● Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876. ● Kehar Singh & Ors. v. State (Delhi Administration), (1988) 3 SCC
609.
● Somasundaram @ Somu v. State, Criminal Appeal No.1375 of 2010.
● Subhash @ Dhillu v. State of Haryana, Criminal Appeal No.1375 of 2010, decided on ● Iqwal Singh v. S. Gurdas Singh, (1976) 3 SCC 284. ● Devan @ Vasudevan etc. v. The State, 1998 Cri.L.J. 1005, decided on 01.06.1987.
Page 42 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 ● A.P. Narang v. CBI, Crl. Rev. P. No.397/2010, decided on 07.01.2011.
17.Ld. counsel for Sh. Ashootosh Kant (A8) relied upon following judgments in support of his arguments :-
● Suresh Kalmadi v. CBI, 215 (3)JCC1874.
● Hanuman Govind Nargundkar v. State of M.P. AIR 1952 SC 343. ● Jose @ Pappachan v. SI of Police, Koyilandy & Anr. 2017 (1) SCC (Cri) 171.
● Ashish Batham v. State of M.P., 2002 (7) SCC 31. ● Varkey Joseph v. State of Kerala, AIR 1993 SC 1892. ● Sandeep v. State of NCT of Delhi, Crl.A. 1377/2011 decided on 05.02.2015.
● S.L. Goswami v. State of M.P, AIR 1972 SC 716. ● Rabindra Kumar Dey v. State of Orissa, AIR 1976 SC 966. ● Gurcharan Singh @ Channi & Anr. v. State, 1993 CRI. L.J. 1622. Sukhjit Singh v. State of Punjab, 2014 Lawsuit (SC) 821. Mathew Jacob & Anr v. Celestine Jacob, AIR 1998 Delhi 390. Nepal Singh v. Ompal Singh, AIR 2005 Delhi 330 (DB). U. Sree v. U. Srinivas, 2013 (1) SCC (Cr) 858. Suganchand & Anr. v. Balchand & Anr. AIR 1957 Rajasthan 89. Bharat Bhushan v. State, CRL. A. No.603/2010 decided on 05.02.2014.
18.Reliance was placed upon case of Suresh Kalmadi (supra), to submit that the defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to "life" and "personal liberty" enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one.
19.Reliance was place upon case of Sita Ram (supra) to submit that "The evidence regarding payment of money or acceptance of gratification must not be based on hear say evidence."
20.Reliance was placed upon case of Ram Suresh Singh (supra) to submit that "photocopy in absence of original document is not admissible in any evidence."
21.Reliance was placed upon case of Prakash Cotton Mills (supra) to submit that "The only person competent to give evidence on the truthfulness of the contents of the document is executant of the same Page 43 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 and mere proof of signature of the executant is not sufficient to prove the contents of the documents."
CIRCUMSTANTIAL EVIDENCE :-
22.Reliance was also placed upon cases of Hanuman Govind (supra), Ashish Batham (supra), Sandep (supra) to submit that :-
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
It is settled proposition of law that the prosecution case must stand or fall on its own legs and cannot derive and strength from the weaknesses of the defence."
23.Reliance was placed upon case of Life Insurance Corporation (supra) and Sudhir Engineering Company (supra) to submit that "Mere admission of a document in a court may amount to admission of its contents, but not their truth. Merely by exhibiting documents, contents of document are not proved."
24.Reliance was placed upon case of M. Abbas (supra) to submit that "The defence case is required to be proved only by preponderance of probability."
25.Reliance was also placed upon cases of Jose @ Pappachan (supra), Varkey Joseph (supra), S.L. Goswami (supra), Rabindra Kumar Dey (supra), Sarwan Singh (supra) to submit that :-
"It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true"
but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable Page 44 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
26.Reliance was placed upon cases of Mathew Jacob (supra) and Nepal Singh (supra), to submit that :-
"As already pointed out above, the Court was competent to draw this comparison on the basis of admitted signatures as per the power vested in him under Section 73 of the Evidence Act."
27.Reliance was place upon case of Bharat Bhushan (supra) to point out ingredients of Section 8 PC Act. However, Section 8 has no application in the present case.
CONSPIRACY :-
28.Reliance was also placed upon cases of State of Kerala v. P. Sugathan (supra), P.K. Narayanan (supra), Om Prakash (supra), L.K. Advani (supra), Leo Roy Frey (supra), Subramanian Swamy (supra), Wolfgang Reim (supra), K.R. Purushothaman (supra), K.R. Purushothaman (supra), V.C. Shukla (supra), CBI v. V.C. Shukla (supra), Yogesh (supra) and Kehar Singh (supra), to submit that "Criminal conspiracy cannot be deemed to have been established on the basis of mere suspicion or surmises and there needs to be cogent evidence to prove the same."
PRESUMPTION :-
29.Reliance was placed upon cases of Subramanian Swamy (supra), Raj Kumar Singh (supra) and Kali Ram (supra), to submit that "Conviction cannot be recorded merely on the basis of presumption."
Page 45 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 SECTION 313 CR.P.C :-
30.Reliance was placed upon cases of Raj Kumar Singh (supra), Nar Singh (supra) and Sharad Birdhichand Sarda (supra), to submit that "Any circumstance not put to accused under Section 313 Cr.P.C, cannot be used against him." However, there was no argument to say, if any particular evidence was not put to any accused. APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
31.Before I start analysis and discussion on evidence against accused persons, I deem it fit to refer to the allegations made against the accused persons in the charges framed against them.
32.It was alleged that accused Sh. Anup Kumar Srivastava, Sh. S.M. Batra, Smt. Manju Madan and Sh. Rattan Kaul entered into criminal conspiracy with co-accused Sh. R.P. Gupta, Sh. I.P. Gupta, Sh. Hawa Singh and Sh. A.K. Gupta being officer bearers of a society by the name of M/s Jagjivan Co-operative House Building Society Ltd., for the purpose of getting a 'No Objection Certificate' from Delhi Development Authority/Urban Development Ministry for starting construction activities on a land acquired by the said society in Vasant Kunj, New Delhi for the purpose of inducing Smt. Sheela Kaul, the then Union Urban Development Minister, who was mother-in-law of accused Sh. Rattan Kaul by exercising personal influence over her by accused Sh. Anup Kumar Srivastava, Sh. S.M. Batra, Smt. Manju Madan and Sh. Rattan Kaul and thereby A1 to A4 obtained a sum of Rs. 9.95 lacs from accused Sh. R.P. Gupta, Sh. I.P. Gupta, Sh. A.K. Gupta and Sh. Hawa Singh for grant of said 'NOC' to the said society.
33.It was further alleged that in furtherance of said criminal conspiracy accused Sh. Anup Kumar Srivastava, Sh. S.M. Batra and Sh. Rattan Kaul obtained a sum of Rs. 5 lacs in cash on 24.02.1994 at house no. 9, Moti Lal Nehru Marg, New Delhi from co-accused Sh. Hawa Singh, who Page 46 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 was the officer bearer of said society. It is further alleged that during April-May 1994, accused Sh. Rattan Kaul obtained further payment of Rs. 49,000/-, Rs. 30,000/- and Rs. 20,000/- by way of three different bank drafts in the name of his sons namely Vivek Kaul, Asish Kaul and Shantanu Kaul as well as membership of aforesaid society in his name and in the name of his three sons. It is further alleged that Smt. Manju Madan obtained payment of Rs. 99,000/- by way of three different bank drafts of Rs.49,000/-, Rs.30,000/- and Rs.20,000/- as well as membership of aforesaid society in her name from co-accused Sh. R.P. Gupta, Sh. I.P. Gupta, Sh. A.K. Gupta and Sh. Hawa Singh as a motive for reward for exercising their personal influence over Smt. Sheela Kaul, the then Union Development Minister for obtaining NOC for the society to start construction activities on the land acquired by it.
34.It is further alleged that in furtherance of the aforesaid criminal conspiracy accused Sh. R.P. Gupta, Sh. I.P. Gupta, Sh. Hawa Singh, and Sh. A.K. Gupta, who were the office bearers of the aforesaid society abetted the commission of offence by paying money to Sh. Anup Kumar Stirvastava, Sh. S.M. Batra, Smt. Manju Madan and Sh. Rattan Kaul by paying money to them in cash and bank drafts and also by affording membership of the aforesaid society in the name of Smt. Manju Madan and in the name of Sh. Rattan Kaul and also in the name of his three sons as a motive or reward for inducing Smt. Sheela Kaul, the then Union Urban Development Minister and exercising their personal influence over her for recommending grant of NOC to the above said society for starting construction activities on a piece of land acquired by it at Vasant Kunj, New Delhi.
ANALYSIS :-
35.In order to appreciate the evidences on the record in support of charges framed against the accused persons, it is appropriate to refer to the ingredients of alleged offence under Section 9 of PC Act. Prior to Page 47 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 enactment of PC Act, there was analogous provision in IPC in the form of Section 163. If one compares the language and ambit of Section 163 IPC with Section 9 of PC Act 1988, there remains no doubt that both are similar provisions. While dealing with Section 163 IPC, in the case of Mahender Singh Chotelal Bhargad v. State of Maharashtra, (1998) 2 SCC 357, Supreme Court explained the ingredients of this provision in following terms :-
● The accused accepted or agreed to accept, obtained or admitted to obtain for himself or anyone on his behalf, a gratification; ● The gratification must be as a motive or reward to induce a public servant by the exercise of personal influence in the case of
(a) to do or to forbear to do any official act; or
(b)to show in exercise of his official functions favoured or disfavoured; or to render or attempt to render any service or disservice to any person with the Central Government or State Government or with any public servants, as such.
36.Similarly, in the case of Devan @ Vasudevan etc. v. State, 1988 CRI. L. J. 1005., Kerala High Court explained the ambit of offence under Section 162 IPC by making following observations :-
"The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant by corrupt or illegal means. It is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should, in fact, have attempted to induce the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence."
37.The difference between Section 162 and 163 IPC was very minor limited to the mode of the inducing any public servant. Rest of the ingredients of both the offences were same. Therefore, the above mentioned observations given by Kerala High Court hold the ground in respect of Section 163 IPC as well. Thus, the aforesaid two case laws make it clear that essence of offence under Section 9 of PC Act does not go on to Page 48 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 include the act of actual exercise of personal influence over any public servant.
38.CBI had produced certain witnesses to depose in respect of the files regarding permission for starting building activities on the land of society and the related official notes, letters etc. These are PW7/Sh. Kanwal Das, PW8/Sh. A.B. Tallu, PW9/Sh. A.S. Verma, PW13/Sh. L. Raghavendran and PW28/Sh. R. Bannerji. However, in view of ingredients of alleged offence under Section 9 of PC Act, I do not find much relevance of the testimonies of these witnesses. I say so, because what actually was done by Ministry of Urban Development or DDA on the application of society to seek permission for starting building activities on its land, is not a relevant question in this case because there is no allegation that something was done by Minister for Urban Development i.e. Smt. Sheela Kaul on the basis of gratification demanded and taken by A1 to A3 and paid by A5 to A8.
ROLE OF A1 AND SUPPORTING EVIDENCE :-
39.As per CBI, A1 along with A2 had approached office bearers of the society with demand to pay gratification to A3 for the purpose of exercising personal influence upon Smt. Sheela Kaul, so as to help the society to get NOC for raising consideration over their land. CBI has alleged that on 24.02.1994 A1 along with A2 took A7 and Sh. O.P. Sahani to the official residence of Smt. Sheela Kaul and A7 handed over Rs.5 lakh to A3 at the instance of A1. Now to prove these alleged facts, CBI had to prove that A1 had approached a particular office bearer of the society on a particular day and at a particular place, so as to demand gratification to be paid to A3. Witness to prove this fact could have been the person to whom such demand was made by A1 or in whose presence such demand was made by A1. However, CBI has remained silent over the fact that to whom such demand was made by A1? When such demand was made? At what place such demand was made?
Page 49 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Therefore, apparently there is no such evidence on the record to answer aforesaid questions. CBI chargesheeted A5 to A8 for abetment to commit offence under Section 9 of PC Act on the allegations that they were office bearers of the society at the relevant time and had paid gratification, in response to alleged demand made by A1. Since the aforesaid alleged office bearers of the society were made accused in the case, therefore, for obvious reason they could not have been used as witness against A1. The net result remains that there was no witness to say before the court that A1 had demanded gratification on behalf of A3 to exercise personal influence upon Smt. Sheela Kaul.
40.CBI produced PW1/Sh. Daulat Singh Negi, PW2/Sh. N.V.L. Rao and PW5/Sh. E. Nagrajan, to show and establish that A1 was known to Smt. Sheela Kaul and he had been frequent visitor to official residence of her. Though except PW2, other two witnesses did not support such contention of CBI, still I find that such plea of CBI even if proved could not have any bearing over the alleged charges. Meaning thereby, even if A1 knew Smt. Sheela Kaul or he had been visiting her, it cannot be said that this fact would lead to automatic presumption that A1 had made demand for gratification. In fact, if an accused makes demand for illegal gratification so as to exercise personal influence over any public servant, even without having any capacity to exercise such personal influence, still such accused would be covered under ambit of Section 9 of PC Act. Therefore, the capacity of accused to exercise personal influence over the public servant is not necessary ingredient of offence under Section 9 of PC Act. From the same theory the necessary corollary would be that just because a person knows a public servant, that situation in itself would not be an evidence to charge him with offence under Section 9 of PC Act.
41.CBI produced PW10/Sh. Gopal Mandolia, who had worked in the society as part-time accountant. This witness had nothing to say against A1.
Page 50 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Rather, the only thing which is established from the testimony of this witness is that A7 was president of the society and A6 was the secretary of the society. Mr. O.P. Sahani was treasurer of the society and Mr. R.P. Gupta was manager of the society. This witness vouched that he had come across the signatures of president and other office bearers of the society, but he did not identify signature on letter dated 07.08.1995 under name of A.K. Gupta (A8). He was not aware of any payment made to A3 and his family by the society. He could not identify signature of any official of the society on the application forms in the name of A3.
42.PW11/Smt. Kamla Gupta also worked in the society and according to her Sh. R.P. Gupta was managing the affairs of the society as manager. A7 was president during 1992-94 and Sh. O.P. Sahani was treasurer. A6 was secretary of the society at that time and Sh. A.K. Gupta was joint secretary. She was also confronted with file relating to membership of A3, however, she did not identify handwriting and signature on that document imputed to A5, A6, A7 or Sh. O.P. Sahani. She also did not identify signature of Sh. A.K. Gupta. Once again, this witness had nothing to say anything against A1.
43.PW18/Sh. Rajendra Prakash had simply sent record of leave application etc. related to A1. It is evident from the letter Ex.PW18/1 (vide which photocopy of leave application and other documents were sent to CBI) that photocopies of these documents were taken by CBI. CBI got all the documents proved collectively through PW18, though as a matter of fact PW18 had simply sent those documents and had no other relation with the same. If CBI wanted to prove that the leave application was moved by A1, vide which he remained on earned leave from 21.02.1994 to 25.02.1994, they should have obtained original leave application and then it could have been sent to CFSL with specimen signature and handwriting of A1 for comparison. It was never done. Still, if it is believed that A1 was on leave from 21.02.1994 to 25.02.1994, this fact in itself Page 51 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 does not prove that A1 was present during this period in Delhi. It is worth to mention here that A1 at that time was posted in Mumbai. It is admitted fact that no station leave application was given to the department. Ld. Sr. PP for CBI submitted that A1 was in habit to go out of station without giving station leave. If for the time being I accept this contention as well, still it cannot be said that A1 had come to Delhi only, but to any other place.
44.The next important fact required to be proved by CBI was to show presence of A1 at official residence of Smt. Sheela Kaul on 24.02.1994 along with A7, so as to allege that these two persons had gone there with purpose to hand over Rs.5 lakh to A3. A3 was son-in-law of Smt. Sheela Kaul so he might not have been regarded as a visitor to that house. But rest of the persons were certainly visitors only.
45.PW1 in his cross-examination had stated that since Smt. Sheela Kaul was a Cabinet Minister, she was provided with security cover. She was given round the clock security cover outside her residential accommodation. The guard posted at the gate maintained register to ascertain identity of the visitors. IO/PW44 denied having knowledge of any such register being maintained there and he stated that he did not seize any such register. It was surprising that IO omitted to look for such visitor book/register, which is normally maintained at the residence and office of any minister or high profile person. Thus, there could have been a very relevant piece of evidence to show presence of A1 and A7 at 9, Moti Lal Nehru Marg on 24.02.1994, but for omission on the part of IO, such fact is not proved. As already observed by me herein before that CBI has not come up with any witness to say before the court that A1 visited residence of Smt. Sheela Kaul along with A7 and Rs.5 lakh was paid to A3 at the residence of A1, there remains no evidence to prove aforesaid allegation.
46.CBI conducted raid at the office of A1 in Mumbai only to find one register Page 52 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 wherein a record was maintained in respect of different persons with their address and telephone number. This register was in the form of a telephone diary. This register was never proved in accordance with law so as to establish that who had prepared this register or that under whose handwriting this record was maintained. Even otherwise, I do not find any relevance of this telephone register for the purpose of this case. Similarly, CBI had seized record of leave file of A1, but I do not find any relevance of such file as well and that is why I am not looking into probative value of this piece of evidence.
47.Thus, on the basis of my foregoing discussions on the evidence and law, I find that there is no material on the record at all to show that A1 came into contact with any of the co-accused persons for the purpose of hatching a conspiracy or for the purpose of making demand of gratification to exercise personal influence over Smt. Sheela Kaul through A3.
ROLE OF A4 AND EVIDENCE :-
48.CBI has chargesheeted A4 on the basis that she was one of the beneficiaries of bank drafts and banker's cheque allegedly obtained by A3 from office bearers of society and she was also beneficiary of membership of the society. According to CBI, membership of six persons including A4 in the society were given as part of gratification and additional amount was paid in the form of bank draft and banker's cheque in favour of A3, three sons of A3, A4 and Sh. Suresh Butani. CBI though chargesheeted A3 because besides being beneficiary of membership of society and above mentioned bank drafts, there were other allegations as well against him. But CBI did not chargesheet three sons of A3 i.e. Sh. Shantanu Kaul, Sh. Ashish Kaul and Sh. Vivek Kaul. CBI also did not chargesheet Sh. Suresh Butani. Rather, Sh. Suresh was made a witness, who did not say anything in favour of case of CBI. All these four persons were in same position as imputed to A4. IO made a Page 53 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 distinction between case of A4 with other four stating that Sh. Suresh Butani did not utilize the amount. A4 was holding immovable property in the name of her husband in New Delhi, therefore, she was not entitled to become member of the society. IO could not find any overt or covert act on the part of accused persons mentioned in Column-II. In Column-II, IO had mentioned name of Smt. Sheela Kaul, Sh. Vivek Kaul, Sh. Ashish Kaul, Sh. Shantanu Kaul and Sh. Suresh Butani. In his cross- examination, IO/PW44 admitted that a difference between role of three sons of Rattan Kaul and role of A4 was that husband of A4 had a property in Delhi and therefore, A4 was not entitled to apply for membership of the society. He further admitted that he had not taken any document related to ownership of any property in the name of husband of A4. He did not take specimen signature and handwriting of A4. He simply said that A4 had given oral statement that she signed the application form, therefore, he did not find any necessity to obtain her specimen signatures.
49.I find all these reasonings given by PW44/IO to be nothing else, but an example of blatant capricious action. I am unable to understand that how could an IO forget the basic law of evidence that any statement given by an accused before police is not admissible in evidence except to the extent provided in Section 27 of the Evidence Act. I do not find any justification on the part of IO for not obtaining specimen handwriting and signature of the accused persons except A3 and A7 and Sh. O.P. Sahani for the purpose of comparison of the same with the documents, bank vouchers, paying slips etc. This appears to be an example of gross misconduct on the part of IO.
50.Coming back to the case against A4, IO probably forgot that he had obtained specimen handwriting and signature of A3, because it was case of CBI that all the application forms for membership of society were filled in by A3. The application forms along with subsequent handwriting of A3 Page 54 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 were sent to GEQD for comparison and PW-39/Dr. B.A. Vaid had compared the same. He gave opinion that all these applications in the name of A3, three sons of A3 as well as A4 were filled in the handwriting of A3. Therefore, the above mentioned statement of IO thereby justifying omission to take specimen handwriting of A4, was given against the record of the case.
51.CBI has never alleged that A4 had played any active or overt role in the alleged conspiracy or in the alleged transaction of demand and receiving gratification. It is not allegation of CBI that A4 had given assurance to exercise personal influence upon Smt. Sheela Kaul. According to CBI, such assurances were given by A1, A2 and A3 only. Therefore, it has to be seen if A4 can be said to be a conspirator and abettor to commit offcence under Section 9 of PC Act. Since there is no evidence of her direct participation in such transaction, CBI relied upon PW3/Sh. R.S. Dixit, who had submitted record of banker's cheque which were prepared in the name of six persons. None of the applications for banker's cheque or bank draft were allegedly prepared at the instance of A4. This demand drafts and banker's cheque were deposited in the account of A4. However, it has to be seen if these deposits in her account were done with knowledge and active persuasion of A4 to share the booty of gratification. The prosecution is always burdened with task of proving all the allegations beyond reasonable doubt, therefore, such knowledge and direct or indirect persuasion on the part of A4 to share this booty of gratification was required to be proved.
52.CBI did not prove that the account in the name of A4 was actually opened with her signature and whether the amount from this account was withdrawn under signature of A4. Therefore, a scope remains there to say that there was possibility that this account was not actually opened by A4.
53.Assuming that this account was actually opened by A4, it was still Page 55 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 required for CBI to prove that account was actually operated by A4 only. When A3 could have filled application in the name of A4, then there could be possibility that her account could also be operated by A3 or any other person. Even if A4 is imputed to have some knowledge that her account was being operated by some different person, it cannot be said on the basis of this knowledge that A4 was acting as abettor in this case. To become an abettor one has to play some sort of active role with intention that the offence is committed. The amount of Rs.49,000/- or Rs.29,000/- or Rs.30,000/- being deposited in the account of A4 could be for any purpose and it was not necessary for A4 to know that such amount could be part of some illegal gratification.
54.I also find that evidence of PW3, in order to prove the contents of several documents, is not in conformity with law of evidence. I would reproduce part of testimony of PW3 through whom CBI had got exhibited several documents relating to application for banker's cheque, bank drafts etc. The relevant part of testimony of PW3 is as follows :-
"I cannot say who deposited the amount of cash for preparation of bank drafts/pay orders referred by me in my examination-in-chief i.e. Ex.PW3/1 to Ex.PW3/6. The applications referred by me dated 25.04.94 Ex.PW3/B1 to Ex.PW3/B5 and Ex.PW3/C I have not been presented in the branch in my presence. I have also no knowledge who has submitted the application Ex.PW3/D1 to Ex.PW3/D6 and Ex.PW3/E1 to Ex.PW3/E6. I cannot identify the writings and signatures of any of the persons on the above applications/form or any other application referred to by me in my examination-in-chief. I have no personal knowledge who has issued the cheques Ex.PW3/L, PW3/J, PW3/K. I have no personal knowledge who has filled in Ex.PW3/M1, Ex.PW3/M2 and Ex.PW3/N. Similar is my reply with regard to Ex.PW3/F and Ex.PW3/L. It is correct that the pay order /draft are prepared on the deposit of the amount and at that time the counterfoil is issued and on delivery of the bank draft/pay order the same is taken back from the applicant and the cheque/pay order is issued after verifying the Page 56 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 signatures. It is correct that I cannot personally identify the writing and signatures on Ex.PW3/D1, PW3/D2, PW3/D3, PW3/D4, PW3/D5 and D6, Ex.PW3/B1, PW3/C, PW3/B3, PW3/B4, PW3/B5. It is also correct that the none of the draft/pay order referred to by me in my examination-in-chief have been delivered in my presence."
55.I will give some more examples of the manner in which the documents were proved by CBI in this case. The relevant part of testimony of PW6 is as follows :-
".................I have seen statement of A/C (D 30) already stands proved as Ex.PW3/G, which pertains to A/C No.11780 and the name of the A/C Holder is Shri R.P. Gupta.
I have seen application forms for issuance of five drafts which already stand proved as Ex.PW3/B1 to Ex.PW3/B5. All five applications are dated 25.04.1994 (D
24). Vide application Ex.PW 3/B1, a Bank draft of Rs.49,000/- was issued in favour of accused Manju Madan. Amount of Rs.49,000/- was deposited in cash for issuance of the said Bank Draft. Bank Draft (D 64) for Rs.49,000/- in favour of accused Manju Madan was issued under my signatures at point A and the said draft is Ex.PW6/1. On reverse of Ex.PW3/B1 there are signatures of Shri R.P. Gupta at point A in token of receipt of the draft, who had also introduced the A/C Opening Form Ex.PW3/A. ...................I have seen six applications for issuance of draft/banker's cheque for Rs.20,000/- each in favour of Shri Suresh Bhutani, Mrs. Manju Madan, Mr. R. Kaul, Mr. Vivek Kaul, Mr. Shantanu Kaul and Mr. Ashish Kaul. All the aforesaid six applications have already been proved as Ex.PW3/D1 to D6.
Accused R.P. Gupta vide cheque, which already stands exhibited as Ex.PW3/J deposited/transferred an amount of Rs.1,20,150/- from his Saving Bank A/c. No. 11780. Ex.PW3/J bears signatures of accused R.P. Gupta at point A. On the reverse of Ex.PW3/J, accused R.P. Gupta had made an endorsement encircled at point B and Page 57 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 requested for issuance of six Banker's Cheques for Rs.20,000/- each in favour of Mr. Shantanu Kaul, Mr. Ashish Kaul, Mr. Vivek Kaul, Mr. R. Kaul, Mrs. Manju Madan and Sh. Suresh Butani. Issued six Banker's Cheques for Rs. 20,000/- each under my signatures in the names of Mr. Shantanu Kaul, Mr. Ashish Kaul, Mr. Vivek Kaul, Mr. R. Kaul, Mrs. Manju Madan and Shri Suresh Butani. ..............
...............It is correct that signatures of accused R.P. Gupta on the reverse of Ex.PW3/B1 to Ex.PW3/B6 were not put in my presence. I identified signatures of accused R.P. Gupta on the reverse of Ex.PW3/B1 to Ex.PW3/B6 after comparing and tallying the same with those appearing on the Account Opening Form Ex.PW3/A and Savings Banks Cheques Ex.PW3/L, Ex.PW3/J and Ex.PW3/K, which had been passed by me for payments. ............... Signatures of accused R.P. Gupta on the reverse of Ex.PW3/B1 to Ex.PW3/B6 with those appearing in the Account Opening Form Ex.PW3/A and Cheques Ex.PW3/L, Ex.PW3/J and Ex.PW3/K have been compared by me and tallied for the first time during my deposition in the Court. ..................
...............I never met accused R.P. Gupta. It is correct that accused R.P. Gupta had never signed in my presence. ............
..............I also do not know the applicants of Ex.PW3/B1 to Ex.PW3/B6. The aforesaid cash was not deposited in my presence and therefore, I cannot say whether it was deposited by the applicants or by somebody else on their behalf. I cannot identify signatures of accused I.P. Gupta, Hawa Singh, A.K. Gupta and those of Shri O.P. Sahani and Ms. Vibha Gupta, without comparing the same with those appearing on the documents of the Bank. ......
............It is correct that I do not know accused A.K. Gupta. ........"
56.I will give some more examples and the relevant part of testimony of PW40 is as follows :-
"I have been shown pay-in-slip dated 28.04.1994 (Part of D-17) for a sum of Rs.49,000/- in the account no. 20049 Page 58 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 of Ms. Manju Madan. The same is now Ex PW40/4. .....
I have been shown pay-in-slip dated 09.05.1994 (Part of D-17) for a sum of Rs.20,000/- in the account no. 20049 of Ms. Manju Madan. The same is now Ex PW40/7. ......
I have been shown pay-in-slip (Part of D-17) for a sum of Rs.30,000/- in the account no. 20049 of Ms. Manju Madan. The same is now Ex PW40/11."
57.PW25/Sh. D.K Singh deposed that he seized six documents in this case. However, neither he said anything about place of seizure nor it was specifically asked from him. He proved seizure memo as Ex PW25/1 by identifying his signature. Membership files of Sh. Shantanu Kaul, Sh. Ashish Kaul, Sh. Vivek Kaul, Smt. Manju Madan, Sh. Ratan Kaul and Sh. Suresh Butani were exhibited in his statement. However, no witness was produced to prove the contents of these files. This witness proved other seizure memos as well and he deposed about the person or place of those seizures. Unfortunately, photocopies of specimen writings and signatures of Sh. Ratan Kaul and Sh. O.P Sahni were also put to this witness and were exhibited by the prosecutor. Objection was raised by defence regarding mode of proof and it was validly so raised.
58.The illustrations of the manner in which the so called incriminating documents were proved by CBI, show that contents of these documents were not proved so as to raise any finger against A4 on the basis of these evidences. Therefore, on the basis of my foregoing discussion over the evidence and the probabilities, I am unable to find any role played by A4 in the alleged transaction of demand and payment of alleged gratification.
ROLE OF ACCUSED A6, A7 AND A8 :-
59.The role of A6, A7 and A8 was given as the respective office bearers of the society, who had taken active participation in payment of gratification to A3 through A1.CBI relied upon PW10/Sh. Gopal Mandolia, PW11/Smt. Page 59 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 Kamla Gupta and PW24/Sh. O.P. Sahani, to support their case against these accused persons. The facts which emerged out of their testimony remained that A7 was working as president and A6 was working as secretary in the society. Sh. O.P. Sahani was working as treasurer in the society. CBI had chargesheeted A5 to A8 mainly on the basis of different letters, which were exchanged between the parties.
60.CBI relied upon circumstantial evidence in the form of some letters, which were allegedly sent by A5, A6, A7 and A8 to A3, Smt. Deepa Kaul, A1 and to the President of India. In these letters the factum of making payment of gratification on behalf of society to A3 at the instance of A1 were stated. CBI has also relied upon some letters in the form of notices allegedly exchanged between advocates for A3 and A5 to A8. As far as all these letters are concerned, CBI had allegedly recovered photocopies of these letters during search conducted at residential premises of A3. PW31/Sh. L.B. Bhoriya was the witness to this search proceedings, who vouched about witnessing this aforesaid search conduced on 10.07.1996 at residential premises of A3. He proved the search memo as Ex.PW33/3 vide which 74 documents were seized by CBI. Since this witness was a witness to preparation of the search memo and he identified his signature on the same, he was a competent witness to prove the same. However, CBI got proved all the photocopies of the letters and other documents, allegedly recovered from the residence of A3 through PW31, which were given exhibit marks accordingly. Defence had raised objection in respect of photocopies of the letters, which were proved by PW31. Defence counsels took plea that all these letters in the form of their photocopies cannot be read in evidence because contents of the same were never proved and these documents were not primary evidence as well.
61.Ld. Sr. PP for CBI argued that since during the search proceedings, these photocopies were recovered by CBI, therefore, they are deemed Page 60 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 to be original documents and hence, they can be read in evidence.
62.I am not in agreement with arguments of ld. Sr. PP for CBI. It is true that the photocopies of all these letters and documents were found during search proceedings conducted at the residence of A3. So at the most, PW31 could have proved the fact that this search proceedings was conducted at the residence of A3 and these photocopies were found from his residence. PW31 could not have been competent witness to prove contents of all these documents, because he was merely a witness of search proceedings. PW31 was not the witness of preparation of all these documents, which were got proved through him by CBI.
63.In fact, on the basis of this recovery, investigation should have been carried out to find out the original documents. After recovery of the original documents, the next task for CBI was to establish that these documents/letters bore handwriting or signature of the concerned accused persons. After having proved that these letters were actually signed and sent by accused A5 to A8 to different persons at different point of time, it was further required to establish the correctness of the facts stated in those letters. Only then contents of these letters could be used by court as incriminating evidence against any of the accused persons. Mere recovery of photocopies of these letters from the house of A3, cannot be incriminating against other accused persons.
64.I will clarify aforesaid situation with the help of some illustration. If A writes a letter to B alleging that C had taken bribe from A to be paid to B. Then after proving that this letter was actually written and signed by A, prosecution must establish that C had taken bribe from A for the purpose of delivering the same to B. Otherwise, even on proof of this letter, it cannot be assumed that C had actually taken any bribe from A so as to deliver the same to B. If court happens to believe simply on the basis of proof of aforesaid letter that C (innocent/ any high profile person) had taken bribe from A so as to deliver the same to B (innocent/ any high Page 61 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 profile person), then it would be very easy for any person to implicate innocent or high profile person simply on the basis of writing letter to another person thereby alleging that the third person (innocent/ any high profile person) had taken bribe to be paid to second person (innocent/ any high profile person). Apparently, this cannot be justifiable conclusion and therefore, mere on the basis of such letter court cannot raise any adverse presumption against B and C, in absence of independent evidence. Such letter at the most, can be only a piece of corroborating evidence to support the allegation that B had taken bribe from A through C.
65.In fact the major part of evidence of CBI related to proof of any document heavily suffers with illegality thereby making the whole process of leading lengthy evidences redundant. I have already given several illustrations herein before and the last illustration is taken from the testimony of IO/PW44.
66. The relevant part of testimony of PW44 is as follows :-
"I have been shown part of D-41 which is a letter addressed to me dated 11.06.96, through which Sh. A.S Verma, Desk Officer, Ministry of Urban Affairs and Employment had forwarded file No. J-13029/1/93-DD-II in connection with inquiry in PE-3(A)/96-DLI. The letter is now Ex.PW-44/1. ...........
I have been shown D-39 which is a file No. F3(29)/91-MP Volume I, having pages 1 to 140 of M/s Jagjivan Cooperative House Building Society maintained by DDA. The file is now Ex PW-44/2. .............
I have been shown D-35 which is telephone diary of A2 and same is mentioned at Sl. No. 18 in Ex PW27/1 (D-
50). D-35 is now Ex PW44/10.
I have been shown D-34 which is folder regarding petition, containing page no. 1 to 14 and same is mentioned at Sl. No. 20 in Ex PW27/1 (D-50). D-34 is now Ex PW44/11.
Page 62 of 67 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 I have been shown D-13 which is a file, containing page no. 1 to 61 regarding documents of Jagjiwan Cooperative House Building Society Ltd. and photocopies of drafts of various persons. Same is mentioned at Sl. No. 21 in Ex PW27/1 (D-50). D-13 is now Ex PW44/12."
67.Coming back to the present case, I find that simplicitor photocopies of the alleged letters cannot be treated as primary evidence of the document. CBI could not have proved photocopies of these documents, without satisfying the conditions laid down in Section 65 of The Indian Evidence Act. CBI though attempted to prove several documents through different witnesses, but unfortunately care was not taken to prove the documents and their contents in accordance with law of evidence. A shortcut method was adopted to get exhibited various documents through those witnesses, who had no connection with such document. No hesitation was shown to tender photocopy of a document in evidence, without explaining the whereabouts of the originals.
68.In the case of Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483 at page 489, Supreme Court emphasized the requirement to prove a document through secondary evidence by satisfying the factual conditions as laid down in Section 65 of Evidence Act as well as requirement of proving the contents thereof. The court held as under:-
"20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence Page 63 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law."
69.In J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730 at page 733, Supreme Court held that-
"9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section."
70.PW24 was shown letter dated 27.04.1995 mentioning his name with signature, but he denied his signature on the same. He was also shown photocopy of letter dated 03.04.1996 addressed to The President of Page 64 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 India and purportedly signed by I.P. Gupta on behalf of the society. However, he denied signature of I.P. Gupta on the same. He did not know A.K Srivastav as well.
71.In view of aforesaid discussion on law and evidence of letters, the inevitable conclusion is that this court cannot read the contents of the letters, which were exhibited as Ex.PW31/5 to Ex.PW31/26 and as Ex.PW31/32. In view of this finding, nothing incriminating can be found against A6, A7 or A8.
72.Such manner of proving any document and then making attempt to read the contents of the same against any accused person is highly depreciable. I may just advise CBI to seriously look into such aspect of leading evidence, so as to take corrective measures.
73.A8 had taken plea that he was chargesheeted by IO merely on the basis of presumption that he was the concerned A.K. Gupta, who was shown as joint secretary of the society. According to A8 he had nothing to do with the society and just because his family members and relative were working in this society, he was falsely implicated in this case.
74.In respect of A8, CBI once again relied upon PW10, PW11 and PW24/ Sh. O.P. Sahani. Neither PW10 nor PW11 nor PW24 identified A8 as the same A.K. Gupta, who was shown as joint secretary of the society. A8 came up with his different name i.e. Ashootosh Kant stating that he was never known as A.K. Gupta.
75.PW24/Sh. O.P Sahni worked as additional treasurer in the society. He deposed that Sh. R.P Gupta was not holding any position in the society. He further deposed that Sh. A.K Gupta was member of the society and an officer also, but he had not seen him. Thus, it cannot be inferred from his testimony that A8 was that member and officer of the society. In fact none of the witnesses produced by CBI identified A8 as member and joint secretary of the society.
76.Interestingly in the charge sheet, IO even did not mention the personal Page 65 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 details of A8. He simply mentioned A.K Gupta, without reference of parentage and other particulars.
77.Ld. Sr. PP for CBI referred to the documents, which were proved by A8 in his defence evidence to say that his parentage and address were shown in these documents and according to these documents A5 was maternal-grand-father of A8. Smt. Vibha Gupta and Sh. V.K. Gupta were parents of A8, who were admittedly office bears of the society. He once again referred to recovery of certain letters in the presence of PW31 to say that name of A8 had appeared therein as A.K. Gupta. I do not find any merit in such contention of ld. Sr. PP for CBI. The evidentiary value of photocopy of alleged letter has already been discussed by me in the preceding part of this judgment. They do not have any evidentiary value.
78.Most importantly, when IO chargesheets an accused, then it is expected that he would know his complete identity and it is further expected that he would point out his specific role in the chargesheet. Prosecution cannot act on the expectation that the accused would come up with some evidence in his defence i.e. the last stage of trial and they would rely upon the same so as to explain and establish the identity of that particular accused. It was conceded by ld. Sr. PP for CBI that on the part of prosecution, there was no material to show that A.K. Gupta referred as joint secretary of the society was none else, but A8. It was further admitted situation during the arguments of the parties that as per list of members of society, which was proved by PW19/Smt. Suman Sabharwal as Ex.PW19/3, that there were more than one A.K. Gupta in this list. IO admitted that he had not obtained any document from the society or from the office of registrar to establish that which particular A.K. Gupta was working as joint secretary. IO conceded that there might be many A.K. Gupta, but he did not make inquiry about particular A.K. Gupta being joint secretary. No document on the record was proved by CBI with admitted or proved handwriting and signature of A8 to show that it was Page 66 of 67 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi CBI/19/2016 no one else, but A8 who was working as joint secretary of the society. Thus, I do find that name of A8 was mentioned in the chargesheet merely on the basis of some presumptions, which was obviously not in conformity with job of IO.
DECISION :-
79.On the basis of my foregoing discussions on fact, law and evidence, I reach to the conclusion that CBI has miserably failed to prove the allegations made against A1, A4, A6, A7 and A8 and hence, none of the charges leveled against them stand proved. Accordingly, accused A1, A4, A6, A7 and A8 are acquitted of all the charges.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3,
PRAMACHALA Karkardooma Courts,
Delhi
Date: 2017.08.30
12:55:36 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 26.08.2017 Special Judge (PC Act) CBI, East
(This order contains 67 pages) Karkardooma Courts, Delhi
Page 67 of 67 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi