Delhi District Court
Central Bureau Of Investigation vs Iqbal Ahmed Khan on 28 August, 2018
IN THE COURT OF KOVAI VENUGOPAL, SPECIAL JUDGE,
P.C. ACT (CBI)-09, CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 5/15(532201/16)
RC No. 30(A)/1998
CNR No. DLCT01-000021-2000
CENTRAL BUREAU OF INVESTIGATION
VERSUS
IQBAL AHMED KHAN
S/O LATE SH. FAIZ AHMED KHAN
R/O 6, JAIPUR ESTATE, NIZAMUDDIN EAST,
(GROUND FLOOR), NEW DELHI
DATE OF INSTITUTION : 25.04.2000
DATE OF ARGUMENTS : 10.08.2018
DATE OF JUDGMENT : 28.08.2018
JUDGMENT
1. Accused Iqbal Ahmed Khan was charge-sheeted by the CBI for the offence punishable under Sections 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988. Accused Iqbal Ahmed Khan was put on trial.
CASE OF THE PROSECUTION
2. The present case was registered on 09.06.1998 against CC No. 5/15(532201/16) 1 of 199 accused Iqbal Ahmed Khan vide FIR No. RC DA1-1998-A- 0030 for the offence punishable under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988. As per the contents of FIR, Iqbal Ahmed Khan (I. A. Khan) S/o Late Sh. Faiz Ahmed Khan while posted and functioning as Junior Engineer MCD during the period 1988-98, misused his official position as a public servant and amassed assets both movable and immovable to the tune of Rs.1.50 Crore, which are disproportionate to his known sources of income. I. A. Khan had joined MCD during the year 1975 as Junior Engineer and was continuing as such in pay scale of Rs. 1640-2900 (Old Scale). His total income from salary during his entire service period is Rs.7 lacs (approx.). He earned assets including two flats at 6-Jaipur Estates, Nizamuddin East (GF) in the name of his father-in-law and mother, costing about 1.50 Crores, Maruti Esteem Car No. DL9CA-3010 in the name of M/s. Sol International Ltd. costing about Rs.4 lacs, Household Articles including four air conditioners, Colour TV, VCR, Fridge, CC No. 5/15(532201/16) 2 of 199 Washing Machine and other costly electronic goods worth Rs.5 lacs, which are to the tune of Rs.1.52 crores. I. A. Khan purchased some agricultural land worth Rs.9,25,505/- during 1993-94 in the name of his wife and mother at Lalgarhi, Pahasu, UP.
3. Based on the said FIR, investigation was carried out and charge sheet filed against Iqbal Ahmed Khan after the completion of investigation.
4. As per the charge sheet, it has been revealed during the investigation that Sh. Faiz Ahmed Khan father of I. A. Khan, who was working as a Librarian at Mukaram Inter College, Pahasu, District Bulandshahar till 1968, expired in the year 1992. I. A. Khan has six sisters. Out of the said six sisters, two were married about 20 years ago, the other two were also married about 12 years ago and the fifth sister was married in 1994 and remaining sister is unmarried.
5. It has been further revealed that I. A. Khan had passed high school in 1970 and secured diploma in Civil Engineering from CC No. 5/15(532201/16) 3 of 199 Aligarh Muslim University in the year 1974. He was married to Smt. Salma Iqbal, Daughter of Sh. Ahmad Ali Khan r/o Bulandshahar in the year 1977. I. A. Khan had joined MCD as JE in the year 1978 in the pay scale of Rs.425-700, which was revised in the year 1986 to Rs.1400-2300/- and in the year 1988 to Rs.1640-2000. The scales were further revised in the year 1993 as Rs.2000-3500/- and in the year 1997 to Rs.6500-10500/-.
6. It has been further revealed that Smt. Salma Iqbal wife of I. A. Khan is a housewife. He has three sons namely Faizal, Fahad, Fahan and one daughter namely Eram, who are school / college going children.
7. As per the charge sheet, prior to the check period, I. A. Khan was living on rent in a barsati at K-20, Jangpura, Delhi and he continued to reside at the said barsati till 1992, when he shifted to his new house at 6-Jaipur Estate, (GF), Nizamuddin East, New Delhi, indicating that his financial position prior to check period was not at all sound.
CC No. 5/15(532201/16) 4 of 199
8. It has been revealed that I. A. Khan during the check period i.e. from 01.01.1987 to 10.06.1998 has received Rs.5,24,962/- towards his salary and allowances from MCD, which is based on the pay and allowances statements furnished by the Department.
9. As per the charge sheet, since the properties / bank balances / assets prior to January 1987 were negligible and were found to have been acquired from 1987 onwards, the check period for investigating the acquisition of assets disproportionate to his known sources of income was taken from January 1987 to 10.06.1998 (the date of search).
10. It has been revealed during the investigation, as mentioned in the charge sheet that I. A. Khan has constructed few shops at Pahasu, from which as per the statements of the tenants, he has received rent of Rs.60,200/- during the check period. The opening balances in the various accounts of accused and his family members at the start of the check period are Rs.96,758/- and the interest earned during the period from all CC No. 5/15(532201/16) 5 of 199 such bank accounts, as per the statements is to the extent of Rs.61,776/-.
11. It has been further revealed that I. A. Khan had purchased six pieces of land in the name of his wife and mother during the period 1993 to 1995. The evidence collected, as per charge sheet, indicates that from the time of acquisition, there has been plantation of mango and other trees and no crop produce has come up during the check period, but he received only Rabi Crop (wheat) from another land measuring 0.696 Hect., purchased in the name of his wife at Pahasu in 1984. The average production of wheat in this land is 40 Qtls. per Hect per crop per year. The average cost of wheat during last 11 years is taken as Rs.500/- Qtls., hence the total income comes out to be Rs.12,500/- per year and by taking 50% of the cost of the produce towards expenses, the total net income from the said land during the period January 1987 to June 1998 comes to Rs.68,750/-. The cost of the produce (Mango etc.) from the ancestral land of I. A. Khan measuring CC No. 5/15(532201/16) 6 of 199 0.606 Hect. situated at Pahasu for the period January 1987 to June 1998 comes out to be Rs.1,69,680/- at an average produce of Rs.25,000/- per year per Hect. If 1/3rd of the cost of the produce is taken towards cultivation charges, as per the charge sheet, the net income from the said land during the period January 1987 to June 1998 comes out to be Rs.1,11,000/- (approx.). Hence, the total income of I. A. Khan from agricultural land produce comes out to be Rs.1.80 lacs (approx.). I. A. Khan has not claimed any income from the land in statements I to VI furnished by him to the Department. The total income of the accused during the check period thus comes to Rs.8,26,438/-.
12. It has been further stated in the charge sheet that I. A. Khan has claimed income of Rs.95,000/- from sale of "Safeda Trees" in the years 1992, 1994 and 1996, but the evidences collected during investigation could not substantiate the income of I. A. Khan from the said sale. I. A. Khan has also claimed an income of Rs.7,14,404/- from sale of ancestral CC No. 5/15(532201/16) 7 of 199 jewellery, but the said income could also not substantiate during investigation as the accused and purchaser failed to produce any supporting evidence in this regard.
13. It has been alleged in the charge sheet that the assets held by the accused at the end of check period, are found to the extent of Rs.40,07,261/- (Immovable Assets Rs.30,19,103 + Movable Assets Rs.9,88,158). The movable assets include six pieces of the agricultural land valued Rs.9,27,071/-, Flat No. D-201, Taj Enclave, Geeta Colony, Delhi including the cost of wood work Rs.3,17,510/-, the construction on house at Pathan Tola, Pahasu Rs.5,10,118/- as worked out by the Junior Engineer and front portion of ground floor at 6-Jaipur Estate, Nizamuddin, Delhi in the name of his mother evaluated Rs.12,12,404/-(inclusive the cost of land, registration fee and cost of construction). It has been further alleged that 700 sq. yds. was purchased by him in the name of his wife in the month of March 1989 from Sh. Tahseen Khan for Rs.50,000/- against documentation for Rs.15,000/-
CC No. 5/15(532201/16) 8 of 199 and stamp duty of Rs.2000/-.
14. It has been further stated in the charge sheet that the movable assets of I. A. Khan include the cost of the household articles acquired during the period from January 1987 to June 1998, as per the inventory prepared at the time of search at 6-Jaipur Estate, Nizamuddin East and D-201, Taj Enclave, Geeta Colony, Delhi, the cost of jewellery found at 6-Jaipur Estate, Nizamuddin East, during the search, the balance of the accounts held in the name of I. A. Khan, his wife, NSC's purchased in the name of I. A. Khan and cash in hand Rs.34,546/-.
15. It has been further stated that the expenditure incurred during the check period includes verifiable items of expenditure such as expenses on education of children, telephone bills, electricity meter / charges and the house tax, which are based on documents. The other items of expenditure taken as non verifiable being expenses towards food, clothing etc. for the check period starting on 01.01.1987 and ending on CC No. 5/15(532201/16) 9 of 199 10.06.1998. The expenditure on these items is taken as 1/3rd of the net salary drawn by I. A. Khan. The total of the verifiable and non verifiable expenses thus comes to Rs.9,63,871/-. The above said transactions are not intimated /reported to the department and to Income tax department and as such the benefits of income from such sources cannot be given to the accused. Personal file of I. A. Khan does not contain intimation / permission for the said transactions in movable & immovable assets and he has not filed property returns.
16. It has been further revealed that only a small house containing three rooms was constructed by his father during seventies at Pahasu. The said house was renovated and reconstructed by accused I. A. Khan during 1987-88. While calculating the cost of construction of the said house, the cost of construction of the old portion has not been considered. Thus in computing the cost of construction, only new portion is taken into account.
17. At the end of the investigation, the IO found that during the CC No. 5/15(532201/16) 10 of 199 check period, I. A. Khan acquired total assets worth Rs.39,19,103/-(Annexure A & B) and his expenditure during the said period was Rs.9,63,871/-(Annexure D). The income of I. A. Khan and his family members during the check period is Rs.8,26,438/-(Annexure C), which are as under:-
ANNEXURE A ASSETS AT THE BEGINNING OF CHECK PERIOD S. ACCOUNT NO. BALANCE NO.
01. 16036 at SBI, Jangpura, N. Delhi in the name of I. A. Rs.100/-
Khan.
02. 62/20 at Allahabad Bank, Paharu in the name of Mrs. Rs.2,000/-
Salma, Bank Paharu.
03. 431/6 at Allahabad Bank, Paharu in the name of I. A. Rs.62,298/-
Khan
04. 12/1 at Allahabad Bank, Paharu in the name of Sh. F. Rs.1,445/-
A. Khan.
05. 2602 at PNB, Paharu in the name of Mrs. Salma Iqbal. Rs.22,031/-
06. 2599 at PNB, Paharu in the name of Sh. I. A. Khan. Rs.5,518/-
07. 709 at SBI, Bullandshahar in the name of Salma Iqbal. Rs.3,366/-
Total Rs.96,758/-
ANNEXURE B
CC No. 5/15(532201/16) 11 of 199
ASSETS AT THE END OF CHECK PERIOD
(A) IMMOVABLE ASSETS
S. DETAILS YEAR AMOUNT
NO.
01. 6 pieces of agricultural land at Vil- 1993-1995 Rs.9,27,071/-
lage Lalgarhi, Pahasu, District Bul- (17.05.1993, landshahar (UP) acquired in the 11.04.1994 name of wife and mother of the ac- 12.05.1995(two) cused I. A. Khan. Payments are 19.07.1994(two) made by cash.
02. Flat No. D-201, Taj Enclave, Geeta 1988 onwards Rs.3,17,510/-
Colony, Delhi & wood work at the (11.04.1988 to flat. Payments partially by cheque & September 1998) partially by cash.
03. House at Pathan Tola, Pahasu, Dis- 1987-1988 Rs.5,10,118/-
trict Bullandshahar, U.P., excluding the cost of land and the cost of old existing construction at the start of the check period).
04. Front portion of ground floor of 6- 1994 Rs.12,12,404/-
Jaipur Estate, Nizamuddin East, New Delhi in the name of his mother inclusive of cost of construction, fans, tube lights, wooden cupboards etc.
05. Khet No. 2055 at Pahasu District March 1989 Rs.52,000/- CC No. 5/15(532201/16) 12 of 199 Bullandshahar, U. P. in the name of Smt. Salma Iqbal.
Total Rs.30,19,103/-
(B) MOVABLE ASSETS S. DETAILS YEAR AMOUNT NO.
01. Household article as per inventory 1988 onwards Rs.8,29,361/-
made during the search at 6, Jaipur Estate, Nizamuddin East (the cost of fans, tube lights, wooden cupboards Rs.20,400/- excluded as these are included at serial No. 4 of A above)
02. Household articles as per inventory 1988 onwards Rs.2,050/-
made during the search at D-201, Taj Enclave, Geeta Colony, Delhi.
03. Jewellery found at 6, Jaipur Estate, 1998 onwards Rs.41,900/-
Nizamuddin East during the search.
04. Balance in account No. 16036 at June 1998 Rs.2,533/-
SBI, Jungpura, N. Delhi,opened on 21.01.1987 in the name of Sh. I. A. Khan.
05. Balance in account No. 197/34 at Al- June 1998 Rs.13,855/-
lahabad Bank, Pahasu in the name of Mrs. Sultana Begum opened on 26.04.1993.
06. Balance in account No. 62/20 at Alla- June 1998 Rs.2,442/-
CC No. 5/15(532201/16) 13 of 199
habad Bank, Pahasu in the name of
Mrs. Salma Iqbal wife of I. A. Khan
opened on 14.12.1981.
07. Balance in account No.431/6 at Alla- June 1998 Rs.1,179/-
habad Bank, Pahasu in the name of
I. A. Khan opened on 28.09.1978.
08. Balance in account No. 2602 at June 1998 Rs.1,253/-
PNB, Pahasu in the name of Mrs.
Salma Iqbal opened on 03.12.1984.
09. Balance in account No. 2599 at June 1998 Rs.5,109/-
PNB, Pahasu in the name of I. A.
Khan Iqbal opened on 03.12.1984.
10. NSC No.17, DD-667895 dated March 1997 Rs.5,000/-
07.03.97 in the name of Sh.I. A.
Khan.
11. NSC No. 14EE-005435 to 14EE- 1997 Rs.40,000/-
0045438 for Rs.10,000/- each in the
name of I. A. Khan.
12. Cash in Hand 1998 Rs.34,546/-
13. Balance in account No. 709 at SBI, June 1998 Rs.8,930/-
Railway Road, Bullandshahar in the
name of Mrs. Salma Iqbal.
Total Rs.9,88,158/-
Total Assets = Immovable Assets + Movable Assets = 30,19,103/- + 9,88,158/-
CC No. 5/15(532201/16) 14 of 199
=40,07,261/-
Net Assets acquired
during the check period = Rs.40,07,261 - Rs.96,758
= Rs.39,10,503/-
ANNEXURE C
INCOME DURING THE CHECK PERIOD
(FROM JANUARY 1987 TO 10.06.1998)
(A) INCOME FROM PAY & ALLOWANCES OF I. A. KHAN AS FURNISHED BY THE DEPARTMENT (MCD).
S. DETAILS AMOUNT
NO.
01. Salary & Allowances during the period January 1987 to Rs.13,907/-
13.07.1987.
02. Salary & Allowances during the period 14.07.1987 to Rs.64,593/-
01.11.1989.
03. Salary & Allowances during the period 02.11.1989 to Rs.59,177/-
30.08.1991.
04. Salary & Allowances during the period September 1991 Rs.22,272/-
to 07.05.1992.
05. Salary & Allowances during the period 08.05.1992 to Rs.47,748/-
03.08.1993
06. Salary & Allowances during the period 04.08.1993 to Rs.64,489/-
04.05.1995.
07. Salary & Allowances during the period 05.05.1995 to Rs.1,19,421/-
CC No. 5/15(532201/16) 15 of 199
20.09.1996.
08. Salary & Allowances during the period 21.09.1996 to Rs.38,990/-
10.04.1997.
09. Salary & Allowances during the period 11.04.1997 to Rs.8,157/-
16.05.1997.
10. Salary & Allowances during the period May 1997 to Rs.85,708/-
10.06.1998.
Total Rs.5,24,462/-
(B) Income from the rent received from
Shops at Pahasu Rs.60,200/-
(C) Interest from Bank Accounts Rs.61,776/-
(D) Income from Agricultural Land Rs.1.8 lacs
Total Income (A+B+C+D) =Rs. 8,26,438/-.
ANNEXURE D
EXPENDITURE DURING THE CHECK PERIOD
(A) VERIFIABLE EXPENSES
(a) EXPENDITURE ON EDUCATION OF CHILDREN S.NO. INSTITUTION YEAR AMOUNT
01. Modern School, Barakhamba, N. 1994 Rs.11,630/-
Delhi. (Fazal, son of I. A. Khan)
02. Mount Carmal School, Anand Nike- 1995-1996 Rs.6,700/-
tan, N. Delhi. (Fazal, son of I. A. Khan).
CC No. 5/15(532201/16) 16 of 199
03. NIIT, New Delhi. (Fazal, son of I. A. 1996-1998 Rs.29,900/-
Khan)
04. Delhi University Correspondence 1996-1998 Rs.2,960/-
(Fazal, son of I. A. Khan)
05. DPS, Vasant Kunj, N. Delhi. (Fahad 1994-1998 Rs.1,26,072/-
and Fahan, sons of I. A. Khan)
06. Frank Anthony Public School, Lajpat Jan 1989 to 1994 Rs.84,100/-
Nagar, (Fazal, son of I. A. Khan) & 1987-1998 (Eram, Daughter of I. A. Khan)
(b) Payments towards telephone bill Feb 1992 to June Rs.2,17,349/-
N.4294266 at 6, Jaipur Estates, 1998 Nizamuddin East.
(c) Payments towards electricity meter 1997-1998 Rs.6,560/-
installed at D-201, Taj Enclave,Geeta Colony.
(d) Payments towards electricity meter Dec.1992 to Rs.3,02,280/-
(Key No. 016/1584802/DX) at 6, Oct.1997 Jaipur Estate, Nizmuddin East.
(e) House Tax towards house at Pathan Oct. 1995 Rs.1,500/-
Tola, Pahasu.
Total Rs.7,89,051/-
(B) Non Verifiable expenses towards foods, clothing etc. Rs.1,74,820/- i.e. 1/3rd of the Net Salary Drawn by I. A. Khan.
CC No. 5/15(532201/16) 17 of 199
Total Expenses (A+B) = 9,63,871/-
18. In view of the above facts, the calculation of Disproportionate Assets was made by the CBI as under:-
Assets Rs.39,10,503/-
Expenditure Rs.9,63,871/-
Income Rs.8,26,438/-
Disproportionate Assets =Total Assets+Expenditure - Income =39,10,503 + 9,63,871 - 8,26,438 = Rs.40,47,936/-
D.A. % = 489%
19. Thus, as per Charge Sheet, Iqbal Ahmed Khan acquired assets of Rs.40,47,936/-, which are disproportionate to the known sources of income. Hence the charge sheet.
20. Accused Iqbal Ahmed Khan was summoned to appear in the Court. After his appearance, copies were supplied to him in compliance of Section 207 of Cr.P.C.
21. Vide Order dated 19.12.2005, Charge for the offence punishable under Section 13(2) read with Section 13(1)(e) of CC No. 5/15(532201/16) 18 of 199 Prevention of Corruption Act, 1988, was framed against accused Iqbal Ahmed Khan, who pleaded not guilty to the Charge and claimed trial.
22. To prove the charge against the accused, CBI examined 50 witnesses. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. Accused Iqbal Ahmed Khan had examined 14 witnesses in his defence.
EVIDENCE OF THE PROSECUTION
23. PW-1 is Sh. Vinay Kumar. He has deposed that he was the Principal of DPS, Vasant Kunj since 1994 and Farhan Iqbal Khan and Fahad Iqbal Khan were students of their school. He has deposed that he had issued letter Ex. PW-1/A vide which he has provided the details of the fee to the CBI, which are correct.
24. PW-2 is Sh. S.P. Sharma. He has deposed that he was Physical Education Teacher in Mount Carmal School since November 1983 and Mrs. N. M. William was the Vice Principal of the school at the time of his joining in the year 1983. He CC No. 5/15(532201/16) 19 of 199 has further deposed that two computerized statements regarding payment of fees Ex. PW-2/B and Ex. PW-2/C were given to the CBI vide Forwarding Letter Ex. PW-2/A.
25. PW-3 is Sh. Mansoor Ahmed. He has deposed that he was permanent resident of Village Pahasu, District Bullandshahar, U.P. He has further deposed that he knows accused Iqbal Ahmed Khan since his childhood. He has further deposed that the house of the accused was constructed by the accused about 20 years back.
26. PW-4 is Sh. Kashmiri Lal. He has deposed that he was one of the partners of Ganga Builders, which was constituted in or about the year 1992. He has further deposed that Ganga Builders had raised construction of basement, Ground Floor, 1st floor and part of 2nd floor of Property No. 6, Jaipur Estate, Nizmuddin East. The size of the plot was about 470 sq. yds. Sh. Rajinder Lekhi and Sh. Dinesh Lekhi were the owners of the plot and they as builders had entered into a Collaboration Agreement and raised construction thereon. He has further CC No. 5/15(532201/16) 20 of 199 deposed that the ground floor, front portion of House No. 6, Jaipur Estate was sold in favour of Smt. Sultana Begam w/o Sh. Faiz Ahmed Khan for Rs.8,50,000/- and the rear portion of ground floor was sold to Sh. Hazi Ahmed Ali Khan S/o Sh. Mahmood Ali Khan for Rs.8 lacs vide sale dated 10.05.1994 and 12.10.1993 respectively. He has identified the Certified Copy of Sale Deeds Ex. PW-4/A and True Copy of Sale Deed Ex.PW-4/B.
27. PW-4 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. In the cross examination by the Ld. PP, he has admitted the suggestion that the entire ground floor of Property No. 6, Jaipur Estate had been built as a single unit and there is only one kitchen. He has also admitted the suggestion that after negotiations on 2-3 occasions, they had agreed to sell the ground floor. He had also given the details of the payment Ex. PW-4/C to the CBI.
28. PW-5 is Sh. K.D. Akolia. He has deposed that he was posted as Dy. Commissioner, MCD, Central Zone, in the year 2000.
CC No. 5/15(532201/16) 21 of 199 He has given the sanction order dated 07.04.2000 Ex. PW-5/A for prosecution of accused Iqbal Ahmed Khan.
29. PW-6 is Sh. V. L. Kamra. He has deposed that during the year 1996 to 1999, he was working as Assistant Finance Officer, D.V.B. District Krishna Nagar, Delhi. He has further deposed that on the request of CBI, he furnished the electricity meter installation and consumption expenditure pertaining to K. No. 6320-0051884/DL in the name of Iqbal Ahmed Khan s/o Sh. Faiz Ahmed Khan installed at Premises No. D-201, Taj Enclave, Geeta Colony, Delhi. He has further deposed that as per the office record, the installation charges paid by the Consumer were Rs.613/-, and electricity consumption charges were Rs.5946.64P upto June 1998 totaling to Rs/6559.64p. The chart Ex. PW-6/A was prepared on the basis of record and placed before him by Assistant Supdt. Billing.
30. PW-7 is Sh. Rajinder Lekhi. He has deposed that Plot No. 6, Jaipur Estate, Nizamuddin East, was purchased by his CC No. 5/15(532201/16) 22 of 199 brother Sh. Ramesh Lekhi, which was developed by Sh. Sapra of M/s. Ganga Builders. He has identified his signature and signature of his brother on Sale Deeds Ex. PW-4/A and Ex. PW-4/B.
31. PW-8 is Sh. Yashvir Singh. He has deposed that on 10.04.1998, he was working as Inspector, ACB, CBI, Delhi. He was the member of the search team, who visited the Flat No. D-201, Taj Enclave in pursuance of Search Warrant, which was issued by Sh. B. M. Mittal I.O. of the case. He had prepared the Observation Memo Ex. PW-8/A and the articles observed were recorded from Serial No. 1 to 6 of the Memo.
32. PW-9 is Sh. Kamal Kishore Singh Rawat. He has deposed that he was working as Division Accountant in the office of Executive Engg. Division 8 and 10, Din Dayal Upadhaya Marg, Delhi, in the year 1999. PW-9 has deposed that there is no document regarding any intimation for any transaction of movable property in the Personal File of accused Iqbal Ahmed Khan. He has further deposed that there is no entry regarding CC No. 5/15(532201/16) 23 of 199 any reward given to accused Iqbal Ahmed Khan in the Service Book Ex. P-21 of accused Iqbal Ahmed Khan. In cross- examination, PW-9 deposed that accused used to draw salary from Division 8 and 10 of South Zone.
33. PW-10 is Sh. A. U. Sheikh. He has deposed that he was the Founder Members of Taj Sartaj Co-operative Ground Housing Society, Geeta Colony. He had also worked in different capacities i.e. President, Secretary, Treasurer etc. of the said society from time to time. He has further deposed that the flats were delivered to the members of the society in raw condition with doors and windows but without any wooden work inside the flats of the society, which were done by the members themselves.
34. PW-11 is Sh. Javed Said. He has deposed that Late Sh.
Iqbal Said Khan was his first cousin and having agricultural land in village Lal Garhi, Pahasu, Bulandshahar. His wife had predeceased him.
35. PW-12 is Sh. Ramesh Kumar Goel. He has deposed that he CC No. 5/15(532201/16) 24 of 199 was working as Junior Engineer in Building Head Quarter, MCD, Town Hall in the year 1999. He has identified the File Ex. PW-12/B of Building Head Quarter, Town Hall, MCD in respect of Property No. 6, Jaipur Estate, Nizamuddin East, New Delhi, which contains Note Sheet and Correspondence. He has further deposed that vide his Note dated 01.10.1999 Ex. PW-12/A, he had asked the permission for keeping photocopies of the file with the Department and sending the original file to CBI. PW-12 has further deposed that as per record, sanction of building plan was released on 26.01.1990 in favour of applicant Ramesh Lekhi and Rajinder Lekhi.
36. PW-13 is Sh. Mahavir Singh. He has deposed that he was having the land No. 117 (PA) measuring 11 bighas and Khatuni No. 67, which is situated near a canal. According to him, he sold the land for Rs.40,000/-. However, this witness is not clear as to whom and when he has sold the land. He has been declared hostile but nothing significant is elicited in his cross examination either by prosecution or by defence.
CC No. 5/15(532201/16) 25 of 199
37. PW-14 is Sh. Tehseen Khan. He has deposed that in the year 1989, agricultural land no. 2055 in Pahasu, measuring about 1000 sq. yds. was jointly held by him and his brother Yasheen. In March 1989, they had sold the land to Mrs. Salma Begum w/o Sh. Iqbal Ahmed Khan for a sum of Rs.15,000/- under a Sale Deed. He has been declared hostile and during his cross examination, he has denied that he has made a Statement Mark PW-14/X to the CBI.
38. PW-15 is Sh. Ishtaq Ahmed. He has deposed that there was agricultural land of about 11 bighas of Iqbal Ahmed Khan near his land on the river side. Trees of Safeda are planted on the periphery of the land of the accused, which have been sold four times by the accused since purchase of land. Both the crops Rabi and Kharif used to be cultivated in the land of accused and there will be a yield of ¾ Qts. Wheat in 10 bighas. He has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During the cross examination, he has denied that he has made a statement CC No. 5/15(532201/16) 26 of 199 Mark PW-15/X to the CBI.
39. PW-16 is Sh. Ramesh Pal. He has deposed that he was posted as Lekhpal in Village Pahasu, District Pahasu, Tehsil Sikarpur, District Bulandshahar, U.P. from 1997 upto 2007. He has further deposed that he used to maintain the revenue record pertaining to the aforesaid village. He has deposed that vide letter Ex. PW-16/A, he had sent Khasra Khatuni pertaining to land No. 2055 in the name of Mohd. Tehseem Khan and Mohd. Anis Khan and land No. 2150 in the name of Iqbal Khan and Smt. Sultana Begum Ex. PW-16/B to Ex. PW- 16/E, to the CBI.
40. PW-16 has further deposed that as per Revenue Record, land No. 2055 was a vacant land, which was Abadi Area, when he had handed over the documents to CBI. As per Revenue Record Ex. PW-16/C, land No. 2150 was a mango grove area and there are two years to count the income from the said mango grove area. In the first year, it is called Nar Year (Male) and the approximate income is Rs.30,000/- and in the second CC No. 5/15(532201/16) 27 of 199 year called Mada Year (Female), the approximate income is Rs.20,000/-. Approximately 1/3rd expenses of the income are incurred by the owner.
41. PW-17 is Sh. Mahesh Singh. He has deposed that on 16.12.1999, he was posted as Lekhpal of Bhaiyya Pur Area, Pargana Pahasu, Tehsil Sikarpur, District Bulandshahar. He has further deposed that vide letter Ex. PW-17/A, he had handed over Khasra Khatuni pertaining to land No. 170 of Village Pitam Pur, Pargana Pahasu, Tehsil Sikarpur Ex. PW- 17/B and Ex. PW-17/C, to the CBI. PW-17 has further deposed that as per Ex. PW-17/C, 0.696 Hectare land situated at Pitampur village was transferred from Sh. Mahavir Singh to Smt. Salma Iqbal w/o Iqbal Ahmed and the consideration value of this transaction was Rs.30,000/-. He has further deposed that as per Ex. PW-17/B, this land was being used for cultivation of wheat.
42. PW-18 is Sh. Ramesh Lekhi. He has deposed that his father had purchased the Plot No. 6, Jaipur Estate, Nizamuddin CC No. 5/15(532201/16) 28 of 199 East, New Delhi. He has further deposed that he had a collaboration agreement with M/s. Ganga Builders in 1990 according to which, construction was to be raised over the said plot after demolishing the existing construction. The money was to be spent in construction by M/s. Ganga Builders and it was agreed that 50% amount of the flat sold shall be paid to them or in lieu of that, they will get 50% flats. Basement plus three floors were constructed on the said plot. The construction on the ground floor was made in two portions and the sale deeds of the flats were to be signed by him. He has further deposed that he had come to know that accused Iqbal Ahmed Khan was going to purchase some flat at the ground floor and the portion of the ground floor was sold for a sum of Rs.8 or 9 lacs each.
43. PW-19 is Sh. Chaman Khan. He has deposed that he was doing business of wood since last 30 years at village Pahasu and he was having a saw mill. He has further deposed that during the year 1994-95, he had purchased some Jamun and CC No. 5/15(532201/16) 29 of 199 Saras Trees from the mother of the accused as he had no dealing with the accused. He had not purchased any tree from the accused or his family members in the year 1992, 1994 and 1996. He has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During the cross examination, he denied to have made any statement Mark PW-19/A before the CBI and further denied that he is deliberately not supporting the prosecution being relative of the accused.
44. PW-20 is Sh. Vijay Singh. He has deposed that during the year 1999, he was posted as Branch Manager, Punjab National Bank, Pahasu Branch, District Bulandshahar. He has identified the Account Opening Form cum Specimen Signature Card Ex. PW-20/A pertaining to SB A/c No. 2602 in the name of Mrs. Salma Iqbal W/o Sh. Iqbal Ahmed Khan. He has also deposed that the Statement of Account from 03.12.1984 to 13.09.1999 Ex. PW-20/B duly certified under Bankers Book of Evidence Act.
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45. PW-20 has also identified the Account Opening Form cum Specimen Signature Card and Statement of Account from 03.12.1984 to 15.09.1999, Ex. PW-15/2 to Ex. PW-15/5, pertaining to Account No. 2599 in the name of Sh. Iqbal Ahmed Khan and the same were forwarded by him vide letter Ex. PW-15/1.
46. PW-21 Sh. Dinesh Kumar. He has deposed that he was dealing in building material and his shop was at Pahasu Market in Bulandshahar in the name and style "Pujari Iron Store". He know accused as he is from his native place and class fellow of his elder brother. He has further deposed that vide Receipt Memo Ex. PW-21/A, he had handed over the Daily Diary (Rojnamcha) of his shop pertaining to the year 1987-88 Ex. PW-21/B, which was prepared by him and by his brother, to the CBI. He has further deposed that Ex. PW-21/B contains the entries Ex. PW-21/B-1 to Ex. PW-21/B-3 pertaining to material supplied at his shop to Sardar Khan neighbour of the accused for him. The payment for the CC No. 5/15(532201/16) 31 of 199 material supplied was received by him in cash from Sh. Sardar Khan and Mistri Sageer.
47. PW-21 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During the cross examination, he has denied the suggestion that he had stated to the CBI that whatever material was purchased from his shop entered in Ex. PW-21/B, its cash payment was made by the accused and in 1987-88, the accused had renovated his old house and had reconstructed it. He has admitted the suggestion that the entries in Ex. PW-21/B1 to Ex. PW-21/B3 mentioning the name of the accused along with the person, who had collected the building material on his behalf.
48. PW-22 is Sh. Mohan Lal. He has deposed that he had sold the property situated at Pahasu to the accused in the name of his wife Smt. Salma Iqbal and Sale Deeds Ex. PW-22/A and Ex. PW-22/B were executed in that regard. The expenses for getting the Sale Deeds registered were met by the wife of the accused. PW-22 has further deposed that he identified his CC No. 5/15(532201/16) 32 of 199 Personal Diary Ex. PW-22/C and the payment received by him in advance for the aforesaid two sale deeds is mentioned in the said Diary at page Ex. PW-22/C1.
49. PW-23 is Sh. Kunwar Pal Singh. He has deposed that he was working as Tax Clerk in Nagar Panchayat, Pahasu, District Bulandshahar and his duty was collection of House Tax and Water Tax. He has further deposed that vide letter dated 16.09.1999 Ex. PW-23/A, he had furnished information regarding house tax of accused Iqbal Ahmed Khan and supplied certified copy of Tax receipt Ex. PW-23/B deposited by him and certified copy of relevant entries Ex. PW-23/C-1 to Ex. PW-23/C-5 of Tax register of different years pertaining to Iqbal Ahmed Khan.
50. PW-24 is Sh. Shan Mohd. According to this witness, Ms. Salma Begum does not do any work and remains at home. He has also deposed about the lands purchased by Ms. Salma Begum from Iqbal Saeed Khan and Mohan Lal. He has further deposed that some Mango plantation were there in CC No. 5/15(532201/16) 33 of 199 part of land owned by Sh. Faiz Ahmed, father of the accused. He has been cross examined by the Ld. PP for the CBI as he has been resiled from his statement. During his cross examination, he has been confronted with his statement allegedly made before the IO during investigation. He has also been cross examined by the defence, wherein he stated that he knows the family of the accused for a long time and in laws of the accused are rich persons and he was asked to help for purchase of land by Sultana Begum and Salma Begum. He has further stated that mother of the accused had 2-3 buffaloes and she had income from the sale of milk. He is not clear as to payments for the land were made by Salma and Sultana themselves. He has further stated that Sultana had taken loan from him and he gave her a cheque of Rs.1 lac drawn on Allahabad Bank. He has further stated that Sultana had rental income from the shops.
51. PW-25 is Sh. Rama Shankar Gupta. He has deposed about the six pieces of land which are in the name of Salma Iqbal CC No. 5/15(532201/16) 34 of 199 and Sultana Begum and their sale values as per the record available with the Sub Registrar Office. The certified copies of the Sale Deeds in question are Ex. PW-25/A, Ex. PW-25/B, Ex. PW-25/C, Ex. PW-25/D, Ex. PW-22/A and Ex. PW-22/B.
52. PW-26 is Sh. Shiv Kumar Garg. He has deposed that in the year 1999, he was working as Commission Agent of Vegetables. He know Iqbal Ahmed Khan as he is resident of Pahasu. PW-26 has been cross examined by the Ld. PP for the CBI as he has suppressing the truth. During the cross examination, he has denied the suggestion that he had made a statement Mark PW-26/A to the CBI.
53. PW-27 is Sh. Jamil Ahmed @ Kallon Khan. He has deposed that in the year 1999, he was working as a Clerk in Pahasu Pvt. Bus Union, Bulandshahar. He know Iqbal Ahmed Khan since his childhood, who has about 5 bighas of ancestral agricultural land. Besides the agricultural land, the father of the accused was having business of dairy at Pahasu. Accused I. A. Khan was residing in Delhi after completing his CC No. 5/15(532201/16) 35 of 199 education from Pahasu and Aligarh.
54. PW-27 has further deposed that he was the witness for execution of Sale Deed Ex. PW-25/D between seller Arjun Kumar and purchaser Smt. Sultana Begum. The payment of Rs.2,60,000/- was made by Sultana Begum to Arjun Singh. PW-27 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with Statement Mark PW-27/A.
55. PW-28 is Sh. Nasim Khan. He has deposed that in the year 1999, he was doing the job of Wood Contractor and he used to purchase old age trees standing on fields and used to do the work of wood cutting at his brother Chaman Khan's saw machine. He has also deposed that he had purchased the tree of Safeda from wife of Iqbal Ahmed Khan in the year 1992, 1994 and 1996 and he had made payment of Rs.30,000/- two times and also made payment of Rs.35,000/-. PW-28 has been cross examined by the Ld. PP for the CBI as he has resiled from his previous statement. During the cross CC No. 5/15(532201/16) 36 of 199 examination, he has stated that his statement was recorded by the CBI. He has denied the suggestion that he had stated before the CBI that in the year 1992, 1994 & 1996, he had never purchased the tree of "Safeda" from accused Iqbal Ahmed or from any member of his family or that he had not paid any payment in this regard. He has been confronted with statement Mark PW-28/A.
56. PW-29 is Sh. Vinay Kumar Sharma. He has deposed that in October, 1999, he was posted as Assistant Manager, Allahabad Bank, Pahasu, District Bulandshahar. He has also deposed that vide letter Ex. PW-29/1, he had provided documents with regard to Accounts maintained by mother of the accused and statement of account to Inspector CBI.
57. PW-30 is Sh. Aslam Khan. He has deposed that he was dealing in Automobile Spare Parts under the name & Style of M/s. Hamraaj Automobiles at Pahasu. He has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. He denied the suggestion given by the Ld. PP for CC No. 5/15(532201/16) 37 of 199 CBI during cross examination that accused gave Rs.35,000/- to father of this witness and got issued a Bank draft in favour of M/s. Taj Sartaj Housing Society, New Delhi.
58. PW-31 is Sh. Islam. He was a tenant since 1989 in a shop owned by the accused on a monthly rent of Rs.300/-, which was increased to Rs. 500/- per month. He paid rent at the rate of Rs.300/- per month till 1994-95 and Rs.500/- per month w.e.f. 1995 till 2004. PW-31 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with Statement Mark A.
59. PW-32 is Sh. Zahoor. He has deposed that he was running Welding Shop at Sikandrabad, Aligarh and he was having a rented shop at Pahasu. The father of the accused was the owner of the said shop. He took the shop on rent in the year 1987 and it remained with him for 5-6 years and its monthly rent was Rs.300/- in the beginning and after 3 or 4 years, its rent enhanced to Rs.500/- per month.
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60. PW-33 is Sh. Sagheer. He was a tenant since 1990 in a shop owned by the accused on a monthly rent of Rs.300/-, which was increased in the year 1994 to Rs.500/- per month. PW-33 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with Statement Mark B.
61. PW-34 is Sh. Surender Kumar. He was tenant of two shops owned by accused on monthly rent of Rs.500/- each. PW-34 has been cross examined by Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with statement Ex. PW-34/1.
62. PW-35 is Sh. Chand Mian. He was a tenant since 1997 in a shop owned by the accused on a monthly rent of Rs.500/-. PW-35 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with statement Ex. PW-35/A.
63. PW-36 is Sh. Saleem Khan. He was a tenant since 1991 in a shop owned by the accused and used to pay rent of Rs.500/-
CC No. 5/15(532201/16) 39 of 199 per month. PW-36 has been cross examined by the Ld. PP for the CBI as he has resiled from his statement. During cross examination, he has been confronted with Statement Ex. PW- 36/A.
64. PW-37 is Sh. B. R. Kaushal. He has deposed that he remained posted as Sub Post Master in Post Office Nizamuddin, New Delhi 1998 to 2002. He has further deposed that vide letter Ex. PW-37/1, he had handed over two application forms for purchase of NSCs Ex. PW-37/2 and Ex. PW-37/3. He has further deposed that vide Ex. PW-37/2, accused Iqbal Ahmed Khan purchased four NSCs of Rs.10,000/- each on 27.03.1996 and vide Ex. PW-37/3 accused Iqbal Ahmed Khan purchased one NSC of Rs.5,000/- on 07.03.1997. He has further deposed that the above said NSCs were purchased against cash payment through Sh.Fateh Chand Gomber, NSC Agent. No payment was made to accused Iqbal Ahmad Khan against the above said NSCs till 29.09.1999, when letter Ex. PW-37/1 was issued.
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65. PW-38 is Sh. Umesh Chand Singhal. He has deposed that in the year 1999, he was working as Clerk in the office of District Supply Officer, Bulandshahar, U.P. He has also deposed that vide Report Ex. PW-38/1, he had verified the Ration Card Ex. PW-38/2 issued to Mohd. Arif Khan S/o Mohd. Ali. Application Ex. PW-38/3 is for issuance of Ration Card Ex. PW-38/2 for five and a half units.
66. PW-39 is Sh. Sawan Ram. He was Sub-Registrar-III, Asaf Ali Road, New Delhi at the relevant time. He has deposed that letter dated 18.10.1999 PW-39/Mark-A was sent from the office of Sub Registrar-III, Asaf Ali Road, New Delhi, to Inspector V. M. Mittal, CBI along with certified copy of Sale Deed. (This Sale Deed pertains to Property No. 6, Jaipur Estate, Nizamuddin East, New Delhi. in favour of Smt. Sultana Begum)
67. PW-40 Sh. J. P. Goel. He has deposed that he remained posted as Branch Manager in State Bank of India, Railway Road Branch, Bulandshahar during the period December CC No. 5/15(532201/16) 41 of 199 1998 to 23.06.2001. He has further deposed that vide letter Ex. PW-40/1, he had handed over the certified copy of letter no. 25/76 Ex. PW-40/2, Certified copy of Statement of account w.e.f. 12.10.1988 to 21.01.1999 Ex. PW-40/4 and Certified copy of specimen Signature Card pertaining to A/c No. 709 Ex. PW-40/3, to the CBI after comparing the same with the original record of the Bank. He has further deposed that he had also handed over Demand Draft Vouchers and Demand Draft Register to the CBI. He has further deposed that as per Statement of Account Ex. PW-40/4, balance in the said A/c No. 709 as in January 1988 was Rs.3,366.42p and as on 10.06.1988 was Rs.5,926.26p.
68. PW-41 is Sh. Ram Khiladi Meena. He has deposed that in the year 1998, he was working as Junior Telecom Officer (JTO) at MTNL, Khurshid Lal Bhawan, New Delhi. He has further deposed that on 10.06.1998 he along with another independent witness Sh. Dev Raj of MTNL went with CBI team to the house of accused situated in Jaipur Estate, CC No. 5/15(532201/16) 42 of 199 behind Nizamuddin Railway Station, where the CBI team searched the house in their presence. During the house search, some wrist watches, cash amount and other items were recovered, were recorded in the List. A list pertaining to the household articles was prepared and on the said list, his signature and signature of Sh. Dev Raj were obtained.
69. PW-41 has identified his signature on Search cum Observation Memo Ex. PW-41/1. PW-41 has been cross examined by the Ld. PP for the CBI as he partially resiled from his statement. During the cross examination, PW-41 has admitted the suggestion that a Video Photography was also done at the time of search proceedings and he had signed the video cassette, thereafter the same was sealed. He has identified his signature on Cassette Ex. PW-49/J and its Wrapper Ex. PW-49/J-2.
70. PW-42 is Sh. N. K. Jain. He has deposed that he had joined All India Radio in the year 1988 as J.E. and thereafter, in the year 1997, he had joined CBI (Engineering Cell) on deputation CC No. 5/15(532201/16) 43 of 199 and remained there upto January 2002. He has further deposed that he was assigned duties to evaluate immovable properties and had evaluated properties involved in 50/60 cases. He has also deposed that vide letter dated 14.09.1999 requested himself to evaluate three properties i.e. (1) 6, Jaipur Estate, Nizamuddin East, New Delhi (Ground Floor), (2) Residential cum Commercial Premises at Pathan Tola, Pahasu, District Bulandshahar, U. P. and (3) Flat No. 201, Taj Sartaj Enclave Society, New Delhi, which are held in the names of accused and his relatives.
71. He has identified his Report Ex PW-42/1 with which he had also prepared and submitted Three Sketch Plans Ex. PW-42/2 (colly.) of Ground Floor, 1st Floor and 2nd Floor of Property situated in Village Pahasu and one Sketch Plan Ex. PW-42/3 of Ground Floor Plan of 6, Jaipur Estate, Nizamuddin, New Delhi.
72. PW-43 is Sh. Roshan Kumar Singh. He has deposed that he has been working as LDC in the office of Sub Registrar-III, CC No. 5/15(532201/16) 44 of 199 Asaf Ali Road, New Delhi. He has produced the Original Book No. I, Registration No. 393828, Volume No. 8277 maintained at Sub Registrar-III, Asaf Ali Road and compared the photocopy of Sale Deed No. 3528 Ex. PW-4/B with the original record, which is at page no. 92 to 108, executed by Sh. Rajender Lekhi and Sh. Ramesh Lekhi in favour of Smt. Sultana Begum w/o Late Faiz Ahmed registered on 19.05.1994.
73. PW-44 is Sh. S. K. Srivastava. He has deposed that in the year 1999, he was posted and working as Sub Registrar, INA Building, New Delhi. He has further deposed that he had given true copy of Sale Deed Ex. PW-4/A to Inspector, CBI after comparing the same with the original.
74. PW-45 is Sh. M.S. Elahi. He has deposed that he is permanent resident of Village Dharampur, Post Nikashi Via Pindaruch, District Darbhanga, Bihar. He has further deposed that he remained as tenant in Flat No. D-201, Taj Enclave, Geeta Colony, New Delhi for two years w.e.f. July 1998 on a CC No. 5/15(532201/16) 45 of 199 monthly rent of Rs.2,500/-. I. A. Khan was the owner of the aforesaid flat. He has further deposed that all the wood work pertaining to doors, almirahs, cupboards etc., had already been done by owner before he occupied the same. He has further deposed that he had neither renovated the same or re-constructed any part thereof.
75. PW-46 is Sh. Dev Raj Meena. He has deposed that during the year 1998, he was working as JTO in the office of G. M. (Vigilance), MTNL, Khursheed Lal Bhawan, New Delhi. He has further deposed that on 10.06.1998, he along with one Sh. R. K. Meena and CBI team went to 6, Jaipur Estate, Nizamuddin East, New Delhi, where the CBI team conducted the search in the Ground Floor of the said property., which was in the possession of accused Iqbal Ahmed Khan. During the search, cash amount of Rs.34,000/- approximately, 15-20 wrist watches and gold ornaments were found. During the said search, one Pistol along with its License was also recovered. The recovered articles were mentioned in one list CC No. 5/15(532201/16) 46 of 199 and the costs/values and years of acquisition of various items were informed by the accused and his wife.
76. PW-46 has further deposed that Search cum Observation Memo Ex. PW-41/1 was prepared at the spot, during the aforesaid search. PW-46, after going through Ex. PW-41/1, has further deposed that one Maruti Esteem Car was also recovered during the said search. PW-46 has also deposed that Ex. PW-46/1 was prepared in respect of the assessed value of the jewellery items by the Jeweller, which were recovered during the search.
77. PW-46 has further deposed that a video recording of the search proceedings had also been conducted by the CBI and he signed the Cassette Ex. PW-49/J, Wrapper Ex. PW-49/J1 and Memo Ex. PW-49/C. He has also identified his voice which was recorded as introductory recording.
78. PW-47 is Sh. Shailender Kumar Aggarwal. He has deposed that during the year 1999, he was posted in Allahabad Bank, Pahasu Branch(District Bulandshahar) as Officer Scale-I. He CC No. 5/15(532201/16) 47 of 199 has identified his signatures on Ex. P-31/1 to Ex. P-31/4, Attested true copy of Account Opening Form / Signature Card in the name of Iqbal Ahmed Khan Ex. P-14/1, Attested copy of Statement of account in respect of account no. 431/6 in the name of Iqbal Ahmed Khan Ex. P-14/2 to 6, Attested copy of Transfer Voucher Ex. P-32/1 to Ex. P-32/3, Attested copy of Draft Issue Voucher Ex. P-32/4, relevant pages Ex. PW-47/A1 to Ex. PW-PW-47/A4 of Draft Register containing entries corresponding to Drafts issued vide Ex. P-32/1 to Ex. P-32/4.
79. PW-47 has also identified his signatures on Certified Copy of Statement of Account in respect of Account no. 12/1 in the name of Faiz Ahmed Khan Ex. PW-47/A5 to Ex. PW-47/A10, Account Opening Card in the name of Faiz Ahmed Khan Mark P-47/X. PW-47 has further deposed that as per Ex. PW- 47/A6, outstanding balance in the account as on 17.06.1989 was Rs.468.95 paisa. A sum of Rs.40,000/- appears to have been deposited by cash in the said account on 19.06.1989 and thereafter sum of Rs.37,000/- was withdrawn on CC No. 5/15(532201/16) 48 of 199 28.06.1989 vide Cheque No. 182841 Ex. PW-P-17/2 which is in the name of Taj/Sartaj Co-Operative Group Housing Society, New Delhi.
80. PW-47 has further deposed that vide Seizure Memo Ex. PW-
47/C, relevant records had been handed over by him to Inspector V. M. Mittal. He has also deposed that he had affixed his signatures on all the copies of documents after duly verifying the same from the original in the Bank record.
81. PW-48 is Inspector D. K. Singh. He has deposed that in the year 1999, he was posted as an Inspector with CBI, ACB, New Delhi on Deputation. On the instruction from SP concerned, he had gone to Bulandshahar U.P. for verification of a ration card Ex. PW-38/2 in the name of Mohd. Arif Khan. He has further deposed that on inquiry, it had transpired that Sh. Arif Khan resided at the mentioned address along with his family and his children study in Khalsa School, Bulandshahar and he had recorded statement of Sh. Umesh Singhal, Clerk in District Supply Office, Bulandshahar (U.P.) in that regard.
CC No. 5/15(532201/16) 49 of 199
82. PW-48 has also submitted during his cross examination conducted by ld. PP for CBI that the Verification Report Ex. PW-38/3 had been handed over to him by Sh. Umesh Sighal, which he had brought along with him.
83. PW-49 is Sh. V. M. Mittal. He is the Investigating Officer of the present case. He has deposed that he had remained posted as an Inspector with CBI, ACB from 1996 to 2000. He has also deposed that vide FIR Ex. PW-49/A, he was appointed Investigating Officer of the case. During course of investigation, he collected various documents, recorded statements of witnesses and accused, conducted searches and on the basis of evidence collected and after completion of investigation, charge sheet was filed against accused Iqbal Ahmed Khan for possessing Disproportionate Assets. He has identified his signatures on Seizure Memo Ex. PW-49/B and Ex. PW-49/C.
84. PW-49 has been extensively cross examined by defence on various aspects, with regard to the Assets, Expenditure and CC No. 5/15(532201/16) 50 of 199 Income of accused, his wife and mother. The relevant parts of his statement are quoted in my findings.
85. PW-50 is Sh. Shyam Prakash. He has deposed that in the year 1999, he was posted in the Nizamuddin Office of DVB. He has deposed that vide letter Ex. PW-50/A, Statement of Account Ex. PW-50/A-1 in respect of electricity meter installed at premises no. 6, Jaipur Estate, Nizamuddin East, New Delhi (Ground Floor) for the period 10.12.1992 to 28.10.1997 had been provided by him to the CBI. PW-50 has further deposed that as per their records, Mr. Khan was the user of the electricity meter.
STATEMENT OF ACCUSED UNDER SECTION 313 CR.P.C.
86. After closing the Prosecution Evidence, all the incriminating evidence was put to the accused for his explanation, under Section 313 Cr.P.C. It has been submitted by the accused that he is innocent and has been falsely implicated in the present case. He has further submitted that actual income of his family members and of himself had not been considered by CBI. It is CC No. 5/15(532201/16) 51 of 199 also stated by him that expenditure and assets are wrongly calculated. His wife belongs to business family and she had purchased a Bus in 1983 by pooling in cash Rs.51,000/- received at the time of their marriage and by arranging remaining amount by obtaining a loan.
EVIDENCE LED BY ACCUSED IQBAL AHMED KHAN.
87. In his defence evidence, the accused has examined 14 witnesses.
88. DW-1 is Sh. Prem Prakash. He has deposed that he is the Proprietor of Sh. Rama Krishna Jewellers and has his shop at D-34, Main Road, Central Market, Lajpat Nagar-II, New Delhi. He has identified the signature of Ms. Sheetal Sharma on Voucher No. 239 Ex. DW-1/A and his signature on Voucher No. 277 and 347 Ex. DW-1/B and Ex. DW-1/C. These vouchers, as per the defence pertain to the sale of the jewellery by wife of the accused. DW-1 has further deposed that payments in respect of the three vouchers had been made in cash.
CC No. 5/15(532201/16) 52 of 199
89. DW-2 is Sh. Rajbir Singh. He has brought the attested copy of a sheet of Indian Draft Register pertaining to February 1990 and copies of Ledgers in respect of Account No. 249/2014 in the name of Sardar Umar Khan and account no. 12/1 in the name of Faiz Ahmed Khan. He has identified his signatures on documents Mark DW-2/1 (colly.) in token of having attested the documents.
90. DW-3 is Sh. Singh Pal Singh. He has deposed that he has been residing in Pahasu since around 1960 and he knows accused and his family members. He had attended marriage / Nikah of the accused, who had received lots of Gifts and Cash of Rs.50,000/- and furniture items in the marriage. He has further deposed that family of accused also had "20 to 22 Bighas of land. Mango used to be grown there. Family also had land in Chattari, which was in the name of mother of the accused. Family also had an old house, which was demolished and then reconstructed using old bricks and saria used therein had been supplied by in-laws of the accused.
CC No. 5/15(532201/16) 53 of 199 Mother of the accused also had a few cattle and used to sell milk. The wife of the accused was a housewife.
91. DW-3 has further deposed that the old house, which had been demolished, had some shops and shops were also built, when the house was reconstructed. The family also had many buses, which were being plied. Reconstruction of the house had been done by father of the accused.
92. DW-4 is Sh. Jasmeet Khan. He has deposed that he is resident of Pahasu and he knows the family of the accused. He has further deposed that material like "Saria & Bricks" for reconstruction of the house at Pahasu, was supplied by the father in law of accused and Rs.51,000/- was also gifted by in- laws of the accused on "Sikka Ceremony" in connection with marriage of accused.
93. DW-4 has further deposed that he runs an "Aara Machine"
which cuts goods and also purchased milk of 35 to 39 kgs. At Rs.6/- per kg. from mother of the accused, which is supplied to diary. He also deposed that Mrs. Sultana Begum, mother of CC No. 5/15(532201/16) 54 of 199 the accused had kept 4-5 buffalos. He had purchased milk from her till around 2000 and he used to take milk on credit and used to make payment to her on every Sunday.
94. DW-5 is Sh. Arun Kumar Sharma. He has appeared before the court in pursuance to summon issued to the Regional Transport Officer (RTO), Aligarh, UP and has also produced the summoned record in respect of the vehicles i.e. UP-82A- 8121, UP-81D-0119, DEP-6886, UP-81F-9202, UHN-2834, UP-81E-0731 & PB-13D-5567.
95. DW-5 has also deposed that as per official records, all the vehicles except for vehicle No. PB-13D-5567 stood registered in the name of Mrs. Salma Iqbal in records of RTO, Aligarh and all the aforesaid vehicles were commercial passenger vehicles i.e. buses. Permits in respect of the said vehicles had been issued in the name of the registered owner i.e. Salma Iqbal.
96. DW-6 is Sh. R. P. Dwivedi. He has produced the original Permit Records in respect of vehicles in question along with CC No. 5/15(532201/16) 55 of 199 photocopies of the same. Note dated 15.01.2015 Ex. DW-6/1 giving brief details in respect of Permits of the concerned Vehicles. He has further deposed that the dates mentioned in Ex. DW-6/1 at serial nos. 1 to 7 are the dates during which Permit in respect of the concerned vehicle remained in the name of Ms. Salma Iqbal. All the buses mentioned in Ex. DW- 6/1 used to run on Aligarh - Kasim Pur Via Sadhu Ashram route as per Permits. Sitting capacity of each of the Buses was 52-54 passengers and the buses could ply only once on the route i.e. to and fro. Quarterly Road Tax & Monthly Passenger Tax were to be paid and buses only plied on the permitted routes.
97. DW-7 is Sh. Sultan Rana. He has deposed that he knows accused Iqbal Ahmed Khan as he is husband of his "Bua". He has further deposed that he had been residing at 6, Jaipur Estate since 1994. There was only one electricity meter in the said premises when he started residing there. The said meter was common for himself and for accused Iqbal Ahmed Khan.
CC No. 5/15(532201/16) 56 of 199 The Bill used to be paid by his "dada" and sometimes by his "Chacha" or by his "Bua". Accused Iqbal Ahmed Khan did not get installed any new meter within his knowledge.
98. DW-7 has further deposed that on 10.06.1998 at about 10.00 A. M. he returned back from his team practice, some people in his portion of house, were making list of articles, which he objected to. His signatures were also obtained on the list of articles.
99. DW-7 has further deposed after seeing the list Ex. PW-41/1 that items mentioned at serial nos. 1 to 27 on pages no. 1 & 2, items at serial nos. 1 to 21 on page no. 3, all the items mentioned in respect of the two bathrooms and the rear side mentioned at page no. 4 belonged to him. He has further deposed that items at serial nos. 1 to 24 in respect of bed Room No. 3 belongs to him. As regards, items in the Lobby cum Drawing Room at Page Nos. 5 & 6 except for items at serial nos. 10,19,20,22 & 26, all other items belonged to him. As regards, item nos. 1 to 38 in respect of Bed Room No. 4, CC No. 5/15(532201/16) 57 of 199 items at serial no. 4, 9, 12,13 & 27 belonged to him. He has further deposed that item Nos. 1 to 4 of the attached Bath Room at page no. 8 belonged to him. As regards, item Nos. 1 to 24 of the Kitchen, items at serial nos. 1,23 & 14 belonged to him.
100. DW-8 is Sh. Islam Khan. He has deposed that accused Iqbal Ahmed is his wife's brother. In the year 1993, he had given a loan of Rs.1 lac by cheque to his mother in law Smt. Sultana Begum, mother of the accused, from his account, who told him that this amount is required for purchasing a house in Delhi. In 1995, he received the amount back in cash in installments.
101. DW-9 is Sh. Arif Khan. He has deposed that accused is his brother in law. He further deposed that around 1993, his father had purchased a property in Jaipur Estate and he shifted there. He has further deposed that he used to stay along with his nephew Sultan Rana in the rear portion of 6, Jaipur Estate. He has further deposed that for both the flats, there was one CC No. 5/15(532201/16) 58 of 199 common electricity meter and they used to pay the bill. DW-9 has also deposed after seeing the Search List Ex. PW-41/1 certain items found in the search list belong to him and his family.
102. DW-10 is Sh. Sunil Sharma. He has deposed that Smt. Salma Iqbal @ Salma Baji, wife of accused, is like his sister as in laws belongs to Bulandshahar and he has family relations with them since long. He has further deposed that after marriage, Salma Iqbal was involved in the business of transport and she was running a bus no. UP-82A-8121 at Bulandshahar which used to ply between Bulandshahar to Sahaswan. In June 1995, she gave him this bus on contractual basis. He has further deposed that he used to pay her Rs.15,000/- per month. Initially, from 1996 onwards, he started paying her Rs.18,000/- per month and from 1997 onwards, he started paying her Rs.20,000/- per month and he plied this bus till January 1998.
103. DW-11 is Sh. Ramesh Chand Sharma. He has produced the CC No. 5/15(532201/16) 59 of 199 Report of ARTO Bulandshahar, Sh. Surender Singh Ex. DW- 11/1 and the copy of the Tax Register Ex. PW-11/2 and Ex. PW-11/3. As per the report, the Bus No. UP-82-A-8121 was running in the route Bulandshahar to Sahaswan and the fare is fixed by the State Government. He has further deposed that in his view, a bus might be earning minimum Rs. 500/- per day on this Route.
104. DW-12 is Sh. Shamshad Ahmed. He has deposed that he knows accused as he used to supervise a Bus which plied from Aligarh to Qasimpur via Sadhu Ashram. He further deposed that the bus DLP-6868 was in the name of Ms. Salma Iqbal, which was purchased by her in the year 1983 from first hand owner. The bus used to carry passenger on the route mentioned above and also used to be booked for marriage, party etc. and there was income of Rs.14,000 - Rs.15,000 p.m. after deducting all the expenses. This bus plied till 1988.
105. DW-12 has further deposed that thereafter another bus no.
CC No. 5/15(532201/16) 60 of 199 URX-525 was plied by Ms. Salma Iqbal on this route, which was plied till 1991. the Permit of both the buses were on the name of Ms. Salma Iqbal. DW-12 has further deposed that thereafter another bus no. UPO-5783 was plied by Ms. Salma Iqbal on this route, which was plied till end of 1993. He has also deposed that thereafter another bus no. UP-82A-8121 was plied by Ms. Salma Iqbal on this route, which was plied till 1995. He has also deposed that thereafter another bus no. UP-81D-0119 was plied by Ms. Salma Iqbal, which was plied till 1998. DW-12 has also deposed that during 1988 to 1993, the bus used to earn approximately Rs. 14,000/- to Rs.15,000/- per month and during the year 1993 to 1998, the bus used to earn approximately Rs.17,000/- to Rs. 18,000/- per month after deducting all the expenses and taxes.
106. DW-13 is Ms. Salma Iqbal. She is wife of the accused. She has deposed that she got married with accused on 05.06.1977. In their marriage, she got Gold items i.e. 6 heavy Gold Sets, One Chain, 2 pairs of Gold Bangles i.e. Kadha, 16 CC No. 5/15(532201/16) 61 of 199 Gold Bangles, 2 pairs of Gold Ear-Rings, 6 Gold Finger Rings from his parent side and from her in laws, she got 4 heavy Gold Sets, one Gold Chain, one Gold Tikka, Gold Jhummar and Gold Nose Pin. She has further deposed that next day of her marriage, her father-in-law gave her two pairs of Gold "Kadas" and her mother in law gave her 12 Gold Bangles on her "Muh Dikhai Ceremony".
107. DW-13 has further deposed that the uncle (chacha) of her husband gifted her one Gold Set on "Muh Dikhai Ceremony"
and her eight sisters in law gifted her one gold chain, ear rings, rings etc. Other relatives of her husband also gifted her Cash amounting to Rs.20,000/- on this Ceremony.
108. DW-13 has also deposed that on "Rokka Ceremony" her husband received Rs.51,000/- from her parents. Apart from this, her husband also received one Gold Finger Ring and one Gold Chain. In the said Ceremony, her other relatives also gave cash amounting to Rs.15,000/- and in the "Thali Ceremony", her husband received Rs.25,000/- from her CC No. 5/15(532201/16) 62 of 199 father.
109. DW-13 has deposed that in the year 1983, she purchased a Bus No. DLP-6868 from Rs.80,000/- from Delhi and out of this amount, Rs.30,000/- was paid in Cash by her and Rs.50,000/- was got financed. The said bus used to be booked for marriage, party etc. at Aligarh, which is plied till 1986. The said bus used to earn income of Rs.14,000/- to Rs.15,000/- after deducting all the expenses and taxes.
110. DW-13 has identified signature of her husband Iqbal Ahmed Khan on Sale Receipts Ex. DW-1/A to Ex. DW-1/C. She has also deposed that some jewellery amounting to Rs.2,43,000/- approximately was sold by her in the year 1992 and again in the year 1994, she had sold some more jewellery amounting to Rs.2,33,000/- approximately. She has further deposed that apart from this, she had also sold some jewellery amount to Rs.2,32,000 approximately in the year 1995.
111. DW-13 has deposed that she purchased lands from the earnings of buses, selling jewellery and the amount received CC No. 5/15(532201/16) 63 of 199 from her parents. She also deposed that there was substantial earnings from the cultivation of these lands.
112. DW-13 had applied for a Permit bearing No. 806 from RTO, Agra, which was granted in the year 1987 for the route Aligarh to Qasim Pur via Sadhu Ashram. She had also applied for a Permit from RTO, Meerut, which was issued to her in the year 1995 and on this Permit a Bus bearing UP-82A-8121 was plied till 1998 from Bulandshahar to Sehaswan Route. She has further deposed that this bus was given on Contractual basis to Mr. Sunil Sharma in the year 1995, who used to pay Rs.15,000/- per month which increased to Rs.18,000/- per month in the year 1996 and further increased to Rs.20,000/- per month in the year 1997. She had an income of Rs.14,000/- to Rs.15,000/- p.m. from the buses which were plied on Aligarh to Qasimpur route.
113. DW-13 has further deposed that in Pahasu, they resided in ancestral home in Pathantola, Bulandshahar and in the year 1984-85 some portion of this house was demolished and was CC No. 5/15(532201/16) 64 of 199 reconstructed. Her father in law borne the cost of construction of this house and after demolishing the house, 9 shops, a drawing room, one Verandah and one room were constructed. These 9 shops which were reconstructed were given on rent @ Rs. 3,000/- to Rs.4,000/- per month by her mother in law. She has also deposed that when the house was demolished, the Bricks were again used for the re-construction of the house. Apart from this, her father sent steel rods and bricks for the reconstruction of the house. She has also deposed that her mother in law was in the business of sale and purchase of the agricultural produce, who had six buffaloes and the milk from those buffaloes was sold @ Rs.4.00 to Rs.6.00 per litre during the period 1977 to 1983 and the price of the milk gradually increased to a price of Rs.10.00 to Rs.12.00 per litre. She has further deposed that her mother in law was running Dairy business even before her marriage.
114. DW-13 has also deposed that she started living in Delhi with her husband since 1980 and they lived in Jangpura Extension CC No. 5/15(532201/16) 65 of 199 and later on shifted to 6, Jaipur Estate, Nizamuddin East in the year 1994.
115. DW-13 has deposed that the raid was conducted by the CBI on 10.06.1998 and her signatures were obtained on certain documents. Inventory of articles was prepared by the CBI. Thereafter, they went to the portion of the house which was in the occupation of her father.
116. DW-13 after seeing the Seizure Memo Ex. PW-41/1, has deposed that in the said Ex. PW-41/1, all the articles mentioned on page no. 7, 8, 9, 10 and 11 belonged to them and rest of the articles mentioned in Ex. PW-41/1 belonged to her father, who was in possession of the rear portion of the house.
117. DW-13 has deposed that her mother in law had substantial income from agriculture, rents from the shops in village, and Dairy business. DW-13 has also deposed that her father in law was a teacher and he also had a Mango Orchard measuring 5 bighas in Pahasu, Bulandshahar, UP and he was CC No. 5/15(532201/16) 66 of 199 earning an income of Rs.25,000/- per annum from the sale of Mangoes.
118. DW-13 has further deposed that there were three floors and one basement in the House No. 6, Jaipur Estate, Nizamuddin East, Delhi and one electricity meter was installed on each floor in the said house. Even on the ground floor owned by her mother in law and her father, there was one electricity meter and the electricity bill was paid by her father and sometime by them.
119. DW-14 is Sh. Iqbal Ahmed Khan. He is accused in the present case. He has deposed that he shifted to Delhi in the year 1975 and he started working in MCD as Work Assistant and retired in September 2012 from the post of Junior Engineer. In the year 1998, he was posted in Division 24, South Zone, Green Park. He got married to Ms. Salma Begum on 05.06.1977 and he received number of gifts and cash at the time of his marriage. He invested the said money in purchase of bus from Delhi in the name of his wife for an CC No. 5/15(532201/16) 67 of 199 amount of Rs.80,000/- in which Rs.30,000/- was paid by him and his wife in cash and the rest of the amount of Rs.50,000/- was paid by Finance company. This bus used to yield a monthly income of about Rs.12,000/-.
120. DW-14 has further deposed that on 09.11.1992, he sold old gold ornaments of his mother and his wife vide DW-1/A to Ex. DW-1/C to Ramakrishna Jewellers, Lajpat Nagar, Delhi.
121. DW-14 has also deposed about the various lands purchased by his wife and the agricultural income form the said lands of his wife and mother. DW-14 has further deposed about the buses purchased by his wife and the income earned from plying the said buses.
122. DW-14 has further deposed that his mother used to look after the shops and she was also running a milk dairy and she was having six buffaloes and she used to sell 50 litres of milk every day and the rate of milk was Rs.4/- to Rs.6/- per litre. All the nine shops of their house have been rented out for a total rent of Rs.4,000/- per month and her mother was also looking CC No. 5/15(532201/16) 68 of 199 after the yield which was coming out of the land, owned by the family.
123. DW-14 has further deposed that his ancestral house in Pahasu was constructed by his great grandfather, which was later on partly demolished in the year 1985 and then re- constructed by his father with the old bricks and the rest of new bricks of about Rs.5,000/- were sent by his father in law. The steel bars were also provided by his father in law.
124. DW-14 has also deposed that his mother Sultana Begum purchased a house bearing No. 6, Jaipur Estate, Nizamuddin East, in the year 1994 after taking a loan of Rs.2 lacs from her nephew vide a cheque Ex. P-32/1, loan of Rs. One lac from Sh. Shan Mohd., loan of Rs. One lac from Sh. Islam Khan. Apart from this, his mother used her income of Mango Orchards, Milk Dairy, Lands, shops and also from the sale of jewellery for the purchase of this house. In this property, only the front portion on the ground floor is owned by his mother and the rear portion of the said property was owned by his CC No. 5/15(532201/16) 69 of 199 father in law.
125. DW-14 has also deposed that on 10.06.1998, CBI officials came to his house and started searching the said house. He has deposed that all the articles from page nos. 7 to 11 of Ex. PW-41/1 belonged to him and the rest of the articles mentioned in other pages of Ex. PW-41/1 belonged to his father in law and his family. There was only one electricity meter installed in the entire building and the amount of the electricity was shared by the occupants of the building. Later on, separate meters were installed on each of the floor. There is only one telephone installed in his portion which was shared by him and the family of his father in law.
126. DW-14 has further deposed that he purchased a flat bearing No. D-201, 2nd Floor, Taj Sartaj Housing Society, Near Geeta Colony, Delhi, from the Housing Society, by taking a loan of Rs.37,000/- and Rs.35,000/- from his father. He also took loan of Rs.25,000/- and Rs.22,000/- from his cousin in the year 1989 and 1990 respectively. He also took a loan of CC No. 5/15(532201/16) 70 of 199 Rs.35,000/- from his friend in the year 1990 vide a cheque.
127. DW-14 has admitted that Cheques Ex. P-17/2 and Ex. P-17/3 were given by his father to Taj Sartaj Co-operative Group Housing Society for Rs.37,000/- and Rs.35,000/- respectively. He has also admitted that Cheque Ex. P-18/2 for Rs.25,000/- was issued by Sardar Umar Khan and Cheque Ex. P-18/1 for Rs.22,000/- was issued by Sardar Umar Khan in favour of Taj Sartaj Co-operative Group Housing Society.
128. DW-14 has further deposed that he rented out the above referred flat on a monthly rent of Rs.7,000/- and his wife also sold Safeda trees which were on the boundary of her land near canal in village Pahasu, in the year 1992 for an amount of Rs.30,000/-, again in the year 1994 for an amount of Rs.30,000/- and in the year 1996, she also sold safeda trees for a sum of Rs.35,000/- to one Sh. Naseem Khan.
129. DW-14 has further deposed that his mother also sold trees for Rs.75,000/- which were planted on her land, to one Sh. Chaman Khan and Samad Khan. He has further deposed that CC No. 5/15(532201/16) 71 of 199 his wife and mother have approximately 83 bighas agricultural land and their annual income from the said land was Rs.1,66,000/- excluding the income from Mangoes Orchards. ARGUMENTS
130. It is argued by the Ld. PP for CBI that accused Iqbal Ahmed Khan acquired assets disproportionate to known sources of income to the tune of Rs.39,10,503/- during the check period. Ld. PP further argued that immovable assets were acquired in the name of his wife and mother by the accused. Ld. PP also argued that wife and mother of the accused were house wives and had no separate sources of income. It is also argued that accused used his ill gotten money for purchasing properties in the names of his wife & mother and to live in a lavish lifestyle. The Ld. PP further argued that accused who was working as JE in MCD, by any stretch of imagination could not have possessed properties of huge value as mentioned in the chargesheet. Ld. PP further argued that there are no valuable CC No. 5/15(532201/16) 72 of 199 properties which are inherited by the accused from his parents/ancestors. It is also argued that father of the accused was a retired Librarian having six daughters, could not have made any properties with his meager income. It is further argued that all the articles found at the residence of the accused were purchased by the accused by using unlawful earnings. Ld. PP for CBI placed reliance on
(i) Jaydayal Poddar vs. Mst. Bibi Hazra & Ors. 1974 AIR 171
(ii) State of Bihar vs. Lalu Prasad (2008) Cri. L.J. 2433
(iii) C.S.D. Swami vs. The State AIR 1960 SC 7
(iv) N. Ramakrishnaiah v. State of A.P. 2009 Cri. L. J. 1767
(v) Kedari Lal v. State of M. P. & Ors. 2015 Cri. L. J. 4045
(vi) Suresh Kumar Duggal v. State(NCT of Delhi) CBI, Crl. A. No. 100/2003
(vii) State of Maharashtra v. Mahesh G. Jain, Crl. A. No. 2345/09, Supreme Court
131. On the other hand Ld. Counsel for the accused argued that the accused is falsely implicated in the present case by the CC No. 5/15(532201/16) 73 of 199 CBI. It is further argued by the Ld. Counsel that the CBI has selectively chosen the properties in the names of wife and mother of the accused to falsely implicate the accused. It is also argued that accused is the only son and belongs to a well to do family and there were ancestral properties inherited by the accused. Ld. Counsel for defence also argued that the IO did not consider the income of wife of the accused like income from buses which she owned and were operated in UP. It is also argued that IO also did not consider the income from selling the ancestral jewellery of wife of the accused. It is further argued that the accused and his family had given the particulars of the income from buses and from selling jewellery to the IO during investigation but the IO deliberately ignored the said income and filed a false charge sheet. It is also argued that IO had not considered the income from agriculture, rental and dairy business run by parents of the accused. It is also argued that the IO wrongfully calculated the value of the articles found at the rear portion of the house no.
CC No. 5/15(532201/16) 74 of 199 6, Jaipur Estate, Nizamuddin East, New Delhi despite the fact that the rear portion is owned and occupied by father in law of the accused. Most of the articles found at the residence of the accused, as argued, are basic necessary household articles and cannot be considered as assets especially when 1/3 of the income of the accused is taken as unverifiable expenditure and in view of separate income of his wife. It is also argued on behalf of the defence that the value of the properties are highly exaggerated for the purpose of making a false case against the accused. It is also vehemently argued by the Ld. Defence counsel that there is no valid sanction as prescribed under section 19 of PC Act to prosecute the accused public servant for the offence under section 13(1)(e) of the PC Act. It is also argued that accused was working as JE in MCD South Zone in Green Park and PW-5, who was Dy. Commissioner of Central Zone, could not have accorded sanction to prosecute the accused. Ld. Counsel for accused relied on the following judgments of Hon'ble Apex Court :-
CC No. 5/15(532201/16) 75 of 199
(i) Shri Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170
(ii) DSP, Chennai v. K. Inbasagaran (2006) 1 SCC 420
(iii) Krishnanand Agnihotri vs. State of M.P. 1977 (1) SCC 816
(iv) State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199
(v) Vasant Rao Guhe v. State of MP, 2017 SCC Online SC 893
(vi)Nanjappa v. State of Karnataka, Crl. A. No. 1867/12, Supreme Court.
132. Ld. counsel for the accused further relied on judgment of Hon'ble High Court of Delhi in Jastinder Singh vs. State 2001 Crl.LJ 11.
DISCUSSION
133. Heard. Accused Iqbal Ahmed Khan is put to trial for allegedly acquiring assets disproportionate to known sources of income during the check period i.e. from 01.01.1987 to 10.06.1998. Accused was working as Junior Engineer(JE) in MCD at the relevant time. Sanction to prosecute the accused public CC No. 5/15(532201/16) 76 of 199 servant was accorded by Dy. Commissioner, MCD vide Ex. PW-5/A. Since the accused is tried for the offence under section 13(1)(e) of PC Act, it is necessary to reproduce the same and further various propositions as laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi in this regard.
Section 13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,-
(a) ......
(b) ......
(c) ......
(d) ......
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
CC No. 5/15(532201/16) 77 of 199 Explanation. For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
134. In Shri Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170, the Hon'ble Supreme Court held that "6. The Courts below appear to have convicted the appellant on the basis of the decision referred to above and have held that since the explanation given by the appellant was false, an inference of misappropriation could reasonably be drawn against him. This proposition cannot be doubted. But the question is whether the explanation given by the appellant in this case can be said to be absolutely false? Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence ? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a CC No. 5/15(532201/16) 78 of 199 criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case? In our opinion three cardinal principles of criminal jurisprudence are well settled, namely that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
That in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and that the onus of the prosecution never shifts. It is true under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it CC No. 5/15(532201/16) 79 of 199 is sufficient if the accused is able to prove his case by the standard of preponderance of probability as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not becasue he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer res Integra but is concluded by several authorities of this Court."
135. In DSP, Chennai v. K. Inbasagaran (2006) 1 SCC 420, it is CC No. 5/15(532201/16) 80 of 199 held as follows -
"It is true that when there is joint possession between wife and husband, or the father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband as the case may be, it cannot be fastened on the husband, or the head of the family. It is true that the prosecution in the present case has tried its best to lead evidence to show that all these monies belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the income tax returns and she has accepted the whole responsibility, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of CC No. 5/15(532201/16) 81 of 199 joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being a public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced in behalf of the accused, coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income Tax Department, it will not be proper to hold the accused guilty under the Prevention of Corruption Act as his explanation appears to be plausible and justifiable."
136. The Hon'ble High Court of Delhi in Jastinder Singh vs. State 2001 Crl.LJ 11, held that "The income tax paid by wife of the appellant, Satpal Kaur, amounting to Rs.1968/- has also been added to the disproportionate asset held by the appellant. Although, no reason, as to why it has been shown as the asset of the CC No. 5/15(532201/16) 82 of 199 appellant, has been give in the impugned judgment. When the Trial Court itself came to a conclusion that Satpal Kaur admittedly had her own source of income, it would be reasonable inference to draw that she could have paid a sum of Rs.1968/- towards income tax. On the other hand, the prosecution failed to establish by leading any cogent and satisfactory evidence that amount of the tax paid by Satpal Kaur was not actually paid by Satpal Kaur but by the appellant. Same precedes on surmices and conjectures and has basis on no evidence, therefore, there was no reason not be believe the statement of Satpal Kaur that the sum of Rs.1968/- was paid by her."
137. In Krishnanand Agnihotri vs. State of M.P., the Hon'ble Supreme Court held that "It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal CC No. 5/15(532201/16) 83 of 199 evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced although. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmices as a substitute for proof."
138. The Hon'ble Supreme Court in State of Maharashtra v.
Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199, held that "That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5(1)(e) of the Act. The expression 'burden of proof' has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to CC No. 5/15(532201/16) 84 of 199 establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known CC No. 5/15(532201/16) 85 of 199 sources of income i.e. known to the prosecution, and (4) it must prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are establishes, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court in Jahgan's case (supra) i.e. to establish his case by a preponderance of probability. That test was laid down by the Court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public Prosecutions. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of CC No. 5/15(532201/16) 86 of 199 the accused. As laid down in Swamy's case (supra), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources of property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads:
"Section 106 : when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In this connection, the phrase the burden of proof is clearly used in the secondary sense namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability."
139. In Vasant Rao Guhe Vs. State of M.P., 2017 SCC Online SC 893, the Hon'ble Supreme Court has held as follows-
"As ordained by the above statutory text, a public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources CC No. 5/15(532201/16) 87 of 199 or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income may be of his or anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account such disproportionate pecuniary resources or property. The explanation to Section 13(1)(e) elucidates the words "known 15 sources of income" to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant. From the design and purport of clause (e) of sub-clause (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during CC No. 5/15(532201/16) 88 of 199 the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known source of income, he would not be required in law to offer any explanation to satisfactorily account therefore. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known source of income. As has been held by this Court amongst others in State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhed (2009) CC No. 5/15(532201/16) 89 of 199 15 SCC 200, even in a case when the burden is on the accused, the prosecution must first prove the foundational facts. Incidentally, this decision was rendered in a case involving a charge under Section 7, 13, and 20 of the Act."
140. In the present case, the main allegation of the prosecution is that the accused public servant has acquired assets during check period which are disproportionate to known sources of income. It is also the allegation by the prosecution that certain valuable immovable properties are acquired by the accused in the names of his wife and mother which include 6 pieces of land and one house in Delhi. Prosecution mainly argued that the money used to acquire these immovable properties which are in the names of wife and mother, actually belongs to accused who earned the same by way of unlawful means.
141. Prosecution has examined as many as 49 witnesses and brought on record various documents. The argument of the Ld. PP for CBI is that wife and mother of the accused were only housewives and were not having any separate sources of CC No. 5/15(532201/16) 90 of 199 income, therefore, the acquisition of immovable properties in their names was not possible without using the funds supplied by the accused. It is also argued that since the accused was a public servant with limited means of income from salary and allowances, could not have funded without using unlawful means. Ld. PP also argued that there is a duty cast upon the accused, who is a public servant, to explain as to how the properties were acquired and further a duty to satisfactorily account for pecuniary resources or properties which are disproportionate as mandated u/s 13(1)(e) of the PC Act. There are rival contentions raised by the defence that wife and mother of the accused had independent sources of income, ancestral properties and accused also had some ancestral properties. It is also contended that the independent sources of income of the wife, mother, ancestral properties, jewellery gifted by in-laws at the time of marriage clearly show that there are no properties disproportionate to the income of all the family members and the same is proved by some of the CC No. 5/15(532201/16) 91 of 199 prosecution witnesses as well as the defence evidence.
142. In view of the serious allegations against the accused as raised in the charge sheet, arguments of the Ld. PP for CBI and contentions raised by the defence, it is necessary to examine whether the properties, movable and immovable as shown in charge sheet, are proved and whether the accused and his family members i.e. wife and mother had any independent sources of income, if so, to what extent.
143. The entire case has been built on the basis of the collective income, assets and expenditure of the accused and his family members. I proceed to discuss the entire case as presented by the prosecution. The details have been given by the prosecution under three heads namely income, expenditure and assets. I would like to take up these issues in the same order based on the material available in evidence and on the touchstone of the principles propounded by the Hon'ble Apex Court in Vasant Rao Guhe Vs. State of M.P., 2017 SCC Online SC 893.
CC No. 5/15(532201/16) 92 of 199
144. Annexure-A shows the assets at the beginning of check period. Annexure-B contains the list of immovable and movable properties acquired during the check period. List of Immovable properties contains 5 items and list of movable properties contains 13 items. Annexure-C shows the sources of income during the check period and Annexure-D contains the expenditure incurred by the accused on various heads during the check period.
Annexure-B (A) Immovable Properties
145. Item No. 1 & 5 : According to prosecution, the accused acquired 7 pieces of agricultural land during the check period at Pahasu, District Bulandshahar, UP in the names of his wife and mother. At item no. 1 of the list, there are 5 pieces of land which are acquired in the name of wife of accused i.e. Salma Iqbal and one piece of land acquired in the name of mother during the check period. At item no. 5 of the list, there is one piece of land acquired in the name of wife of the accused. The CC No. 5/15(532201/16) 93 of 199 particulars of these 6 pieces of land in the name of Salma Iqbal and their values are as below-
Details of the Property Sale Value Stamp Duty Ex. No.
1. Khet No. 80, at Pahasu, Bulandshahar - Rs. 90,000 + Rs. 16,875 Ex.PW25/A
2. Khet No. 79, at Pahasu, Bulandshahar - Rs. 1,98,000 + Rs. 26,440 Ex.PW25/B
3. Khet No. 111, at Pahasu, Bulandshahar - Rs. 1,35,000 + Rs. 18,500 Ex.PW22/A
4. Khet No. 106, at Pahasu, Bulandshahar - Rs. 75,000 + Rs. 10,440 Ex.PW22/B
5. Khet No. 80C, at Pahasu, Bulandshahar - Rs. 60,000 + Rs. 11,250 Ex.PW25/C
6. Khet No. 2055, at Pahasu, Bulandshahar - Rs. 15,000 + Rs. 2,000 D-56
146. To prove this fact prosecution has examined witnesses PW-
14, PW-22, PW-24, PW-25 and PW-27. The IO has filed certified copies of the sale deeds of the said lands collected during the investigation of this case. The prosecution has examined PW-25 i.e. Sh. Ram Shankar Gupta, Clerk, Sub- Registrar Office, Tehsil Khurja, Distt. Bulandshahar, UP. PW- 25 has brought record pertaining to the lands in question. As per this witness, record available with Sub-Registrar's office with regard to the pieces of land which are in the name of wife of the accused Smt. Salma Iqbal. The certified copies of the sale deeds by which these lands are purchased in the name CC No. 5/15(532201/16) 94 of 199 of Smt. Salma Iqbal are exhibited as Ex. PW25/A, Ex. PW25/B, Ex. PW25/C, Ex. PW22/A and Ex. PW22/B.
147. PW-22 Mohan Lal has stated that he sold 2 pieces of land to Smt. Salma Iqbal vide Ex. PW22/A and Ex. PW22/B. Witness PW-14 Tehsin Khan is also examined by the prosecution who stated that he sold agricultural land no. 2055 at Pahasu extent 1000 Sq. Yards to Smt. Salma Iqbal (wife of the accused) for Rs.15,000/-. The stamp duty of Rs.2,000/- was also incurred at the time of purchase of the said land. The document D-56 is the certified copy of the sale deed pertaining to this land sold by PW-14, but the same is not put to the witness nor it is proved through any official witness. However, the wife of the accused Smt. Salma Iqbal, who is examined as DW-13, has admitted the purchase of the said land from PW-14 for an amount of Rs.15,000/-.
148. The total value of the lands purchased including the value of the stamp duty paid, in the name of Smt. Salma Iqbal, wife of the accused, as per the respective sale deeds comes to CC No. 5/15(532201/16) 95 of 199 Rs.6,58,505/-. In view of the evidence of PW-14, PW-22, PW- 25 & DW-13 and the documents proved on record i.e. PW- 22/A, Ex. PW-22/B, PW-25/A to PW-25/C, it is held proved that the above said pieces of land were acquired during the check period.
149. It is also, according to prosecution, that the mother of the accused Smt. Sultana Begum acquired land bearing khet no. 2067, Extent 9 Bighas at Pahasu, Distt. Bulandshahar. Prosecution examined PW-27 Jamil Ahmed who stated that he was the witness to the execution of sale deed of the land which is stated to have been sold by one Arjun Kumar to Smt. Sultana Begum(mother of the accused) for Rs.2,60,000/-. The stamp duty of Rs.34,000/- was also paid for purchasing the said land. The certified copy of the sale deed through which Smt. Sultana purchased the said land is brought on record as Ex. PW-25/D and proved by PW-25 through his official record. The said fact of purchasing land by mother of the accused Sultana Begum is not disputed by the accused.
CC No. 5/15(532201/16) 96 of 199
150. Item No. 2 :According to the prosecution, the accused also acquired an immovable property i.e. Flat No. 201, Taj Enclave, Geeta Colony, Delhi. The said property, as per prosecution, was acquired by the accused from Taj-Sartaj Co-operative Group Housing Society for a total value of Rs.3,17,510/-. Document D-46 is the certificate issued by the said society confirming that accused Iqbal Ahmed Khan is a member of the society vide membership no. 297. This certifcate also contains the details of the payments made by the accused to the society against Flat No. D-201, Taj Enclave, Geeta Colony, Delhi. A possession slip issued by the society showing that possession of Flat No. 201 at second floor in Block-D has been handed over to the accused Iqbal Ahmed khan on 06.06.1994. The document D-46 also contains the copy of the application by accused Iqbal Ahmed Khan submitted to Taj- Sartaj Co-operative Group Housing Society for taking over the possession of Flat No. 201. Prosecution examined a witness namely, A.U. Sheikh as PW-10. This witness PW-10 is the CC No. 5/15(532201/16) 97 of 199 founder member of Taj-Sartaj Co-operative Group Housing Society, Geeta Colony and according to him, the flats in the society were delivered to the members in raw condition with doors and windows, however, he could not recollect who resided in the flat.
151. Document D-46 consists of an application for possession, possession slip and payment details pertaining to Flat No. D-
201. All these documents are admitted by the accused and were exhibited as Ex. P-16/1 to P-16/4. As per the Ex. P-16/4, total amount of Rs.2,72,650/- was paid by the accused to Taj- Sartaj Co-operative Group Housing Society. Witness M.S. Elahi who is examined by the prosecution as PW-45 states that he was a tenant in Flat No. 201, Taj Enclave, Geeta Colony, Delhi whose owner is the accused and he paid a rent of Rs.2,500/- per month. As per valuation report Ex. PW-42/1 prepared by PW-42(Official valuer of the CBI), the valuation of additions and alterations of interiors is Rs.38,598/-. However, the valuation report is vague as to exactly what additions and CC No. 5/15(532201/16) 98 of 199 alterations were made in the flat. Therefore, the value of the property i.e. Flat No. D-201, Taj Enclave, Geeta colony, Delhi is considered as per the admitted document Ex. P-16/1 to P- 16/4 as Rs.2,72,650/-. In view of the above it is held that accused acquired property i.e. Flat No. D-201, Taj Enclave, Geeta colony, Delhi for Rs.2,72,650/- during the check period.
152. Item No. 3: It is alleged by the prosecution, the accused constructed a house at his native place i.e. Pathantola, Pahasu, District Bulandshahar, UP during the year 1987-88 and spent an amount of Rs.5,10,118/- towards the said construction. The prosecution mainly relied on the witnesses PW-3, PW-21, PW-23 and PW-42. The counsel for the accused has vehemently argued that value of the construction of the house is highly exaggerated by valuer PW-42 in his report Ex. PW-42/1 and the valuation done by the valuer is totally baseless. It is also argued that the reconstruction of the old house at Town Pahasu was done during the year 1975-76 as per witness DW-3. It is also argued that the construction CC No. 5/15(532201/16) 99 of 199 was done prior to the check period, therefore, this property has to be deleted from the list of properties acquired during the check period.
153. PW-3 has stated before the court on 06.02.2007 that construction of the property was done about 20 years ago, however, he did not specify any specific month or year. The prosecution has examined a witness namely Dinesh Kumar as PW-21 who has a shop in the name of 'Pujari Iron Store' at Pahasu dealing in Building Material. PW-21 states that some material supplied from his shop to one Sardar Khan, neighbour of the accused. The details of the material supplied are entered in the daily diary(rojnamcha) of the shop which are brought on record as PW-21/B1 to PW-21/B3. The abovesaid entries only show that some material were sold by PW-21 to one Sardar Khan on three dates as follows :
Exhibit Date Value of Supply
Ex. PW-21/B1 Nil Rs.603.50/-
Ex. PW-21/B2 22.07.1988 Rs. 10,207.31/-
CC No. 5/15(532201/16) 100 of 199
Ex. PW-21/B3 19.09.1988 Rs.33.30/-
Total Rs.10,844.11/-
154. As seen above, the total value of the material supplied by PW-
21 is meager compared to the alleged value of the construction of the house at Town Pahasu by the accused. The quantity of the material supplied by PW-21 also nowhere matches the alleged construction by the accused. These materials also were supplied to one Sardar Khan as per the evidence of PW-21 and it is not clear what for the said Sardar Khan used the material. The said Sardar Khan was not examined by the prosecution. The argument of the Ld. PP for CBI that name of the accused is written on these entries i.e. Ex. PW-21/B1 to B3 and therefore, it is the accused who received the material after paying for it and used the same for the construction of the house is highly unconvincing considering the value and quantity of the material, and the person who received the material, as per the entries. Another witness examined by the prosecution is PW-23 who is a Tax CC No. 5/15(532201/16) 101 of 199 Clerk at Nagar Panchayat, Pahasu. Through this witness, the prosecution has brought on record some house tax receipts with regard to the house at Town Pahasu and relevant entries pertaining to the payment of the house tax. As per these receipts and the entries i.e. Ex. PW23/B and Ex.PW23/C-1 to C-5, the house tax was paid right from the year 1986-87 by the accused Iqbal Ahmed Khan. Admittedly, there was a house belonging to father of the accused at town Pahasu and the accused paying the house tax does not in any way prove that accused only has reconstructed or renovated the house by spending money. It is also pertinent to note that the father of the accused Faiz Ahmed Khan was a retired government employee and lived upto the year 1992 having his own sources of income from pension and agriculture. Admittedly father of accused also had one piece of agricultural land i.e. Khasra No. 1852, Kasba Pahasu, Bulandshahar, UP which was purchased in the year 1961. According to defence he had an income of Rs.30,000/- per annum since its purchase which CC No. 5/15(532201/16) 102 of 199 can be calculated for 27 years i.e. till 1987, when the check period begins. There is also another piece of land in the name of mother of the accused purchased in 1979 which also might have yielded some income. The Ld. PP for CBI argued that Faiz Ahmed Khan was a retired employee, had 6 daughters and with his meager income, he could not have constructed or renovated the old house by spending a huge amount of more than Rs.5,00,000/- and therefore, the accused is presumed to have spent the entire expenditure for construction/renovation of the house. The said contention of the Ld. PP for CBI is not sustainable for the reason that there is no evidence with regard to the income and expenditure of Faiz Ahmed Khan, father of the accused. Apart from that there is also no clear evidence as to whether the said construction/renovation of the house at Town Pahasu was done during the check period. There is absolutely no evidence on record to show that the money was supplied by the accused for the said construction/renovation. The valuation report Ex. PW42/1 CC No. 5/15(532201/16) 103 of 199 prepared by valuer PW-42 also does not show the estimated year of construction and simply mentions that "However the balance entire area of Ground floor, Ist floor and Second floor is measured as it is constructed by the suspect in between April 1987 to May 1988 as disclosed by the suspect during inspection at site." The valuation report Ex.PW-42/1 is not clear rather vague in its reasoning as to on what basis the construction of the house was estimated to have been done during the year 1987-88 and as to the value of the construction/renovation. In view of the above, it is held that prosecution has failed to prove that the house at Town Pahasu was constructed/renovated by spending an amount of Rs. 5,10,118/- during the check period i.e. 1987 to 1998 by the accused alone and therefore, the said property is liable to be deleted from the list of assets acquired during the check period.
155. Item No. 4 :According to prosecution, another immovable property i.e. Front portion of ground floor of 6, Jaipur Estate, CC No. 5/15(532201/16) 104 of 199 Nizamuddin East, Delhi was acquired by the accused during the check period in the name of Smt. Sultana Begum, mother of the accused. The office of Sub Registrar-III, by letter dated 18.10.1999(PW39/Mark A), handed over to the IO the certified copies of the sale deeds in respect of ground floor of property at 6, Jaipur Estate, Nizamuddin East, Delhi. The said document consists of a certified copy of sale deed dated 19.05.1994 by which Smt. Sultana Begum purchased the property i.e. the front portion of 6, Jaipur Estate, Nizamuddin East, Delhi. PW-4 Kashmiri Lal, partner of M/s Ganga Builders deposed that M/s Ganga Builders raised construction at the plot No. 6, Jaipur Estate, Nizamuddin East, Delhi. It is further stated by the witness that front portion of ground floor of the said construction was sold to Smt. Sultana Begum for Rs.8,50,000/- in the year 1994. The witness also stated that rear portion of the ground floor was sold to one Haji Ahmed Ali Khan(father in law of accused). It is further stated by PW-4 that the sale deeds were executed in favour of Smt. Sultana CC No. 5/15(532201/16) 105 of 199 Begum and Haji Ahmed Ali Khan which are Ex. PW-4/B and Ex.PW-4/A respectively. The prosecution has examined PW-7 Rajinder Lekhi who identified his signatures as well as the signatures of his brother Ramesh Lekhi(vendors) on the above said sale deeds. The prosecution has also examined Roshan Kumar, PW-43 and K. Srivastava, officials of Sub Registrar office, who proved the sale deeds Ex. PW-4/B in favour of Smt. Sultana Begum and Ex. PW-4/A in favour of Haji Ahmed Ali Khan from their records. The prosecution is concerned only with the property in the name of Smt. Sultana Begum, mother of the accused, for the purpose of calculating disproportionate assets of the accused and not concerned with the property of Haji Ahmed Ali Khan.
156. It is the case of the prosecution that the value of the property i.e. Front portion of 6, Jaipur Estate, Nizamuddin East, Delhi which was purchased in the name of Smt. Sultana Begum is Rs.12,12,404/-. The prosecution has mainly relied on the valuation report of the official valuer of the CBI i.e. PW-42, CC No. 5/15(532201/16) 106 of 199 who valued the said property to the tune of Rs.12,12,404/-. As per the circular No. 21/40/99-PD(Pt.) issued by the CBI, the value of the property has to be calculated as per the sale deed only. The sale deed i.e. Ex. PW-4/B shows the value of the property i.e. Front portion of 6, Jaipur Estate, Nizamuddin East, Delhi as Rs.8,50,000/- and the stamp duty incurred was Rs.68,000/-. In view of the evidence on record it is held that the front portion of property No. 6, Jaipur Estate, Nizamuddin East, Delhi was purchased in the name of Smt. Sultana Begum in the year 1994 and the value of the property is held to be Rs.9,18,000/- (Rs.8,50,000 + Rs.68,000/-). Movable properties
157. Item No. 1 : According to the prosecution, CBI raided the residence of the accused i.e. Ground Floor of 6, Jaipur Estate, Nizamuddin East, New Delhi on 10.06.1998. The search was conducted at the said place in the presence of two independent witnesses i.e. PW-41 and PW-46. A detailed list of articles which were found during the search at the CC No. 5/15(532201/16) 107 of 199 residence of the accused was prepared alongwith the details of the year of acquisition and the value of the articles as revealed by the accused and his wife Smt. Salma Iqbal.
158. To prove the said fact, the prosecution has examined witnesses namely Ram Khiladi Meena as PW-41 and Devraj Meena as PW-46. IO was also examined as PW-49. The witnesses PW-41 and PW-46, who are stated to be independent witnesses, state that they along with CBI team went to the house of the accused and the CBI team conducted search of the house i.e. ground floor of 6, Jaipur Estate, Nizamuddin East, New Delhi in their presence. A detailed search memo of 13 pages was prepared and the signature of these two independent witnesses were also obtained on each page. PW-41 and PW-46 identified their signatures on the memo at points 'A' and 'B' respectively on each page of the search memo. The said search memo has brought on record by the prosecution as Ex. PW-41/1. The Search Memo Ex. PW-41/1 also bears the signatures of IO at CC No. 5/15(532201/16) 108 of 199 point 'C', signature of wife of the accused at point 'D' and signature of the accused at point 'E'. The wife of the accused, who is examined as DW-13 and the accused, who has examined himself as DW-14 have identified their signatures on search memo Ex. PW-41/1 in their cross-examination.
159. It is argued by the Ld. Counsel for the accused that while conducting the raid, the CBI not only made inventory of the articles lying in the front portion of the house but also made the inventory of the articles lying in the rear portion. It is further argued that the rear portion of the house at 6, Jaipur Estate admittedly does not belong to the accused. Ld. Counsel for the accused further argued that the rear portion was occupied by some other persons i.e. DW-7 Sultana Rana and DW-9 Arif Khan. It is further argued that DW-7 and DW-9 have infact identified their articles in the rear portion of the house, in their evidence and therefore, the said articles as identified by DW-7 and DW-9 should not be considered as assets of the accused. It is also argued that the value of the CC No. 5/15(532201/16) 109 of 199 articles is arbitrarily decided by the CBI without any proof of the same.
160. On the other hand, Ld. PP for CBI argued that the entire ground floor was in occupation of the accused only and therefore, all the articles found in the entire house are rightly mentioned in the search memo by the CBI. It is also argued that DW-7 and DW-9 are relatives of the accused and they are simply trying to help the accused. Ld. PP further argued that since the rear portion of the house is sold to father-in-law of the accused vide separate sale deed, the same was not considered as the property of the accused by the CBI but at the time of search the accused and his family was only found living in the entire house.
161. On careful perusal of the evidence of PW-41 and PW-46, it is made out that the entire ground floor was like a single portion and was in occupation of the accused. The evidence of the other witnesses, including DW-7, DW-9 and DW-13, also make it clear that there was only one kitchen which actually CC No. 5/15(532201/16) 110 of 199 indicates only one family was in occupation of the entire ground floor. DW-9 is none other than brother of wife of the accused who is actually a resident of Bulandshahar but according to him he used to come and stay in the rear portion now and then. DW-7 is also a relative of the accused and according to him he stayed in the rear portion of the house. DW-7 has filed some documents which show his residential address to be as 6, Jaipur Estate, Nizamuddin East, New Delhi. DW-7 and DW-9 have stated in their chief examination that some of the articles in the search memo actually belong to them. But none of these witnesses has filed any document to show that they purchased even a single article found in the house. The statements of DW-7 and DW-9 appear to be self serving oral statements and do not inspire the confidence of the Court. It is clear from the evidence of the witnesses PW- 41, PW-46 and PW-49 that the entire ground floor was in occupation of the accused and therefore, the articles as found therein and mentioned in the search memo are considered as CC No. 5/15(532201/16) 111 of 199 the articles acquired by the accused and his family. It is also stated by PW-46 in his statement as follows-
"The costs/values and years of acquisition of various items were informed by the accused and his wife, who were present at that time and the same were reflected in the said list."
162. Witness PW-41 in his statement also states as follows-
"It is correct that the accused and his wife were present in the house at the time of search. It is correct that accused had been asked about the time of purchase of the articles found in his house and about value of the same. It is correct that the information in that regard being furnished by the accused was then duly mentioned in the Memo(D-24) which is already Ex. PW-41/1."
163. It is clear from the evidence of PW-41 and PW-46 that the value of the articles found during the raid at residence of the accused actually belong to the accused & his wife and their value is mentioned as informed by the accused and his wife. The said fact is also corroborated by the evidence of the CC No. 5/15(532201/16) 112 of 199 investigating officer. In fact, the search memo Ex. PW-41/1 is also signed by the accused and his wife at points E and D which are identified by both of them during their depositions.
164. As per circular No. 21/40/99-PD(Pt.) dated 29-11-2001, certain standards are to be followed in all the investigations into disproportionate assets. Since this circular contains certain important suggestions/directions to be followed by the CBI, it is necessary to reproduce the same, as follows :-
"80. No.21/40/99-PD(Pt.),dated 29.11.2001 SUB:-Standardizing the procedure for investigation into the assessment of wealth possessed by Public Servants - Instructions issued.
It is to inform that the Central Vigilance Commission had constituted a Study Group consisting of Officers of the CVC, Income-Tax, CPWD and CBI all of whom are procedurally involved in investigations into disproportionate assets or whose expertise is in this area, for standardizing the procedure for assessment of wealth of suspect Public Servants under Scrutiny of the CBI for being in possession of assets disproportionate to known sources of income. The Study Group had made following recommendations to ensure CC No. 5/15(532201/16) 113 of 199 that a standard procedure is utilised without compromising the integrity of the investigations, which have been accepted by the Central Vigilance Commission -
(1) The procedure laid down in CBI vide Letter No. 27/2/78-
PD dated 28.02.1978 for investigation into cases of disproportionate assets should be reiterated for compliance by all investigating officers and the reports sent to the Departments and the Central Vigilance Commission should contain all the four prescribed statements. (2) While it would be improper to presume that all cases are identical or similar, it is necessary that the prescribed standards be followed, as far as possible, in all the investigations into disproportionate assets. Accordingly, the following standards need to be prescribed:-
(a) Unverifiable expenditure, such as on kitchen, household, clothing etc. should be taken at 1/3rd of the gross salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification.
(b) If husband and wife have independent sources of income, the income of the spouse with higher salary shall be the base for computing the unverifiable expenditure in accordance with the above prescription. If the spouse with the higher income is investing or depositing the salary entirely, then the lower CC No. 5/15(532201/16) 114 of 199 salary shall become the base for computing unverifiable expenses.
(c) The salary used as the base for computing unverifiable expenditure as above should be taken net of income-tax paid.
(d) Electricity and water charges are not to be computed separately when unverifiable expenditure is computed as detailed above.
(e) Other expenses, such as education, telephone, pleasure trips etc. should be calculated as per information or actual bills produced.
(f) Value of movable properties should be taken at billed value failing which an estimated value may be taken adjusted for the year of acquisition.
(g) Immovable property is to be valued at registered deed value, in the case of Power of Attorney route for acquisition, value is to be determined in accordance with standard principles of determination of market value.
(h) Valuation of construction declared by the Public Servant should be accepted if the variation with the CPWD/Government Department valuation is not more than 15% otherwise, the valuation done by CPWD/Government Department should be utilized. While computing the value all alternations, fittings and fixtures needs to be included. A Special Drive was conducted for surprise checks and CC No. 5/15(532201/16) 115 of 199 registration of trap and disproportionate assets cases by Anti-
Corruption Branches of CBI from 11-10-2000 to 18-10-2000 as per Policy Division Circular of even number, dated 4/5-9- 2000. A number of surprise checks were carried out by CBI Branches located throughout the country and on the basis of which several cases were registered.
In view of the above, it is requested that procedures as laid down in CBI Circular dated 28-2-1978 and as mentioned in above Paras may please be followed strictly for investigation into the assessment of wealth possessed by the Public Servants.
sd/-
(H.C.SINGH) DIG(P), CBI
165. I have carefully gone through the list of articles in search memo Ex. PW-41/1. This list consists of not only some valuable items but also several sundry items which are necessary for day to day use at home. The CBI has considered 1/3 of the income of the accused towards the un- verifiable expenditure. In my opinion such un-verifiable expenditure includes the expenditure incurred by the accused for purchasing certain basic necessary household articles like CC No. 5/15(532201/16) 116 of 199 utensils and clothing etc. It is found from the list that the CBI has included articles like Gas Stove, Glasses, Note Books, Shoes, Dresses, Bed Sheets, Curtains, Soaps etc. All these items as stated above are covered under the un-verifiable expenses towards which CBI has deducted ⅓ of the income. The list also contains of certain articles which are gifted and some other articles which are acquired prior to check period. Articles at serial no.23 at page no. 2, item no. 9 at page no. 3, item no. 4 at page no. 9, item no. 13 at page no. 13 and item no. 36 at page no. 11 of the list are gifted items. The articles at item no. 1 at page no. 9, item no. 17 at page no. 10 and items no. 40 & 41 at page no. 11 were acquired prior to check period. The list also contains some articles whose value and year of acquisition are not mentioned and the same are liable to be deleted. Articles at item no. 11 on page no. 2 is 100 video cassettes worth Rs.10,000/- which are stated to have been acquired 1986 onwards and some of them are gifted. In the absence of any evidence as to how many cassettes were CC No. 5/15(532201/16) 117 of 199 purchased prior to check period i.e. 01.01.1987 and how many cassettes were gifted, the said item is also liable to be deleted.
166. After careful scrutiny only the following items are found to be valuable articles which can be considered as assets for the purpose of calculating disproportionate assets.
Table of Articles
S. Articles Year of Acqui- Cost
No. sition
1 Air conditioner (No Make) 1997 11000/-
2 Computer CTX Two piece CPU & Monitor, Printer 1996 35000/-
3 Music System (Binatone) with two speakers, 100 cas- 1990 10000/-
settes
4 Wooden Cabinet 10"X2.5" 1994 10000/-
5 One wooden Double Bed box type with selfs 1994 12000/-
6 Charts (65 in nos.) 1994 on- 10000/-
wards
7 Misc. Articles i.e. Belts, Perfumes, Ties, Creams 1995 800/-
8 One Leather Jacket 1996 1000/-
9 Two revolving chairs 1995 1800/-
10 Two Dunlop Mattresses 1991 on- 2500/-
wards
11 Telephone instrument (Preetal) 1994 800/-
CC No. 5/15(532201/16) 118 of 199
12 One Tube Table Lamp 1997 400/-
13 Two Leather Suitcases 1992 on- 2000/-
wards
14 Exercise Apparatus, weights etc. 1994 1000/-
15 Two-in-one (Philips) 1989 1000/-
16 Four Curtains 15"X10" 1993 2000/-
17 One Fan Local 1993 700/-
18 Note Books, Books, Pens etc. 1996 on- 2000/-
wards
19 Two Electric Extension Card 1995 150/-
20 Wooden Alimrah 1993 2700/-
21 Wooden Bed Box Type 1993 4200/-
22 One Wooden Table with Small Almirah 1993 1200/-
24 One Wooden Self 10" X 3" 1993 1500/-
25 Two Child bicycle make BSA and Mountain Bike 1995 and 2400/-
1991
26 Usha Sewing Machine 1988 500/-
27 Brass Lamp Shed - 500/-
28 Two Mattresses (Dunlop) Two Pillows and quilt 1993 on- 3200/-
wards
29 One Press Iron(local) 1995 300/-
30 Two big curtains 15"X10" size 1994 1500/-
31 Ladies woolen shawls, gents woolen pullovers (50 in 1989 on- 16000/-
no.) wards
32 One Carpet (12" X 6") 1988 4000/-
CC No. 5/15(532201/16) 119 of 199
33 One Suitcase big (Eminent) 1995 1500/-
34 Misc. Fixtures tube lights wall clocks lamps - 900/-
35 One big silver pan box 1992 600/-
36 One Airbag 1993 800/-
37 One Gyser make MARK 1994 6000/-
38 One Bath Tub with modern showeves etc. and other fix- 1993 10000/-
tures
39 One gyser make MARC 1993 5500/-
40 Tube lights, lamps, bath fixtures 1993 4000/-
41 One old stablizer 1989 400/-
42 Three old chairs (plastic) 1993 750/-
43 One TVS washing machine 1990 3500/-
44 One Air Conditioner local make 1993 18000/-
45 Double bed round shape with velvet coverings fitted 1993 20000/-
with mirrors on rear portion and boxes
46 Casio VL-Tone Electronic Music System 1992 800/-
47 One Wooden shelf with cabinets and study table 1994 1000/-
48 Wall clock (Gravity) 1992 400/-
49 Stereo Two-in-one Make Sharp 1995 3000/-
50 Three Suitcases (Aristocrat, VIP) 1991 3300/-
51 One Polaroid instant Camera New Make 636 Close-up 1997 12000/-
52 Lady perfumes imported (5 in numbers) 1996 1400/-
53 Quilts big size(8 in nos.) 1992 on- 15000/-
wards
CC No. 5/15(532201/16) 120 of 199
54 Four Razai 1992 on- 4200/-
wards
55 Twelve Stuffed Toys 1990 on- 1800/-
wards
56 Fancy Light Table Lamp - 2500/-
57 Misc. Magazines Femina Glamour Cosmopolitan (70 1996 on- 2800/-
numbers) wards
58 One small glass revolving table 1996 500/-
59 Fancy Lights tube light etc. - 500/-
60 SONY CTV 53 cms with Remote 1993 20000/-
61 National VCP with Remote 1993 15000/-
62 Room cooler with double blower (local) with trolley 1995 3500/-
63 Dining Table wooden with six chairs 1994 9000/-
64 Wooden Sofa (2 pieces) 3 + 1 Seater 1993 7000/-
65 Three Seater Wooden Satti 1993 2500/-
66 One Exercise Cycle 1992 1500/-
67 Wooden Self with glass 12" X 4" 1993 10000/-
68 One media TV game 1995 2000/-
69 Bear cut glass set good quality ten pieces 1997 1000/-
70 Six bone china tea set 1993 on- 2800/-
wards
71 One silver pikdan set 1992 1000/-
72 Dadoos Bone china soup bowls 12 pieces 1994 600/-
73 Milton Picnic master 1992 350/-
74 Bear glasses six in numbers 1992 300/-
CC No. 5/15(532201/16) 121 of 199
75 Four bone china dinner set 1991 5000/-
76 One Steel Almirah (Godrej) 1992 3000/-
77 Wall Fixtures clocks paintings total twelve pieces 1990 on- 2000/-
wards
78 Wooden Elephant Showpieces 1989 800/-
79 Two fans 1992 1600/-
80 Two curtains big 15"X10" 1995 3000/-
81 One Air Conditioner 1.5 tonne 1996 22000/-
82 Videocon CTV 14" with Remote 1996 8000/-
83 National VCR with Remote 1995 14000/-
84 Big Double Bed with Box 1988 7000/-
85 Telephone Instrument Panafone KX-T7688 LM 1994 2000/-
86 Telephone Instrument Cordless Sanyo Super Com- 1998 2900/-
pader
87 Telephone Instrument BPL 1997 1000/-
88 One Telephone Instrument B-Tel 1996 700/-
89 One Wooden Self with Cabinets 1995 2000/-
90 One Fancy TV/VCR Trolley 1995 800/-
91 One Wooden Dressing Table with mirror 4.5" X 2.5" 1992 2500/-
92 Wooden Cupboards comprising drawers, almirahs etc. 1992 5000/-
10"X7"
93 Three soft big size quilts (Excel) 1991 4500/-
94 Three Dunlop Mattresses 1989 2400/-
CC No. 5/15(532201/16) 122 of 199
95 Six Razai 1992 on- 3200/-
wards
96 Combined shocket and Spanner Set 100 pieces 1993 1200/-
97 Wooden shelf with Cabinet 3" X 3" - 1400/-
98 Sports items, bats etc. 1992 on- 1000/-
wards
99 Video games (super brick game) three in numbers 1996 on- 900/-
wards
100 Sundry toys (eight in numbers) 1991 on- 1200/-
wards
101 One Carpet 15" X 12" 1987 3500/-
102 One Fan, two tubes, two fancy lights 1993 on- 1500/-
wards
103 One Gyser make MARC 1993 5000/-
104 One Aquaguard ST 2000 1995 3500/-
105 One Gyser make MARK 1993 6000/-
106 One Micro Oven (Indensit) 1989 8000/-
107 Bonne China Tea Set Mugs (6 in nos.) of Dadoos 1992 on- 1600/-
wards
108 Refrigerator of Gem 1988 4500/-
109 3-way Master Processor Life Tang (Juicer) 1991 1800/-
110 Moralinex Mixer(Made in France) 1992 1200/-
111 Sandwich Toaster (Eagle) 1990 600/-
112 One Toaster Goldline 1992 800/-
113 One fan (local) 1991 700/-
114 One exhaust fan 1993 500/-
CC No. 5/15(532201/16) 123 of 199
115 One wooden Dewan - 1200/-
116 One Glass Centre Table - 1800/-
117 One Carpet 10"X6" 1993 5000/-
118 One vaccum cleaner Euroclean 1994 4500/-
119 One Auto Start Lantern make Eagle Click - 2000/-
120 JP Water Filter - 700/-
121 One Airbag - 500/-
122 Bone China show pieces of different shapes - 4000/-
123 Children Toys 1995 2500/-
124 One small glass table - 500/-
125 Two earthern pither shape show pieces 1990 100/-
126 Three show pieces handiya shape 1990 150/-
127 Black metal statue 1989 400/-
128 Chini mitti gamla show piece 1989 1200/-
129 Round shape metal small table 1989 700/-
130 Lampshade 1990 500/-
131 Small carpet 4"X3" 1989 600/-
132 Seven curtains 4"X3" 1989 600/-
133 Three fans (locals) white 1993 2100/-
134 Two fancy wall lights 1994 400/-
135 One circular glass table 1993 600/-
136 Two small side tables 1990 900/-
CC No. 5/15(532201/16) 124 of 199
137 One fish aquarium 1995 6000/-
138 Five bone china glass show pieces - 1200/-
139 Thirty small show pieces of glass and chini mitti of dif- 1991 3000/-
ferent shape
140 One Super Tuner KEH car stereo 1989 1200/-
141 Electronic clock Radio, Shira vs-308 1988 3000/-
142 Eight set of decorative piece of different shapes 1991 800/-
143 Wooden study table 4"X2.5" 1989 2000/-
144 Two easy chairs - 600/-
145 Fancy mirror 3"X2" - 700/-
146 22 Wrist watches - 17000/-
Total 5,44,600/-
Therefore the value of articles found at the house of accused which can be considered as movable assets for the purpose of Disproportionate assets is held as Rs.5,44,600/-.
167. Item number 2 : According to prosecution, some articles were found during the search at D-201, Taj Enclave, Geeta Colony, Delhi. A search memo has been prepared showing the six articles in total which are stated to have been found in the CC No. 5/15(532201/16) 125 of 199 said flat. The prosecution has examined PW-8 Yashveer Singh Inspector, CBI who has conducted the search and also prepared the search memo which is brought on record as Ex. PW 8/A. The search, according to memo, was conducted in the presence of an independent witness, namely, Sunil Kumar, however, the said Sunil Kumar is not examined. It is not disputed that the said flat is owned by the accused. Contention of the accused is that the articles found in the said flat as mentioned in the search memo i.e. Ex. PW 8/A do not belong to him but belong to the tenant. Accused also stated the same in his statement U/s 313 Cr.P.C. It is not the case of prosecution that accused has ever stayed in the said flat and kept articles for his use. The search memo also does not show as to the year of acquisition of these articles. Prosecution also not brought on record any document like sale receipt of any of the articles found in the said flat to show that the same were purchased by the accused during the check period. In the absence of any evidence to show that the CC No. 5/15(532201/16) 126 of 199 said articles were used and purchased by the accused during the check period, the same are liable to be deleted.
168. Item number 3 : At this item, the prosecution shows the jewellery found during search proceedings at the residence of the accused i.e. at number 6 Jaipur Estate, Nizamuddin and the same is mentioned in search memo Ex. PW-41/1. The value of the jewellery was estimated by a jeweller, namely, Shikhar C. Jain, who was arranged by the CBI. The particulars of the jewellery like description of the articles, its approximate weight and approximate value are separately noted down on a separate paper which is signed by the jeweller, two independent witnesses, accused and his wife.
169. Ld. PP for CBI argued that the said jewellery worth Rs.41,900/- is part of the assets acquired by the accused during check period, therefore, the same need to be considered for the purpose of assessing disproportionate assets of the accused. On the other hand, Ld. Counsel for the accused contends that the said jewellery belongs to the wife CC No. 5/15(532201/16) 127 of 199 of the accused which she got as istridhan at the time of her marriage.
170. On careful perusal of search memo Ex. PW-41/1 and its Annexure Ex. PW-46/1, it is made out that there is nothing which indicates that the said jewellery was acquired by the accused during the check period. Wife of the accused Salma Iqbal who is examined as DW-13 states in her statement as follows : -
"I got married with accused on 05.06.1977. In my marriage, I got gold items i.e. 6 heavy gold sets, one chain, 2 pair of gold bangles i.e. 'Kadha', 16 gold bangles, 2 pair of gold earnings, 6 gold finger rings from my parent side.
From my in laws side, I got 4 heavy gold sets, one gold chain, one gold tikka, gold jhummar and gold nose pin. Next day of my marriage, my father in law gave me two pairs of gold 'Kadhas' and my mother in law gave me 12 gold bangles on my 'Muh Dikhai Ceremony'.
The Uncle (Chacha) of my husband gifted me one gold set on CC No. 5/15(532201/16) 128 of 199 Muh Dikhai Ceremony. My eight sister in laws gifted me one gold chain, ear-rings, rings etc. Other relatives of my husband gifted me cash amounting to Rs. 20,000/- on this ceremony."
171. The search memo Ex. PW-41/1 shows the year of acquisition of all the articles found at the residence stated to have been revealed by the accused and his wife but no such period of acquisition is mentioned for these jewellery articles.
172. In view of the deposition of DW-13 Salma Iqbal that the jewellery was gifted to her at the time of marriage and further in view of the fact that the prosecution has not got any document or receipt to show that the said jewellary was purchased by the accused during the check period, the same is considered as istridhan of DW-13 and liable to be deleted from the list of the movable assets.
173. Item No. 4, 7, 8, 9 & 10 : Items 4 to 13 pertain to the balance in Bank Accounts of accused, his wife, mother and some NSCs. The accused has admitted the movable properties at item number 4, 7, 8, 9 and 10, hence, need no discussion.
CC No. 5/15(532201/16) 129 of 199
174. Item No. 5 : The movable property at item number 5 i.e. balance in Account No. 197/34 at Allahabad Bank, Pahasu in the name of Mrs. Sultana Begum (mother of accused) is found having balance of Rs.13,855/- is proved by examining witness, namely, Vinay Kumar Sharma, Manager Allahabad Bank as PW 29 who brought on record the statement of account as Ex. PW 29/3.
175. Item No. 6 : The movable property at item number 6 i.e. balance in Account No. 62/20 at Allahabad Bank, Pahasu in the name of Mrs. Salma Iqbal (wife of the accused) is found having balance of Rs.2,442/- is proved by examining witness, namely, Vinay Kumar Sharma, Manager, Allahabad Bank as PW-29. The statement of account of the said account is admitted by the accused and the same is exhibited as Ex. P- 31/3.
176. Item No. 11 : According to prosecution, the accused also purchased 4 NSC certificates by investing Rs.10,000/- on each certificate, total worth of Rs.40,000/-. Prosecution has CC No. 5/15(532201/16) 130 of 199 examined witness B. R. Kaushal, Sub Post Master, Nizamuddin Post Office as PW-37. As per the statement of this witness, accused has purchased 4 NSC certificates of each Rs.10,000/- on 27.03.1996 by way of his application Ex. PW-37/2. This application Ex. PW-37/2 contains the details i.e. numbers of 4 NSCs as 005435 to 005438 and their total value as Rs.40,000/-. The accused also intimated about the investment in NSCs to the department in his declaration Ex. P-20/10. In view of the above the said investment of Rs.40,000/- by the accused in NSCs is held proved.
177. Item No. 12 : Item number 12 in the list shows the cash of Rs.34,546/- found in possession of the accused. This is the same amount which was found at the residence of the accused during the search proceedings and is mentioned in search memo Ex. PW-41/1. As per this search memo, total cash found was Rs.34,546/- out of which an amount of Rs.32,000/- was seized and remaining amount of Rs.2,546/- was handed over to the accused to meet the daily expenses.
CC No. 5/15(532201/16) 131 of 199 The prosecution has proved the search memo Ex. PW-41/1, accordingly, this asset is also held proved.
178. Item No. 13 : According to prosecution, the movable property at item number 13 i.e. balance in Account No. 709 at SBI, Railway Road Bulandshehar, U.P. in the name of Mrs. Salma Iqbal (wife of accused) is found having balance of Rs.8,930/-. In this regard, the prosecution has examined witness, namely, J.P. Goel, Manager, SBI Bulandshehar, U.P. as PW-40 and brought on record the statement of account as Ex. PW-40/4. As per the evidence of PW-40 and the document Ex. PW- 40/4, the balance in the said Account as on 10.06.1998 is Rs.5,926/-. Therefore, the value of the movable asset at item No. 13 is taken as Rs.5,926/-.
Annexure-D Verifiable expenses (A) Expenditure during the check period
179. Item No. A(a) : As per prosecution, the accused has 3 sons and 1 daughter. The expenditure incurred by the accused CC No. 5/15(532201/16) 132 of 199 towards the education of his children during the check period to the tune of Rs.2,61,362/- as mentioned in the Annexure-D of the charge sheet. The CBI, in course of investigation, collected relevant documents from different educational institutions to prove the said expenditure incurred by the accused towards the education of his children. The said documents are admitted by the accused and taken on record as Ex. P-24, Ex. P-25/1 to P-25/3, Ex. P-26/1 to P-26/6, Ex. P- 27/1 to P-27/4, Ex. P-28 and Ex. P-29. In view of the said admitted documents, the expenditure of Rs.2,61,362/- towards education of children of accused as mentioned in this item is held proved.
180. Item No. A(b) : This item is with regard to the expenditure incurred by the accused towards the payment of telephone bills during the check period. According to the prosecution, there was a telephone connection installed at the residence of the accused at 6, Jaipur Estate, Nizamuddin East, New Delhi and an amount of Rs.2,17,349/- was paid towards the CC No. 5/15(532201/16) 133 of 199 telephone bills during the check period. The prosecution has not examined any witness to prove the various bills to show that the accused has incurred the expenditure on the telephone bills. However, the accused has admitted the document (D-18) filed by the prosecution showing the telephone bills for the period 01.02.1995 to 01.02.1997. On admission of the accused the said document is Ex. P-30/2. As per this admitted document, an amount of Rs.57,543/- was paid by the accused towards the bills pertaining to the telephone connection no. 4694266 installed at 6, Jaipur Estate, Nizamuddin East, New Delhi. Since there is no other evidence in this regard, the expenditure incurred by the accused as admitted, towards the telephone bills during the check period is taken as Rs.57,543/-.
181. Item No. A(c) : According to the prosecution, the accused has incurred an expenditure of Rs.6,560/- towards the electricity connection at D-201, Taj Enclave, Geeta Colony, Delhi. The prosecution has examined V.L. Kamra, Assistant Finance CC No. 5/15(532201/16) 134 of 199 Officer, DVB as PW-6 and brought on record the statement of bills and payments as Ex. PW-6/A. As per the deposition of PW-6 and statement Ex. PW-6/A, an electricity connection K. No. 632-0051884/DL in the name of accused Iqbal Ahmed Khan installed at premises no. D-201, Taj Enclave, Geeta Colony, Delhi and an amount of Rs.6559.64 paise is paid for the period 1996 to June 1998. It is already held that the said premises is owned by accused Iqbal Ahmed Khan and hence the expenditure of Rs.6,559/- towards the electricity bills at D- 201, Taj Enclave, Geeta Colony, Delhi is held proved.
182. Item No. A(d) : According to the prosecution, the accused has incurred an expenditure of Rs.3,02,280/- towards the electricity charges at 6, Jaipur Estate, Nizamuddin East, New Delhi during the check period. The Ld. Counsel for the accused argued that the alleged electricity connection at 6, Jaipur Estate, Nizamuddin East, New Delhi is not in the name of the accused but in the name of one R. L. Rajni. It is further argued that there is no evidence on record which shows that CC No. 5/15(532201/16) 135 of 199 accused has paid the entire electricity bills.
183. The prosecution has examined Shyam Prakash, Assistant Finance Officer, DVB as PW-50 and brought on record the statement of bills and payments as Ex. PW-50/A1. As per the deposition of PW-50 and statement Ex. PW-50/A1, an electricity connection K. No. 016/1584802/DX installed at premises no. 6, Jaipur Estate, Nizamuddin East, New Delhi and an amount of Rs.3,02,280/- is paid for the period 10.12.92 to 28.10.97. The said electricity connection admittedly is in the name of one R. L. Rajni and the single connection is used for front and rear portion of the ground floor of the premises. There are certain admitted documents on record, Ex. P-23/1 to P-23/4, which show that the accused has corresponded with the Electricity Department with regard to the payment of arrears of electricity bills. As per these documents, the accused has agreed to pay an amount of Rs.1,59,612.18 to the electricity department. The said amount, as per the statement Ex. PW-50/A1, is paid in October 1997. The CC No. 5/15(532201/16) 136 of 199 statement Ex. PW-50/A1 shows some more payments towards the electricity bills of entire ground floor, however, there is no evidence to show that the said payments are made by only accused. In statement u/s 313 Cr.P.C, the accused has stated that the electricity bills were shared by him and his father in law. In view of the above, it is held that accused has incurred an expenditure of Rs.1,59,612/- towards payment of electricity charges during the check period.
184. Item No. A(e) : According to the prosecution, the accused has incurred an expenditure of Rs.1,500/- towards the house tax paid for house at Pathan Tola, Pahasu, District Bulandshahar, UP. The prosecution has examined Kunwar Pal Singh, Tax Clerk, Nagar Panchayat, Pahasu, District Bulandshahar, UP as PW-23 and brought on record the payment receipt as Ex. PW-23/B. As per the deposition of PW-23 and receipt Ex. PW- 23/B, an amount of Rs.1,500/- is paid by the accused towards house tax for the period 1990-91 and 1991-92. Hence the expenditure of Rs.1,500/- is held proved.
CC No. 5/15(532201/16) 137 of 199 (B) Non-verifiable Expenditure
185. The value of non-verifiable expenditure towards food, clothing etc. considered by CBI, which is in accordance with the guidelines as mentioned in the Circular No.21/40/99-PD(Pt.) dated 29.11.2001, is held reasonable. Accordingly, Rs.1,74,820/- which is 1/3rd of salary is considered as non- verifiable expenditure incurred by the accused. The said circular is discussed in detail while dealing with the movable assets i.e. Annexure B at item no. 1 in para no.164. Annexure-C Income
186. (A) Income from Pay & Allowances: According to prosecution, accused has earned Rs.5,24,462/- as salary & allowances as JE in MCD during the check period. Prosecution has filed alongwith the charge sheet, the documents collected from various offices of MCD where accused was posted and received salary from during the check period i.e. 01.01.1987 to 10.06.1998. The details of the salary and allowances as mentioned in charge sheet are as CC No. 5/15(532201/16) 138 of 199 follows-
S. NO. DETAILS AMOUNT
01. Salary & Allowances during the period January 1987 to Rs.13,907/-
13.07.1987.
02. Salary & Allowances during the period 14.07.1987 to Rs.64,593/-
01.11.1989.
03. Salary & Allowances during the period 02.11.1989 to Rs.59,177/-
30.08.1991.
04. Salary & Allowances during the period September 1991 to Rs.22,272/-
07.05.1992.
05. Salary & Allowances during the period 08.05.1992 to Rs.47,748/-
03.08.1993
06. Salary & Allowances during the period 04.08.1993 to Rs.64,489/-
04.05.1995.
07. Salary & Allowances during the period 05.05.1995 to Rs.1,19,421/-
20.09.1996.
08. Salary & Allowances during the period 21.09.1996 to Rs.38,990/-
10.04.1997.
09. Salary & Allowances during the period 11.04.1997 to Rs.8,157/-
16.05.1997.
10. Salary & Allowances during the period May 1997 to Rs.85,708/-
10.06.1998.
Total Rs.5,24,462/-
187. The documents filed by the CBI with regard to showing the details of income received by the accused from MCD are CC No. 5/15(532201/16) 139 of 199 admitted by the accused and they are taken on record as Ex. P-1 to P-10. In view of the fact that the accused has admitted the documents i.e. Ex. P-1 to P-10 which show the entire pay and allowances earned by the accused as JE in MCD during the check period, the income of Rs.5,24,462/- is held proved.
188. (B) Income from Rent : According to the prosecution, the accused had rental income of Rs.60,200/- from the shops which are part of his ancestral house at his native place at Pahasu, Bulandshahar, UP. Ld. Counsel for the defence argued that the calculation of rental income by the IO is highly irrational and he deliberately did not correctly calculate the rental income. Ld. Counsel further argued that there are 9 shops which are part of the house at Pahasu and all the shops are given on rent during the entire check period. It is also argued that mother/family of the accused had an income of about Rs.4000/- per month on average from all the shops. On the other hand, the Ld. PP for CBI argued that the IO has calculated the rental income of the family of the accused CC No. 5/15(532201/16) 140 of 199 during the check period as per evidence collected during the investigation.
189. Accused in his 313 Cr.P.C examination stated that the shops were ancestral and rent of all the 9 shops at Pahasu was received by mother. Accused also stated in his statement as DW-14 that there are 9 shops which are part of his house situated on the main road in village Pahasu, Bulandshahar and all the shops have been rented out for a total sum of Rs.4000/- per month. Wife of the accused DW-13 also stated that 9 shops which were reconstructed, were given on rent @ Rs.3000 to Rs.4000/- per month by her mother in law.
190. It is not disputed that there are 9 shops part of reconstructed house at village Pahasu and all the shops are given on rent and there was rental income during the check period. The prosecution has examined some of the tenants as PW-31 to PW-36. The relevant portions of their evidence are as below- PW-31 - "I am a tenant since 1989 in a shop owned by the accused on a monthly rent of Rs.300/- which stood enhanced CC No. 5/15(532201/16) 141 of 199 to Rs.500/- per month. Present rate of rent is Rs.800/- per month. I paid rent at the rate of Rs.300/- per month till 1994- 95 and Rs.500/- per month w.e.f. 1995 to till 2004"
PW-32 "I took the shop on rent in the year 1987 and it remained with me for 5/6 years and its monthly rent was Rs.300/- in the beginning and after 3/4 years, its rent stood enhanced to Rs.500/- per month."
PW-33 "I am tenant in the aforesaid shop since 1990. In the beginning the rent of the shop was Rs.300/- per month but in the year 1994, it was enhanced to Rs.500/- per month." PW-34 "In the year 1997, I had taken two shops on rent from accused. I was running tent business in the said shops. I was paying Rs.500/- per month as rent for each one of the said shops to accused or his family members."
PW-35 "I used to pay rent of Rs.500/- per month to the accused I.A.Khan for the last two years.
PW-36 "I was tenant in the said shops and used to pay rent as Rs.500/- per month."
CC No. 5/15(532201/16) 142 of 199
191. With regard to the rental income the defence has cross-
examined the IO who stated in this regard as follows-
"As I do not now remember I cannot say if rent in respect of each of the shops was initially Rs.300/- PM which increased to Rs.500/- PM in the year 1994 and was subsequently increased to Rs.800/- PM. I also cannot say if since inception of his tenancy, Saleem Khan was paying rent @ Rs.500/- PM. (Vol- I do not even remember if he was a tenant in that property). It is incorrect to suggest that I am deliberately giving evasive and wrong answers as I had not properly calculated rent received from the said property. (Vol - As per my investigation all the rents had been paid in cash.) I do not remember having examined any tenant to the effect that there was practice in the area of giving rent by way of cheque. It is correct that Pahasu is a Kasba(small Town). "
192. From the evidence of PW-31 to PW-36, it can be understood that each shop was given on rent @ Rs.300/- which gradually increased to Rs.500/- per month from the beginning of the CC No. 5/15(532201/16) 143 of 199 check period towards end of the check period. The evidence of DW-13 and DW-14 also states that the rental income was about Rs.3000/- to Rs.4000/- per month from all the 9 shops. The said fact is also not denied by the IO in his cross- examination. The rents were paid in cash hence there is no document in this regard. It can be made out from the evidence brought on record i.e. statements of PW-31 to PW-36, cross- examination of PW-49 IO, DW-13 and DW-14 that there was a rental income from 9 shops at village Pahasu @ Rs.300/- to Rs.500/- per month from each shop and the rents were collected by the mother of the accused. Since there is no exact amount of rent per month paid by each tenant and that there is no document in this regard for entire 11 years span of check period, it is appropriate to take an average income of Rs.400/- per month from each shop during the check period and the same is calculated as follows-
Shops =9
Period =10 years 6 months = 126 months
CC No. 5/15(532201/16) 144 of 199
Rent per month for each shop =Rs.400/-
Total rent =400 X 126 X 9 = Rs.4,53,600/-.
Accordingly the income from the rents of shops at Village Pahasu, District Bulandshahar, UP is taken as Rs.4,53,600/-.
193. (C) Interest from Bank Accounts : As per the chargesheet, the income of the accused and his family members from the interest earned during the check period from savings accounts maintained in various banks is to the tune of Rs.61,776/-. Prosecution has examined PW-20, who has brought on record the statement of account of SB A/c. No. 2602 and SB A/c. No. 2599 in the name of accused Iqbal Ahmed Khan as Ex. PW-23/B. Prosecution also examined PW-29 Vinay Kumar Sharma, Manager Allahabad Bank, who brought on record the statement of account No. 19734 in the name of Sultana Begum as Ex. PW-29/3. Prosecution has further examined PW-47 Manager, Allahabad Bank, Pahasu, who proved the statement of account No. 431/6 in the name of accused. The statement of the said account is aleady CC No. 5/15(532201/16) 145 of 199 admitted as Ex. P-14/2 to 14/6. Accused also admitted the bank statements pertaining to account nos. 62/20 at Allahabad Bank, Pahasu and A/c. No. 2602 at PNB, Pahasu which are in the name of his wife Salma Iqbal. The said statements of account show that the accused and his family members earned an income by way of interest from their bank accounts to the tune of Rs.61,776/-. The benefit of the said income which is not disputed by the accused and given by the CBI itself is considered accordingly.
194. (D) Income from agricultural land : There are totally 9 pieces of land in the name of accused, his wife and his mother. Out of that, 3 pieces of land were ancestral or acquired prior to the check period, remaining 6 pieces of land (5 in the name of wife and 1 in the name of mother) were acquired during the check period. In the charge sheet, CBI considered the income from 2 pieces of land (which were acquired prior to check period) to the extent of Rs.1,80,000/- and not considered any income from the remaining pieces of CC No. 5/15(532201/16) 146 of 199 land. Relevant paragraph of the charge sheet is as below -
"It has also been revealed that Sh. I.A. Khan had purchased 6 pieces of land in the name of his wife and mother during the period 1993 to 1995. The evidence indicated that from the time of acquisition there has been plantation of mango and other trees and no crop produce has come up during the check period. But he received only Rabi Crop (Wheat) from an other land measuing 0.696 hectare purchased in the name of his wife at Pahasu on 1984. The average production of wheat in this land is 40 Qtls. per hectare per crop year. The average cost of wheat during last 11 years is taken as 500 Qtls. Hence the total income comes out to be Rs.12,500/- per year and by taking 50% of the cost of the produce towards expenses, the total net income from said land during the period January 1987 to June 1998 comes to Rs.68,750/-. The cost of the produce (Mango etc.) from the ancestral land of Sh. I.A.Khan o.606 Hect. and situated at Pahasu for the period January, 1987 to June 1998 come out to be CC No. 5/15(532201/16) 147 of 199 Rs.1,69,680/- at an average produce of Rs.25,000/- per year per hectare. If 1/3 of the cost of the produce is taken towards cultivation charges the net income from said land during the period January 1987 to June 1998 comes out to be Rs.1,11,000/- (approx.). Hence the total income of Sh. I.A. Khan from agricultural produce comes out to be Rs.1.50 lakhs (approx). Sh. I.A. Khan has not claimed any income from the land in statements I to VI furnished by him. The total income of the accused during the check period thus comes to Rs.8,26,438/-."
195. Ld. Counsel for the defence claims that there was substantial income from the agricultural lands which was not considered by the IO. Ld. Counsel relies on the statement of PW-15, PW- 16, PW-17, PW-24, PW-25, PW-27, PW-28, DW-13 and DW-
14. On the other hand, Ld. PP for CBI argued that the accused and his family did not have any income from agriculture except what is mentioned in the charge sheet. Ld. PP further argued that there is no documentary evidence CC No. 5/15(532201/16) 148 of 199 adduced by the accused with regard to any further income from agriculture and oral evidence by the witnesses cannot be relied.
196. The prosecution, as seen from the charge sheet, has considered the income from 2 pieces of land and not considered any income from one piece of land which is acquired prior to check period and 6 pieces of land acquired during the check period. With regard to the cultivation of the lands, PW-24, who is a farmer looking after the cultivation of some of the lands in question, has stated as follows -
"After purchase of land from Mohan Lal, Salma Begum purchased 19/20 kutcha bigas of land. It was also purchased from Iqbal Saheed Khan. This transaction took place about 2- 3 years of purchase of land from Mohan Lal. I do not know the sale price. This land was also in the same village. This land was also barren at the time of sale. Its registry was also done in Khurja. I might have signed as a witness and I am n't sure. Iqbal Ahmed's fathers name is Sh. Faiz Ahmed. He was a CC No. 5/15(532201/16) 149 of 199 teacher. He had a baagh (tree Orchid) of about 16-16 kutcha bigas."
197. Witness PW-17 stated as follows -
"On 16.12.99 I was posted as Lekhpal of Bhaiyya Pur Area, Pargana Pahasoo, Tehsil Sikarpur, Distt. Buland Shahar. I have seen letter Ex.PW17/A which bears my signatures at point A. Vide this letter I had handed over to CBI Khasra Khatauni pertaining to land No. 170 of village Pitampur, Pargana Pahasoo, Tehsil Sikarpur, Ex.PW17/B and Ex.PW17/C. As per Ex.PW17/C .696 Hectare Land situated at Pitampur village was transferred from Sh. Mahavir Singh to Smt. Salma Iqbal W/o Sh. Iqbal Ahmed. As per Ex.PW17/C consideration value of this transaction was Rs.30,000/-. I do not know what kind of produce used to be grown on this land. As per Ex.PW17/B this land was being used for cultivation of wheat. I cannot tell as to how much wheat was grown in the said land in the year 1997 and what was its CC No. 5/15(532201/16) 150 of 199 income from that land."
198. Witness PW-16 also stated as follows-
"As per revenue record land No. 2055 was a vacant land which is an Abadi area when I had handed over the documents to CBI. As per revenue record Ex.PW16/C land No. 2150 was a mango grove area. There are two years to count the income from the said mango grove area. In the first year it is called Nar Year(Male) the approximate income is Rs.30,000/- per year and in the second year called Mada Year (Female), the approximate income is Rs.20,000/-. Approximately one third expenses of the income are incurred by the owner."
199. The wife of the accused in her chief examination as DW-13 stated as follows-
"In the year 1988, I purchased the land near Canal in Pahasu, Bulandshahar measuring 20 Bighas for an amount of Rs.30,000/- from father of Shri Shiv Raj Singh from Income earned from the aforesaid Buses. There was a agricultural CC No. 5/15(532201/16) 151 of 199 produce of around 3 Quintals of Wheat per Bigha and used to be sold at the price of Rs.3 and ½ per kg.
Again in the year 1989, I had purchased a land in Pahasu, Bulandshahar measuring about 700 sq. Yards from Mr. Tehsil Khan for an amount of Rs.15,000/- from Income earned from the aforesaid Buses. This land was given on rent @ Rs.600/- p.m. to one Shri Zamil Khan for running his Saw Mill Factory. In the year 1994, I had purchased a land mearuring about 20 Bighas from one Shri Mohan Lal for an amount of Rs.1,53,000/- from the money got by me from selling my jewellery and also from income earned from the Bus and farming on the land earlier purchased. My father-in-law had also helped me financially.
On the lands mentioned above, I used to sow wheat & Corn. There was a total agricultural produce of 4 Quintals per Bigha. The price of wheat was around Rs.300/- to Rs.350/- per quintal.
In the year 1994, I had purchased a land from Iqbal Sayeed CC No. 5/15(532201/16) 152 of 199 for an amount of Rs.2,24,000/- measuring 20 Bighas in Chattri, Lal Garhi. The money for the purchase of this land came from the savings made from the purchase of this land came from the savings made from the income of other lands that I had purchased and from the income earned from Buses and also from the sale of the jewellery. On this land, I used to sow wheat, Millet & corn in the said land. There was a yield of around 3 Quintals per Bigha of Wheat from this land. The produce used to be sold at a price of Rs.6.00 - Rs.7.00 per Kg."
200. The prosecution has not considered the income from the land no. 2150 in the name of Sultana Begum(acquired prior to check period) for no apparent reason. PW-16 Ramesh Pal Singh was Lekhpal in Village Pahasu, Bulandshahar and maintained record of this land. As per the evidence of PW-16, there was Mango Orchard on this land and there was an average income of Rs.25,000/- per annum and ⅓rd of it incurred as expenditure towards cultivation. The income from CC No. 5/15(532201/16) 153 of 199 this land no. 2150 is calculated as per the evidence of prosecution witness PW-16, which is as follows-
201. The income for 11 years i.e. the entire check period from this land comes to 25,000 X 11 = 2,75,000 - 1/3 (expenses) = Rs.1,83,334/-. Accordingly, agricultural income from land no. 2150 in the name of mother of the accused Smt. Sultana Begum during check period is taken as Rs.1,83,334/-.
202. Claim of the accused that there was some income earned by his mother from the sale of Jamun and Saras Trees is based on the statement of prosecution witness Chaman Khan PW-
19. In chief examination this witness stated that he purchased some Jamun and Saras trees from mother of the accused. This witness did not support the case of prosecution and declared hostile. He also not stated anything as to when, how much quantity and for what value he purchased Jamun and Saras trees. In the absence of such details and the nature of the witness who is declared hostile, his testimony is not found reliable.
CC No. 5/15(532201/16) 154 of 199
203. Prosecution has also examined a witness namely Nasim Khan as PW-28. As per the statement of this witness, he is a tree contractor and purchased 'Safeda Trees' from the wife of the accused in 1992, 1994 & 1996 and paid two times Rs.30,000/- and once paid Rs.35,000/-. As per this witness, he paid Rs.95,000/- in total during the years 1992 to 1996 for purchase of Safeda Trees. Witness was declared hostile and cross-examined by the Ld. PP, however, nothing was elicited to prove his earlier statement wrong. The said income of Rs.95,000/- also mentioned by the accused in his declaration i.e. Ex.P-20/4. It is also seen from the contents of charge sheet that the accused also informed the IO during the investigation with regard to the said income. In view of the above, it is held that wife of the accused had an income of Rs.95,000/- during the check period from the sale of Safeda Trees to PW-28.
204. The counsel for accused has submitted a chart showing some calculations with regard to the agricultural income from other CC No. 5/15(532201/16) 155 of 199 pieces of land. Except the statements of DW-13 i.e. wife of the accused and DW-14 i.e. accused himself, there is no material to prove the agricultural income from remaining lands. The accused has not summoned any village Patwari/ Lekhpal nor brought on record any revenue record to prove the agricultural income as claimed. Though PW-24 stated that he looked after the lands of wife of the accused, he has not stated about any particulars of income earned from these lands. As far as the evidence of PW-17 is concerned, the same is considered for calculation of income from land no. 170 in the name of wife of the accused and the benefit is also accordingly given in the charge sheet. Accused also not produced any receipt of any marketyard to show that the agricultural produce was sold and fetched any income. In the absence of any such document, the self serving statements of accused and his wife cannot be relied. In view of above reasons, the agricultural income of the accused as per the evidence available on record is taken as follows -
CC No. 5/15(532201/16) 156 of 199 * Income from 2 lands khet no. 170 and khet no. 081 (as mentioned in the charge sheet - Rs.1,80,000/- * Income from land no. 2150 in the name of mother - Rs.1,83,334/-
* Income from sale of Safeda Trees - Rs.95,000/- Total income from agricultural land comes to Rs.4,58,334/-, same is accordingly considered.
Additional Income claimed by the accused
205. Income from the sale of Jewellery : Ld. Counsel for the accused contends that the CBI has not considered the fact that wife of the accused Salma Iqbal had some ancestral jewellery and the said jewellery was sold by here during the years 1992, 1994 and 1995. The Ld. Counsel for the accused refers to the evidence of DW-1, DW-13(Salma Iqbal) & DW- 14(accused) and to the documents DW-1/A to DW-1/C. The Ld. PP for CBI argued that there was no such income as claimed by the defence by way of selling the ancestral jewellery and the documents DW-1/A to DW-1/C i.e. vouchers CC No. 5/15(532201/16) 157 of 199 are false and fabricated by the accused.
206. DW-13 Salma Iqbal is the wife of the accused examined by the defence. In her examination in chief she stated as follows "Some jewellery amounting to Rs.2,43,000/-(approx.) was sold by me in 1992. Again, in the year 1994, I had sold some more jewellery amounting to Rs.2,33,000/- (approx.). Apart from this, I had also sold jewellery amounting to Rs.2,32,000/- (approx.) in the year 1995". The defence also examined one Prem Prakash, Prop. of Rama Krishna Jewellers as DW-1. According to the defence, the ancestral jewellery of wife of the accused was sold at Rama Krishan Jewellers and DW-1 is the proprietor of the said jewellers who deposed about this fact. The statement of DW-1 in his chief examination is as follows-
"I am the Proprietor of Shri Rama Krishna Jewellers and have my shop at D-34, Main Road, Central Market, Lajpat Nagar-II, New Delhi.
I do not know the accused Iqbal Ahmed Khan present in the court. I do not remember if he had ever sold any jewellery CC No. 5/15(532201/16) 158 of 199 articles to me.
I have seen the Purchase/Receipt vouchers dated 9.11.1992, 1.2.1994 & 2.4.1995 being produced in Court. (The three vouchers have been produced by Ld. Counsel for defence and copies thereof have been furnished to Ld. PP). The Vouchers are of our shop.
The voucher No. 239 dated 9.11.1992 is Ex.DW-1/A and bears signatures of Ms. Sheetal Sharma at Point Mark-X. I can identify her signature having seen her wiring and signing during course of her employment with us.
Voucher No. 277 (also bearing No. 280) dated 1.2.1994 is Ex. DW-1/B and bears my signature at point Mark-X. Voucher No. 347 dated 2.4.1995 is Ex. DW-1/C and also bears my signature at point Mark-X. Payments in respect of the three vouchers had been made in cash."
207. As seen from the above statement of DW-1, he identified all the 3 original vouchers bearing nos. 239 dated 09.11.92(Ex.
CC No. 5/15(532201/16) 159 of 199 DW-1/A), 277 dated 01.02.94(Ex. DW-1/B) and 347 dated 02.04.95(Ex. DW-1/C). DW-1 further identified signature of his employee Ms. Sheetal Sharma at point X on Ex. DW-1/A and his own signatures at point X on Ex. DW-1/B and Ex. DW-1/C. The witness DW-1 further stated that payment in respect of the 3 vouchers had been made in cash. In cross-examination the witness denied the suggestion given by the Ld. PP for CBI that he knows the accused and trying to help him in this case. Nothing is elicited in cross-examination of DW-1 to prove that the vouchers Ex. DW-1/A to 1/C are false and forged. The statement of DW-1 in his chief examination is straight and consistent. It is pertinent to mention that even during the investigation, the accused had claimed that he sold some jewellery to Rama Krishna Jewellers and income out of the same. The accused also informed this fact to his department vide document D-62. It is also pertinent to mention here that the IO PW-49 has admitted in his cross-examination that accused claimed income by way of selling jewellery. The CC No. 5/15(532201/16) 160 of 199 relevant portion of the statement of IO is as below-
"I have seen document D-62. It refers to notices dated 7.12.1999 & 17.12.99 U/s 91 Cr.P.C. served upon Ramakrishna Jewellers. Copies of the said notices were not filed on record alongwith the charge sheet. Q) Is it correct that in the said two notices U/s 91 Cr.P.C.
you had sought information regarding genuineness of vouchers dated 9.11.92, 1.2.94 & 2.4.95 all issued in the name of Iqbal Ahmed Khan against sale of jewellery. What have you to say?
Ans. Without seeing the notices, I cannot say anything about this question.
During course of investigation, accused had claimed having sold some jewellery to Ramakrishna Jewellers and had claimed some income out of the same. This explanation had also been given by him to his Department after investigation of this case has started. It was to verify these facts the notices u/s 91 Cr.P.C had been issued to Ramakrishna Jewellers.
CC No. 5/15(532201/16) 161 of 199 Reply thereof (D-62) had been duly received by me during course of investigation. The reply is Ex. PW-49/DD. As I do not now remember I cannot say if originals of the vouchers dated 9.11.92, 1.2.94 & 2.4.95 (copies produced by Ld. Counsel and shown to the witness are Mark P-49/D-12, 13 & 14) had been handed over to me by the accused. I do not want to see my case diary in this regard. It is correct that details of vouchers had been mentioned in the notices U/s 91 Cr.P.C issued by me. Presently, I do not have the said notices with me and cannot produce the same. It is incorrect to suggest that I have intentionally not placed on record original copies of the invoices Mark P-49/D-12, 13, 14. It is incorrect to suggest that as the accused was able to give genuine explanation regarding incomes derived from sale of jewellery, that is why I had intentionally not placed on record the original notices. It is incorrect to suggest that claim of the accused in this regard was genuine or that I have intentionally not brought the notices."
CC No. 5/15(532201/16) 162 of 199
208. It is clear from the above that the accused was having vouchers Ex. DW-1/A to DW-1/C at the time of investigation itself and the said vouchers are duly proved by DW-1. Therefore, it is held that the defence is successful in proving that there was an income of Rs.7,14,404/- during the check period by way of selling the jewellery as below-
Exhibit Voucher No. Date Amount
1. Ex. DW-1/A 239 09.11.92 Rs.2,48,319/-
2. Ex. DW-1/B 277 01.12.94 Rs.2,32,225/-
3. Ex. DW-1/C 347 02.04.95 Rs.2,33,860/-
Total Rs.7,14,404/-
Income from Buses
209. The accused claims income from buses owned by his wife. It is argued by the Ld. Counsel for the accused that during the check period and even prior to that, wife of the accused Salma Iqbal owned some buses which were operating in Uttar Pradesh on Aligarh to Qasim Pur route and there was significant income from the said business. Ld. Counsel further CC No. 5/15(532201/16) 163 of 199 argued that despite providing such information to the IO during the investigation, the IO has deliberately ignored the said income and filed an improper charge sheet. On the other hand, the Ld. PP for CBI submits that IO did not get any proof of income from the buses owned by the wife of the accused and therefore, rightly rejected the claim of the accused. The Ld. PP for CBI further argued that there is no document like income tax returns, account books etc. to prove the income and therefore, same cannot be considered.
210. Ld. Defence Counsel placed reliance on DSP, Chennai v. K. Inbasagaran (2006) 1 SCC 420, wherein Hon'ble Supreme Court has considered the income of the wife of the accused in the cited case based on her evidence though there were no books of accounts or ITRs filed on record.
211. According to the Ld. Counsel for the accused, in the present case also, the wife of the accused who is not arrayed as accused, claimed the income from the buses owned by her and therefore, the ratio laid down by the Hon'ble Supreme CC No. 5/15(532201/16) 164 of 199 Court in the case cited supra is applicable to the present case and the benefit should be given accordingly.
212. The accused claims income from the buses bearing nos.
DLP-6868 (1983-88), URX-525 (1988-91), UPO-5783 (1991-
93), UP-82A-8121 (1993-98) and UP-81D-0119 (1996-98) stated to have been owned by his wife and were being operated in UP. It is seen from the contents of the charge sheet that no such income from buses is considered by the IO. The IO, who is examined as PW-49, is cross-examined on this aspect by the Ld. Defence Counsel and defence also examined DW-5, DW-6, DW-10, DW-11, DW-12, DW-13 and DW-14 to support its contention. The IO(PW-49) has stated in his cross-examination in this regard as follows -
"It did transpire during my investigation that a Bus had been purchased in the name of Salma Iqbal. Nothing transpired during investigation to the effect that there had been earning of Rs.2,61,000/- from the said Bus uptil end of check period. (Vol - As expenses incurred towards salary of Driver, Fuel, CC No. 5/15(532201/16) 165 of 199 maintenance etc. could not be ascertained, income from the said Bus could not be verified and was not taken into consideration as an asset). It is incorrect to suggest that it was within my knowledge that Salma Iqbal used to regularly deposit in Bank her income from the said Bus. It is incorrect to suggest that during investigation Shan Mohd. had also informed me about income of the said Bus."
213. From the above statement of the IO, it is clear that he came to know during the investigation about the bus owned by wife of the accused and the income earned from it. However, IO did not investigate on this aspect and filed charge sheet as if there is no such source of income.
214. It is seen from the record that the defence has filed an application to summon certain witnesses during the course of defence evidence to prove the ownership and permit details of the buses bearing nos. DLP-6868, URX-525, UPO-5783, UP- 82A-8121 and UP-81D-0119 and to prove the income from the said buses. DW-5 and DW-6 are the concerned officials CC No. 5/15(532201/16) 166 of 199 from the RTO office, Aligarh, UP where the permit and the other particulars of the buses are available. DW-6 brought on record the particulars of the buses owned by Salma Iqbal through his report Ex. DW-6/1. As per the statement of DW-6 and the contents of Ex. DW-6/1, there are two buses bearing no. UP82A-8121 and UP81D-0119, which are in the name of Salma Iqbal and have got a permit to operate on specific routes during the check period. But the other buses bearing nos. DEP6866, UP81F-9202, UHN-2834, UP81E-0731 and PB13D-5567, which are also in the name of Salma Iqbal as the mentioned in Ex. DW-6/1, are not shown to have been owned and operated during the check period as per the said document and hence not considered relevant in this case. There is no evidence from DW-5 and DW-6, who are the officials of the RTO Office, with regard to the ownership and permit of the bus nos. URX-525 and UPO-5783. The particulars of relevant two buses bearing nos. UP82A-8121 and UP81D-0119 with regard to their ownership, permit and CC No. 5/15(532201/16) 167 of 199 route are as below-
Bus No. Owner Route Period of ownership UP82A-8121 - Salma Iqbal-Aligarh to Qasim Pur - 24.06.1993 to 19.04.1995 & from 18.06.1996 to June 1998 UP81D-0119 - Salma Iqbal-Aligarh to Qasim Pur - 02.01.1996 to 08.09.1998
215. DW-10, DW-11 and DW-12 are also examined by the defence to prove the income earned from the buses during the check period. It is necessary to go through the relevant portion of their evidence as stated before the court which is as below-
"DW-10 : Afte marriage Salma Iqbal was involved in the business of transport. She was running a bus no. UP-82A- 8121 at Bulandshahar which used to ply between Bulandshahar to Sahaswan. In June, 1995, she gave me this bus on contractual basis. Before that she used to look after running of the bus at Bulandshahar at her own. It was 48 seater bus. I used to pay her Rs.15,000/- per month initially. From 1996 onwards I started paying her Rs.18,000/- per month and from 1997 onwards I started paying her Rs.20,000/- per month. I plied this bus till Jan. 1998."
CC No. 5/15(532201/16) 168 of 199 "DW-11 : As per the Report, the Bus No. UP-82A-8121 was running in the route 'Bulandshahar to Sahaswan'. The fare is fixed by the State Government.
In my view, a Bus might be earning minimum Rs.500/- per day on this Route."
"DW-12 : Thereafter another bus no. UP-82A-8121 was plied by Ms. Salma Iqbal on this route. This bus plied till 1995."
"DW-14 : My wife purchased a bus bearing No. URX 525 after selling the bus bearing no. DLP6868. This bus was plied on the route of Aligarh to Kasimpur via Sadhu Ashram. I do not remember the year till which this bus was plied. The permit No. 806 of this bus granted in the year 1987 by Transport Commissioner, Meerut in the name of my wife Mrs. Salma Iqbal.
After selling the bus bearing No. URX 525 my wife purchased a bus bearing No. UPO 5783, which plied on the Aligarh Kasimpur via Sadhu Ashram. The registration number of this bus was changed to UP 82A 8121 and used to ply on the CC No. 5/15(532201/16) 169 of 199 same route till the year 1995. During the period of 1987 to 1990 the average monthly income of the bus was Rs.15,000/-. This income continued till the year 1995. From the year onwards till 1998 the average monthly income of my wife from buses was Rs.40,000/- to Rs.45,000/-."
216. It is according to the DW-11, who is official from RTO Office, as seen from his statement above, that the bus no. UP82A- 8121 was earning about Rs.500/- per day. DW-10, who is stated to have taken this bus on contractual basis from June 1995 and paid an amount of Rs.15,000/- per month initially, Rs.18,000/- per month in the year 1996 and Rs.20,000/- per month from the year 1997 till January 1998. As per this witness, the expenses towards maintenance and salaries of Drivers, Conductor and Cleaner were paid by him only. The income earned from the bus no. UP82A-8121 during the check period is calculated as follows-
(i) From 24.06.1993 to 19.04.1995 considered as 22 months, income as per DW-11 @ Rs.500/- per day comes to CC No. 5/15(532201/16) 170 of 199 Rs.3,30,000/-.
(ii) From 18.06.1996 to January 1998 considered as 19 months, income as per DW-10 @ Rs.18,000/- per month during 1996 and @ Rs.20,000/- per month during 1997-98 comes to Rs.3,68,000/-.
217. It is pertinent to note that the CBI has not examined any witness nor brought any material on record to disprove the case of the defence despite the fact that the IO has come to know about the buses owned by the wife of the accused during the investigation. It is clear from the cross-examination of the IO as quoted above that he knew about the income of Salma Iqbal from bus but admittedly he has not verified the same during investigation. It is surprising that IO has so casually states that he did not consider the income as he failed to verify the expenses incurred in running the bus, during the investigation.
218. In view of the above, the total income from bus no. UP82A-
8121 during the check period comes to Rs.6,98,000/-. (The CC No. 5/15(532201/16) 171 of 199 income from 20.04.1995 to 17.06.1996 is not considered as the bus Salma Iqbal was not the owner of the bus during this period as per DW-6.)
219. Ld. PP for CBI argued that the value of the buses have to be added to the assets of accused. It is seen from the statements of accused and his wife and the declaration filed by the accused to his department, the value of only one bus bearing No. DLP-6868 is given but the said bus stated to have been purchased in the year 1983 i.e. prior to the check period. Therefore, value of the said bus cannot be considered as an asset acquired during the check period. There is no material to assess the value of the bus bearing No. UP82A-8121 or any other bus.
220. According to DW-12, the bus bearing no. UP81D-0119 was earning Rs.17,000/- to Rs.18,000/- per month during the period 1993 to 1998. The said bus plied from the period 02.01.1996 to 08.09.1998. The statement of DW-12 is not corroborated by any other witness or official witness as it was CC No. 5/15(532201/16) 172 of 199 stated by DW-11 in connection with the income from bus No. UP82A-8121. In the absence of any such evidence, the oral statement of DW-12 and DW-13(wife of the accused) cannot be relied. Therefore, any income from bus no. UP81D-0119 is not considered.
Income from Loan
221. Ld. Counsel for the accused argued that the accused obtained loan of Rs.1,54,000/- from various persons for the purpose of purchasing flat No. 201, Taj Enclave, Geeta Colony, Delhi during the check period. It is also argued that mother of the accused Sultana Begum obtained loan of Rs.3,00,000/- from known persons for the purpose of purchasing house i.e. 6, Jaipur Estate, Nizamuddin East, New Delhi. The Ld. Counsel further argued that the IO has not considered the same despite the fact that the material collected during investigation clearly discloses the said loans obtained by accused and his mother. As per the contention of the Ld. Counsel for the accused, the said loan amount was CC No. 5/15(532201/16) 173 of 199 also paid back by the accused after the check period. On the other hand, the Ld. PP for CBI argued that the amount paid to the society for purchasing flat at D-201, Geeta Colony, Delhi and paid to the M/s Ganga Builders for purchasing house i.e. 6, Jaipur Estate, Nizamuddin East, New Delhi actually belongs to the accused but the same was routed through some other persons.
222. The IO has collected certain documents from the Allahabad Bank, Pahasu Branch which contain two cheques of Rs.37,000/- Ex.P-17/2 & Rs.35,000/- Ex.P-17/3 issued by father of the accused Faiz Ahmed Khan in favour of Taj-Sartaj Group Housing Soceity, Debit Voucher of Rs.22,000/- Ex.P- 18/1, a cheque of Rs.25,000/- Ex.P-18/2 from the account of Sardar Khan and further a debit Voucher of Rs.35,000/- Ex.P- 19/1 issued from the account of one Sabir Ali Khan. All the above said documents collected by the IO during investigation were admitted by the accused and the same were given exhibit nos. in 'P' series.
CC No. 5/15(532201/16) 174 of 199
223. The prosecution has examined one Aslam Khan as PW-30.
This witness stated in his deposition that his father namely Sabir Ali Khan had given a loan of Rs.35,000/- in the year 1990 to the accused. All the above documents show that amount of Rs.1,54,000/- was paid to Taj-Sartaj Group Housing Society by way of cheques/drafts towards the consideration for Flat No. 201, Taj Enclave, Geeta Colony, Delhi. The accused also stated the same in his evidence as DW-14. There is no material to show that the said amount actually belongs to the accused and was routed through other persons. Hence, the amount of Rs.1,54,000/- is liable to be added to the income of the accused during the check period.
224. It is also the contention of the defence that Smt. Sultana Begum obtained loan of Rs.3,00,000/- during the check period for purchasing the property i.e. 6, Jaipur Estate, Nizamuddin East, New Delhi. Prosecution witness Shan Mohammad PW- 24 has stated in his evidence that "Sultana had taken loan from me. I gave her a cheque of Rs.1,00,000/- drawn on CC No. 5/15(532201/16) 175 of 199 Allahabad Bank. I also obtained the certificate from the bank to this effect and I am placing on record its copy". Mark PW- 49/D9 is the copy of certificate issued by the Allahabad Bank, Pahasu stating that a cheque no. 061455 for Rs.1,00,000/- dated 28.04.1993 favouring Sultana Begum was issued by Shan Mohd. (SB A/c No. 320/4). This document further states that the cheque was deposited in the account of Sultana Begum bearing A/c no. 197/34. The entry showing the deposit of Rs.1,00,000/- vide cheque issued by PW-24 is also reflected in Statement of Account of Sultana Begum which is brought on record by the prosecution as Ex.PW-29/3. The material collected by prosecution i.e. admitted document P- 32/1 shows that an amount of Rs.2,00,000/- was paid to M/s Ganga Builders by way of draft No.795297 dated 10.04.1993 issued from the account of Sardar Umar Khan. Sardar Umar Khan though cited as witness in chargesheet could not be examined by the prosecution as he expired. The accused, in his chief examination as witness DW-14, has stated that a CC No. 5/15(532201/16) 176 of 199 loan of Rs.2,00,000/- was taken by his mother from Sardar Umar Khan vide Ex. P-32/1 and a loan of Rs.1,00,000/- from Shan Mohd. PW-24, further a loan of Rs.1,00,000/- was taken from Islam Khan DW-8. In his evidence, DW-8 stated that he gave Rs.1,00,000/- as loan to his mother in law Sultana Begum in the year 1993 for purchasing house in Delhi and the same was paid back in the year 1995. Since, the loan of Rs.1,00,000/- from Islam Khan was taken and returned during the check period, the same cannot be considered for calculating assets during check period. There is no material on record to show that the amount i.e. Rs.2,00,000/- from Sardar Umar Khan and Rs.1,00,000/- from Shan Mohd. actually belongs to the accused and is routed through above said persons. In view of the material available on record Rs.2,00,000/- and Rs.1,00,000/- are considered as loan amounts taken by Sultana Begum from Sardar Umar Khan and Shan Mohd. respectively during the check period and hence Rs.3,00,000/- is liable to be added to the income of CC No. 5/15(532201/16) 177 of 199 Sultana Begum, mother of accused.
Income from Dairy Business
225. It is the argument of the Ld. Defence Counsel that mother of the accused Smt. Sultana Begum was having some buffaloes and had substantial income from the dairy business. Ld. Defence Counsel in written arguments claims about Rs.12,04,500/- as income of mother of accused from dairy business. Ld. Defence Counsel relies on the statement of witnesses PW-24, PW-27, DW-4, DW-13 and DW-14. The Ld. PP for CBI argued that there is absolutely no evidence to prove the income of mother of accused from dairy business and it is further argued that the witnesses who stated in this regard are interested witnesses.
226. The witnesses PW-24, PW-27, DW-4, DW-13 and DW-14 state that Smt. Sultana Begum had income from dairy business. PW-24 says that Sultana Begum had 2-3 buffaloes, PW-27 says that she had 4-5 buffaloes, DW-13 & 14 say that there were 6 buffaloes. There is also variation in the CC No. 5/15(532201/16) 178 of 199 statements of these witnesses with regard to the quantity of milk which used to be sold by Sultana Begum. The statements of these witnesses are not consistent with regard to how many buffaloes were owned by Sultana Begum and the milk output. There is no documentary evidence like daily maintenance book, receipts or ITRs on record to prove such huge income of Sultana Begum from dairy business. The witness PW-24 is admittedly relative of accused. DW-4, as made out from his cross-examination, appears to be an interested witness. Nothing is placed on record to show that DW-4 was supplying milk to any dairy. DW-13 is wife of the accused. DW-14 is accused himself. The statement of bank account of Sultana Begum, which is on record, also does not show any regular credits which can substantiate such huge claim of income from dairy business. The testimonies of PW-24, PW-27, DW- 4, DW-13 and DW-14 do not inspire the confidence of the court with regard to the huge income of mother of the accused as claimed by the accused from the dairy business. Therefore, CC No. 5/15(532201/16) 179 of 199 it is held that income from dairy business as claimed by defence is not considered.
Sanction for prosecution
227. Ld. Counsel for the accused vehemently argued that there is no valid sanction for prosecuting the accused who is a public servant and accused is liable to be acquitted on that ground alone. Ld. Counsel argued that the Deputy Commissioner, who is examined as PW-5, was not the competent authority to give sanction and hence, the sanction is bad in law. It is also argued that since the sanction goes to the root of the case, the accused is entitled to raise this issue at any stage. It is further argued that the accused has come to know about the fact that PW-5 was not the competent authority to grant the sanction at the relevant time, only when he obtained the information under Right to Information Act from the Office of the Assistant Commissioner, South Zone, Green Park, MCD. The reply received by the accused from South Zone of MCD under RTI is put to the IO as Mark P-49/1. If is further argued CC No. 5/15(532201/16) 180 of 199 by the Ld. Counsel for the accused that PW-5 has not applied his mind nor looked into the facts and circumstances of the case, just mechanically accorded the sanction by signing the draft supplied by the CBI. Ld. Counsel for the accused has relied on M.V. Chauhan vs. State of Gujrat, (1997) 7 SCC 622, wherein it was held that "grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution".
228. On the other hand, the Ld. PP for CBI argued that PW-5 was the Deputy Commissioner of MCD, Central Zone at the relevant time and therefore, he was competent to issue sanction. It is argued by the Ld. PP that information received by the accused under RTI i.e. Mark P-49/1 cannot be looked into unless the same is proved in accordance with the Evidence Act. Ld. PP further argued that the issue of sanction should have been raised at the earliest stage by the accused CC No. 5/15(532201/16) 181 of 199 i.e. soon after the examination of PW-5 and not at the stage of final arguments i.e. after completion of the entire trial. The Ld. PP for CBI further argued that the sanction was given by PW- 5 after going through the entire facts of the case and material placed before him. The Ld. PP also argued that the sanction letter Ex.PW-5/A itself shows that the competent authority had applied his mind to the facts and circumstances of the case and material placed before him before signing the same. The Ld. PP relied on Suresh Kumar Duggal vs. State (NCT of Delhi) CBI, wherein it is held "6. The sanction of prosecution was granted by PW1 Rakesh Mohan who was then working as the Additional Commissioner (Water), MCD Delhi and was competent to appoint and terminate the Appellant who was working as LDC-cum-Meter Reader in the MCD. PW1 stated that before granting sanction for prosecution, he perused the report of the Zonal Revenue Officer, the copy of the FIR and the detailed reports sent by the CBI. Learned Counsel for the Appellant has assailed the CC No. 5/15(532201/16) 182 of 199 sanction order on the grounds that it does not mention the provisions of law and and secondly it is verbatim the same as the draft sanction order. In Indu Bhushan Chatterjee Vs. State of West Bengal AIR 1958 SC 1482 their Lordship upheld the grant of sanction wherein a draft sanction order was prepared by the Police and put up before the sanctioning authority, who thereafter after going through all the relevant papers signed the same. The sanction on the basis of a draft sanction order was held to be a valid sanction accorded by the competent authority."
229. The Ld. PP also relied on State of Maharashtra through CBI vs. Mahesh G. Jain, wherein Hon'ble Apex Court observed as follows -
"16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Income-Tax Act, the acceptance of illegal gratification by the accused before the panch CC No. 5/15(532201/16) 183 of 199 witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper
-technical and, in fact, can always be use by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the CC No. 5/15(532201/16) 184 of 199 competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance."
230. To appreciate the rival contentions of the parties, it is necessary to go through the section 19 of PC Act which is reproduced as below-
"19. Previous sanction necessary for prosecution.
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, CC No. 5/15(532201/16) 185 of 199 of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-
section(1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge CC No. 5/15(532201/16) 186 of 199 shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the CRL.REV.P. 462/2017 etc. ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and CC No. 5/15(532201/16) 187 of 199 should have been raised at any earlier stage in the proceedings.
Explanation.-- For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature".
231. In Yusofalli Mulla Noorbhoy v. King, 1949 SCC OnLine PC 20: AIR 1949 PC 264, the Privy Council ruled that prosecution launched without a valid sanction is a nullity observing that a court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law. In R.S. Nayak vs. A.R. Antulay, (1984) 2 SCC 183, a Constitution Bench of five Hon'ble Judges of the Supreme Court held that "trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid CC No. 5/15(532201/16) 188 of 199 sanction is the time when the court is called upon to take cognizance of the offence. ..."the existence of a valid sanction" being prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servants", the court "called upon to take cognizance of such offences," being bound to "enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant". It has, however, also been consistent view of the courts that protection available under the statutory provisions rendering grant of sanction to prosecute a public servant, a condition precedent to the institution of the prosecution, is not absolute.
232. Since, the sanction goes to the very root of the case, it is imperative on the part of prosecution to prove that the sanction is accorded by the competent authority. To decide whether PW-5 K.D. Akolia, Deputy Commissioner at relevant time in MCD was the competent authority to accord the sanction, it is necessary to go through the evidence of PW-5 CC No. 5/15(532201/16) 189 of 199 and PW-9.
233. Prosecution examined one Kamal Kishore Rawat, Assistant Audit Officer, Office of Chief Auditor, Delhi as PW-9. According to this witness he was working in accounts section of Division VIII & X, MCD and maintaining personal files and service file of Group-C and Group-D employees. All the transactions with regard to movable properties value above Rs.10,000/- are used to be intimated by the employees Division VIII & X of MCD in this section. This witness stated about the personal file of the accused. PW-9 in cross-examination stated that accused used to draw salary from his Section i.e. Division VIII & X of MCD and at that time accused was working at South Zone. It is further stated by PW-9 that every zone used to have one Deputy Commissioner for looking after the work of his zone. From the above evidence of PW-9, it is clear that accused was working as JE in South Zone.
234. According to the witness PW-5, at relevant time i.e. in the year 2000, he was working as Deputy Commissioner, MCD, CC No. 5/15(532201/16) 190 of 199 Central Zone. It is the Deputy Commissioner of South Zone, MCD, who has the power to terminate the services of the accused who was working as JE in MCD South Zone. PW-5, who was the Deputy Commissioner of Central Zone states in cross-examination that "On 05.04.2000, I was Deputy Commissioner of Central Zone. Green Park Zone/South Zone did not fall in the area of my jurisdiction at that time. May be I was looking after the charge of South Zone being the link officer but I do not remember now.
Court Question : What do you mean by link officer. Ans. When the Dy Commissioner of Central Zone proceeds on leave the Dy. Commissioner of South Zone being the link officer looks after the charge of central zone and vice versa. This arrangement was according to an administrative order."
235. From the above statement of PW-5, it is clear that PW-5 was not the Deputy Commissioner of South Zone, MCD wherein admittedly the accused was working as JE. PW-5 is also not CC No. 5/15(532201/16) 191 of 199 clear as to whether he was the link officer for South Zone at the relevant time. It is true, as pointed out by the Ld. PP for CBI that PW-5 might have forgotten the details as he is examined as witness after 8 years as the issue pertains to the year 2000. However, it is the duty of the prosecution to prove that PW-5 was the link officer of the South Zone at relevant time and was the competent authority to accord sanction by examining the witnesses and by bringing on record the documents in this regard. Nothing is found in the entire material placed on record by the prosecution to show that PW-5 was the competent authority to accord sanction being a link officer of South Zone. Even in Sanction Letter Ex. PW-5/A nothing is mentioned to show that PW-5 was the link officer of the South Zone and thereby he was the competent authority to accord the sanction.
236. As far as the argument of the Ld. PP for CBI that accused cannot raise the issue of sanction at the stage of final argument, is concerned, the same is not tenable for the CC No. 5/15(532201/16) 192 of 199 reason that the issue raised by the accused is not with regard to just an error, omission or irregularity in the sanction but it is with regard to the very competency of the authority who accorded the sanction.
237. The Hon'ble Apex Court in Nanjappa Vs. State of Karnataka by judgment dated 24.07.2015 in Crl. Appeal No. 867/2012, held that -
"13. What is important is that, not only was the grant of a valid sanction held to be essential for taking cognizance by the Court, but the question about the validity of any such order, according to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage. This court observed:
Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was CC No. 5/15(532201/16) 193 of 199 competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.
Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage.
But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court."
238. Even otherwise the accused only in the year 2012 is made aware of the fact that PW-5 was not the Deputy Commissioner of MCD South Zone at the relevant time i.e. during April to May 2000, during which the sanction stated to have been accorded. The information received by the accused under RTI CC No. 5/15(532201/16) 194 of 199 may not be a document admissible in evidence but it shows that the accused tried to find out as to who was the Deputy Commissioner of South Zone at relevant time and further it also casts a serious doubt as to whether PW-5 was Deputy Commissioner/Link Officer of South Zone, who could be the competent authority.
239. After going through the entire material on record and evidence of PW-5 and PW-9, it is held that the prosecution failed to prove that PW-5 was the Dy. Commissioner/Link Officer of MCD South Zone and was competent to accord sanction u/s 19 of PC Act to prosecute the accused.
240. The conduct of the IO and the way he has investigated the case is deprecated. The IO appeared to be lazy and lackadaisical in his approach while investigating the case. The IO being a representative of the state with specific powers and responsibilities to investigate the case should have been honest and diligent in his approach by investigating on all the relevant aspects which have come to his knowledge during CC No. 5/15(532201/16) 195 of 199 the investigation. It is clear from the material before court that the IO has not investigated on important facts which have come to his knowledge during investigation like sale of jewellery and income from buses which amounts to dereliction. The IO has also not investigated with regard to a Maruti Esteem Car which was found at the time of search proceedings despite the said asset has been mentioned in FIR as well as search memo. No material collected by the IO to prove that PW-5 Deputy Commissioner of Central Zone was the link Officer of South Zone where the accused was working at relevant time and was competent to accord the sanction.
241. In the entire material brought on record by the prosecution, there is absolutely nothing to prove that, accused used his earnings to acquire these properties nor there is any evidence to show that the money of the accused was routed through some other persons to acquire the same. Not even a single witness of prosecution stated that it is the money of the CC No. 5/15(532201/16) 196 of 199 accused which was used through them for acquiring the alleged properties. The witnesses PWs 11, 13, 14, 15, 19, 24, 26, 27 and 28 did not support the case of prosecution to state that it was the money of the accused used or routed through them for purchasing the immovable properties in the names of his wife and mother. It is settled law as cited above that the burden is cast on the prosecution to prove that accused has acquired benami properties during the check period by using money earned through unlawful means. Prosecution has failed to discharge this burden with respect to proving the alleged benami properties of the accused. CONCLUSION
242. After going through the entire evidence on record, perusing the material and in view of the reasons mentioned in the aforesaid paras, the income and value of the assets of accused Iqbal Ahmed Khan and his family members are calculated as follows -
Total value of immovable assets = 21,43,155 CC No. 5/15(532201/16) 197 of 199 Total value of movable assets = 6,56,443 Total assets = immovable assets + movable assets = 21,43,155 + 6,56,443 = 27,99,598 Net assets = total assets - assets at the beginning of check period = 27,99,598 - 96,758 = 27,02,840 Total expenditure during the check period = 6,61,396 Total income = 33,64,576 Disproportionate Assets = Assets + Expenditure - Income = 27,02,840 + 6,61,396 - 33,64,576 = -340
243. In view of the material available on record and foregoing discussion, I conclude that the prosecution has not been able to prove the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 against accused Iqbal Ahmed Khan. Accordingly, accused Iqbal Ahmed Khan is acquitted.
244. The bail bond of Iqbal Ahmed Khan is cancelled and his surety is discharged. Iqbal Ahmed Khan is directed to furnish CC No. 5/15(532201/16) 198 of 199 fresh Personal Bond in sum of Rs.50,000/- with one surety of the like amount as required under Section 437-A of Cr.P.C. Fresh Bail Bond furnished and accepted.
245. File be consigned to Record Room.
Announced in the open Court today i.e. on 28.08.2018 (KOVAI VENUGOPAL) SPECIAL JUDGE, PC ACT, (CBI)-09 CENTRAL, DELHI(SK) CC No. 5/15(532201/16) 199 of 199