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Delhi District Court

Central Bureau Of Investigation (Cbi) vs . on 30 March, 2022

  IN THE COURT OF MS. NIRJA BHATIA, SPECIAL JUDGE
   (PC ACT) CBI­03, ROUSE AVENUE DISTRICT COURTS,
                      NEW DELHI.




CNR NO. DLCT­11­001521/2019
CC/Registration No. 389/2019
RC. No. 3(A)/2015
PS CBI/ACU­VI/AC­II/New Delhi
U/s : 419, 420, 468, 471 r/w 120 IPC
and S. 13(2) R/w 13(1)(d) of PC Act


In re:

Central Bureau of Investigation (CBI)

         Vs.

(1)      Badrul Islam                                   (Accused No.1)
         S/o Late Sh. Mohd. Islam
         R/o L­48, Abul Fazal Enclave, Part­I,
         Jamia Nagar, Okhla,
         New Delhi­110025.

(2)      Swarn Singh Malhi                              (Accused No.2)
         S/o Late Sardar Jamar Singh
         R/o H.No. 2925, Ground Floor,
         Gali No. 1, Dharmpura,
         Ghandhinagar,
         Delhi ­110031.


      CBI vs. Badrul Islam & Ors.   CC/R No. 389/2019      Page 1 of 291
 (3)     Devender Kumar                                   (Accused No.3)
        S/o Late Mange Ram,
        H.No. 41, Road No. 78,
        Punjabi Bagh (West),
        New Delhi ­26.

(4)     Neeru Kumar Gupta                                (Accused No. 4)
        Late P.L. Gupta
        R/o G­2/78, Sector­16, Rohini,
        Delhi - 110085.

(5)     Pinder Kaur @ Bhupinder Kaur                     (Accused No.5)
        W/o Late Sakatar Singh
        Village Nagoke (Patti Daffarki),
        Tehsil Khandur Sahib,
        District Tarn Taran,
        Punjab­143117.

        Date of institution                              :     18.12.2015
        Date on which judgment was reserved              :     08.03.2022
        Date of judgment                                 :     30.03.2022


                                    JUDGMENT

1. Factual matrix revealed through charge sheet and crux of the allegations against accused are subject matter of decision under this judgment. The prosecution has proposed a case for charge upon Badrul Islam (A­1) and Swarn Singh Malhi (A­2) public servants and Devender Kumar (A­3), Neeru Kumar Gupta @ N.K. Gupta (A­4) and Smt. Pinder Kaur @ Bhupinder Kaur @ Chhinder Kaur @ Rattan Kaur CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 2 of 291 (A­5) private persons for allegations falling under the ambit of section 120B IPC r/w 419, 420, 468, 471 IPC r/w Sec 13(2)r/w 13(1)(d) of PC Act, 1988.

2. The premise of allegations and proposed charges being, that at the relevant time accused Badrul Islam (hereinafter referred to as A­1), the then Deputy Director (Alt.) alongwith with his Deputy, Swaran Singh Malhi, the dealing hand from Land & Building Department, Govt. of NCT, Delhi, conspired with private persons namely Devender Kumar (herein after referred to as A­3), Neeru Kumar Gupta @ N.K. Gupta (herein after referred to as A­4) and Smt. Pinder Kaur @ Bhupinder Kaur @ Chhinder Kaur @ Rattan Kaur (herein after referred to as A­5) to defraud the DDA.

3. It is alleged that as per the Revenue Records, property bearing Khasra No. 607, Village Bahapur was acquired vide Award No. 2059 dated 24.01.1968. The property was originally in the name of Rai Saheb, Lala Sohan Lal, Munshi Gulab Chand and Shankar Dass.

4. In the list of land owners who received the compensation towards acquisition of aforementioned land, names of accused Rattan Kaur or that of Bachan Singh did not exist as recipients of compensation towards land acquisition by the LAC.

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5. Government of NCT of Delhi launched welfare scheme to rehabilitate the agriculturist's whose lands were acquired by the Government. The Land & Building Department was implementing the said scheme for allotment of alternative plots in lieu of acquired land under "Large Scale Acquisition Development & Disposal of Land in Delhi" announced by Government of India, Ministry of Home Affairs vide letter No. 37/16/60 dated 02.05.1967.

6. In response to the said public notices applications were received in Land and Building Department and separate file was opened by the Dealing Clerk for each application. Number F­32 indicated that the file pertained to South Zone and number within the bracket indicated the village name. Hence "21" (in the instant case) denotes to Village Bahapur.

7. The process which was followed suggested that the dealing clerk submitted the file containing the application of the applicant (farmer whose land was acquired) with note containing the particulars for seeking order from the Branch Officer i.e. Deputy Director for issuance of letter to the Land Acquisition Collector (LAC) for verification of particulars mentioned in the application in a prescribed format.

8. On receipt of the verification reports from LAC, the Dealing Assistant submitted report in the said file with noting referring the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 4 of 291 LAC report for verification by the Revenue Branch of L&B Department and on the receipt of the said file, the Patwari, Kanungo, Naib Tehsildar and Tehsildar in the Revenue Branch cross checked the details received from LAC with the details available in the revenue records and submitted their report duly signed by their competent officer in the said file through their dispatch section.

9. On receipt of the said file from the revenue branch, the file was sent to Writ Cell for legal scrutiny by the law officers and thereafter a detailed brief of file was prepared by the dealing clerk and signed by the Branch Officer i.e. DD for placing the file in the recommendation committee meeting constituted by the Secretary­cum­Commissioner which consisted of Secretary­Cum­Commissioner, Joint Secretary, Legal Advisor/Deputy Legal Advisor and Deputy Director of the Alternative Branch. After approval by the Joint Secretary, a notice for meeting was issued to all the members of the committee regarding the meeting. After approval of the committee vide its minutes the cases recommended for allotment of plots and recommendation letter was prepared in triplicate with three different colors i.e. Green colour for DDA, Pink colour for applicant and Yellow colour for office copy purposes.

10. The booklet of recommendation letters were serial numbered and kept in the personal custody of the dealing clerk of Alternative CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 5 of 291 Branch and in the instant case, the recommendation letter booklet bearing serial numbers 1101 to 1150 was issued to S.S.Malhi (A­2).

11. The dealing clerk thereafter prepared the letter of recommendation and in the last column of recommendation letter the Deputy Director of Alternative Branch appended his signatures.

12. It is stated that one of the files in L&B Department and photocopy of the minutes of meeting dated 03.12.2002 was found in which accused Badrul Islam (A­1) was member and it recommended allotment of Alternative Plots for 18 cases out of 29 cases placed before the committee and the said 18 recommendations were inclusive of recommendation for allotment of plot measuring 400 sq yards in South Delhi, vide file No. 32(21)43/89/L&B/Alt in the name of Smt. Rattan Kaur w/o Sh. Bachan Singh against acquisition of 23­10 bighas land in Village­Bahapur and the recommendation letter was sent under the signature of accused Badrul Islam, Deputy Director to the Commissioner (Land) DDA.

13. It is stated that pursuant to the public notice issued four applications were received in the Land and Building Department for which files were made from file number F.32(21)/1/90/L&B/ALT to file number F.32(21)/4/89/L&B/ALT and there was no file numbering beyond file number no. F.32(21)/4/89 and file no.

F32(21)/43/89/L&B/ALT never existed in the Land & Building CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 6 of 291 Department and the said recommendation letter with file no. F32(21)/43/89/L&B/ALT bearing serial no. 001142 dated 28.03.2003 in favour of Smt. Rattan Kaur, w/o Sh. Bachan Singh issued after the lapse of about 13 years, was fraudulently created by both Badrul Islam and S.S.Malhi, while being posted and functioning as Deputy Director and UDC respectively at the relevant time in Land and Building Department.

14. It is stated that DDA processed the recommendation letter no. F­27(8)2003/LSB(Residential) by including the said case in the draw of lots held for allotment of alternative plots at Dwarka, Narela and Rohini on 29.05.2003 and in the said draw conducted vide program no. LSB(R) D00034, Serial No. 5, Smt. Rattan Kaur w/o Sh. Bachan Singh had been alloted plot, measuring 270 Sq. Metres, in Dwarka and thereafter three allotment letters i.e. Letter No. F.27(8)/03/LSB(R)/6057 bearing Postman's report dated 09.07.2003; Letter No. 7(8)/2003/LSB(R)/6386 bearing Postman's report dated 30.06.2005 and Letter No. F.27(8)/03/LSB(R)/7334 Postman's report dated 07.09.2005 were sent to allottee's address mentioned in L&B recommendation bearing No. 3, Oak Estate, Dehradun Mussoori Road, Dehradun. However, the said letters were returned undelivered. The Public Relation Inspector (PRI) and District Panchayat Raj Officer, Delhi endorsed that the address given by Smt. Rattan Kaur did not exist.

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15. Investigation further revealed that Smt. Rattan Kaur submitted bogus/ forged Voter ID, false affidavit, undertakings etc. The death certificate of Sh. Bachan Singh husband of Smt. Rattan Kaur was forged as per the 'logo' of Government of Uttranchal and she utilized the said death certificate in DDA office at the time of issuance of lease deed of the alleged plot by submitting an application dated 27.01.2004 enclosing death certificate of Sh. Bachan Singh along with bank challans. The Election Office Authorities at Dehradun confirmed that the address mentioned in the Voter ID card No. KZR0821491 of Smt. Rattan Kaur did not exist as per the list of 424 Dehradun Vidhan Sabha Polling Stations list 1996 maintained with them.

16. Investigation further revealed that in fact the real name of Smt. Rattan Kaur is Pinder Kaur w/o late Skatar Singh R/o VPO, Nagoke, Tehsil Khandur Saheb, District Taran Taran Punjab. The said fact was also shown from Aadhar Card No. 2617­4985­5969 and Voter ID No. LMY0930511 both of which are issued in the name of Smt. Pinder Kaur.

17. Investigation further revealed that Sh. Devender Kumar (A­3) sold the plot on 14.12.2004 for sale consideration of Rs. 16.50 lakh and thus obtained pecuniary advantage for himself. It is stated that Devender Kumar financed the amount required for registration of plot alloted to A5 Smt. Rattan Kaur.

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18. Investigation revealed that during the search of residential house of N.K. Gupta (A­3) office copy of recommendation letter No. F32(50­ A)/157/89­L&B/ALT was recovered which should have been on record. Further from the residential search of A­3 N.K. Gupta decree regarding dissolution of marriage between Ms. Mamta and Sh. Mahesh Kumar Gupta, who is brother of accused N.K. Gupta were found wherein both N.K. Gupta and S.S.Malhi are signatories to statement under oath. During the said search photocopy of fake ration card in the name of Sh. Rajinder Kumar s/o Sh. Gulab Chand was also found. A diary was recovered from resident of N.K. Gupta in which the name and phone number of S.S.Mali was mentioned. The original office copy of recommendation letter of L&B which was sent to DDA for allotment of plot in the name of Rajinder Kumar was recovered and seized which is a fraudulent one. The recovery of aforesaid three documents showed the existence of closeness between the accused persons.

19. The investigation showed that signature and rubber stamp pasted on the recommendation letter was attested by Sh. Deepak Choudhary, the then Additional Standing Counsel, Union of India. On examination of Sh. Deepak Choudhary admitted his signature and rubber impression on photograph to be his but he was unable to recollect attesting the said photo and also could not identify the person in the photograph. Though he was known to accused N.K. Gupta on who's CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 9 of 291 asking he attested the passport photograph of accused Smt. Rattan Kaur @ Pinder Kaur.

20. On the basis of material submitted through charge­sheet cognizance was taken. After the copies were supplied to accused persons, the matter came up for hearing on the point of charge.

21. My ld. Predecessor vide order dated 12.08.2016 discarded the arguments raised in defence for discharge of accused persons and after detailed discussions on the material made available by way of charge­ sheet/documents and statements of witnesses collected during course of investigation formulated prima facie opinion for framing Charges against all the five accused persons u/s 120­B read with sections 419/420/467 and section 471 read with section 468 IPC, while A1 Badrul Islam (since deceased) and A2 S.S. Malhi being public servants were also subjected to Charge u/s 13(2) read with section 13(1)(d) of PC Act, to which they pleaded not guilty and claimed trial.

22. A5 Rattan Kaur was also separately charged for offence u/s 419 and 420 as well as u/s 467 and 471 read with section 468 IPC.

23. The matter thereafter was listed for P.E.

24. PW­1 Sh. Baidyanath Jha LDC/Record Keeper, detailed the practice followed in the record room. He stated that as per practice in alternative branch in Land & Building Department, the files are CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 10 of 291 consigned after completion of process. All files including rejected or recommended cases are sent to record room after process is complete, as consigned. The cases in which recommendation letters are sent to DDA by the alternative branch are also considered as completion of process. He had handed over the file of one Pratap Singh F32(32)/28/99/L&B to IO Ex.PW1/A production / seizure memo. (however, the file was not connected this case) though was Ex.PW1/B. certain files to CBI on which he identified the handwriting and signature of A­1 and A­2.

25. He was cross examined by counsel Sh. Javed Akhtar for A­2 and A­4 wherein he stated that the register in which entries regarding receivable files are maintained from other branches was not seized from him. He detailed that as per procedure the file should be consigned to record room under the signature of Superintendent or Deputy Secretary / Deputy Director who are the Incharges of respective branches, but in some cases, concerned dealing assistant also send the file to the record room. He detailed that along with the files record room receives list of files which are sent for consignment, together in one bunch. The list is signed by dealing hand or other staff of the branch.

26. PW­2 Sh. Z.U.Siddiqui: The Member of Recommendation Committee, Land & Building Department before which the matter of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 11 of 291 A­5 had been raised for consideration / recommendation. He detailed that the committee comprising of the Principal Secretary, as Chairperson, Joint Secretary, Law Officer and Deputy Director Alternative Branch as members was constituted to consider the applications submitted by applicants, requesting for allotments of alternative plots in lieu of their acquired land in Delhi.

27. That accused Badrul Islam (A­1) being the Deputy Director Alternative was present during the meeting which took place on 03.12.2002. It was his duty to process the applications and place the file before Committee at the time of deliberation and thereafter the decisions of the committee were reduced in writing though the Minutes of Meeting, which were prepared, within a week's time and circulated among the members of the committee for their signature. The Minutes were drafted and prepared and first signed by Deputy Director, Alternative (in this case A­1) and was put up subsequently before other members and Chairman of the committee.

28. He detailed his role being member of the recommendation committee which was to assess the cases placed before the committee on the basis of record prepared by the alternative branch of L&B and the report submitted by the Land Acquisition Collector, if the finding are as per the guidelines of the allotments, the committee recommend the cases.

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29. He detailed that the complete reports were placed before the recommendation committee for scrutiny. He could identify the handwriting and signature of Sh. Prakash Kumar, the then Secretary, L&B, Sh. Subhash Gupta, the then Deputy Legal Advisor, L&B and accused Badrul Islam (A) Deputy Director, Alternative, L&B, being conversant with their handwriting and signature. He had seen certified copy of Minutes of Meeting, L&B dated 03.12.2002 (D­12, pages 3­5). The said Minutes of Meeting were bearing his signature at point A, that of Sh. Prakash Kumar, the then Secretary L&B at points B and of Sh. Subhash Gupta, the then Deputy Legal Advisor at points C and of accused Badrul Islam at points D where after the Minutes of Meeting were exhibited as Ex.PW2/A (though its exhibition was objected qua mode it is observed that the document is certified copy).

30. He further detailed that the Minutes of Meeting were finalized on 04.02.2003 though he could not state any specific reason for putting up the file after a gap of almost two months since the signature of all the members were without any date but it was detailed that the responsibility of finalization of minutes was of A­1 and A­2 was the custodian of the file. He identified accused correctly during the course of his statement in court.

31. It was disclosed that in the present Minutes of Meeting the case of Smt. Rattan Kaur w/o Sh. Bachan Singh was recommended being CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 13 of 291 one of the candidates out of 18 recommendations, which is mentioned at sl. no. 5 in the recommended cases as shown in Annexure­A of Ex.PW2/A.

32. He specified that accused Badrul Islam being Deputy Director Alternative alongwith Dealing Assistant Accused S.S.Malhi was to process the cases and to submit report consisting a check list regarding documents being in order and complete in all respect which included report from Legal Department, Internal Revenue Department and concerned Land Acquisition Collector and the role of recommendation committee started after the case was made ready by Alternative Branch L&B Department and put up before the Recommendation Committee.

33. He then detailed that the file of Rattan Kaur (A­5) was presented to the committee. The committee did not find any anomaly or any doubts regarding the genuineness of the claim of applicant Rattan Kaur as the file was complete as reported by the branch and the applicant was eligible as per their report. Though, he lateron came to know from the CBI that the claim of the applicant Rattan Kaur was fake. He had seen the original recommendation letter No. F.32(21)/43/89­ L&B/ALT/20735 dated 28.03.2003, in favour of Rattan Kaur w/o Sh. Bachan Singh. The letter bears the signature of accused Badrul Islam at point A and he exhibited the same as Ex.PW2/B. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 14 of 291

34. PW­2 Sh. Z.U.Siddiqui was cross examined by Sh. H.S. Gill for accused Smt. Pinder Kaur wherein he detailed that accused Rattan Kaur @ Pinder Kaur never appeared before him. None of the applicants including Pinder Kaur appeared before the committee nor she signed any documents in his presence. He detailed that he did not personally carry out any verification of the application for allotment of alternative plot. The verification reports in this regard were prepared by the concerned Departments including Revenue Department and he himself did not verify the authenticity of the documents of Pinder Kaur. It was verified by the concerned department.

35. PW­3 Sh. Bhupal Singh explained about the procedure for issuance of lease paper in DDA and stated that after taking possession of the plot by allottee, the Land Administration Branch (Residential) issues a letter to the allottee under the signature of Land Administration Officer (ALO) asking him to bring one passport photograph, three specimen signatures, five additional photographs of both husband and wife as per legal status, affidavit regarding non sale of plot under reference, two independent witnesses other than family members etc. The affidavit given by the allottee regarding non sale of plot should be of the same date of the execution of lease deed. He detailed that thereafter on the date of execution of lease deed, lease deed is issued in favour of allottee under the signature of LAO, Programme Assistant and Dealing Assistant.

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36. He had seen original DDA File No. 27(8)/2003/LSB(R) pertaining to allotment of alternative plot no. 262, Block­A, Sector­17, Pocket­2, Dwarka, New Delhi to Smt. Ratan Kaur wife of Sh. Bachan Singh (D­9), which file he then exhibited as Ex.PW3/A.

37. He detailed that the letter pertaining to issuance of lease deed paper had been issued on 07.04.2004. He had seen lease deed dated 20.07.2004 bearing his signature at points A along with official seals on all the pages. He had signed the same in his capacity of Lease Administration Officer.

38. The lease deed was also signed by Sh. Mohan Lal, the Programme Assistant point B, whose signature he identified and that of Sh. S.C.Kaushik, the then Dealing Assistant who had signed at point C. He also identified the right hand thumb impression of Smt. Rattant Kaur, Allottee in the portion encircled D since she signed in his presence and that of independent witnesses brought by Smt. Rattan Kaur at points E and F and hence they had signed in his present. He then exhibited the lease deed as Ex.PW3/B.

39. He stated that allottee had produced her voter ID card, the photocopy of said voter ID Card (D­9 page 51) was retained in the file after verifying from the original and was bearing thumb impression of Rattan Kaur at point A and was then exhibited as Ex.PW3/C. He identified her thumb impression which was put in his presence. He CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 16 of 291 detailed that the allottee had also put right hand thumb impression on the four copies of lease deed papers. He stated that after issuance / execution of lease deed, the file is sent to Record Room and thereafter free hold of the property is being done by Land Administration Branch.

40. In cross examination by ld. Counsel Sh. Javed Akhtar for A­2 and A­4 he detailed that the letter of L&B in this case was received in the year 2003 in DDA which was prior to his joining, as AD. He explained that the letters were received in the Central Diary at Vikas Sadan. The letters received from L&B Department were not verified from L&B Department generally.

41. It was disclosed that the DDA issue letters to allottee generally by post.

42. During cross examination he admitted that unless the required documents are submitted by the allottee, the lease agreement is not executed. He was then shown the specimen signature and photo attested card of Rattan Kaur @ Pinder Kaur (D­9, pages 19/C) which were then exhibited as Ex.PW3/A2­DX1. (At that stage, ld. Predecessor made an observation in the encircled portion from X to X, that it looks like that photograph was pasted and was notarized which is not present.) Witness stated that at the time of execution of lease deed, the photograph was available and was duly notarized but he CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 17 of 291 could not comment how it was removed. Thereafter, ld. counsel for A­ 5 adopted the cross examination conducted above.

43. PW­4 Sh. Sunil Malhotra, Chief Manager, Punjab National Bank in New Delhi was on deputation to CBI and was posted as Banking Advisor in AC­1 Branch, CGO Complex, New Delhi and on 23.10.2015 he witnessed taking over specimen signatures / initials / writings of accused Badrul Islam who had given the same voluntarily in his presence which he identified. The document was then exhibited as Ex.PW4/A. He also identified accused Badrul Islam physically in the court.

44. PW­5 Sh. Satish Kumar was posted as LDC, Record Room in L&B Department and exhibited report of non­availability of file no. 32/21/43/89/L&B/alt. Under signatures of Sh. Anil Kaushal, the then Dy. Secretary, Central Record Room, L&B as Ex.PW5/A. He identified signatures of Sh. Anil Kaushal at point A as he worked under him. He was cross examined by ld. Counsel Sh. Javed Akhtar for A­2 and A­4, wherein he explained that the dealing clerk of the concerned branch has to send a list along with the files due for consignment alongwith covering letter which was forwarded in triplicate.

45. PW­6 Sh. Chhatarpal, Assistant Director (Lease Administration Branch / Residential Branch) in the office of Director CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 18 of 291 (LD) exhibited as Ex.PW6/A (objected to mode) the original letter no. F.27(8)/2003/LSB(R)/Part/2326 dated 01.12.2015 (D­63) bearing signatures of Sh. Bindesh Kumar, the then Dy. Director (LA) Residential, which was a reply to CBI Letter No. 9883 dated 21.10.2015, pertaining to seven letters issued by DDA. It was disclosed that out of the seven letters, five letters viz no. 6057 dated 2.7.2003, 9245 dated 3.10.2003, 2873 dated 24.03.2004, 3549 dated 07.04.2004 and no. 10160 dated 25.09.2004 were not received back. The remaining two letters nos. 6386 dated 23.06.2005 and 7334 dated 25.07.2005 were received and dispatched from DDA to addressee and the same were returned back undelivered in R&D Land and same were sent back to LSB(R) the issuing sections.

46. He witnessed the process of obtaining the specimen signatures of accused Swarn Singh Malhi whom he identified in Court. The specimen signatures of the accused S.S.Malhi were identified as (D­

125) S­16 to S­20. He then identified his own signatures below specimen initials of accused at point A appended as token of being witness to process where after they were exhibited collectively as Ex.PW6/B.

47. He was then shown specimen signatures / initials / writings of accused Neeru Kumar Gupta (D­127), S­47 to S­51 which he identified along with his own signature at point A having been CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 19 of 291 obtained as token of his presences which were then exhibited as Ex.PW6/C. Though, he could not identify accused Neeru Kumar Gupta physically in the court.

48. He was cross examined by ld. Counsel Sh. Javed Akhtar for A­2 and A­4 during which he detailed that he had not seen the identity card or identity proof of accused persons whose signatures / initials / handwriting were taken in Ex.PW6/B (colly) and 6/C (colly). He denied contrary suggestions put to him for having appended signatures subsequently as a witness on asking of IO/SI Sanjev Kumar for being on friendly terms with him.

49. PW­7 Sh. Kamal Kumar Sharma, Retired Assistant Director, DDA stated that on receipt of letter Ex.PW2/B File No. F27/8)/2003/LSB® (D­9) was opened. He exhibited the file as Ex.PW7/A (colly) as it was pertaining to allotment of alternative plot number 262, Pocket­II, Block A, Sector 17, Dwarka, New Delhi in favour of Smt. Rattan Kaur, wife of Bachan Singh and had been opened for recommendation letter Ex.PW2/B in favour of Rattan Kaur and was addressed to Commissioner (Land), DDA and was endorsed to him by Sh. S.N. Gupta, Assistant Director LSB (R).

50. He stated that Ex.PW2/B (Recommendation Letter) was received in DDA on 31.03.2003 vide diary no. 8608 and was marked to the Commissioner Office (LD) vide diary no. 3569. He then detailed CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 20 of 291 its movement in his office and the various stages of if being processed. He disclosed that letter was put up before him by Sh. S.C. Kaushik, Dealing Assistant on 09.04.2003 whereafter the noting dated 09.04.2003 was exhibited as Ex.PW7/B.

51. He detailed that Ex.PW2/B was for allotment of alternative plot under the scheme of Large Scale Acquisition, Development & Disposal of Land in Delhi 1961 requesting to allot a plot measuring 400 sq. yards to Smt. Rattan Kaur wife of Sh. Bachan Singh, Village Bahapur, Delhi on which it was mentioned "in lieu of her land bearing Khasra No. 607, total measuring 23­10 bigha in which applicant's share is ½ i.e. 11­15 bighas which is acquired vide award no. 2059 dated 24.01.1968 of village Bahapur Delhi in South Zone as she has been found entitled for the same.

52. He stated that draw of plots was held on 29.05.2003. As per result of draw of plots in terms of file no. F1(4)/2003/LSB (R) vide program no. LSB (R) D 00034, sl. no. 5 Smt. Rattan Kaur, w/o Sh. Bachan Singh was allotted a plot measuring 270 sq. mtr. bearing plot no. 262, Pocket ­2, Block­A, Sector ­17, Dwarka.

53. After the draw of plots, the demand letter dated 27.06.2003 was generated by System Department. He then exhibited demand letter dated 27.06.2003 (D­9 page no. 8 & 9) as Ex.PW7/C. The demand letter was entered in property register (at sl. no. 262 at page no. 62) CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 21 of 291 which was prepared by Sh. S. C. Kaushik and was signed by him on 27.06.2003 and other concerned officers.

54. A note was then put up by Sh. S. C. Kaushik to him 30.06.2003 with corrigendum of "Final Pre­determined Rate" (PDR). He signed the note on 30.06.2003 and forwarded it to AD Sh. S. N. Gupta who signed the same on 01.07.2003 and further marked to Sh. K. D. Reddy, the then Deputy Director who also signed the said note on 01.07.2003 and where after the file was marked to dispatch section and dispatcher issued a corrigendum letter on 02.07.2003 to Smt. Rattan Kaur.

55. However, the letter was received back undelivered with the remark in Hindi "yeh patra daak ghar Bhgwantpur main nahi hai, mussoori me try hetu vapis" then exhibited the corrigandum to allotment letter and report of the post office as Ex.PW7/D (colly).

56. Since no reply to both the references was received he put a note for (3/N) for seeking orders with information to Sh. S. N. Gupta, Asst. Director that the allotment letter issued on the recorded address on 27.06.2003 is not received back and the second letter issued by dispatch section on 02.07.2003 is received back.

57. Dealing Assist Sh. S. C. Kaushik then put PUC received in DD Office on 01.09.2003 with certain documents and proof of residence in shape of election Voter ID card and requested that the file may be sent CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 22 of 291 to AO (RL) to confirm the payment made by allottee.

58. He detailed that the file was put up to him by dealing assistant Sh. S.C. Kaushik for issuance of possession letter on 26.09.2003 which he signed on the same day and forwarded the file for further process after which possession letter was approved and marked to dispatch section. He exhibited the possession letter as Ex.PW7/E (D­9 page no. 21/C dated 03.10.2003 and identified signatures of Sh. S.C.Kaushik at point A, that of his own at point B and that of Sh. Sanjiv Kumar, the then Deputy Director at point C.

59. The possession letter was sent to dispatch section and to the allottee Smt. Rattan Kaur, DD (planning), Dwarka and AD (Survey) on 03.10.2003 which was received back from Asst. Director on 03.12.2003 with the remark that the allottee Smt. Rattan Kaur did not turn up for taking up the possession of the plot, (the noting 22/C) was then exhibited as Ex.PW7/F through which it was mentioned that possession letter may be revalidated so that the office may be able to hand over the possession to the allottee. Accordingly, Sh. S. C. Kaushik, DA submitted a proposal on 23.12.2003 with request to accord approval for revalidation of possession letter which was signed by Sh. Mohan Lal, Sh. S. N. Gupta and was then approved by Sh. Sanjeev Kumar, Deputy Director on 02.01.2004. A letter was issued to allottee on 06.01.2004 for taking the possession by paying the penalty CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 23 of 291 or else the plot will be cancelled after prescribed period and the earnest money deposited by Smt. Rattan Kaur i.e. allottee shall be forfeited. The said letter dated 06.01.2004 (D­9 pages 23/C) was then exhibited as Ex.PW7/G.

60. He detailed that in regard to the genuineness of the identity card submitted by the party, as per practice the same was not verified under the normal circumstances even in cases where the address given by party was in dispute, the documents and challan were accepted by the department and processed. He explained that in cases of dispute allottee could appear before the public hearing held by Dy. Director, bi­weekly to submit their documents which were then marked to Dealing Assistant. He detailed that similarly in this case, the documents were routed through the Public Hearing Authority to the section which the section was bound to accept and process.

61. During cross examination by counsel Sh. Javed Akhtar for accused S.S.Malhi and Neeru Kumar Gupta he details that the letter Ex.PW2/B was received in the Central Diary of DDA and was not received by him personally. DDA did not verify from L&B Department regarding the genuineness of letter Ex.PW2/B prior to creation of the file since it was not the policy of the DDA. He was further cross examined by Sh. Chander Maini, ld. Counsel for accused Badrul Islam and then by Sh. H.S.Gill for accused Pinder Kaur @ CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 24 of 291 Rattan Kaur wherein he detailed that the documents relating to acquisition of land and payment of compensation would be with the L&B Department, GNCT of Delhi and the allotment of land was in pursuance to recommendation letter of L&B Department. He further detailed that the records relating to the recommendation would probably with the L&B Department.

62. He detailed that after the allotment on the basis of recommendation letter, the allotment letter was sent to the recommended allotee by speed post and a copy of the same is also sent to the L&B Department.

63. PW­8 Smt. Sheela Devi, LDC was posted in Land & Building department in the month of March, 2003. She detailed that in the month of June, 2003, A­1 Badrul Islam officer in L&B Department directed her to take charge of large number of files from A­2 S.S.Malhi on which she requested Badrul Islam to direct the receipt to someone else, since, she was not conversant with English language.

64. She detailed that she was posted in L&M Branch though she did not know the full form of "L&M". The officials of L&M Branch were used to sit in one room and A­2 S.S.Malhi occupied separate room. No list of files was handed over to her by S.S.Malhi qua the files of which she was directed to take charge. One letter of handing over / taking over was given which she signed. She kept all the files which were CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 25 of 291 handed over to her in an almirah but did not know the contents of the file for being non conversant with the English language and was unable to understand the same. The key of the almirah was kept with her and she did not open the almirah. It took her 15­20 minutes in taking the charge of the files and thereafter after one and half month on asking of Badrul Islam she handed over the key of the almirah and charge of the files to Sh. Satbir Singh. She had not been given any work related to those files which were handed over to her by S.S.Malhi. No administrative order was issued to her for working in Alt. Branch except the order of Badrul Islam to take charge of files from S.S.Malhi. She then identified both the accused who were present in court during her statement. She was then shown copy of charge report from A­2 S.S. Malhi, UDC on 30.06.2003 in L&B Department (D­59, pages 14 to 31). After going through the same, she denied the document and claimed purported signatures at points 'A' as forged. She stated that she does not sign in the manner shown by putting only the initials and writes her full name as 'Sheela Devi" as her signature. The copy of said list was exhibited as Ex.PW8/A (OSR).

65. She was then shown the original office order No. F­ 30(misc)/00/03/L&B/ALT./89 dated 30.06.2003 issued by accused Badrul Islam. The said office order was bearing signature of accused Badrul Islam at point A and was then exhibited as Ex.PW8/B. She was also shown photocopy of Order No. F­ CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 26 of 291 5(22)/2003/L&B/Admn./991 dated 24.09.2003 (D­23) which was then exhibited as Ex.PW8/C. She had handed over both the aforementioned orders to CBI against seizure memo dated 23.09.2015 which was bearing her signature and was then exhibited as Ex.PW8/D. She gave her specimen signatures voluntarily which she identified (D­71, S­76 to S­85) having been taken in presence of independent witness which was then collectively exhibited as Ex.PW8/E.

66. She was then cross examined by Sh. Chander Maini, Counsel for A­1 during which she detailed that CBI had shown her list Ex.PW8/A on which she has stated that handing over and taking over memo was prepared at the time of taking charge from accused S.S.Malhi. She then vol. That she was having the copy of the handing over and taking over memo which can be produced if directed at which stage she was directed to bring the same on the next date of hearing. She detailed that she did not make any complaint to her senior officers regarding the direction of accused Badrul Islam to take over the charge, and volunteered, that since she was not knowing English language and was not capacitated to write in English she did not make any complaint. The contrary suggestion was denied. She admitted that the Joint Secretary, was also used to sit in the same office, however, she did not make any complaint to Joint Secretary for being forced to take the charge, she admitted that besides, her three under Secretaries also sat in the same Branch / office, however, she did not make any CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 27 of 291 complaint to them as well. She denied that Ex.PW8/A bears her signatures which she has deliberately denied.

67. She admitted that all the aforementioned officials were senior to accused Badrul Islam. She could not confirm that decision of taking of charge was made by the senior officers and volunteered that she was asked by accused Badrul Islam to take over the charge. She admitted that during the period the files were with her there was no tampering of files. However, during the period the charge was taken i.e. for 15 days the key remained with accused S.S.Malhi.

68. In her further cross examination by counsel Sh. Javed Akhtar for A­2 and A­4 she denied having told CBI that he was posted in Dispatch Section and not in the Alt. Branch on which she was confronted with her statement recorded u/s 161 Cr.P.C. from portion X to X1 it was found so mentioned and statement under section 161 Cr.P.C. was then exhibited as Ex.PW8/DA­1. She detailed that there were 830 files for which she took the charge from accused S.S.Malhi which took about 15 days. She was then called on 12.04.2017 with a direction to produce the letter on which date she brought the copy of intimation dated 18.08.2003 given to Deputy Director, Alternative Land and Building Department, Vikas Sadan, New Delhi regarding handing over of charge by her to Sh. Satbir Singh on 05.08.2003 which CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 28 of 291 was bearing her signatures at point B whereafter the said letter was exhibited as Ex.PW8/DA (OSR).

69. She stated that portion A to A1 on Ex.PW8/DA was not written by her when she had filed her intimation on 18.08.2003. She then vol. That it was written by Sh. Satibir Singh whose signature she identified at point A and detailed the noting at portion A to A was written by Satbir Singh in her presence. No written document regarding handing over of keys of cupboard and files on 05.08.2003 were made between her and Satbir Singh. She stated that she had handed over keys of the cupboard to Satbir Singh on 05.08.2003 and handed over the entire charge in one day by asking Satbir Singh to check the files and to ask/verify from her if any file was missing. Thereafter, she was informed by Satbir Singh about five missing files which she had noted down in portion A to A1 on Ex.PW8/DA which she then searched and after finding them handed over to Satbir Singh.

70. She had seen the original handing over memo prepared by Satbir Singh when he took over charge from her. It was of single page and did not list all 850 files separately which she had signed though she stated that the letter was in English and she do not know how to read English.

71. She detailed that she had signed in the same manner as her signature appears at point B on Ex.PW8/DA and stated that she had CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 29 of 291 told CBI that she normally signs with her full name and puts her initials on the attendance register and she can provide a sample of her initials at which stage on request of ld. counsel her short signatures on a piece of paper were obtained besides that she had appended her full signatures with date on which date the proceedings were being conducted and aforementioned were then counter signed by ld. Sr. PP as well as defence counsel and the document was then exhibited as Ex.PW8/DB.

72. She stated that she took charge from accused S.S.Malhi starting from 30.06.2003 for a period of 15­20 days and handed over charge to Satbir Singh on 05.08.2003. She was not handed over any blank / unfilled / format of recommendation form and blank registers by S.S. Malhi at which stage she was confronted with page 46 of D­60 which described it as "receipt and issue of recommendation forms alternative plot (south Zone) serial no. 1 to 88" to the witness, initials at point A at 46 of D­60 which were denied by her. She stated that it was not in her handwriting whereafter the document D­60 was exhibited as Ex.PW8/DC (colly).

73. PW­9 Sh. Rizwaur Rehman was Associate Professor, Centre of Arabic and African Studies, School of Language and Literature and Studies, JNU, New Delhi. A letter was received by the witness alongwith its enclosures namely copy of Jamabandhi of Village CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 30 of 291 Bahapur, New Delhi, copy of Naksha munt Zamin of award no. 2059 of village Bahapur, New Delhi with request to provide English translation which translation was provided vide letter dated 08.12.2014 addressed by the witness to CBI bearing his signature and was exhibited as Ex.PW9/A along with which he gave English translation of aforementioned documents which were given to him for translation and two pages of the translation, his signature at point A. On seeing the translation he stated that i.e. jama bandi of 109/ 303, 313, 306 at sl. no. 78, Khasra No. 607, Khasra No. 572 are in the name of Rai Sahib, Sohan Lal (owner) and Jan Munshi, Gulab Chand and the amount of compensation Rs. 50542.40 was given to him.

74. He was then cross examined ld. counsel Sh. Javed Akhtar for A­ 2 and A­4 in which he detailed that he is PhD in Arabic Studies and is competent to translate any document from Urdu language to English language.

75. PW­10 Sh. Kishan Lal detailed that he had provided letter dated 26.10.2015 of Sh. B.S. Meena alongwith copy of Land Record Register of LA and L&B department which he exhibited as Ex.PW10/A after identifying signatures of Sh. B.S. Meena. He perused the record exhibited by him and stated that Khasra No. 607 (23­10) was notification no.4 file no. F­15(III)/59/LHG dated 13.11.1959 and notification 6 file no. F­4(44)/65/L&B dated CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 31 of 291 16.05.1966 were at point A to A1 on page 03 of D­32. He then stated that the possession of the said land was given to DDA on 30.05.1972 under section 22(1) vide file No. F­8(49)/63/L&B dated 30.05.1972 (D­32) as per exhibited records.

76. PW­11 Sh.Mithilesh Gupta had purchased the plot no. 262, Dwarka vide sale deed dated 15.12.2011 which was executed by Nirmala Singla in favour of his wife Smt. Geeta Gupta and him for a sale consideration of 2.5 crore. He detailed that he has no relationship or business dealing with Sh. N K Gupta or Sh. Devender Gupta but he know Sh. Devender Gupta as he was also in the business of rice.

77. PW­12 Sh.Amit Naggi had been auto driver by profession and did not know Neeru Kumar Gupta or had heard his name. His father was doing property business. He denied having visited L&B department and had not heard about Swaran Singh Malhi. He only handed over the death certificate of his father to CBI official Sh. A K Saini which was exhibited as Ex.PW12/A. and the death certificate of his father was exhibited as Ex.PW12/B.

78. PW­13 Sh.K.S.Chawla was officer in Oriental Bank of Commerce, Panchkuian Road, New Delhi and has participated in search on 09.06.2015 at the house of accused S.S.Malhi. He was shown Search List which was bearing his signatures on all the four pages at point A whereafter the search list was exhibited as CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 32 of 291 Ex.PW13/A. He participated with the search team which conducted search of the ground floor and the first floor of the house of Sh. Swaran Singh Malhi s/o Late Sardar Jomar Singh at H.No.2925, Gali No.1, Dharampura, Gandhi Nagar, Delhi­31 and the search list was prepared in his presence. In cross examination by counsel for S.S.Malhi he stated that S.S.Malhi was present during the search along with his wife and the premises comprised of ground floor, first floor and a store on roof of first floor. No member from the locality was called by the CBI.

79. PW­14 Sh. Devdas was working as Peon with Sh. Arun Malik, Advocate at Chamber No. 9 at Vikas Sadan, DDA. He had witnessed the execution of lease deed dated 20.07.2004 in favour of Ms. Rattan Kaur W/o Late Sh. Bachan Singh, r/o H. No.3, Dak Estate, Mussoorie Road, Dehradun. He identified his signatures at point F on the document which was already Ex.PW3/B. He also identified his own voter ID at page 50 of D­9 which was then exhibited as Ex.PW14/A. He had not seen (Smt. Rattan Kaur) the lady whose photo was pasted on Ex.PW3/B. He detailed that the photo seemed to have been prepared in their shop though he had never met or seen the lady. The photograph was marked as Mark A. He stated that the documentation was prepared at their shop and that since he was told that the party was genuine he signed on it as a witness at point F. In cross examination by Sh. Ranvijay Kumar, ld. counsel for A­5, he feigned ignorance about CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 33 of 291 the photograph pasted on Ex.PW3/B being the photograph of the photograph, as he was not dealing with photographs. He detailed that there were three partners of the camera and one of them may have taken this photograph. He had signed on the perpetual lease deed on the directions of owner of the shop. He was newly employed in the shop and had singed on the instructions of the shop owner. He was being given Rs. 100/­ for signing as a witness.

80. PW­15 Sh.Pappu was working as a Safaikaramchari with Major Sunil Malik, Advocate at his office Vikas Sadan, INA, DDA. He identified perpetual lease dated 20.07.2004 with photograph of Smt. Rattan Kaur W/o late Sh. Bachan Singh and his own signatures at point E on the documents already Ex.PW3/B. He stated that he was being given Rs.50/­ ­ Rs.100/­ for signing as an attesting witness by the dealer. On seeing the photograph of Rattan Kaur he detailed that he had never seen or met her and had only signed as a witness on the request of the dealer for which he was given Rs.50/­ Rs.100/­. He identified his signatures on the voter ID card and the same was Ex.PW15/A.

81. In cross examination by ld. counsel for A­5 he stated that his work was to provide tea and cleaning the office. Large number of property dealers used to visit the office of Major Sunil Malik, Advocate and he was not aware of their bonafides. He confirmed in his CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 34 of 291 cross examination that he had never seen Rattan Kaur whose photo was pasted on perpetual lease deed and he did not remember the name of other person who also witnessed the perpetual lease deed with him. He could not state the number of documents signed by him from 1997 to 2013.

82. PW­16 Sh. Umesh Chander Ijral was a witness to specimen signature/initial of Smt. Sheela Devi W/o Late Sh. Satish Bhardwaj. He identified the initial of Smt. Sheela Devi on five pages and full signatures on five pages which were given by her voluntarily in his presence. He identified his signatures at point B on the document already Ex.PW8/E (colly.).

83. PW­17 Sh. Subhash Gupta was DLA in L&B Dept in DDA. For a short duration he was member of the recommendation committee which used to recommend alternative plots in lieu of acquisition of agricultural lands in Delhi by L&B department. The chairman of the committee was the then Secretary, L&B Department, Sh. Prakash Kumar, Sh. Z.U. Siddique, the then Joint Secretary, L&B Department, Sh. Badrul Islam, the then Dy. Director (Alternative), L&B Department and he himself being DLA were the members of this committee.

84. He detailed that the applications of the applicants whose land was acquired and who were eligible for alternate plots were processed CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 35 of 291 by alternative branch then headed by Sh. Badrul Islam, Dy. Director (alternative). After all the necessary verification from land acquisition collector etc. were carried out and when file was complete, it was placed before the committee for deliberations. The committee used to consider merits and demerits of each case and take decision. His role in the committee was to give his opinion with regard to legal documents such as affidavit, indemnity bond, relinquishment deed and various court orders, if any. The report of LAC and other revenue records were called for and verified by alternative branch. When the matter was placed before the committee for consideration, all these documents were used to be part of the records. He was then shown the original documents from the records of RC No.2172015A0004/CBI/ACU­VI/New Delhi from which he was shown D­72 original of which was at page 58­C on the file titled as "questioned documents" and the file was then exhibited as Ex.PW15/A (colly.).

85. He also identified his signatures at point A and that of A­1 Badrul Islam at point B on minutes of the meeting held on 03.12.2002 which he exhibited as Ex.PW15/A1. He identified the signatures of Sh. Badrul Islam, the then Dy. Director (Alternative) at point B. He was then shown list of recommended cases - Annexure­A bearing his signatures at point A which was then exhibited as Ex.PW15/B. He CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 36 of 291 also identified the signatures of Sh. Badrul Islam, the then Dy. Director (Alternative) at point B on the above mentioned documents.

86. He was then shown list of rejected cases - Annexure­B bearing his signatures at point A and was then exhibited as Ex.PW15/C (02 pages). He also identified the signatures of Sh. Badrul Islam, the then Dy. Director (Alternative) at point B. He was then shown list of cases recommended for re­examination - Annexure­C which was bearing his signatures at point A and was then exhibited as Ex.PW15/D (01 page) at which stage the ld. Predecessor directed aforementioned copies to be placed on the present file as well.

87. He further detailed that total 18 cases were recommended for alternate plots, 02 cases were rejected and 09 cases were recommended for re­examination. The minutes of the meeting held on 03.12.2002 were prepared and signed on 04.02.2003 by the Head of Alternate Branch, Sh. Badrul Islam and the reason for delay in preparing the minutes can be only be explained by him.

88. He was then shown Ex.PW15/B where the case of Smt. Rattan Kaur W/o Sh. Bachan Singh, is one of the recommended cases of 18 recommendations made during the said meeting and her name appeared at serial no.7 (point C) at Annexure­A which is list of recommended cases wherein recommendation for a plot measuring 400 sq. yards (south) was made in her favour.

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89. He detailed the role of Badrul Islam in the process of allotment of alternate plot in favour of Rattan Kaur and stated that he was required to seek reports from legal department, internal revenue department and concerned LAC and personal verification of the applicant. After completion of these formalities by the alternative branch, the matter was placed before the recommendation committee for recommendation alongwith other cases. The recommendation committee at the time of deliberation relied on the documents placed on file by the alternate branch and there was no practice for their re­ verification by the committee during deliberations. He detailed that Swarn Singh Malhi was the dealing assistant in the alternate branch and assisted Badrul Islam in the meetings.

90. He identified the signature of A­1 Badrul Islam on recommendation letter No. F­32 21/(43)/89­L&B/Alt./20735 dated 28.03.2003 in favour of Smt. Rattan Kaur W/o Sh. Bachan Singh for measuring 400 sq. yards in lieu of acquisition of land in village Bahapur. The Recommendation letter was already exhibited as Ex.PW1/A.

91. He detailed that the role of the committee was to consider the records made available in the file by alternate branch which was headed by Dy. Director (Alternative) and the documents were gathered and verified by alternative branch. He stated that the documents with CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 38 of 291 regard to allotment of alternate plot to Smt. Rattan Kaur W/o Sh. Bachan Singh must have been collected and verified by alternate branch headed by Sh. Badrul Islam and Sh. S.S.Malhi the dealing assistant. He detailed that the committee had no means to find out the genuineness of documents collected by the alternate branch head i.e. Dy. Director, Sh. Badrul Islam who was assisted by Sh. S.S.Malhi and there was no reason to disbelieve the verifications carried out by them. He asserted that during deliberations of the recommendation committee, there was no practice to re­verify the documents placed before the committee by the alternate branch.

92. During cross examination, the earlier cross conducted in, CC No. was partially adopted.

93. Ld. counsel for A­2 and A­4 proceeded with further cross examination of the witness wherein he stated that he does not know the person who was responsible for correction in the draft minutes Ex.PW17/D1 (D­52) page 43. He admitted his signature on minutes dated 03.12.2002 prepared on 04.02.2003 at point A which were then exhibited (re­exhibited) as 17/D2. He identified signatures of A­2 Badrul Islam at point B and that of Z.U.Siddiqui at point C whereafter the documents were exhibited as 17/D3 (D­52 page no. 4/N).

94. PW­18 Sh. Dinesh Bansal Manager, Dena Bank, Karol Bagh, Delhi was part of search team which searched the residential premises CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 39 of 291 of Sh. Devender Kumar S/o Late Sh. Mange Ram, R/o 41/78, Punjabi Bagh West, New Delhi on 09.06.2015. The search list (D­3) was exhibited as Ex.PW18/A as was bearing his signatures. He also exhibited copy of assessment order of income tax department (D­47) which was seized during search in his presence as Ex.PW18/B bearing his signatures at point A.

95. PW­19 Sh. Dinesh Singh was posted as Office Supdt. In Alternative Branch in L&B Department, Vikas Sadan, INA, New Delhi from February 2013 to March 2016. He had delivered the letter No. F.Misc/CBI/Inquiry/2015/Alt./L&B/Pt.1/10561 dated 28.08.2015 (D­12) written by Dy. Secretary (Alternate) Sh. Ramesh Kumar (Ex.PW19/A). informing about the non traceability of file No. F.32(21)/43/89­ L&B/Alt. in the Alternative Branch. He also delivered attested copy of Minutes of Meeting held on 03.12.2002 which was already Ex.PW2/A with aforementioned letter. He also identified the report from Record Room informing that file is not consigned to the Central Record Room from the Alternative Branch . The report was signed by Dy. Secy. (Alternate) Sh. Ramesh Kumar at point B and was already exhibited as Ex.PW5/A while he too had signed at point C.

96. He also provided letter dt.25.02.2015 addressed by Ms. Usha Chaturvedi, Dy. Secy. (Alternate) to Sh. Ranjit Kr. Pandey, Inspector, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 40 of 291 CBI, He identified signatures of Smt. Usha Chaturvedi, the letter dated 25.02.2015 was then exhibited as Ex.PW19/B. He then exhibited self certified copy of guidelines for allotment of alternative plots maintained in L&B Deptt. during the year 2002­2003 which were given to CBI alongwith letter dt. 07.10.2015 of Smt.Usha Chaturvedi, Dy. Secy (Alt.) to CBI. The letter dt. 07.10.2015 was then exhibited as Ex.PW19/C. The seizure memo was exhibited as Ex.PW19/F through which the documents were provided to IO/Insp. A.K. Saini.

97. He was shown part of recommendation letter issue register (pages 5 & 6 of D­26) which portion he had certified under his signatures and seal at point A on both the pages, which was then exhibited as Ex.PW19/I. Similarly, he exhibited as Ex.PW19/J (page 7,8 &9 of D­26), part of recommendation letter issue register which were certified by him under his signatures and seal on each pages.

98. He detailed that he had given the original register of South Zone (1­72) to CBI vide seizure memo dt.25.09.2014 (already) exhibited as Ex.PW19/E as mentioned at Sl.No.1 of the register and at page no.3 of this register at Sl.No.21 was the name of village Bahapur. On seeing the entries, he stated that there is no name of Smt.Rattan Kaur w/o Sh. Bachan Singh. On seeing, Ex.PW19/I, he stated that file no.32(21)/43/89­ L&B/Alt./20735 was not mentioned in this register. (It was noted that there is a mention of file no.32(21)/4/89/L&B/Alt. in CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 41 of 291 the name of Rattan Kaur w/o Sh Bachan Singh at Sl.No.001142 at page 5 (Annexure D of D­26. The same is mark A to A).

99. He was also shown Stock Register in respect of all the Zones at page 9 of D­26. However, he could not identify the signatures at Sl.No.23 point A as per which book 1101­ 1150 was issued due to its being old record (of 1998) of the period he was not posted in the department.

100. He then exhibited letter dated 14.10.2015 as Ex.PW19/K through which he provided file bearing No. F.30(Misc)/1/97/L&B/Alt (Vol.III) (D­52) (original file is in case RC No.4(A)/2015 pertaining to "Constitution of the Committee for Alternative Plots and Building". He was then shown the file pertaining to Minutes of Meeting and more specifically page/noting 58/C of Ex.PW17/D2 as per which the meeting was headed by Sh. Prakash Kumar, Secretary as Chairman, Sh. Z.U. Siddiqui, Joint Secretary (L&B), Sh. Subhash Gupta, Legal Advisor and Sh. Badrul Islam, Dy. Director (Alt). In this meeting, total 29 cases were placed before the committee and 18 cases were recommended for alternative plot in the meeting dated 04.02.2003. He was cross examined by counsel Sh. Javed Akhtar for A­2 and A­4 wherein he stated that his examination in chief was based out of the record as he was not posted in the department w.e.f. 1989 uptill 2003.

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101. PW­20 Sh. Daya Ram Khinchi was Manager at SBBJ, Kharibaoli branch in July, 2015. Vide his letter dated 08.07.2015, he had given three documents mentioned in that letter to the Inspector of CBI whereafter the letter was exhibited as Ex.PW20/A. He had also provided four documents against memo dated 09.07.2015 bearing his signatures at point A which was then exhibited as Ex.PW20/B.

102. On seeing cheque dated 16.07.2003 (D­42) in favour of "yourself" for a sum of Rs.11,98,615/­ of SBBJ Kharibauli, Delhi Branch bearing No.824386, which was issued by M/s Saraswati Trading Company in favour of SBBJ, he detailed that he handed over the cheque alongwith memo Ex.PW20/B to CBI. He had also provided the request form for issuance of DD for Rs.11,98,000/­ in favour of DDA given by M/s Saraswati Trading Co. on 16.07.2003. The DD in favour of DDA for a sum of Rs.11,98,000/­ dated 16.07.2003 issued by SBBJ, Kharibauli branch and the certificate under Section 2(A) of Banker's Book of Evidence Act (D­45) supporting statement of account no.01000028745 of M/s Saraswati Trading Co under his signatures and rubber stamp of the bank on each page at point A. All the above documents i.e. cheque , request for DD, DD, certificate u/s 2(A) of Bankers Book of Evidence Act and statement of account were then collectively exhibited as Ex.PW20/C (colly.). He was cross examined by counsel for A­5 wherein he stated CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 43 of 291 that in 2003 the year when DD in question was issued he was not posted in the concerned Branch of the Bank.

103. PW­21 Sh. A.K.Singh was posted at Vikas Sadan Branch of Central Bank of India and he handed over three Challans (part of D­9 page no.29, 30 and 31) alongwith production memo dated 28.05.2015 (Ex.PW21/A). The three challans bearing numbers having No.14482 amounting to Rs.26,219/­, challan no.14481 amounting to Rs.20,000/­, challan no.14480 amounting to Rs.98,000/­ were exhibited as Ex.PW21/B, Ex.PW21/C and Ex.PW21/D respectively.

104. All the above mentioned Challans were deposited in Account No.01 of Delhi Development Authority. The amount of Rs.20,000/­ deposited through Challan No.14481 and amount of Rs.26,219/­ deposited through Challan No.14482 were by way of cash in DDA account. He exhibited the statement of account of DDA which was exhibited as Ex.PW21/E. The supporting certificate u/s 2A of Banker's Book of Evidence Act Certificate was Ex.PW21/F which was issued was exhibited as Ex.PW21/G.

105. He was cross examined by Sh. Ran Vijay Kumar, counsel for Pinder Kaur wherein he detailed that anyone could have deposited the challans on behalf of the depositor.

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106. PW­22 Sh.Aakash Sood was Chief Manager at SBI Bank Vikas Sadan, INA, New Delhi. He had provided attested first copy of challan 10283303 submitted in his branch to IO CBI vide letter dated 03.09.2015 which along with copy of statement dated 17.07.2003 to 25.07.2003 he then exhibited as Ex.PW 22/A, through this letter. The attested challan in the name of Mrs. Rattan Kaur bearing his signatures and rubber stamp of bank at point A was exhibited as Ex.PW22/B. He also exhibited the statement of account of DDA as Ex.PW22/C. The supporting certificate u/s 2(A) of Banker's Book of Evidence Act, 1891 was exhibited as Ex.PW22/D.

107. He was cross examined by counsel for A­5 wherein he stated that it was not mandatory for the allottee to personally visit the bank to deposit the amount, which could have been done on her behalf by someone else. He stated that it is possible that DD in favour of allottee may have been prepared by any person other than the allottee. In response to further questions he stated that he cannot say as who got the DD 72682 prepared in favour of Rattan Kaur as the same, information / detail could be made available on the request form of the Bank.

108. PW­23 Sh. Ravinder Kumar Dang was posted as Naib Tehsildar at the office of LAC from June 2015 till 30.06.2017. He had handed over production memo Ex.PW23/A dated 27.08.2015 to Insp.

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of CBI alongwith documents, such as award 2059 dated 24.01.68 of village Bahapur, stating that the compensation regarding acquisition of land bearing khasra no.607 has not been granted to Smt. Rattan Kaur W/o Sh. Bachan Singh nor it was claimed by her. The certified copy of award no.2059 of village Bahapur which was certified by Sh.M.L.Meena, Kanoongo and also bearing his signatures Ex.PW23/B. He narrated that he had seen the award and there were 109 claimants from whom he did not find the name of Smt. Rattan Kaur W/o Sh. Banchan Singh in that list which showed as claimant against Khasra no. 607.

109. Witness was cross examined by counsel Sh.M.P.Singh for A­3 wherein he replied that copy of award was certified by Sh.M.L.Meena.

110. PW­24 Mohd. Mustafa Khan was district Panchayat Raj Officer (DPRO) cum Addl. District Registrar, Birth and Death (Rural) O/o chief Devl. Officer, Vikas Bhawan, Kandolia, Pauri Garhwal, Uttarakhand. He had sent vide letter dt.04.09.2015 (Ex.PW24/A bearing his signature) letter of CMO, Dehradun. He reported that the death certificate of Bachan Singh S/o Sh.Randhir Singh is a forged death certificate and stated that the address mentioned in the death certificate of Sh. Bachn Singh S/o Sh.Randhir Singh R/o 3, Oak Estate, Musoorie Road, Dehradun, Uttarakhand was not found in Dehradun.

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111. On seeing the Death Certificate of Sh. Bachan Singh s/o Sh. Randhir Singh r/o 3, Oak Estate, Musoorie, Road, Dehradun, Uttarakhand he detailed that the death certificate which was shown to him by CBI, Ex.PW24/C is forged document as in the death certificate issued in the State of Uttarakhand "Uttaranchal Sarkar Rajdhani Dehradun Kshetr" is not mentioned and the one shown to him was signed by Dy. Registrar whereas there was no post of Dy. Registrar in their State and it should have been signed by the Registrar whose signatures were missing. The above document was separately seized by IO A.K. Saini vide seizure memo Ex.PW24/B.

112. He detailed that since the death certificate was signed by Dy. Registrar it was one of the reasons for him to state that it was a forged death certificate. Besides on the rubber stamp, which is used in their office, word "Karyalaya" is not mentioned which also shows that this certificate is forged.

113. He further explained that there were two logos on the Death Certificate, issued in the State of Uttarakhand, one logo is of 'Uttarakhand Government' and another of the 'Registrar General, Govt. of India' and there are no directions to write on the Death Certificate 'Govt. of Uttaranchal Capital Dehradun Region'. He stated that the death certificate are issued in the proforma which was given along with the seizure memo Ex.PW24/B and was exhibited as CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 47 of 291 Ex.PW24/D. On the aforementioned basis he could say that the death certificate was forged.

114. PW­25 Sh. N.S.Bhati, Section Officer, Lease Administration (Residential Branch), DDA, INA, Vikas Sadan, New Delhi exhibited the production­cum­seizure memo dated 01.07.2015 (Ex.PW25/A) against which he handed over the original DDA file no. 27(8)/2003/LSB(R) pertaining to the allotment of plot no. 262, Pocket­ II, Block­A, Sector­17, Dwarka, New Delhi. The property in question was alloted in the name of Smt. Rattan Kaur, w/o Sh. Bachan Singh, R/o Oak Estate, Mussoorie Road, Dehradun during the year 2003 pursuant to the draw of plots held on 10.07.2003. He was cross examined by Sh. Ran Vijay Kumar, ld. counsel for A­5 wherein he detailed that file was produced from the Record Room of DDA for which he received requisition from CBI for producing these records. He detailed that till the time the plot is converted into freehold the file remains with the branch during processing period. He was confronted/shown page 18/N which is note sheet where it was written "is naam ka yaha koi nahi hai, naa hi aise estate hai" and was asked when the allottee was not delivered the letter informing allotment of plot, how the allottee fulfilled the formalities for allotment of plot to which the witness replied since he was not posted in the branch in the year of 2005 when the allotment took place, he was not able to answer as who had signed the note sheet authorizing deposit of challan.

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115. PW­26 Sh. Prem Kumar Thakur was posted as Deputy Director, Govt of India, Ministry of Communication and IT. He had provided information / documents pertaining to e­aadhar no. 2617 4985 5969 (enrollment number 1104/75593/00262) in the name of Pinder Kaur w/o Sh. Sakatar Singh, R/o Nagokte, Taran Taraan, Punjab and the copy of Aadhar Card in the name of Smt. Pinder Kaur which he signed at point A which was then exhibited as Ex. PW26/C. The Aadhar correction form duly signed by him on both pages was Ex.PW26/D and the copy of the Aadhar card issued in favour of Pinder Kaur was Ex.PW26/E. He was cross examined by Sh. Ran Vijay Kumar, ld. counsel for A­5, however nothing material to discredit the statement or document came out. The witness stated that the blanks in the column for "applicant's signature / thumb print" and full name were attributable to applicant since the form is filled by them and all relevant information including age etc. are stated on the basis of information given by the applicant herself. The Aadhar Card in question was got prepared through an authorized and registered agency and only they could answer how the unsigned form was entertained.

116. PW­27 Sh. Ram Tirath was posted as Patwari, SDM Office, Dwarka Delhi. He detailed that he went to CBI office on the directions of Sh. Ajay Kumar, ADM and provided the record of Jama Bandi of Village Bahapur for the year 1949­50. He also took mutation register of village Bahapur. Letter dated 14.11.2014 bears signature of Sh.

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Ajay Kumar, ADM, LAC, which he identified and exhibited the letter as Ex.PW27/1 (objected to mode). The copy of the Jamabandi running into 05 pages which he had given to CBI officials was exhibited as Ex.PW27/2 (colly.). The copy was compared by him from the original which and he had also signed at point A on each page alongwith official seal.

117. He was cross examined by counsel for A­1, however nothing substantial could be culled out. He was then cross examined by Sh. Javed Akhtar counsel for A2 to A4, wherein he stated that without consulting the record he cannot say who is recorded owner of Khasra No. 607 village Bahapur in the year 1949­50.

118. PW­28 Sh. Ram Swaroop Pahwa was working as Asst. Director (Survey) in DDA, Delhi. On seeing letter no. 232 dated 20.01.2004 stated that possession of plot No. 262, Pocket No.2, Block­ A, Sector­17, measuring 270 sq. mts, Dwarka Residential Scheme was handed over to allottee Smt. Rattan Kaur w/o Sh. Bachhan Singh r/o H.No.3, Dak Estate, Massouri, UP against possession letter No.232 dated 20.01.2004. The original possession letter was then exhibited as Ex.PW28/1, on which he identified signatures of Rattan Kaur at point B.

119. On seeing letter dated 03.12.2003 already exhibited as Ex.PW7/F (bearing his signatures at point A), he detailed that the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 50 of 291 allottee Rattan Kaur had not turned up to take possession. The possession of plot was given vide letter dated 22.01.2004 (No.F.12(1385)/2003/DWK/PLG/77) by the then Joint Director Sh. C.P.Sharma whose signatures he identified at point A, whereafter the letter was exhibited as Ex.PW28/3.

120. He was cross examined by Sh. Javed Akhtar, ld. counsel for A­2 and A­4, wherein he detailed that at the time of handing over the possession of land, allottee was required to submit the identity proof such as ration card, learning license copy, passport etc. He had verified the documents of allottee at the time of possession. He could not state for want of lapse of memory as how many copies of possession letters were prepared. He further stated that all the necessary formalities in the office and plot/land were done at the time of handing over possession and the allottee also visited the plot. In his further cross examination (conducted by counsel Sh. Ran Vijay Kumar), he detailed that only possession letter was provided by DDA Administration for giving possession to allottee Rattan Kaur. No presence of witness was needed at the time of handing over the possession. He admitted that he told CBI that he cannot identify the allottee though he denied that allottee did not come for taking possession of the plot/land physically at the spot.

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121. PW­29 Sh.Rakesh Kumar in the year 2011 was working as Election Tehsildar, District Election Office, Amritsar, which office had forwarded copy of voter list of village Nagoke, booth No.163, Vote No.322 of Assembly Constituency 25, Baba Bakala (D­75), showing name of Smt.Bhupinder Kaur w/o Sh. Sakatar Singh being registered at Sl.No.322 with her voter ID card number LMY0930511. The copy of mail was exhibited as Ex.PW29/1 and the voter ID list was exhibited as Ex.PW29/2 (colly.). The name of Smt. Bhupinder Kaur was then encircled at portion X at internal page 2 of Ex.PW29/C (colly.).

122. He was cross examined by counsel Sh. Javed Akhtar for A­2 and A­4 wherein he admitted that the voter list etc. Ex.PW29/2 (colly) are in Gurumukhi and he had not sent the translation.

123. PW­30 Sh. Prabhat Chand Sharma had worked as postman in the post office Bhagwantpur for around 19 years before retiring on 04.07.2006. He had put a note in Hindi on the envelope i.e. "Yeh Pata dak ghar Bhagwantpur mai nahi hai, Mussori mai try hitu vapas"

(encircled at point X) having speed post number EE241853184IN sent by DDA file No.F27(8)/03/LSD(R)/6057. The notice was bearing his signature at point A and date of 09.07.2003. (the envelope was already exhibited as Ex.PW28/D4).

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124. He also put a note in Hindi on the envelope i.e. "Is Naam ka yaha koi nahi hai, Vapas (with DDA File no.(8)/2003/LSB (R)/6386) under which he signed at point A with date 30.06.2005. The envelope was then exhibited as Ex.PW30/1.

125. He had put a note in Hindi on the envelope of ordinary post with DDA file No. F.27(8)/03/LSB(R)/7334 i.e. "kafi puchne par ye sathan yaha nahi hai, Vapas" with his signature at point A and date 01.08.2005. The envelope was then exhibited as Ex.PW30/2. On seeing post envelope DDA File No.F27/(8)/03/LSB (R)/7334, he stated to have put a note in Hindi on the envelope i.e. "Bhagwantpur dak ghar mai iss naam ka koi nahi hai or na hi is parkar ki koi Estate hai, Vapas, which was signed by him with date 07.09.2005 at point A, after which the envelope was exhibited as Ex.PW30/3.

126. He stated that there was no locality or area as Dak Estate Mussori Road, in Dehradun.

127. He was then cross examined by ld. Sh. Javed Akhtar wherein he detailed that he remained posted in post office Bhagwantpur for 19 years and the distance between Dehradun and Mussoorie was approximately about 32 to 35 kms. Only 2 villages of Mussoorie Road comes under the Bhagwantpur post office. He stated that he did not know if any Estate namely Oak Hill Estate existed or not on Mussori Road.

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128. PW­31 Sh.Bharat Singh was posted as Public Relation Inspector in the office of Sr. Post Master, GPO, Rajpur Road, Dehradun in the year 2015 and had verified the address "H.No.3, Oak Estate, Mussori Road, Dehradun" from the area postman and had reported as such to Sh.K.S.Mehra, the then Sr.Post Master. He exhibited the copy of mail of Sh. Y.S.Aswal (the then ASP), mails sent to IO/Insp. A.K.Saini. He submitted the copy personally to IO at CBI office during investigation and exhibited it as Ex.PW31/1. During cross examination he admitted that he had not personally verified about the H.No. 03, Oak Estate, Mussori Raod, Dehradun.

129. PW­32 Sh. P. S. Rawat was posted at Dehradun as Assistant District Election Officer in the year 2015. He had provided the information regarding the voter ID card KZR 0821491 of Smt. Rattan Kaur w/o Sh. Bachan Singh vide his letter dated 05.10.2015 No. 695/25/10/2013­2014 that there is no such voter having voter ID card KZR 0821491 existed. He identified his signature at point A (on each page), after which the letter dated 05.10.2015 and the list of polling stations were exhibited as Ex.PW32/A (colly). Though he had pointed out a typographical error in the letter Ex.PW32/A(colly) regarding the year of polling stations having been mentioned as 1996 instead of 1999. The list of polling stations for the year 2002 was also annexed with the letter bearing no. 729/25­10/2013­2014 dated 16.10.2015 through which letter it was again informed that there is no such voter CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 54 of 291 having voter ID card KZR 0821491 with the name Smt. Rattan Kaur w/o Sh. Bachan Singh. The was then exhibited as Ex.PW32/B (colly).

130. PW­33 Sh. Nitin Narang was working as Manager (SMEAD), Punjab National Bank, Head Office Bikaji Cama Place, New Delhi, and had accompanied the search team on 09.06.2015 on directions of Sh.R.K. Anand, AGM to search residential premises of Devender Kumar at Punjabi Bagh (West) the address was 41/78, Punjabi Bagh (West), New Delhi. Accused and his family members were present during search. He identified the search list prepared at spot and bearing his signatures which was already Ex.PW18/A. The list was signed by all members of raiding party. Whatever articles/documents were seized in his presence were mentioned in the search list. The search team was led by Sh. A.K. Saini/IO.

131. At CBI office he had witnessed the proceedings of obtaining specimen signature / initials of one Sh. Swarn Singh Malhi [(marked as S­86 to S­95 (D­69)]. He witnessed the proceedings of obtaining of specimen signature / initials of Sh. Davender Kumar on the same day [marked as S­32 to S­46 (D­70)]. He signed on all the paper sheets as a witness, whereafter he exhibited 14 sheets bearing initials/specimen signatures of Sh. Devender Kumar, which then were exhibited as Ex.PW33/B (colly.).

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132. PW­34 Sh. Chirag Saluja Manager, Oriental Bank of Commerce, Aloarkh, Tehsil Bhawanigarh, District Sangrur, Punjab had accompanied the CBI team for the purpose of investigation on 13.08.2015 at the direction of Sh. Anil Arora, Branch Manager and on 13.08.2015 morning at about 5.00 - 6.00 AM reached with search team at Village Nagoke, Tehsil Khadoor Sahib for search of house of Pinder Kaur.

133. He identified his signatures on the search list dated 13.08.2015 (D­10) which was Ex.PW34/A. The thumb impression of Smt. Pinder Kaur were also taken in his presence and in presence of Sh.Harish Bansal. Thumb impression of Pinder Kaur were identified at point X1 to X2. Some documents were seized from the house of Rattan Kaur @ Pinder Kaur which were mentioned in the search list. He was shown duplicate voter ID card of Smt. Pinder Kaur, the Adhar Card of Smt. Pinder Kaur and attested copy of death certificate of Sh. Skattar Singh, S/o Sh. Santokh Singh which were exhibited as Ex.PW34/B (colly.). He was then cross examined by ld. counsel for accused persons however nothing contrary to discredit his statement regarding the search or the documents having been found from house of A­5.came out.

134. PW­35 Sh. Deepak Chaudhary, a practicing lawyer at Tis Hazari Court as Additional Standing Counsel, Government of India CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 56 of 291 had attested the photograph of Rattan Kaur on recommendation letter Ex.PW2/B. He identified his signature along with his official seal of Additional Standing Counsel at point D. He stated that he attested the said photograph of lady Rattan Kaur at the instance of Mr. N. K. Gupta who was known to him as practicing Advocate and who brought only a coloured photograph and had told him that since she is a poor lady the attestation of photograph shall be used for pension formalities, though he had not seen any credentials of Rattan Kaur. During cross examination he denied that he was not competent to carry out attestation. He was confronted with portion of his statement Ex.PW35/DX, wherein it was not recorded that he was asked to attest the photograph as the lady was poor and needed the attestation of photograph for personal formalities. He was also cross examined by ld. counsel for A­5 however nothing material to contradict came out.

135. PW­36 Sh. Satvinder Singh cousin of Smt. Pinder Kaur detailed that Pinder Kaur was married to Sh. Skattar Singh and her elder sister Smt. Kulwinder Kaur, was married to Sardar Charanjeet Singh Malhi, elder brother of Swarn Singh Malhi. He identified her photograph attested on the perpetual lease Ex.PW3/B (D­9). He was not cross examined.

136. PW­37 Sh. Harinder Prasad was forensic expert having done certificate course in Forensic Science from Delhi University. He CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 57 of 291 detailed that he had 23 years experience of Finger Print Examination and had examined more than 500 cases consisting 50,000 finger print exhibits and visited more than 75 crime scenes and attended number of courts for evidence. He also passed finger print expert examination conducted by NCRB/ CFPB/MHA/NEW DELHI.

137. On 27.08.2015 he had taken the ten digit finger prints and palm print of Smt. Rattan Kaur @ Pinder Kaur wife of Late Sh. Skattar Singh in CBI office as he was requested through a letter of SP CBI bearing no. 8273/3/3(A)/2015/AC­II dated 25.08.2015 finger prints / palm prints were taken in presence of Sh. Surender Singh, Chief Manager, Dena Bank and Insp. CBI Sh. A.K. Saini. The rolled and plain prints of both the hands were marked as S­119 to S­121 (three sheets) and palm prints as S­122 to S­127 (three sheets) and the same were then Ex.PW37/A (colly.) and PW37/B (colly). He identified his signature at point and was marked S­122 to S­127 bearing his signature at point A. He detailed that after preparation of these finger prints they were sent to SP CBI vide his letter dated 08.09.2015 (D­14) bearing his signature as Ex.PW37/C. He had received another letter dated 30.11.2015 of SP CBI ACU­VI, AC­II, New Delhi regarding questioned documents thumb impressions / finger prints along with finger prints / palm prints of Rattan Kaur @ Pinder Kaur for examination and comparison and expert opinion which he had examined the questioned thumb impression / finger prints and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 58 of 291 submitted his detailed report on 15.01.2016 to Director, CFSL, New Delhi which was on record and was identified by witness as running into four pages and bearing his signature at point A and marked A1 and A2 are report bearing his signatures at point A which was then exhibited as ExPW37/D and Ex.PW37/E. The report was forwarded to SP CBI by Director CFS vide letter dated 28.01.2016. He identified the signature of Dr. Rajender Singh at point A and was then exhibited as Ex.PW37/F. He detailed that he had put seal of finger print division on each and every questioned thumb impression / finger prints.

138. He detailed the questioned thumb impression mark Q­41 to Q­ 45 (D­39), Q­46, Q­47 (D­40), Q­49, Q­50, Q­51, Q­54, Q­55, Q­56, Q­59, Q­61, Q­65, Q­67 and Q­68 (D­41) bears stamp of finger print division at point A and were Ex.PW37/G, 37/H and 37/I respectively. He then detailed questioned thumb impressions Q­2 and Q­3 bears stamp of finger print division at point A and they are Ex.PW37/J. Questioned thumb impression Q­4 bears stamp of finger print division at point A and the same were Ex.PW37/K. Questioned thumb impressions Q­5 to Q­7 bears stamp of finger print division at point A and they are Ex.PW37/L. Questioned thumb impressions Q­8 and Q­9 bears stamp of finger print division at point A and they were Ex.PW3/A­2, DX­1. Questioned thumb impression Q­10 bears stamp of finger print division at point A and the same were Ex.PW37/M. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 59 of 291 Questioned thumb impression Q­11 bears stamp of finger print division at point A and the same were already Ex.PW28/2. Questioned thumb impression Q­11A and Q­12 bears stamp of finger print division at point A and the same were already Ex.PW28/1. Questioned thumb impression Q­13 bears stamp of finger print division at point A and the same were Ex.PW37/N. Questioned thumb impression Q­14 to Q­19 bears stamp of finger print division at point A and the same were Ex.PW37/O. Questioned thumb impression Q­20 to Q­25 bears stamp of finger print division at point A and the same were already Ex.PW3/B. Questioned thumb impression Q­26 bears stamp of finger print division at point A and the same were Ex.PW37/P. Questioned thumb impression Q­27 bears stamp of finger print division at point A and the same were Ex.PW37/Q. Questioned thumb impression Q­28 and Q­29 bears stamp of finger print division at point A and the same were already Ex.PW37/C. Questioned thumb impression Q­30 and Q­ 31 bears stamp of finger print division at point A and the same were Ex.PW37/R. Questioned thumb impression Q­32 to Q­34 bears stamp of finger print division at point A and the same were Ex.PW37/S. Questioned thumb impression Q­35 bears stamp of finger print division at point A and the same were Ex.PW37/T. Questioned thumb impression Q­36 and Q­37 bears stamp of finger print division at point A and the same were Ex.PW37/U. Questioned thumb impression Q­38 bears stamp of finger print division at point A and the same were CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 60 of 291 Ex.PW37/V. Questioned thumb impression Q­39 bears stamp of finger print division at point A and the same were Ex.PW37/W. Questioned thumb impression Q­40 bears stamp of finger print division at point A and the same were Ex.PW37/X. (Q­1 to Q­40 contained in File Ex.PW3/A).

139. In cross examination by ld. Counsel for A­5 he detailed that he had photographed the questioned fingerprints and palm prints for the purpose of specimen prints and palm prints. He had supplied some photographs to the CBI which were already part of annexure­I & II of Ex. PW37/D and 37/E respectively.

140. PW­38 Sh. Harsimranjit Singh Bindra, Clerk in District Election Office, Tarn Taran, Punjab deposed about the email regarding voter ID No. LMY0930511 for 2007­2008 in respect of AC­24 Khadoor Sahib dated 09.12.2015. It was bearing impression of signature of Sh. Sushil Kumar, Election Kanungo and was exhibited as Ex.PW38/A. Vide this email voter lists were forwarded to IO/Insp. A.K. Saini and showed at sl.no. 281 the name of voter Shinder Kaur w/o Sh. Sakatar Singh, H.No. 34, the entry is mark X to X1 whereafter the same is exhibited as Ex.PW38/B.

141. He detailed that the voter list for the year 2008 showed name of voter Bhupinder Kaur w/o Sh. Sakatar Singh, H.No. 34 at sl.no. 258 CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 61 of 291 and was Ex.PW28/C. Witness detailed both the lists the voter ID no. remain the same i.e. LMY0930511. The name of voter is changed from Shinder Kaur to Bhupinder Kaur which entry is mark Y to Y1.

142. In cross examination by counsel for A­2 and A­4 he detailed that list Ex.PW38/B and Ex.PW38/C are computer generated copies and admitted that no certificate u/s 65B of Indian Evidence Act, has been issued in support of above. He also admitted that the above mentioned list were in Gurumukhi script and they had not handed over the translation to the CBI.

143. PW­39 Sh. Ranjeet Kumar Pandey detailed that on 29.08.2014 he was posted as Insp. CBI, Special Crime­1, New Delhi and was entrusted a preliminary inquiry no. PE 5 (S) 2014 by the then SP of the Branch wherein it was alleged that four files are missing from L & B Department, Govt. of NCT of Delhi. The persons whose names were recommended by L & B Dept., Govt. of NCT of Delhi through the files to DDA for allotment of alternative plots were non­ existent and the that file no. F32(21)/43/89/L&B in the name of Smt. Rattant Kaur was non­existent at the office of the L&B Dept., Govt. of NCT of Delhi. It was revealed that L & B Dept. vide letter no. F32(21)/43/89/L&B/Alt/20735 dated 28.03.2003 recommended allotment of alternative plots in favour of Smt. Rattan Kaur w/o Sh. Bachan Singh R/o Oak/Dak Estate, Dehradun, Massoorie Road and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 62 of 291 subsequently DDA allotted plot no. 262, Block A, Pocket­II, Sector­ 17, Dwarka in her name. It was found that payment of about 11,98,000/­ was deposited by one Davender Kumar s/o Late Sh. Mange Ram. The file could not be traced. Records of DDA, scrutiny of land record of Govt. of NCT, Delhi and verification of allottee Smt. Rattan Kaur revealed that Smt. Rattan Kaur was non­existent / fictitious person. The plot of land was purchased by Sh. Davender Kumar in his name. During the inquiry, commission of offences surfaced on the part of Sh. Swaran Singh Malhi, the then UDC/dealing clerk, Badrul Islam, Deputy Director (Alternative) L&B Dept. in connivance with private persons namely Sh. Davender Kumar and other unknown persons therefore he recommended registration of the case for allotment of alternative plot to non­existent / fictitious person on the basis of forged records who subsequently got allotted alternative plot. He further detailed that he made the complaint to the SP­AC­II Branch, New Delhi. He was then shown his complaint dated 28.05.2015 (D­1) on which he identified his signature at point A whereafter it was exhibited as Ex.PW39/A. He had handed over the documents to Sh. A.K. Saini and handing­taking over memo dated 01.07.2015 and was then exhibited as Ex.PW39/B (D­5).

144. In cross examination by Sh. Javed Akhtar, ld. Counsel for A­2 and A­4 he detailed that the matter initiated from self contained noting received in his Branch from CBI, AC­II Branch alleging missing of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 63 of 291 four files of L & B Department, Govt. of NCT, Delhi, on the basis of which the then SP registered a preliminary inquiry on PE­5 (S)/2014 SC­I and marked it to him. The self contained note was written by SP AC­II Branch, CBI.

145. He did not find during course of preliminary inquiry that any complaint had been lodged by L&B Dept. regarding missing of those files and/or allegations regarding allotment of alternative plots to fictitious persons. He detailed that case was already registered in the AC­II Branch and during course of investigation of that case the facts regarding self contained note came into the knowledge of SP AC­II. He further stated that during course of his investigation he did not come across any witness who could ascertain the status of allottees being that as/or of LR's of the original land owners.

146. During cross­examination he affirmed that he collected the bank documents pertaining to payment made to DDA by Davender Kumar from State Bank of Bikaner and Jaipur which was connected with payment made to DDA, which information / material he had handed over to the concerned IO. He detailed that during his inquiry he came to know that the land against which alternative plot was allotted did not belong to Smt. Rattan Kaur and further during the inquiry Rattan Kaur could not be traced since her address was fictitious and no such person ever resided at the address given in the allotment papers.

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147. He collected the dispatch register etc. from the record room of the L&B Department but could not recollect whether there was a consignment register or not. He collected LAC record and forwarded to Sh. A.K. Saini. He was then cross examined by Sh. Suyash Sinha, Ld. Counsel for Devender Kumar (A­3) wherein he stated that no evidence emerged during preliminary inquiry which may suggest that accused Davender Kumar had influenced any public servant in any manner. He was also cross examined by Sh. Ran Vijay Kumar, Ld. Counsel for Pinder Kaur @ Bhupinder Kaur (A­5) wherein he stated that at the stage of preliminary inquiry no such evidence has emerged which may show that Smt. Rattan Kaur had ever influenced the officials of L&B Department for the alleged allotment of the alternative plot however the fact that there was no role of Smt. Rattan Kaur in the alleged conspiracy was denied.

148. PW­40 Sh. Rajender Singh Beniwal was practicing Advocate at Tis Hazari Courts. He was a Notary and was shown documents Ex.PW37/A, PW37/K, PW40/A, PW37/L, PW3/A2, DX1 with attestation of Notary, however, he denied the attestation of the thumb impression of smt. Pinder Kaur on all the above documents.

149. He had handed over certain documents comprising of portion of his registration, sample/specimen, stamp and copy of registration to IO/Insp. A.K. Saini, which memo was then exhibited as Ex.PW40/B. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 65 of 291

150. He denied having known Smt. Rattan Kaur, wife of Sh. Bachan Singh and two witnesses Devdas and Vijay Kumar Pandey as mentioned in the Ex.PW37/J (page 14/C of D­9). He denied having attested the photographs affixed on Ex.PW37/YL. He stated that specimen rubber seal impression Ex.PW40/D was totally different from his original seal and demonstrated that the word ATTESTED on documents exhibited on the day of his recording statement was different as he used to write as "A T T E S T E D". He was not cross examined.

151. PW­41 Smt. Harbhajan Kaur wife of A­2 Swaran Singh Malhi knew Smt. Pinder Kaur W/o Late Skatar Singh being sister of her Devrani Kulwinder Kaur. She was shown the file already Ex. PW7/A (D­9) and the photograph at page no. 39, 46 and 53 of the file affixed at point A on the pages already Ex. PW37/O, Ex. PW3/B and Ex. PW37/S. She identified that the photographs are of Smt. Pinder Kaur W/o Late Skatar Singh. She was then cross examined by Sh. Ran Vijay Kumar, wherein she denied having known any Rattan Kaur. She deposed that Pinder Kaur visited Delhi twice first time in the year 1992 and then again in 2005. She also detailed that Pinder Kaur visited Delhi in the year 2004 when her sister­in­law has expired as she had gone to Faridabad.

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152. PW­42 Sh. Prakash Kumar Secretary, L&B department, Govt. NCT of Delhi during 2002­2004 was Chairman of Alternate Plots Recommendation Committee which he chaired with Joint Secretary, L&B, Deputy Director, Alternate Branch being other members. He was shown the Minutes dated 04.02.2003 qua meeting held on 03.12.2002. He had presided over the said meeting and identified his signatures at point­ B. He also identified the signatures of Sh. Subash Gupta at pt­A, that of Sh. Z.U. Siddiqui at pt­C and Sh. Badrul Islam at point­ D on all the pages and the minutes which were already Ex.PW17/D­2 (D­52).

153. He detailed that as per the minutes 18 cases were recommended in terms of Annexure­A, two cases were rejected in terms of Annexure­B and 9 cases were ordered to be re­examined in terms of Annexure­C. He detailed that the applications for allotment of alternative plots in lieu of acquired land are moved before the Deputy Director, Alternative Branch, who after processing the whole case and verifying the revenue records and obtaining reports from the LAC and other relevant documents, puts up the processed file before the Committee for consideration. After the conclusion of the meeting, Deputy Director, Alternative who was the custodian of the files, prepares minutes of the meeting and gets it signed by the members.

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154. He detailed that after the meeting the draft minutes were put up by the Deputy Director through Joint Secretary and Deputy Legal Advisor to the Secretary, L&B. After correction they were put up by the Deputy Director to the above mentioned officers for final signature. He further detailed that all the papers including original minutes of meeting, were kept in the custody of alternate branch headed by Deputy Director i.e. Badrul Islam. He detailed that the case of Rattan Kaur wife of Sh. Bachan Singh was recommended in the said meeting as mentioned at sl. no. 5 in annexure­A of the minutes of meeting Ex.PW17/D­2 (D­52). As per rules and practice Deputy Director, Alternative being the Head of the Branch had to process all such files and obtain revenue record and LAC reports to verify the correctness of the averments made by the applicants. There was even a provision for personal verification of the records by the Alternative Branch. He detailed that Sh. S.S. Malhi remained present in the meeting alongwith Mr. Badrul Islam being dealing assistant in the alternative branch and the committee relied on the documents produced by Deputy Director, Alt. Branch in the meeting who was assisted by Sh. S. S. Malhi who also was the custodian of the record.

155. He was then cross examined by Sh. Chander Maini, ld. counsel for A­1 wherein he admitted that he being the Chairperson of the committee was the most senior and Sh. Badrul Islam was the most junior in the committee. He denied that any member could have made CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 68 of 291 a decision of rejection of any proposal and vol that committee worked as a whole and admitted that the final decision of the committee was based on consensus. He denied that 18 recommendations were based on his sole view and vol. that recommendations were based on the records which were processed by the Alt. Branch and put up before the committee. The draft minutes were prepared by Badrul Islam as Head of the Alternative Branch. The information of schedule of meeting was provided to each member. He detailed that the documents were shown or discussed during the meetings along with the report / verification done by the alt. Branch with Revenue Wing of L&B Department as well as concerned Land Acquisition Collector. The documents were perused during the meeting by all the members of the committee.

156. He admitted that letter already Ex.PW2/B (D­9) was issued by Badrul Islam in pursuance of the recommendations of the committee however he denied that the documents kept before the committee during the discussions were prepared and verified by different branches local authorities concerned etc.

157. He confirmed during cross examination that documents put up in the committee were verified by the Alt. Branch of L&B Department headed by Badrul Islam. He denied that the documents were verified only by alt. Dept of L&B and stated that they were verified by other branches including Revenue and Legal Authorities. He denied that as a first step after receipt of application, verification from LAC is called, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 69 of 291 and vol. that first the annexures which are given along with the applications are scrutinized and deficiency memos are issued in case any required documentation is not complete. Only in case of applications having required documentation the process of verification from revenue branch and LAC was done.

158. He admitted that the Revenue Department of LAC makes its complete report. He could not remember that thereafter the applicant is personally called and original documents are scrutinized in their presence by the Revenue Branch.

159. He admitted that as a mandate documents i.e. Revenue record pertaining to Jamabandi, Katouni, mutation, payment certificate issued by LAC/SDM, affidavit of the applicant or dependent etc and also copy of judgment if available from the LAC Court on judicial side and two passport size photographs, one election I card or ration card duly attested by the Gazette Officer, Indemnity bond etc. are placed. He then vol. that he could not remember whether the indemnity bond was also required or not and could not recollect that after receipt of the aforesaid documents LAC issued advertisement calling upon objections.

160. He admitted that LAC is not under the control of L&B Department and vol. that LAC is not a Department but a designation under the Revenue Department of the Government. He admitted that CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 70 of 291 LAC submits a report on the application to the L&B Dept. He could not recollect the procedure followed by L&B Dept. to the extent, that on receiving of a favorable report / recommendation in favour of the applicant the Record Clerk of Alt. Branch opens a new file however he denied that thereafter verification report was called by Record Clerk of Alt. Branch of L&B Department seek reaffirmation/ re­verification from LAC.

161. PW­43 Smt. Mandeep Kaur was Sarpanch of Village Nagoke from 2013 till 2016. She was shown the perpetual lease dated 20.07.2004 in the name of Smt. Rattan Kaur wife of late Sh. Bachan Singh, R/o H. No. 3, Dak Estate, Massouri Raod, Dehradun already Ex. PW3/B (D­9) and Ex.PW37/O (D­9). After going through the perpetual lease she stated that the 'coloured' photograph pasted on the first page of the perpetual lease at point, already 'A' is of Smt. Pinder Kaur wife of Sh. Skattar Singh whom she also identified during deposition being physically present in the court as the resident of the village of which she was Sarpanch.

162. PW­44 Sh. Charanjeet Singh Malhi, brother of A2 Sh. S. S. Malhi was called as witness, however due to his demise, his deposition could not be completed.

163. PW­45 Sh. Mohinder Singh Jassal was working as Civil Surgeon, Taran Taran, Punjab in September 2015. He had issued letter CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 71 of 291 dated 30.09.2015 stating the issuance of death certificate bearing no. 11014 pertaining to Sh. Sakatar Singh s/o Sh. Santok Singh, place and date of death­Nagoke on 24.01.2007, Tehsil­Khadur Sahib, District Tarn Taran on 03.05.2012 Ex.PW45/A. The death certificate was forwarded with letter Ex.PW45/A was in Gurumukhi Language and he translated it in English during his deposition.

164. PW­46 Sh. Suresh Chand Kaushik was working as UDC in DDA, Land, Sales Branch (Residential) during the year 2002 to 2004. In the year 2002, he was working as UDC and was attached with Programme Assistant, LSB(R). He was dealing with work pertaining to allotment of alternative plot along with Sh. K. K. Sharma, Programme Assistant. He stated that letter Ex.PW2/B (F.32(21)/43/89­L&B/Alt. 20735 dated 28.03.2003) was first received in DDA on 01.04.2003 vide diary no. 3569 and was in his office on 03.04.2003 vide diary no. 15­R and after being endorsed to senior officers i.e. Sh. K.D. Reddy, Dy. Director to Asst. Director Sh. S. N. Gupta was received back by Program Asst. Sh. K.K. Sharma on 07.04.2003. It was then received by him on 09.04.2003, whereafter vide his noting dated 09.04.2003, file no. F­27(8)/2003/LSB(R) was opened pertaining to allotment of alternative plot to Smt. Rattan Kaur wife of Sh. Bachan Singh. He stated that vide draw list result of program no. LSE(R)D00034 was announced through which Smt. Rattan Kaur w/o Sh. Bachan Singh was alloted plot no. 262 in pocket­ CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 72 of 291 2 block A sector­17, measuring area 270 sq. mt. in Dwarka Residential Scheme. The list was then exhibited as Ex.PW46/A. He was then shown the page no. 2/N of noting portion of file Ex.PW7/A(D­9) the draw of lots for allotment of alternative residential plots of Dwarka, Rohini and Narela having been held on 29.05.2003 under vigilance of two judges from outside DDA and the result been confirmed by VC / DDA in file no. F.1(4)/2003/LSB(R). He stated that after approval of result of draw from VC/DDA the file was sent to System Department of DDA to generate the allotment letters of the successful recommendee. Demand/ allotment no. F.27(8)/2003/LSB(R)/5813 dated 27.06.2003 already Ex.PW7/C (at page no. 8C and 9C of the file D­9) regarding allotment of plot no. plot no. 262 in pocket­2 block A sector­17, measuring area 270 sq. mt. in Dwarka Residential Scheme was put up for signature of Dy. Director, by him vide noting dated 27.06.2003 on which he identified his signature at point already A and that of Sh. K. K. Sharma, Program Asst./DA at point already B. The Deputy Director signed the demand­cum­possession letter Ex.PW7/C, wherefater he sent the file to dispatch the demand letter which was then entered in property register at sl. no. 262 page no. 62 in the respective property register and in the meantime a corrigendum letter bearing no. F.27(8)/2003/LSB(R)/6057 dated 02.07.2003 Ex.PW46/B was received from System Department regarding Provisional Rates which was put up by him on 30.06.2003 against his noting.

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165. He deposed that copy of the demand letter Ex.PW7/C was then endorsed to Joint Secretary, L&B (Dept), Vikas Bhawan, IP Estate, New Delhi and the letter was dispatched at the address of Smt. Rattan Kaur w/o Sh. Bachan Singh R/o Dak Estate, Mausoori Road, Dehradun. However, the letter was returned back with the remark "YEH DAK PATA DAK GHAR BHAGWANTPUR ME NAHI HI, MASOORI ME TRY HETHU VAPIS" on 09.07.2003. The POD returned back by the postal department record was exhibited as Ex. PW46/C. The office copy of the same was already on record as Ex. PW46/B and the letter sent to Smt. Rattan Kaur was already Ex.PW7/D.

166. He stated that as the letter was received back from the postal authorities a note was put up on 11.08.2003 by Sh.K.K. Sharma, Programme Assistant/Dealing Assistant for procuring the complete address of allottee Smt. Rattan Kaur and the file was submitted for orders that the corrigendum letter dated 02.07.2003 which was issued to Smt. Rattan Kaur w/o Sh. Bachan Singh R/o Dak Estate, Mausoori Road, Dehradun has been received undelivered, though the allotment letter which had been issued under the same address has not been received back. In this background, the requisite orders were sought from the superiors.

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167. He detailed that Smt. Rattan Kaur vide her letter already Ex.PW47/M at page no. 20/C addressed to Deputy Director submitted the documents i.e. affidavit Ex.37/J, undertaking ExPW37/K, original bank challan Ex. PW46/D, photo of herself and her signature duly attested by notary Ex PW37/L, voter­ID card Ex. PW40/A and specimen of thumb impression already Ex. PW3/A­2, DX1 which was then marked by Deputy Director LA and Assistant Director LA on 02.09.2003 and was put up by him on 05.09.2003 in his handwriting under his signatures which he then exhibited as Ex. PW46/E. He detailed that the file was marked to Program Assistant and Assistant Director R who sent this file to AAO (billing­I) on 08.09.2003. The Account Officer (billing) issued certificate regarding encashment of the amount Rs. 11,98,000/­ vide challan no. 10283303 dated 17.07.2003. After receipt of the NOC from accounts branch, he put up a possession letter on 26.09.2003 Ex. PW46/F. After the file was processed through Program Assistant, Assistant Director (LA), Deputy Director (LA) and Director (RL) the approval for issuance of possession letter to the allottee was ordered by Director (RL) on 01.10.2003.

168. The possession letter no. F­27(8)/2003/LSB(R)/9245 dated 03.10.2003 (Ex. PW7/E) was issued to the allottee Smt. Rattan Kaur and was sent at her address of H. No. 3, Dak Estate, Mausoori Road, Dehradun. Copy was endorsed to the Director (Planning)Dwarka, Joint CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 75 of 291 Director (Survey) Dwarka for handing over the physical possession of the above said plot and Assessor and Collector of Assessment and Collection Department, MCD. However, the Assistant Director (Survey) vide his letter no. F­12 (1385)/2003/Dwarka/Planning/913 dated 03.12.2003 (Ex. PW7/F) informed that the allottee did not turn up to take the possession on due date despite expiry of the date, on which he put up noting dated 23.12.2003 requesting to write a letter to allottee to deposit the penalty for not appearing to take over the possession uptill the date of 03.10.2003. The noting was then marked­ X2, wherefater the letter (already) Ex. PW7/G, F­ 27(8)/2003/LSB(R)/144 dated 06.01.2004 was issued to the allottee. The Joint Director (Survey) vide his letter dated 22.01.2004 (page no. 27/C) (already) Ex. PW28/3 forwarded the possession slip (already) Ex. PW28/1 in respect of plot no. 262, pocket­2, Block­A, Sector­17, Dwarka vide which the allottee Smt. Rattan Kaur took over the possession of the abovesaid plot on 20.01.2004.

169. That Smt Rattan Kaur vide her letter dated 27.01.2004 (already) Ex.PW37/N requested for issue of Lease deed in respect of the above said plot and informed that her husband Sh. Bachhan Singh has expired. She submitted the original death certificate already Ex. PW24/C whereafter letter bearing no. F­27(8)/2003/LSB(R)/2873 dated 24.03.2004 Ex. PW46/G was issued to Smt. Rattan Kaur for stamping of Lease Deed in respect of the plot allotted to her.

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Accordingly, perpetual lease deed was issued on 23.03.2004 to allottee Smt Rattan Kaur for stamping from Collector of Stamps.

170. That Smt. Rattan Kaur vide her letter dated 07.04.2004 Ex.PW37/P submitted duly stamped lease deed for execution and accordingly, letter number F­27(8)/2003/LSB(R)/3549 dated 07.04.2004 Ex. PW46/H was issued to her.

171. He deposed that Smt Rattan Kaur was present on 19.07.2004 for execution of the Perpetual Lease in her favour. She requested for date of 20.07.2004 through her letter dated 19.07.2004 Ex. PW37/Q and her request was allowed by the then Dy. Director Sh. Sanjiv Kumar. Accordingly lease deed was executed on 20.07.2004. The office copy of the perpetual lease deed is identified as already Ex. PW3/B. He detailed that the original Lease Deed was handed over to Smt. Rattan Kaur by Daftari on 22.07.2004 and thereafter the file was sent to AAO LSA­3 (Account Branch) for noting down the particulars of the registered Lease deed on 24.08.2004 and noting was identified being that of Program Assistant Sh. Mohan Lal R. He detailed that the final Per Determined Rates (PDR) for the year 2003­04 was finalized and a letter to this effect was issued to Smt. Rattan Kaur on 25.09.2004 which he exhibited as Ex. PW46/I.

172. During cross examination he stated that he cannot say whether the recommendation letter for the allotment of the plot was received by CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 77 of 291 post or otherwise from L&B Department. He detailed that DDA makes a draw regarding the recommended persons and no document is summoned/taken from those persons in whose favour recommendation is made before the draw of plots. Demand letter in this case was issued only after allotment of the plot after the draw. He admitted the suggestion that procedural requirement of documents and payments etc regarding allotment of the plot in this case were complete.

173. He admitted that the specimen signature of Neeru Kumar Gupta Nitesh Kumar was obtained in his presence by the CBI officers. He detailed that during his tenure only one letter was issued to the allottee on the given address which was returned unserved and was put up on record. He further detailed that the demand letter and corrigendum letter were sent on the address provided by the L&B department and possession letter and lease deed papers were issued on the address which was provided by Smt. Rattan Kaur by supporting a Voter I­card attesting copy and affidavit. He then detailed that returned envelop was exhibited as Ex. PW28/D4.

174. PW­47 Sh. Mohan Lal was Programme Assistant in DDA, Land Sales Branch (Residential). He deposed in support of statements of PW7 Sh.K.K. Sharma and PW46 Sh. S. C. Kaushik He deposed that Smt Rattan Kaur made request for execution of lease deed vide letter dated 27.01.2004 (Ex.PW 37/N) and collected the copies for stamping CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 78 of 291 on 23.03.2004. She submitted stamp lease deed vide Ex.PW37/P on 07.04.2004. She tendered the original death certificate of her husband Sh. Bachan Singh Ex.PW24/C. Smt. Rattan Kaur was present on 19.07.2004 for execution of the Perpetual Lease in her favour and requested for date of 20.07.2004 vide her letter dated 19.07.2004 already Ex. PW37/Q.

175. He detailed that lease documents are issued in four copies by the Dealing Assistant. The allottee brings two independent witnesses in DDA for execution of lease deed, which are being counter signed by Lease Administration Officer (Residential) (LAO [R]), Programme Assistant and Dealing Assistant after receiving the copy of ID proof and verifying the same from the original of allottee as well as witnesses by LAO at the time of execution of lease papers.

176. In cross examination by Sh. Javed Akhtar, Ld. Counsel for S. S. Malhi (A­2) and Neeru Kumar Gupta (A4) he deposed on the same lines as PW46 and stated that DDA makes a draw regarding the recommended persons and no document is summoned/taken from those recommended persons before the draw of plots. Demand letter was issued only after allotment of the plot after the draw. He admitted the suggestion that all the requirement of documents and payments etc regarding allotment of the plot in this case were complete and legal. He further detailed that only one letter was sent to the allottee at the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 79 of 291 given address which was returned unserved and was put up on record. The demand letter and corrigendum letter were sent on the address provided by the L&B department and possession letter and lease deed papers were issued on the address which was provided by Smt. Rattan Kaur by supporting attested copy of Voter I­card and an affidavit. He detailed that the undelivered letter is already Ex. PW7/D, returned envelop Ex. PW28/D4. POD is Ex PW46/C. He denied the suggestion that the letter was sent on wrong address. He stated that the witnesses had signed in his presence though he did not remember their names and detailed that no photograph of the witness is required to be pasted on the lease deed. He denied that the specimen signatures were not taken in his presence and that he had signed on the sheets of the specimen signatures.

177. He was cross examined by Sh. B.K.Wadhwa, ld. Counsel for A­ 1 and subsequently Sh. Ranvijay Kumar, Ld counsel for accused no. A5 wherein he detailed that as per their record the allotment letter 27.06.2003 Ex. PW14/A was sent vide dispatch no. 5798. Subsequent letter dated 02.07.2003 Ex.PW14/B was sent because there was some revision of rate regarding year 2002­03 and was returned undelivered. Suggestion that due procedure laid down by DDA has not been followed which resulted into allotment of the plot in this case was denied. Witness was cross examined at length but nothing material came out from his cross examination.

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178. PW­48 Sh. Affak Ahmed deposed that he was working as Record Keeper at the office of Sub­Registrar II­B at Janak Puri in the year, 2014 and at the instance of the Sub­Registrar Jagdev Singh, visited the office of CBI. He detailed that the documents pertaining to registration of property plot no. 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi were not maintained in the office of Sub­Registrar IIB and were kept at the office of Sub­Registrar II at Basai Darapur Opposite Rajdhani college, Near Raja Garden Metro Station, New Delhi.

179. PW­49 Sh. Desh Bandhu Gosain, UDC O/o District Magistrate, West, Raja Garden, New Delhi was working as Record Keeper in the office of Sub­Registrar­II, Basai Darapur, New Delhi. He exhibited seizure memo dated 05.08.2015 bearing his signature at point X on the seizure memo as Ex.PW49/A through which he had given the original GPA of plot no. 262, Block­A, Pocket­II, sector­17 Dwarka, New Delhi bearing registration no. 42106 book no. 4 Vol­ 10080 pages 33 to 36 executed by Smt. Rattan Kaur, w/o late Sh. Bachan Singh, R/o H. No. 3, Oak Estate, Masoorie Road, Dehradun, Uttranchal in favour of Sh. Devender Kumar s/o Lt. Sh. Mange Ram, R/o H. No. 280, Tarun Enclave, Peetampura, New Delhi. The GPA was Ex.PW49/B. He also gave SPA bearing registration no. 42107 book no. 4 Vol­10080 page 37 dated 20.07.2004 of same plot containing one sheet only which was Ex.PW49/C. An original CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 81 of 291 agreement to sell bearing registration no. 14500 book no. 1 Vol­11737 page 124 to 131 dated 20.07.2004 was Ex.PW49/D. All the above documents were containing the original left thumb impression of allottee Smt. Rattan Kaur and the original signatures of Sh. Devender Kumar, purchaser of the plot. The total consideration of the property as per Agreement to Sell dated 20.07.2004 was mentioned as Rs. 15 lakhs and the registration amount mentioned was Rs. 1,12,500/­ which was paid.

180. PW­50 Smt. Usha Chaturvedi was working as Deputy Director, Alternative Branch and was successor of A­1. Her duties included recommendation of the alternate plots to the farmers whose land had been acquired by the government. She was also a member of the Recommendation Committee of L&B Department which recommended the allotment of Alt. Plots and was aware of the procedure. She detailed that during the year 2000­2003 the processing of, recommendation for allotment of alternative plots to the DDA, was governed under the scheme of Large Scale Acquisition, Development and Disposal of Land in Delhi 1961 which was launched by Govt of NCT of Delhi to rehabilitate the agriculturist / farmer whose land had been acquired by the Govt. for the planned development of Delhi. She stated, that, the procedure for the allotment of alternate plot to the farmers, stipulated, that the land must have been notified by the concerned LAC u/s 4 of Land Acquisition Act, the applicant must be CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 82 of 291 recorded owner in revenue record, he must have got the compensation from the concerned LAC and its certificate. He should apply to the L&BD under specified period, he or his family or his dependent should not have any other plot or residential property out of village abadi, the total land of the farmer should have been acquired and he should not have been left with any other piece of agriculture land.

181. She detailed that in case if someone had purchased land before notification u/s 4 of the Land Acquisition Act before 03.04.1986 his name must be mutated in the revenue record, but after 03.04.1986 the rules were amended and required that land must have been purchased 5 years earlier to the date of notification and shall be mutated in the name of applicant before the notification u/s 4 of the Land Acquisition Act. She further detailed that the persons who were not covered under the Welfare Scheme were those who were not recorded owners in the revenue record and or had not received compensation from the concerned LAC etc.

182. She detailed that in the year 1988 the Ministry of Home Affairs launched a Welfare Scheme through public notice for those farmers whose land have been acquired but they had not applied for any alternative plot, could apply for alternative plots by the cut off date as mentioned in the public notice i.e. 01.04.1989. In response to this public notice, number of applications were received in the L& BD.

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183. She detailed that in order to seek redressal in terms of the aforementioned investigation, the applications should have been in prescribed format alongwith the khatoni, LAC certificate and three photographs of applicant/farmer. The applications were received at the Centeral R&I Branch of L&BD and were diarized by the concerned official. From there they were sent to the concerned alternative branch where they were again diarized and given file number as per the zones. Thereafter, LAC certificates were sent to the concerned revenue district for verification and on receiving the verification report from the concerned revenue district, they were again cross checked by the Patvari/Kanoongo of the Land Acquisition branch of L&BD. She detailed that thereafter, the file was sent to Legal Cell of L & BD for further legal scrutiny of the application by the Deputy Legal Authority and after obtaining the legal opinion, a detailed brief of the file was to be prepared by the concerned Clerk and which was put up and routed through the Head of the branch i.e. the Deputy Director to various branches of the revenue / L&B department. She detailed further that after completing all these formalities, files were placed before the competent authority of L & B department to fix date for calling the meeting of Recommendation Committee. She explained the constitution of Recommendation Committee which comprised of Principal Secretary, Additional Secretary, Deputy Legal Advisor and Deputy Director of the Alternative Branch. She detailed that after approval of the date, notices were issued to the concerned members of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 84 of 291 the Recommendation Committee for the meeting where the cases were put up. In case of recommendation, the recommendation letter in triplicate were issued in three colours i.e, green colour letter for the DDA, yellow colour for the applicant and pink for office copy. These letters would also bear the booklet number and attested photograph of the applicant. These letters were then sent through Central R&I branch of L&B department to DDA and the applicant through post.

184. She detailed that the concerned dealing Assistant prepared the recommended letter having details of applicant's name, village name, khasra number and total area of acquired land in the prescribed proforma which were signed by the Dy. Director of the Alternative Branch. After recommending the alternative plot and issuing order, the file was consigned to the record room of L&B department.

185. She was shown the document already exhibit Ex.PW2/B recommendation letter pertaining to Rattan Kaur whereafter she detailed that word 'F­32' denotes the zone no. which is south, '21' denotes to Village Bahapur, '43' denotes Serial no. of the application/file, '89' denotes the year of receiving of the application and the date of issue of letter was 28.03.2003. She detailed that the booklet with sl. no. 1101 to 1150 was issued to Sh. S. S. Malhi, the then Dealing Clerk. The serial number on the letter i.e. 001142 is from the same booklet as per the stock register already Ex. PW19/J and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 85 of 291 stated that the letter had been issued by Badrul Islam as per the stamp affixed on the letter at mark "Q1".

186. She detailed that as per her letter, the file No. 32(21)43/89/L&B/Alt was not created in her Department as intimated by Central Record Room vide Ex.PW19/H (D­26).

187. She was cross examined by Sh. Chander Maini, ld. Counsels for A­1 wherein she detailed that departments are involved in order to ascertain and verify the application made by any individual for alternative plot and after positive report on the verification the file was put up before the Committee comprising of Secretary­cum­ Commissioner, Joint Secretary, Legal Advisor/ Dy. Legal Advisor and Dy. Director of the Alternative Branch. She admitted that it is the prerogative of the Committee either to reject or accept on the basis of the documents placed in the file. She detailed that the Committee takes a collective decision, however the Secretary L & B may return the file for reconsideration. She detailed that the Dealing Assistant generally prepares the agenda of the meeting and files are not shown / sent to the Members before the meeting as the same are available to the members during the meeting. She denied that the accused Badrul Islam performed his duty as Dy. Director L & B alternative as per law with prudence. She denied on the basis of the reports / inquiry / recommendation / documents etc. being sent by the other departments CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 86 of 291 that the same were put up before the Committee comprising of Senior persons and on the basis of the collective decision taken by the Committee the appropriate recommendations were made. She stated that she cannot say that the procedure in the present case was followed correctly. She was then cross examined by Sh. Javed Akhtar, ld. Counsel for A­2 and A­4 wherein she denied that under the nomenclature LAC the L & B department was to verify the applications of the farmers for alternative plots and detailed that said work is done by the LAC concerned which comes under the revenue department of Govt. of NCT Delhi. The report of the LAC concerned is cross checked by the kanoongo/patwari from the Land Acquisition Branch of L & B department. She denied that S.S.Malhi, the then Dealing Assistant performed his job as per the norms and procedure. She was further cross examination by Sh. Ran Vijay Kumar, ld. Counsel for A­5 wherein she stated that original documents were not available with the Department and were not available in the Central Record Room of L&B Dept. and hence were not shown to her. However, despite lengthy cross examination nothing material came out.

188. PW­51 Sh. Sanjay Kumar was posted as Inspector, CBI in AC­II, New Delhi in the year 2015 and during investigation of the case RC 4 (A)/2015 had seized several documents from the residence of Mr. Neeru Kumar Gupta and one original file from the office of Land CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 87 of 291 & Building Department, ITO, New Delhi. Since the documents were relevant for investigation in this case as well and other cases registered against Badrul Islam, on request of Sh. A.K. Saini, IO of this case he handed over copy of documents against production­cum­receipt memo dated 14.10.2015 which he exhibited as Ex.PW51/A (D­51). He then stated about the photocopies of documents which were found and seized during search of residential premises of Sh. Neeru Kumar Gupta which are already Ex.PW35/A, Ex.PW51/C and Ex.PW35/C as the original were in RC No. 4(A)/2015. He handed over copy of documents which were originally seized by him in RC 4(A)/2015 vide search memo list dated 09.06.2015 and handed over to Sh. A. K. Saini in RC 3(A)/2015 vide his seizure memo dated 14.10.2015. In cross examination he stated that he did not visit the house of Neeru Kumar Gupta for search in the present case or in RC No. 4(A)/2015 personally. The documents seized in 4(A)/2015 were handed to him for seizure purposes only by IO who conducted search personally at the house of N.K.Gupta.

189. He detailed that the copy of statement of one Ms. Mamta (D­54) was annexed to the photocopy of decree of petition for dissolution of marriage of Mamta and Anuj Gambhir, for the purposes of verification for re­marriage with Mahesh Kumar Gupta, brother of accused Neeru Kumar Gupta which statement of Mamta which he exhibited as CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 88 of 291 Ex.PW51/E, on which Sh. Neeru Gupta and S.S. Malhi both had signed as witnesses, which he exhibited as Ex.PW51/E.

190. He further exhibited the photocopy of small original diary (D­

55) which bears the name of Sh. S.S.Malhi and his telephone numbers as Ex.PW51/F.

191. He detailed that he had recovered pink colour office copy of allotment letter bearing no. F.32(50A)/157/89­L&B/ALT/20461­462 dated 26.03.2003 bearing sl. no. 001144 in favour of Sh. Rajender Kumar s/o Sh. Prahlad Kishan, R/o Village Rangpuri, Delhi from house search of Neeru Kumar Gupta, which he handed over to Sh.A.K. Saini, Insp. The original had been given to the IO of RC 3A/2014, which matter is pending in the court of Sh. Ajay Gulati, ld. Spl. Judge, CBI and the same was exhibited as Ex.PW51/G (D­58) after requisitioned the original document from the Court of Sh. Ajay Gulati, ld. Spl. Judge, CBI.

192. He further exhibited the copy of the ration card pertaining to Sh. Rajender Kumar s/o sh. Prahlad Kishan, R/o C­1/2, Rajender Nagar, Sahibabad, District Ghaziabad, UP as Ex.PW 51/H (D­56).

193. PW­52 Sh. Lalit Fular, DSP, International Police Cooperation Unit (IPCU) CBI, New Delhi was posted as Inspector in Branch AC­II, CBI, New Delhi in the year 2015. On 09.06.2015 he prepared a team CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 89 of 291 consisting of himself, SI Devender Kumar, SI Suraj Pal, Ct. Ms. Lokesh Rani and Ct. T.N. Tripati along with two witnesses namely, Sh. K. C. Gupta and Sh. K. S. Chawla, both from Bank and reached the premises of Sh. S.S.Malhi at at around 7.35AM. After the search, search list was prepared which was Ex.PW13/A (D­4), and was bearing his signatures at point A.

194. In cross examination by Sh. Ran Vijay Kumar, ld. Counsel for A­5 Pinder Kaur he stated that the team had offered personal search for public witnesses who were part of search party and the memo of search carried the record of this fact whereafter he pointed out to the recording of the said fact from portion X to X1 on page 4 of D4 at which stage it was encircled. He stated that S.S.Malhi was present during the search personally.

195. PW­53 Insp. A.K. Saini, DSP, CBI, EO­V, Guwahati, Assam was posted as Inspector, CBI, Zone AC­II, ACU­VI, New Delhi in the year 2015. He detailed that in the present case one preliminary inquiry (PE) was registered and conducted by Sh. Ranjeet Kumar Pandey, Inspector, SC­I , CBI, New Delhi who submitted a complaint already Ex.PW39/A on the basis of which a regular case RC 3(A)/2015 was registered and the investigation of this case was entrusted to him. The FIR (RC) was Ex.PW53/A. He narrated that he collected the documents from DDA through the production­cum­seizure memo CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 90 of 291 dated 01.07.2015 already Ex.PW25/A from Sh. N. S. Bhati, UDC, Lease Administration Branch (Residential), DDA, Vikas Sadan, INA, New Delhi through which he seized the original file containing the recommendation letter pertaining to accused Rattan Kaur i.e. allottee of the alternative plot. The search list of the search conducted at the house of accused Devender Kumar dated 09.06.2015 was already Ex.PW18/A (D­3) on which he identified his signature at point A. On his behalf Sh. Lalit Fular, Inspector, CBI was deputed to conduct the search of the premises of accused S. S. Malhi and he handed over the search list already Ex.PW13/A (D­4). The documents were seized from Insp. Sh. Ranjeet Kumar Pandey who had filed the complaint vide handing­taking over memo Ex.PW39/B. He had also seized the documents from Sh. Daya Ram Khinchi, Manager, State Bank of Bikaner against production­cum­seizure memo Ex.PW25/B. He had also seized the documents against seizure memo Ex.PW49/A (D­7) from Sh. Desh Bandhu Gosain (UDC), Sub Registrar­II, Basai Dharapur, opp. Rajdhani College, New Delhi. He seized the copy of CFSL report dated 31.03.2015 and the certified copy of the charge sheet in RC No. 3(A)/2014 of ACU­VI/AC­II/New Delhi from IO Sh. N. V. N. Krishnan against production­cum­receipt memo dated 14.10.2015 Ex.PW53/B on which his signatures were at point A and that of DSP Sh. N. V. N. Krishnan at point B. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 91 of 291

196. He conducted search on 13.08.2015 at the premises of accused Smt. Rattan Kaur @ Smt. Pinder Kaur at H. No. 34 (dera of Heera Singh), Village­Nagoke, Tehsil­Khadur Sahib, Dist. Taran Taran, Punjab in the presence of two witnesses Sh. Chirag Saluja and Sh. Harish Bansal both bank officials and prepared a search list Ex.PW34/A. He then collected the documents through letter dated 25.08.2015 of Central Bank of India, Vikas Sadan Branch, New Delhi already Ex.PW21/A in response to his letter dated 25.08.2015. He then collected the documents vide letter dated 28.08.2015 already Ex.PW19/A from Sh. Ramesh Kumar, Deputy Secretary, Alt. Branch, L&B Dept. Vikas Bhawan, New Delhi through which he collected the non­availability report regarding the file No. 32(21)/43/89­L&B/Alt along with minutes of Recommendation Committee dated 03.12.2002 and other supporting documents.

197. He had collected the documents vide letter dated 03.09.2015 already Ex.PW22/A from State Bank of India, Vikas Sadan, INA Branch, New Delhi in response to his letter dated 28.08.2015 through which he received the attested first copy of challan mentioned therein and the copy of statement of accounts of DDA. He then collected the ten digit finger / palm print slips of accused Smt. Rattan Kaur @ Smt. Pinder Kaur through letter dated 08.09.2015 already Ex.PW37/C from Sh. Harinder Prasad, SSO­II (Finger Print), CFSL, CBI, New Delhi. He then through this letter dated 04.09.2015 already Ex.PW24/A of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 92 of 291 Sh. Mustafa Khan, Zilla Panchayat Adhikari, Dehradun and had received the information which pertained to the Death Verification of Sh. Bachhan Singh, S/o Sh. Randhir Singh, R/o 3 Oak Estate, Masoorie Road, Dehradun.

198. He collected the documents against seizure memo dated 15.09.2015 already Ex.PW24/B from Sh. Mustafa Khan, District Zila Panchayat Adhikari, Dehradun which were the proforma no. 6 of birth­ death registration niamavali­2003 of Uttranchal Government and the rules were already on record as Ex.PW24/D. He then collected the information vide letter dated 16.09.2015 already Ex.PW31/1 from Sh. Y. S. Aswal, ASP (Mails) Office of Chief Post Master General, Uttrankhand Circle, Dehradun non­existence of address H.No. 3, Oak Estate, Mussoorie Road, Dehradun. He also collected original file bearing no. F. 32(32)/28/99/L&B/Alt. against production­cum­seizure memo dated 22.09.2015 Ex.PW1/A. He then collected the documents through seizure memo dated 23.09.2015 already Ex.PW8/D from Smt. Sheela Devi, UDC, Sarvodaya Kanya Vidhyalay School, Tikri Kalan, Delhi on which he identified his signature on the said memo at point B. The documents were already on record as Ex.PW8/B and Ex.PW8/C.

199. He had collected documents through the letter dated 05.10.2015 already Ex.PW32/A from Asst. District Election Officer, Dehradun CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 93 of 291 and the letter was already on record as part of Ex.PW32/A which was "424­Dehradun, Vidhan Sabha, Nirwachan Chhetre Antargath Mathde Staloki Suchi". From list it was intimated that no such address i.e. H.No. 3, Oak Estate, Masoorie Road, Dehradun existed. He then collected the document vide letter dated 30.09.2015 already Ex.PW45/A from Civil Surgeon, Taran Taaran. The letter contained information pertaining to death of Sh. Sakattar Singh, S/o Santokh Singh, the husband of accused Rattan Kaur @ Pinder Kaur. Further he collected the information through the letter dated 07.10.2015 already Ex.PW19/F (D­26) of Smt. Usha Chaturvedi, Deputy Secretary, Alt. Branch, L&B, Vikas Bhawan, New Delhi vide which she had intimated that the file F. 32(21)/43/89/L&B/Alt. was not available in the branch and hence, it could not be said that it was created. The documents with the letter on record are already Ex.PW19/D (D­27), Ex.PW19/G (part of D­26), Ex.PW19/H, Ex.PW19/I, Ex.PW19/J. He had collected the document through the letter dated 16.10.2015 already Ex.PW32/B (colly.) from Asst. District Election Officer, Dehradun against which he had provided the copy of "14­Dehradun, Vidhan Sabha, Nirwachan Chhetre Mathde Staloki prsthavit Suchi".

200. He collected the documents vide seizure memo dated 20.10.2015 already Ex.PW49/E from Sh. Desh Bandhu Gosain, UDC, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 94 of 291 Office of Sub­Registrar­II, Basai Darapur, Delhi vide which he had seized the documents mentioned therein already on record as Ex.PW11/A (colly). and Ex.PW49/F. He collected the document vide letter dated 26.10.2015 Ex.PW10/A (D­32) from Office Superintendent, Land Acquisition Branch, L&B Dept. Govt. of NCT of Delhi. The document seized are exhibited as Ex.PW10/B. He collected the documents through the letter dated 27.08.2015 already Ex.PW23/A from Sh. R.K. Dang, NT/LA (SE) which is already on record as Ex.PW23/B. Further, he had collected the photocopy of letter dated 25.11.2014 of Head of Branch, CBI, SC­1, New Delhi already marked as Mark A­PW­9 written to Prof. Centre of Arabic and African Studies, School of Language and Culture Studies, JNU, New Delhi. The said letter was written seeking request to the University for translation in English of copy of Naksha Murthazaamin of Award No. 2059 of Village Bahapur, New Delhi and copy of jamabandi of Village Bahapur, New Delhi which were both in Urdu Language.

201. He had also collected the translated version of above document markA­PW9 already Ex.PW9/A (colly.) through the letter dated 08.12.2014 of Dr. Rizwanur Rehman, Asst. Professor, Centre of Arabic and African Studies, School of Language and Culture Studies, JNU, New Delhi. During the search the document i.e. Voter ID card, Adhar Card and photocopy of Death Certificate duly attested by CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 95 of 291 Sarpanch, Gram Panchayat, Nagoke, Tehsil and Block­ Khadur Sahib, District Taran Taran, already Ex.PW34/B (colly.) were seized. He had collected the sale document executed by A­5 in favour of A­3 already on record as Ex.PW49/B, Ex.PW49/C, Ex.PW49/D and the cheque for Saraswati Trading Company containing the signature of accused Devender Kumar bearing account number 01000028745 which is Ex.PW 53/C through the relevant seizure memo and the same was sent to CFSL for the purpose of seeking opinion.

202. He had also collected the voucher dated 16.07.2003 of State Bank of Bikaner and Jaipur Branch, Khari Baoli Branch, Delhi in favour of DDA for about Rs. 11,98,000/­ and commission Rs. 615/­ for preparation of pay order by Saraswati Trading Company, Naya Bazaar, Delhi whose partner accused Devender Kumar had signed the same which is Ex.PW53/D (D­43). Further he had collected the pay order for the above said amount from the bank through the relevant seizure memo Ex.PW25/B and the pay order is now Ex.PW53/E. He had collected the document vide letter dated 08.07.2015 already Ex.PW20/A from the Chief Manager, Khari Bawli, State Bank of Bikaner and Jaipur, Delhi mentioned therein.

203. He had also collected the assessment order dated 26.03.2007 already Ex.PW18/B issued by Sh. S. K. Mehra, Deputy Commissioner of Income Tax, Central Circle 10, New Delhi. He had also collected CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 96 of 291 the copy of charge sheet in case RC No. 3(A)/2014 from the IO of that case Sh. N. V. N. Krishnan vide the seizure Ex.PW53/B and the charge sheet is Ex.PW53/F. He had also collected the attested copy of the receipt issued out of recommendation form of Alternative plot, South Zone from Deputy Secretary, L&B Dept., Govt. of NCT of Delhi, Vikas Bhawan, I.P. Estate, New Delhi, Ex.PW 53/G (colly.)

204. Further he had also collected the attested copy of file head register (South Zone) w.e.f. 01.02.1994, new application form already marked Ex.PW19/1, attested by Deputy Secretary L&B Dept., Govt. of NCT of Delhi, Vikas Bhawan, I.P. Estate, New Delhi. He had collected the letter dated 14.11.2014 already Ex.PW27/1 (D­62) of Sh. Ajay Kumar, ADM/LAC (SE) vide which the copy of award No. 2059/1969­70 along with Naksha Mutazammin was collected. He collected the documents vide the letter dated 01.12.2015 already Ex. PW6/A of Sh. Bindesh Kumar, Deputy Director, DDA, LA (Residential) DDA (D­63).

205. Further a letter dated 30.11.2015 by SP Sh. Ajay Kumar, CBI was sent to Director, CFSL, New Delhi forwarding list of questioned documents, list of specimen signatures / writings of accused persons namely, Badrul Islam and Devender Kumar, list of specimen finger prints and palm prints of accused Smt. Pinder Kaur @ Smt. Rattan Kaur, list of admitted documents pertaining to accused Badrul Islam CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 97 of 291 and a questionnair was sent alongwith this letter and he identified signature of Sh. Ajay Kumar at point A and the letter was Ex.PW 53/H (colly.) (D­64). He had collected the documents through production­cum­seizure memo dated 17.11.2015 already Ex.PW12/A from Sh. Amit Naggi, S/o Lt. Sh. Ashok Naggi, R/o G­8/117, Third Floor, Sector­16, Rohini, Delhi on which he identified his signature at point B on the said memo. He had collected the death certificate of Sh. Ashok Naggi which was already on record as Ex.PW12/B. He had also obtained specific signature / initials of accused Badrul Islam (now expired) on 21.08.2015 in presence of witness S. Surender Singh, Chief Manager, Dena Bank, CGO Complex Branch, Lodhi Road, New Delhi on the white paper sheet mark S­1 to S­10 and all the 10 sheets bear his signatures at point A and that of S. Surender Singh at point B. He also obtained the signature of accused Badrul Islam on all the pages at point C. The sheets are Ex.PW53/I (colly.).

206. Further he had also taken the specimen signatures / initials / writings of accused Badrul Islam on 23.10.2015 in presence of witness Sh. Sunil Malhotra, Chief Manager, P&B, Bikaji Cama Place Branch, New Delhi on the white paper sheet mark S­11 to S­31 which are already Ex.PW4/A. These all sheets bear his signature at point B and also obtained the signature of accused Badrul Islam on all the pages at point C. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 98 of 291

207. Further he had also taken the specimen signatures / initials / writings of accused S. S. Malhi on 09.06.2015 in presence of witness Sh. Nitin Narang, Manager (MASD), PNB, Head Office, Bikaji Cama Place, New Delhi on the white paper sheet mark S­86 to S­118 which are already Ex.PW33/A (colly). These all sheets bear his signature at point B and also obtained the signature of accused Badrul Islam on all the pages at point C.

208. Further he had also taken the specimen signatures / initials / writings of accused Devender Kumar on 09.06.2015 in presence of witness Sh. Nitin Narang, Manager (MASD), PNB, Head Office, Bikaji Cama Place, New Delhi on the white paper sheet mark S­32 to S­46 which are already Ex.PW33/B (colly) (D­70). These all sheets bear his signature at point B and also obtained the signature of accused Badrul Islam on all the pages at point C. He had also taken the specimen signatures / initials of Smt. Sheela Devi on 23.09.2015 in presence of witness Sh. Umesh Chand Ijral, Data Entry Operator, EPFO, Dwarka, Delhi on the white paper sheet mark S­76 to S­85 which are already Ex.PW8/E (colly) (D­71). These all sheets bear his signature at point C and also obtained the signature of Smt. Sheela Devi on all the pages already at point A.

209. He had also obtained specimen finger prints of Smt. Rattan Kaur @ Smt. Pinder Kaur of both hands on prescribed proforma of CFSL CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 99 of 291 already Ex.PW37/A (colly.) (part of D­72) in presence of S. Surender Singh, Chief Manager, Dena Bank, CGO Complex, Branch, Lodhi Road, New Delhi and in presence of Sh. Harinder Prasad, SSO­II (FP), CFSL, CBI, New Delhi on which he identified his signature at point B and that of S. Surender Singh at point C and also identified signature of S. Surender Singh as he had signed on the said sheets in his presence. He had also obtained specimen palm prints of both hands of accused Smt. Rattan Kaur @ Smt. Pinder Kaur on prescribed proforma of CFSL already Ex.PW37/B (colly.) (part of D­72) in presence of S. Surender Singh, Chief Manager, Dena Bank, CGO Complex, Branch, Lodhi Road, New Delhi and in presence of Sh. Harinder Prasad, SSO­ II (FP), CFSL, CBI, New Delhi on which he identified his signature at point B and that of S. Surender Singh at point C and also identified signature of S. Surender Singh as he had signed on the said sheets in his presence.

210. He was cross examined by counsel for A2. It is observed at this stage that A­1 Sh. Badrul Islam (accused no.1) had expired during the pendency of the proceedings and proceedings qua him are abated vide order dated 11.08.2021.

211. During cross examination he revealed that he had seized register of L&B Department where applications of the year 1989 were received which he then detailed that register was not seized and only the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 100 of 291 information was collected which was provided by the concerned department. He admitted that he was informed by the Department that the original registers qua entries pertaining to 1989 was not available.

212. He admitted that he had received information from L&B Department that five files of relevant village were not traceable. He had examined Sheela Devi himself. He stated that Dealing Assistant at the relevant time was S.S.Malhi. He admitted that in the year 1989 Sh. S.S.Malhi was not the Dealing Assistant and he joined the post of Dealing Assistant in 1999 and was transferred in the year 2011. He stated that he cannot admit or deny that S.S.Malhi was dealing only with South District. He did not remember who took over the charge from Satbir Singh. He had not examined the recorded owner of Khasra No. 607 of Village Bahapur. He do not collect any compensation register or examined the LAC in person.

213. He detailed that 18 cases were presented before the committee in meeting and could not remember as how many of them were recommended, rejected or re­examined and/or were of only one District or more. He had not examined any Tehsildar, Kanungo, Patwari who may have cross checked or verified LAC report. He denied that he did not find any evidence against N.K. Gupta. He stated no complaint during the period 2003­2015 i.e. from the date of recommendation till date of filing of the present RC was received. No person was examined from Punjab Textile in Lahore or anyone who CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 101 of 291 had been recommended of possession of Khasra No. 607 village Bahapur. He denied the case file of the present recommendation was available in the Department. He had examined Sheela Devi however she did not tell about the tracing of the missing files. In his further cross examination he detailed that he had been provided with a register by L&B Department which showed receipt of two applications pertaining to Village Bahapur, Delhi. There was no record of receipt of any application pertaining to this case. He was further cross examined by counsel for A­3 wherein he stated A­3 was doing business of rice trading, he had obtained bank statement along with search u/s 2A of Bankers Book of Evidence Act which was part of D­35 and both the documents were collected simultaneously. He had not received any evidence of A­3 having met personally with the other accused public servants then volunteered that on the date of execution of lease deed accused Devender was physically present along with N.K. Gutpa who was witness along with Pinder Kaur @ Rattan Kaur allotteee. He detailed that Devender entered in an agreement for sale with Pinder Kaur @ Rattan Kaur. He denied that during interrogation A3 disclosed that amount in DDA was deposited at the instance of Sh. Ram Kishan, 'mama' of A­3 Devender Kumar. In his cross examination by Sh. Ran Vijay Kumar he was asked as did he find any evidence during investigation of any direct or indirect relations between public persons or any other accused persons on which he replied that it was revealed that address of allottee Rattan Kuar was fake and no such person CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 102 of 291 existed. Later on it was established that Rattan Kaur was distantly related to accused S.S.Malhi. She is sister­in­law (sali) of Sh. Charanjeet Singh Malhi real brother of S.S.Malhi.

214. He explained that though his request for CFSL comparison of handwriting / signature of accused Badrul Islam, S.S.Malhi and Devender is 30.11.2015 and the report of CFSL which was exhibited as ExPW53/K is dated 27.03.2015 same is on account of the fact that a similar RC was earlier registered and the request were forwarded by other IOs in RC No. 3/12 and 3/14. Though he had collected specimen signature separately and also forwarded his request on 30.11.2015, since the material was same the receipt was relied upon. He also stated that during investigation of the aforementioned RC a report dated 27.03.2015 was collected during house search of A­4 Neeru Kumar Gupta. He also detailed that the payment in this case was made from the account of Sarsaswati Traders through partner Devender Kumar. He denied that there is no benefit / wrongful gain by the accused Rattan Kaur at the cost of DDA or that DDA has not suffered any wrongful loss.

215. Subsequent to the completion of the evidence statements of the accused persons under section 313 Cr.P.C. have been recorded wherein entire incriminating evidence was put before them.

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216. After the evidence and recording statements of accused persons u/s 313 Cr.P.C. were concluded and the matter was at the stage of final arguments, four applications were moved by ld. Sr.PP. He moved one application seeking correction in the language of written arguments tendered on record, as there was no challenge to the application it was allowed and a portion of arguments were re­framed.

217. Ld. Sr. PP on the same date also moved another application u/s 311 Cr.P.C. seeking recall of PW­51 Insp. Sanjay Kumar as part of his testimony did not find record of the proceedings conducted by him. No reply to this application was filed by any of the accused and on their no objection vide order dated 05.03.2022 application was allowed.

218. Another application was for seeking correction in exhibits which also was allowed for not being opposed and errors having been noted out of typographical nature.

219. It is observed that at the stage of final arguments/arguments on application u/s 311 Cr.P.C., the request for recalling of PW51 was agitated which was allowed being unopposed. PW51 was recalled on 05.03.2022 and again on 08.03.2022 for examination/cross­ examination and he detailed that Sh. Kadar Khan, Inspector, CBI had conducted the search at the house of accused Neeru Kumar Gupta under, his signatures and authorization since he had been permitted to carry out the search on account of order on his application u/s 93 CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 104 of 291 Cr.P.C. He then exhibited the document recovered and seized by IO/Insp. Kadar Khan after identifying his signatures on Ex.PW51/D i.e. search list. He further detailed that he had handed over the seized documents to Insp. A.K.Saini, vide memo dated 14.10.2015.

220. The record of file RC No.3(A)/2014 from the court of Sh. Ajay Gulati, ld. Spl Judge, CBI was called on request of prosecution, which was allowed by separate order.

221. Subsequent thereto, statement of accused qua the fresh examination u/s 313 Cr.P.C. came to be recorded, wherein the incriminating evidence was put and their response was noted.

222. Opportunity thereafter was given for arguments. Written submissions have also been filed on record.

223. I, first propose to take note of the written submissions filed on behalf of prosecution, wherein ld. Sr.PP has vehemently relied upon the deposition of prosecution witnesses and has painstakingly relied upon the portion of evidence recorded through them, on which basis he averred that the charges framed against accused persons are substantiated.

224. He opened his arguments while relying heavily on the statement of PW­50 Smt. Usha Chaturvedi and claimed that she has detailed and proved the guidelines qua the eligibility of the farmers whose lands CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 105 of 291 were acquired and their entitlement for rehabilitation by way of welfare scheme launched under the title "Large Scale Acquisition Development & Disposal of Land in Delhi 1961" as well as the process requisited to be followed by officials of Alternative Branch on receipt of applications of those farmers whose claims were compatible.

225. He relied upon her statement to stress upon the duties and responsibility of A­1 and A­2 being the officials in realm and Incharge. He claimed that PW­50 has testified that as per record it was the responsibility of A­2 to ascertain that the applications, were in order, in terms of eligibility supported, with documents such as the application, award of acquisition, certificate of compensation, photographs and the revenue documents to ascertain the eligibility criteria and call for verification from LAC, Revenue and Legal Department etc. He argued that PW50 has deposed that on due verification the files were presented in the meeting of recommendation committee of which A­1 being Deputy Director himself was member.

226. It is argued that with mischief, A2 gave fictitious verification report (relied on statement of PW51 Insp. Sanjay Kumar and PW1 Sh. Baidya Nath Jha), whereafter the file of A­5 Smt. Rattan Kaur was processed before the recommendation committee and her case was recommended as one of the 18 recommendations as per Minutes dated 03.12.2002. Despite the fact that her name never existed as land owner of Khasra no. 607, Village Bahapur, which was acquired by way of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 106 of 291 award No. 2059 dated 24.01.1968 and as per deposition of witness, the land was in name of Rai Saheb, Lala Sohan Lal, Munshi Gulab Chand and Shankar Dass, who also provided the compensation (reliance on statement of Kanungo (PW23), Patwari (PW10), Jamabandi (PW9/PW51). That A­1 and A­2 caused fictitious file in existence with the Department in connivance and in conspiracy with other accused (private persons). That no such file bearing no. No.32(21)/43/89/L&B/Alt. ever existed in the Department established from the statement of PW­50 Smt. Usha Chaturvedi whose report is then corroborated by the statement of PW­19 Dinesh Singh, Record Keeper, Alt. Branch.

227. He then stressed on the statement of PW42 Sh. Prakash Kumar, PW2 ZU Siddiqui and PW17 Subhash Gupta, members of recommendation committee to argue that the files were processed and verifications were placed before the recommendation committee. The deliberations pertaining to files took place in the meeting of 03.12.2002 wherein the members of the committee had no reason to suspect or doubt the verification having been carried by A­2 and believing the process to be in order the recommendation in favour of A­5 Rattan Kaur was issued who was the relative of A­2 S.S.Malhi. The recommendation letter Ex.PW2/B came to be signed by A­1 Badrul Islam in active connivance despite the fact that no such CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 107 of 291 eligibility existed in favour of Rattan Kaur whose real name was Pinder Kaur, w/o Sh. Skattar Singh.

228. He relied on the statement of PW­19 Dinesh Singh to stress the fact that file No. 2(21)/43/89/L&B/Alt was not available in Alt. Branch Ex.PW19/I further showed the entry of village Bahapur but no mention of the name of A­5 Rattan Kaur. He further argued that PW­ 19 showed mention of file no. 32/21/43/89/L&B having been mentioned at sl. no. 324 in receipt and issue of recommendation form.

229. He argued that on account of mischievous intentions A­5 Smt. Rattan Kaur secured recommendation of plot measuring 400 sq. yards in Dwarka against the acquisition Khasra No. 607, however, no such acquisition existed in her name as per Award No. 2059 dated 24.01.1968 of village Bahapur.

230. He relied on the statements of PW7 K K Sharma, dealing assistant, PW­46 Suresh Chand Kaushik, the then UDC and PW47 Sh. R. Mohan Lal, the then Programme Assistant (Retd. Asstt. Director/ DDA) who had processed the file for draw of plot based on the recommendation letter Ex.PW2/B and against the draw held on 29.05.2003 in which A5 Smt. Rattan Kaur succeeded in receiving allotment of plot no. 262 in pocket­2 block A sector­17, measuring area 270 sq. mt. in Dwarka Residential Scheme and thereafter received the possession of the aforementioned plot against which the payment CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 108 of 291 was received in DDA from the account of A­3 Devender Kumar (Reliance placed on PW20, PW21, PW22), who detailed that payment was made from the account of M/s Saraswati Trading company and deposited by challans Ex. PW21/B, Ex.PW21/C and Ex.PW21/D in the DDAHSS Account.

231. He claimed that it is shown from the statement of PW­47 Sh. Mohan Lal and PW­37 Sh. Harinder Prasad that at the time of taking over the possession and subsequently at the stage of execution of lease deed A­5 tendered false undertaking, voter I card and other documents knowing fully well of her fictitious identity and acquired the execution of lease deed with two stock witnesses namely PW14 Devdas and PW­ 15 Sh.Pappu Safai, Karamchari working with Advocates Arun Malik and Major Sunil Malik.

232. He argued that Rattan Kaur despite having not been delivered the possession letter and other communication from DDA participated in public hearing on her own and deposited all documents as is deposed by the witnesses specially PW­7 Sh. Kamal Kumar Sharma and PW47 Sh. Mohan Lal. Thereafter, the possession was acquired as is detailed by PW46. The lease deed was executed in her favour on 20.07.2004 and as per statement of PW­49 she executed an agreement to sale, GPA and SPA for transferring the rights and title in pot no. plot no. 262 in favour of A­3 Devender Kumar.

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233. He argued that in the aforementioned acts of co­accused A­4 Neeru Kumar Gupta actively participated and remained present physically during execution of documents and has secured attestation on the photo of A­5 Rattan Kaur @ Pinder Kuar using his contacts from PW­35 Sh. Deepak Chaudhary who at that relevant time was Addl. Standing Counsel. He detailed that engaging in the aforementioned acts and transactions, the accused persons have committed an offence within the domain u/s 419/420/467/471/120 read with section 468 IPC r/w 120 IPC and A­1 and A­2 being public servants are also liable for conviction u/s 13(1)(d) and 13(2) of PC Act.

234. Written submissions have also been filed on record by the accused persons.

235. I, propose to first deal with the written arguments of ld. Sh.Javed Akhtar for A­2 and A­4.

236. Opening his arguments first on premise of section 120­A and 120­B of IPC ld. counsel claimed that as per case of the prosecution there are allegations of misuse of powers against A­1 (since deceased) with the active support and participation of A­2, S.S. Malhi (the then UDC and dealing asst.) CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 110 of 291

237. He claimed that though, through the colour of deposition it is claimed by CBI that the file no. F­32(21)/43/89­L&B/ALT./20735 from which Ex.PW2/B the recommendation letter is generated is missing this fact is traversed through the statement of PW­8 Smt. Sheela Devi received the charge of all files by A­2 S.S.Malhi. He claimed that based on faulty and incomplete evidence, false accusations are raised by CBI.

238. He averred that during trial, PW­8; Smt. Sheela Devi UDC, PW­17 Sh. Subhash Gupta, then LA­ L&B Dept. and Member Recommendation Committee­Alternative Plot, PW­42 Sh. Prakash Kumar Shrivastava, then the Principle Secretary L&B Dept. and Chairman of recommendation committee­ Alternative plot "traversed the contents of statement of PW­50; Smt. Usha Chaturvedi who was the sitting Dy. Secy.(Alt.Branch) L&B Dept. at the time of PE and investigation consequent to registration of case. In view of above, he claimed that PW50 is not worthy witness and her statement is not reliable.

239. It is contended on behalf of A­2 and A­4 that Ex. PW­2/B was issued under due deliberation of the recommendation committee and A­1 alone was not competent to do so even with the help and active participation of A­2.

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240. It is argued that controversy could have been resolved if the investigation agency would have attempted to locate the real/rightful owner qua the plot, whose rights were exercised by an "Incompetent" person depriving him of his legitimate rights. It is argued that charge­ sheet is filed and is based on inclusive investigation.

241. Ld. Sh. Javed Akhtar contended that the CBI has outrightly disregarded the possibilities that the accused themselves may be victim of a fraud. A fraud, which has come under play, when a genuine recommendation was procured by a fraudulent person from L&B Dept. for onward allotment from the DDA.

242. It is contended that the file pertaining to Ex PW­2/B started in L&B Dept, in the year 1989 during which year neither A­1 nor A­2 were posted in Alt. Branch and hence the allegations of conspiracy cannot be linked to them.

243. He argued that CBI omitted to look into facts and circumstance as a whole and took the pieces out of certain circumstances by choice while disregarding the entire set of facts.

244. He averred that CBI had an option to ask L&B Dept. to revoke the Ex. PW­2/B and any plot allotted against the same to DDA, however no such steps qua cancellation were taken. He relied upon the following case law to draw strength to his arguments which are noted CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 112 of 291 as below: Rajasthan v/s Govind Ram Bagdiya & ors, (2003) Cr L J 1169; Jethsur SurangBhai v/s State of Gujrat, (1984) AIR(SC) 151:

1984 Cri LJ 152; Bhagwan Das Keshwani & another v/s State of Rajasthan, (1974) AIR (SC) 898; R.K. Khatri v/s State CBI (1996) Crimes 511 Mohan Singh v/s State of Rajsthan (2000) Cri L R 388; Jatha @Aziz Khan v/s State of MP (1986) 3 Crimes 163.

245. While coming to the arguments on the charge of section 415/416 and 419/420 IPC, he stated that in order to bring home the offence under section 419 IPC, the prosecution must first prove that accused pretended himself to be some other person or an imaginary person or knowingly substituted one person for another or represented that he, or any other person is a person other than he or such person other than what he really is Secondly by such process as above he must have cheated some innocent person.

246. He made submissions on the aspect of 'forgery viz impersonation' and claimed that prosecution shall prove first the document in question is a false document and secondly it should also prove that the document in question was prepared 'dishonestly' or 'fraudulently' within the meaning of section 464 IPC and that the intentions of the accused were dishonest within meaning of section 463 IPC.

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247. He averred further on the point of cheating / impersonation, and claimed that allegations of the nature that accused has impersonated with the dishonest intentions of ultimately resulting cheating being the only intention of the accused, must first be proved as a pre­condition to satisfy the ingredients, hence, the prosecution should establish that during acts and process of ultimate offence of cheating the accused impersonated.

248. It is argued that prosecution has failed to match the expectations of the ingredients detailed, in the statutory provisions to finally establish an offence having been caused by accused.

249. He then averred that A­1 and A­2 were, not holding any public posting in Alt. Branch during which period he alleged that prosecution claimed the conspiracy took place in the year 1989.

250. He claimed that the allegations of prosecution are interpretive of the fact that acts of accused persons were done by surpassing the authority and diligence of all other officials at different levels posted in L&B Department and that they were successful in influencing the three senior members of the recommendation committee despite the fact, that the seniors were the final authority qua the recommendations of the plots in lieu of acquired agricultural land in Delhi. Ld. Counsel further averred that the claim of prosecution is without any substance since the recommendation letter was processed and sent by L&B CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 114 of 291 Dept., Government of NCT to Land Management Commissioner, DDA through an independent channel after which the DDA made the allotment through a public draw by displaying a list of all the participants in public, however, no one in public objected to the alleged name of fictitious and non existent person.

251. It is argued that it is necessary for the prosecution to establish that, the impersonation was committed for the purpose of cheating or for the purpose of making profit or gain by illegal act or commission whereas admittedly as per statement of prosecution witnesses, no loss is caused to DDA.

252. He states that there is no such evidence to prove the ingredients of section 415 and 420 IPC. He then relied upon following case law:

Indian Oil Corporation vs. NEPC India Ltd. AiR 2006 SC 2780; Jeswantral Manilal Akhaney vs. State of Bombay AIR 1956 SC 575, Hari Prasad Chamaria vs. Bishan Kumar Surekha AIR 1974 SC 301, G.V. Rao Vs. LHV Prasad 2000 (3) SCC 693 (SC), Ajay Mitra vs. State of Madhya Pradesh AIR 2003 SC 1069, Abdulla Pogarkar vs. State UTI Delhi AIR 1980 SC 499, Prabhat Kumar Bose Vs. Shibdas Dutta 1994 Cr.LJ 1211 (SC) Hussain Umar vs. Dalip Singh AIR (1970) 1 SCJ 149; Mukkar Kaur vs. Satte of Punjab 1980 Cr.L.J. 1420, Gurnam Singh vs. Sate of Rajasthan 1970 Cr.L.J. (NDC) 215 (Raj), Swarna Singh vs. Sate of Punjab AIR 1957 SC CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 115 of 291 637, Asst. Collector Customs vs. Harbans Lal 1980 Cr.L.J. 618; C. Chellapan vs. Sate of Kerala AIR 1979 SC 1761, Tulsi Ram vs. Sate of UP AIR 1963 SC 666, Sate of Kerala vs. Vareed Pillai AIR 1973 SC 326, Harmanspreet Singh Ahluwalia vs. Sate of Punjab 2009 (7) SCC 712, SVL Murthy vs. Sate AIR 2009 SC 2717, Guru Bipin Singh vs. Chugtham Manihar Singh 1997 Cr.L.J. 724.

253. Ld. Sh. Javed Akhtar relied upon provisions of 195 Cr.P.C and claimed that the cognizance in this case is not sustainable. He relied upon the following case law : Daulat Ram vs. State of Punjab AIR 1962 SC 1206, MS Ahlawat vs. State (2008) 1 SCC 278, Arvind Kumar Aduika vs. State of NCT Delhi (2010) 173 DLT 738, CBI vs. Indra Bhushan Singh & Anr. AIR 2014.

254. He averred further as applicability of provisions of section 461/471 read with section 468 IPC and made submissions in support of A­2 and A­4. He then relied upon the following case law: Bihari Lal Gupta vs. State of Himachal Pradesh 1984 Sim. L.C. 303 at pp. 300­ 307 H.P.; 'Ram Pal Singh vs. State of UP' 1980 Cr L J 424 at p 426 (ALL.): Bisheshar Dayal vs/ State of UP (1971) 41 AWR 507 at page 509; Avinash Chand vs. State of Punjab (1983) Crimes 454 ; Mohammad Riaz vs. State of UP (1980) Cr. L J 369 at page 375 (ALL.); Abdul Karim Madar Saheb vs. State of Mysore, 1979 Cr L R CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 116 of 291 720; Abdur Rahim vs. Emperor AIR 1927 Nag.40 at page 41; Empress vs. Rango Timaji I.L.R. 6 Bom. 402; Madhavial Manishankar Trivedi vs. State of MP AIR 1960 MP 269; K. Sannaya AIR (1941) Mad.38; Arun Parshuram Sutar vs. Sate Maharashtra 1999 Crl.LJ 438 at p 441 (Bom); Akhil Chandra 1 LR 22 Cal. 1004; Delhi Lal vs. Dhaja Dhasi 1 LR 36 Mad. 392; Digamber Ram vs. Taran 411C. (Cal) 663; Gopalkrishna Menon vs. D. Raja Reddy 1983 Cr.L.J. 1599; AIR 1983 SC 1053; Vivekanand vs. Sate of UP 1969 AWR (HC) 337 at p 339; Basirul Haq vs. Sate WB AIR 1953 SC 2933.

255. After the arguments were filed by prosecution, rebuttal submissions were also tendered wherein even the earlier part of statements were denied and rebutted.

256. Ld. Sh. Vikram Singh Panwar tendered written submissions on behalf of A­3 Devender Kumar. At the outset, he detailed relevant dates in paragraph 3 after briefly mentioning the crux of the charge framed vide order dated 12.08.2016 against his client (A­3) and has pointed out that from the mentioning of the dates column wise in para 3 of his written submissions, it is apparent that the plot in question stood 'recommended' as well as 'allotted', almost 20 days before the Accused No. 3 was even alleged to have done any act relevant to the present case. As such, the alleged act of Accused No. 3 were done CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 117 of 291 subsequent to achieving the object of conspiracy. He claimed that any act done subsequent to achieving the object of conspiracy, would not make Accused No. 3 a part of the alleged conspiracy and relied on the judgements State through Superintendent of Police, CBI/SIT Vs. Nalini and Ors. AIR 1999 SC 2640 and Santoshanand Avdoot Vs. State 2014 (4) JCC 264 he also relied on Indra Dalal Vs. State of Haryana 2015 CriLJ 3174.

257. He then proceeded to submit that even otherwise the prosecution has miserably failed to produce even an iota of evidence so as to even suggest that the Accused No. 3 was in any manner involved in the alleged conspiracy. He claimed that Sh. Ranjit Kumar Pandey (PW­

39) who conducted the preliminary enquiry as well as Sh. A K Saini (PW53) who conducted the entire investigation of the case, categorically admitted in their cross­examinations that no evidence emerged during the entire investigation so as to show that the Accused No. 3 influenced any public servant in any manner and referred to cross examination dated 03.10.2019 of PW39 and dated 07.12.2021 of PW 53 conducted by him. He then stated that the aforesaid revelation by both the Investigating Officers during their deposition, completely exonerates the Accused No. 3 of the charge of conspiracy to commit criminal misconduct by a public servant or 120B IPC read with Section 13(2) read with Section 13(1)(d) of P.C Act, 1988.

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258. He proceeded to argue that it is not even the case of the prosecution or is established in the evidence produced by them during the entire trial, that the Accused No. 3 was in any way involved or facilitated either the preparation or use of the alleged forged documents and as such charge under Section 467/ 468/ 471 IPC or of its conspiracy thereof is unsustainable against the Accused No. 3 he relied upon the law laid down in Sheila Sebastian Vs R Jawaharaj & Ors. AIR 2018 SC 2434. He then submitted that the evidence produced by the prosecution during the entire trial is also devoid of any material to even suggest that the Accused No. 3 was in any way involved in the commission of an offence of cheating or of its conspiracy thereof and that the plot in question already stood 'recommended' and 'allotted' to accused Rattan Kaur much before any act relevant to the present case, is allegedly done by the Accused No. 3. He stated that no loss is caused to the DDA by the actions of the Accused No. 3, rather it was the Accused No. 3 who parted with the money and thereafter was induced to enter into an agreement to sell with Smt. Rattan Kaur. He claimed that there is no evidence to even suggest that Accused No. 3 made any profit from the sale of the plot in question. He argued that there is no evidence on record, either documentary, ocular or even circumstantial, to show that the Accused No. 3 at any point of time before the registration of the present case was aware that the lady from whom he purchased the plot in question was not Smt. Rattan Kaur but someone else. He stated that it was an admitted case of the prosecution CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 119 of 291 that the Possession of the Plot was also taken by A5 on 20.01.2004 nearly three months before the Agreement to sell was entered into with the accused no. 3. He stated that Accused No. 3 was a bonafide purchaser of the plot in question and a victim to the impersonation by the Accused No. 5. It is argued that the story of the prosecution is dubious as it fails to show any credence as no prudent man would part with the entire sale consideration and still chose to purchase a property with a defective title, in the name of a non­existent person. He argued that the Registered Agreement to Sell dated 20.07.2004 when read in the light of Section 91 & 92 of the Indian Evidence Act makes it abundantly clear that the Accused No. 3 entered into such Agreement to Sell, GPA & SPA under the belief that the plot in question belonged to a lady named Smt. Rattan Kaur and that he was purchasing the plot from the same lady and that any allegation to the contrary, though there is none, is inadmissible in view of the above­mentioned statutory provisions. He further argued that as there was no documentary, ocular or even circumstantial evidence to suggest that the Accused No. 3 was aware of the true identity of Accused No. 5, hence no liability under Section 419 IPC or of its conspiracy can be fastened upon him. He then stressed the circumstance that a draft of Rs. 11,98,000/­ was got prepared by A3 which was subsequently deposited by the Accused no.5 with DDA, ought not be used against him. Since there is nothing on record to show that the Accused no.3 knew at that point of time that the plot had been fraudulently got allotted in the name of Rattan Kaur CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 120 of 291 by the co­accused persons. He relied on the statement recorded under Section 313 CrPC and claimed that all the circumstances under which the said draft of money was got prepared by him have been detailed therein. He further argued that the circumstances under which the amount of Rs. 11,98,000/­ stood deposited in favour of accused No.5 have been explained in his statement recorded under Section 313 CrPC wherein it is stated that the amount had been deposited on the asking of his maternal uncle Sh. Ram Kishan Dass Gupta (now deceased), who had been a parental figure for him all his life and that he had no personal knowledge as to the reason for which such draft was asked to be arranged by him. He detailed that Accused No.3 has further explained that when the said sum of Rs. 11,98,000 was not returned to him, after several months, his uncle on directions of whom he had got the draft made, informed him that there were very thin chances of the money being returned and he should instead purchase the plot in question after making further payment of Rs. 3 lakh. He detailed that that Accused No. 3 duly complied with the directions of his uncle only to recover the sum deposited by him entered into the Agreement to Sell, GPA & SPA, all dated 20.07.2004. He also submitted a copy of the death certificate of Late Sh. Ram Kishan Dass Gupta as Annexure­ A alongwith his written submissions.

259. It was argued that Accused No. 3 informed the aforesaid fact to the investigating officers during the Preliminary Enquiry however they CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 121 of 291 chose not to investigate thereupon. It is averred that even otherwise, for the sake of argument, it is contended that once the plot stood allotted by the DDA, the allottee could have paid the money demanded by DDA on their own or arranged it from anyone, and as such this circumstance ought not to be considered as an illegal act or should be used against the Accused No. 3. He submitted further that apart from the sum of Rs. 11,98,000/­, an additional sum of Rs. 1,44,219/­ was paid to DDA against the plot in question which was not paid by the Accused No. 3 which further distances him from the accusation. He relied on the judgement of the Hon'ble Supreme Court in the case titled as Parveen @ Sonu Vs State of Haryana Crl. Appeal No. 5438 of 2020 and reproduced the observations. He also relied on John Pandian Vs State Rep. by Inspector of Police, T.Nadu (2010) 14 SCC

129. He then proceeded to argue that Accused No. 3 is a rice trader by profession and was not involved in the real estate business and has referred to cross­examination of PW53 IO of case and stated that a bare perusal of the statement of account of his firm, M/s Saraswati Trading Co. [D­45] shows that Accused No. 3 firm has been in trading business worth in crores at the relevant period, and as such the case of the prosecution that the Accused No.3 entered into the alleged conspiracy only to make a profit of Rs 1.5 lakh, seems completely improbable in view of the aforementioned circumstances.

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260. He argued that prosecution has not proposed similar charge against any other person despite similar facts and allegations and relied upon the fact of filing of other charge sheets to allege pick and choose policy having been adopted by the investigating agency against A­3. He relied on the judgement of The State of Odisha Banobihari Mohapatra &Ors. SLP (Crl.) 1156/2021 and reproduced the contents partly. He supplemented his submissions by stating that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. He also suggested that suspicion however strong cannot take the place of proof and while two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the benefit must be passed on to the accused. He then relied upon the judgement of Tanviben Pankaj Kumar Divetia vs. State of Gujarat AIR 1997 SC2193 and averred that the prosecution has miserably failed to establish its case.

261. Ld. PP has filed rebuttal submissions against written submission of accused no.3 through e­mail, copy of which is placed on record, whereby he contended that accused while pressing his defence has not presented the complete facts. It is averred that it is well settled principle of law that criminal conspiracy is hatched in secrecy and admittedly there can be no direct evidence of the criminal conspiracy and it is not legally possible to accept the contention of the accused CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 123 of 291 that he could only join other accused persons after conspiracy was over. He averred that from the evidence adduced by prosecution it is proved that accused A­3 was very well linked with the conspiracy, as it is not necessary that every accused in conspiracy must know each other since initiation of the criminal conspiracy, one can take part in criminal conspiracy, by playing his assigned role and may exit He stated that in the present case accused has invested the huge amount of Rs 1198000/­for his profit initially in favour of Rattan Kaur for which there is no explanation for investment of huge amount for accused Smt Rattan Kaur. He claimed that rulings cited are not relevant to the case, hence, not applicable in the case of accused.

262. The prosecution argued that for offence of criminal conspiracy, it is sufficient that there is mere agreement to commit illegal act/ offence and no overt act is required on the part of the accused persons. In the instant case accused A­3 has willfully participated in the criminal conspiracy by facilitating other co­accused persons., which is very well established by the evidence brought on record by the prosecution. He stated that in the light of written arguments/ Memorandum submitted by prosecution, the material is sufficiently shown for commission of offence U/s 120­B read with other provisions. It is argued that with cogent legally admissible evidence, his statement recorded under section 313 of Cr.P.C. is legally not acceptable.

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263. Sh. Ran Vijay Kumar, ld. Counsel on behalf of A­5 also tendered his written submissions and almost relied upon the entire prosecution evidence. He reproduced the statements of almost all witnesses, and began from the statement of PW­50 Smt. Usha Chaturvedi. He then argued that the prosecution has failed to collect the original application form along with relevant documents which were submitted by the accused A­5 before the DDA, or their any competitive agency, or which was applied by the accused Rattan Kaur in lieu of her acquisition of her land for the allotment of alternative plot which may have entitled her for the aforesaid welfare Scheme.

264. It is submitted that in the year 1989, the accused Rattan Kaur (A5) was minor and did not submit any application in any manner for the allotment of alternative plot in lieu of acquisition of her land before DDA or any other department of DDA.

265. He then contended that from the statement of PW 50 Smt. Usha Chaturvedi it is interpreted that the original records which were submitted by the applicant/accused A5 in the year of 1989 were not available in DDA's record as well L&B Dept. and the prosecution has failed to investigate properly and has not submitted a single iota of proof in connection of LAC report, legal scrutiny report, Jamabandi, land revenue record, original application, award letter or court order etc against the accused A5 before the court.

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266. He then argued from the statement of PW42 Sh. Prakash Kumar and PW2 Sh. Z. U. Siddiqui, that as per policy and rule of preparation of Minutes of Meeting (though none were cited) by the recommendation committee, it shall be done on same day or next day, however no reason is stated for delay in preparation of the minutes of meeting almost after 63 days. He claimed that all the members of committee appended their signature without mentioning date and one signature was tempered through he did not specify again as to whose signature was tempered.

267. After noting the statement of PW2 Sh. Z. U. Siddiqui, he further argued that the prosecution has failed to collect and produce the report of legal department, Internal Revenue dept. and concerned Land Acquisition Collector reports against accused Rattan Kaur. It is claimed that all the senior most member of the recommendation, are shifting the onus of proof over the junior member of the department, although being senior most member of the committee they should share the responsibility but the investigating agency has not made any attempt to probe their involvement.

268. He then moved on to the statement of PW17 Sh. Subhash Gupta and argued that despite being Dy. Legal Advisor PW17 Sh. Subhash Gupta (one of the members of recommendation committee being legal expert as DLA), has admitted during his examination in chief of having deliberately failed to perform his duty with due diligence and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 126 of 291 has shifted the burden on his junior i.e. DD Badrul Islam and S. S. Malhi (dealing assistant) for the verification of applicant's documents.

269. He stated that whatever relevant documents were attached by the accused (A­5) with her application form as well as the verification report submitted and enclosed with the application form etc, all documents are missing from central record room, while the investigating agency and prosecution both have failed to probe duly the role and involvement of private persons and collect proof requisite by submitting the original documents before the court".

270. He thereafter relied upon examination of statement of PW­19 Sh. Dinesh Singh who had stated as below : "I state that file No.32(21)/50/89/L&B/Alt. village Bahapur was not consigned to the Central Record Room. The said file was neither available in Alternate Branch nor in Central Record Room as per the report already Ex.PW19/H." While relying on the statement of prosecution witnesses he further argued that statement of PW19 Sh. Dinesh Kumar confirmed that the original records of the accused Rattan Kaur are not consigned to the Central Record room from the alternative branch and further, the prosecution witnesses has proved that the aforesaid file was neither available in alternative branch nor in CRR (Central Record Room), which infers that the accused Rattan Kaur had never approached DDA or any other branch of DDA/L&BDept./Alternative CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 127 of 291 Branch/LAC etc. in lieu of acquisition of land, for the getting the benefits of the welfare scheme as per public notification in 1989.

271. He submitted that in cross examination of PW44 Sh. Charanjeet Singh (though the witness could not complete his statement due to ill health and died before rendering of complete statement and hence his statement is not to be read) has proved that accused no. 5 Rattan Kaur is indigent lady and she is illiterate and hence she could not read, write and understand in any languages especially English, Hindi and even Punjabi as she only speaks Punjabi and understands the same but she cannot write.

272. In terms of statement of PW1 Sh. Baidyanath Jha he argued that PW1 appears to be confused and unable to prove that such lists are verified by branch in­charge before sending the same to record room for consignment and has also failed to prove that the signature of all the dealing hands or staff who signed the list despite that he has worked being LDC/Record Keeper in March 2000 and remained there up to 2014.

273. In terms of the statement of PW5 Sh. Satish Kumar he argued that prosecution witness himself proved that the aforesaid file was not consigned as per list and he further confirmed during investigation that the CBI has not seen the list where the name of accused is mentioned.

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He argued that it is proved that he deposed on the basis of report already Ex. PW5/A.

274. He then proceeded to argue in terms of statement of PW7 Sh. Kamal Kant Sharma that from the statements of PW1, PW5, PW19 and PW50 it is shown that the original file was not consigned in central record room and they have further confirmed that the applicant had never submitted the application form as per proclamation of public notice in year of 1989 as well as the accused Rattan Kaur had never approached either physically or through any other communication to DDA for getting the aforesaid benefit of aforesaid welfare scheme.

275. He further submitted that the statements of PW2, PW17, PW42 and statements of other members of recommendation committee it is shown that no appropriate records i.e. LAC report, revenue record, indemnity bond, award or compensation letter, legal opinion from DLA, court orders etc. were enclosed with application from and placed before recommendation committee, despite that the committee comprising of experienced, senior and higher post holder (recommendation committee members) issued a recommendation letter in favor of accused. He argued that if the decision was taken by the committee, then all members of the committee are responsible and a single member of the committee cannot be found fault with. He then argued that the statement of PW7 Sh. Kamal Kant Sharma has proved that the corrigendum letter on 02.07.2003 was sent to Smt. Rattan CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 129 of 291 Kaur, but the same remained undelivered with the remarks in Hindi, whereafter the DDA is bound to hear the allottee in public hearing however there is no record of presence or appearance of Rattan Kaur in public hearing in the entry register to show proof of her presenting the documents.

276. He further argued that it was the responsibility of PW7 and other DDA officials to check the genuineness of A­5 Smt. Rattan Kaur through her identity card, despite which no such effort is made.

277. Relying further on the statement of PW7 Sh. Kamal Kant Sharma and PW46 S.C. Kaushik as well on the perpetual lease deed Ex. PW3/B he stated that the same is in complete violation of RULES under/R. II (5) (a)/6/8 & 9 by the L&B dept., DDA as well as Sub­ Registrar, though nothing is cited specially despite which he alleged that ownership is allowed to be transferred through perpetual lease in favour of accused no. 3 within 3 months of allotment on 07.04.2004 despite the fact that PDR corrigendum price is paid by other persons without the consent of A­5 and they are not known to each other at any point of time, the payment is permitted in favor of DDA vide DD/Challan which fact has been confirmed by PW53 Sh. A.K. Saini in his cross examination.

278. He then relied on the statement of PW3 Sh. Bhupal Singh and averred that once the allottee furnished an affidavit regarding non sale CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 130 of 291 of plot under reference, how she had sold the aforesaid plot without any written permission or consent of Lieutenant Governor which should be construed violation Rule­11, sub rule 5(a)/6/8 & 9 of Perpetual Lease Deed (provisional), which has been already Exhibited. He then challenged the action of sub­Registrar and DDA in approving the registration / transfer of plot through agreement to Sell, GPA and other documents even prior to the plot being free hold i.e. within 3 months (7.04.2004).

279. He then relied on the statement of PW28 Sh. Ram Swaroop Pahwa, PW47 Sh. Mohan Lal R, PW49 Sh. Desh Bandhu Gosain and argued that as per Rule II, sub­rules 5 (a) of the Perpetual Lease Deed (Provisional), a property can be sold only after 10 years, however that transfer is allowed in present case in 3 months without the property being free hold from the DDA in favour of accused Devender Kumar.

280. He further argued that A­3 Devender Kumar has paid the lease amount in favor of DDA vide DD/challan without the consent and permission of the accused Rattan Kaur and without appending photograph and completing other formalities. He repeated that such registration by the sub­registrar amounts to complete violation of provisions of perpetual lease deed and misuse of power and position.

281. He relied on the statement of PW25 Sh. N.S. Bhati, PW40 Sh. Rajender Singh Beniwal, PW35 Sh. Deepak Chaudhary, PW37 Sh.

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Harinder Prasad (CFSL Expert), PW30 Sh. Prabhat Chandra Sharma and stated that the possession letter was returned due to wrong address of the allottee which DDA kept sending of the possession letter at wrong address and ultimately executed a possession letter, recommendation of allotment letter as well as perpetual lease (provisional) in favor of accused all in only public hearing, thus it proved that the accused no. 5 had never received any communication at her furnished address. He stated that all the letters (documents) were received in public hearing however DDA failed to keep even the entry register which was mandatory. He averred that even IO has not collected any such evidence or rendered the statements u/s 161 Cr.P.C. Similarly he claimed that in any meeting the entry pass shall be given to a visitor person and only then the entry shall be allowed, however in the present case same address proof has been handed over by the applicant/accused to the DDA, although on the same address, all the documents have undelivered due to wrong address which complete gross violation and misconduct on the part of the DDA officials.

282. He then relied on the statements of PW27 Sh. Ram Tirath, PW26 Sh. Prem Kumar Thakur, PW22 Sh. A.K. Singh, PW14 Sh. Devdas, PW8 Smt. Sheela Devi and PW39 Sh. Ranjeet Kumar Pandey. He argued that no complaint is lodged by any private person or by DDA, although the DDA has not claimed to have suffered any CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 132 of 291 wrongful loss and or any wrongful gain having accrued to accused person which could establish criminal conspiracy.

283. He argued that PW39 Sh. Ranjeet Kumar Pandey is an official of CBI department and his lodging the complaint is violative of the procedure under section 195 r/w. 196 of Cr. P.C. He alleged that PW­ 39 has misused his power and has planted false and frivolous complainant against the accused persons without any iota of evidence.

284. He then relied on the statement of PW41 Smt. Harbhajan Kaur and that of IO PW 53 Sh. A. K. Saini and submitted that cognizance taken under Section 195 (1) (a), (b) r/w. Section 196 (2) Cr. PC. is bad since provision of section 195 and 196 of Cr. PC which are mandatory in nature were not followed. He relied upon the judgments of Daulat Ram vs. State of Punjab AIR 1962 SC 1206, MS Ahlawat vs. State (2008) 1 SCC 278, Arvind Kumar Aduika vs. State of NCT Delhi (2010) 173 DLT 738, CBI vs. Indra Bhushan Singh & Anr. AIR 2014. He then argued that invoked IPC provisions i.e. u/s 120­B r/w S. 419, 420, 468 and 471 and 13(2) r/w 13(1) d of the P.C. Act cannot be applied against accused in absence of sanction under section 195 and 196 Cr.P.C. He then relied on the judgement of 'Padohi Ram vs. State of U.P. (1990) Cri L J 495', and argued that in terms of judgement "B.N. Subba Rao vs. State of Mysore" AIR 1955 Kar1: (1955) Cri. L J. 160 and further in case "State vs. Kathi Unad Ranning & Ors.

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(1955) Cri L. J. 52" the Hon'ble Courts has dealt with the similar provisions. He argued that no evidence is available to establish the charge framed against A­5. Since prosecution has not shown any element of 'Mensrea' and/or 'Actus Reus' with other accused at any point of time. He then argued that no direct or indirect evidence is available to establish any allegation qua conspiracy. He then argued that the offences as alleged, in first place have been committed against the authority of public servants, those are the competent members of recommendation committee of alternative plots in Land & Building Department, Govt. of NCT Delhi, or against the authority of Principle Secretary Land & Building Department, Govt. NCT Delhi specially in view of the allegation that A­5 by impersonating herself as allottee of the plot succeeded in taking over the possession and lease deed of the plot from the Land Sales Branch DDA. Reliance on law laid down in "N. Vijay Kumar vs. State of Tamil Nadu" Criminal Appeal no. 100­ 101/2021 arising out of SLP (Cri.) no. 4720/2020 is placed.

285. He argued that the principles of criminal jurisprudence are same as any other provisions of the IPC, have the prosecution must prove the charges beyond doubt. He stressed his submissions and sought strength from the following judgements: "Kali Ram vs. State (Crl. Appeal No.710/2008), Jogender @ Pahalwan vs. State (Crl. Appeal No. 717/2008), Harender Singh & Anr. vs. State (Cr. Appeal No. 967/2008), Narender Singh vs. State (Crl. Appeal No. 995/2008), CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 134 of 291 Sir Tej Bahadur Sapru i.e. 1941 All ALJR 416, Queen Empress v. Hoshhak and State (NCT of Delhi) v Navjot Sandhu AIR 2005 SC 3820".

286. In terms of the provisions of Section 416 and 419 IPC he made his submissions and claimed that in order to bring home an offence under Section 419, IPC, the prosecution shall prove first that accused pretended himself to be some other person or imaginary person, or he knowingly substituted one person for another. He also made distinction between forgery and impersonation and argued that the prosecution has to prove the document in question is false and was prepared dishonestly or fraudulently within the meaning of section 464 IPC. He averred that it must be proved that the intentions of the accused were dishonest within meaning of section 463 IPC. He distinguished 'Cheating' from 'impersonation'. He argued that where there are allegations of the nature that the accused has impersonated with the dishonest intentions of ultimately resulting cheating, cheating being the only ultimate intention the offence 'cheating' becomes automatically the first offence than impersonation. He argued that under these circumstances the prosecution must prove that in doing the acts and in the process of ultimate offence of cheating the accused has impersonated.

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287. He argued that both A­3 and A­4 were having knowledge about the fact that alleged fictitious or non­existing persons with her non­ existing address was actually A­5. In view of which he questioned the role of A­4 which he claimed is left, qua their knowledge, and averred that both of them were well aware in respect of the fact that A­5 is the said fictitious or non­ existing person. He averred that for the purposes of justice, it was also equally important to determine here that whether impersonation was committed for the purpose of cheating or for the purpose of making any profit or gain.

288. He averred that fact of the payment having been deposited against allotment, (in favour of A­5) is proved by PW­6 Sh. Chhatarpal which shows that there was no loss to DDA.

289. He then argued in detail qua section 415/420 IPC and relied upon the judgement of "Indian Oil Corporation vs. NEPC India Ltd". Reported AIR 2006 SC 2780, Jeswantral Manilal Akhaney vs. State of Bombay" AIR 1956 SC 575, "Hari Prasad Chamaria vs. Bishan Kumar Surekha & Ors." AIR 1974 SC 301, "G.V. Rao vs. LHV Prasad & Ors." 2000 (3) SCC 693 (SC) "Ajay Mitra vs. State of Madya Pradesh" AIR 2003 SC 1069, Abdulla Pogarkar vs. State UTI Delhi" AIR 1980 SC 499 and 'Prabhat Kumar Bose vs. Shibdas Dutt 1994 Cr L J 1211 (SC).

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290. He then made his submissions on the law relating to the Evidence of 'accomplice' and went on deeply discuss the ingredients of section S. 420 IPC and relied upon the judgement of 'Tulsi Ram vs. State of UP' AIR 1963 SC 666 'State of Kerala vs. Vareed Pillai' AIR 1973 SC 326. He argued that in order to constitute intention of offence of cheating, it is required to be shown that accused had fraudulent or dishonest intentions at the very early or initial stage and not at any later stage but in instant case when a long conspiracy, as alleged by the CBI, has been executed in different parts and at different stages and specially when it was never under the control and/or under the hands of collaborators.

291. He stated that recommendation was made under the authority of four different officials of recommendation committee of L&B Dept. Govt. NCT Delhi and handing over of possession and execution of the lease deed of the plot in question was executed by DDA by its different branches, these facts clearly shows that nothing was under the hands and/or under control of any collaborator. Under these circumstances he claimed that it cannot be alleged that since the inception or initial stage the accused had any dishonest intentions. He relied upon the judgements of 'Harmanpreet Singh Ahluwalia vs. State of Punjab' 2009 (7) SCC 712 'SVL Murthy vs. State' AIR 2009 SC 2717 and argued that when the forgery is not there the allegation under section 420 would fail and accordingly forgery was the principal CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 137 of 291 allegation, cheating being a consequential offence, if forgery went, cheating could not stand. He stated that the complaint did not make out under any of three sections namely 420, 465 and 468­ He then relied on the judgement of 'Guru Bipin Singh vs. Chugtham Manihar Singh' 1997 Cr L J 724, Archana Rana vs. State of Uttar Pradesh & Anr. (Criminal Appeal No. 167/2021) and N. Raghavender vs. State of Andhra Pradesh, CBI "(Criminal Appeal No. 5 of 2010) and relied on para no. 47 & 48.

292. While arguing on the provisions of section 468 IPC he delved into the ingredients of intentions of the forger and relied on the judgement Bihari Lal Gupta vs. State of Himachal Pradesh 1984 Sim. L.C. 303 at pp. 300­307 H.P., 'Ram Pal Singh vs. State of UP' 1980 Cr L J 424 at p 426 (ALL.) (Mohammad Riaz vs. State of UP (1980) Cr. L J 369 at page 375 (ALL.) While arguing on the point of section 471 IPC he relied on the judgement Abdul Karim Madar Saheb vs. State of Mysore, 1979 Cr L R 720, Abdur Rahim vs. Emperor AIR 1927 Nag. And again on Empress vs. Rango Timaji I.L.R. 6 Bom. 402, Madhavial Manishankar Trivedi vs. State of MP AIR 1960 MP 269 and proceeded on the points of sanction while relying certain case law.

293. Ld. Sr.PP made rebuttal submissions to the written submissions of Sh. Ranvijay Kumar, ld. Counsel for A­5 Rattan Kaur @ Pinder CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 138 of 291 Kaur, and at the outset itself has denied the rival contentions raised. Prosecution reiterated that it has proved specifically that the original application of A­5 Rattan Kaur is misplaced or destroyed as the file has not been sent to record room. It is pointed out that the criminal conspiracy did not start in 1989, which fact is amplified in the charge framed vide order dated 12.08.2016.

294. Ld. Sr.PP claimed that the contentions of the arguments of accused A5 is contradictory. The prosecution asserted that the address given by A5 was false and it is strange that how A5 came to know about the alternative plot and appeared before the authority and got the perpetual lease deed in her favour and later on sold the same to some other person on the same day, which he claimed to have strengthened the allegation of criminal conspiracy against the accused person. In the continuation of the earlier submissions strength is sought from the arguments that without knowledge, active participation and confirmation of A5 Rattan Kaur @ Pinder Kaur the amount may not have been deposited on her behalf, which is again strengthened from the fact of placing of false ID while the registration of lease deed in her favour. The citations placed on record by A5 Rattan Kaur @ Pinder Kaur are claimed to be not applicable to the facts and circumstances of the present case.

295. The detailed submissions of all sides are noted and I have carefully perused the record, comprising of statements of witnesses, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 139 of 291 documents exhibited by the prosecution and countered during cross­ examination. I have also perused the statement u/s 313 Cr.P.C., wherein the entire evidence is put to accused as well as the case law cited in support by both sides.

296. In order to make a detailed assessment of evidence received and correct interpretation of the attracted provisions of law, under which the accused are standing to defend the charge, I, propose to elaborate the discussions, under following heads :

Conspiracy

297. The crux of the allegation against all the accused have been woven through the common thread of the allegation of conspiracy. It is vehemently averred that on account of their pre­meditated malicious intentions which has been woven together by, transaction of actions spread over various stages of the offence, all the accused persons have come together to receive yield of illegal design.

298. Before looking into the material on record, I, at this stage, propose to first deal with the law relating to conspiracy before I enter into the controversy raised by the arguments. The law relating to conspiracy is defined under Section 120A and 120B IPC. Section 120A IPC with utmost precision lays down the definition of conspiracy and for the benefit of dealing with the arguments and evidence connected to the allegations is reproduced herein below :

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"120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done --

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]"

299. In Sushil Suri vs. CBI : AIR 2011 SC 1713, Hon'ble Supreme Court discussed the law relating to Section 120A IPC and stressed that "The essential ingredient of the offence of "criminal conspiracy", defined in Section 120A IPC, is the agreement to commit an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy." Meaning thereby, existence of a lesser agreement to commit an offence even devoid of action in furtherance shall be treated sufficient enough for the purpose of satisfying the offence of criminal conspiracy within purview of Section 120A IPC.

300. The intent of Section 120B IPC and the elements requisited to establish its existence are (i) the accused agreed to do so or caused to be done an act; (ii) that said act was illegal or was to be done by illegal means; and, (iii) some overt act was done by one of the accused in pursuance of the crime. It is held that like most crimes, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 141 of 291 conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state.

301. Further, in Chaman Lal & Ors. Vs. State of Punjab Anr.: 2009 SC 2972, it is observed that for an offence punishable u/s 120B IPC, the prosecution need not necessarily prove that the perpetrator expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication.

302. In Bimbaharur Pradhan vs. The State of Orissa : AIR 1956 SC 469, the Hon'ble Supreme Court made an observation that where a conspiracy is alleged to commit a series of serious crime, mere proof of such a crime between the accused is sufficient to sustain a conviction. It is held further, "however, needless to say that the proof that they or some of them concerted in an overt act, alleged, would go very far to establish the malicious agreement was infact having been made between them".

303. In Pratapbhai Hamirbhai Solanki Vs. State of Gujarat : 2012 (10) JT 286, the requirement of the mode of proof of criminal conspiracy was detailed as below :

"...............the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 142 of 291 evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused........."

304. Now, coming to the matrix of the present case on which detailed observations in the light of statements of testimony received on record is held above, it is now to be seen whether the facts detailed through evidence can qualify to satisfy the ingredients of an offence of conspiracy.

Extraction of recommendation obtained in fictitious name

305. The first allegation emanating/premised out of order of charge, which was based on prima facie view and was to be countered by the accused, is of having obtained recommendation letter Ex.PW2/B with malafide intention with the indulgence of all accused in a continuous act of conspiracy in fictitious name. The prosecution vehemently argued that it has proved the charge through the deposition of various witnesses.

306. The crux of controversy, reveal the genesis of allegations that A1 Badrul Islam (since deceased) being Dy. Director Incharge of Alternative Branch, Land & Building Department, DDA was joined in mischief by A2 S.S. Malhi, UDC being his deputy and they both indulged in manipulation of record to the extent that a false/fictitious CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 143 of 291 recommendation was generated from file No.F.32(21)43/89/L&B/Alt in name of A5 Rattan Kaur who was a fictitious person/identity while her real identity of Pinder Kaur W/o Sakattar Singh remained concealed.

307. The above act of A1 and A2 was actively supported by A4 Neeru Kumar Gupta (an Advocate by profession) and an active ally of A2 S.S. Malhi with such proximity that would be sufficient to construe nexus.

308. The payments were found deposited from the account of A3 Devender Kumar in favour of A5 Rattan Kaur w/o Sh. Bachan Singh (the allegedly fictitious entity).

309. In order to establish the above, part of some significance/disclosure through evidence is retrieved out of the testimony of PW50 Smt.Usha Chaturvedi, Dy. Director of Alternative Branch. Smt. Usha Chaturvedi narrated about the entitlement and eligibility of farmers/land owners to apply and receive the alternative plot in terms of acquisition of their land u/s 4 of Land Acquisition Act as well as necessary requisite procedure. She detailed that in order to benefit the farmers whose land was acquired a scheme was launched as "Large Scale Acquisition Development & Disposal of Land in Delhi 1961" which had been lodged by Govt. of NCT of Delhi for CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 144 of 291 rehabilitation of the displaced farmers, against acquisition for planned development of Delhi.

310. That in order to succeed such grant of alternative plot, the farmer must have satisfied conditions such as : neither he nor his family or his dependent should have owned any other plot or residential property out of village abadi; that his entire land should have been acquired; that the farmer must not own any other residence/plot in Delhi.

311. She further detailed the requisite criteria for compensation suggesting qua the change subsequent to 03.04.1986 having been brought in and reiterated that the applications were invited by public notice through newspapers against notice dated 01.04.1989.

312. She detailed that in order to support the applications, the farmers must have applied alongwith Khatoni, LAC certificate and three photographs.

313. After detailing the aforesaid procedure, came the most significant revelation qua the role of accused officials (public servants) of Alternative Branch specifically of the charge held by A1 Badrul Islam (since deceased) and A2 S.S. Malhi as PW50 Smt. Usha Chaturvedi detailed that after an application for grant of alternative plot was moved alongwith requisite documents such as Khatoni, LAC certificate in prescribed format alongwith three photographs of the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 145 of 291 applicant and was received in Alternative Branch after being diarized at the Central R&I Branch of Land & Building Department, they again were diarized at Alternative Branch on receipt and given file number as per zone.

314. She then described how the files were numbered and stated that file numbers were given in accordance with the zone, village and number of application on which the file was opened. In present case, "F' denotes to file, "32" to South District (Zone), "21" to village Bahapur and "43" to the number of the application, hence F.32(21)/43/89/L&B/Alt, which was the file number of A5 shown on recommendation letter Ex.PW2/B, detailed that she moved application for recommendation against acquisition in village Bahapur and her file number was 43 out of that village.

315. She explained that after a file was opened the LAC certificate received with the application was sent to Revenue District for verification and on receiving the verification report from the concerned Revenue District was again subjected to cross­check by Patvari/Kanoongo of Land Acquisition Branch of Land & Building Department. It is pertinent to note that as per her statement the above process of verification was to be initiated by A2 in this case being Dealing Assistant of Alternative Branch.

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316. She detailed that after receiving the aforesaid compliance the file was sent to Legal Cell of Land & Building Department by the Alternative Department for further scrutiny of application by DLA and obtaining a legal opinion, for which the process was to ensue through dealing assistant/A2 S.S. Malhi in this case as he had to make a detailed note which he would put up. The file was to be then routed through the HoD i.e. Dy. Director of various branches of Revenue, Land & Building Department.

317. She extensively explained that after the aforesaid procedure was met in terms of its compliance the files were placed before the competent authority of Land & Building Department to fix date for calling the meeting of Recommendation Committee, which comprised Principal Secretary, Addl. Secretary, Dy. Legal Advisor and Dy. Director of Alternative Branch, before whom the cases were put up, which was the responsibility of A1 being Dy. Director/HoD of Alternative Branch.

318. It is also clearly stated that after the recommendations were made, recommendation letter in triplicate was issued (green colour letter for the DDA, yellow colour for the applicant and pink for office copy). PW50 Then disclosed and described that the recommendation letter Ex.PW2/B in green colour is the one which is sent to DDA for processing allotment. In the set of disclosure made through perusal of Ex.PW2/B, the recommendation letter, it is confirmed that it is in CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 147 of 291 green colour i.e. the copy meant for DDA for processing allotment. Interestingly, no other copy of recommendation letter surfaced. Had A5 been a bonafide allottee, the yellow colour copy must have been made available either by her or A3 subsequent purchaser. However, none from the side of accused produced any such document despite not refuting that the A5 was the same person who received the recommendation. Had the recommendation process been genuine and bonafide, there was no occasion for hiding such a vital piece of evidence, as it would have established the neutrality of process. It is also requisited to be noted that Ex.PW2/B is also procured through DDA file No.F­27(8)/2003/LSR(R) Ex.PW7/A (D­9) of which it was a part which was the file of allotment of plot. The recommendation letter was received in DDA LSB Department against diary entry no.2569. The recommendation letter also bore the booklet number and attested photograph of the applicant. These letters were sent through Central R&I branch of L&B Department to DDA and to the applicant through post.

319. PW50 detailed further in her statement that the concerned dealing assistant (A2 S.S. Malhi in this case) was obligated to prepare the recommendation letter having details of applicant's name, village name, Khasra number and total area of acquired land in prescribed proforma which was signed by Dy. Director of Alternative Branch. She testified that after the recommendation, the file was consigned CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 148 of 291 to Record Room of Land & Building Department. The above portion of her statement is not disputed. The contents of recommendation letter Ex.PW2/B shows the photograph of A5 Pinder Kaur, which is an attested photo, is also not denied.

320. She then deposed after seeing the recommendation letter in favour of A5 Rattan Kaur, which was Ex.PW2/B (D­19) that word "F32" denotes to zone, which is South, "21" denotes to village Bahapur, "43" denotes Serial Number of application/file, "89" denotes the year of receiving of the application and the date of issue of letter was 28.03.2003.

321. The link between recommendation letter Ex.PW2/B and A2 S.S. Malhi was connected through the recommendation letter Ex.PW2/B as PW50 testified that booklet with serial No. 1101 was used with serial no. 1101 to 1150, which booklet was issued to Sh. S.S. Malhi, the then Dealing Clerk. It is necessary to note that no cross­examination is conducted on this point as well except one question which is put qua the collection of register in which the entry of the booklet is kept however this could not dispel the correctness of expert report. PW19 Sh. Dinesh Kumar also confirmed this fact as per the stock register, which had been exhibited as Ex.PW19/J . The recommendation letter Ex.PW2/B was issued by A1 Badrul Islam with his signatures is CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 149 of 291 cogently stated by PW50, PW19, PW2, PW17 and PW42, who all identified his signatures.

322. While a recommendation letter came into being from file No. F.32(21)/43/98/L&B/Alt it was disclosed intriguingly that no such file was created in Alternative Branch, which fact was intimated by Central Record Room vide Ex.PW19/H (D­26).

323. The aforesaid statements were put to no challenge. None of the ld. Counsels appearing for any of the accused sought to contradict PW50 on any portion of her above statements clearly inditing A1 and A2 qua issuance of recommendation letter Ex.PW2/B. While the document Ex.PW2/B and its contents are undisputed, no denial is also raised qua the aspects of the responsibilities of A1 Badrul Islam and A2 S.S. Malhi being HoD and Dealing Assistant of Alternative Branch. It is not disputed that it was their obligation to call for verifications from LAC/Revenue and Legal Department which was primarily the obligation upon A1 S.S. Malhi.

324. It is intriguing to take note that PW50 Smt. Usha Chaturvedi in her statement also specified that the application from land owner/farmer was required to be supported with the certificate of LAC showing compensation having been received, thus to establish his credentials for advantage of the Welfare Scheme. Accordingly, the fact that applicant is a farmer, his land is acquired he is not left with CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 150 of 291 any other land, he or his dependent(s) have not received any other benefit and/or any other land in Delhi that applicant is awarded compensation which should be shown by filing compensation certificate were the facts needed to be ascertained and verified by A2 and A1.

325. It is clearly stated by PW50 Smt. Usha Chaturvedi, PW2 Z.U. Siddiqui, PW42 Sh. Prakash Kumar that the verification of documents was the responsibility Dealing Assistant (A2 in this case), who was under obligation to seek a verification of the certificate of LAC.

326. The fact that A2 was aware of this obligation is stated in a response which is more admissive then dismissive. While the very fact that verifications were due to be called by him is not even denied, a weak plea is raised that verifications were to be called by DAK/Post and not personally. However, no material then is placed to establish that even postal process was used to discharge the burden of calling verifications even by DAK, as is claimed and/or that, the same were received and submitted after which they were made part of file.

327. It is interesting to note that in wake of report Ex.PW19/H showing no record of file no.F.32(21)/43/89/L&B/Alt. the converse/reverse fact could have been established by calling the receipt/dispatch record of LAC office or at Revenue Department to show receipt and return of such requests initiated by A2 under CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 151 of 291 approval of A1 calling verification. No cross­examination of any material witness including IO is conducted on above aspect to show absence of any lapse on his part while calling the verification report to establish that due and bonafide attempts were made by A2, in which background, the only possible conclusion is that no verifications were called by A2 and A2 despite him being obligated and mandated to do so. Further, the portion of statement of PW50 where she detailed that how file no. F.32(21)/43/L&B/Alt was numbered by providing particulars of zone, village, area etc. was not denied. It was not denied that indeed a file with no. F.32(21)/43/L&B/alt was opened by A2 S.S. Malhi from which recommendation letter Ex.PW2/B is generated.

328. In this background, the statement of PW19 Sh. Dinesh Kumar again becomes significant, wherein while relying on record exhibited he stated that only two entries from village Bahapur in name of Rattan Kaur and Hem Raj were received in that year and that total entries from the said village were only four, which then make it doubtful how the application of Rattan Kaur came to be numbered 43 which showed on her file. The record Ex.PW19/I against sl. no. 324 shows entry of Rattan Kaur against application no. 4, which means that attempts are made to camouflage the entries on record to mislead the detection of the movement and proper record of file no. F.32(21)/43/89/L&B from which the recommendation is generated in favour of A5.

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329. There is no dispute to the fact that Ex.PW2/B is issued in favour of A5 Rattan Kaur detailing it to have been in lieu of acquisition of her land of Khasra no. 607, village Bahapur, measuring (23­10) Bigha against award, enabling her entitlement, however no such record or material of ownership, even by way of a copy of Khasra No.607 in village Bahapur is brought on record by accused to show an attempt qua her bonafide ownership. The reason in its background is then shown on record that that land in question bearing Khasra No. 607 was acquired and the award of LAC was made in favour of one Sh. Shankar Das Seth, who has claimed the compensation as well. The record in this regard was brought by PW23 Sh. Ravinder Kumar, Naib Tehsildar at the office of LAC, who was shown D­33 (a letter dated 27.08.2015), which he himself gave to IO/Insp. A.K. Saini and provided him the document i.e. Award No. 2059 dated 24.01.1968 of Village Bahapur. He specifically stated that against acquisition of Khasra No. 607, no compensation has been given to Rattan Kaur W/o Bachan Singh nor it was claimed by her. He then exhibited his own letter as Ex.PW23/A and the certified copy of award No. 2059 as Ex.PW23/B. While making the statement in Court, he detailed that there were 109 claimants and name of Rattan Kaur W/o Bachan Singh nowhere came to be found. He then stated that no query was received from Land & Building Department regarding ownership of Khasra No. 607, Village Bahapur. In the absence of any fruitful substantial cross­ examination, the above statement established two facts. First, that no CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 153 of 291 verification of revenue record showing entitlement of Rattan Kaur was even called, meaning thereby the A2 omitted to perform the obligation. Secondly, that the omission was deliberate and willful since A5 Rattan Kaur had no such land in village Bahapur as Khasra No.607 which was actually owned by Sh. Shankar Dass and she was not entitled to any advantage under the Welfare Scheme of 1961.

330. The only question left in this circumstance then is whether the omission was deliberate or willful since A2 held previous knowledge of the fact of dis­entitlement of A5 to any such benefit and the omission was not an outcome of negligence is also answered from the fact that the A5 Rattan Kaur was related to A2 S.S. Malhji being 'Sali' of his elder brother which is a sufficient circumstance to establish that the avoidance qua calling of the verification was deliberate and will full and was extended as a cause for further omissions such as is shown from statement of PW27 Sh. Ram Tirath, Patwari from the office of SDM, Dwarka, Delhi, who provided the copy of Jamabandi of village Bahapur as well as Mutation Register of village Bahapur against letter dated 14.11.2014 bearing signatures of Sh. Ajay Kumar, ADM, LAC, South Ex.PW27/1. The copy of Jamabandi was exhibited as Ex.PW27/2. Another documents Ex.PW27/1 showed acquisition of Khasra no. 607 against award no.2059, Ex.PW27/2 (colly). The record of Jamabandi was translated by PW9 who stated that ownership of the land was in favour of Late Shankar Dass, who had also received CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 154 of 291 compensation of Rs. 50542.40. PW10 Sh. Kishan Lal, Kanoongo then exhibited on record sent alongwith the letter dated 26.10.2015 Ex.PW10/B of Superintendent, LA Branch, Land & Building Department, which read that Khasra No. 607, (23­10) was acquired vide notification no.4, file No. F­15(III)/59/LHG dated 13.11.1959 and notification No.6 file no. F­4(44)/65/L&B dated 16.05.1966 and the possession of the said land was handed over to DDA on 30.05.1972 under Section 22(1) vide file No. F­8(49)/63/L&B dated 30.05.1972 (D­32) as per exhibited records.

331. At the cost of repetition, it is observed that no contradiction qua this part of the record i.e. copy of Jamabandi of village Bahapur, copy of Nakhsa Mant Zamin of Award no. 2059 of village Bahapur and/or the statement qua record received by PW23, PW27, PW10 and PW9 was raised, which led to proving of the contents of the above record beyond doubt. This hence conclusively proved that no ownership right or interest in land bearing Khasra no. 607 village Bahapur existed in favour of A5 Rattan Kaur who was known of A2 S.S. Malhi leading to establish the fact of his prehand knowledge due to which no attempt for calling verification was ever made by A2 S.S. Malhi.

332. The aforesaid statements of PW9, PW27, PW23 coupled with statements of PW21, PW17, PW42 and PW59 showed that the contents of Ex.PW2/B (Letter of Recommendation) were ingenuine. It CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 155 of 291 also showed and accounted for reason due to which no verification was called from department of Revenue Branch of DDA or LAC.

333. In the aforesaid context, it is intriguing to note that despite calling no record or verification from the respective offices of LAC, Revenue, L&BD and/or Legal Department, A2 S.S. Malhi issued a verification on the note sheet under his hand and signatures which fact is stated by PW51 Insp. Sanjay Kumar, who collected 27 note­sheets with verification in handwriting of A2 S.S. Malhi with his signatures. Though the specimen signatures/initials etc. were obtained and witnessed by PW33 Sh. Nitin Narang/PW6 Sh. Chhattarpal, no dispute qua the handwriting and signatures of A2 S.S. Malhi on the verifications on Ex.PW51/B was ever raised. No dispute whatsoever was even raised to the fact that he gave verification report. One argument which he sought to raise as defence or denial is out of context, as accused tried to shrug of his responsibility on account of lack of jurisdiction on his part to deal with all existing zone/districts. However, as observed above, this averment is meritless on the face of it, for not being supported with any such official order or circular, suggesting his having been assigned only one zone. The attempt of corroboration sought through cross­examination of PW53 A.K. Saini was in vain as he denied knowledge of any such fact, in which case it was on A2 to establish his incapacity to deal with other zones for alleged lack of jurisdiction qua which no effort was made. Moreover, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 156 of 291 he is the only dealing hand shown on record to have participated in meetings of Recommendation Committee and was responsible for verification alone as is stated by PW2 and PW50 specifically which leaves no ground for any contradictory averment at the stage of final arguments.

334. Factum of familiarity and proximity of A2 and A5 is detailed by PW36 Satvinder Singh, cousin of A5, who also stated that she A5 'Sali' of Sardar Charanjit Singh, elder brother A2 which fact was reiterated by wife of S.S. Malhi (PW41) Smt. Harbhajan Kaur. It is hence intriguing that how her real identity skipped the eyes of A2 who should have been in bonafide exercise of his duty being the first person to identify her through her photographs and had known the fact of her making false statements qua her identity though her application which came up before him he being the first interface between her and the Alternative Branch.

335. The fact that Pinder Kaur was married to Sakkatar Singh is established during the statement of PW36 Sh. Satvinder Singh (cousin of Pinder Kaur), PW41 Smt. Harbhajan Kaur w/o A2 S.S. Malhi, who both have stated categorically that she was married to Sakattar Singh. Similar statement is corroborated by PW43 Smt. Mandeep Kaur, Sarpanch of Village Nagoke, who identified Pinder Kaur from the photograph of Perpetual Lease Deed dated 20.07.2004 which was in name of Rattan Kaur W/o Sh. Bachan Singh R/o 3, Oak Estate, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 157 of 291 Mussorrie Road, Dehradun as wife of Sakattar Singh. She identified her even physically and from photograph Ex.PW3/B and Ex.PW37/E as she was resident of her village of which she was Sarpanch,

336. The fact that Rattan Kaur (A5) is actually Pinder Kaur is further established from the statement of PW26 Sh. Prem Kumar Thakur, Dy. Director, Govt. of India, Ministry of Communication and IT, who brought the documents pertaining to e­Aadhar No.261749855959 (Enrollment No.1104/75593/00262) in the name of Smt. Pinder Kaur w/o Sh. Sakatar r/o Nagokete TaranTaran, Punjab and copy of Aadhar card, which he exhibited as Ex.PW26/C.

337. In continuation came on record the statement of PW29 Sh. Rakesh Kumar, Retired Election Tehsildar, Amritsar, who vide email Ex.PW29/1 and voter ID list Ex.PW29/2 stated that voter ID list pertaining to village Nagoke, booth no. 163, vote no. 322, of Assembly Constituency, 25 Baba Bakala, which was in the name of Sh. Bhupender Kaur W/o Sh. Sakatar Singh and for separate year as Chhinder Kaur. Though in cross­examination witness admitted that the list is in Gurumukhi, it could not dispel the fact of its genuineness and name of Pinder Kaur @ Chhinder Kaur @ Bhupinder Kaur as the voter/election card holder of village Nagoke and name of her husband being Sakatar Singh.

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338. Similarly, Sh. P.S. Rawat (PW32), Assistant District Election Officer exhibited the list of polling station as Ex.PW32/A (colly) which was for the 1996 and showed that the voter ID card bearing No. KZR 0821491 submitted by Smt. Rattan Kaur w/o Sh. Bachan Singh was fake as there was no such voter, having voter ID card as KZR 0821491. It is again necessary at this stage to note that voter ID Card of Smt. Pinder Kaur was recovered from search of her house of Nagoke which search list was provided by PW34 Sh. Chirag Saluja, an independent witness and officer Oriental Bank of Commerce, Aloarkh, Tehsil Bhawanigarh, District Sangrur, Punjab, wherein, during search, duplicate voter ID card of Pinder Kaur and attested copy of death certificate of Sakatar Singh was recovered and exhibited as Ex.PW34/B.

339. The prosecution, in fact efforted to bring Sh.Charanjeet Singh, brother of A2 S.S. Malhi, who was examined partly, however at the stage of cross­examination, he fell ill and later on passed away, due to which, his evidence could not be concluded and reliance on his part examination is not made.

340. The fact that name of husband of Pinder Kaur was Sakattar Singh is further established through the statement of PW45 Sh. Mohinder Singh Jassal, who issued the death certificate bearing no.11014 Ex.PW45/A and bearing the details of deceased as Sh.

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Sakattar Singh S/o Sh. Santok Singh with place and date of death - Nagoke on 24.01.2007, Tehsil Khadur Sahib, District Tarn Taran on 03.05.2012. No controversion is made to above statement by any cross­examination. Further, the statement is reliable as the witness is a neutral witness and deposed in his official capacity.

341. Another fact that no person by the name Sh. Bachan Singh R/o 3, Oak Estate, Mussorie Road, Dehradun was registered against Birth and Death (Rural), was stated on oath by PW24 Mohd. Mustafa Khan, District Panchayat Raj Officer (DPRO)­cum­Addl. District Registrar, Birth & Death (Rural) office of Chief Development Officer, Vikas Bhawan, Kandolia, Parui Garhwal. The witness detailed that the death certificate of Sh. Bachan Singh s/o Sh.Randhir Singh is a forged document/certificate as no such address of 3, Oak Estate, Musoorie Road, Dehradun, Uttrakhand is found in Dehradun. He handed over the performa in which death certificate is issued by their department at Uttrakhand against seizure memo dated 15.09.2015 Ex.PW24/B. He stated that the death certificate Ex.PW24/C which is shown to have been issued in State of UK (Uttrakhand), "Uttranchal Sarkar Rajdhani Dehradun Kshetr" and is signed by Dy. Registrar is a forged document as no such post of Dy. Registrar exists in the State. The certificate should have been signed by Registrar, whose signatures do not exist on the certificate. On the rubber stamp used in their office, word "Karyalaya" is not mentioned. He then stated that two logos are put on CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 160 of 291 the death certificate, issued in the State of Uttrakhand. One logo is of "Uttrakhand Government" and the another is of the "Registrar General, Govt. of India". There are no directions to write on death certificate "Government of Uttranchal Capital Dehradun Region". He then exhibited proforma Ex.PW24/D in which the death certificates are issued and on the basis of the aforesaid, he stated that the death certificate in name of Sh. Bachan Singh was a fake document/death certificate.

342. Ingenuinity of the address was then stressed with the statement of PW30 Sh. Prabhat Chand Sharm, Postman, Bhagwantpur, who stated that no such address existed which fact was then confirmed by PW31 Sh.Bharat Singh, Public Relation Inspector, who had exhibited his report Ex.PW31/1 that no address such as H. No.3, Dak/Oak Estate, Mussorie Road, Dehradun existed.

343. In view of the assessment of the aforesaid fact, the report of verification made by A2 S.S. Malhi on Ex.PW51/B regarding the genuineness of claim and compliance of documents becomes apparently false and ingenuine.

344. The facts discussed above hence create an intriguing preposition as to how in first place the application of A5 as requisited came to be moved by A­5 and reached the hands of accused S.S. Malhi and if no such file was created in the first place in alternative branch, then how CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 161 of 291 the recommendation Ex.PW2/B came to be issued in favour of A5 from the Alternative Branch. By an imaginative stretch the possible inference of indulgence upon any such application can only be in the sole circumstance where the application is created and or received by hands of the dealing accused (A1 and A2) in this case, which fact is admitted through rebuttal arguments of ld. Sh. Javed Akhtar who stated that in certain cases applicants approached the Department and HOD received the application and marked it for further action.

345. The fact that due process on application in favour of Rattan Kaur was not followed is further strengthened from the statement of PW­5 Sh. Satish Kumar who informed absence of any diary entry at the Central Diary where the applications of such nature were to be first received and diarized, which fact is again unrebutted as no substantial cross examination to challenge the correctness of his statement is received on record.

346. Ld. Sh. Javed Akhtar tried to shift the onus of absence of related record of file no. F.32(21)/43/89/L&B/Alt. Upon investigation and claimed that A­2 should not be made to suffer due to failure of investigation agency to collect the document, as an attempt to cover up for his clients deliberate acts of omissions. No occasion is shown existing for prosecution to collect the record if none is existing. Before attributing the failure on investigation, no effort is made by exercising opportunity of summoning the existence of the file no.

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F.32(21)/43/89/L&B/Alt., which shows the knowledge of accused qua non­existence of such record.

347. The conduct of A2 S.S. Malhi is also castigated by PW50 Smt. Usha Chaturvedi who has straightway denied the suggestion that A2 S.S. Malhi fulfilled his duties as per procedure, who was responsible for processing of file of A5, was done by A2 and same was presented through A1 before the Committee as the matters were pertaining to their department. (At this stage, I am refraining from further discussions qua A1 Badrul Islam as proceedings qua him abated due to his demise vide order dated 11.08.2021).

348. The other limb of argument that one member of the committee cannot be faulted alone and if there exists malice same is to be imputed against all the members in making recommendation in favour of accused Rattan Kaur, is now to be discussed. A common defence is taken by all accused persons stating that since the Committee itself, was comprising of four higher officials, one being a Secretary (PW42 Sh. Prakash Kumar) and others being PW2 Sh. Z.U. Siddiqui and another being from the Legal background (PW17 Sh.Subhash Gupta, Dy. LA), accorded the recommendation, no responsibility incontrast can be appended only on A1 and A2, who were junior to above officials.

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349. The merit of above arguments is to be tested in wake of evidence on record. PW50 pointed out to the role and responsibility of A­2 and A­1 (since deceased) by way of assertion that verification was the responsibility of A1 Badrul Islam and A2 S.S. Malhi, whereafter only the file was to be put up before the Recommendation Committee. Nowhere, other members of Committee were cited responsible for the verification. No circular, rule or manual etc was present to suggest that all the members were to be held jointly responsible for act of omission and malfide of not calling the verification in first place. Secondly, there is no explanation that how the committee members are to be blamed for believing the statements of their own officials and in turn trusting their actions and taking a decision based out of such trust, believing that they performed their part of responsibility, diligently.

350. PW­50 clearly stated that once the file was processed through the department under the signatures of the HoD (in this case A1 Badrul Islam), the Committee was left only with the responsibility of discussions on the presented material. Since no disbelief occurred in the minds of Committee Members qua the verification having been called in by the Alternative Branch, no cause to call the fresh or re­ verification existed. No rules or guidelines are brought on record by accused persons to state that despite an earlier verification by Alternative Branch it was mandated that re­verification independently CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 164 of 291 at the Committee level is called, which step was omitted or faulted by the Members to hold them equally responsible with accused.

351. It is to be noted at the cost of repetition that file with a verification report suggesting its being in order and confirming that it is complete, is issued by A2 S.S. Malhi and was put up before the Committee. This being the case unless and until some anomaly was apparent to create a doubt in the above report, no occasion was caused for raising suspicion to call further steps or send the documents for re­ verification which fact is stated and corroborated by PW­17 specifically.

352. It is to be noted that no such process of verification/re­ verification existed at the end of committee is evident from the statement of PW­2 Z.U. Siddiqui and PW­17 as well as from Ex.PW2/A (Minutes of Meting) as two cases where committee did not find the matter in order were kept pending for re­consideration and nine matters were rejected, which showed that in case of doubt matter was re­referred to Alt. Branch and no separate process at the end of committee per se was called. It also states that committee members acted bonafide and also that, all efforts were made by A1 and A2 to keep the record in order, so that no ground for suspicion / doubt or for its re­consideration/rejection becomes apparent.

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353. Similarly, in this context PW17 Sh. Subhash Gupta detailed that his opinion was not required upon legal documents such as affidavit, indemnity bond, relinquishment deed and various court orders, since no such need was pointed out. He also detailed specifically that the report of LAC and other revenue records were called for and verified by Alternative Branch and all these documents were used to be part of record.

354. PW17 also stated Alternative Branch was headed by A1 Badrul Islam, Dy. Director, Alternative, and after all the necessary verification from Land Acquisition Collector etc. were carried out by this Branch as and when the file was placed before the Committee for deliberation. Thus, again stressing that it was the responsibility of A2 and A1 (since deceased) to ascertain the factum of entitlement and eligibility through process/practice in terms of guidelines Ex.PW19/D before the matter came up for deliberation upto the Committee which was left only to conduct discussions on the basis of material placed before it. Similarly, in this case, the Committee was only left with the possible scope of carrying discussion on the file presented to it since nothing was stated incomplete. The discussions were held as is shown from the Minutes of Meeting Ex.PW2/A and the recommendation was made. During his testimony PW17 Sh. Subhash Gupta, Member of Recommendation Committee identified his signatures on Minutes of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 166 of 291 Meeting, list of recommended cases, list of rejected cases, list of cases recommended for re­examination.

355. It is also stated by PW17 that the recommendation letter no.F­ 32(21/43)/89/L&B/Alt./20735 dated 28.03.2003 pertaining to allotment of alternative plot was signed in favour of Rattan Kaur by A1 Badrul Islam whose signatures he identified. Similar corroboration is made by PW2 Z.U. Siddiqui and other witnesses, though it is undisputed, at which point he reasserted that role of the Committee, to consider the records made available in the file by Alternative Branch headed by A1 Badrul Islam and explained that the Committee had no means to find out the genuineness of the documents collected by Alternative Branch i.e. A1 Badrul Islam and A2 S.S. Malhi and moreover, there was no reason to disbelieve their verification.

356. He detailed that Minutes of Meeting held on 03.12.2002 was prepared by A1 Badrul Islam and signed on 04.02.2003 and the reasons for delay can only be explained by him. He also detailed specifically that when the matter was placed before the Recommendation committee, there was no practice for re­verification by the Committee Members during deliberations. This suggests that A1 Badrul Islam being the part of the Committee was well aware of this practice and expected the advantage of the above practice.

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357. PW42 Sh. Prakash Kumar in his capacity as Chairman of Recommendation Committee detailed that since the application for allotment of alternative plot in lieu of acquired land since is moved before Dy. Director (Alternative Branch), who only presents such files, he being custodian of files, after conclusion of the meeting, is responsible for drafting/preparation of Minutes of the Meeting and gets it signed by others members. He reiterated that the draft Minutes were put up by the Dy. Director through Joint Secretary and Dy. Legal Advisor before him, he being Secretary (L&B). After correction they were put up by Dy. Director to the above mentioned officers for final signatures. He also detailed that all the papers including original Minutes of Meeting were used to be in custody of Alternative Branch headed by A1 Badrul Islam. He affirmed that case of accused Rattan Kaur w/o Bachan Singh was recommended in the said meeting as mentioned at serial no.5 in annexure Ex.PW17/D­2. (At this stage, it is observed that this witness was confronted with the annexure which tentamounts to admission of its contents). He corroborated that as per the rules and practice, Dy. Director (Alt) being the head of Branch was required to process all such files and obtain verifications. He stated a provision also existed for personal verification of records by Alternative Branch, further strengthening the statement of PW50, PW2 and PW17, giving option of exercise of possible exceptions, whenever requisited to confirm the correctness of documents. This statement deals with argument of Sh. Javed Akhtar, ld. Counsel where as he CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 168 of 291 claimed that there was no provision of personal verification, for want of practice, and only mode available was through dak.

358. Moreover, the reliance upon the statement of PW50 Smt. Usha Chaturvedi by ld. Defence counsel, where she stated that the verification was to be called by Dak, is of no avail as she only stated about the prevailing practice in normal course. The general practice of calling verification by Dak could not be stressed in case of circumstances warranting use of exception as a normal mode which fact is stressed by PW50 also, specifically in her deposition and stands corroborated through the statement of PW42 Sh. Prakash Kumar, who both stated about the possibility of verification through physical/personal mode. Hence, in such a case where the application in name of Rattan Kaur came up with photograph of Pinder Kaur, had their been no involvement of A2 he could also have taken resort to the verification personally if any doubt existed. However, in present case no steps were shown to even having resorted to normal compliance of calling the verification by DAK, in which background, it is an extraneous argument and holds no merit.

359. While the crux of testimony of above witness giving significant details and insights on facts could not be challenged, refuge is sought under the claim of irregularities and possible malafide at the hands of the Committee by pointing fingers qua delay in signing of Minutes of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 169 of 291 meeting held on 03.12.2002 and signatures having been appended only on 04.02.2003.

360. Though, the objection qua delay was raised, it fell on the shoulder of the accused themselves as the witness PW2, PW17 and PW42 categorically stated that the responsibility of preparation of Minutes of Meeting was on A1 Badrul Islam, only, and casting the allegation of malafide on the part of Committee Members in delayed signing of Minutes, which is raised and alleged as a proof against them, suggests nothing in favour of defence.

361. It is unexplained that how the delay in signing the Minutes in fact has created any scope of advantage in their favour. Moreso, when neither the contents of Minutes nor the signatures are disputed, as the document itself is not claimed ingenuine or tampered, how the delay in signing the same could dislodge or create advantage for accused is unstated.

362. PW42 during his cross­examination reasserted the same facts. He reiterated that the Minutes of Meeting were to be prepared by HoD, Alternative Branch A1 Badrul Islam and then were to be signed by other Members including himself. The delay in preparing these Minutes of Meeting in such circumstances did not fell in the sphere of the prosecution to explain but it was duty of A1 to explain the reasons of delay in finalizing the draft Minutes.

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363. As the factum of recommendation letter Ex.PW2/B having arisen out of file No. F.32(21)/43/89/L&B/Alt is undisputed, it cannot be disputed that the file of A5 was put up before the committee for deliberations. It then becomes intriguing that while the recommendation letter (copy of DDA) only survived, the file as per report of PW5 Sh. Satish Kumar went untraced. It is necessary to note that not only the file no. F.32(21)/43/ 89/ L&B/Alt but also both other copies i.e. Pink colour copy earmarked for Department and yellow colour copy for recommendee also have not been produced/found or traced.

364. The fact of file no. F.32(21)/43/ 89/ L&B/Alt being untraced is corroborated by the statement of PW19 Sh. Dinesh Kumar. He through office letter No. F.Misc/ CBI/ Inquiry/ 2015/Alt./L&B/Pt.1/10561 dated 28.08.2015 (D­12) written by Dy. Secretary (Alt.) Sh.Ramesh Kumar corroborated the information that file No. F.32(21)/43/89/L&B/Alt. was not traceable in the Alternative Branch and was not consigned in the Central Record Room from the Alternative Branch vide Ex.PW19/B & Ex. PW19/M.

365. While the evidence qua non­existing status of file no. F.32(21)/43/89­L&B/Alt. and/or its non­traceability is stated by PW1, PW5 and PW19, the efforts were made by accused to show otherwise. Ld. Sh. Javed Akhtar imputed and claimed that delibertely the file was not traced. He relied upon the charge report Ex.PW8/A which he CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 171 of 291 claimed to have been signed by PW8 Smt. Sheela Devi and showed that file of Rattan Kaur was one of files mentioned therein being handed over alongwith the charge. He stated that while A2 was discharging his responsibility, Smt. Sheela Devi (PW8), LDC took over the charge from him on instructions of A1 Badrul Islam in the month of June, 2003 and as per her own admission she received all the files and had passed on all the files after due calculation to her successor Sh. Satbir Singh, LDC, again at the instance of A1 Badrul Islam. At no stage, the factum of non­traceability of any file is brought to the notice of A2 S.S. Malhi and/or was informed to the department. However, ld. Counsel is attempting towards selective reading of record while omitting deliberately to read the complete statement of PW8 wherein she denied her signatures on Ex.PW8/A the charge report which fact was confirmed through the statement of PW37 the Forensic Expert.

366. PW8 Smt. Sheela Devi has detailed circumstances in the background under which the exchange of charge between her and S.S. Malhi took place. She stated that she acquired the job against the post of LDC on compassionate ground due to death of her husband and that she is unable to read English. While she was instructed to take charge by A1 Badrul Islam, she shared her incapacity to deal with such volume of files, the contents of which were in English. Despite the same, she was burdened with the charge. Finding no other way, she CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 172 of 291 took charge of the entire almirah by taking over the keys instead of taking charge of file separately. She detailed that there was a tacit arrangement wherein while the keys of almirah remained with her and file remained in almirah, the work in the files was being discharged by A2 S.S. Malhi. She detailed that though she kept keys of the almirah she did not open it. The charge of the files was handed over in the same manner by her to Sh. Satbir Singh her successor by simply handing over the keys of almirah. She asked him to seek her help if he did not find a file. The entire handing over of charge process took only 15/20 minutes for such volume of files (around 830 or more).

367. The process of taking over of charge from A2 S.S. Malhi and handing over of charge to Sh. Satbir Singh in terms of statement of PW8 rather provide sufficient disclosure and indication to the fact, that while knowing fully well her incapacity to deal with such volume of files, the contents of which were in English language, she was brought, in, for a very small duration to show the release of doubtful files from the custody/possession of A2 S.S. Malhi. There is no dispute by way of any controversion on cross­examination having been put specifically to the fact that A2 S.S. Malhi was not accessing the files and discharged the work while she held the charge for its sake and only kept the almirah's keys.

368. The facts unfolded uptill now hence show that a fictitious file no.F.32(21)/43/89/L&B/Alt. was caused to be created in Land & CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 173 of 291 Building Department/Branch and was carrying fake record in favour of false entity Rattan Kaur w/o Sh. Bachan Singh and after the recommendation was received through Minutes Ex.PW2/A the file silently went untraceable and was never shown existing. It is also uptill now explicity shown that the file was presented and maintained under the custody of A2 who knew A5 being his own relative and thus actively omitted to call for due verifications stipulated qua proof of her being landowner of Khasra No. 607, Village Bahapur and of its acquisition etc.

369. The efforts to conceal and alter the actual identity of Pinder Kaur as Rattan Kaur is also evidenced further and is discussed in upcoming paragraphs where the facts qua hiding the identity of her husband Sakatar Singh alongwith her fake residential address being generated is discussed.

370. Thus, all the discussions above showed that recommendation letter Ex.PW2/B was extracted through the alternative Branch headed by A1 and in assistance of A2 from Recommendation Committee in name of fake and fictitious person i.e. A5 Rattan Kaur, who was relative of A2 and her real name being Pinder Kaur w/o Skattar Singh R/o village Nagoke.

Recommendation letter used for allotment of plot 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi.

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371. Subsequent to the recommendation letter Ex.PW2/B was issued under the hand and signatures of A1 Badrul Islam (since deceased), it was received in the Land Sale Branch of DDA and was received through Diary entry of Central Diary No.2569 (mark­E) on 01.04.2003 by PW46 S.C. Kaushik on which he put up a note and created a file bearing no. No.F­27(8)/2003/LSR(R)(Ex.PW7/A) for allotment of a plot. PW46 further explained that recommendation letter was received in the office of Director (Residential) vide diary no.1233 dated 03.04.2003, which entry was then marked as mark 'G'. His office received the letter on 03.04.2003 vide diary no.15­R which was then marked as mark 'H', which was then endorsed by Sh.K.D. Reddy, Dy. Director and was further endorsed to Programme Assistant Sh. K.K. Sharma (PW7) on 07.04.2003. The letter was then put up before him on 09.04.2003 and against his noting dated 09.04.2003 in file No.F­ 27(8)/2003/LSR(R) Ex.PW7/A the file was opened by him on 09.04.2003 pertaining to allotment of plot to Rattan Kaur w/o Sh. Bachan Singh on receiving the letter from Land & Building Department. At this stage, PW46 identified his signatures at point A beneath his noting.

372. PW46 then described that the contents of letter Ex.PW2/B and stated that purpose of recommendation letter was allotment of alternative plot under the Scheme of Large Scale Acquisition and Development and Disposal of Land in Delhi, 1961 and a request for CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 175 of 291 allotment of an alternative plot measuring 400 sq. yds to Rattan Kaur W/o Sh. Bachan Singh R/o 3 Oak, Estate, Mussoorie Road, Dehradun was made therein.

373. He stated that in terms of the recommendation letter Ex.PW2/B it was mentioned that the 'Recommendation' for allotment in 'lieu' of her acquired land bearing Khasra no.607, measuring 23­10 bigha in which her share was half which was stated to have been acquired vide award no.2059 dated 24.01.1968 of village Bahapur, Delhi in South Zone and the date of acquisition of physical possession being 30.05.1972 against which she was entitled for the allotment of an alternative plot.

374. He then detailed that vide Ex.PW7/A which was the draw list of result vide programme No. LSE(R)D00034 Rattan Kaur W/o Bachan Singh was allotted plot no.262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi, measuring 270 sq. mtrs. in Dwarka Residential Scheme which list was then exhibited as Ex.PW46/A. He detailed that as per page 2/N of Ex.PW7/A (The file), the draw of lots for allotment of alternative residential plots of Dwarka, Rohini and Narela was held on 29.05.2003 in vigilance of two judges outside DDA vide file No. F.1(4)/2003/LSB(R). In the result of the draw, A5 Rattan Kaur @ Pinder Kaur was held successful and plot no.262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi measuring 270 sq. mtrs. in Dwarka CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 176 of 291 Residential Scheme was allotted in her favour as per list Ex.PW46/A. The result of draw of lots was confirmed by VC, DDA since the allotment took place on 29.05.2003 in presence of two independent outside judges.

375. After the allotment was made in her favour for an alternative plot bearing no. 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi, the movement began in the system's department of DDA for generating allotment letters of successful recommendee and the demand/allotment no.F.27(8)/2003/LSB(R)/5813 dated 27.06.2003 (Ex.PW7/C) regarding allotment of 262, Block­A, Pocket­2, Sector­ 17, Dwarka, New Delhi in favour of Rattan Kaur was initiated and was put up for signatures of Dy. Director by PW46 vide noting dated 27.06.2003, on which he identified his signatures during court statement at point C and that of Sh. K.K. Sharma, Programme Assistant/Dealing Assistant at point B.

376. Before the possession letter in favour of A­5 was processed, PW46 prepared a note dated 05.09.2003 under his handwriting, which he exhibited as Ex.PW46/E, for calling confirmation of deposit of payment and file was sent to AAO (Dealing­I) on 08.09.2003. The account officer (Billing) then returned the file and issued a certificate regarding acknowledgement of amount of Rs.11,98,000/­ vide challan No. 10283303 dated 17.07.2003 as per note dated 24.09.2003 of AO CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 177 of 291 (Billing), the NOC was received from Account Branch, confirming the amount of Rs.11,98,000/­ having been received, PW­46 put up the possession letter for onward signatures on 26.09.2003 vide noting Ex.PW46/F.

377. Subsequent thereto, the file was then marked to Asstt. Director on 27.06.2003 who marked it to Dy. Director (R) for signing the demand­cum­allotment letter Ex.PW7/C and after the allotment letter was signed, the file was sent for dispatching the allotment letter which letter was then entered in property register at serial no.262 page no.62. A corrigendum letter no. F.27(8)/2003/LSB(R)/6057 dated 02.07.2003 Ex.PW46/B was then received from the System Department qua PDR regarding information of increase in provisional rates, which was then put up by him on 30.05.2003 against his noting at point X on page 2/N on noting portion of file Ex.PW7/A (D­9).

378. The copy of demand letter Ex.PW7/C was endorsed to Joint Secretary, Land & Building Department, Vikas Sadan and the letter was then dispatched at the address of Rattan Kaur W/o Sh.Bachan Singh R/o 3, Oak Estate, Musoorie Road, Dehradun, however, this letter was returned back with the remarks "Yeh dak pata dak ghar bhagwantpur me nahi hi, masoori me try hethu vapis" ON 09.07.2003. He also exhibited PoD was returned back by the postal department and has exhibited it as Ex.PW46/C (D­9, page 11/C). On receiving this CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 178 of 291 letter from the postal authorities, a note was put up on 11.08.2003 by Sh. K.K. Sharma regarding procuring the complete address of allottee Rattan Kaur and the file was submitted for orders stating that corrigendum letter dated 02.07.2003 issued to Rattan Kaur has been received undelivered, though the allotment letter had not been received back.

379. Before moving to further discussion, at this stage, I intend to take a pause to discuss the statement of the witnesses pertaining to return of corrigendum on 09.07.2003 since the said fact is corroborated by PW30 Sh. Prabhat Chand Sharma. PW30 was posted as Postman, Bhagwantpur. During his statement he was shown note "yeh pata dak ghar Bhagwantpur mai nahi hai, Mussori mai try hitu vapas" bearing his signatures at point A with date 09.07.2003 which note had already been exhibited as Ex.PW28/D4. He identified his own signatures and also exhibited another empty speed post envelope sent by DDA file No.7/(8)/2003/LSB (R)/6386, on which he had also put a noting in Hindi "Is Naam ka yaha koi nahi hai, Vapas" with his signature at point A with dated 30.06.2005, which he exhibited as Ex.PW30/1. He then was shown empty ordinary post envelope by DDA having file No.F27/(8)/03/LSB(R)/7334 on which he put the note in Hindi "kafi puchne par ye sathan yaha nahi hai, Vapas" at point A under his signatures with date of 01.08.2005. The envelope was exhibited as Ex.PW30/2. He also exhibited empty ordinary post envelope by DD CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 179 of 291 having File No.F27/(8)/03/LSB (R)/7334 on which he had put a note in Hindi "Bhagwantpur dak ghar mai iss naam ka koi nahi hai or na hi is parkar ki koi Estate hai, Vapas", which in fact bears his signatures at point A with dated 07.09.2005, which he exhibited as Ex.PW30/3. He also went on to state that there was no area as Oak Estate Mussoorie Road, in Dehradun. His statement was then corroborated by PW31 Sh, Bharat Singh, Public Relation Inspector in the office of Senior Post Master, GPO, Rajpur Road, Dehradun, who was asked to verify the address H. No.3, Oak Estate, Mussorie Road, Dehradun from the area postman and had reported that no such address existed in Dehradun, which report alongwith letter of his superior Sh. Y.S. Aswal, the then ASP was exhibited as Ex.PW31/1.

380. Another connected evidence corroborating the facts of non service delivery of letters to A­5 is made by PW6 Sh.Chhattarpal, Asstt. Director. He stated about the letters issued by Land Sales Branch (R) to the allottee and exhibited the report of DDA to CBI bearing letter no. F.27(8)/2003/LSB(R)/Part/2326 as Ex.PW6/A dated 01.12.2015. The letter was in relation to seven letters issued by DDA. Out of the said letters, five letters viz. no. 6057 dated 2.7.2003, 9245 dated 3.10.2003, 2873 dated 24.03.2004, 3549 dated 07.04.2004 and no. 10160 dated 25.09.2004 were not received back in his office. The remaining two letters nos. 6386 dated 23.06.2005 and 7334 dated 25.07.2005 were returned back undelivered in R&D Lands and same CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 180 of 291 were sent back to LSB(R) the issuing sections. In response to the above said statement, there was no cross­examination which infact corroborated the statement.

381. The factum of allotment is again corroborated through the statement of PW25 Sh. N.S.Bhati, Section Officer, Lease Administration (Residential Branch), who against production­cum­ seizure memo dated 01.07.2015 (Ex.PW25/A) handed over the original DDA file no. 27(8)/2003/LSB(R) pertaining to the allotment of plot no. 262, Pocket­2, Block­A, Sector­17, Dwarka, New Delhi. He confirmed from the original file of DDA Ex.PW27/8 the factum of allotment of plot no. 262, Pocket­2, Block­A, Sector­17, Dwarka, New Delhi in favour of A5 Rattan Kaur against draw held on 10.07.2003 and stated that this file was maintained in LAB (R) Section in DDA. He was cross examined by ld. Sh. Ran Vijay Singh wherein the contents of chief and statements of other witnesses qua consignment of dealt file to Central Record Room as well as the procedure stated was confirmed. However, he was asked as where the file is placed after the work is completed, to which he replied that it was consigned to Record Room and on the asking of CBI, it was retrieved from Record room with permission of senior officials. He was further asked in cross­ examination as how the allotment took place when A5 was not found at the address in record and was confronted with report 18/N of the note­sheet, where it is written "is naam ka yaha koi nahi hai, naa hi CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 181 of 291 aise estate hai", In fact, this very question was needed to be answered by A­5 herself which the prosecution had raised. It was for A5 to explain that how in absence of any information of allotment of plot been received by her at address given on record she came to know about the allotment and complied with the formalities.

382. At this stage, I intend to observe that had contrary cross­ examination not taken place by Sh. Ranvijay Kumar, ld. Counsel for A5 Rattan Kaur, a possibility may have feebly survived to presume that since the possession letter was not received back the allottee Rattan Kaur may have received intimation from the same, however since in cross­examination this presumption was dispelled showing that at no stage any letter was received from DDA by her, it becomes even intriguing that how she received the information leading to her appearance at DDA office in public hearing.

383. Another significant piece of evidence offering corroboration of the aforesaid facts and circumstances on record is through the statement of PW7 Sh. Kamal Kumar Sharma, Retired Assistant Director, DDA. He was shown original File No. F­27(89)/2003/LSB (Residential) (D­9), which he exhibited as Ex.PW7/A (colly). He testified that file Ex.PW7/A pertains to allotment of alternative plot number 262, Pocket­II, Block A, Sector 17, Dwarka, New Delhi in favour of Smt. Rattan Kaur, wife of Bachan Singh, while at the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 182 of 291 relevant time he was posted as Programme Assistant­PA in Land Sales Branch Residential from January, 2003 to October, 2003.

384. He exhibited letter No. F.32(21)/43/89­L&B/ALT 20735 dated 28.03.2003 and serial no. 01142 (D­9 page 1C), which was exhibited as Ex.PW2/B (recommendation letter) and was received in DDA on 31.02.2003 vide diary no. 8608 and was marked to Commissioner (Land) vide diary no.3569. This letter was received in Director's office (RL) on 03.04.2003 endorsed on 04.04.2003 and further endorsed to him on 07.04.2003.

385. From this statement it came out clearly that the movement in the Land Sale Branch (R) in respect to allotment of alternative plot began on receipt of letter of recommendation Ex.PW2/B which was diarized on 31.02.2003 and was processed vide diary no. 868 and went upto the Commissioner office against diary no. 3569 which then was received in Director (RL) office on 03.04.2003 and was endorsed on 04.04.2003 and was further endorsed by the director to PW7 on 07.04.2003.

386. His statement also corroborated the fact that the recommendation letter Ex.PW2/B alongwith a note was put up to him by Dealing Assistant Sh. S.C. Kaushik (PW46) at point A which he identified and exhibited as Ex.PW7/B. The witness lend credence and corroboration to the statements of other deposition of PW­46 qua the fact of PW­46 having put a corrigendum of Final Pre Determined CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 183 of 291 Rates which he signed on 30.06.2003 and after being approved by Sh. K. D. Reddy on 01.07.2003 and Sh. S.N. Gupta a corrigendum dated 02.07.2003 having been issued to Smt. Rattan Kaur and that on receiving the undelivered corrigendum he wrote to senior officer for orders. Thus showing that before the recommendation letter Ex.PW2/B was issued in favour of A­5 Rattan Kaur @ Pinder Kaur the accused persons were fully aware and knew all the stages through which it was expected to be processed and how, when and at what stage their appearance and intervention would be called, such as in this case while not even a single communication is shown and/or omitted (during cross­examination of A5) reached A­5, she was well aware of all the facts of allotment.

387. The evidence in respect of receiving the amount of Rs.11,98,000/­ is detailed by PW22 Sh.Aakash Sood, Chief Manager, SBI, who exhibited attested challan in name of Rattan Kaur being handed over to CBI vide memo Ex.PW2/A. The challan was then exhibited as Ex.PW22/B. Through entries of challan, receipt of payment made was shown in account of DDA, HSS vide Ex.PW22/C. He had handed over the certificate under Section 2A of Bankers Book of Evidence Act under his signatures at Ex.PW22/D to support the veracity of the recorded entries.

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388. These entries were found to have been on account of payments which was stated by PW21 Sh.A.K. Singh, Manager, Central Bank of India, Vikas Sadan Branch. He detailed that three challans having no. 14482 amounting to Rs.26,219/­, challan no.14481 amounting to Rs.20,000/­ and challan no.11480 amounting to Rs.98,000/­ were handed over to IO/Insp. A.K. Saini against production­cum­seizure memo dated 25.08.2015 Ex.PW21/A and were recorded to have been deposited in Account No.1 of DDA. The amount of Rs.20,000/­ was deposited through challan no. 14481. The amount of Rs.26,219/­ was deposited through challan no. 14482 in cash in DDA account. He was also shown statement of account of DDA, HSS, which he certified at point A with Banker's Book of Evidence Act Certificate u/s 2A, which also he had singed. The statement was exhibited as Ex.PW21/E and the certificate was exhibited as Ex.PW21/F. The statement of account of DDA, HSS was also provided by him and was Ex.PW21/G. During cross­examination by ld. Sh. Ranvijay Kumar, he detailed that anyone can get draft prepared and he cannot say from perusal of Ex.PW21/B to Ex.PW21/D as to who had filed these challans but the name of the applicant as Rattan Kaur was mentioned on the challans. He detailed that the bank does not check the ID of depositor of cash by way of challan and it is possible that any other person might have deposited cash in name of Rattan Kaur.

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389. The mystery of the name of depositor was revealed through the statement of PW20 Sh.Dayaram Khinchi, Manager, SBBJ, Khariboli Branch, who disclosed that cheque dated 16.07.2003 for sum of Rs.11,98,615/­ of SBBJ, Kharibaoli, Delhi branch bearing no. 842836 was from the account of M/s Saraswati Trading Company. He had handed over to IO, CBI a letter dated 08.07.2015 on which he identified signatures of Sh.Sanjay Bangia, Chief Manager, whereafter the production­cum­seizure memo was exhibited as Ex.PW20/A. He had handed over four documents against this memo Ex.PW20/A. He then exhibited cheque dated 16.07.2003 for a sum of Rs.11,98,615/­ of SBBJ, Kharibaoli Delhi Branch and was bearing no. 824386 having been issued by M/s Saraswati Trading Company in favour of SBBJ. He also exhibited the request for issuance of D/D for Rs.11,98,000/­ having been given by M/s Saraswati Trading Company of dated 16.07.2003, which was purportedly in favour of DDA. He then stated that the above cheque was used for preparation of the D/D in favour of DDA for an amount of Rs.11,98,000/­ dated 16.07.2003. All the aforementioned documents were provided with certificate u/s 2A of Banker's Book of Evidence Act and were collectively Ex.PW20/C.

390. On being subjected to cross­examination, he was asked to identify the signatures at point A on application for issuance of D/D in favour of DDA which he could not identify. It is again required to be noted that this cross­examination was done by Sh. Ranvijay Kumar on CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 186 of 291 behalf of A5 Rattan Kaur @ Pinder Kaur and no purpose of this question could be shown since A3 Sh. Devender Kumar the depositor of D/D M/s Saraswati Trading Company himself did not deny the fact of deposit of a D/D of Rs.11,98,000/­ from his company's account in the name of Rattan Kaur. Moreover, it is not even the case of A5 that payment was made by her own account nor she denied that payment of Rs.11,98,000/­ was made by A3 from his account, despite the requirement of unnecessary cross­examination only appears as an anxious attempt to create confusion. In fact, the reading of statement of PW20, PW21 and PW22 show a close and direct nexus of A2, A5 and A3 in securing the recommendation letter and then allotment/possession against payment by Devender Kumar accused.

Possession of plot at Dwarka having been taken by A5 in person :

391. The possession letter Ex.PW7/E dated 03.10.2003 was issued after the facum of report of payment of Rs.11,98,000/­ was confirmed by AO (RL). Despite the possession letter having been issued A5 did not turn up to take possession on which PW46 wrote another note seeking revalidation of process letter.

392. In connection with the aspect of possession, PW46 Sh. Suresh Chand Kaushik has again provided material details. He corroborated that approval for issuance of possession letter was accorded in favour of A5 Rattan Kaur on 01.10.2003. Subsequent CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 187 of 291 thereto, possession letter no. F27(8)/2003/LSB(R)/9245 dated 03.10.2003 already exhibited as Ex.PW7/E was issued. He then corroborated that the letter Ex.PW7/E was sent to Rattan Kaur W/o Bachan Singh R/o H. No.3, Oak Estate, Muosoorie Road, Dehradun and was endorsed to Director (Planning), Dwarka, Joint Director (Survey) for handing over the possession of the plot and to Assessor and Collector of Assessment and Collection Departments of MCD. Subsequent thereto, Asstt. Director (Survey) vide his letter Ex.PW7/F no. F12(2385)/2003/Dwarka/Planning/193 dated 03.12.2003 informed that Rattan Kaur had not turned up to take the possession despite the expiry date. It is further corroborated through his statement, wherein the testimony of PW7 Sh. K.K. Sharma was verbatim endorsed, that the said letter was put up on 23.12.2003 under the noting of PW46 with a request that a letter may be written to allottee for taking over the possession upto 03.10.2003. The letter was already exhibited as Ex.PW7/G. Subsequent thereto, the Joint Director (Survey) informed vide his letter dated 22.01.2004 already exhibited as Ex.PW28/B that the possession is received by Rattan Kaur on 20.01.2004 and alongwith her letter Ex.PW28/C forwarded the possession slip already Ex.PW28/1.

393. As expressed in detail on record that the accused were successful in obtaining the recommendation Ex.PW2/B in name of false identity of Rattan Kaur and channelized the same for securing CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 188 of 291 allotment of plot no. 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi, the possession of the allotted plot was also received through the Assistant Director (Survey) Sh. R.S. Pahwa (PW28). The witness has identified D­9 [(DDA file No. F­27(8)/2003 LSB(R)] and documents at page no.51/C letter dated 03.10.2003 having No.F 27(8)/2003 LSB(R)/9245 vide which possession of plot no.262, Pocket No.2, Block­A, Sector­17, measuring 270 sq. mtrs, Dwarka Residential Scheme was handed over to allottee Smt. Rattan Kaur w/o Sh. Bachhan Singh r/o H.No.3, Oak Estate, Mussoorie, UP against possession letter No.232 dated 20.01.2004, whereafter it was exhibited as Ex.PW28/1 on which PW28 identified the thumb impressions of Rattan Kaur and the report of possession was signed by Joint Director Sh. C.P. Sharma which report was possession was exhibited as Ex.PW28/3.

394. During course of cross­examination by Sh. Javed Akhhat, ld. Counsel for A2 and A4, witness detailed that at the time of possession of plot, allottee was required to submit ID proof, which may be either ration card, driving licence, copy of passport etc. which exhibit he verified at that time and all the necessary formalities at the office/plot/land were done. He categorically stated that A5 also personally visited the plot.

395. He detailed that DDA provided only the possession letter for giving the possession to A5, however, he was unable to recollect that CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 189 of 291 on the date of receiving the possession on 20.01.2004 the allottee had shown him the ID card having address of UP. However, this cross­ examination does not serve any useful purpose in favour of defence as this fact was not denied that A5 personally visited the plot on 20.01.2004 to receive the possession and in furtherance of accepting the possession appended her thumb impression on the letter exhibited above and also complied with the formalities of showing the ID card.

Execution of Lease Deed in favour of A5 Rattan Kaur @ Pinder Kaur

396. While the possession was received at the spot, A5 Pinder Kaur applied for execution of lease on which PW3 Sh. Bhupal Singh, Assistant Director, Land Sale Branch (Residential) issued letter to the allottee asking her to bring one passport size photograph, three specimen signatures, five additional photographs of both husband and wife as per their legal status, affidavit regarding non sale of plot under reference, two independent witnesses other than family members etc. as the necessary documents alongwith affidavit regarding non­sale of plot of same date of the execution of lease deed. On seeing the original DDA file No. 27(8)/2003/LSB(R) pertaining to allotment of alternative plot no. 262, Block­A, Sector­17, Pocket­2, Dwarka, New Delhi in favour of Smt. Rattan Kaur w/o Sh. Bachan Singh. He detailed that the letter pertaining to issuance of lease deed paper had been issued on CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 190 of 291 07.04.2004. He then exhibited lease deed dated 20.07.2004 as Ex.PW3/B bearing his signature at point A.

397. He identified the right hand thumb impression of Smt. Rattant Kaur in portion encircled D on lease deed and detailed that A5 had produced her voter ID card which was exhibited as Ex.PW3/C.

398. In cross­examination, he stated that letters were received in Central Diary at Vikas Sadan and the letters received from Land & Building Department were not got verified generally. At that stage, he was confronted with the specimen signatures and photo attested card (D­9, pages 19/C) which was then exhibited as Ex.PW3/A2­DXI. However, this did not bring out any relevant material to dispute the execution of lease deed in favour of A­5 which fact itself was not denied and was further confirmed by two independent witnesses who had singed in support of A5 Rattan Kaur. PW14 Sh. Devdas and PW15 Sh. Pappu, Peon and Safaikaramchari in the chambers of Sh.Arun Malik, and Sh. Sunil Malik Advocates at Vikas Sadan affirmed that the perpetual lease deed dated 27.04.2004 Ex.PW3/B has the photograph of Rattan Kaur and is bearing their signatures. Both these were stock witnesses and handed over copy of their voter ID cards as Ex.PW14/A and Ex.PW15/A. Both affirmed that though they had signed the lease deed of Rattan Kaur and had handed over the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 191 of 291 voter ID card but had never seen the lady whose photograph was pasted on Ex.PW3/B.

399. Both these witnesses confirmed the execution of lease deed in favour of A5 Rattan Kaur as well as standing as attesting witnesses to the lease deed and having provided their voter ID card.

400. Deposition made by PW46 qua the proceedings of execution of lease deed are now noted. In his statement, he stated that Rattan Kaur vide her letter Ex.PW37/M requested for issuance of lease deed in respect of the said plot and informed that her husband Bachan Singh had expired. He further detailed that original death certificate Ex.PW24/C was submitted, whereafter letter bearing no. F27(8)/2003/LSB(R)/2873 dated 24.03.2004 was issued which he exhibited as Ex.PW46/G. The letter for stamping of lease deed and was issued to allottee Rattan Kaur. Accordingly, the perpetual lease deed was issued to Rattan Kaur for stamping from Collector of Stamp. He further detailed that Rattan Kaur vide her letter dated 07.02.2004 part of Ex.PW37/P submitted the lease deed details, stamp for execution and accordingly letter no. F27(8)/2003/LSB(R)/3495 dated 07.02.2004 was issued which witness Sh. S.C. Kaushik had sent under his hand and was exhibited as Ex.PW46/A. He then corroborated the fact that Rattan Kaur was present on 19.07.2004 for execution of perpetual lease in her favour and had made a request on 20.07.2004 CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 192 of 291 which was based on her letter dated 19.07.2004 already exhibited as Ex.PW37/Q which request was allowed by the then Dy. Director Sh. Sanjeev Kumar. He detailed that the lease deed was executed on 20.07.2004 confirming the statement of PW3 who was holding the responsibility for getting the lease deed executed being an official of Lease Administration Branch. It was stated that the office copy of perpetual lease deed which PW46 identified during his statement was already Ex.PW3/B and original lease deed was handed over to Rattan Kaur by the Daftari on 22.07.2004, whereafter, the file was sent to AAO, LSA­3 (Account Branch) for noting down the particulars of the registered lease deed on 24.08.2004, which was identified by Programme Assistant Sh.Mohan Lal.

401. The factum of execution of lease deed and presence of A5 was corroborated through the statement of PW47 Mohan Lal, who stated that Rattan Kaur was present on 19.07.2004 for execution of perpetual lease deed in her favour and requested the date for 20.07.2004 vide her letter dated 19.07.2004 already Ex.PW37/Q. Similar statement was made by PW46 Sh. S.C. Kaushik as well. There is no cross examination on the above material aspects of presence of A­5 in DDA office, her presenting the documents personally as requisited by DDA. A request having been made for date of 20.07.2003 for execution of lease deed in presence of two independent witnesses. The documents such as ID proofs are admitted separately by PW14 and PW15 who CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 193 of 291 singed as witness. The execution of lease deed itself is not denied which fact lend credence to the prosecution case sufficiently.

Sale of plot in favour of A3 Devender Kumar by A5 Rattan Kaur @ Pinder Kaur

402. The prosecution has claimed that after receiving allotment and execution of lease deed Ex.PW3/B on the basis of the recommendation letter Ex.PW2/B, the plot in question was sold by A­ 5 to A­3. The material qua this is produced through evidence of PW49 Desh Bandhu Gosain, Record Keeper in the office of Sub­Registrar­II, Basai Darapur, New Delhi. He had provided the documents to IO vide seizure memo dated 05.08.2015 which he exhibited as Ex.PW49/A. He handed over the original GPA of plot no. 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi bearing registration no. 42106 book no.4 Vol. 110080 pages 33 to 36 executed by A5 Rattan Kaur @ Pinder Kaur in favour of A3 Devender Kumar Ex.PW49/B. The SPA bearing registration no. 42107 dated 20.07.2004 of the same plot was exhibited as Ex.PW49/C. He narrated that the total consideration of the property/plot as per Agreement to Sell dated 20.07.2004 was mentioned as Rs.15,00,000/­ and the registration of the amount of Rs.1,12,500/­ was paid. There was no material cross­examination of this witness. The above documents showed that after the lease deed dated 20.07.2004 in favour of A5 she executed further transfer in CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 194 of 291 favour of A3 Devender Kumar who only had deposited the earlier payment of Rs.11,98,000/­ with DDA in her name.

Role of A2 S.S. Malhi and A4 Neeru Kumar Gupta

403. After brief assessment of facts through evidence, I, now advert to the detailed arguments wherein ld. Counsels made vehement submissions in support of accused and provided their interpretation of material on recorded to claim their innocence. I, first propose to discuss the arguments of ld. Sh.Javed Akhtar, who argued qua A2 and A4. He started his submissions claiming non­availability of reference file no. F.32(21)/43/98/L&B/Alt, fromwhere the recommendation letter Ex.PW2/B was generated. He disputed that the file was actually not available or could not be traced as was stated by report of Smt. Usha Chaturvedi through Ex.PW19/J. He claimed that the statement of CBI "such reference file never existed in Land & Building Department, GNCTD" is a piece of false information to strengthen the presumption in favour of CBI while he claimed that the said file was all through available in the department alongwith relevant record and was deliberately not produced. However, no effort to actually challenge the report Ex.PW19/J was made. There is not even a single question in this direction to PW50 Smt. Usha Chaturvedi, whose report was exhibited as Ex.PW19/J or even from PW19 Sh. Dinesh Kumar. Similar report is made by PW5 Sh. Mukesh and he is also not CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 195 of 291 subjected to any such questioning. Suddenly, at the stage of final arguments the above plea is raised, which finds no support.

404. It is noted that no effort whatsoever is made by A2 himself to seek the production of the file through summoning, though the opportunity to lead defence evidence was made available. If at all accused held such belief and knowledge that the file was available and had been kept away from production as he claimed, he was not remedy­less, and the reasons for omitting to choose this exercise must have been explained. In absence of which the assertion that file was not deliberately produce is merely a fallacious attempt to create defence out of nowhere.

405. Ld. Sh. Javed Akhtar sought support from the statement of PW8 Smt. Sheela and claimed that the factum of availability of file was testified by PW8, who admitted Ex.PW8/A the charge report showing handing over of the file of Rattan Kaur. It appears that he could not articulate the statement of PW8 properly as PW8 Smt. Sheela Devi refused the authenticity of the charge report and denied her signatures whereby the charge report Ex.PW8/A became a questioned document. From the statement of PW37 and from his exhibiting report Ex.PW37/D, which specifically stated that the signatures sample of Smt. Sheela Devi signed in abbreviation as 'SL' were ingenuine and did not match with her handwriting sample obtained during CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 196 of 291 investigation in presence of PW16 Umesh Chand Izral, it became cogently clear that Ex.PW8/A was an ingenuine document and not a reliable piece of evidence.

406. Further, these statements were not disputed and no challenge hence was raised to Ex.PW8/A not being signed by Smt. Sheela Devi, which established the fact that she never took over charge of the file of Rattan Kaur from A2 casting doubt qua the availability of file. The subsequent claim that PW8 Sheela Devi made a statement on oath that she handed over all the files to Sh. Satbir Singh and no file was missing is again part of the same limb of argument which I have already dealt with in my earlier discussions.

407. Another submission that since the allotment was made in favour of a fictitious person CBI should have made attempt for search of the complainant is an overzealous argument as nowhere any co­relation of the mischievous act being strengthened more than what is already achieved through the present evidence is shown. There is no material to discredit the authenticity of the complainant or suggest any manipulation or mischief in preliminary enquiry having been made malafide with deliberate intention.

408. As the aforesaid attempts have failed to bring material result on record, it is claimed that CBI did not prove that the accused could himself be a victim of fraud, as a genuine recommendation was CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 197 of 291 procured by fraudulent person from Land & Building Department. However, again this argument makes no apparent advantage to accused. Nowhere any such damage is pointed out by the A2 or A4. It is rather an imaginary submission that accused should be held victim of their own doings and admission of wrongs being caused out of acts of mischief and malafide.

409. Sh. Javed Akhtar, ld. Counsel for A2 and A4 then argued that in terms of statement of PW50 Smt. Usha Chatruvedi, the scope of conspiracy has been enlarged to the year 1989. He has stated that the last date for submission of applications expired in 1989 itself. However, this submission is presumption in order. Nowhere, it is stated either in charge­sheet or in the order of charge that such an application was received in 1989. The contentions which the defence was required to meet with, were that by a fictitious entity the recommendation was procured in 2003, which is a matter of no denial. Further, Ex.PW2/B is also not challenged. In this background that A2 be kept out of the scope of the offence since he was not posted in department and that he came to join Alternative Branch in 1999 and was transferred in 2011, is not a worthwhile statement. It is rather admitted that he remained posted in 2003 when during the meeting of recommendation committee, the file of Rattan Kaur was put up for discussions. Misreading of statement of PW50 Smt. Usha Chatruvedi hence is of no avail.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 198 of 291

410. Another unexplained and vague averment that came forth was that CBI did not place on record all facts disregarding and ignoring the entire set of evidence is merely an expression of an opinion of ld. Sh. Javed Akhtar which has not found any material support.

411. He further through his submissions made an advice that Land and Building Department could have revoked the recommendation letter Ex.PW2/B, which again is an extraneous consideration and is not covered within the domain of discussion herein.

412. In discussions as held in the foregoing paras the proximity and commonality of interest of A­1, A­2 and A­5 is made. It is interesting at this stage to note the support these accused received from A­4 Neeru Kumar Gupta, Advocate. The participation of A­4 has been "low profiled" and has surfaced intermittently. During one such occurrence he secured false attestation with the help of PW35 Sh. Deepak Chaudhary, Advocate. It is disclosed that for achieving certain objects which were the part of larger process to secure the gain he approached PW35 Sh. Deepak Chauhdary for getting/securing an attestation on the photographs of A5 Rattan Kaur. A4 Neeru Kumar Gupta used his connect and card of an Advocate with another practicing Advocate to manipulate his familiarity and took advantage by falsely claiming requirement of attestation of photograph of Rattan Kaur @ Pinder Kaur for helping her for pension purposes. The acts of concealment CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 199 of 291 and manipulation were further strengthened and were given credence by the statement of PW35 who stated that he was shown the photograph only and no person was physically brought before him and at no stage he had seen or had an occasion to find out the real purpose of the statement of A4 Neeru Kumar Gupta. The photograph was then used as proof of documents on file No.F.32(21)/43/89/L&B/Alt to secure recommendation Ex.PW2/B on which it was pasted showing that to be of Rattan Kaur. By getting/securing an attestation in the name of Rattan Kaur, A4 added value to the false credence and fictitious identity of Rattan Kaur, and led everyone dealing with the file in bonafide, official, category to believe that the lady who was seeking the advantage of scheme was Rattan Kaur w/o Bachan Singh.

413. His proximity with A­2 became evident after the search had been made by CBI. Statement of PW­51 Sh. Sanjay Kumar, Inspector in this context is noteworthy was detailed that from the search conducted at the house of Neeru Kumar Gupta recovery of copy of statement of one Ms. Mamta, annexed to the photocopy of decree of petition for dissolution of marriage of Mamta and Anuj Gambhir, was found on which accused S.S.Malhi had made attestation in capacity as witness at point 'X' after which the statement was exhibited as Ex.PW51/A. The decree was pertaining to the marriage of close relative of N.K. Gupta. He then stated that original allotment letter (pink colour copy of DDA) bearing no. F.32(50A)/157/89­ CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 200 of 291 L&B/ALT/20461­462 dated 26.03.2003 bearing sl. no. 001144 in favour of one Sh. Rajender Kumar s/o Sh. Prahlad Kishan, R/o Village Rangpuri, Delhi was recovered from the house of Neeru Kumar Gupta. The document was then exhibited as Ex.PW51/G after the original document was summoned from the Court of Sh. Ajay Gulati, ld. Spl. Judge, CBI where the matter being tried.

414. It is unexplained by accused Neeru Kumar Gupta that how he came in possession of an original copy of allotment letter meant for DDA record. The fact that the original copy of recommendation letter meant for the DDA had been allowed to be removed from the record, for which it was meant and passed on to private hands of A­4 details the extent of proximity and further nexus in designing nefarious goals with mischievous intent. There is no cross examination on the above. It is pertinent to note that while in cross examination questions were put to witness qua search, the factum of the documents having not been recovered from the house and possession of Neeru Kumar Gupta were not challenged. What was suggested was an imputation on searching IO for having planted the documents on accused, which has failed to show any substance. It could not be controverted that the documents were recovered during the search operation conducted u/s 93 Cr.P.C in an authorized manner as no contradictory material from the statement could be culled out.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 201 of 291

415. Ld. Sh. Javed Akhtar has started with his rebuttal submissions claiming that he is not relying on the statement of PW­50 Smt. Usha Chaturvedi and has challenged the factum of issuance of notification vide letter No. 37/16/60, Delhi dated 02.05.1967 as well as the competence of PW­50 Smt. Usha Chaturvedi deposed in furtherance. He also claimed that PW­50 Smt. Usha Chaturvedi exceeded her competence as she could not be said to be competent enough to depose on behalf of Union Government of India to verify and ascertain the fact that infact the alleged notification dated 02.05.2007 was ever issued. However, the aforesaid submission is completely out of context and have missed the premise. At the outset it may be observed that no such defence has been raised through the trial. None of the witnesses including PW­50 Smt. Usha Chaturvedi is cross examined on the aspect of her competence to make the statement. No material as such has been brought forth in front to suggest that she was incompetent to make statement on behalf of Alternative Branch at the relevant date. It is not denied that she was an official and successor of A­1 in alternative branch. She held an official capacity and competence and was fully aware of the procedure by virtue of her being placed in capacity as Deputy Director, Alternative Branch. How she became incompetent to make the statement while being responsible official of the department is not stated or explained. It is not stated that someone else on her behalf held competence.

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416. There is no dispute to the factum of the guidelines and in fact in reliance thereof only the recommendation letter Ex.PW2/B in favour of A­5 Smt. Rattan Kaur has been executed by A­1 Badrul Islam. It had not been the case up till now even up to the filing of first set of written submissions that no such scheme existed. PW19 Sh. Dinesh Singh has in fact brought on record the guidelines and PW­50 Smt. Usha Chaturvedi has corroborated the fact of guidelines having been issued in furtherance of the said scheme. It appears that arguments are made as on over zealous attempt.

417. The fact that even the defence counsel did not believe the aforementioned submissions is reflected from his further arguments wherein he has taken a turn around he claimed that her statement that only four number of applications were received in response to public notice from Village Bahapur, Delhi is based on some malifide information provided by wasted interest i.e. some officials working with Alternative Branch. While claiming that there had been no existence of provision for rehabilitation of displaced farmer being made on behalf of scheme, the scheme having been announced by way of public notice and the statement of PW­50 Smt. Usha Chaturvedi being made without any premise thereof, how a plea of only four application having been received being wrong is agitated is another preposition which needs explanation.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 203 of 291

418. In the similar attempt, effort is made to dispute the eligibility criteria in respect of determination of size of any recommended plot which fact is not dispelled by way of any cross examination and rather is established through the guidelines Ex.PW19/D.

419. Another contention which is raised in complete juxta­position is revealed in para 10 of written submissions wherein through the factum of verification having been made on 27 verification sheets by S.S.Malhi is not denied, the keeping of 27 sheets together is claimed against the process.

420. It is not explained that if there was no provision of any advantage of welfare scheme and no guidelines existed as stated by PW­50 Smt. Usha Chaturvedi and the contents of the statement of PW­ 50 Smt. Usha Chaturvedi regarding detailing the procedure of eligibility and calling purpose by officials of Alternative Branch was an unreliable statement, what compelled A­2 S.S.Malhi to draw verification report in each case as admittedly 27 files were put up for deliberations before the recommendation committee in its meeting held on 03.12.2003 which fact itself is not in dispute.

421. In the similar breath the challenge is raised qua issuance of the booklet from where recommendation is generated in favour of A­5. While no attempt is made to cross examine the witnesses specially the official witnesses. PW­19 Sh. Dinesh Singh who tendered his report CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 204 of 291 deposed in this context, which is sufficient to establish the fact that S.S.Malhi held the booklet as a custodian which is confirming to contents of statement of PW­50.

422. While the veracity of the statement of PW­50 is sought to be challenged, only at the cost of repetition it is observed that no cross examination is held on above arguments. Another plea raised is that PW­50 Smt. Usha Chaturvedi stated about the issuance of the public notice for calling the applications from 31.12.1998 ending on 01.04.1989.

423. While raising objection that during the period of 1989, when it is claimed by ld. Defence counsel that conspiracy is claimed by prosecution none of public servant accused were posted in department is an attempt to mislead while omitting and overlooking to read evidence in its entirety and ignored the crux of the allegation. The contentions by the prosecution are not raised claiming it to be out of bonafide exercise of power but because of manipulations carried out in record. In circumstances as such, while no record as such is kept / existing the question of PW­50 Smt. Usha Chaturvedi having been able to check the facts from File Head Register of 1989 till 30.03.1989 holds no merit. Further, in the absence of any cross examination on the aforementioned fact a contrary defence is not to be raised.

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424. Interestingly an insight as how a deviation for receiving the applications was carved out at the discretion of head of alternative branch is stated as it is averred that receipt register of alternative branch may not contain many applications as many applicants submitted their applications during personal appearance by hand and in order to pacify the public, HOD of Alternative Branch put his initials and marking on application after which the documents and applications were no more required to be submitted to Central Diary or R&I of L&B Department, suggesting as to how this discretion has been extended to allow the applications of A­5.

425. Ld. Sh. Javed Akhtar raised some more presumptuous assertions in his written submissions wherein he claimed that no effort was made to find out the address of A­5 mentioned on record by DDA which was claimed non existent as the house may be existence earlier but may have been demolished. First of all no such claim is raised by A­5 herself. Secondly counsel has clearly omitted to look into the evidence on record which has shown A­5 to be resident of village Nagoke. The factum of her identity as Pinder Kaur is conveniently sought to be ignored by A­2 through these submissions forgetting, that she in fact is his relative and a known, in which case the plea of such nature is imaginary and so is subsequent plea that Investigation Agency did not make attempt to search the address of A­5 around the outskirts of Dehradun city.

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426. The challenge made to the statement of PW­29, PW­32 is again out of context of any evidence on record, while A­5 herself had not raised any plea of her residing at Oak / Dak Estate, Mussourie Road, Dehradun. It is intriguing at this stage to note that an impassive in the domain of arguments of A­2 is being raised. While the statement of PW­35 Deepak Chaudary is challenged as false and it is claimed that A­4 Neeru Kumar Gupta never knew him personally, his cross examination on the aspect of acquaintance, is silent.

427. The pleas raised challenging the contents of statement of PW­38 Sh. Harsimranjit Singh Bindra and PW­40 Sh. Rajender Singh Beniwal are made without considering the contents of their statements. While the statement of PW43 is sought to be traversed on account of her capacity to identify Pinder Kaur on the basis of photographs. The fact that she identified A­5 physically in the court is conveniently ignored.

428. A similar observation is required to be made with the attempt of identification by PW­36 Sh. Satvinder Singh, cousin of Smt. Pinder Kaur and wife of S.S. Malhi whose statement is sought to be ignored claiming them to be layman.

429. Attempts are repeatedly made to challenge the veracity of the record produced by the wittinesses as it is now claimed that PW­10 Kishan Lal, Kanungo is not reliable witness as the record brought by him did not reveal information regarding notification number and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 207 of 291 respective date with further notification u/s 9 and 10 Land Acquisition Act. The cross examination on the above aspect is silent. Even otherwise no relevance of the aforesaid plea to connect the allegations is made since the factum of acquisition of K.No. 607, Village Bahapur belong to Rai Sahib is not in dispute itself.

430. Similarly no material is pointed to challenge the statement of PW­23 Sh. Ravinder Kumar Dang who exhibited the award No. 2059 dated 24.01.1968 of village Bahapur.

431. Ld. Counsel has relied upon to draw support from judgment of Sashi Kumar Banerjee and Ors. Vs. Subodh Kumar Banerjee (1964) AIR (SC) 529 and has highlighted that an expert statement is not believe worthy when handwriting expert is making inconsistent statement with oral submission since expert opinion is nature of opinion is to be treated nature of opinion which cannot write off direct testimony. However the reliance is misplaced as in the present case PW­37 Sh. Harinder Prasad, Forensic Expert has made statement confirming and in corroboration with statement of PW­8 Smt. Sheela Devi, who had denied her abbreviated signatures after which case in view of the judgement Murari Lal vs. State of Madhya Pradesh :

1980 AIR 531, the statement of Forensic expert is corroborated to the above statements.

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432. This clearly established the indulgence on the part of the accused persons which begin with effect from securing the recommendation in fictitious name of A5 Rattan Kaur, was not without any malice, malafide or mischievous intention but with clear and cogent intention to gain monetarily from the entire exercise. It is hence requisited to note that during the cross­examination conducted by Sh. Javed Akhtar, ld. Counsel for A2 and A4 of PW49 who produced all these documents, no question significantly came to dispel the authenticity of the documents and only frivolous questions pertaining to the authority of witnesses to produce the documents were put. Sh. Ranvijay Kumar, ld. Counsel for A5 engaged himself in an exercise bearing no result as he only put the questions which were matter of record. One such question was "is it correct that on GPA, SPA and Agreement to Sell the original photograph of A5 is not appended?", without explaining that how a copy retained in Sub­ Registrar Office is expected to be supported with 'original' photograph.

433. In normal set of circumstances, accused S.S. Malhi should have recognized and identified A5 and enquiry from her must have been made had there been no collective premeditation. Accused S.S. Malhi had neither denied nor disputed or challenged the contention that he know Rattan Kaur and Smt. Pinder Kaur and Rattan Kaur are not the same person or identity. The above sufficiency explains the reasons for avoiding verification, manipulating the documents and side stepping CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 209 of 291 the process as A2 knew that Pinder Kaur never owned Khasra No. 607 at village Bahapur at any point of time and/or any land in her ownership measuring 23­10 bigha of which acquisition was made vide award no. 2059 dated 24.01.1968 was acquired. A2 S.S. Malhi by issuing a certificate of verification Ex.PW51/B omitted whatsoever possible act within domain of his authority for extraction of recommendation letter in name of A5.

434. Now coming to the case laws referred alongwith the submissions. At the outset, I may observe that the judgment of State of Rajasthan vs. Govind Ram Bagdiya : 2003 (Cri.LJ) 1169 and Jetha Lakha Mori vs State Of Gujarat : 1984 AIR SC 151 are distinguishable on facts and not applicable to the facts and circumstances herein. Moreover, specific observation is made in para­9 by Hon'ble Supreme Court that there is no evidence either direct or circumstantial to show that apart from purchase of fertilizers the appellant knew that the firm from which the fertilizers purchased did not exist. However, the circumstances are diagonally opposite in this case as A5 Rattan Kaur @ Pinder Kaur under whose garb the application came to be processed and recommendation Ex.PW2/B having been issued was relative of A2, which factum of knowledge and relationship are not denied and in response to the questions in S/A dated 07.02.2002 u/s 313 Cr.P.C. he admitted in reply to question no. '114' based on the evidence of PW36 Sh. Satvinder Singh (cousin of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 210 of 291 Pinder Kaur) as "it is correct that Pinder Kaur is Saali of my brother late Charanjeet Singh". Similarly, in reply to question no. '132' based on the statement of his wife Smt. Barbhajan Kaur (PW41) where he was asked that A2 knew Pinder Kaur W/o Sakatar Singh is sister of Kulwinder Kaur, he admitted it is correct. In circumstances above, the plea raised as mentioned above is without any premise and ground.

435. In Bhagwandas Keshwani And Anr. vs State Of Rajasthan :

AIR 1974 SC 898 in para­3, Hon'ble Supreme Court made observation regarding applicability of Section 10 of Indian Evidence Act in the background of charge of conspiracy under Section 120B IPC. However, on the ground of facts illustrated, the judgment is not applicable to the circumstances before hand in this charge­sheet.

436. Again the judgment of Mohan Singh vs. State of Rajasthan :

2002 Cri.LR 388 is distinguishable for want of any evidence, the plea of corruption was rejected.

437. Judgment in case of Jattha Aziz Khan vs. State of MP : (1986) 3 Crimes 163 is not applicable to the circumstances of the present case and has arisen out of FIR u/s 302 IPC without showing any appreciable evidence before the Hon'ble Court u/s 120B IPC.

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Role of A3 Devender Kumar

438. It is not disputed that account no. 01000028745 is not of M/s Saraswati Trading Company and that the company belonged to A3 Devender Kumar at the relevant time. It is further not denied that record produced by PW20 Sh. Day Ram Khinchi, Manager of SBBJ was pertaining to his company and/or his company did not held any such account. It is further not denied that application for payment of Rs.11,98,000/­ through DD (Ex.PW53/D), through which the payment was made, was processed through this account. While this fact that payment to DDA favouring A5 was made by A­3 is established beyond any controversy and is rather admitted by him the transaction of payment shows that the act of payment was conscious and well thought out design carried out by bank on his active directions, in which case it fell on A3 to explain the absence of any malafide intention for such payment.

439. One of argument that has been raised qua the payment on account of directions of deceased in favour A3 Devender Kumar, which is also his defence is that accused being raised by Sh. Ram Kishan, his uncle (since deceased), from young age, held no capacity to deny his directions. His uncle on one particular day asked him to purchase the plot by making payment as certain payments given on account of loan to A­5 were not getting returned. In order to secure the payments made as loan earlier, the amounts were paid in favour of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 212 of 291 Smt. Rattan Kaur against the plot through which it was decided that the loan payment would be recovered/serviced. However, this half­ baked plea is apparently an afterthought and non­credit worthy since despite opportunity to lead evidence, accused did not make any attempt to bring any statement of account/Register or any other material relating to either himself or his uncle which he claimed that loan was extended through him. No amount was stated against the claimed loan. No date/day, month/year was detailed. In view of such large gaps, without any support of record or revelation of transaction etc. were clearly half­hearted attempts to seek refuge under same plea.

440. Further, A3 failed to show of history of background of his acquaintance with A5 since he only claimed that he had not met A5 Rattan Kaur @ Pinder Kaur at any point of time prior to execution of sale deed in his favour from her against another amount of Rs.15 lakhs. The accused also missed out to explain on the fact that while loan has been claimed to had been given without his knowledge and/or permission his active participation, by his uncle, how he utilized the account of his company for making payment of Rs.11,98,000/­. He has not brought any audit report so show that his this act of payment was personal in nature and/or was accounted in books of company. It infact creates possibility of suspicion qua existence of meticulous planning having been made to avoid a direct participation from the transaction in his individual name and capacity for which he took CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 213 of 291 shield of the name of company to move further in a clandestine capacity.

441. While the facts show the presence of A3 Devender Kumar as early at the time of deposit of payment in favour of DDA to cause advantage in name of Pinder Kaur/his counsel has argued that he was nowhere shown at the relevant time when the conspiracy is alleged. It is claimed that prior to any act being attributed to him, the recommendation and allotment was made and this is suffice to show he was not present at the time of alleged meeting of minds by accused person. However, it is a stratched argument, which does not find support when the facts are read and construed in their entirety.

442. Vehement arguments have been made by ld. Counsel Sh.Vikram Panwar on behalf of A3 Devender Kumar that his client has been wrongly roped into the present trial as he had no mischievous intention or illicit design. He stated that the prosecution has brought on record that the recommendation and allotment both took place twenty days prior to the first transaction shown on his client. He claimed that an act subsequently achieving the object of conspiracy cannot be fastened upon A3 Devender Kumar and he cannot be held responsible thereupon. The reliance is made on judgment of State of Tamil Nadu vs. Nalini : AIR 1999 SC 2640 and Santosh Anand Avdhoot vs. State 2014 (4) JCC 267. He also relied on Indira Dalal vs. State of Haryana : 2015 (Cri.LJ) 3174. However, the law relating to CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 214 of 291 conspiracy has been crystallized in various precedents and in Firozuddin Basheeruddin & Ors. vs. State of Kerala : 2001(7 SCC 596, it is observed that "conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. The law punishes conduct that threatens to produce the harm as well as conduct that has actually produced it. Conspirators may be tried and punished for both the conspiracy and the completed crime".

443. Going by the aforesaid observations, the mere fact that accused connived, colluded and had a meeting of minds to commit an act illegal in nature, is sufficient to prove and result in conviction for an offence u/s 120B IPC. It is also apparent from the observations made through precedents that an overt act as part of series of serious offences is sufficient proof to establish the existence of such an agreement.

444. It is required to be observed that in presence of A3 all relevant milestones to achieve the goal and object of conspiracy were reached. He made the payment to DDA favouring Rattan Kaur many months prior to purchase of plot in his name and supported the possession being delivered to her only to receive it back from her, which shows he is the ultimate beneficiary as he received the plot in question, the recommendation of which was obtained through fictitious identity. He CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 215 of 291 is part of chain and performed his part documented for him at all relevant stages.

445. At this stage, I draw my attention to the law laid down by Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. vs. State of Kerala : 2001(7 SCC 596, wherein it is held that it is not necessary that all the participants of illicit design appear together, right at the inception, commencement of the first act of nefarious design. The ingredients shall be treated to have been complete if the meeting of mind for a malafide act with malicious mind to achieve illegal gain was present but the acts in relation to the same have been staged intermittently. All the players of conspiracy are not expected to surface together. It is sufficient if one participant performs and hands over baton while the chain of acts and the accused remained connected through the chain of acts of omission/commission and their togetherness is shown by achievement of illegal design/yield of which without all of them, could not have been achieved. It is in this context, not necessary that A3 Devender Kumar must have been shown to have presented himself prior to the process of recommendation. The meeting of minds is sufficiently shown from his repeated appearance, staging his participation at appropriate places to fulfill his portion of obligation. He acted as a one of cog in the wheel which fact is shown sufficiently through the statement of witnesses and fulfilled the requisite.

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446. It is trite to say that in the present case the object of conspiracy was to receive a letter of recommendation and physical possession of a plot taking advantage of the welfare scheme launched for displaced farmers. Hence, the argument that surfacing of a transaction through A3 Devender Kumar post recommendation and allotment would reveal no participation on the part of A3 Devender Kumar, is misguided argument. Furthermore, the judgments relied upon are apparently not applicable to the facts and circumstances of the present case. In my aforesaid observation, I draw support from K. Hashim vs. State of Tamil Nadu : 2005 ( Crl.LJ) 143 SC, wherein it is held that conspiracy is held to be continued and renewed as to all its members wherefrom and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable u/s 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agree to do or caused to be done illegal act and the agreement may be proved by necessary implication.

447. "In crux, the rationale of the conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co­conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 217 of 291 inferred from circumstantial evidence of co­operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy."

448. It is further observed by Hon'ble Supreme Court in Firozuddin Basheeruddin (supra) that "another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy, who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.

449. It is held further "conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 218 of 291 would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts."

450. For establishing/proving a charge of conspiracy, knowing other conspirators and details of conspiracy is not necessary. The necessary requisite is to know the main object and purpose of conspiracy. (Mohmed Amin @ Amin C.R.M.Shaikh & ... vs C.B.I : 2008 (15) SCC 49).

451. Another limb of argument that is raised on behalf of A­3 Devender Kumar is premised on the assertion that the prosecution has not brought any evidence qua the involvement of A­3 in influencing public servant in any manner in the act of alleged conspiracy. In this context reliance is made on the statement of the complainant Sh.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 219 of 291

Ranjeet Kumar (PW­39) and IO / Insp. A.K. Saini (PW­53) ld. Defence Counsel painstakingly read over the statements of both these witnesses and stressed upon the cross examination to draw an interpretation that both witnesses admitted lack of evidence qua A3's attempts to influence any public servant. However, the submission is based on drawing conclusions from half readings to seek distraction from the cumulative assessment while the act of conspiracy is alleged, it presupposes distribution of roles expected to be performed for achievement of common illicit design. Where in this case the object and first acts in its furtherance are shown to have moved under the mischievous use of authority by public servant in which act support is shown by A­3, there was nothing to claim otherwise an independent act of influencing having been noticed separately.

452. Another argument that is made on behalf of A­3 arises from the act of payment in favour of accused A­5. While it is not denied and is rather admitted that payment of Rs. 11,98,000/­ was made from the account of M/s Saraswati Trading Company, an audacious attempt is made to challenge its intent. It is averred that there is no illegality attached to the act of payment by A­3 which payment could have been made by A­5 herself and/or could have been deposited by anyone on her behalf. This argument in itself is an admission of participation and has infact closed the controversy in favour of the prosecution and against the accused as it goes to show that the accused A­3 supported CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 220 of 291 the transaction by way of a voluntarily act of payment and there was no compulsion upon him to be part of the chain, showing that he had weighed all the pros and cons in his favour and before he acted in furtherance of their objective. It is also necessary to note that on one side he is trying to disown any responsibility arising from the recommendation and allotment and is also trying to seek refuge under the plea of compulsion and imposition of word by his Mama, on the other side, a brazen admission is made of above nature.

453. Another act on his part of selling the plot again for consideration of Rs.16,50,000/­ indicates his intention to not stay associated with the plot for a longer duration indicating towards his anxiety to not allow the transaction being noticed from public eye or him being caught with possession which he distanced by further sale.

454. The fact that he was aware of the entity and identity of A5 and held anxiety qua the transaction became apparent from the fact of execution of receiving Special Power of Attorney, General Power of Attorney and Agreement to Sell etc. on the same date i.e. 20.07.2004, when the lease deed was executed in favour of A­5.

455. The averment that there is no evidence that the accused in any manner knew the real identify of Rattan Kaur being Pinder Kaur is a statement that needed evidence. To utter dismay, there is no cross­ examination of even a single witness on this aspect. Furthermore, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 221 of 291 conduct of accused rather establishes reverse / opposite. The fact that possession in favour of Rattan Kaur from DDA is executed on 20.01.2004 and the GPA etc. were executed in favour of A­5 on 20.07.2004, establishes the fact that parties had sufficient time for interaction necessitating transaction which called for preparation of documents etc. also to be executed. The facts on record further show that while A­5 received possession even months prior to her exeucting transfer the payment of Rs. 11,98,000/­ was made even prior, this clearly shows existence of facilitative exercise by both sides qua their corresponding acts entrusted to them in pursuant to their meeting of minds to achieve illegal and nefarious designs.

456. Moreover, it is the defence of A3 Devender Kumar, which as per settled preposition of law was to be proved by him. It must have been established by him by bringing cogent evidence on record that he was a bonafide purchaser and had no occasion to know the real identity of Rattan Kaur being Pinder Kaur, however, contrary evidence is on record. His presence at the time of execution of lease deed on 20.07.2004 is stated by IO/PW53 Insp. A.K. Saini. Hence, the execution of documents had taken place in DDA in his presence. Had he been a bonafide purchaser, he would not have harbered the anxiety to accompany Pinder Kaur to the office of DDA. He has not shown any need for work or occasion to visit DDA with Pinder Kaur. The factum of depositing payment in December, 2003 and execution of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 222 of 291 lease deed on 20.07.2004 on which same day the property was transferred to him shows he had sufficient time to make necessary enquiry. While all evidence clearly show his physical presence and participation at relevant stages etc., his shift of stand to seek refuge under the claim of obedience of his deceased uncle does not seem to help him. Moreover, no such evidence is on record, which further fails to establish anything favourable for him. It is expected that in mind of any prudent man certain question should arise regarding genuineness of the seller, her antecedents and inquiry to find out about her ownership. Even, the law casts such responsibility before execution of transfer of an immovable.

457. Further the attempt to generate an opinion based upon his wealth or business to claim absence of greed is a presumptive argument which in absence of material cannot be held proved. Reliance hence on the judgment of Parveen @ Sonu vs. State of haryana Crl. Appeal No. 5438 of 2020, John Pandian Vs. State rep. By Inspector of Police, T.Nadu : (2010) 14 SCC 129 and Tanviben Pankaj Kumar Divetia vs. State of Gujarat : AIR 1997 SC 2195 is of no avail as these are distinguishable.

458. In the same continuation, I may also deal with the submission that agreement such as GPA/SPA must be read conclusively in view of bar under Sections 91/92 of Indian Evidence Act, which in fact is a contrary argument denting his own defence. First and foremost as has CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 223 of 291 been observed above both the lease deed Ex.PW3/B and GPA, SPA, Agreement to Sell (Ex.PW49/B, Ex.PW49/C and Ex.PW49/D) are of the same date.

459. While the deposit of Rs.11,98,000/­ having been made on behalf of Rattan Kaur is undisputed, no reason is explained for making another payment of Rs.15,00,000/­ to Rattan Kaur at the time of execution of Agreement to Sell on which an additional payment of Rs.1,12,000/­ for registration is also paid. No prudent purchaser, least a bonafide one would engage in purchase/sale of such nature where he after having deposited entire payment against the same property to DDA would get it transfered / executed in his name by making double payment. The maliciousness of the transaction is further evident from the fact that while the payment of DDA is made from the account of M/s Saraswati Trading Company, the execution of documents by way of transfer i.e. GPA/SPA is in the name of A3 Devender Kumar as the executant, which shows no intention of making the conciliation of transaction in either accounts

460. No entry in ledger / accounts is thus shown which could have been a proof of bonafide in favour of A­5.

461. It is observed that account of M/s Saraswati Trading Company, a proprietorship A/c. However, neither the account of M/s Saraswati Trading Company and/or of the account of A3 at any stage is produced CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 224 of 291 in defence. It is to be noted that the ITR/Ledger of the company of A3 were the best evidence and was in control and possession of accused himself which he did not produce for which inference against him is required to be drawn. It may also be observed that ld.counsel for A3 admitted the mandate of Section 91/92 Evidence Act and hence, the gaps observed between the expressions of documents and oral evidence could have been satisfied only through appropriate record held by accused and not otherwise as is attempted by offering a frivolous explanation u/s 313. Further, it is settled law that in absence of cross­examination, no explanation offered u/s 313 would find any credence. Hence, the statements above are to be discarded which only leads to conclusion of A3 being a voluntary participant in the exception of flat in favour of A5 Rattan Kaur.

Role of A5 Rattan Kaur

462. I now intend to deal with the argument raised by Sh. Ranvijay Kumar, ld. Counsel for A­5 Rattan Kaur @ Pinder Kaur. At the threshold, it be observed that he admitted the statements of witnesses produced by the prosecution. Infact, he relied upon the statement of PW­50 Smt. Usha Chaturvedi without showing any part of her statement being of any support to him. Nonetheless, the only aspect which he sought to challenge the prosecution's claim against A­5 is that the original application form and relevant documents submitted by A5 before DDA have not been produced by prosecution qua of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 225 of 291 acquisition of her land for allotment, while also in the same breadth claiming that in the year 1989 A5 Rattan Kaur was minor and never ever submitted any application in any manner. It appears that the ld. Counsel has not been able to articulate the premise of defence. Nonetheless, through both these arguments he admits that Smt. Pinder Kaur has infact indulged in donning the identity, fictitious in the name of Rattan Kaur.

463. Again while it is undisputed that Pinder Kaur @ Rattan Kaur is one and the same person, the statement that she was minor in 1989, does not augment her cause since no plea on above basis is sought to be countered, specifically when the chargesheet as well as order on charge dated 12.08.2016 both do not state the period of commencement of conspiracy as 1989. Rather, it makes apparent that Smt. Pinder Kaur and Smt. Rattan Kaur are the one and the same person.

464. Another contrary argument is raised with plea that no application had been moved by Smt. Pinder Kaur in any manner for allotment of alternative plot in name of Rattan Kaur, challenging prosecution to produce original documents/application etc. At the cost of repetition, it be noted that while the statement of PW50 Smt. Usha Chaturvedi stood relied upon by ld. Sh. Ranvijay Kumar he has conveniently omitted and overlooked the portion wherein her letter Ex.PW19/J informing untraceability of file F. 32(21)/43/89/L&B/Alt.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 226 of 291

is exhibited by PW19 Sh. Dinesh Kumar and was corroborated from the statement of PW5 Sh. Satish Kumar, Record Keeper. It is necessary to note that both these statements are also relied upon in the written submissions. While relying on above, how he could raise challenge for production of original document, is unstated by him.

465. Another interesting argument raised by him is that prosecution has not placed on record any document such as Jamabandi/land revenue record, award letter etc., however no explanation or justification is made available by him that why the documents of her being the land owner/displaced farmer on account of acquisition of Khasra no. 607, village Bahapur and factum of report of compensation from LAC was not brought by her in defence if she was a bonafide applicant since her identity is admitted as discussed in foregoing paras. As it was not denied that A5 Rattan Kaur only had been benefited out of the allotment and she was the person who sold the plot to A3, it became incumbent upon A5 to establish her bonafide in claiming the advantage of an alternative plot, the burden to bring on record the entitlement, ownership and the proof by documents such as Jamabandi, Khatoni and acquisition certificate was on A­5 to refute the allegations.

466. Another of his argument that the Minutes of Meeting have been signed by PW42 Sh. Prakash Kumar and PW2 Sh. Z.U. Sidiqui with a delay of 63 days is another inconsequential averment since, firstly CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 227 of 291 reasons of delay are explained by PW2 and PW42 who both have stated that the responsibility of preparation of Minutes of Meeting was on A1 Badrul Islam (since deceased) and it can only be explained by him, and secondly no where it could be explained that by delay in signing the Minutes A5 was disadvantaged and/or suffered and/or due to delay in finalisation of Minutes any presumption of her innocence is becoming available. Again, the Minutes are not denied and the draft of Minutes is confronted to PW17 Sh. Subhash Gupta by A5 herself. Moreover, PW42 has made a benign statement while being confronted with the draft Minutes and has made no assertion premised beyond record. In such case, it lay upon accused to show that reason of delay and/or explain assertions qua imputation of liability upon members of committee showing wrong doing or mischief, however no such statement or assertion is either made nor any witness is confronted on this aspect.

467. Another similar argument is raised alleging prosecution's failure in furnishing the internal record of revenue department qua A­5 is to be treated in the same manner as above. The accused from his side have not brought any record in her favour having ownership of Khasra no. 607 of village Bahapur and her having suffered acquisition and /or having received any compensation.

468. While no such material is there to even suggest the ownership, the challenge to the prosecution for its failure to produce such report in CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 228 of 291 fact is an exaggerated attempt and appears to have been raised half­ heartedly without much articulation and deliberation.

469. Ld. Sh. Ranvijay Kumar then proceeded to rely on the statement of PW17 Sh. Subhash Gupta which was also reproduced partly in his written submissions leading to an inference of admission of the contents of the statement. Though again an argument is raised that PW­17 did not perform his obligation no cross examination or even a suggestion of such a nature is put during his evidence or instance of omission / commission which can be construed as an out of dereliction on his proof.

470. Sh. Ranvijay relied upon the statement of PW19 and admitted his report Ex.PW19/H that file No F. 32(21)/43/89/L&B/Alt. was never available in Alternative Branch nor in Central Record Room and was untraceable he countered the statement by claiming that the record of Rattan Kaur was not consigned in the Central Record Room from the Alternative Branch. I, at this stage, take a pause, as this submission infact indicates against the A2 S.S. Malhi who as per the reading of statements of PW50 Smt. Usha Chaturvedi, PW42 Sh. Prakash Kumar PW1 Sh. Baidyanath Jha, PW2 Sh. Z.U. Sidiqui was responsible for the consignment of file.

471. Reliance in written arguments on the statement of PW44 Sh.Charanjeet Singh Malhi to claim that A5 Rattan Kaur (real identity CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 229 of 291 as Smt. Pinder Kaur) is an indigent lady is incapable in forming any part of conspiracy fails at the threshold that since statement of PW44 is incapable of reading as it could not be concluded due to his demise prior to conclusion of his cross­examination.

472. Contrary arguments have found place in written submissions as it is claimed from statements of PW2, PW17, PW42 the necessary inference is that the record i.e. LAC record, Internal revenue record, Indemnity Bond, Award and compensation, legal opinion from Dy. Legal Advisor were enclosed with application form and were not placed before the Recommendation Committee. However, he did not disclose that who, when and how enclosed the documents/internal record and how this fact came to his knowledge. In another attempt which is in complete turn around to earlier statements, A­5 disowned the fact of filing of application. It is unstated that if no application at all was filed then how the recommendation letter Ex.PW2/B came to be made in her favour on which she got allotment, possession of plot in question.

473. It hence became difficult to comprehend as whether the committee members were guilty of taking an informed mischievous decision alongwith A1 in favour of A5 or was their authority manipulated by keeping them in dark and keeping the material away from their reach. In terms of this submission above stand of prosecution seems to be probably shown vindicated that the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 230 of 291 manipulations were achieved through the acts of A2 and A4 active connivance and support of A3 and A5.

474. His submission that since the decision was taken by the Committee cumulatively all members of the Committee are responsible, again does not suggest any ground for defending A5 Rattan Kaur as by the decision of Committee either being malafide or bonafide, advantage, is undeniably created to his client A5, which fact itself is not disputed.

475. Another submission that A5 cannot be held for an act of conspiracy since no record of her presence in public hearing for submission of documents, as stated by PW7 Sh. K.K. Sharma, is put forth by way of gate pass or CCTV rendering of her presence, is again fallacious argument as neither the submission of documents on 19.07.2003 nor the execution of lease deed dated 20.07.2003 on request of A5 are denied or disputed as facts. Even, her physical presence is confirmed by PW7 and PW3. The thumb impression of Rattan Kaur obtained on Ex.PW3/B are established in report of expert as Ex.PW37/F. The report of expert is unchallenged. The physical presence of A5 at DDA office and her identity verification through Voter ID is another fact categorically stated by PW7 Sh. K.K. Sharma which itself is not in doubt. The fact that her original identity proof and fake identity proof i.e. Voter ID card were recovered from her house is CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 231 of 291 also established from the statement of PW34 Sh. Chirag Saluja who was an independent witness to her house search, from where the original Voter ID Card and Aadhar card and copy of Death Certificate of Sakattar Singh Ex.PW34/B (Colly) were recovered while the search list was exhibited as Ex.PW34/A. The statement of PW26 Sh. Prem Kumar Thakur has also shown that the recovered voter ID was infact the genuine one and no ID card was issued favouring anyone as Rattan Kaur.

476. The averment that it was the responsibility of DDA officials to thwart an attempt by A5 in securing allotment/possession and lease in her favour is an argument out of anxiety as neither the use of Ex.PW34/B (colly) the voter ID in name of Rattan Kaur having been tendered by her is declined nor there exists any effective cross­ examination of PW34.

477. Another disconnected argument which can be called irrelevant is of challenging the authority of Sub­Registrar in allowing Rattan Kaur to execute transfer within three months of allotment which he alleged was in violation of rules under R.II(5)(9)/6/8/LBD : 9 by Land & Building Department as no effort was made to show any innocence on the part of A5 in indulging in the act of sale. While this submission further strengthened the case of prosecution as it proved the fact of transfer by A5 in favour of A3.

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478. Ld. defence counsel then challenged and questioned the act of PW3 in rendering assistance in process of execution of sale deed based on false document, which reflected admission of use of false identity documents and affidavit by his client A5 while getting the lease deed executed.

479. His reliance on the statement of PW20, PW27, PW49 in furtherance of his averment of the contravention of the rule R.II(5) (9)/6/8/LBD:9 in favour of A3 Devender Kumar rather perpetuates the prosecution allegations of conspiracy between the accused persons and shows strength of the transaction within the chain formed by A2 S.S. Malhi, A5 Rattan Kaur @ Pinder Kaur and A3 Devender Kumar as she admits that within three months of lease deed the property was sold in contravention to the rules in favour of A3 to complete the object of conspiracy to gain the yield.

480. Ld. Sh. Ranvijay Kumar then relied upon the statement of PW25 Sh.N.S. Bhati, Section Officer, Lease Administration (R), PW40 Sh.Rajender Singh Beniweal, Practicing Advocate, PW37 Sh. Harinder Prasad (CFSL expert), PW30 Sh.Prabhat Chand Sharma, Postman stating that despite the communications issued were returned due to the wrong address of the allottee (A5), DDA executed possession and lease deed in her favour attempting to challenge their act of sending further letters to the wrong address of Rattan Kaur and lastly, benefiting her by allotment/possession and execution of lease deed. It CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 233 of 291 is admitted that A5 tendered her documents during public hearing, which argument is in contrast to her earlier plea of raising dispute to her participation in public hearing for which proof of CCTV was demanded, nonetheless, it remained ambiguous as what caused ld. Sh. Ranvijay Kumar to raise the above arguments as no assertion challenging the fact of A5 having tendered false address is even raised. It is rather now being admitted that the address furnished was non­ existent, in which background, how an accused can derive to put charge of his wrong doings on DDA, is a brazen stand and holds no merit.

481. It is necessary to point out that the statement of PW35 Sh. Deepak Chaudhary, Advocate, who stated about attestation on photograph of Pinder Kaur having been procured by Neeru Kumar Gupta, also went unchallenged, showing admission that infact photograph on Ex.PW2/B was of Pinder Kaur who camouflaged her real identity to take on grab as Rattan Kaur through fake attestation. It is requisited to be noted that A5 did not raise any contravention qua use of fake affidavit Ex.PW37/J, fake undertaking Ex.PW37/K and fake voter­ID Card Ex.PW40/A as were requisited to be furnished at the time of execution of the lease deed, in which background, what inspired her to challenge the attempt of DDA officials in refusing to accept the material tendered above, is a question that A5 has failed to explain as again an attempt is being made to find fault as DDA CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 234 of 291 officials for her acts and omissions in moving ingenuine and fake documents.

482. It is requisited to be observed that irrelevant overreaching submissions are made that all the letters at the furnished address of A5 were not delivered despite which DDA delivered all the letters only in public hearing without showing any essence or connect with the facts and allegations, rather, it corroborates that A5 tendered a false address as a 'ploy' to misguide the DDA officials and subsequently appeared in public hearing herself personally without disclosing the source of her having received the information of allotment and even received the possession. Again, at the cost of repetition, it is noted that infact, it was the responsibility of A5 to explain as how she came to know about attempts being made by DDA to deliver the allotment, letter of possession etc.

483. As the presence of A5 at the time of execution of lease deed is not denied, it also results in conclusion of her tendering of documents personally, which have been found false (as per statement of PW37, PW35, PW40 and PW30) and have been used for execution of lease deed which fact is also confirmed by PW14 Sh. Devdas and PW15 Sh. Pappu both of whom were peon/safaikaramchari with Advocate at INA/DDA and appeared as witnesses of execution of the lease deed Ex.PW3/B, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 235 of 291

484. Another important and intriguing observation that is requisited to be made at this stage is pertaining to fact that A3 Devender Kumar at no stage has disputed the execution of Agreement to Sell, General Power Attorney etc. dated 07.02.2004 having been made by A5 in garb of her fictitious identity as Rattan Kaur and her having put thumb impressions in his presence and has rather tried to seek advantage for the fact of her being a fictitious person to claim himself as victim, the said statement of A3 is readable in view of provisions of Section 10 of Indian Evidence Act, wherein he had narrated that A5 appeared as Rattan Kaur and under which identity she appended/executed the document in her favour. The statement hence dislodges the half­ hearted attempt of A5 to wriggle out of the acts of conspiracy alleged against her.

485. While making submissions further ld. Counsel Sh. Ranvijay Kumar relied on the statement of PW27 Sh. Ram Tirath, PW26 Sh. Prem Kumar Thakur, PW22 Sh. Akash Sood, PW14 Sh.Devdas, PW8 Smt. Sheela Devi and PW39 Sh.Ranjeet Kumar Pandey to claim that no complaint was lodged by private person or DDA without showing how a lodgement of complaint premised on the preliminary enquiry of PW39 whose proceedings have not been denied, controverted or disputed, can dislodge the proceedings of present FIR and/or can be assessed as illegal or irregular to draw any support.

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486. The claim that PW39 Insp. Ranjeet Kumar Pandey misused his powers being an official of CBI are to be termed as afterthought as no reason/ground/grudge or even acquaintance of accused and PW39 is stated to show any ill motive or malice which was sought to be settled through a false preliminary enquiry/FIR. Further, no effort to cross­ examine the witness on this ground is made.

487. In extension to above submissions, it is claimed that the prosecution has failed to prove that A5 had been meeting either mens rea or actus reus at any point of time with any accused. Apparently, this argument is either wrongly formulated/comprehended or inaptly articulated. The inference that ld. Counsel wants to draw appears to be that there is no attributable action or omission which can be connected with A5, in an attempt to bring her out of allegations of any nexus or mischievous intentions and indulgences. However, in the same breadth almost the entire prosecution evidence is admitted and rather is relied upon. The attempt in such directions is suggestive of fact that a willful effort is being made to keep the eyes deliberately closed qua material on record, despite admitting it a step before.

488. The evidence discussed uptill now hence shows her active, open, cogent and clear indulgence of A5 by presentation of falsified record, appearing with false identity and receiving the benefit therefrom in which chain she had received participation from A2 one of her relatives and A3 Devender Kumar directly and A4 Neeru Kumar CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 237 of 291 Gupta indirectly and silently. In this case, the averment that there is no direct or indirect evidence to connect alleged conspiracy with A5 with other accused is an imaginary statement.

489. Another similar argument claiming that there is no recovery of articles or any contact number which proves absence of the criminal conspiracy is another fallacious averment. The record cogently shows recovery of false voter ID card, which fact is proved by PW34/PW37 and other witnesses. The false death certificate of Bachan Singh and original Death Certificate of Sakattar Singh, Adhar card of Pinder Kaur and false address having been written on affidavit Ex.PW37/J, undertaking Ex.PW37/K, her photograph and signatures duly attested by Notary Ex.PW37/L are apparently overlooked, when this plea is raised apparently. In view of the discussion above, nowhere any similarity is shown while reliance is placed on State Vs. Kathi Unad Ranning & Ors.: 1955 Cri.LJ 52, which is to distinguished in this case.

490. Ld. Counsel Sh. Ran Vijay Kumar in support of his submissions claimed that no element of conspiracy is made out against his client and relied upon case law of State of Tamil Nadu Vs. Sivarasan @ Raghu @ Sivarsan & Ors. 1997 (1) Crimes 170 SC, however, the facts of the aforementioned matter are not shown to have any plausible connect with the circumstances brought on record.

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491. His reliance on Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. in Crl. Appeal No. 1695 of 2009 arising out of SLP (Crl.) No. 6211 of 2007 is not attracted to the facts presented in the present controversy and are arising out of an offence u/s 323/341/420/467/471 and 504 IPC on complaint u/s 156 (3) of Cr.P.C., did not disclose any offence or ingredients of forgery cheating etc as the dispute sought to be tried was of purely civil in nature while the Hon'ble Court has made elaborate discussions on the ingredients of the provisions. It is not shown that the judgement is applicable to the facts of this case.

492. Kali Ram & Ors Vs. Sate of Bihrar & Anr in Crl. Appeal no. 710/2008 is the case arising out of offence u/s 302 IPC premised on circumstantial evidence and no connect qua the elements discussed in the judgment is shown though the law relating to section 120B IPC is discussed in detail and rather goes to favour the prosecution case as the following observations have been made which are noted below:

"47. Since more often than not, conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the judgment reported 60 years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru i.e. 1941 All ALJR 416, Queen Empress v. Hoshhak may be re­emphasized:­ I. That the circumstances from which the conclusion is drawn be fully established;

II. That all the facts should be consistent with the hypothesis of guilt;

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III. That the circumstances should be of a conclusive nature and tendency;

IV. That the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved;

493. Judgement of Archana Rana vs. State of Uttar Pradesh & Anr in criminal appear no. 167 of 2021 has been already discussed however no support is retrievable in favour of the accused.

494. In N. Raghavender vs. State of Andhra Pradesh, CBI in Criminal Appeal no. 5 of 2010 which is based out of offence u/s 409/420/477A/120­B IPC to draw strength in support of the defence no such strength is culled out. The plea raised that no loss has been caused qua which the observations are made in the aforementioned law only provide disclosure of half material as the factum of the claim that DDA did not suffer any loss has already been discussed in detail in the following paras and is not reproduced herein for the sake of brevity.

495. Ld. Sh. Ran Vijay Kumar then relied on the judgement of Shashi Kumar Banerjee and Ors. Vs. Subodh Kumar Banerjee (1964) AIR (SC) 529 on which reliance is also made by ld. Javed Akhtar and the discussions are already made. He has also relied on the judgement of Sh. R.K. Khatri (supra) and Abdulla Mohammed Pagarkar (supra), which I have already discussed in detail.

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496. At this stage, I intend to make an observation in connection with reliance upon law laid down in State of Haryana & Ors Vs. Ch.Bhajan lal & Ors. AIR 1997 SC 301, as premise on the facts under discussion in the law laid down above specifically, do not find parity as the judgement is premised on the competence of the Investigating Officer below rank of SHO which is not the case or plea in the present case.

497. In Ajay Mitra vs. State of M.P. (2003) 4 AIR 602, the law laid down does not disclose any existence of criminal intent. Mohan Singh (supra) and Bhagwan Dass (supra) are already dealt with in above discussion in foregoing paragraphs.

498. Ld. Sh. Ranvijay Kumar has also relied on the following case law in order to stress his submissions : K. Sannaya AIR (1941) Mad.38; Arun Parshuram Sutar vs. Sate Maharashtra 1999 Crl.LJ 438 at p 441 (Bom); Akhil Chandra 1 LR 22 Cal. 1004; Delhi Lal vs. Dhaja Dhasi 1 LR 36 Mad. 392; Digamber Ram vs. Taran 411C. (Cal) 663; Gopalkrishna Menon vs.D. Raja Reddy 1983 Cr.L.J. 1599; AIR1983 SC 1053; Vivekanand vs. Sate of UP 1969 AWR (HC) 337 at p 339; Basirul Haw vs. Sate WB AIR 1953 SC 2933. However, in view of the fact resulted and discussed above, the aforementioned precedents are not found applicable to the facts and circumstances of this case.

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499. The facts discussed above in detail hence show through various depositions and establish that A2 S.S.Malhi being Dealing Assistant of Alternative Branch was presumptively aware of the scheme of welfare having been launched to advantage the displaced farmers whose lands were acquired for the purpose of scheme of rehabilitation titled "Large Scale Acquisition Development and Disposal of Land in Delhi. He knew the requisites of eligibility and process and was joined by A­1 Badrul Islam (since deceased) who was one of the members of the recommendation committee by virtue of his office, being head of the Department of Alternative Branch. A­5 Pinder Kaur, relative of A2, was then brought in as Rattan Kaur and was shown to be wife of the deceased Bachan Singh, R/o 3, Oak Estate, Dehradun Mussoorie Road, Dehradun having suffered acquisition of her land by Award No. 2059 at Village Bahapur having owned 22­11 part of Khasra No. 607 while neither any such ownership as stated nor any such person as Bachan Singh existed. The identity of her real husband as Sakattar Singh was concealed along with that of her actual address of village Nagoke as no such address as 3, Oak Estate, Mussoorie Road, Dehradun, existed. She never owned any portion of Khasra no. 607, Village Bahapur which was owned by the Lala Sohan Lal, Rai Sahib, Munshi Gulab Chand and Shankar Dass. The award no. 2059 was never made in her favour nor she was given any compensation despite which verification Ex.PW51/B was created by S.S. Malhi and on which basis CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 242 of 291 recommendation Ex.PW2/B was secured with false attestation of photo of Pinder Kaur secured through participation of A4 who used his connection as Advocate with PW35. It is then stated by way of facts that a recommendation (Ex.PW2/B) was used for allotment Ex.PW7/C and vide Ex.PW7/E physical possession was obtained after payment of Rs.11,98,000/­ was made by A­3 Devender Kumar from his firm's account at SBBJ (vide D/D Ex.PW53/E) Pinder Kaur @ Rattan Kaur vide her letter Ex.PW47/M, submitted the documents i.e. affidavit Ex.37/J, undertaking Ex.PW37/K, original bank challan Ex.PW46/D, her photo and her signature duly attested by notary Ex.PW37/L, voter­ID card Ex. PW40/A and specimen of thumb impression Ex. PW3/A­2, DX1 for execution of lease deed Ex.PW3/B on 20.07.2003 and the plot in question was sold on the same day to A3 vide GPA, SPA, Agreement to Sell (Ex.PW49/B, Ex.PW49/C and Ex.PW49/D).

Charge u/s 419/420 IPC

500. In the backdrop of allegations, one of the accusations which is integral to the entire factual matrix and gist of other accusation, is arising out of the allegations/charge under Section 420 IPC. Before adverting to the evidence received on record and the challenge made to its assessment by arguments and counter arguments wherein both the prosecution and the defence counsels, tried to interpret the evidence CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 243 of 291 and read the statements in light of their understanding and interpretation of the material, it would be beneficial if the necessary ingredients of the relevant provisions are reproduced :

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".

501. How the ingredients of aforementioned provision are to be interpreted is detailed in Archna Rana vs. State of UP [Crl. Appeal No. 167/2021 (DoD 01.03.2021)], the Hon'ble Supreme Court while discussing above provision guided that no offence u/s 420 IPC can be termed to have been committed, unless, the ingredients of Section 415 are shown to have been satisfied, in background of above, it is now worthwhile to reproduce the relevant part of the judgment as below :

"i) a person must commit the offence of cheating under Section 415; and

ii) the person cheated must be dishonestly induced to

a) deliver property to any person; or

b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 244 of 291 valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.

Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a person by deceiving him:

The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.

Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating."

502. The definition of cheating contains two parts. First comes the main part "whoever, by deceiving any person....." words which obviously apply to the whole section. Then comes the first part "fraudulently, or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property." Then comes Part 2, which is an alternative to sub­part 1 viz. "or intentionally induces ..... mind, reputation or property." then comes the closing words "is said to cheat.". The words "and which act or omission .... reputation or property" form a portion of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 245 of 291 Part 2 and are not applicable to Part 1 at all. (Ishar Das (1908) PR No.10 of 1908 : (1906) 7 Cri LJ 290.

503. The aforementioned judgment makes it clear that there are two distinct provisions forming part of offence of cheating. First relating to inducement/deception to fraudulently get a transaction of property which may be movable or immovable in nature, whereas second part is more emphatic in connection with act or omission relating to inducement which may cause damage or harm to reputation or property. Both the aforementioned parts are distinct and disjunct, however, "deception" is common in both.

504. This preposition has been strengthened further in Bavaji (1875) Urrep Cr C 96, Cr R September 23, 1875, wherein it is detailed "the definition of offence of cheating embraces, in some cases, in which no transfer of property is occasioned by the deception and some in which such a transfer occurs; for these cases generally a general provision is made in Section 417 of the Code. For the cases in which property is transferred a more specific provision is made by Section 420 IPC. Again in Iridium India Telecom Ltd vs Motorola Incorporated : AIR 2011 SC 20 it is held that "misleading statements which withhold the vital facts for intentionally inducing a person to do or to omit to do something would amount to deception. Further, in case it is found that misleading statement has wrongfully caused damage to the person deceived it would amount to cheating". In Roop Chand & Anr. Vs. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 246 of 291 The State 1966 Crl. L.J. 1367 and again in Nadir Ali Barqa Zaidi And Ors. vs The State of U.P. : AIR 1960 All 103 : 1960 Cri LJ 188 (All), it is held "every promise by a person of his future conduct implies the statement of witness about it. Therefore, if a person makes a false representation regarding his future conduct and thereby obtain property from another, the mis­representation made by him would be an existing state and would fall within the mischief of this section".

505. While discussing the ingredients, the applicability of Section requires the following ingredients as is held in Ram Jas vs. State of UP : AIR 1974 SC 1811 :

"1 Deception of any person.

2(a) Fraudulently or dishonestly inducing that person :

     (i)       to deliver any property to any person, or.
     (ii)      to consent that any person shall retain any property,
               or
     (b)       intentionally inducing that person ......."

506. While declaring the purport of deception it is held in Iridium India Telecom Ltd (supra) "non­disclosure of relevant information would also be treated as a mis­representation of facts leading to deception"

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507. Again in Robert John D'Souza & Ors vs Mr. Stephen V. Gomes & Anr : 2015 CriLJ 4040 SC, it is held that essential ingredient of cheating is "deception".

508. In Swami Dhirendra Brahmachari v/s Shailendar Bhushan :

1995 CLJ 1580 as well as in Motorola Incorporated vs. Union of India : 2004 CriLJ 1576 (Bom), it is held that "it is causing to believe what is false; or misleading as to a matter of fact or leading into an error".

509. As to what is sufficient to constitute a deception must be decided in each case on its own fact [Ram Nath Kalphar (1905) 2 CLJ 524)].

510. When a person fraudulently represents as an existing fact, that, which is not an existing fact, he commits this offence. A willful misrepresentation of definite fact with intent to defraud, cognizable by the senses is cheating. Hence, in all cases, the evidence must show that the inducement was dishonest or fraudulent and accordingly to secure a person function of cheating mens rea on the part of that person must be established.

511. After having made note of the relevant provisions, it is now incumbent to take on record for discussion, the contentions raised in the background of the factual matrix presented through the evidence and its interpretation in the light of the arguments in the present case.

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512. While the prosecution has quoted many instances in the written submissions to allege the involvement of accused in an act of cheating of the most pertinent coming from the statement of PW2 Z.U. Sidiqui, PW17 Sh. Subhash Gupta (DLA) and PW42 Sh. Prakash Kumar, Secretary (all members of the Recommendation Committee) who detailed that it was the responsibility of A2 to obtain the opinion from Legal Department and seek verification from the Revenue Department as well as LAC qua certification appended, alongwith the application by the applicant farmer seeking advantage of rehabilitation scheme. While the verification issued under the hands and signatures of S.S. Malhi is available in connection with the application in the name of A5 Rattan Kaur. The following is mentioned on under signatures of A2 "the particulars are found correct, as per record". The document is Ex.PW51/B exhibited during statement of PW51 IO/Insp. Sanjay Kumar and is corroborated by PW1 Sh. Baidyanath Jha. It is piece of corroborated evidence that in order to give advantage to A5, who in terms of above discussion is shown to be a dummy or a fictitious entity and is actually a relative of A2 himself, he extended the false verification.

513. Another instance which finds corroboration through evidence is the fact of issuance of the recommendation letter Ex.PW2/B in name of Rattan Kaur @ pinder Kaur. The recommendation letter is generated from the booklet issued to A2 S.S. Malhi as it is detailed by CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 249 of 291 PW19 Sh. Dinesh Singh that the booklet with serial No. 1101 was in his possession at the relevant time and is proved to be entered in the register of issuance of such booklet/records.

514. In terms of statement of PW19 Sh.Dinesh Singh, creation of false file No.F.32(21)/43/89/L&B/Alt is also shown from the recommendation letter Ex.PW2/B, which document is not disputed/denied and/or is rather admitted by the accused persons during different stages of arguments.

515. Ex.PW2/B bears the signatures of A1 Badrul Islam (since deceased), which has been identified by PW2 Z.U. Sidduqi, PW17 Subhash Gupta, PW42 Sh. Prakash Kumar and other witnesses.

516. Infact, the Minutes of Meeting which have been prepared and signed by A1 are another corroboration of the aforementioned series of facts channelized to receive the goal of mischief.

517. The fact that file No. F32(21)/43/89/L&B/Alt was not available is stated by PW19 Sh. Dinesh Singh, who has tendered the report and exhibited the same as Ex.PW19/H. This fact is again corroborated from the statement of PW50 Smt. Usha Chaturvedi, Dy. Director, Alternative Branch. Similarly, non­consignment of aforementioned file is stated by PW19 and PW5, who have tendered their reports Ex.PW19/H. CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 250 of 291

518. Further, PW19 Sh. Dinesh Singh has exhibited copy of register of South Zone as Ex.PW19/I. At page No.3 of this register, at serial no.21, name of village Bahapur is mentioned and on page no.43 of the same, only four entries of village Bahapur was received without any mention of A5 Rattan Kaur.

519. Factum that a false file has been created is also established from the statement of PW19 who has exhibited on record the register pertaining to receipt and issue of recommendation form from Alternative Branch, South Zone (Page No.42 of D­60), which find mention of file No.F.32(21)/4/98/L&B/Alt and also shows 001142 serial number of the recommendation form/letter are found it mentioned at serial no.324 in the register dated 04.02.2003 and 28.03.2003.

520. The facts above sufficiently show the indulgence of A2 S.S. Malhi in clearly manipulating the advantage of scheme, created for welfare and advantage of displaced farmers. The fact of engagement as his part in mischievously manipulating record for personal benefit is apparent.

521. It is apparent that A2 actively colluded with A1 Badrul Islam (since deceased) and both succeeded in extracting the recommendation letter from the Committee constituted for such purpose which is admitted and is also proved through the file of Minutes of Meeting CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 251 of 291 Ex.PW2/A. It is apparent that both the accused persons were aware that this recommendation letter would be subsequently converted into allotment of a plot through LSB, DDA. Accordingly, Ex.PW2/B was forwarded through Central Dak and Diary Department to LSB Department, DDA, which fact is again capitulated from the statements of PW7 Sh. K.K. Sharma, Retired Asstt. Director, DDA and PW46 Sh. S.C. Kaushik, the then UDC as well as PW47 Sh.Mohan Lal. Both these witnesses have proved that on receipt of recommendation letter Ex.PW2/B bearing no.F.32(21)/43/89/L&B/Alt/20735 dated 28.02.2003 file Ex.PW7/A (D­9) was opened in LSB for allotment and name of Rattan Kaur was included for draw of plots under caption "scheme of form of draw of Rohini, Narela and Dwarka held on 29.05.2003". The recommendation letter was taken note on report dated 01.04.2003 against diary no.3569 on which the process was initiated. The letter then was put up before Sh. K.D. Reddy, Dy. Director on 09.04.2003 vide his noting at page no.1/N file no. F­ 27(8)/2003/LSB(R). After the incorporation of recommendation through Ex.PW7/A for draw of plots, result Ex.PW46/A was exhibited showing name of Rattan Kaur having been allotted plot no. 262 Block­A, Pocket­2, Sector­17, Dwarka, New Delhi under Dwarka Residential Scheme vide programme no. LSE(R)D00034.

522. Consequent to the allotment, the payment, physical possession of the property was obtained by accused Rattan Kaur, by tendering CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 252 of 291 false documents i.e. affidavit Ex.PW37/J, undertaking Ex.PW37/K, original bank challan Ex.PW46/D, attested photograph Ex.PW37/L, voter­ID Card Ex.PW40/A and specimen of thumb impression Ex.PW3/A2.DXI. It is stated on record by PW20 that an amount of Rs.11,98,000/­ had been forwarded from the account of M/s Saraswati Trading Company, meaning thereby, that the payment did not come from accused Rattan Kaur herself and immediately thereafter the plot was transferred in the name of A3 Devender Kumar of M/s Saraswati Trading Company, from whom the payment was received which fact is proved by PW20 Sh. Daya Ram Khinchi.

523. Interestingly, A3 Devender Kumar did not keep the plot with him and transferred further it to another party for an amount of Rs.16.5 lakh as per statement of PW53 A.K. Saini. By adopting the aforementioned process, all the accused persons collectively with mischievous intention participated together in inducing DDA and secured advantage not meant for them knowing fully well that the scheme was for welfare for displaced farmers.

524. I, now propose to deal with the judgment relied upon by ld. Sh.Javed Akhtar on behalf of A­2 and A­4 and Sh. Ranvijay Kumar for A5. He relied upon the judgment of R.K. Khatri Vs. CBI (1996) 1 Crimes 511, however, the premise upon on which the above law laid is down is distinguishable from the facts of the present case as the Hon'ble High Court in the aforesaid judgment observed that facts were CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 253 of 291 more akin to civil proceedings in absence of any flavour of criminal law.

525. Similarly, Mohan Singh vs. State of Rajasthan (2000) Cri.LR 388 is distinguishable since there was no proof of illegal gain to the accused persons whereas in the present set of circumstances the gain by way of acquisition of plot no. 262, Block A, Pocket­II, Sector­17, Dwarka against the recommendation, allotment and lease is shown clearly.

526. Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Ors (1974) AIR (SC) 301 is distinguishable for the reason that no element of mens rea is disclosed in the aforementioned law. Similarly, in Ajay Mitra Vs. State of MP and Ors (2003) 3 SCC 11 the observation of absence of any criminal intent to "cheat" or "deceive" the complainant is made the ground.

527. In Abdulla Mohammed Pagarkar etc. Vs. State (1980) AIR (SC) 499 the conviction was set aside on the ground of lack of any material sufficient for conviction and was held that the allegations at the most constitute flagrant disregard of relevant rules and not cheating as the accused proceeded to execute the work disregard of relevant Rules of G.F.R. However, the facts and circumstances are distinguishable as in this case it has not only questioned of violation of rules but manipulation of the rules for cheating through deception.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 254 of 291

528. In Prabhat Kumar Bose and Shibdas Dutta Vs. Tarun Kanti Bagchi and Anr (1994) AIR (SCW) 1016, the law is laid down for want of sufficient satisfaction of ingredients of offence under the domain of section 415 IPC, punishable under Section 420 IPC as it is held that the amount paid by the complainant to the broker of stock exchange is not to be construed the payment to the company against which the payment of share certificate is made.

529. While in Guru Bipin Singh Vs. Chongtham Manihar Singh and anr (1997) AIR (SCW) 135 proceedings have been quashed u/s 482 Cr.P.C. for absence of proof to forgery which is held as principle allegation. The law is again premised on distinguishable circumstances.

530. Further in Mohd Ibrahim & Ors. Vs. State of Bihar & Anr 2009 (4) JCC p. 2753 while discussing the ingredients necessary u/s 415, 417, 418 419 and 420 IPC it is held that criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes, however, present circumstances do not suggest any such plea having been raised.

531. In Cogent Silver Fibre PTE.Ltd. Vs. State 2007 (2) JCC 1363 again it is observed that plea is of civil nature and no element of mens rea is shown. It is observed that offence of section 406/420 IPC is not shown considering the substance of complaint as initial intention of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 255 of 291 cheating is not discernible and there is no delivery of property which fact is contradictory to the circumstances shown herein, as accused received possession of the plot no. plot no. 262, Block A, Pocket­II, Sector­17, Dwarka by execution of possession slip whereafter it was sold out.

532. The submissions relied upon through Harmanpreet Singh Ahluwalia vs. Sate of Punjab 2009 (7) SCC 712 that intention of cheating and breach of trust must be shown from the inception is settled provision of law, however, the facts in this case also have been discussed in detailed above do not show any intent attributable to A­2 and A­4 in which background the judgment is discernible.

533. Ld. Sh. Vikram Singh Panwar, Advocate for A3 made vehement arguments defending acts of his client A3 and averred that in order to show the cheating, presence of accused should be shown from the beginning and not subsequently. He claimed that accused was not present anywhere at the inception stage since his presence is not shown either at the time of recommendation Ex.PW2/B or subsequent allotment. He claims that in absence of any communication being evident by any of the witnesses between him and the other accused he cannot be held liable for the offence. However, it appears that he has omitted to read evidence completely and conclusively. It is evidenced by the witnesses, especially PW46 and PW7 that confirmation of payment was prior to the possession letter was issued. PW20, PW21 CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 256 of 291 and PW22 all have given material details of chain of payment from account of M/s Saraswati Trading Company to DDA HSS Account, which were prior to possession and lease deed. All the above incidents show his appearance and participation at significant stages and he made pivotal contribution. Merely, for the reason that his visibility is not apparent at the time of recommendation letter does not lead to conclusion of his absence. Moreover, the above acts have not been explained successfully since the defence is merely an afterthought due to which the factum of repayment of Rs.15 Lakh while executing GPA, SPA, Agreement to Sell Ex.PW49/B, Ex.PW49/C and Ex.PW49/D respectively, despite making an earlier payment of Rs.11,98,000/­, is unexplained. No cogent reason is stated for double payment, which gave way to the factum of no other assessment but that A3 did not wish to be seen contributing amount of Rs.11,98,0000/­ earlier made with clandestine intentions for which he even resorted to payment from the amount of his company, though he kept claiming to have made the payment against settlement of an individual loan. It shows that attempt was being made to legalise ownership, which gave way to the factum of his knowledge and thoughtful malicious intentions. His claim that there is no material as such to link him to Pinder Kaur while purchasing the property being a bonafide purchaser is again belied by his own cross­examination to PW53/IO Insp. A.K. Saini, who in response to a question volunteered that A3 was physically present at the time of execution of lease deed CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 257 of 291 on 20.07.2004 in favour of A5. In afore­mentioned circumstances, he was not a bonafide purchaser of the property who had no involvement or knowledge of the transaction or having participated therein, there is no cross­examination to the aspect of the statement made by PW53 about his physical presence. The afore­mentioned statement showing facts cannot be bifurcated as separate events and form part of to a series of acts in furtherance of a desired goal. The afore­mentioned conduct on his part is sufficient to infer his intention. The fact is that the defence is sought to be created on the shoulders of deceased Ram Kishan by claiming to the transaction having been imposed on A3, though no cross­examination of PW39 and PW51 in the content is made. While it is claimed that the aforementioned circumstances were told to CBI at the stage of preliminary inquiry, there is nothing on record to suggest, even a single question having been directed to PW39, who conducted the preliminary inquiry even putting forth a suggestion that Ram Kishan was responsible for super imposing his decision on A3. In absence of any such cross­examination, a mere statement in defence under statement Section 313 Cr.P.C. is of no avail as is held in Devender Kumar Singla vs. Baldev Krishan Singla :

2004 (2) SCR 459, wherein the following is observed :

"Learned counsel for the accused appellant Devender strenuously urged by putting questions about the number of shares etc., it was indirectly suggested that there was no delivery of shares. When there was definite assertion about delivery of shares evidenced by a receipt, the inability of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 258 of 291 the complainant to tell number of shares is not sufficient to discard his case. It only establishes that the complainant did not remember the number of shares. The evidentiary value of the receipt is not in any manner disproved by the inability of the complainant to tell the numbers. Further, what appears to have weighed with the trial Court is that the transaction allegedly took place on 27.7.1992. Significantly there is also no suggestion to the complainant during cross­examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice."

534. Further the inference of participation at inception can be made from the conduct of accused for which no expression is needed, is a settled principle in view of the judgment of Devender Kumar Singla (supra) and Shivnarayan Kabra vs. The State of Madras : AIR (1967) SC 986.

535. All the accused persons collectively through their ld. Counsels Sh.Javed Akhtar, Sh. Vikram Panwar and Sh. Ranvijay Kumar have submitted that no actual loss had been suffered by DDA and hence none of the accused qualifies to suffer conviction due to any wrongful CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 259 of 291 loss as is one of necessity and requisite of Section 420 IPC. Reliance is made repeatedly on the statements of prosecution witnesses PW3 Sh. Bhupal Singh and PW46 and it is claimed that officials of DDA have themselves admitted that there is no loss which had been caused to DDA.

Charge u/s 467/468/471

536. The accused are also facing trial for the charge u/s 467/468/471 IPC for causing forgery by way of creation of false documents dishonestly and fraudulently and by gaining through their use knowingly and believing fully well about the factum of their being forged, in which course, the documents have been used as genuine. The factual matrix in this context has been discussed in detail by observing the statements of witnesses on record. PW2 Z.U. Sidddique, Member of the Recommendation Committee, who detailed about the recommendation letter Ex.PW2/B from file no.F.21(32)/43/89/L&B/Alt in name of A5, in which file Ex.PW51/B the verification by S.S. Malhi is made confirming the fact of verification of documents of ownership of A5 qua Khasra No. 607, Village Bahapur. It is discussed already that no such verification was and fact that A5 did not own any land of such nature etc. was in the domain of knowledge personally held by A5, who also appended her photograph with false attestation of PW35 on Ex.PW2/B, which was signed by A1.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 260 of 291

537. Based on recommendation letter, letter of possession Ex.PW7/E was issued. At the time of receipt of possession, voter ID in name of Rattan Kaur was used. A5 knew fully well that the voter ID is forged and false document in name of Rattan Kaur, while the original voter card in her name "Pinder Kaur" was with her at her home. She used the forged ID card as a tool for strengthening her false and fictitious identity to claim possession tendered voter ID card as a proof of her identity before PW28, who handed over the possession to her believing the contents of the voter ID card. However, as per statement of PW26, voter ID card was forged. PW29 deposed about the factum of false Aadhar card, PW34 stated about the recovery of original voter ID card and Aadhar card at the time of house search vide search list Ex.PW34/A. A5, vide her letter Ex.PW47/M, submitted the documents i.e. affidavit Ex.37/J, undertaking ExPW37/K, original bank challan Ex.PW46/D, her photo and her signature duly attested by notary Ex PW37/L, voter­ID card Ex. PW40/A and specimen of thumb impression Ex. PW3/A­2, DX1. The handwriting sample of A5 was collected and matched with samples as per Ex.PW37/F tendered by Forensic Expert. The relevant extract of report is reproduced herein below :

"Detail of documents / exhibit:

1. An Affidavit notorized on 11 Sept. 2003 submitted by Smt. RattanKaur w/o Sh. Bachan Singh bearing CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 261 of 291 questioned fingerprints marked as Q.2 and A.3.

2. An undertaking notorized on 11 Sept. 2003 submitted by Smt. Rattan Kaur w/o Bachan Singh bearing questioned fingerprint marked as Q­4.

3. Specimen signature / thumb impressions notorized on 1 Sept. 2003 submitted by Smt. Rattan Kaur w/o Sh. Bachan Singh bearing questioned fingerprint marked as Q.5 to Q7.

4. Specimen signature / thumb impressions and photo attested notorized on 1 Sept. 2003 submitted by Smt. Rattan Kaur w/o Sh. Bachan Singh bearing questioned fingerprint marked as Q.8 to Q.9.

5. An application addressed to Dy. Director, Dda submitted by Smt. Rattan Kaur w/o Sh. Bachan singh on dated 01.09.2003 bearing questioned fingerprint marked as Q­10.

6. A lease plan dated 20.01.2004 of plot no. 262, Block­A, Pocket­2, Sector­17, Dwarka bearing questioned finger print marked as Q­11.

7. A possession letter dated 20.01.04 of Plot No. 262, Block­A, Pocket­2, Sector­17, Dwarka bearing questioned fingerprint marked as Q.11A to Q­12.

An application addressed to Assitt. Director DDA submitted by Smt. Rattan Kaur w/o Sh. Bachan Singh on dated 27.09.2004 bearing questioned fingerprint marked as Q­13.

9. A provision perpetual lease dated 20th July, 2004 executed between DDA and Rattan kaur bearing questioned fingerprint marked as Q.14 to Q.19.

10. A Prvisional perpetual lease dated 20th July, 2004 CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 262 of 291 executed between DDA and RattanKaur bearing questioned fingerprint marked as Q.20 to Q.25.

11.An application addressed to Director DDA submitted on 07.04.2004 by Smt. Rattan Kaur bearing questioned fingerprint marked as Q­26.

12. An application addressed to Asst. Director LSB ® DDAsubmitted on 19.07.2004 by Smt. Rattan Kaur w/o Late Bachan singh bearing questioned fingerprint marked as Q­27.

13. A photocopy of election voter ID of smt. Rattan Kaur w/o sh. Bachan Singh r/o Dehradun bearing questioned fingerprint marked as Q­28 to Q­29.

14. An affidavit submitted by Smt. Rattan Kaur on 20th July, 2004 bearing questioned fingerprint marked as Q­30 to Q­31.

15. A specimen signature of Smt. Rattan Kaur w/o late Bacan Singh attested by notary on 20 Juy, 2004 bearing questioned fingerprint marked as Q­31 to Q­34.

16. An undertaking notarized by Smt. Rattan Kaur on 20 July, 2004 bearing questioned fingerprint marked as Q­

35.

17. An affidavit notarized by smt. Rattan Kaur on 20 July, 2004 bearing questioned fingerprint marked as Q­36 to Q­

37.

18. An application addressed to Asst. Director, DDA submitted by Smt. Rattan Kaur on 20.07.2004 bearing questioned fingerprint marked as Q­38.

19. Two sheets pertaining to P/L (perpetual lease) dated 20.07.2004 attested by Asst. Director Land Sales Branch (Res), DDA bearing questioned fingerprint marked as Q­ CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 263 of 291 39 & Q­40.

20. A photocpy of General Power of attorney dated 20.07.2004 executed by Smt. Rattan Kaur w/o late Bachan Singh bearing questioned fingerprint marked as Q­41 to Q­45.

21. A photocopy of Special Power of attorney dated 20.07.2004 executed by Smt. Rattan Kaur w/o late Bachan singh bearing questioned fingerprint marked as Q­46 to Q­47.

22. A photocopy of Agreement to sell dated 20.07.2004 executed between Smt. Rattan Kaur w/o Late Bachan singh and Sh. Devender Kumar s/o late Mange Ram bearing questioned fingerprints / signatures marked as Q­ 48 to Q­69.

23. Specimen Fingerprints and palmprints of Smt. Pinder Kaur @ Rattan Kaur w/o sh. Late Sh. Skatar Singh marked as S­119 to S­127.

8. RESULT OF EXAMINATION:

1. The questioned thumb impressions marked here as Q­2, Q­4, Q­5, Q­6, Q­7, Q­8, Q­9, Q­10, Q­11, Q­12, Q­14, Q­15, Q­16, Q­17, Q­18 Q­19, Q­20 Q­21, Q­22, Q­23, Q­ 24, Q­25, Q­28, Q­29, Q­30, Q­31, Q­32, Q­33, Q­34, Q­ 35, Q­36, Q­37,Q­38, Q­39 and Q­40 are identical with specimen right thumb impression of Smt. Pinder Kaur @ Rattan Kaur w/o late Sh. Skatar Singh marked here as RTS, 119 on the slip marked as S­119.

2. The questioned thumb impressions marked here as Q­ 41, Q­42A, Q­42B, Q­43, Q­44, Q­45, Q­46, Q­47A, Q­ 47B, Q­49, Q­50, Q­54, Q­55, Q­59, Q­61, Q­63, Q­65, Q­67, Q­68 are identifcal with specimen left thumb impression of Smt. Pinder Kaur @ Rattan Kaur w/o lat CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 264 of 291 eSh. Skatar Singh marked here as LTS.119 on the slip marked as S­119.

3. The questioned fingerprints marked here as Q­42 I, Q­ 47 I and Q­55 I are identical with specimen left index fingerprint of Smt Pinder Kaur @ Rattan Kaur w/o late Sh. Skatar Singh marked here as LIS.120 on the slip marked as S­120.

4. The questioned fingerprints marked here as Q­42M, Q­ 47M, Q­50M and Q­55 M are identical with specimen left middle fingerprint of Smt. Pinder Kaur @ Rattan Kaur w/o late Sh. Skatar Singh marked here as LMS.120 on the slip marked as S­120.

5. The questioned fingerprints marked here as Q­42R, Q­ 47R and Q­55R are identical with specimen left ring fingerprint of Smt. Pinder Kaur @ Rattan Kaur w/o late Sh Skatar Singh marked here as LRS.120 on the slip marked as S­120.

6. The questioned thumb and fingerprints marked here as Q­26, Q­51, Q­51M, Q­51R, Q­56, Q­56M are different from specimen ten digit fingerprit slips of smt. Pinder Kaur @ Rattan kaur w/o late Sh. Skatar Singh marked as S­119 to S. 127.

7. The questioned thumb / fingerprint impressions marked here as Q­3, Q­11A, Q­13, Q­42I, Q­47L, Q­50L, Q­50R, Q50L, Q­51 I, Q­51L, Q­55L, Q­56 I, Q­56R, Q­56L are blurred / smudged and do not contain sufficient number of clear ridge characteristics for comparison.

Identical: (Matching ridge characteristics have been found in their relative positions in the questioned and specimen print. This forms the basis of the opinion that these prints are identical. Eight of them have been marked with projected red lines and alongwith their detailed CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 265 of 291 descriptions in selected prints are placed at annexure­1 &2.

Different: Ridge characteristic present in questioned finger prints were not similarly present in their relative position in the specimen finger prints. This forms the basis of the opinion that these prints are different."

538. Ld. Sh. Ranvijay Kumar and Sh. Javed Akhtar both relied upon the judgment of Murari Lal vs. State of Madhya Pradesh : 1980 AIR 531 to claim that the opinion of expert is a mere expression of an opinion and it cannot be treated as a proof. However, it is conveniently ignored that in this case of corroboration to the statement of witnesses, who have clearly deposed about no such documents having been issued. In this regard, statement of PW35 Sh.Deepak Chaudhary, Advocate, who attested the photograph of A5 which was used on the recommendation letter Ex.PW2/B and W40 Sh.Rajender Singh Beniwal, who denied having made any attestation of the affidavit and other documents of A5, is pertinent, as both the statements read in conjunction with other statements discussed above as well as the statement of PW46 and PW7 clearly show that the documents were handed over by A5 personally during a public hearing, which took place on 19.07.2004, on which date she also made a request for fixing a date for execution of lease deed and at her request, the date for execution of lease was fixed as 20.07.2004. This element is strengthened further through the statement of PW14 Sh. Devdas (Peon CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 266 of 291 in the office of Arun Malik, Advocate) and PW15 Sh. Pappu (Safaikaramchari in the office of Major Sunil Malik, Advocate), who both corroborated the fact of presence of A5 Rattan Kaur @ Pinder Kaur and also the factum of attestation of photograph in her name on lease deed Ex.PW3/B, apart from the statement of officials of DDA, witnesses, specifically PW7, PW46 and PW3 and PW28 (who handed over the possession), who had received the documents directly from A5 at relevant stages. In wake of aforesaid facts and circumstances, the opinion of expert is not merely an expression but worthing testimony and evidence, which cannot be discredit, unless it is shown unworthy. No attempt in that direction has been made as the cross­examination has failed completely to dispel authenticity of process adopted, competence of witness to carryout examination and other technical aspects detailed in examination of the thumb impression etc. of A5.

539. In Murari Lal vs. State of Madhya Pradesh : 1980 AIR 531, the Hon'ble Supreme Court has observed as below :

"We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion­evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion­evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 267 of 291 high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses­the quality of credibility or incredibility being one which an expert shares with all other witnesses­, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger­prints has attained near perfection and the risk of an incorrect opinion is practically non­ existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence). "

540. In view of law laid down in Murari Lal (supra), the statement of the expert is reliable piece of statement and adds credence to the CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 268 of 291 oral statement made by witness and hence, shows that the aforementioned documents which were found forged, were used for manipulating recommendation, allotment, possession and sale of plot No. 262, Block­A, Pocket­2, Sector­17, Dwarka, New Delhi.

541. Ld. Sh. Vikram Panwar has pointed that his client has not participated, facilitated and/or was involved in either the preparation and used of forged documents alleged and hence, the charge u/s 467/468/471 IPC or its conspirator is unsustainable against A3. He made reliance upon the judgment in Sheila Sebastian vs. R. Jawaharaj : AIR 2018 SC 2434. Similar submission has been made by ld. Sh. Javed Akhtar, who in detailed tried to distinguish the element of forgery from impersonation and claimed that the prosecution has failed to match the ingredients detailed. Ld. Sh. Ranvijay Kumar while tendering his submission in detail, relied upon the judgment of Bihari Lal Gupta vs. State of Himachal Pradesh :

1984 Sim. LC. 303 at 302­307 HP. However, role and involvement of accused, which is discussed above partly, needs to be probed further in view of the fact that charge u/s 120B IPC is also to be read in conjunction.

542. In order to appreciate the facts appropriately in the light of law, I rely on the provisions of Sec. 10 of Indian Evidence Act. A brief CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 269 of 291 reading of the provision, at this stage, is requisited and hence is made as follows :

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

543. In 'The Law of Evidence" (Ratan Lal & Dhirajlal), 25 th Edition, page 339, while discussing Principle and Scope, the first note that comes is worth reproduction and is accordingly, noted as below :

"The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the persons prosecuted, is that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attitude of individuality, so far as regards the prosecution of the common design: thus rendering whatever is done or said by anyone, in furtherance of that design, a part of the res gestae and, therefore, the fact of all.................."

544. According to Phipson (15th Edn., 2000, page 728) "Where two persons are engaged in a common enterprise, the acts and declaration of the one in pursuance of that common purpose are admissible against CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 270 of 291 the other. This rule applied in both civil and criminal cases and in the letter, whether there is a charge of conspiracy or not, provided that the crime charged was committed in pursuance of a conspiracy i.e. an agreement of two or more persons to commit it".

545. Further, Cross & Tapper on Evidence, 8TH Edition, 1995, page 654, it is observed "The admissions of one conspirator are receivable against the other if they relate to an act done in furtherance of the conspiracy, but not otherwise".

546. In Badrirai vs. State : AIR 1958 SC 953, Hon'ble Supreme Court observed :

"Section 10 of Indian Evidence Act has been deliberately enacted in order to make such acts and statements of a co­ conspirator admissible against the while body of conspirators, because of the nature of crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statements of the others, unless there is a common bond linking all of them together. Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another. It is only when there is evidence of a concerted action in furtherance of a common responsibility, on the principle that everyone concerned in a conspiracy, is acting as the agent of the rest of them. As soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 271 of 291 made, by anyone of the co­conspirators, is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the subject of the conspiracy. Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to common purpose running through the chain of acts or illegal omission attributable to individual members of the conspiracy".

547. The fact that all accused have been woven through a chain provides and act in a consolidated manner, is evident and discussed in detail in foregoing paras.

548. Besides, there are clear attempts of the fact imputing each other for the individual acts committed and omitted by accused as part of their being member of the common interest. While Ld. Sh. Vikram Panwar in his submissions tried to disassociated himself with the allegations of element of forgery, ld. Sh. Ranvijay Kumar in his written submissions admitted that the lease amount in favour of DDA had been made by A3, though it is claimed that the amount was paid without the consent and permission of A5. It is not denied that despite the acts allegedly beyond her consent, she participated in the process to conclusion of receiving possession and execution of lease.

549. While making aforesaid, Ld. Sh. Ranvijay Kumar omitted and ignored the glaring statements pointing to A5 in indulging and involving in acts of forgery. While he did not deny that Rattan Kaur's actual identity was Pinder Kaur W/o Sakattar Singh R/o Nagoke and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 272 of 291 that, she had engaged herself in the acts fraudulently by doning the fictitious identity of Rattan Kaur W/o Bachan Singh R/o 3, Dak/Oak, Estate, Mussoorie Road, Dehradun and/or that, the documents, as discussed above (the entire detail is not reproduced for the sake of brevity), were in her knowledge and were being executed to facilitate her false, fictitious identity as Rattan Kaur, especially the Voter ID Card, Aadhar Card, residence proof and death certificate in favour of Bachan Singh, which all were directly connected to the factum of her identity and by concealment and forgery she acquired and altered fictitious 'persona' as Rattan Kaur in which capacity she appeared before DDA officials. The fact that she executed the lease deed Ex.PW3/B, dated 20.07.2004 by appending her own thumb impression in presence of PW3 Sh. Bhupal Singh, PW46 Sh. S.c. Kaushik and PW47 Sh. Manohar Lal R., is a material fact which has skipped the eyes of defence. While PW3 has stated cogently that letters pertaining to issuance of lease deed papers were issued on 07.02.2004, Rattan Kaur (lessee/allottee) appended her right hand "thumb impression" in portion encircled 'D'. This fact is corroborated through the statement of PW46 Sh. S.C. Kaushik, Dealing Assistant and PW47 Sh. Manohar Lal R, Programme Assistant, who both were present. At that time, she had produced her voter ID card, photocopy of which was Ex.PW3/C, on which as token of attestation, A5 appended her thumb impression in presence of PW3, PW46 and PW47. The fact that PW37 detailed about thumb impression of A5 on documents (affidavit Ex.PW37/J, CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 273 of 291 fake undertaking Ex.PW37/K and fake voter­ID Card Ex.PW40/A) and the fact that the aforementioned documents were false on which she appended her thumb impression as a sign for completing the requisites, leaves no further ground or ingredients. The reliance by A3 on the judgment of Sheila Sebastian (supra), hence is to be distinguished, though there is no denial to the law laid therein. Moreover, in the aforementioned judgment, the 'forger'/impersonator remained out of the grip of apprehension and was not identified, whereas in this case, the maker of false documents (A5) through whom the other accused persons as part of commonality of interest and designs being members of connect of conspiracy has received advantage is present. In my humble view, the judgment is not applicable to the facts stated in this case.

Arguments qua Section 195 Cr.P.C.

550. Further on the aspect of applicability of section 195 Cr.P.C is raised. During the submission of ld. Sh. Javed Aktar as well as ld. Sh.Ran Vijay Kumar cited various judgements challenging the cognizance and claimed that there is a bar of section 195 Cr.P.C.

551. Ld. Sh. Javed Aktar in his written submissions claimed that cognizance in the present matter is bad in law due to non compliance of section 195 Cr.PC. the provisions of which are to be made applicable. He relied upon the judgement of Daulat Ram Vs. State of CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 274 of 291 Punjab AIR 1962 SC 1206 to stress the provisions of section 195 Cr.P.C. are mandatory in nature and court should apply with this provision at the time of taking cognizance. He then relied upon M.S. Ahlawat Vs. Sate (2000) 1 SCC 278, Arvind Kumar Adukia vs. State of NCT Delhi (2010) 173 DLT 738; CBI Vs. Indra Bhusan Singh & another AIR 2014 SC 1907. He elaborated the arguments by claiming that in the instant case, IPC section involved are 120B r/w Section 419, 420, 468, 471 are invoked, while on plain reading of statutory provision of section 195 (1)(a) it appears that only the section offences are punishable u/s 172 to 188 (both inclusive) of the IPC or any abatement of or attempt to commit, such offence or of any criminal conspiracy to commit such offence are only offences which falls under the ambit of this section this principle is now expanded. He averred that Hon'ble Supreme Court in Basir­Ul­Huq and Ors vs. The State of Bengal AIR 1953 SC 293, has laid down the principles that there is no bar if some distinct offence may be brought in the ambit of section 195 Cr.P.C on the basis of same facts and circumstances. He stated that by enlarging the scope of provision of the aforesaid section hence on the basis of facts and circumstances of the present case it may be determined that which similar offence may fall under the ambit of section 195(a)(a) (i) (ii) and (iii) may become applicable in which situation a complaint in writing becomes mandatory.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 275 of 291

552. Elaborating the law laid down in Padohi Ram (supra) he averred that Allahabad High Court has dealt with the same issue while complaint was instituted while using section 120­B read with sections 419,420,463,467 of the IPC which arose out of the allegations of offence against authority of public servant and clearly observed that where no distinct offence of the IPC is made out, then the one u/s 195 Cr.P.C, no cognizance can be taken without a complaint in writing from authority, against whom the offence has been committed. Relying on B.N. Subba Rao vs. State of Mysore AIR 1955 Kar 1; State Vs. Kathi Unad Ranning and Ors. (1955) Crl.L.J. 52 he elaborated the findings of the Hon'ble High Court to claim that as in the present case CBI has alleged that an offence has been committed against the authority of public servant were the competent members of the recommendation committee of alternative plots in L&B Department, govt. of NCT Delhi or against the authority of Principal Secretary, L&B Department, govt. of NCT of Delhi and that A­5 impersonating herself as allottee of plot succeeded in taking over the possession, it was mandatory to invoke the provisions of section 195 Cr.P.C. as it became abundantly clear that offences were committed against the authority of public servant which may be Commissioner Land Management Branch DDA or authority by Vice Chairman, DDA. He stated that in the present case it is clear that neither the competent authority from DDA nor competent authority from L&B has filed any complaint in writing as per requirement of section 195(1)(a) of Cr.P.C.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 276 of 291

In this background he claimed that the charge has been framed u/s 13(2) and 13(1) (d) of PC Act. The offences have been committed while A­3, A­4 and A­5 are undisputedly private persons in view of the law laid down in the State of Punjab vs.Nirmal Kaur in criminal appear no. 866/2009 arising out of SLP (Crl) No. 4907/2006, the provisions of the PC Act cannot be extended to private persons which preposition has further been strengthen in N. Vijay Kumar Vs. Sate of Tamil Nadu in Crl. Appeal No. 100­101/2021 arising out of SLP(Cri) no. 4720/2020.

553. A similar submission has been made on record by ld. Sh. Ranvijay Kumar relying on the same set of legal facts.

554. It is required at this stage to observe that same submissions almost verbatim were made before ld. Predecessor at the stage of charge. While considering the law laid down, and case law cited on record, the order on charge dated 12.08.2016 came to be passed wherein the following observations were made:

"Learned Counsel for A­2 S.S. Malhi and A­4 N.K. Gupta submitted that the cognizance in the present case is bad due to non­compliance of section 195(1)(a) Cr. P.C. It is submitted that in the present case offences were committed either against the public office and these offences were committed as to the contempt of lawful authority of public servants. Therefore, the first offence with was committed by accused persons was under section 177 IPC by furnishing false information to CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 277 of 291 public servants and second offence was under section 181 IPC. The offence alleged under section 419/420/468/471 read with section 120 B IPC could not be accomplished until an offence under section 181 IPC was not committed with contempt of lawful authority of public servants. However, for commission of these offences. Cognizance can not be taken unless the complaint under section 195 Cr. P.C. has been filed and admittedly, no complaint has been filed in the present case. In support of his submission, Learned counsel cited Banshir Ul Huq & Ors. V. State of west Bengal [AIR 1953 AC 293} ; Padohi Ram V. Sate of Uttar Pradesh & Anr (1990) Crl.L. 495); B.N. Subba Rao v. State of Mysore (AIR 1955 Mys.) and State Vs. Kathi Unad Ranning & Ors. {(1955)Crl. L.J. 52}.

Learned counsel submitted that cognizance is bad in law on account of non compliance of Section 197 Cr. P.C. and Section 19 of PC Act. It is Stated that prosecution has failed to obtain the sanction for prosecution firm the relevant superior authority. Learned counsel submitted that no sanction under section 197 Cr. P. C. was taken. Learned counsel cited state of Maharashtra V. Budhikota Subbarao (Dr.) [1993 SCC (Crl. ) 901] Sate of Bihar V.P.P. Sharma [AIR 1991 SC 1260} S.K. Zutshi V. Bimal Debnath [AIR 2004 SC 4174} Ashok Gyanchand Vohra V. State of Maharashtra {2006 Crl. L.J. 1270} and State of Maharashtra V. Mahesh G. Jain {2013 Crl. L.J. 3092}. I It is further submitted that as per the Chapters­14 and 14.1 of CBI Crime Manual, no permission was taken form the State Government before investigating the matter.

Firstly, I shall deal with submissions. As regards the submission that offence under section 177/182 IPC has CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 278 of 291 not been invoked to overcome the procedure under section 195 Cr.P.C. the answer is very simple that it is the prerogative of prosecuting agency to charge particular person with particular offence. Unless the same amounts to camouflaging the other offence. Law is well settled that if some offence is made out for which written compliant under section 195 Cr.P.C. is required, except for that offence, the trial can be proceeded against remaining. This is so authoritatively held by Hon'ble Supreme Court in Durag Charan Naik V. State of Orissa {(1966)3 SCR 636)}.The same has been followed by our own Hon'ble High Court in Chandra Prasad Pillai V. State (3878) and Shiv Charan Vs. State {2011 SCC online Del 4279}.

In the cited judgement of Daulat Ram V. State of Punjab {AIR 1962 SC 1206}, accused was prosecuted for offence under Section 182 IPC. Admittedly, no complaint under the old code of 1898. Admittedly, Section 182 IPC falls under the category of offences which are enumerated in section 195(1) (a) Cr.P.C. that is, from section 172 IPC to Section 182 IPC. Therefore, it was held that cognizance is wrong. The ratio of the said case cannot be applied to the facts of the present case, as there are offences which do not fall within any of the offences under Section 172 IPC to section 182 IPC.

Next Judgement cited is M.S. Ahlawat V. State of Haryana & Anr. {AIR 2000 SC 168}. This case is w.r.t. perjury under section 193 IPC. Admittedly, this falls within the ambit of section 195(1)(a) Cr. P.C. There is no quarrel to legal proposition of law however, that is not applicable to the facts of present case.

Learned counsel also cited Arvind Kumar Adukla Vs. Sate of NCT of Delhi & Anr (2010) 173 DLT 738. This CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 279 of 291 judgment is w.r.t. direction under section 156(3) Cr.P.C. to register FIR. In the said case, accused persons, including court bailiff was alleged to have committed various offences and theft etc. while he had gone for execution of decree of possession. This is also not applicable to the facts of the present case as admittedly such are the court proceedings wherein, procedure under Section 340 Cr.P.C. is required to complied with. Similarly in case of CBI Vs. Indra Bhushan Singh & Ors. (AIR 2014 SC 1997), perjury was involved. In the said case, complaint was filed by Dy. Registrar of the Court without any authority conferred by Hon'ble High court and, therefore, the proceedings were not instituted on merit. There is no quarrel to the legal proposition. Learned counsel also cited Bashir­ul­Haq V. Sate of West Bengal (AIR 1953 SC 293). Tis judgement is in fact contrary to submissions made by learned counsel. To quote:

"......12. Section 195, Criminal Procedure Code, on which the question raised is grounded provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence u/s 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 280 of 291 hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made........"

According, it was held that if two sets of offences are disclosed and for which complaint is register and other for which no complaint is registered, the court can proceed with the other offences as it is barred u/s 195 Cr.P.C. Learned counsel also cited Padohi Ram V. State of U.P. & Anrs. {1990 Crl. L.J. 495} This judgment is contrary to the constitution Bench Judgement of Iqbal Sindh Marwah V. Meenakshi Marwah (2005) 4 SCC 370, as in the said case, it was held by Hon'ble Supreme Court that there is distinction off forgery having been committed outside the court and inside the court. For forgery having been committed outside the court, complaint under section 195 Cr. P.C. is not required.

Learned counsel also cited B.N. Subha Rao V. State of Mysore {(1955) Crl. L. J. 160}. The said case is w.r.t Section 172/182 Cr.P.C. These offences are admittedly covered under section 195 (1) (a) Cr. P.C. and therefore, complaint is necessary. There is no quarrel to the legal proposition. Similar is the case w.r.t judgment of Honble Gujrat High Court titled State V. Kathi Unad Rannning & Ors. 1955 Crl. L.J. 52 this case is w.r.t to offence under section 188 IPC; this is squarely covered under section 195 Cr.P.C. Therefore, the complaint is required. There is no quarrel to the legal proposition. "

555. It is again observed that the order on charge has not been put to challenge. However, since the submissions are premised on the legal assertions and also demonstrated, probable discussions on facts and CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 281 of 291 law being mixed question, I propose to ponder thereupon and after due consideration the following observations are noted. At the threshold the provisions of section 195 Cr.P.C are reproduced as below:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1)No Court shall take cognizance­

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii)of any abetment of, or attempt to commit, such offence, or

(iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub­ clause (i) or sub­ clause (ii), except on the complaint in CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 282 of 291 writing of that Court, or of some other Court to which that Court is subordinate. (2)Where a complaint has been made by a public servant under clause (a) of sub­ section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3)In clause (b) of sub­ section (1), the term" Court"

means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4)For the purposes of clause (b) of sub­ section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:

Provided that­

(a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b)where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 283 of 291

556. In Iqbal Singh Marwah vs. Meenakshi Marwah, AIR 2005 SC 2119 the Hon'ble Supreme Court while discussing the scope and applicability observed as below:

"Section 19(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with respect to the document after it has been produced or in evidence in a proceeding in any court i.e., during the time when the document was in "custodia legus".

557. A similar observation was made in Ram Dhan Vs. State of U.P. AIR 2012 SC 2513 wherein it is held that if the fabrication of false evidence take place or the document is tampered with before filing in court, the provisions of section 195 Cr.P.C would not be attracted. It is only when the document is tampered with after filing in the court then the bar provided u/s 195 Cr.P.C would be attracted. Similar observation has been reiterated in P. Swaroopa Rani Vs. M. Hari Narayana, AIR 2008 SC 1884, Mukesh Chand Sharma vs. State of UP, AIR 2010 SC812.

558. In Jagran Vs. State of U.P. 2008 Crl.LJ (NOC) 1119 (All), it is observed that unless a document which is in custody of court is forged the section is not attracted.

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 284 of 291

559. Coming to the facts of the present case no such material is available. It is claimed that the provisions are arising out of interpretation of section 195A (i) (ii) & (iii) is available in case of violations of section 172 to 188 both inclusive. It is required at this stage to observe that while opportunity was available of through with the ld defence counsel, no attempt whatsoever is made to subject any of the relevant official witness including PW­50 Smt. Usha Chaturvedi, PW42 Sh. Prakash Kumar and/or the IO PW­53 Insp. A.K. Saini who should have been subjected to cross examination on this aspect to suggest existence of any such material which could be held attracted. In circumstances above, the averments raised on record did not find any support or merit and held that there is no merit being disclosed by above averments.

Charge under Section 13(2) r/w Section 13(1)(d) P.C. Act

560. After having made the discussions of all the relevant provisions for which the accused persons have been charged now comes the provision pertaining to section 13(1)(d) read with section 13(2) of PC Act. The law relating to the provision under section 13(1)(d) is crystalized and its relevant portion is reproduced :

"If any ­

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 285 of 291

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest"

561. While the foregoing paragraphs clearly establish the acts and omissions imputable to A­2 S.S. Malhi [proceedings against A­1 Badrul Islam (since deceased) (other public servant) are abated] who has at the relevant time misconducted himself in a manner to cause advantage in favour of A­5 Pinder Kaur. In order to attain brevity the discussion is not repeated or reproduced herein below, however, it is sufficient to say that all necessary instances of participation in pursuit of mischief whereby the official position and authority had been manipulated and compromised in order to abuse his position as public servant resulting in obtaining of plot no. 262, Block­A, Sector­17, Pocket­2, Dwarka, New Delhi in the name of A­5 Rattan Kaur have been detailed sufficiently.

562. No rebuttal to the aforementioned provisions subsequently has been made. In view of the judgement in Runu Ghosh Vs. CBI in Crl. Appeal No. 482/2002 (DoD : 21.12.2011), the law has been crystalized wherein the following relevant paras are reproduced herein below:

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 286 of 291

"74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant‟s actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute".

In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:

―public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options­­ Further in Noida Entrepreneurs Association v. Noida & Ors ., (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), The court held that:

The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee­­

75. It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise.

* * *

78. Therefore, when a public servant‟s decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 287 of 291 responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest.

This offence­ under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of Crl.A.Nos. 482/02, 509/02 & 536/02 Page 57 offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.

563. Further in Neera Yadav Vs. CBI in Crl. Appeal No. 253 of 2017 the observations have been made in para 15:

"15. Section 13 of the P.C. Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of 'criminal misconduct'. Sub­section (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the P.C. Act lays down the essentials and punishment respectively for the offence of 'criminal misconduct' by a public servant. Section 13(1)(d) reads as under:

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 288 of 291

"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct, CA NO.253 OF 2017

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"

A perusal of the above provision makes it clear that if the elements of any of the three sub­clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under Section 13(1)(d).

Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct. Illegality in Allotment of Plot No.B­002 Sector 32 and subsequent conversion to Plot No.26, Sector­14A"

CBI vs. Badrul Islam & Ors. CC/R No. 389/2019 Page 289 of 291

564. In view of the detailed discussion and the conclusions drawn by me hereinabove, my final conclusions as regards various offences, for which charges were framed against the accused persons, may be now summarized as under :

S. Name              of              Charges Framed                       Final decision
No. accused

                                  Charges                Charges
                                common to all           separately
                                                          framed

1 A­1 Badul Islam expired during the trial and proceedings against him stands abated vide order 11.08.2021.

  2   A­2          S.S. u/s 120­B IPC              U/Sec. 13(2)        Convicted for the
      Malhi             r/w Section 419/           r/w Section         offences
                        420/ 467 IPC and           13(1)(d) of         punishable    u/s
                        Sec. 471 r/w Sec           PC Act              120­B IPC r/w
                        468 IPC.                                       Section 419/ /
                                                                        IPC and Sec.
                                                                       471 r/w Sec 468
                                                                       IPC.
                                                                       AND
                                                                       U/Sec. 13(2) r/w
                                                                       Section 13(1)(d)
                                                                       of PC Act



  CBI vs. Badrul Islam & Ors.       CC/R No. 389/2019                Page 290 of 291
  3   A­3                  u/s 120­B IPC                      Convicted for the
     Devender             r/w Section 419/                   offences
     Kumar                420/ 467 IPC and                   punishable    u/s
                          Sec. 471 r/w Sec                   120­B IPC r/w
                          468 IPC.                           Section 419/ /
                                                              IPC and Sec.
                                                             471 r/w Sec 468
                                                             IPC.
 4   A­4   Neeru u/s 120­B IPC                               Convicted for the
     Kumar Gupta r/w Section 419/                            offences
                 420/ 467 IPC and                            punishable    u/s
                 Sec. 471 r/w Sec                            120­B IPC r/w
                 468 IPC.                                    Section 419/ /
                                                              IPC and Sec.
                                                             471 r/w Sec 468
                                                             IPC.
5.   A­5 Rattan u/s 120­B IPC                 u/s 419 and    for the offences
     Kaur      @ r/w Section 419/             420 as well    punishable    u/s
     Pinder Kaur 420/ 467 IPC and             as u/s 467     120­B IPC r/w
                 Sec. 471 r/w Sec             and 471 read   Section 419/ /
                  IPC.                     with section   467 IPC and Sec.
                                              468 IPC        471 r/w Sec 468
                                                             IPC.




Announced in the open Court                          (Nirja Bhatia)
on 30th day of March, 2022                    Spl. Judge (PC Act) CBI­03
                                                    RADC/New Delhi




 CBI vs. Badrul Islam & Ors.   CC/R No. 389/2019         Page 291 of 291