Delhi District Court
Bhisham Kumar vs . State 1999 Iii Ad (Delhi)177 . on 26 April, 2011
1
IN THE COURT OF SH. PADAM KANT SAXENA:
SPECIAL JUDGEIV (PC ACT) CBI: DELHI.
CC no.48/2002 (Old no.)
CC no.11/2008 (New no.)
UNIQUE I.D. no. 02401R0416672002
CBI
Versus
Vijay Kumar Palta
S/O Shri Mulkh Raj Palta
Manager (Mechanical),DTC
Central WorkshopI, BBM
Complex, Govt. of NCT Delhi
R/O B5/4, Krishna Nagar, Delhi. ...Accused
Case arising out of:
RC 15(A)/1999DLA
under Section13(2) read with 13(1)(e) of
PC Act, 1988
Date of FIR : 31.03.1999
Date of Institution : 24.12.2002
Date of Final Arguments : 19.04.2011
Date of Judgment : 26.04.2011
CC No.11/2008 1 Of 44
2
Case is more than 07 years old
Case of Senior Citizen
JUDGMENT:
1. The present case was instituted in the Court after completion of investigation, on 24.12.2002 and therefore it is more than 07 years old. Further, accused is more than 60 years of age and therefore is a Senior Citizen.
2. After filing of the charge sheet in question cognizance of the offence was taken by ld. Predecessor Court. Thereafter accused was summoned and on his appearance, charge in question was framed against him by ld. Predecessor Court on 05.04.2004 for commission of an offence punishable under Section 13(2) read with Section 13(1)(e) of Prevention of Corruption Act, 1988 (for short referred to as ' the Act'), to which he pleaded not guilty and claimed trial.
3. The charge framed against the accused on 05.04.2004 reads as follows: ".........................
That you being public servant while working
CC No.11/2008 2 Of 44
3
as Manager in DTC at different depots during the
period 26.05.1986 to 01.04.1999 acquired
disproportionate assets to the tune of Rs.21,54,115.60 as against your likely savings of Rs.7,47,508/ for which you could not satisfactorily explain and thereby you committed an offence punishable under Section 13(2) r/w13(1)(e) of the P.C. Act and within the cognizance of this Court.
And I hereby direct that you be tried by this Court for the said charges.
......................."
4. In support of its case, prosecution has examined 26 witnesses in all whereafter ld. PP for CBI closed prosecution evidence.
5. Thereafter statement of accused under Section 313 Cr.P.C., 1973 ( for short 'the Code') was recorded wherein he pleaded false implication.
6. Consequent upon this, accused examined only one witness in support of his defence whereafter he closed his defence CC No.11/2008 3 Of 44 4 evidence.
7. I have heard Shri Mohd. Shakeel, ld. PP for CBI, Shri Y.P. Singh Ahluwalia, ld. defence counsel for the accused and have gone through the records carefully.
8. In order to substantiate the charge under Section 13 (1) (e) of the Act, the prosecution must prove the following facts viz. (1) it must establish that the accused is a public servant. (2) the nature and extent of the pecuniary resources or property, which were found in his presence. (3) it must be proved as to what were his known sources of income i.e. known to the prosecution & (4) it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established the offence of criminal misconduct under Section 13 (1) (e) of the Act is complete unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. Accused has to establish this by way of preponderance of probability.
9. As already stated, according to the case of the CC No.11/2008 4 Of 44 5 prosecution accused acquired the disproportionate assets between 26.05.1986 to 01.04.1999.
10. It is the case of the prosecution that accused joined Delhi Transport Corporation (for short 'DTC') as a Graduate Apprentice Engineer in the year 1974. He was promoted as Assistant Engineer on 20.11.1979 and he remained posted as Depot Manager in various DTC Depots.
11. PW 16 Shri A.J.S. Sahani, who was posted as Chairman cum Managing Director of DTC at the relevant time interalia deposed that he was competent to remove the accused from service, who was working as Manager Mechanical in DTC & passed Sanction order as Ex.PW16/A. This portion of evidence has remained unchallenged and uncontroverted. Therefore, it is deemed to have been accepted as correct. Even the accused in his statement under Section 313 of the Code in his reply to question no. 1 admitted that he had been working as a Manager in DTC on 31.07.1999. So, on the face of it, at the relevant time accused was a 'Public Servant' within the meaning of the term as defined in Section 2 (c) (iii) of the Act. This fact was also admitted by ld. defence counsel at the time of arguments.
CC No.11/2008 5 Of 44 6 So, in view of this admission, no further discussion is called for on this point.
12. Now let us come to the question of grant of sanction for prosecution of accused.
13. Ld. defence counsel has vehemently argued that CBI sent the draft sanction order to DTC for first time vide letter no. RCDAI1999A0015/7056 dated 10.07.01 for grant of sanction wherein the disproportionate assets of the accused were mentioned as Rs.4,89,351.69 and the said draft letter dated 10.07.2001 is stated to be available in the sanction file. Further, according to ld. defence counsel, CMD, DTC obtained legal opinion of Shri A.K. Wali, Legal Advisor and in the said sanction file legal opinion dated 17.09.2001 given by Shri A.K. Wali, advocate is also available whereby he had opined not to grant sanction. Also, it is the submission of ld. defence counsel that the said Legal Adviser of DTC had asked the CBI to carry out further investigation for collecting clinching evidence to show that the accused was responsible for spending money on construction on the Plot owned by his father. Accused claims that CMD, DTC who is the disciplinary authority did not apply his mind and granted sanction on CC No.11/2008 6 Of 44 7 the lines dictated by CBI. It is claimed that in September, 2002, CBI again submitted a draft sanction order, which is also stated to be available in the sanction file, wherein the Disproportionate Assets of the accused were raised from Rs.4,89,351.69 to Rs.14,06,607.69 without any valid justification. On these facts, the sanction in question is claimed to be bad in the eyes of law and in this regard reliance has been placed on the judgments reported as Vineet Narain and others vs. Union of India and another (CWP no. 340343 of 1993) & Bhisham Kumar Vs. State 1999 III AD (Delhi)177 .
14. A perusal of crossexamination dated 18.09.2008 of PW 16 Sh. A.J.S. Sahany would reveal that file brought by Mr. P.I. Thomas, Assistant Store Keeper was ordered to be placed on record but no document thereof including aforesaid draft sanction orders had been proved on record. In this file along with letter no. RCDAI1999 A0015/7056 dated 10.07.2001 of CBI & SPs Report no. 64 dated 09.07.2010, there is a draft Sanction Order wherein disproportionate assets had been shown as Rs.5,10,513.44.
15. At this stage, a reference may be made to a judgment reported as Indu Bhushan Chatterjee Vs. State 1988 Crl.
CC No.11/2008 7 Of 44 8 L. J S.C. 279. In that case, draft Sanction Order was sent by police. This was admitted by the Sanctioning Authority. But in that case Sanction order showed application of mind and sanctioning authority admitted this, hence sanction order was held to be valid.
16. The said file reveals that after receipt of the said matter DTC vide note sheet 10.10.2001 decided to seek legal opinion of Shri A.K. Wali, advocate its standing counsel who vide his report dated 17.09.2001 opined that the matter be sent back to CBI for collecting clinching evidence that and for further investigation for collecting evidence that Rs.8,96,094.05 was spent by accused for construction of house on plot no. 130, Daya Nand Vihar, Delhi. Note date 08.02.2002 further reveals that CBI after reconsidering the matter vide its letter dated 11.12.2001 again sought sanction for prosecution. Since, various papers placed in this file have remained unproved, the same cannot be looked into for any purpose whatsoever. These papers are worthless. Hon'ble Delhi High Court in the case of Kanwal Swarup Vs. Sneh Lata 1975 RLR (N) 101 has held that if a document is produced but is not proved, then it cannot be looked into for any purpose at all. Accordingly, no arguments based on these unproved CC No.11/2008 8 Of 44 9 documents is permissible.
17. As already stated, relevant Sanction Order has been proved on record as Ex.PW16/A by PW 16 Shri A.J.S. Sahani. According to PW 16 Shri A.J.S. Sahani, on Ex.PW16/A there are initials dated 14.11.2002 of Shri N. Gautam, Vigilance Officer. The relevant Sanction Order Ex.PW16/A on page no. 3 clearly shows that the Competent Authority PW 16 Shri A.J.S. Sahani had gone through the statements of witnesses, documents, case diaries etc. before granting Sanction. This fact also finds a mention in the deposition of the said witness. In his crossexamination this witness categorically states that he had applied his mind before granting Sanction. Therefore, relying upon the judgment in the case of Major Som Nath Vs. Union of India 1971 Cr.L.J. 1442 S.C. I hold that the Sanction order in question is valid. 15A The present case is on all fours with the facts of the case of Indu Bhushan Chatterjee( Supra). Hence Sanction order in question is valid in the eyes of law.
18. Hence, it cannot be said that there was non application of mind by the Sanction Authority. Consequently, judgment reported as Bhisham Kumar Vs. State 1999 III A.D. CC No.11/2008 9 Of 44 10 (Delhi) 177 and relied upon by ld. defence counsel is not applicable.
19. Further, the Act itself does not lay down any period during which the Sanction must be granted. Judgment in the case of Vineet Narain and others (Supra) does not lay down the date from which the period of three months specified therein should run. Also the said judgment does not lay down consequences of non compliance. Further the said guideline appears to be applicable inter alia to the Sanctioning Authority and not to the Courts. The investigating agency on its part took the action promptly but the concerned department delayed the matter of grant of Sanction. So on this count, accused is not entitled to grant of any relief whatsoever. Therefore, argument of ld. defence counsel in this regard stands disposed of accordingly.
20. Now, let us proceed to the merits of the case.
21. At the threshold, ld. defence counsel submits that it is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. Further according to him, prosecution cannot take advantage of the weakness of the defence nor can the Court on its own make out new case for the CC No.11/2008 10 Of 44 11 prosecution and count the accused on that basis. In this regard, reliance has been placed on a judgment of the Apex Court reported as Bhagirath Vs. State of M.P. AIR 1976 S.C. 975.
22. Needless to mention that the aforesaid principle of criminal law is well settled and there can be possibly no quarrel with the same.
23. It is an admitted case of the prosecution as mentioned in the charge sheet that accused had joined DTC as an Apprentice Engineer in the year 1974. Further as per case of CBI, accused stood promoted as Asstt. Engineer on 20.11.1979. As per the charge sheet bank balance of the accused at the beginning of the check period was Rs.49,294/. In this regard, there is no dispute and accused does not claim any enhancement on this score.
24. Now, let us consider the income of the accused from salary during the course of check period. As per the charge sheet income of the accused from salary during the check period was Rs.9,00,907.02.
25. PW 9 Shri Cosmos Tigga, Accountant proved Ex.PW9/A and testified that income of the accused for the period May, CC No.11/2008 11 Of 44 12 1991 to February, 1994 was Rs.1,63,075.14.
26. PW10 Shri Kashmiri Lal, Sr. Clerk DTC has proved salary statements of accused pertaining to the period August, 1989 to December, 1989 as Ex.PW10/A, January, 1990 to December, 1990 as Ex.PW10/B , January, 1991 to April,1991 as Ex.PW10/C and November,1996 to August, 1997 as Ex.PW10/D. From the aforesaid salary statements, it has been proved that during the aforesaid period accused had received Rs. 1,98,211.66 in the form of salary.
27. PW 11 Shri Pyare Lal, Asstt. Incharge, DTC has also proved salary statements of the accused for the period March, 1994 to June, 1994 and for the period September, 1997 to May, 1999 as Ex.PW11/A. The said undisputed salary statement proves that accused had received Rs.2,34,051.22 during the said period towards salary.
28. PW 13 Shri Jagbir Singh, Sr. Clerk, DTC proved salary details for the period October, 1987 to July, 1989 as Ex.PW13/B which shows that accused had received Rs.47,251.91.
29. PW15 Ram Avtar, Jr. Clerk, DTC has proved salary details of accused which he had received during the period July, CC No.11/2008 12 Of 44 13 1994 to December, 1994 as Ex.PW15/A, January, 1995 to December, 1995 as Ex.PW15/B and January,1996 to October, 1996 as Ex.PW15/C. The total salary of Rs.2,11,155.61 had been received by accused for the above said period.
30. So, the aforesaid discussion in the previous paragraphs would show that prosecution has been able to prove that income of the accused during the check period was only to the tune of Rs.8,53,534.54. This fact was also admitted by ld. PP for CBI at the time of arguments. But it is well settled that in view of the aforesaid admitted position as detailed in the charge sheet, benefit of total income of Rs.9,00,907.02 for the check period has to be given to the accused and accused in his reply to question no.16 in his statement under Section 313 of the Code does not dispute this fact. Hence under this head accused has to be given benefit of the sum of Rs.9,00,907.02 towards income for the check period which has been specified in the charge sheet.
31. Under next head, according to the case of prosecution during the check period accused earned Rs.50/ as dividend from M/s. Century Enka Ltd. PW 25 Inspector D.K. Singh, CC No.11/2008 13 Of 44 14 I.O. proved letter dated 18.10.2000 Ex.PW25/M (D28) of M/s. MCS Ltd. according to which interalia a sum of Rs.50/ towards dividend was paid vide a dividend warrant. This was not disputed by the accused in the crossexamination. When this piece of evidence was put to the accused in question no. 17 of his statement under Section 313 of the Code, he admitted the same as correct. So, benefit of this item has to be given to the accused.
32. Next item is receipt of Rs.600/ by accused from SBI Mutual Fund. In this regard, PW 25 Inspector D.K. Singh proved letter Ex.PW25/L (D27), according to which interalia Rs.600/ during the check period was paid to the accused on that score. Genuineness and authenticity of this document has not been challenged in the crossexamination. Therefore, contents thereof are deemed to have been admitted as correct. Hence, accused needs to be given benefit of this item also.
33. Prosecution has also given benefit of Rs.9,379/ to the accused for the check period towards income from Bank Interest. In this regard, there is evidence of PW 25 Inspector D.K. Singh, IO who has proved Seizure Memo Ex.PW25/E vide which CC No.11/2008 14 Of 44 15 various documents were seized. Vide this Seizure Memo, this witness had interalia seized letter dated 24.11.2000 Ex.PW 25/F (D34) of UCO Bank and various documents including Ex.PW15/A mentioned therein. These have remained unchallenged and uncontroverted. When this piece of evidence was put to the accused in his statement under Section 313 of the Code by way of question no. 19, he admitted the same as correct. So, benefit of this item has to be given to the accused.
34. Also according to prosecution, during the check period a plot owned by Smt. Kamlesh, wife of accused in PUDA was sold by her to Shri Surender Kaur for a sum of Rs.1,60,000/. In this regard, prosecution relies upon Ex.PW20/A to Ex.PW20/D. However, during the course of arguments, it was admitted by ld. PP for CBI that there is no documentary evidence to show that sale/purchase of the said plot for a sum of Rs.1,60,000/ by Smt. Kamlesh wife of the accused. But the prosecution in the charge sheet in this regard has given benefit of Rs.1,60,000/. So this view being favourable to the accused, has to be accepted. Accused in his statement under Section 313 of the Code in response to question no. 20, admitted receipt of the said amount by his wife Smt. Kamlesh. Hence benefit of this item has CC No.11/2008 15 Of 44 16 to be given to the accused.
35. CBI has also given benefit of Rs.17,650/ to the accused being the proceeds of NSC A/c. no. 6415 vide Ex.PW15/A. PW15 Shri D.K. Popli had proved the copy of Passbook as Ex.PW15/A. Consequently, accused is entitled to benefit of this items also.
36. According to the charge sheet and as already stated, accused at the beginning of the check period, had bank balance of Rs.49,294.00 and this had been added in the charge sheet to the income of the accused during the check period. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, in this regard proved Statement of Account Ex.PW25/E and Ex.PW25/F. However PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, in his crossexamination admitted that assets of the accused before the check period were not taken into consideration. So this admission of PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, on the face of it appears to be false. Hence, we have to proceed on the assumption that before check period accused had savings/assets to the tune of Rs.49,294/ as reflected in CC No.11/2008 16 Of 44 17 Ex.PW25/E and Ex.PW25/F, particularly when accused has not proved that assets/savings before the check period were more. Significantly, when the aforesaid evidence was put to the accused in his statement under Section 313 of the Code in response to question no. 22 admitted the said sum of Rs.49,294/ towards his savings/assets before the check period. As already stated, benefit of this item has already been given to the accused by the prosecution.
37. Hence in this way as claimed in the charge sheet & proved by the prosecution on record and in the absence of any evidence to the contrary, we have to proceed on the footing that income of the accused during the check period from all sources was Rs.10,88,586.02 and after including assets/savings of the accused to the tune of Rs.49,294/ for the precheck period, the total thereof, works out to Rs.11,37,880.02 & benefit thereof, admittedly has to be given to the accused.
Expenditure during check period.
38. According to the case of the prosecution during the check period, accused had incurred an expenditure of Rs. 3,90,372.02. Out of this amount, a sum of Rs.43,681/ was stated to CC No.11/2008 17 Of 44 18 have been spent in making payments of telephone bills. In this regard, PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, proved letters Ex.PW25/O and Ex.PW25/X. Genuineness and authenticity of these documents has not been challenged by the accused in crossexamination. Therefore, the same are deemed to have been admitted as correct. As per letter dated 04.11.2000, Ex.PW25/O (D30) with regard to telephone no. 2214167, which was in the name of Smt. Kamlesh Palta, wife of the accused, a total sum of Rs.29,014/ stood paid to MTNL. The other letter is dated 07.11.2000 Ex.PW25/X (D57) according to which in respect of telephone no. 2416431 in the name of accused, a sum of Rs.14,667/ stood paid to MTNL. The said two payments work out to Rs.43,681/. When the said portion of evidence was put to the accused in his statement under Section 313 of the Code vide question no.23, he admitted the same to be correct. However, accused claimed that he received reimbursement of the telephone bills from his employer per month but significantly, no such reimbursement has been proved by the accused on record.
39. Further according to the case of the prosecution, accused during the check period spent a sum of Rs.22,529.22 towards CC No.11/2008 18 Of 44 19 payment to Delhi Vidyut Board. In this regard, PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, proved letter dated 07.11.2000 (D31) Ex.PW25/P and the relevant details are contained in Ex.PW25/P1. This has not been challenged. Even accused in response to question no. 24, admitted the said payment.
40. Also according to CBI, accused spent Rs.
18,501.80 towards education expenses of his daughter Veenus Palta. In this regard, there is evidence of PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, , who interalia proved letter dated 27.03.2001 Ex.PW25/R (D41) of International Institute of Fashion Technology vide which a sum of Rs.14,800/ stood paid to it in respect of said daughter of accused. This witness also proved another letter dated 14.03.2001 of Rattan Devi Arya Girls Sr. Secondary School Ex.PW25/U (D46). Vide this letter, the school authorities informed receipt of Rs.1,162.00 . So total sum on this score works out to Rs.15,962/ only but total sum of Rs.18,501.80 on this count mentioned in the charge sheet is more beneficial to the accused and benefit of this amount must be given to the accused. In response to question no. 25, accused in his reply in his statement under Section CC No.11/2008 19 Of 44 20 313 of the Code admits the said payment of Rs.18501.80 as correct.
41. Next item of expenditure is Rs.62,595/ spent by the accused on the education of his son Varun Palta during the check period. In this regard, PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer has proved documents Ex.PW25/V (D47) according to which a sum of Rs.17,675/ stood paid to DAV Public School during 1996, 1997 & 1998 by accused in respect of his son Varun Palta. Vide Ex.PW8/A (D44) proved by PW8 Shri Gopal Krishan, accused between 1989 to 1996 paid Rs.43,397/ as school fees to APJ School on account of fees of his son Varun Palta. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, also proved three fee receipts collectively as Ex.PW25/W (D56) vide which a total sum of Rs.4094/ stood paid to Dyal Singh College towards fees of Varun Palta, son of the accused. This total comes out to Rs.65,166/. Hence benefit of this sum has to be given to the accused.
42. The other sum spent by accused during the check period was Rs.12,793/ paid to MCD. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer had proved letter Ex.PW25/Q CC No.11/2008 20 Of 44 21 along with Ex.PW25/Q1 containing details of payment. This document Ex.PW25/Q1 shows payment of Rs.13121/ to MCD by accused on account of House Tax of Property no. D5/4, Krishna Nagar, Delhi. This sum of Rs.13121/ is more than Rs.12,793/ mentioned in the charge sheet. Hence benefit of sum of Rs.12,793/ spent by the accused on account of this item of expenditure during the check period has to be given, which he also admits as correct in response to question no. 27 of his statement under Section 313 of the Code.
43. Prosecution has also taken kitchen expenses of the accused as Rs.2,30,272/ as is mentioned in the charge sheet and deducted the same from the income of the accused. Also according to CBI, total expenditure including the said kitchen expenses amount to Rs.3,90,372.02 as mentioned in the Charge Sheet. This has also come in the evidence of PW26 Shri S.C. Bhalla, I.O. When this portion of evidence was put to the accused in question no. 28 of his statement under Section 313 of the Code, he claimed his kitchen expenses during the check period as Rs.2,30,272/ to be incorrect and asserted the said figure to be arbitrary . Significantly, accused has not proved his actual CC No.11/2008 21 Of 44 22 kitchen expenses during the check period. In view of the judgment in the case of Sajjan Singh Vs. State AIR 1964 SC 464 the said figure of Rs.2,30,272/ appears to be reasonable and realistic and cannot be said to be whimsical and arbitrary .
44. Calculated in this way, at the end of the check period, the approximate/actual savings/assets of the accused should be Rs.7,47,508.02.
Savings/Assets before check period =Rs. 49,294.00
&
Income during the check period =Rs.10,88,586.02
Total ____________
=Rs.11,37,880.02
Expenditure during the check period =Rs. 3,90,372.00
___________
Total Savings/Assets at the end of the Rs. 7,47,508.02
check period
45. Now let us come to the question of assets of the accused.
46. According to the case of the prosecution, as pleaded in the charge sheet and as per the charge framed in this case CC No.11/2008 22 Of 44 23 by the Court, at the end of the check period, actual assets/savings of the accused, were to the tune of Rs.21,54,115.69 out of which disproportionate assets according to CBI were of Rs.14,06,607.69. Details of the said savings/assets are as follows.
47. According to CBI house search of accused was conducted on 01.04.1999 at B5/4A, Krishna Nagar, Delhi and various articles found there, were seized vide Search cum Seizure Memo Ex.PW6/A (D2). This has been proved by PW6 Shri Pritam Singh. PW7 B. Ram and PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer also corroborated interalia the said search and the seizure.
48. As per the case of the prosecution, out of the said assets, a sum of Rs.4000/ stood invested by the accused in shares of M/s. Consolidated Fibres & Chemicals Ltd. Relevant 8 certificates, each of the value of Rs.500/. As already stated, at the time of conduct of house search of the accused on 01.04.1999 various articles were recovered and in that regard Search cum Seizure Memo Ex.PW6/A (D2) was prepared. In this Memo at Serial no. 3, interalia the said shares are also mentioned. The same have remained unchallenged and CC No.11/2008 23 Of 44 24 uncontroverted. Accused in his statement under Section 313 of the Code in response to question no. 29 admits this saving/asset to be his own. So this portion of savings/assets stands admitted.
49. Then, investment in IDBI Bonds was to the tune of Rs.15,000/. This also finds a mention in Ex.PW6/A (D2). The said Bonds are also mentioned at Serial no. 3 thereof. Neither the said Memo is disputed nor the said item is disputed. It is significant to note that during the course of investigation on his own report, these bonds were also taken back by accused as mentioned in the order dated 25.02.2002. Accused in his statement under Section 313 of the Code in response to question no. 3 admits the said saving/asset to be his own. So, in this regard no further discussion is called for.
50. Also according to CBI, during the check period, amount invested by accused in SBI Mutual Fund was Rs.10,000/. Relevant Certificates in this regard were also recovered on 01.04.1999 during the house search of the accused and the same also find a mention at Serial no. 3 of the Search cum Seizure Memo Ex.PW6/A (D2). Relevant certificates were filed in the shape of D64. When this asset/saving pertaining to check period was put to the accused by way CC No.11/2008 24 Of 44 25 of question no. 31 in his statement under Section 313 of the Code, he admitted the same to be correct. So with respect to this investment, no further discussion is called for. These certificates were returned to the accused on his own application in terms of order dated 07.02.2001 and attested copies thereof, are on record.
51. Next item of savings/assets, during the check period is investment of Rs.82,200/ by way of purchase of NSCs. It is significant to note that these NSCs were also recovered from the house of the accused on 01.04.1999 at the time of search and the same find a mention against Serial no. 3 of Search cum Seizure Memo Ex.PW6/A (D2). The said NSCs were also ordered to be released to the accused during the course of the trial vide various orders passed by the Court. When this item was put to the accused in his statement under Section 313 of the Code, by way of question no. 32, he admitted the same to be correct. So this portion of investment/asset during the check period, also stands admitted by the accused.
52. Then as per the charge sheet, during the check period, accused had also invested Rs.4000/ in the shares of M/s. Raj Shree Polyfils. With respect to this item, during the course of search of CC No.11/2008 25 Of 44 26 home of accused on 01.04.1999 some letters exchanged between the accused and M/s. MCS Ltd. were recovered which are also mentioned at Serial no. 3 of Ex.PW6/A (D2) the Search cum Seizure Memo. Therefore, PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer wrote a letter in response to which M/s. MCS Ltd. wrote letter Ex.PW25/M (D28) stating that accused held 400 shares of Rs.10/ each in the said Company. When this evidence was put to the accused in his statement under Section 313 of the Code vide question no. 33, he i.e. the accused admitted the same to be correct. So, with respect of this item, no further discussion is called for.
53. Yet another investment is of Rs.2000/ the SBI Mutual Fund, MMPS93. Relevant Account Statement (D63) pertaining thereto, was also recovered during the house search of accused on 01.04.1999 and it also finds a mention at Serial no. 3 of Search cum Seizure Memo Ex.PW6/A (D2). When this portion of evidence was put to the accused vide question no. 34 in his statement under Section 313 of the Code, he admitted the same to be correct. So, on this count, no further discussion is called for.
54. Next item is recovery of Rs.76,700/ in cash from CC No.11/2008 26 Of 44 27 the bed room of the accused during the aforesaid search of his house. As already stated, PW6 Shri Pritam Singh proved Search Memo Ex.PW6/A (D2) which interalia mentions recovery of cash amount of Rs.76,700/. As per PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, the aforesaid search was conducted in the house of the accused situated at B5/4A, Krishna Nagar, Delhi on 01.04.1999 interalia in the presence of the accused and copy of the said Search cum Seizure Memo Ex.PW6/A (D2) was also handed over to the accused, who had received the same under his own signatures as reflected by the said document.
55. So, possession of the said sum of Rs.76,700/ by the accused at the time of the search of his house at B5/4A, Krishna Nagar, Delhi stands proved and is not in dispute.
56. It is the case of the prosecution that out of the said recovered amount of Rs.76,700/, a sum of Rs.25,000/ was given to the accused for treatment of his sisterinlaw Smt. Urmila Rani, who was admitted in Apollo Hospital. This is also reflected in the said Search cum Seizure Memo Ex.PW6/A (D2).
57. The Legislature has admittedly used the CC No.11/2008 27 Of 44 28 expression 'Satisfactorily account". The emphasis must be on the word 'Satisfactorily' and the Legislature has cast a burden on the accused, not only to offer a plausible explanation as to how he came by his large wealth but also to satisfy the court that his explanation was worthy of credence. (Refer C.S.D . Swamy Vs. State AIR 1960 S.C.7).
58. Accused in his statement under Section 313 of the Code, in response to question no. 5 admitted recovery of the said amount but stated that the same belonged to Smt. Urmila Rani, sister of his wife (Saali), who was lying admitted in Apollo Hospital, New Delhi. Significantly, the said Smt. Urmila Rani (Saali) of the accused has not been examined as a defence witness. Crossexamination of PW 6 Pritam Singh an independent witness reveals that a suggestion was put to him by ld. defence counsel to the effect that the said cash was kept in a purse, which he admitted as correct. Another suggestion was put by ld. defence counsel to him to the effect that accused had informed the Investigating Agency that the said purse belonged to his Saali Smt. Urmila Rani which he also admitted as correct. So, ld. defence counsel claims that at the earliest opportunity i.e. at the time of raid & recovery of the said sum of Rs.76,700/ accused had CC No.11/2008 28 Of 44 29 informed that the said money belonged to his Saali Smt. Urmila Rani . DW 25 Shri D.K. Singh (retired S.I.), Part Investigating Officer, admits in his crossexamination dated 28.11.2007 on page no. 2 thereof, that at the time of search, he had been informed that the said money was for treatment of the said Smt. Urmila Rani, who was statedly admitted in Apollo Hospital. At this stage, I may also refer to deposition of DW1 Shri Krishan Lal. Significantly, the said person was examined as a prosecution witness during investigation but during trial, he was not examined. So, he was examined as a defence witness. He is none other than husband of the said Smt. Rekha, Saali (Sister of wife of accused). He categorically deposed that in 1989 his wife fell sick and he used to send money to the accused during the time when his wife Smt. Rekha was hospitalized in Apollo Hospital for her treatment. Significantly, this witness did not prove any document to show transfer of the said amount of Rs.76,700/ to Delhi in the name of the accused. So even on the touchstone of preponderance of probability, accused has failed to prove that the said recovered money to the tune of Rs.76,700/ belonged to his Saali Smt. Rekha, wife of DW1 Krishan Kumar.
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59. Further according to the prosecution in the house of accused situated at B5/4A, Krishna Nagar, Delhi at the time of search on 01.04.1999, household goods worth Rs.1,38,920/ were there. This is exclusive of cash amount of Rs.76,700/ which has been shown against item no. 7 of the charge sheet.
60. As already stated PW 6 Shri Pritam Singh inter alia proved Observation Memo Ex.PW6/B (D3). This shows various items which were observed in the house no. B5/4A, Krishna Nagar, Delhi at the time of Search. Admittedly, it is signed by accused. It mentions interalia years of acquisition, mode of acquisition and their values. As per the said witness values of articles and years of their acquisition were mentioned thereon after ascertaining from the accused. Only a suggestion was put to the witness in cross examination to the effect that the values were not told by the accused and had been mentioned by CBI arbitrarily which he claimed to be incorrect. It is not clear as to how values of various items were arbitrary. Total amount mentioned in Ex.PW6/B in respect of various observed items is Rs.2,15,620/ & this is inclusive of the aforesaid amount of Rs.76,700/ .
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61. A perusal of Ex.PW6/B (D3) shows that item Nos. 1, 2 & 90 thereof which were acquired in 1976 i.e. before check period, their values were not mentioned.
62. Values of items which were acquired before check period i.e. 26.5.1986 to 01.04.1999 and mentioned in Ex.PW6/B are as follows:
Item Date of Acquisition Details Value
no. (in Rs.)
21 1980 onwards 12 nos. of old bedsheets 1200/
44 1980 One Polar Ceiling fan 400/
45 1980 One Tube Light 100/
47 1980 One brief case 300/
59 1980 One Old Godrej 2000/
Refrigerator 265 Litres
66 1976 One Elwin Ceiling Fan 200/
75 1980 onwards Four Aluminum Kadai 400/
78 1980 onwards Steel Utensils 1000/
81 1977 One Steel Gas Chullah 300/
(Local)
82 1976 Two Gas cylinders 1200/
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32
83 1994 One Exhaust Fan 300/
91 1985 onwards 08 Quilts & 05 old blankets 2000/
106 1980 onwards Two iron cots 200/
Total 9300/
63. As per item no.11 of the charge sheet at the time of search s/c no. DAM 2643 worth Rs.12,000/ was also recovered. After verification, its value was arrived at Rs.15,000/ and this is mentioned at Serial no.110 of Ex.PW6/B. Out of this amount cost of Scooter amounting to Rs.15,000/ has to be deducted outrightly being taken twice. So, in this way we are left with Rs. 1,23,920/. Out of this amount a sum of Rs.9,300/ has to be subtracted being cost of goods acquired before check period. Hence, on this score accused was in possession of household goods worth Rs.1,14,620/. Prosecution has not proved value of this Scooter as Rs.15,000/. Accused in his reply to question no. 76 of his statement under Section 313 of the Code claims the value thereof as Rs.11,000/. In the face of this position, admitted value of this item Rs.11,000/ may be taken as correct because as per charge sheet its value was Rs.12,000/.
64. Next item is Maruti Car no. DL2CB3033. As CC No.11/2008 32 Of 44 33 per the charge sheet value of this Car was Rs.1,00,000/ . PW17 Shri Attar Singh had interalia testified that in January, 1996 he sold this Car to the accused for Rs.1,00,000/. The said fact has not been disputed in the crossexamination and is therefore deemed to have been accepted as correct. PW22 Shri Satbir Singh, who had been working as LDC in the Office of Motor Licensing Office, Tilak Nagar, New Delhi had handed over file of aforesaid vehicle to CBI vide Seizure Memo Ex.PW22/A and proved R.C. in the name of the accused as Ex.PW22/A1. In view of the said evidence, it stands proved on record that value of the said Car in January, 1996 was Rs. 1,00,000/. Accused in his statement under Section 313 of the Code in response to question no. 35 admits purchase thereof but claims that its value is Rs.50,000/. However, there is no evidence to show that for acquiring the said car accused paid Rs.50,000/ only.
65. Also according to CBI at the end of check period i.e. on 01.04.1999 accused had bank balance of Rs.44,531.69. In this regard prosecution relies upon two statements of account viz. D35 & D36 in respect of S.B. A/C No. 19985 in the name of Kamlesh Rallia. Both these are certified under Banker's Book Evidence Act, CC No.11/2008 33 Of 44 34 1891. These are part of Ex. PW 25/F (D 34) which show that as on 01.02.1999 bank balance in the said bank account was Rs.39,267.15. Another Savings Bank Account No. 8100 in the name of accused is in UCO Bank, Krishna Nagar and in this regard statement of account is part of PW 25/F (D34) which is also certified under Banker's Book Evidence Act, 1891. According to it, as on 04.03.1999 in his bank account bank balance was Rs.5,264.54.
66. During the course of arguments, ld. defence counsel admitted that in the bank accounts of the accused and his wife, the said amounts were there. So, this portion of asset at the end of check period in the name of accused and his wife stands admitted even by ld. defence counsel.
67. Also according to charge sheet, land beneath plot no. 130, Daya Nand Vihar, Delhi was owned by Shri M.R. Palta, father of the accused but accused had spent Rs.16,64,764/ towards construction thereon. As per statement of DW1 Shri Kishan Lal recorded on 01.09.2008, his fatherinlaw viz. Shri M.R. Palta died about 3 or 4 years ago. This means that as per deposition of DW1 Shri Krishan Lal, father of the accused died either in 2003 or 2004.
CC No.11/2008 34 Of 44 35 Prosecution has not led any evidence to show that the said Shri M.R. Palta, father of accused is still alive. So, the said portion of evidence of DW1 Krishan Lal has to believed to be true.
68. PW18 Shri Ram Kumar, Main Executive Engineer, CPWD interalia deposed that on 23.09.2000 he along with PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, Shri G.S. Krishnan, A.E. and Sanjeev Srivastava, Junior Engineer physically examined property no. 130, Dayanand Vihar, Delhi in the presence of the accused for the purpose of valuation and he proved his report as Ex.PW18/A. Further he sent the said report vide letter Ex.PW18/B. In this accused interalia deposed that he has assumed the cost of construction as prevailing in the year 1993. according ot it, cost of building excluding cost of construction was Rs. 16,64,764/. As admitted by this witness, the said figure on rounding off stood read as Rs.16,65,000/. Except this lapse, genuineness and authenticity of report Ex.PW18/A has not been challenged and is therefore, deemed to have been accepted as true.
69. PW1 Shri Krishan Kumar Jain deposed that he had sold the said plot to Shri Mulakh Raj Palta , father of the accused CC No.11/2008 35 Of 44 36 in 1987 for Rs.75,000/. In this regard, he proved photocopy of receipt dated 16.08.1983 Ex.PW1/A (D14). This shows that the said plot was sold for Rs.75,000/ out of which Rs.30,000/ was received in advance and balance Rs.45,000/ on 16.08.1983. Relevant agreement to sell executed between PW1 Krishan Kumar Jain and Shri M.R. Palta, father of the accused is Ex.PW1/A. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, on page no. 5 of his cross examination dated 17.08.2007 categorically admitted that the said plot had been purchased by father of the accused. In fact, this witness admitted as correct the suggestion given to him by ld. defence counsel to the effect that price in respect of the said plot had been paid by Shri M.R. Palta, father of the accused, as correct.
70. Ld. PP for CBI claims that the super structure on the aforesaid plot is owned by the accused and in this regard, relies upon General Power of Attorney dated 18.08.1997 Ex.PW26/A executed by PW1 Shri Krishan Kumar Jain in favour of accused.
71. According to PW26 Shri S.C. Bhalla, the said GPA was found in possession of the accused at the time of search of his house. Admittedly, CBI had not filed the same under the charge CC No.11/2008 36 Of 44 37 sheet. At this stage, CBI filed an application dated 07.05.2008 placed at page no. 591 of PartC interalia seeking permission to place the same on record and also for examining PW26 Shri S.C. Bhalla. Order sheet dated 07.05.2008 shows that his application was not opposed by accused and therefore, the said photocopy was ordered to be taken on record and PW26 was also allowed to be further examined in this regard. At this stage, PW26 Shri S.C. Bhalla produced photocopy of GPA and finally proved the same as Ex.PW26/A.
72. Reexamination dated 07.05.2008 of PW26 Shri S.C. Bhalla shows that when Ex.PW26/A was marked on the photocopy. It was objected to by Ld. defence counsel. Admittedly, original Ex.PW26/A has not been produced. Even PW26 Shri S.C. Bhalla, I.O. of the case in his deposition contained in the cross examination categorically deposed that he did not try to collect original GPA and it might be in the possession of the accused. But this evidence is not sufficient to show that original is of Ex.PW26/A had been lost or is in the possession of the accused. Further even as per PW26 Shri S.C. Bhalla, I.O. interalia he considered the said GPA dated 18.08.1987 as false. So, it is clear that there is no foundation laid CC No.11/2008 37 Of 44 38 for producing secondary evidence. Resultantly, Ex.PW26/A has to be discarded from the zone of consideration.
73. Further according to ld. PP for CBI at the time of search of the H. No. 130, Daya Nand Vihar, Delhi Memo Ex.PW6/C (D4) was prepared. This was proved by PW6 Shri Pritam Singh. Ld. PP for CBI submits that as mentioned in Ex.PW6/C 'accused owner of the house remained present during the search'. In this regard, my attention has also been drawn by ld. PP for CBI to evidence of PW7 Shri B. Ram. Significantly, both the said witnesses in their cross examination admitted the they had no personal knowledge nor they had seen any document of ownership to show that accused owned this house. In this regard, Ld. PP for CBI also invites my attention to Ex.PW6/A (D2) and item no. 1 thereof, shows that electricity bill in respect of H. no. 130, Daya Nand Vihar, Delhi GF/FF was stated to be in the name of accused. He also refers to water bill in respect of the said house in the name of the accused. Significantly, genuineness and authenticity of Ex.PW26/A (D2) has not been challenged in the cross examination and is deemed to have been admitted as correct. The said bills were admittedly in the name of the accused. Why would that be CC No.11/2008 38 Of 44 39 so? Surely , if and only if either accused was in possession of the said house or he owned the same.
74. Further according to Ld. PP for CBI, before search, key of H. No. 130, Dayanand Vihar, Delhi was with accused and he provided the same and copies of documents pertaining thereto like electricity bills, etc. were recovered from the house of the accused. which were shown even at the time of arguments. PW6 Shri Pritam Singh interalia proved Ex.PW6/C (D4). This is Search cum Observation Memo relating to House no. 130, Dayanand Vihar, New Delhi, which clearly mentions accused as owner of the house, who remained present throughout the search. PW6 Shri Pritam Singh calls the said house as house of the accused. Significantly, genuineness and authenticity of Ex.PW6/C (D4) has not been challenged in the cross examination and is therefore, deemed to have been admitted as correct. Further in the crossexamination dated 17.08.2007 of PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer on page no. 6 thereof, it has interalia come that at the time of its search, it was in the possession of the accused and it is who had opened the lock thereof, by his key.
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75. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, who partly investigated the case categorically admitted in his crossexamination dated 17.08.2007 on page no. 5 thereof that during course of investigation, Shri M.R. Palta, father of the accused was examined as a witness and he had stated that he himself raised the construction and paid the money. He also proved the said statements as Ex.PW5/BB and Ex.PW5/DC. It is significant to note that these statements recorded under Section 161 Cr.P.C. , 1973 cannot be used as substantive evidence. This witness on page no. 1 of his crossexamination also interalia testified that during investigation no document could be found to show that construction on the aforesaid plot had been raised by the accused. Further according to this, I.O. had tried his level best to examine the Contractor, who had constructed the said house but he could not do so. Ld. defence counsel has also invited my attention to crossexamination of PW1 Shri K.K. Jain wherein he categorically testified that he had seen father of the accused raising the construction. Significantly, this was not challenged by the prosecution. But in my view this evidence by itself is not enough to absolve the accused of his liability, since, there is no evidence on record to show CC No.11/2008 40 Of 44 41 that funds to the tune of Rs. 16,64,764/ for raising the said construction were provided by father of the accused.
76. As per DW1 Shri Kishan Lal, Late Shri M.R. Palta was in retail jewellery business and also owned land in Mogha District. So he would have definitely maintained regular books of Accounts. Prosecution along with Charge sheet had filed certain documents. PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer interalia proved Ex.PW25/J1 to Ex.PW25/J7 (D17 to D19). These admittedly show agricultural income of father of the accused. Then prosecution also filed with charge sheet D20 & D21. D20 & D21 have remained unproved. Therefore, these have to be discarded from the zone of consideration. As per PW25 Shri D.K. Singh (Retired Sub Inspector) Part Investigating Officer, Ex.PW25/J1 to Ex.PW25/J7 relate to sale of agricultural produce. These are as follows: Ex.PW25/J1 (D17) on 03.10.1995 Rs.38,720.00 Ex.PW25/J2 on 26.04.1995 Rs.31,979.90 Ex.PW25/J 3 on 20.11.1993 Rs.41,551.20 CC No.11/2008 41 Of 44 42 Ex.PW25/J4 on 17.09.1992 Rs.48,752.50 Ex.PW25/J5 on 18.04.1992 Rs.39,927.90 Ex.PW25/J6 on 24.10.1991 Rs.20,345.74 Ex.PW25/J7 on 23.04.1991 Rs.31,933.50 The said books, if produced would have shown the amount of money if any spent by Late Shri M.R. Palta, father of the accused on the plot in question. That has not been done. So this lapse adversely affects defence of the accused.
77. DW1 Krishan Lal admits in his cross examination that House no. 130, Dayanand Vihar, Delhi is in the possession of the accused. The witness hastened to add that he came into possession on the basis of Will after death of late Shri M.R. Palta. Significantly no such Will has been produced. Further no such defence has been taken by the accused in his statement under Section 313 of the Code.
78. Thereafter, in view of the aforesaid, the accused has failed to satisfactorily explain his possession vis avis House no. 130, Dayanand Vihar, Delhi.
79. Now, at the end of the check period accused was CC No.11/2008 42 Of 44 43 found in possession of the following assets referred to in the aforesaid paragraphs mentioned against each: 1) Rs.4,000/ Para No. 48 2) Rs.15,000/ Para No. 49 3) Rs.10,000/ Para No. 50 4) Rs.82,200/ Para No. 51 5) Rs. 4,000/ Para No. 52 6) Rs. 2,000/ Para No. 53 7) Rs. 76,700/ Para Nos. 54 to 58
8) Household Articles Rs.1,14,620/ Para Nos. 59 to 63 9) S/C Rs. 11,000/ Para No. 63 10) Maruti Rs. 1,00,000/ Para No. 64 Car 11)Bank Rs. 44,531.64 Para Nos. 65 Balance & 66 12) Rs.16,64,764.00 Para Nos. 67 to 78 Total assets at the end of the check period =Rs.21,28,815.69 CC No.11/2008 43 Of 44 44
80. In this way the disproportionate assets found in possession of the accused at the time of aforesaid Search work out to Rs.21,28,815.69 (Para No. 79) - Rs. 7,47,508.00(Para No. 44) = Rs.13,81,307.69
81. As already stated , the accused has failed to satisfactorily explain possession of the said disproportionate assets. For possession thereof, accused is held guilty of commission of an offence under Section 13 (1) (e) of the Act punishable under Section 13 (2) thereof.
Dictated and announced (PADAM KANT SAXENA) in the open court SPECIAL JUDGEIV(PC Act) CBI: Today: 26.04.2011 Tis Hazari Courts, Delhi CC No.11/2008 44 Of 44