Delhi District Court
C.B.I. vs . Os Chauhan on 3 September, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.11/11
Unique Case ID No. 02401R0108321999
C.B.I. Vs. OS Chauhan
S/o. Shri Ridhi Karan Singh Chauhan,
R/o. B17, Ram Prastha Colony,
Ghaziabad, U.P.
RC No. : 5(A)/85CIU(A)
u/Ss : 5(1)(e) r/w 5(2) of PC Act, 1947.
Judgment delivered on : 30.08.2012
Order on Sentence : 03.09.2012
ORDER ON SENTENCE
Present: Sh. DK Singh, Ld. PP for CBI.
Convict OS Chauhan with Sh. DS Pawariya, Adv.
CBI Vs. OS Chauhan CC No. 11/11 Page 1of 6
OS Chauhan has been convicted for the offence u/S 5 (1)(e) r/w
5(2) of PC Act, 1947, for having been found in possession of
Disproportionate Assets in the sum of Rs. 3,87,142 (rounded of)
1.0 Sh. DS Pawariya, Ld. Counsel for the convict has prayed for
a lenient view. Ld. Counsel submits that convict OS Chauhan is more than
70 years of age. He is suffering from various physical ailments and
therefore, cannot talk properly, walk properly and stand properly. The
convict has remained regular throughout the trial and has never committed
any default during the 27 years of trial. Sh. DS Pawaria, Ld. Counsel also
enforced his arguments by citing Mohd. Hoshan & Anr Vs. State of AP,
2002 CrLJ 1424. In this case, for the offence u/S 306/498A IPC, the
sentence was reduced to the period already undergone, taking into account
the age of the convict. Sh. DS Pawariya, Ld. Counsel submitted that taking
into account the peculiar facts and circumstances and the quality of evidence
on the record, lenient view may be taken against the accused.
Sh. OS Chauhan, in his written submissions has submitted that
he is suffering from diabetes, senility, depression and memory loss. He was
assaulted by the criminals on account of which he suffered serious injuries
and is unable to eat anything and he is living only on milk for the last 56
years. Convict submitted that even his entire land has been acquired.
CBI Vs. OS Chauhan CC No. 11/11 Page 2of 6
However, he did not receive any compensation as the litigation is still
pending in the Hon'ble High Court. Convict has submitted that even his wife
and children have left him and he is being supported by one of his friend
who is a retired school teacher.
2.0 Sh. DK Singh, Ld. PP for CBI has submitted that convict was
a member of Indian Administrative Services which is the highest service of
this country and by indulging into acquisition of wealth, disproportionate to
his assets, the accused has brought shame to the entire service and made
himself liable for the maximum punishment. In support of his contention,
Ld. PP for CBI has cited N. Naveen Kumar & Ors Vs. State of AP, 2009
CrLJ 382, State of MP Vs. Shambhu Dayal Nagar 2006(3) SCC 693 and
State of MP Vs. Munna Choubey, AIR 2005 SC 682. Ld. PP has prayed for
the maximum punishment.
3.0 I have considered the submissions of both the sides and perused
the record carefully.
4.0 No doubt, the convict has raised a very emotional plea for
taking a lenient view against him. The convict apparently does not seem to
be in a good state of health and there cannot be any dispute to the fact of his
age. It is also a matter of record that this case was registered in the year 1985
CBI Vs. OS Chauhan CC No. 11/11 Page 3of 6
and it took around 27 years to reach to the stage of judgment. However, the
question is whether these grounds are sufficient in themselves to allow the
convict to go scot free, or are these special reasons for taking a lenient view
against the accused. The question of determination of quantum of sentence
is, to my mind, is the most complicated question. The Court on one hand is
countered with the emotional plea of the accused regarding his physical /
financial condition and surrounding circumstances and on the other hand, the
crying need of the society for a harsh view against the people found guilty of
corruption. The corruption by the public servant has become a gigantic
problem and has spread like cancer in the society. The corruption has
extremely deep and pervasive impact on the functioning of the entire system
of the country. The corruption, like the cancer, corrodes the vital veins of the
organs of the society. The corruption at any level and by anybody cannot be
tolerated, and if it is done by a person who was member of the supreme
services of this country i.e., Indian Administrative Services, then it is
absolutely unacceptable. The system prevailing in this country poses
extreme faith in the IAS officers. They are entrusted with the high public
offices and are given the responsibility of almost running the entire country.
While deciding the quantum of punishment, therefore, the Court
has to balance the individual interest and interest of the society, and
whenever, this Court put the individual interest and interest of the society on
a weighing scale, always find interest of the society at a much higher
pedestal than interest of the individual. It is a difficult task before the Court
CBI Vs. OS Chauhan CC No. 11/11 Page 4of 6
but then it is a duty entrusted to the Court. The superior courts have held
time and again that liberal attitude by imposing meagre sentence or taking
too sympathetical view merely on account of lapse of time in corruption
cases will be counter productive in the long run and it would be against the
interest of the society. In such cases only a harsh and deterrent view can
atleast make the persons, who are sitting on the border line, atleast think
twice that corruption cannot be a profitable business.
The accused during the check period 1967 to 1985 has been
held to have been found in possession of disproportionate assets of Rs.
3,87,142/ (rounded of). This was a huge sum of money in the year 1985.
The prices of the land were very low. Even the salary of ClassI officer at
that time was very low if compared to the present salary. The convict seems
to be having endless greed of amassing the landed properties. The quantum
of disproportionate assets, taking into account the circumstances prevailing
at that time, was too high. I consider that taking into account the entire facts
and circumstances, i.e., mitigating factors of the accused and the mandate of
the law, rigorous imprisonment of 03 years and a fine of Rs. 05 lakhs in
default SI for 01 year shall meet the ends of justice. Besides this, the
disproportionate assets, as held above, acquired by the accused be also
confiscated by the State in accordance with the provisions of law. The
CBI Vs. OS Chauhan CC No. 11/11 Page 5of 6
accused is restrained from alienating, transferring the estate in any
manner.
A copy of the judgment alongwith order on sentence be
given to the convict free of cost.
5.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma)
on 03.09.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
.................
CBI Vs. OS Chauhan CC No. 11/11 Page 6of 6
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.11/11
Unique Case ID No. 02401R0108321999
C.B.I. Vs. OS Chauhan
S/o. Shri Ridhi Karan Singh Chauhan,
R/o. B17, Ram Prastha Colony,
Ghaziabad, U.P.
RC No. : 5(A)/85CIU(A)
u/Ss : 5(1)(e) r/w 5(2) of PC Act, 1947.
Date of Institution : 23.12.1996
Received by transfer on : 23.09.2011
Arguments Concluded on : 28.08. 2012
Date of Decision : 30.08.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. DS Pawaria, Ld. Counsel for accused OS Chauhan
CBI Vs. OS Chauhan CC No. 11/11 Page 7of 6
JUDGMENT
1.0 Accused OS Chauhan, IAS (1967 Batch) has been tried for the offence u/S. 5(1)(e) punishable u/S. 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "POC Act")for having been found in possession of disproportionate assets to the tune of Rs. 3,99,469.82/. FACTS 1.1 RC No. 5/85CIU(A) was registered against OS Chauhan, Addl. Commissioner of Sales Tax, Delhi on 19.08.1985 u/S. 5(1)(e) punishable u/S. 5(2) of the Prevention of Corruption Act 1947. During investigation it was found that Sh. OS Chauhan during the check period 14.07.1967 to 29.09.1985 remained posted at various places i.e. Delhi, Manipur, Port Blair and Arunachal Pradesh and received Rs. 3,62,092.82 towards his net salary. During the check period i.e. 14.07.1967 to 29.09.1985 , the total income of the accused was calculated to be 4,98,357/ as shown in the table below :
S.No. Income Amount (Rs.)
1. Total income from salary 3,62,092.00
2. Receipt from in-laws 40,000.00
3. Interest on FDRs 14,200.00
4. Income from rent of a portion of B-17, Ram Prastha Colony, 12,240.00
CBI Vs. OS Chauhan CC No. 11/11 Page 8of 6
Ghaziabad
5. Dividents for his 100 equity shares received from DLF 740.00
Universal Ltd. to Shri OS Chauhan
6. Dividents from 200 equity shares received from M/s. DLF 1,850.00
Universal Ltd. to Shri OS Chauhan
7. Agricultural income based on revenue records 67,235.00
TOTAL 4,98,357.00
1.2 During the check period the minimum expenditure in respect of
household of Sh. OS Chauhan was got calculated from Central Statistical Organisation for the period June 1968 to September 1985, taking into account the period of his foreign training during the year 197980. Besides this, Sh. OS Chauhan had obtained an LIC policy No. 24190059 on 28.04.80 for a sum of Rs. 20,000/ . The policy lapsed in April 1978 and till that date, premium of Rs. 9,270.40 had been paid. Sh. OS Chauhan had also paid electricity charges in the sum of Rs. 1,002.70/ till September 1985 in respect of B17, Ram Prastha Colony, Ghaziabad. Accused also spent 20,179.70/ towards tuition fee, transport charges and other school expenses in respect of his three children Shailley Chauhan, Rajesh Chauhan and Shomi Chauhan. Thus, against a total income of Rs. 4,98,357/, the accused had made an expenditure of Rs. 02,03,312/ and therefore the accused should have a maximum sum of Rs. 02,95,045/ available with him as saving. However, accused was found in possession of assets of Rs. 9,02,825/ at the end of the check period.
CBI Vs. OS Chauhan CC No. 11/11 Page 9of 6 1.3 The accused allegedly had acquired number of immovable
assets in his name or in the name of his household servant Sh. Om Prakash and his father Sh. Ridikaran Singh. The details of the immovable properties acquired by the accused during the check period as mentioned in the charge sheet as follows :
Immovable Assets In the Name of Sh. OS Chauhan (1) One plot consisting of 4 bighas and 2 Biswas at Khasra No. 186 in Village Hasanpur Bhuapur from Shri SC Aggarwal son of Shri Radhey Lal, R/o. H. No. 28, Alipur Road, Delhi on 29.01.1981 for Rs. 33,260. (2) One plot consisting of 4 Biswas at Khasra No. 196 at Village Hasanpur Bhuapur from Shri Pritam son of Raghubir, R/o. Village Hasanpur Bhuapur on 30.03.81 for Rs. 2,246.00. The sale deed in question was registered on 31.03.1981.
(3) One plot consisting of 3 bighas and 2 Biswas at Khasra No. 191 from Shri Jai Narain son of Shri Devi Prasad, R/o. 14F, Connaught Place, New Delhi on 01.05.81 for Rs. 22,316/. The sale deed in question was registered on 02.06.1981.
CBI Vs. OS Chauhan CC No. 11/11 Page 10of 6 (4) One plot consisting of 3 bighas and 10 biswansi at Khasra No.
189/194 at village Hasanpur Bhuapur from Shri Raj Narain, son of late Prag Narain Agarwal, R/o. 16, Ram Kishore Road, Delhi6 on 22.05.81 for Rs.
27,886.00. The sale deed in question was registered on 21.07.81. (5) One plot consisting of 1 bigha 4 biswas at Khasra No. 190 at Village Hasanpur Bhuapur from Shri Rajinder Kumar and Jitender Kumar son of Tulsi Ram, R/o. 1808, Bhaggirath Place, Chandni Chowk, Delhi on 15.06.81 for Rs. 20,086/. The sale deed in question was registered on 17.08.81. (6) One plot consisting of 4 bighas 11 biswas at Khasra No. 192 and 193 at Village Hasanpur Bhuapur from Smt. Uma Devi Agarwal wife of Shri Raj Narain Agarwal, R/o. 16, Ram Kishore Road, Delhi6 on 05.08.81 for Rs. 44,457. The sale deed in question was registered on 09.11.81. (7) One plot consisting of 5 biswas at Khasra No. 184 at Village Hasanpur Bhuapur from Kartar Kaur wife of S.Sunder Singh R/o. Rohtas Nagar, Shahdara, Delhi on 03.06.83 for Rs. 3,362/. The sale deed in question was registered on 03.07.1983.
(8) One plot consisting of 13 biswas at Khasra No. 184 and 185 at Village Hasanpur Bhuapur from Smt. Surjit Kaur wife of Manmohan Singh R.o. L19, Naveen Shahadra, Delhi32 on 17.06.83 for Rs. 8,737/. The sale deed in question was registered on 05.08.83.
CBI Vs. OS Chauhan CC No. 11/11 Page 11of 6 (9) One plot consisting of 15 biswas at Khasra No. 184 and 185 at
Village Hasanpur Bhuapur from Kuldip Singh S/o. Harnam Singh Shri Rajinder Kumar and Jitender Kumar son of Tulsi Ram, R/o. 1808, Bhagirath Place, Chandni Chowk, Delhi on 15.06.81 for Rs. 20,086/. The sale deed in question was registered on 17.08.83.
(10) One plot consisting of 13 biswas at Khasra no. 185 at Village Hasanpur, Bhuapur from Smt. Surjit Kaur w/o. Manmohan Singh R/o. L9, Naveen Shahadra, Delhi32 on 03.06.83 for Rs. 8,737/. The sale deed in question was registered on 02.07.83.
(11) One Plot consisting of 62/3 biswas at Khasra no. 185 at Village Hasanpur, Bhuapur from Gurvinder Singh S/o. Charan Singh R/o. 476, Model Town, Jalandhar on 17.06.83 for Rs. 4,477/. The sale deed in question was registered on 05.08.1983.
(12) One Plot consisting of 3 biswasni at Khasra no. 185 at Village Hasanpur, Bhuapur from Smt. Kanwaljit d/o. Sunder Singh R/o. Shakti Nagar, Subzi Mandi, Delhi on 17.06.83 for Rs. 2,227/. The sale deed in question was registered on 05.08.1983.
(13) One Plot consisting of 10 biswas at Khasra no. 184 at Village Hasanpur, Bhuapur from Sh. Kuldip Singh S/o. Harnam Singh R/o. H3/1, CBI Vs. OS Chauhan CC No. 11/11 Page 12of 6 Krishna Nagar, Delhi31 on 17.06.83 for Rs. 6,707/. The sale deed in question was registered on 05.08.1983.
(14) One Plot consisting of 2 biswas and 7 biswansi at Khasra no. 189 at Village Hasanpur, Bhuapur from Bhupinder Singh and Pramjit Singh Sons of Karm Singh R/o. M/s. Karam Singh and Sons, chawal Mandi, Amritsar, Punjab on 14.10.83 for Rs. 27,882/. The sale deed in question was registered on 03.11.83.
(15) One Plot consisting of 2 biswas and 7 biswansi at Khasra no. 189 at Village Hasanpur, Bhuapur from Darshan Kaur W/o. Narinder Singh Moga and Inder Pal Kaur W/o. Bhupinder Singh R/o. M/s. Karam Singh and Sons, chawal Mandi, Amritsar, Punjab on 14.10.83 for Rs. 27,882/. The sale deed in question was registered on 03.11.83.
(16) One Plot consisting of 1 biswas and 6 biswansi at Khasra no. 185 at Village Hasanpur, Bhuapur from Satnam Singh S/o. Chhabeela Singh R/o. Rohtas Nagar, Shahadra, Delhi on 24.07.84 for Rs. 908.00. The sale deed in question was registered on 29.09.84.
(17) One Plot consisting of 1 biswas and 6 biswansi and 10 kachvansi at Khasra no. 185 at Village Hasanpur, Bhuapur from Satnam Singh S/o. Chhabeela Singh R/o. Rohtas Nagar, Shahadra, Delhi on 24.07.84 for Rs. 908.00. The sale deed in question was registered on 24.09.84.
CBI Vs. OS Chauhan CC No. 11/11 Page 13of 6 (18) One Plot consisting of 1 biswas and 6 biswansi and 10 kachvansi
at Khasra no. 185 at Village Hasanpur, Bhuapur from Satnam Singh S/o. Chhabeela Singh R/o. Rohtas Nagar, Shahadra, Delhi on 24.07.84 for Rs. 908.00. The sale deed in question was registered on 24.09.84. (19) One Plot consisting of 8 biswas at Khasra no. 184/1 185/1 at Village Hasanpur, Bhuapur from Smt. Surjit Kuar, W/o. S. Manmohan Singh, R/o. 1582/5C, Naveen Shahadra, Delhi on 23.08.84 for Rs. 6,392/. The sale deed in question was registered on 27.10.84. (20) One Plot consisting of 14 biswas at Khasra no. 184 and 185 at Village Hasanpur, Bhuapur from Sh. Harpreet Singh S/o. S. Harnam Singh R/o. Krishna Nagar, Delhi on 25.08.84 for Rs. 9,397/. The sale deed in question was registered on 30.10.84.
(21) One Plot consisting of 1 biswas and 6 biswansi and 10 kachvansi at Khasra no. 185 at Village Hasanpur, Bhuapur from Sh. Harpreet Singh S/o. S. Harnam Singh R/o. Krishna Nagar, Delhi on 25.08.84 for Rs. 9,08/. The sale deed in question was registered on 30.10.84. (22) One Plot consisting of 1 biswas and 6 biswansi and 10 kachvansi at Khasra no. 185/1 at Village Hasanpur, Bhuapur from Sh. Harpreet Singh CBI Vs. OS Chauhan CC No. 11/11 Page 14of 6 S/o. S. Harnam Singh R/o. Krishna Nagar, Delhi on 25.08.84 for Rs. 908/. The sale deed in question was registered on 30.10.84. Immovable properties In the name of Shri OmPrakash (Domestic servant) (1) One Plot consisting of 17 biswas at Khasra no. 189 and 194 at Village Hasanpur, Bhuapur from Shri Raj Narain Agarwal S/o. Late Prag Narain Agarwal R/o. 16, Ram Kishore Road, New Delhi on 22.05.81 for Rs. 11,166/. The sale deed in question was registered on 21.07.1981. (2) One Plot consisting of 13 biswas, 7 biswansi and 10 kachvansi at Khasra no. 182/2 at Village Hasanpur, Bhuapur from Shri Vijay Bhatnagar and Ajay Bhatnagar, sons of Sh. Onkar Swarup Bhatnagar, R/o. 57, Pratap Nagar, Delhi on 12.08.81 for Rs. 11,167/. The sale deed in question was registered on 13.11.1981.
(3) One Plot consisting of 6 biswas at Khasra no. 196 at Village Hasanpur, Bhuapur from Shri Pritam Singh s/o. Raghubir R/o. Village Hasanpur Bhuapur on 19.08.81 for Rs. 3,362/. The sale deed in question was registered on 19.12.81.
(4) One Plot consisting of 13 biswas and 62/3 biswansi at Khasra no. 205 at Village Hasanpur, Bhuapur from Shri Pratap Shankar Tripathi S/o.
CBI Vs. OS Chauhan CC No. 11/11 Page 15of 6 Ram Behari Tripathi R/o. C245, Minto Road, New Delhi on 01.01.83 for Rs. 30,092/. The sale deed in question was registered on 03.01.1983. (5) One Plot consisting of 7 biswas at Khasra no. 193 and 216 at Village Hasanpur, Bhuapur from Shri Dal Singh s/o. Jhungii Singh R/o. Shahpur, Bamhata, Pargana Dasna, Tehsil and Distt. Ghaziabad for Rs. 9,945/ . The sale deed in question was registered on 05.01.1983. Semi built houses purchased by Sh. O.S. Chauhan in his own name and in the name of Sh. Om Prakash (Domestic servant) (1) Plot no. B17, Ram Prastha Colony, Ghaziabad was purchased from M/s. Mahamaya General Finance Co. Ltd., 4/4, Asaf Ali Road, New Delhi in the name of Onkar Singh Chauhan, S/o. Sh. Ridhi Karan Singh Chauhan, R/o. Chauhan House, Near Amarsar, Bikaner (Rajasthan) on 18.01.1974 for Rs. 12,222.10/. The sale deed in respect of this plot was registered on 11.03.1974.
(2) Plot no. 98A, Radhey Shyam Park, Pargana Loni, Tehsil & Distt. Ghaziabad was purchased from Surjeet Lal S/o. Lekh Ram, C/o. Central Bank of India, Railway Road, Shahadra, Delhi in the name of Sh. Om, Prakash S/o. Sh. Shankar Lal, C/o. Brij Shekhar, R/o. 613, Sarojini Nagar, New Delhi for Rs. 72,049/ on 01.10.82. The sale deed in respect of this plot was registered on 12.10.82.
CBI Vs. OS Chauhan CC No. 11/11 Page 16of 6 (3) Plot no. B261, Ram Prastha Colony, Ghaziabad of 233.33 Sq. Yds.
area had been purchased from Atul Kumar Rastogi, S/o. Chand Rastogi R/o. 2247, Paharwali Gali, Dharampura, Delhi as POA of Radha Rani Rastogi in the name Onkar Singh Chauhan, S/o. Sh. Ridhi Karan Singh Chauhan , H.No. B17, Ram Prastha Colony, Ghaziabad for Rs. 38,932/ on 13.08.1984 and the sale deed in respect of this plot was registered on 16.08.1984. (4) The advance of Rs. 40,000/ paid to Shri A.B.L. Kulshrestha R/o. 610, SectorIII, RK Puram, New Delhi as advance in respect of semibuilt house belonging to him at B179, Ram Prastha Colony, Delhi, UP Border, Ghaziabad.
This advance of Rs. 40,000/ was the surety for the agreement for the sale of the house in question for Rs. 70,000/.
1.4 Sh. OS Chauhan also owned a palatial building constructed at B17, Ram Prastha Colony, Ghaziabad. The total cost of construction, according to the evaluation conducted by Chief Technical Examiner's Organisational, Central Vigilance Commission, New Delhi, was assessed at Rs. 2,71,950/ after deducting an amount to 8% of the total construction cost. During the search in the residential premises of accused at Nahar Lagun, Arunachal Pradesh and B17, Ram Prastha Colony, Ghaziabad, house hold CBI Vs. OS Chauhan CC No. 11/11 Page 17of 6 articles in the sum of Rs. 8,075/ and Rs. 71,889/ respectively were found in his possession .
1.5 Initially accused was discharged by Ld. Special Judge, CBI vide order dated 29.05.1985 on the ground that sanction for prosecution was invalid. Subsequently, CBI obtained fresh sanction order from the competent authority and filed the present charge sheet for the prosecution of the accused.
1.6 The accused moved application dt. 05.02.99 /09.03.99 stating that CBI has not given complete amount of salary drawn by him against each post during the check period. The accused took an objection that the salary amount of Rs. 3,62,392/ shown by the CBI in the charge sheet neither disclosed that as to for which period the salary pertains nor it gives the breakup of the salary. Vide order dated 06.11.99, my Ld. Predecessor accepted the plea of the accused and directed CBI to furnish the complete details of the salary, in compliance of which CBI filed the details of income on account of salary received by the accused during the check period and on the basis of fresh calculation, the salary earned during the check period came out to Rs. 4,98,357/. My Ld. Predecessor vide detailed order on charge dt. 23.08.03 held the total income of the accused during the check period as Rs. 6,71,632/ against the claim of the accused of Rs. 6,19,842/. The CBI Vs. OS Chauhan CC No. 11/11 Page 18of 6 breakup of the income earned during the check period as held by my Ld. Predecessor at the stage of charge is as follows :
S.No. Item Amount (Rs.)
1. Salary 4,98,357.00
2. Gift from in-laws 40,000.00
3. Interest as on the FDRs 14,200.00
4. Rental income 12,240.00
5. Dividend in the name of accused 1,850.00
6. Income from Agriculture 67,235.00
7. Car Loan 16,000.00
8. GPF Loan 9,000.00
9. Income from sale of Rifle 750.00
10. Income from sale of old car 12,000.00
TOTAL INCOME 6,71,632.00
1.7 Perusal of the charge sheet indicates that the accused has not
disputed the expenditure assessed by the CBI during the check period. In respect of the assets at the end of the check period, the accused disputed that the value of his assets were 3,33,947/ against estimation of Rs. 9,02.824/ during the check period. My Ld. Predecessor after taking into account all the pleas of the accused, assessed the assets of the accused at the end of the check period as Rs. 8,67,789.82/ the breakup of which is as follows: S.No. Land/plot Amount (Rs.)
1. Agricultural land worth of Rs. 2,70,166/- as admitted against 2,70,166.00 Rs. 2,72,809/- as detailed in the charge-sheet
2. Plots of land in the name of his domestic servant Om Prakash 65,732.00 worth Rs. 65,732/-
3. Value of plot bearing no.B-17, Ram Prastha Colony, Plot No. 1,63,203.00 98-A, Radehy Shyam Park, Pargana Loni, Tehsil & District CBI Vs. OS Chauhan CC No. 11/11 Page 19of 6 Ghaziabad, Plot No. B-216, Ram Prastha Colony, Ghaziabad, advance of Rs. 40,000/- paid for Semi Built House wherein B-178, Ram Prastha Colony, Delhi, UP Border, Ghaziabad, collectively.
4. Cost of plot and construction of house built on Plot No.B-17, 2,71,950.00 Ram Prastha Colony including the cost of plot Rs. 12,222.10 paise.
5. House-hold articles seized from house bearing no. B-17, Ram 71,889.00 Prastha Colony during the search of premises.
6. House-hold articles found in house no.17, D Sector, Nahar 8,075.00 Lagun, Arunachal Pradesh.
7. Hundred Equity Shares of M/s. DLF Universal Ltd. worth Rs., 1,000.00 1000/-.
8. Initial payment for plot bearing no.C-1/1 Dilshad Extension Pt.- 7,974.82 II is Rs. 7,974.82 paise.
9. Deposit in the Pension-cum-Gratuity scheme for three children 7,800.00 of the accused is Rs. 7,800/-
TOTAL 8,67,789.82
1.8 Thus the accused was tried for the disproportionate assets of Rs.
3,99.469.82/ in the following manner :
Total income = Rs. 6,71,632.00
Expenditure = Rs. 2,03,312.00
Net income available = Rs. 6,71,632.00 - Rs. 2,03,312.00
= Rs. 4,68,320.00
The Disproportionate Assets = 8,67,789.82
() = 4,68,320.00
3,99,469.82
CBI Vs. OS Chauhan CC No. 11/11 Page 20of 6
CHARGE
2.0 Vide detailed order on charge dtd. 23/8/03, prima faice case u/S
5(1)(e) r/w Sec. 5(2) of POC Act, 1947 was held out to be made out against the accused OS Chauhan and on 4/9/03 charge was framed against the accused u/S 5(1)(e) r/w 5(2) of POC Act, 1947 to which the accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES 3.0 CBI examined 48 witnesses in support of its case. 3.1 PW1 Ms. Surjeet Kaur, PW2 Sopan Aggarwal, Pw3 Smt. Uma Devi, Pw6 Sh. Bupender Singh, PW20 Sh. Atul Kumar Rastogi, PW21 Sh. Kuldeep Singh, PW22 Ms. Kamaljit Kaur, PW27 Sh. Avadh Bihari Lal, PW32 Sh. Harpreet Singh, PW34 Sh. Anand Singh, PW35 Sh. Satish Pal, PW37 Sh. Balwant Singh, PW40 Sh. Samar Singh Nagar, PW41 Sh. Sarup Chand Ansal, and PW47 Sh. Abhishek Raj were examined by the prosecution so as to prove the charges of immovable properties by the accused in his name.
CBI Vs. OS Chauhan CC No. 11/11 Page 21of 6 3.2 The prosecution examined PW7 Pratap Shankar, PW23 Sh.
Surjeet Lal, and PW46 Sh. Kapender Kumar to prove the sale of properties in the name of Sh. Om Prakash servant of the accused. Sh. Om Prakash has also been examined as PW4. During the course of investigation, statement u/S 164 Cr.PC of PW4 Om Prakash was recorded. Sh. Pradeep Chadha, Ld. Special Judge, the then Ld. MM was examined as PW44 to prove the statement u/S 164 Cr.PC.
3.3 In respect of property No. B17, Ramprastha Colony, Ghaziabad, the prosecution examined PW5 AK Suri. He proved the Technical Valuation Report Ex.PW5/A, as per which the cost of construction of the property in question was Rs. 2,71,950/.
PW6 Bhupender Singh was tenant in the house of the accused during the period Nov., 1980 to October 1981 @ Rs. 425/ pm plus Rs.10/ as water charges and from October, 1983 to March 1984 @ Rs. 550/ per month plus Rs.20/ pm as water charges. It is pertinent to mention here that in his statement, the house number was missing.
PW39 Sh. NP Raghvan Devi, remained as tenant in this house from August 1979 to July 1980 @ Rs. 300/ per month. However, in his testimony there was specific mention of B17, Ramprastha Colony, Ghaziabad.
CBI Vs. OS Chauhan CC No. 11/11 Page 22of 6 3.4 In respect of salary of the accused earned during the check
period, the prosecution examined PW8 Sh. MP Jain, PW9 Sh. PM Singh, PW10 Sh. Alpholse, PW11 Sh. Jikomriba, PW12 Sh. Moti Ram, PW13 Sh. CK Goel, PW14 Sh. ED Ashokan, PW15 Sh. Rakesh Bali, PW16 Sh. Mohd. Khan and PW19 Sh. KNC Sharma. These witnesses proved the salary of the accused for the different period.
3.5 In respect of other income and FDR, the prosecution examined PW25 Sh. Manmohan Prasad Shrivastava, a bank official who proved the FDR in the name of the children of the accused as Ex. PW25/A1 to A4 and FDR in the name of the accused and his wife Kusum Singh Chouhan as Mark PW25/X1 and X2.
The prosecution examined PW28 Dr. Anand Dev Singh, bortherinlaw of the accused. He deposed regarding the loan having been taken by the accused from his fatherinlaw in the year 1974. The witness stated that the loan was repaid.
PW29 Sh. Sunil Kumar Rohtagi another bank official proved the document pertaining to saving bank account no. 85 in the name of accused. He stated that against the FDR, a loan in the sum of Rs. 37,500/ was advanced and later on the FDR's were also discounted and against the total FDR's of Rs. 50,000/ the accused was paid Rs. 64,294.50/.
CBI Vs. OS Chauhan CC No. 11/11 Page 23of 6 PW31 Sh. Suresh Chand Sharma, Revenue Official proved the estimated agricultural income of the accused as Rs. 67,235/. The khatonis were proved as Ex. PW31/A1 to A17.
PW38 Sh. RP Punjani, DGM, Corporate Affairs, DLF proved the investment of the accused and his wife Smt.Kusum Singh Chauhan in the shares of DLF.
3.6 In respect of the expenses, the prosecution examined PW17 Sh. SD Sharma, the then Principal Kendriya Vidhyalaya School. He proved his letter Ex. PW17/A alongwith statement Ex. PW17/B1 to B3 regarding the expenditure made by the accused on the education of his children.
PW26 Sh. RN Mishra, the then Asstt. Director in Central Statistical Organisation proved the communication dated 27.02.1986 Ex. PW26/A vide which the document Ex. PW26/B, and enclosure Ex. PW26/C was sent. The witness stated that Central Statistical Organization has a table for 45 centres in India regarding middle class family expenses on the basis of a survey conducted in the year 195859. He further stated that consumer price index is prepared every month and when family expenses are to be calculated for a particular year then firstly, it is calculated for the base year and then with the help of consumer price index of that centre, adjust the base year expenditure and arrive at the data for the desired year. It is pertinent to mention here that taking into account this study, the prosecution has assessed CBI Vs. OS Chauhan CC No. 11/11 Page 24of 6 the expenditure as Rs. 2,03,312/ about which the accused did not raise any objection.
3.7 In respect of the LIC policy no. 24190059, the prosecution examined LIC official PW39 Sh.RK Premi. He proved the LIC bond as Ex.PW39/A. He further stated that a total sum of Rs. 9,270.40/ was paid on account of LIC premium upto April 1978 and thereafter the policy lapsed. 3.8 In respect of the search conducted at B17, Ramprastha Colony, Ghaziabad and at official residence at Arunachal Pradesh where the accused was posted at the relevant time, the prosecution examined PW18 Sh. AP Arora, PW33 Sh. Lala Ram, PW36 Sh. JP Singh and PW44 Sh. Jagmohan Singh. The witnesses to the search proved the search proceedings conducted on 27.9.85 and 29.09.85. The search memo and inventory of the search conducted on 27.09.85 at B17, Ram Prastha Colony, Ghaziabad has been proved as Ex. PW18/A. The search memo relating to the search conducted on 29.09.85 has been proved as Ex. PW18/B and the inventory/observation memo relating to the search conducted at B17, Ram Prastha Colony, Ghaziabad has been proved as PW18/C. In respect of the search conducted at Arunachal Pradesh house, the search memo and inventory of articles have been proved as Ex. PW36/A and Ex. PW36/B. CBI Vs. OS Chauhan CC No. 11/11 Page 25of 6 3.9 The sanction under Section 19 POC Act has been proved by PW 48 Sh. DK Samnathray, the then Director Vigilance in the Ministry of Personnel Public Grievances & Pension, DOPT, Govt. of India as Ex. PW48/A. It is pertinent to mention here that in this case initially, the accused was discharged vide order dated 29.05.95 holding that according to the Allocation of Business Rules, 1961 as the mandate the competent authority for OS Chauhan would be the Ministry of Personnel Public Grievances & Pension and not the Home Ministry. The sanction was not considered valid and the accused was discharged, however it was specifically mentioned that the order of discharge would not bar the CBI to initiate fresh prosecution, if any, against accused after obtaining legal and valid sanction required in accordance under the provisions of law. Thus, CBI filed the fresh chargesheet after obtaining the fresh sanction on 19.12.1996.
3.10 The prosecution also examined the Investigation Officer, the then Dy.SP Sh. SK Dev as PW43. IO stated that pursuant to FIR Ex. PW43/A, the search warrants were issued and the searches were conducted at the official residence of the accused as well as at B17, Ram Prastha Colony, Ghaziabad. IO stated that the check period was determined from CBI Vs. OS Chauhan CC No. 11/11 Page 26of 6 1968 to 1985. It was not disputed that no preliminary enquiry was conducted.
PW42 Sh. HM Joshi, the then Inspr. CBI had filed the charge sheet after the grant of sanction. Sh. RN Kaul, the then SP who had got the FIR lodged was examined as PW45.
STATEMENT OF ACCUSED 4.0 In his statement u/S 313 Cr.PC, accused OS Chauhan admitted as far as the agricultural property purchased by him and did not raise any dispute regarding the sale deed Ex. PW1/A (certified copy Ex. PW35/B), Ex. PW1/B (Certified copy Ex. PW35/A), Ex. PW2/A, PW2/C, PW3/A, PW6/E, PW6/F, PW20/A, PW21/A, PW21/B, PW21/C, PW21/D, PW21/X, PW32/A, PW32/B, PW32/C, PW34/A, PW34/B, PW34/C, PW35/C, PW35/D, PW35/E, PW35/F and PW35/G. In respect of the purchase of property in the name of his wife Smt. Kusum Singh Chauhan, B17, DLF Dilshad Extn.II Ghaxiabad vide sale deed Ex. PW41/J2, the accused expressed his ignorance and stated that she must have purchased out of her own funds. However , in any case it would not be relevant as it is beyond the check period.
The accused also accepted payment in cash of Rs. 40,000/ on 01.07.84 to PW27 Avadh Bihar Lal as part sale consideration in respect of CBI Vs. OS Chauhan CC No. 11/11 Page 27of 6 B179, Ram Prastha Colony, Ghaziabad. The remaining amount was paid on 06.10.86.
In respect of the properties in the name of Sh. Om Prakash, the accused stated that Om Prakash purchased the same out of his funds. However, accused admitted that Om Prakash was his domestic servant.
In respect of property No. B17, Ramprastha Colony, the accused stated that he had sold this property to his father Sh. Ridhi Karan Singh and has no concern whatsoever with the same. The accused stated that he is innocent and has been implicated falsely at the instance of the then Chief Secretary Sh. RM Aggarwal. Accused stated that Sh. RM Aggarwal was nursing grudge against him, as he i.e., the accused made complaint, when Chief Secretary demanded illegal gratification from the accused, and on the complaint made by the accused, Chief Secretary was removed. ARGUMENTS 5.0 Sh. DS Pawaria, Ld. Counsel for the accused has opened his argument by saying that the present case is under the old Act, 1947 and not the amended Act, which came into existence in the year 1988. The charges have also been framed u/S. 5 (1) of the POC Act, 1947 r/w Section 5(2) of the POC Act, 1947. There is a material difference regarding the onus on the prosecution to prove their case. In the old Act, the onus was much heavier on the prosecution to prove the case of disproportionate assets as compared CBI Vs. OS Chauhan CC No. 11/11 Page 28of 6 to the new act. Sh. DS Pawaria submitted that the case of the CBI largely depends upon the allegation that accused was found in possession of the properties, which he had purchased in the name of other persons. Ld. Counsel submits that prosecution is required to prove that Benami properties were funded by the accused. The attention of this court was drawn to the admission made by the Investigating Officer, PW43 Sh. SK Dev in cross examination that he did not collect any evidence regarding funding by the accused relating to the Benami properties. The prosecution did not examine father and wife of the accused. Sh. DS Pawaria submitted that it is a matter of record that the accused had sold property no.B17, Ram Prastha Colony to his father on 21.05.79 vide sale deed Ex. PW43/DA. This sale deed was duly filed by the CBI alongwith the record. The father of the accused Sh. Ridhikaran Singh had only given the power of attorney to the accused so as to manage the affairs of the property. Sh. DS Pawaria submitted that it is a settled proposition that a person in whose name the title deed exist, is presumed to be owner of the property until and unless proved otherwise. Accused being the power of attorney holder was merely managing property no. B17, Ram Prastha Colony and he had no title of interest in the said property.
In respect of the title deeds, recovered in the name of Om Prakash from B17, Ram Prastha Colony, Ld. Counsel submitted that CBI did not prove on record that who was having the keys of this house. There is nothing on the record to suggest that the keys of the house were with the CBI Vs. OS Chauhan CC No. 11/11 Page 29of 6 accused. In absence of this connecting evidence, it cannot be presumed that the accused was found in possession of the title deeds relating to Om Prakash. Ld. Counsel submitted that PW48 Sh. DK Samanthray had accorded the sanction mechanically without any application of mind. Ld. Counsel for the accused invited the attention of the court to the cross examination of this witness, wherein the witness admitted that he did not conduct any independent enquiry for according the sanction. The sanctioning authority also admitted that he did not mention in the sanction order that which particular documents were considered by him before grant of sanction. Ld. Counsel submitted that alongwith the sanction order, the detailed report filed by the CBI has also not been filed.
Sh. DS Pawaria submitted that agricultural income in the sum of Rs. 67,235/ as shown by the prosecution is on the much lesser side. The accused was having a farm house of around 12 bigha. The prosecution in order to prove this has examined PW31 Subhash Chand Sharma. Ld. Counsel submitted that if we peruse the testimony of PW31, SC Sharma, it would be clear that he remained posted there only 5 months and had submitted the report without consulting the accused. The plea of the accused is that his income was around Rs. 3,00,000/ during the 5 years, instead of Rs. 67,235/ as claimed by the CBI. Ld. Counsel submitted that CBI was determined to implicate the accused falsely and therefore, they did not conduct any preliminary enquiry in violation of the rules /CBI manual. Sh. DS Pawaria submitted that house hold articles recovered from B17, CBI Vs. OS Chauhan CC No. 11/11 Page 30of 6 Ram Prastha Colony, cannot be added in the assets of the accused as the house did not belong to the accused. Ld. Counsel submitted that wife of the accused was from a rich family and she used to bring lot of gifts from her house. She had purchased shares and had FDRs out of her own funds. Sh. DS Pawaria further submitted that the prosecution has intentionally withheld the material documents regarding which an adverse inference can be drawn against them. Ld. Counsel particularly drew the attention of the court towards the crossexamination of the Investigating Officer in which the material contradictions surfaced. Sh. DS Pawaria while defending his client argued vehemently that Section 53 of the Evidence Act makes the previous good character of the accused relevant. The Investigating Officer admitted that during the search, no cash/jewelery was recovered from the house. It was also admitted by the IO that accused had no bad habits. Sh. DS Pawaria submitted that accused made lot of savings by living a simple life and invested in lands only. Ld. Counsel for the accused further submitted that prosecution has miserably failed to prove its case against the accused. In support of his submissions, that in absence of any preliminary enquiry, the case of the CBI cannot be believed. Ld. Counsel has relied upon the case titled as P.Sirajuddin Vs. State of Madras 1971 Cr.L.J. 523 and PS Rajya Vs. The State of Bihar 1996 IV AD SC 62. While assailing the sanction order against the accused, Ld. Counsel has relied upon State of Karnataka Vs. Amir Jan IV (2007) DLT (Cri) 386 SC and Tirath Prakash case CBI Vs. OS Chauhan CC No. 11/11 Page 31of 6 2001(3) RCR (Cri) 758. In respect of the recovery of household articles, Ld. Counsel has relied upon Ghulam Nabi War & Anr. Vs. The State of NCT of Delhi 2000 III AD (SC) 307. Ld. Counsel for the accused further submitted that prosecution has miserably failed to prove its case against the accused and has relied upon Jagan M. Seshadri Vs. State of Tamilnadu Crl. Appeal No. 169/1999, State of Karnataka Vs. Ameer Jan IV (2007) DLT (Crl.) 386 (SC) and Preetam Singh Vs. The State (Delhi) 1998(1) CC Cases 411 (HC). However, during the course of arguments, Ld. Counsel for accused has very fairly submitted that defence accept the income of the accused as held at the stage of framing of charge except the agricultural income. Ld. Counsel submitted that since it was judicial order which was not challenged by any of the party, the finding of the court regarding the income of the accused be held conclusive. Similarly, in respect of expenditure of the accused, Ld. Counsel has not raised any dispute. Ld. Counsel has also submitted that as far as agricultural land in the name of the accused is concerned, that is also not disputed. The main area of the dispute are - the property in the name of Om Prakash and Ridhikaran Singh, the household articles recovered from B17, Ram Prastha Colony, quantum of agricultural income and income from rent relating to B17, Ram Prastha Colony.
CBI Vs. OS Chauhan CC No. 11/11 Page 32of 6 5.1 Per Contra, Sh. DK Singh, Ld. PP for CBI has submitted that
prosecution has led cogent and credit worthy evidence in respect of the charge framed against the accused. Ld. PP for CBI heavily relied upon the testimony of PW4 Om Prakash. He submitted that statement of PW4 was duly recorded u/s 164 Cr.P.C which has duly been proved by Sh. Pradeep Chadha, Ld. Special Judge, the then Metropolitan Magistrate as Ex. PW44/A. In respect of the Benami properties, held in the name of Ridhikaran Singh and Om Prakash, Ld. Prosecutor for CBI submitted that Benami is a mixed question of law and fact. The prosecution witnesses have consistently stated on oath regarding the nature of the transaction which proves that the properties were actually owned and possessed by the accused only. In his statement u/s 313 Cr.P.C. also, the accused has taken a false plea. Ld. PP invited the attention of the court towards the reply of the accused in his statement u/S. 313 Cr.P.C. regarding the properties in the name of Om Prakash. Ld. PP submits that prosecution has successfully proved its case against the accused beyond reasonable doubt. 6.0 I have heard Ld. PP for CBI and Ld. Counsel for the accused and have perused the record carefully.
CBI Vs. OS Chauhan CC No. 11/11 Page 33of 6 FINDINGS 7.0 The accused has been charged for the offence u/S 5(1)(e) r/w
5(2) of the POC Act, 1947. The ingredients of the offence of criminal misconduct u/S. 5(2) r/w. 5(1)(e) of the P.C. Act are, the possession of pecuniary resources disproportionate to the known source of income for which the public servant cannot satisfactorily account. To substantiate this charge, the prosecution must prove the following facts :
(i) The accused is a public servant;
(ii) The nature and extent of the pecuniary resources of property which were found in his possession;
(iii) It must be proved as to what were his known sources of income that is known to the prosecution; and,
(iv) It must prove quite objectively that such resources or property found in the possession of the accused were disproportionate to the known source of his income.
Once these four ingredients are established, the offence of criminal misconduct u/S. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The nature and extent of the burden, cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All CBI Vs. OS Chauhan CC No. 11/11 Page 34of 6 that he needs to do is to bring out the preponderance of probability. Therefore, in this case it has to be seen whether the four ingredients mentioned above establish the misconduct and proved by the prosecution. It is also to be seen whether the accused satisfactorily accounted for the possession of disproportionate assets, if any, even by bringing out preponderance of probability.
7.1 Ld. Defence Counsel has argued that there is material difference regarding the onus on the prosecution in the old Act and the amended Act. In 1988 Act, the explanation has been added to Sec. 13(1)(e) to explain "known source of income" which means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. This explanation was not part of the old Act. While discussing "known source of income" under old provision, the Supreme Court in CSD Swami Vs. The State, AIR 1960 SC 7 inter alia held that the expression "known source of income" must have reference to sources known to the prosecution on a thorough investigation of the case. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused within the meaning of Sec. 106 of the Evidence Act. The prosecution can only lead evidence to show that the accused was known to earn his living by service CBI Vs. OS Chauhan CC No. 11/11 Page 35of 6 under the Government during the material period. In the case of the Govt. servant, the prosecution would naturally infer that his "known source of income" would be his salary earned by him during this active service. The source of income of particular individual would depend upon his position in life with particular reference to his occupation or avocation in life. It was further held that if the prosecution has failed to disclose all the sources of income of the accused persons, it is always open to him to prove other sources of income which have not been taken into account or brought into evidence by the prosecution. This judgment was followed by the Supreme Court in Sajjan Singh Vs. State of Puinjab, AIR 1964 SC 464, wherein it was reiterated that "known source of income" cannot be deemed to be sources known to the accused. It would be "sources known to the prosecution". The prosecution cannot be expected to disprove all possible sources of income, which remain within the special knowledge of the accused. The prosecution cannot in the very nature of the things be expected to know the affairs of the public servant found in possession of the resources or property disproportionate to his known sources of income i.e. salary. In respect of "known source of income" in the amended Act, for a source of income to qualify as a known source of income, it is required to satisfy the following two conditions:
(i) it should be a lawful source of income; and, CBI Vs. OS Chauhan CC No. 11/11 Page 36of 6 (ii) the receipt of income from such a source should have been intimated
in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant.
As a natural corollary, it would mean:
(i) any income received from a source which is not lawful cannot be considered for inclusion in the expression "known source of income", even if such income was actually received by the public servant;
(ii) any income even though received from lawful source cannot likewise be considered if the receipt of such income has not been intimated n accordance with the provisions of law applicable to the concerned public servant.
Thus, there cannot by any doubt to the proposition raised by the Ld. Counsel for the accused that there is a material difference of onus in respect of the old POC Act, 1947 and amended POC Act, 1988 relating to the case of disproportionate assets. The present case being under the old Act, the accused is not obliged to satisfy the courts that the source of income was lawful or he had duly intimated in accordance with the law. In order to prove its case, the prosecution would rather be bound to prove that the pecuniary resources were disproportionate to his known sources of income and the accused failed to satisfactorily account for the same.
Thus, in the disproportionate assets, the elements which are most significant are income and expenditure of the accused during the check CBI Vs. OS Chauhan CC No. 11/11 Page 37of 6 period and assets at the beginning of the check period and assets at the end of the check period.
INCOME:
8.0 CBI filed the chargesheet in this case claiming income of the accused to be Rs. 4,98,357/ during the check period from 14/7/67 to 29/9/85. At the stage of charge, an application was moved by the accused disputing the salary income shown by the CBI. While deciding this application, Ld. Special Judge directed the CBI to give the complete detail of salary inorder to get fair opportunity to the accused to defend his case. Pursuant to this order, CBI filed the detail of salary. The accused claimed his total income to be Rs. 6,19,852/. However, my Ld. Predecessor vide detailed order on charge dtd. 23/8/03 held the income of the accused as Rs. 6,71,632/, the break up of which has already been given in the earlier part of my judgment and has not been reproduced herein. The charge was framed against the accused on 4/9/03 taking the total income of the accused as Rs. 6,71,632/. This order on charge has not been challenged by the prosecution at any point of time. I consider that there should not be any doubt to the proposition that after the charge is framed against the accused, accused is expected to meet the charge framed against him. If any party has any objection to the finding at the stage of charge, they are supposed to challenge it before the superior Court and if the same has not been challenged then it CBI Vs. OS Chauhan CC No. 11/11 Page 38of 6 becomes a starting point in the trial. Since the income of the accused has been held to be Rs. 6,71,632/ at the stage of charge, I consider that anything lesser than this cannot be taken now. The prosecution would be estopped now from saying that the income of the accused be taken lesser than this. CBI also in its all fairness has not challenged the income part of the accused during the course of arguments. Therefore, as far as income of the accused is concerned, that may be taken as Rs. 6,71,632/ and therefore, the witnesses examined by the prosecution regarding the salary / income of the accused PW8 to PW16 and PW19 may not be discussed as it would be a futile exercise, since the testimony of these witnesses do not indicate that the income was more than Rs.6,71,632/. The income of the accused in the sum of Rs. 6,71,632/ also includes agricultural income in the sum of Rs. 67,235/. This income has been proved by the prosecution by way of its witness PW31 Sh. Subhash Chand Sharma. PW31 Sh. Subhash Chand Sharma, Patwari duly placed on record Khatonis Ex.PW31/A1 to A17 and deposed about the estimate agricultural income of Rs. 67,235/ on the basis of revenue record. It is pertinent to mention here that PW31 specifically stated that the major portion of the land was not cultivable and only on some portion of the land there used to be little crop. In the cross examination, the witness specifically stated that he has given the income on the basis of nature of produce, kind of land and his own experience. The defence has challenged his testimony on the ground that PW31 has given the agricultural income unilaterally without taking the version of the accused. I consider that the plea CBI Vs. OS Chauhan CC No. 11/11 Page 39of 6 taken by the accused has no basis. The prosecution has proved the agricultural income by calling a revenue official and the relevant revenue record has also been placed on the record. The accused has merely contended that the agricultural income has been shown on the lower side. However, he did not produce any direct evidence of the yield from the agricultural land. The prosecution has given the estimation on the basis of average yield of similar land in the area. The fact regarding the agricultural income from the land owned and possessed by the accused was within the special knowledge of the accused and if some evidence was available regarding more yield, the accused was liable to prove the same. The accused who had special knowledge regarding the agricultural income from his land should have given some evidence regarding the same. The revenue records produced on the record by a Govt. official is maintained in regular course of official business. They are presumed to be correct and are definitely preferred to oral evidence not supported by any document. In this regard reference can be made to Republic of India Vs. Raman Singh, 1994 Cri.LJ 1513 and State Vs. Bharat Chandra Roul, 1995 Cri.LJ 2417.
It is also important to look into the testimony of PW32 Sh. Harpreet Singh who had sold the land out of Khasra No. 185 to the accused, and admitted in the cross examination that the land sold to the accused was not cultivable and it was not fertile. Thus, the plea of the accused regarding the agricultural income in sum of Rs. 2 lakhs is liable to be rejected on CBI Vs. OS Chauhan CC No. 11/11 Page 40of 6 account of any evidence produced by him. Except the agricultural income, the accused has not raised any dispute in respect of the income held to have been earned by him during the check period. Rather at the stage of charge, the accused had claimed the total income of Rs. 6,19,842/ whereas my Ld. Predecessor held the income to be Rs.6,71,632/. I consider that it would be unfair, if any amount lesser than this is taken as the income of the accused. EXPENDITURE:
9.0 The accused has been charged and tried on the basis that he had incurred an expenditure of Rs.2,03,312/ during the check period. If we peruse the detailed order on charge dtd. 23/8/03, it has been specifically mentioned that the accused did not raise any objection regarding this amount. During the course of arguments also, Ld. Counsel for the accused did not raise any dispute in respect of the same. Though the prosecution has examined PW17 Sh. SD Sharma, PW26 Sh. RN Mishra and PW39 Sh. RK Premi in this regard. However, in view of the admission made by the Ld. Counsel for the accused during the stage of charge as well as during the admission made by the Ld. Counsel at the stage of final arguments, I consider that it can be safely taken that the expenditure made by the accused during the check period was Rs.2,03,312/.
CBI Vs. OS Chauhan CC No. 11/11 Page 41of 6 ASSETS:
In this case, neither the prosecution has shown any assets at the beginning of the check period, nor did the accused at any point of time raised the plea that he had some assets at the beginning of the check period. It is pertinent to remember that accused joined the service in 1967 and the check period has also been taken from 1967 to 1985.
10.0 In the chargesheet, the accused was charged for having the assets in the sum of Rs. 9,02,825/ either in his name or in the name of Sh. Om Prakash (Domestic servant) or in the name of his father Sh. Ridhi Karan Singh at the end of the check period. However, at the stage of charge my Ld. Predecessor held that accused had assets in the sum of Rs. 8,67,789.82 at the end of the check period and taking this amount, the accused was charged for having disproportionate assets in the sum of Rs. 3,99,469.82. The breakup of the assets as held at the stage of charge are as follows:
S.No. Land/plot Amount (Rs.)
1. Agricultural land worth of Rs. 2,70,166/- as admitted against 2,70,166.00
Rs. 2,72,809/- as detailed in the charge-sheet
2. Plots of land in the name of his domestic servant Om Prakash 65,732.00
worth Rs. 65,732/-
3. Value of plot bearing no.B-17, Ram Prastha Colony, Plot No. 1,63,203.00
98-A, Radehy Shyam Park, Pargana Loni, Tehsil & District Ghaziabad, Plot No. B-216, Ram Prastha Colony, Ghaziabad, advance of Rs. 40,000/- paid for Semi Built House wherein B-178, Ram Prastha Colony, Delhi, UP Border, Ghaziabad, collectively.
4. Cost of plot and construction of house built on Plot No.B-17, 2,71,950.00 Ram Prastha Colony including the cost of plot Rs. 12,222.10 paise.
CBI Vs. OS Chauhan CC No. 11/11 Page 42of 6
5. House-hold articles seized from house bearing no. B-17, Ram 71,889.00
Prastha Colony during the search of premises.
6. House-hold articles found in house no.17, D Sector, Nahar 8,075.00
Lagun, Arunachal Pradesh.
7. Hundred Equity Shares of M/s. DLF Universal Ltd. worth Rs., 1,000.00
1000/-.
8. Initial payment for plot bearing no.C-1/1 Dilshad Extension Pt.- 7,974.82
II is Rs. 7,974.82 paise.
9. Deposit in the Pension-cum-Gratuity scheme for three children 7,800.00
of the accused is Rs. 7,800/-
TOTAL 8,67,789.82
We have already discussed the income earned and expenditure incurred by the accused during the check period and both have not been the major area of dispute. It is interesting to noter that even regarding the assets there is no substantial dispute as far as factual matrix is concerned. The major area of dispute is that whether the agricultural land registered in the name of Sh. Om Prakash (PW4) belongs to Sh. Om Prakash only or the accused is the benami owner of the same. The success or the failure of the case of the prosecution would also largely depend upon the fact that whether property No. B17, Ramprastha Colony, Ghaziabad has actually been transferred by the accused to his father Sh. Ridhi Karan Singh in the year 1979. The plea of the accused is that movable articles seized during search proceedings of House No. B17, Ramprastha Colony cannot be added in his assets as this house does not belong to him. Thus, the assets owned / possessed by the accused at the end of the check period are discussed item wise as below:
CBI Vs. OS Chauhan CC No. 11/11 Page 43of 6 (i) Agricultural land in the name of the accused: 10.1 The accused has admitted during the trial that he was in
possession of 12 bigha and 18 biswas of land. In his statement u/S 313 Cr.PC also, the accused admitted that he was owner in possession of the land 20 bighas and 18 biswas and he specifically stated that it was all agricultural land and he was maintaining a farm house. It may be recalled that in the chargesheet the accused was alleged to have the immovable property / assets in the form of plot of land consisting of 21 bighas, 52/3 biswas and 82/3 biswansi valued in the sum of Rs. 2,72,890/. The details of this property were mentioned in detail in the chargesheet which have also been reproduced by this Court in the earlier part of the judgment for clarity. These immovable properties were purchased by way of 23 transactions by the accused. At the stage of charge, the accused admitted that he had agricultural land valued at Rs.2,70,166/. My Ld. Predecessor accepted the plea of the accused and added Rs. 2,70,166/ on account of agricultural land in the name of the accused. Despite the admission made by the accused, the prosecution still discharged its burden by examining number of witnesses. PW1 Smt. Surjeet Kaur proved the sale deed as Ex.PW1/A and Ex.PW1/B. PW2 Sh. Sopan Aggarwal proved the sale deed as Ex.PW2/A, Ex.PW2/B and Ex.PW2/C. PW3 Smt. Uma Devi proved the sale deed Ex.PW2/C vide which the land was sold to the accused. The testimony of PW6 Bhupender Singh is relevant for many purposes. However, under this head of CBI Vs. OS Chauhan CC No. 11/11 Page 44of 6 agricultural land, this witness stated that accused purchased the agricultural land from him vide sale deed Ex.PW6/E and Ex.PW6/F. It is also pertinent to mention here that accused obtained signature on blank papers of the sellers which are Ex.PW6/G1 to G6. PW21 Sh. Kuldeep Singh proved the sale deed Ex.PW21/A to C. PW22 Smt. Kamaljit Kaur proved the sale transaction executed through sale deed Ex.PW21/D. PW32 Sh. Harpreet Singh sold plot No. 184 & 185 to accused vide sale deed Ex.PW32/A to C. The official from the Registrar office PW34 Sh. Anand Singh and PW35 Sh. Satish Pal also appeared to prove the certified copy of sale deed and factum of the execution of the same.
The prosecution by way of the above mentioned witnesses proved that the accused had bought the agricultural land in his own name during the check period. It is pertinent to mention here that this amount includes the stamp duty paid by him being the buyer of the property. It is pertinent to mention here that even in the statement of accused or during the course of argument, the accused has not raised any dispute in regard to the agricultural land in his name. Hence, a sum of Rs. 2,70,166/ as admitted by the accused, be taken as an asset in form of agricultural land in the name of the accused at the end of check period.
(ii) Plots of land in the name of his servant Om Prakash worth Rs.
65,732/:
CBI Vs. OS Chauhan CC No. 11/11 Page 45of 6 10.2 CBI has alleged that accused had acquired the properties in the
name of his servant Om Prakash during the check period. The case of the CBI is that the funds were provided by the accused himself and the accused is actually the owner of these properties. If we scan the evidence of the prosecution, the sale deed executed in favour of Sh. Om Prakash are as follows:
Sale deed Name of party Amount (Rs.)
Ex.PW2/B Sold by Sh. Raj Narain Agarwal to Sh. Om Prakash s/o 11,166/-
Sh. Shankar Lal r/o Suthari @ Nithari
Ex.PW7/A Sold by Sh. Pratap Shankar Tripathi to Sh. Om 30,092/-
Prakash s/o Shankar Lal r/o Suthari @ Nithari.
Ex.PW33/A Sold by Sh. Pritam Singh to Sh. Om Prakash s/o Sh. 3,362/-
Shankar Lal r/o Suthari @ Nithari
Ex.PW34/D Sold by Sh. Vijay Bhatnagar and Ajay Bhatnagar to 11,167/-
Sh. Om Prakash s/o Sh. Shankar Lal r/o Suthari @
Nithari
Ex.PW35/J Sold by Sh. Dal Singh to Sh. Om Prakash s/o Sh. 9,945/-
Shankar Lal r/o Suthari @ Nithari
The total value of the agricultural land in the name of Sh. Om Prakash s/o Sh. Shankar Lal vide above said sale deed is Rs.65,732/. The case of the CBI is that Sh. Om Prakash did not have resources and means to buy these properties and actually these properties were funded by the accused himself. The accused has been claimed to be the benami owner of these properties.
CBI Vs. OS Chauhan CC No. 11/11 Page 46of 6 The Benami Transactions (Prohibition Act, 1988) received the assent of the President of India on 5/9/1988 and this Act has prospective operation. Reference can be made to R. Rajagopal Reddy Vs. Padmini Chandrasekharan, AIR 1996 SC 238. It is a settled proposition that the burden of showing that a particular transaction is benami and the owner is not the real owner, always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of the fact.
In Jay Dayal Poddar Vs. Bibi Hazara, AIR 1974 SC 171, the Supreme Court laid down the following test to determine that whether a particular transaction is benami:
(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and, (6) the conduct of the parties concerned in dealing with the property after the sale."
CBI Vs. OS Chauhan CC No. 11/11 Page 47of 6 In Krishnanand Agnihotri Vs. State of Madhya Pradesh, AIR 1977 SC 796, relied upon by the Ld. Counsel for the accused also, it was inter alia held as under:
"It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unofter, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
It is a settled proposition that if the land is in the name of particular person, it must be presumed, unless the contrary is shown that the land belongs to the person in whose name the title deed exists.
In a later decision in Bhim Singh Vs. Kan Singh, AIR 1980 SC 727, the Supreme Court once again reiterated the principles for determining the benami nature of a transaction and laid down the following guidelines:
(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person CBI Vs. OS Chauhan CC No. 11/11 Page 48of 6 who supplied the purchase money, unless there is evidence to the contrary;
(3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money; and, (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc. In Valliammal Vs. Subramaniam, AIR 2004 SC 4187, the Supreme Court while discussing the question that whether the particular sale is benami or not, inter alia held that this question is largely one of fact and following six circumstances can be taken as a guide to determine the nature of the transaction:
(1) The source from which the purchase money came;
(2) The nature and possession of the property, after the purchase;
(3) Motive, if any, for giving the transaction a benami colour;
(4) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) The custody of the title deeds after the sale; and, (6) The conduct of the parties concerned in dealing with the property after the sale.
CBI Vs. OS Chauhan CC No. 11/11 Page 49of 6 It was further held that the above indicia are not exhaustive and their efficacy varies according to the facts of each case. It may be reiterated that there is always a presumption of law that the person who purchases property is the owner of the same. However, this presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner.
The prosecution in order to prove the fact examined Sh. Om Prakash s/o Sh. Shankar Lal as PW4 and Sh. Pradeep Chadha, Ld. Special Judge, the then Ld. MM who recorded the statement of Sh. Om Prakash u/S 164 Cr.PC as PW44. The prosecution also examined PW7 Sh. Pratap Shankar Tripathi and PW23 Sh. Surjeet Lal so as to prove the sale transaction in favour of Sh. Om Prakash. Sh. Kapender Kumar from Sub Registrar office, has also been examined as PW46.
10.3 Sec. 3 of the Indian Evidence Act, 1872 defines "Proved" as under:
"Proved: A fact is said to be proved, when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
CBI Vs. OS Chauhan CC No. 11/11 Page 50of 6 There cannot be any quarrel with the proposition that the prosecution is bound to prove the guilt of the accused conclusively. However, it has been held time and again by the Apex Court that the exaggerated adherence to and insistence upon establishment of proof beyond every reasonable doubt by the prosecution, ignoring the ground realities and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable and in the ultimate analysis the criminal gets encouraged. Too much insistence upon the proof beyond reasonable doubt may have an unrealistic approach at time by the Court as it may reinforce the belief in the mind of the people that the Court takes technical approach divorced from the ground realities. Reference can be made to Dalbir Singh Vs. State of UP, 2009 CrLJ 1543. The bare perusal of the Sec. 3 of Indian Evidence Act would indicate that a fact can be taken as proof if a reasonable prudent man under the circumstances of a particular case is ready to act upon the supposition that it exists. In any criminal trial, the Court cannot take itself away from the golden principle that the prosecution is duty bound to prove its case beyond reasonable doubt. However, the basic principles of interpretation of the statute would reinforce the obligation on the Court to interpret the law in a manner which would serve the intention of the law. The basic purpose of the law is to serve the needs of the society. Recently, the Supreme Court in Subramanian Swamy (Dr.) Vs. Dr. Manmohan Singh & Anr., 2012 CBI Vs. OS Chauhan CC No. 11/11 Page 51of 6 AD(SC) 155, inter alia held as under:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in out preambular vision. Therefore, the duty of the Court is that any anti corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
Therefore, the Court is required to evaluate the facts in a manner which should answer the needs of the law and the society. It is a right time when the Court has to take a call and must peep into the facts thoroughly so as to find out the truth behind it.
PW4 Sh. Om Prakash in his testimony on oath stated that he is an illiterate person and his father expired when he was 89 years old. Sh. Om Prakash remained domestic servant with the accused for 02 years. The witness stated that once accused took him to Dadri and his thumb impressions were obtained on some stamp papers. The witness also stated that he was taken to Ghaziabad once or twice in a bank and his signatures were obtained on some documents in the bank. It also came in the testimony of the witness that he never resided in Village Nithari and Sothari and that he CBI Vs. OS Chauhan CC No. 11/11 Page 52of 6 never got any sale deed executed in his favour nor did he had any sufficient fund like Rs. 40,000/ Rs. 50,000/ to purchase any property. In the cross examination, the witness stated that his take home salary was Rs. 700/ pm after deduction of loan amount. He also stated that he lived in a rented accommodation and had even taken a loan for the purpose of his marriage. In the cross examination, the loan amount was mentioned as Rs.50,000/ which apparently seems to be a typographical mistake as in the statement of Om Prakash u/S 164 Cr.PC, he specifically stated that he had taken a loan of Rs. 5,000/. In the cross examination, the witness specifically stated that he had not purchased any plot or land in his name so far. It is pertinent to mention here that the statement of this witness was also recorded u/S 164 Cr.PC which was duly proved as Ex.PW44/A. CBI examined Sh. Pradeep Chadha, Ld. Special Judge, the then Ld. MM, who had recorded the statement of Sh. Om Prakash u/S 164 Cr.PC. The bare perusal of this statement would indicate that the statement has been made voluntarily. It is also pertinent to mention here that the statement u/S 164 Cr.PC was recorded on 12/5/87 and at that time, the witness stated his age to be 24 years. The sale deed in question were executed in favour of the witness between the period July 1982 to January 1983. Thus, Om Prakash was between 1820 years of age at the time of execution of sale deed. In his statement u/S 164 Cr.PC proved as Ex.Pw44/A, the witness had stated that he used to live in a jhuggi at Tis Hazari area and somebody got him employed with the accused in 1981. The witness remained with the accused as domestic servant till CBI Vs. OS Chauhan CC No. 11/11 Page 53of 6 February / March 1983. In this statement, the witness stated that accused took him to Dadri 67 times and got his thumb impression on stamp papers. The witness had stated in his statement u/S 164 Cr.PC that on being asked accused stated that since he (i.e., accused) can't purchase in his name, it is being purchased in the name of Om Prakash. The witness stated that he was taken to Ghaziabad also 23 times and his signatures were taken on 23 papers. There was no material cross examination to this witness. If we peruse, the testimony of this witness, it is clear that the witness was only 1820 years of age at the time when the sale deed in question was executed, he was extremely poor as he had been living in a jhuggi and was employed as a domestic servant by the accused somewhere in the year 1981. The witness had no means to buy the property. He had never resided in Village Sothari @ Nithari as indicated in the sale deeds and he was also taken to Dadri and Ghaziabad bank and his signatures were obtained thereon. The defence may argue that though it is proved that PW4 Om Prakash had no means to buy the property but there is no evidence on record to suggest that properties were purchased out of the funds provided by the accused.
Here the basic principles of appreciation of evidence may be recalled. In order to prove the fact in issue, the prosecution always may not be expected to lead a direct evidence. We may also recall that the transaction of benami property are shrouded in secrecy. In order to cross the veil, the Court has to look for all the surrounding circumstances. Sh. Om Prakash s/o Sh. Shankar Lal was employed as a domestic servant with the accused, he CBI Vs. OS Chauhan CC No. 11/11 Page 54of 6 had no means to buy the property. The properties were brought during the period of his employment with the accused. The question is that who would pay the money to this person for buying the property. It is pertinent to mention here that there is nothing on record to suggest that anybody else had staked his claim on this property. It is also relevant to know that these properties were also situated in the village Hasanpur, Bhuanpur in Khasra No. 184, 195, 205, 189 and 193. The land in the name of the accused are also situated in the same area.
(iii) Built / Semi Built Houses:
(a) Plot bearing No. B17, Ramprastha Colony, Ghaziabad(value of the same has been added in item No. iv).
(b) B179, Ramprastha Colony, Ghaziabad. (c) Plot No. 98A, Radheyshyam Park, Ghaziabad. (d) Plot No. B261, Ramprastha Colony, Ghaziabad. (a) B17, Ramprastha Colony, Ghaziabad: 10.4 The question regarding ownership of B17, Ramprastha Colony
is very material and fate of this case largely depends upon the same. It is not disputed that the accused had purchased this property from PW37 Sh.
Balwant Singh on 18/1/74 vide sale deed Ex.PW37/A for Rs. 12,222.10. The plea of the accused is that he had sold this property to his father vide sale deed Ex.PW43/DA for a sum of Rs. 42,000/ on 21/5/1979. The question is that whether this property had actually been sold by the accused to this father CBI Vs. OS Chauhan CC No. 11/11 Page 55of 6 Sh. Ridhi Karan Singh or the transaction under this sale deed is a sham transaction. There cannot be any doubt to the settled proposition that presumption of correctness is always attached with the title documents. However, this presumption can never be conclusive. The Court cannot silently accept the title documents. It is required to look into the entire surrounding facts and circumstances of the case. The issue of ownership of this plot has a multifaceted ramification on this case.
If we peruse the sale deed Ex.PW43/DA dtd. 21/5/79 pertaining to B17, Ramprastha Colony, Ghaziabad, it is registered at Delhi. It is pertinent to mention here that the accused was an IAS officer and he personally went to the Registrar, Delhi, who mentioned in his endorsement that the vendor i.e. the accused was personally known to him and the vendor (accused) admitted the prior receipt of the entire sale consideration of Rs. 42,000/. The perusal of this sale deed would indicate that the witnesses to the sale deed were the officials of the Dy. Commissioner Office, Delhi. It nowhere bears the signature of Sh. Ridhi Karan Singh i.e., the buyer of this property. The plea of the CBI is that actually no such transaction had taken place and the accused executed title deed only in order to cover up his indulgence in continuous acquisition of properties out of his illegal gratification. During the perusal of the record, I have come across certain facts which are very relevant for this issue. PW6 Sh. Bhupender Singh in his testimony stated that he remained tenant in the house of accused during the period Nov., 1980 to Oct., 1981 and Oct. 1983 to March 1984. In his CBI Vs. OS Chauhan CC No. 11/11 Page 56of 6 testimony, there was no mention of the house number in which PW6 remained tenant. However, when this question was put to the accused in his statement u/S 313 Cr.PC, the accused replied that the house in question did not belong to him and he might be tenant in B17, Ramprastha Colony, Ghaziabad. Another tenant Sh. NP Raghvan appeared as PW30. He also stated that he remained tenant in the house of the accused from August 1979 to July 1980. It may be recalled that both the tenancy are after the date of execution of sale deed by the accused in favour of his father relating to this house. If we, see the document Ex.PW30/A and Ex.PW30/B, it would indicate that this tenancy was in favour of B17, Ramprastha Colony, Ghaziabad. It is pertinent to mention here that in document Ex.Pw30/B, regarding receipt of possession executed on 31/7/80, the accused signed as owner of B17, Ramprastha Colony, Ghaziabad. Thus, accused represented himself as owner of B17, Ramprastha Colony, Ghaziabad. This is a material admission on the part of the accused. This document has duly been proved by the prosecution on record and has not been challenged by the accused. It is a settled proposition that an admission by a party is substantive evidence of the fact and admission duly proved are admissible evidence. It is also a settled proposition that it would not effect if a person has not been confronted with admissions. Reference can be made to Union of India Vs. Moksh Builders and Financiers, AIR 1977 SC 409. I consider that the accused cannot come out of this admission.
CBI Vs. OS Chauhan CC No. 11/11 Page 57of 6 It is also pertinent to mention here that the fact of sale of H. No. B17, Ramprastha Colony in favour of his father is a fact which in natural course is bound to be in the special knowledge of the accused only. The accused did not examine his father, for the reasons best known to him. The accused was supposed to lead some evidence on record to show that he had actually received the sale consideration amount against the transaction. The accused chose not to lead any evidence and rather kept silent over the same. This silence is speaking loud and clear. Sometimes the silence on the part of a person is more expressive than the words itself. In such like cases, the Court cannot expect the prosecution to come with a direct evidence. The Court has to infer from the surrounding facts and circumstances of the case. I consider that on the basis of material on record, there is no doubt in the mind of the Court that property No. B17, Ramprastha Colony, Ghaziabad belongs to the accused and he was duly in possession of the same.
(b) B179, Ramprastha Colony, Ghaziabad: 10.5 Besides agricultural land, the accused also purchased plot No.
B179, Ramprastha Colony, Ghaziabad from PW27 Sh. Avadh Bihari Lal. He paid Rs. 40,000/ in cash on 1/7/84 against receipt Ex.PW27/A. The sale deed of this property was executed on 6/10/86 on the payment of remaining Rs.30,000/. However, since Rs. 30,000/ was paid beyond the check period, only Rs. 40,000/ paid against receipt Ex.PW27/A would be taken into CBI Vs. OS Chauhan CC No. 11/11 Page 58of 6 consideration. It is pertinent to mention here that this witness was not cross examined.
(c) Plot bearing No. 98A, Radhey Shyam Park, Ghaziabad:
In addition to PW4 Om Prakash, the prosecution has also examined other sellers as PW7 Pratap Shankar Tripathi and PW23 Sh. Surjeet Lal. The testimony of PW23 Sh. Surjeet Lal is also very important. This witness stated on oath that he owned a plot in Sahibabad No. 98A, Radhey Shyam Park. The accused came to him and purchased the plot from him in the name of Sh. Om Prakash saying that he being the Govt. servant cannot purchase the plot in his name. The witness stated that the sale consideration was paid in cash in the sum of Rs. 80,000/. Only a suggestion was put to the witness that one Om Prakash of Sarojini Nagar got executed the sale deed. Thus, if we take into account the surrounding circumstances particularly, the nature and possession of the property, the motive of the accused for giving the transaction a benami colour and the custody of the title deeds after the sale, it is clear that the accused was the benami owner of these properties. It is pertinent to mention here that the accused being the Government servant had a motive to give the transaction a benami colour and the title deeds were also found in possession of the accused. Thus, I consider that prosecution has conclusively proved that the agricultural land in the sum of Rs. 65,732/ and plot No. 98A, Radheyshyam Park, Ghaziabad CBI Vs. OS Chauhan CC No. 11/11 Page 59of 6 having been purchased from PW23 Sh. Surjeet Lal in the name of Sh. Om Prakash, actually belonged to the accused.
(d) Plot No. B261, Ramprastha Colony, Ghaziabad:
PW20 Sh. Atul Kumar Rastogi sold the property to accused vide sale deed Ex.PW20/A as power of attorney of Smt. Radha Rani for a consideration of Rs. 35,000/ and stamp duty of Rs. 3,675 has been paid by the accused. This has been proved by the testimony of PW20 Sh. Atul Kumar Rastogi.
(iv) Cost of plot and construction of house built on plot No. B17, Ramprastha Colony:
10.6 The prosecution has added a sum of Rs. 2,71,950/ on account of cost of construction of H. No. B17, Ramprastha Colony, Ghaziabad. In order to prove this fact CBI has examined PW5 Sh. AK Suri. PW5 Sh. AK Suri , the then Technical Examiner, CVC had inspected the property in question. It is pertinent to mention here that as per reference the period of construction was from Oct. Nov. 1973 to April May, 1974. The property was inspected by the Technical Examiner on 21/7/86 and 22/7/86. The report has duly been proved as Ex.Pw5/A. As per the report, the cost of construction has been assessed to be Rs. 2,71,950/. There is no much cross examination to this witness. In the cross examination, the witness stated that he assessed the value on the basis of information given by the owner or the CBI Vs. OS Chauhan CC No. 11/11 Page 60of 6 CBI. The accused has challenged the inclusion of this amount in his assets on the ground that he had sold this property to his father in the year 1979.
This Court had already rejected this plea of the accused. However, even if. this is taken into consideration for a moment, that would not make any difference because as per the case of the prosecution, the construction was carried out from the period Oct., 1973 to May 1974. During this period, the property was admittedly owned and possessed by the accused. Besides this, PW28 Sh. Anand Dev Singh, brother in law of the accused stated in the cross examination that loan of Rs. 40,000/ taken by the accused in 1974 from his father was taken for construction of the house. It is important to note that this question was put to the witness in the cross examination by the accused himself. It shows that the house was built by the accused himself out of his own resources. Thus, the CBI has duly proved on record the Technical Examiner's Report as to the cost of construction of B17, Ramprastha Colony situated on a plot of 550 meters. It was a two storeyed construction consisting of two drawing rooms, dining space, four bedrooms, servants room, two kitchens, two WC/Bath, three W.Cs, three baths, garage on the ground floor and a similar type of construction at First Floor. Two mezzanine level floors have also been built over the garage portion and the staircase was found leading from the ground floor to the terrace. There is no reason to differ from the Technical Examiner's report duly proved by the prosecution on the record. Thus, the amount of Rs. 2,71,950/ has rightly been added under this head.
CBI Vs. OS Chauhan CC No. 11/11 Page 61of 6
(v) Household articles seized from H. No. B17, Ramprastha Colony,
Ghaziabad to the tune of Rs. 71,889/.
10.7 The accused has taken a plea that these articles cannot be added
in his assets as the house did not belong to him. This aspect has been discussed in detail by the Court and it has been held that B17, Ramprastha Colony, Ghaziabad belonged to the accused. The prosecution has duly proved on record the search witnesses PW18 Sh. AP Arora and PW33 Sh. Lala Ram in respect of the searches conducted at B17, Ramprastha Colony, Ghaziabad, on 27/9/85 and 29/9/85. At the time of the first raid, only the chowkidar was present. The substantial portion of the house was found locked and the documents found in the unlocked portion of the house were seized. It is pertinent to mention here that most of the documents including the official passport, pass book in the name of the accused, cheque book, driving license belonged to the accused. The search memo and inventory have been duly proved by the prosecution on record. The bare perusal of the search memo Ex.Pw18/A and Ex.PW18/B and the observation memo Ex.Pw18/C would indicate that the same have been prepared in the normal course of duty. In the observation memo Ex.PW18/C, it has been specifically mentioned that the bunch of keys for the said premises have been given back to Sh. OS Chauhan as he expressed his difficulty in locking the house. The accused has not raised any objection regarding the year of acquisition and valuation of the property. The copy of the observation memo was duly CBI Vs. OS Chauhan CC No. 11/11 Page 62of 6 given to the accused and his signatures do appear on the observation memo Ex.PW18/C. I do not find any reason for not including this amount (Rs. 71,889/) in the asset of the accused.
(vi) Household articles found in H. No. 17D, Nahar Lagun, Arunachal Pradesh to the tune of Rs. 8,075/.
10.8 In order to prove this, the prosecution has examined PW36 Sh. JP Singh and PW44 Sh. Jagmohan Singh. Pw36 Sh. JP Singh, an IAS Officer was the then Jt. Secretary, Arunachal Pradesh. He specifically proved the search memo Ex.Pw36/A and inventory of articles as Ex.PW36/B. PW44 Sh. Jagmohan Singh also made a consistent and corroborative statement on oath and proved the search memo. The copies of these were also duly supplied to the accused. The accused has not raised any objection regarding the same.
(vii) M/s DLF Universal Ltd. Equity Shares to the tune of Rs. 1,000/:
10.9 The prosecution has duly examined on record the witness PW38 Sh. RP Punjwani, DGM, Corporate Affairs, DLF Limited. He proved on record the shares transferred in the name of the accused and his wife Smt. Kusum Singh Chauhan. The witness also proved that after the merger of M/s DLF United Limited with M/s American Universal Electric (India) Limited, the share holders of DLF United Limited was allotted twice the number of equity shares of M/s American Universal Electric (India) Ltd. The witness CBI Vs. OS Chauhan CC No. 11/11 Page 63of 6 admitted in the cross examination that the value of share in the name of Smt. Kusum Singh Chaudhan was Rs. 2,500/ and the value of share in the name of Sh.OS Chauhan at the time of transfer was Rs.1,000/. CBI has chosen to add Rs. 1,000/ as value of share in the name of the accused. I consider that this asset has also been duly proved.
(viii) Initial payment for plot No. C1/21, Dilshad Extension - II to the tune of Rs. 7,974.82 and, 10.10 In respect of the transaction of property No. C1/21, DLF Dilshad ExtensionII (new No. as per Ex.PW41/G1 is B1/76, DLF Dilshad ExtensionII) in the name of the accused himself. It is pertinent to mention here that the sale deed of this property Ex.PW41/G1 was executed in the year 1992. However, during the check period certain payments were made. The prosecution proved the payment made by accused OS Chauhan by way of proof of receipt Ex.PW41/C (Rs. 2,161.70 dtd. 6/1/73) Ex.PW41/D (Rs. 1,621.30 dtd. 28/11/72) and Ex.PW41/E (Rs. 4,191.82 dtd. 26/6/75) in respect of property No. C1/21, DLF Dilshad ExtensionII. The provisional receipts were also proved as Ex.PW41/F and Ex.PW41/G. However, against these receipts the regular receipts were issued which have already been taken into account. Since the sale deeds were executed after the check period, the amount mentioned in the same cannot be taken into account and only the payment made during the check period can be taken into account. CBI has taken into account the property in the name of accused and has excluded the CBI Vs. OS Chauhan CC No. 11/11 Page 64of 6 payment made by Smt. Kusum Singh Chauhan vide receipts Ex.PW41/A and Ex.PW41/B.
(ix) Deposit in the Pension cum Gratuity Scheme for three children of the accused amounting to Rs.7,800/:
10.11 In respect of item No. (ix), in the above said table, CBI has not led any evidence.
10.12 In addition to the above said evidence which has been discussed above, there is some other material evidence which has come on the record and indicates towards the culpability of the accused. During the cross examination of the IO PW43 Sh. SK Dev, the defence itself proved the document Ex.PW43/DF which was a letter dtd. 16/7/83 written by M/s Suchitra Advertising Agency to Sh. Onkar Singh Chauhan. The letter was addressed to Sh. OS Chauhan, B17, Ramprastha Colony, Ghaziabad and M/s Suchitra Advertising Agency offered to pay ground rent for the hoarding @ Rs.1800/ per year in two installments. This letter again, proved by the defence itself shows that H. No. B17, Ramprastha Colony, Ghaziabad belongs to the accused only. The accused has been saying that his father in law was a man of means and his wife had been getting regular gifts from her father but the accused did not lead any evidence in this regard. The accused even did not choose to examine his wife to prove this fact. The mere plea taken by the accused that his wife had her own source of income cannot CBI Vs. OS Chauhan CC No. 11/11 Page 65of 6 be believed in absence of any reliable evidence. The accused cannot claim to have discharged his onus merely by taking a plea. The testimony of PW6 Sh.
Bhupender Singh also reflects a shadow on the conduct of the accused and his greed towards the acquisition of the property. If we peruse his testimony it would indicate that the accused as a power of attorney of one Om Prakash s/o Sh. Shankar Lal, probably the same person in whose name the accused purchased the property, executed the sale deed in favour of the members of the family of Sh. Bhupender Singh and bought it back after sometime at a higher amount. The accused was also found in possession of certain blank documents signed by these persons. I consider that there is plethora of evidence which unerringly indicates towards the culpability of the accused. 11.0 The accused has challenged the sanction granted against him, for the first time at the fag end of trial, on the ground that it was mechanical and without any application of mind. In respect of the sanction u/S 19 POC Act, it is a settled proposition that the object of the sanction is to afford a reasonable protection to the public servant in the discharge of their official functions. It is not an umbrella for protection of corrupt officers but a shield against reckless harassment of officials. The sanction is not an automatic formality and the provision of sanctions are required to be effected in a manner to give the natural meaning of the words used therein. However, an accused can be acquitted on the ground that defective sanction, if it is found that a serious prejudice has been caused to the accused. Merely on CBI Vs. OS Chauhan CC No. 11/11 Page 66of 6 technicalities indicating to some omissions or some irregularities, the accused cannot be acquitted. The defence has merely taken a plea that the sanction has been granted mechanically without any application of mind. However, I do not find any substantive material on the record which could indicate that there is a flaw in the sanction granted by the competent authority. The sanction cannot be brushed aside merely at the asking of the defence.
12.0 In view of the above discussions, the table regarding the income, expenditure and assets of the accused are as follows:
TABLE A Income of Sh. OS Chauhan:
1. TOTAL INCOME 6,71,632.00 ............
TABLE B Expenditure of Sh. OS Chauhan :
1. TOTAL EXPENDITURE Rs. 2,03,312.00 ..............
TABLE -C CBI Vs. OS Chauhan CC No. 11/11 Page 67of 6 Assets in the name of Sh. OS Chauhan:
S.No. Land/plot Amount (Rs.)
1. Agricultural land worth of Rs. 2,70,166/ as admitted against Rs. 2,70,166.00
2,72,809/ as detailed in the chargesheet
2. Plots of land in the name of his domestic servant Om Prakash 65,732.00
worth Rs. 65,732/
3. (i) Plot No. 98A, Radehy Shyam Park, Pargana 80,000/ 1,58,675.00
Loni, Tehsil & District Ghaziabad,
(ii) Plot No. B261, Ram Prastha Colony, Ghaziabad, 38,675/
(iii) B179, Ram Prastha Colony, Delhi, UP Border, 40,000/ Ghaziabad.
Total 1,58,675/ 4. Cost of plot and construction of house built on Plot No.B17, Ram 2,71,950.00
Prastha Colony including the cost of plot Rs. 12,222.10 paise.
5. Household articles seized from house bearing no. B17, Ram 71,889.00 Prastha Colony during the search of premises.
6. Household articles found in house no.17, D Sector, Nahar Lagun, 8,075.00 Arunachal Pradesh.
7. Hundred Equity Shares of M/s. DLF Universal Ltd. worth Rs., 1,000.00 1000/.
8. Initial payment for plot bearing no.C-1/1 Dilshad Extension Pt.- 7,974.82 II is Rs. 7,974.82 paise.
TOTAL 8,55,461.82
..................
TABLED
A. Income 6,71,632.00
B. Expenditure 2,03,312.00
CBI Vs. OS Chauhan CC No. 11/11 Page 68of 6
C. Likely Savings (AB) 4,68,320.00
D. Assets 8,55,461.82
E. Assets Disproportionate (DC) 3,87,141.82
% of DA =58%
F. % of disproportion E/A*100 = 58%
..............
13.0 In view of the above discussions, I consider that the prosecution
has successfully proved its case beyond any shadow of doubts against the accused for the offence u/S 5(1)(e) r/w 5(2) of the POC Act, 1947. Hence, accused OS Chauhan is held guilty for the offence u/S 5(1)(e) r/w 5(2) of the POC Act, 1947 in RC No. 5(A)/85 Announced in Open Court (Dinesh Kumar Sharma ) on 30.08.2012 Spl. Judge (PC Act) : CBI01 Saket Courts : New Delhi.
........................
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CBI Vs. OS Chauhan
03/09/2012
Present: Sh. DK Singh, Ld. PP for CBI.
Convict in person with Sh. DS Pawariya, Adv.
Arguments on the point of sentence heard.
Vide separate order on sentence, convict OS Chauhan is sentenced to rigorous imprisonment of 03 years and a fine of Rs. 05 lakhs in default SI for 01 year u/S 5(1)(e) r/w 5(2) of the POC Act, 1947. Besides this, the disproportionate assets in the sum of Rs. 3,87,142/ (rounded off), acquired by the accused be also confiscated by the State in accordance with the provisions of law. The accused is restrained from elinating, transferring the estate in any manner.
A copy of the judgment alongwith order on sentence be given to the convict free of cost.
An application u/S 389 Cr.PC has been moved by the convict. Convict OS Chauhan is granted bail on his furnishing a personal bond in the sum of Rs. 50,000/ with one surety in the like amount.
Rs. 50,000/ deposited as fine. Accused has moved a handwritten application stating therein that he shall positively deposit the remaining amount before 2pm on 5/5/2012. Sh. DS Pawariya, Ld. Counsel has also submitted that since the amount of fine is very high, the convict may be given two days time. In view of the submissions made, the remaining fine in the sum of Rs.4,50,000/ be deposited on 5/9/2012.
(Dinesh Kumar Sharma ) Spl. Judge (PC Act) : CBI01 Saket Courts : New Delhi.
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