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Delhi District Court

C.B.I. vs . Diwakar Sharma on 27 September, 2016

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                     IN THE COURT OF BHUPESH KUMAR,
                     SPL. JUDGE, (PC ACT) CBI-01, (SOUTH)
                         SAKET COURTS : NEW DELHI

CC No. 17/13 (New No.11/16)
RC No. 1(E)/2005/CBI/EOU-VII/N.D.
Unique Case ID No. : 02406R1038252007


C.B.I.             vs.                       Diwakar Sharma
                                             S/o Sh.G.Dutt,
                                             R/o C-6/6080, Vasant Kunj,
                                             New Delhi.

RC No.     :             1(E)/2005/CBI/EOU-VII/N.D.
U/Sections :             Under Sections 13(2) r/w 13(1)(e) of PC Act, 1988.

                                               Date of Institution : 19.06.2007
                                             Arguments Heard on : 02.09.2016
                                                Date of Judgment : 27.09.2016

Appearances :
Mr.S.Jaiswal, Ld. Sr.PP for CBI
Mr.Kamal Kapoor, Ld. Counsel for accused

JUDGMENT

1. Brief facts of the matter are that on the basis of source information, FIR no.129 dated 31.01.2005 U/Section 13(2) r/w Section 13(1)(e) PC Act was registered by CBI against Sh. Diwakar Sharma (here-in- after referred as accused), Under Secretary, Govt. of India, Ministry of Science & Technology, Technology Bhawan, Mehrauli Road, New Delhi on the ground that the accused has amassed the following assets during his tenure in the Ministry of Science & Technology from 1995 onwards :

1. One flat no. D-101, Jagdamba Apartment, Plot no.C-58/25, Sector CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 2 62, Noida approximate value Rs.19 laks

2. One flat No. C-502, Kendriya Mantralaya, Employees Welfare Housing Society, Plot no. GH-19, Vigyan Vihar, Sector 56, Gurgaon approximate value Rs.18 Lakhs.

3. One flat No. 604 B, Shramdeep Sehkari Awas Samity Ltd., Plot no. 1B, Pocket B-9, Sector 62, Noida value Rs.15 Lakhs

4. One flat No. 437H, Pocket II, Mayur Vihar, Phase I, New Delhi approximate value about Rs.13 Lakhs.

5. One Maruti Esteem car No. DL4CN 3185 of Rs.5 Lakhs (Approx).

The source information also revealed that Sh.Diwakar Sharma was also working as Office Bearer in the following non- profit making cooperative Group housing societies : -

1. Kendriya Nitekan Cooperative Society, Plot No.F-31, Sector 50, Noida.

2. Public Sector Employees Cooperative Society Ltd., Plot No.F-8, Sector 50, Noida.

3. Government and Public Sector Employees Welfare Housing Organization, Plot No.D-13, Sector 44, Noida.

4. Jan Vikas Cooperative Group Housing Society Ltd., Plot no.3, Sector 9, Dwarka, New Delhi.

It has been learn that as per bye-laws only members of society can become its office bearer. Thus it was strongly suspected that accused may have properties in the above mentioned societies also.

The accused joined the Government service in the year 1978 as Assistant and was promoted as Section Officer in the pay scale of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 3 Rs.2000-3200 in November 1998. He was again promoted as Under Secretary in August 1999, in the pay scale of Rs.10,000/-15200/- The approximate salary / income of accused from January, 1995 till the date of registration of FIR came out to Rs.20.0 lac approx. Accused during his tenure as Public Servant has acquired the assests to the tune of Rs.70.0 lac which was grossly disproportionate to his known source of income of Rs.20.0 lac (appox) during the period 1995 to 2005. the said facts disclosed the commission of offence punishable under Section 13(2) r/w Section 13(1)(e) of PC Act 1998 by Diwakar Sharma and accordingly aforesaid FIR was registered against him. Investigation of the matter was marked to Sh.Satinder Bisht, Inspector CBI.

During investigation, it was found that Diwakar Sharma aged 49 years belong to low middle class family as his father late Sh. G. Dutt who was Sepoy in British Army and after his retirement he was employed as class IV employee in Ministry of Education, New Delhi and has expired in the year 1978. Mother of accused was uneducated and housewife. The accused is eldest of his two brothers and two sisters. His younger brother Harish Kumar was a staff car driver in Ministry of Education who got the job on compensatory ground. His sisters namely Sunita Dhondial and Sudha Sharma were married. Accused was married to Smt. Savita Jakhmola in the year 1989. His wife was employed as PGT (Physics) at Navyug School, Sarojini Nagar since 1991. His only son namely master Ishan aged about 13-14 years was student of DPS, Vasant Kunj, New Delhi.

The investigation further revealed that the accused joined as LDC on 04.10.1978 in department of Agriculture in the scale of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 4 Rs.260-400. Thereafter, he cleared Assistant Grade Examination in 1981 of pay scale of Rs.427-800. Then he cleared departmental examination of Section Officer in 1987 and was appointed as Section officer in the pay scale of Rs.2000-3500 w.e.f. 18.11.1988 to 08.09.1998. He got promotion / appointed as Under Secretary on 09.09.1999 in the pay scale of Rs.10000-15,200/- in the department of Science & Technology. The investigation further disclosed that accused was public servant since 04.10.1978 but he has acquired maximum assets during the year 1995 to 2005. Hence, the check period has been taken from 01.01.1994 to 02.02.2005.

At the beginning of check period, accused was found in the following assets : -

Sl.                       PARTICULARS                                    AMOUNT
                                                                           (Rs)
1.     Savings at PNB Bank, Lodhi Road, New Delhi (A/c                                328.47
          No. 46451) as on 31.12.93.
2.     Saving at SBI, NCERT, New Delhi (A/c No. 7289)                                 800.00
          as on 31.12.93.
3.     Purchase of 100 shares of Nova Udyog Ltd. on                                1,000.00
          17.12.92 @ Rs 10/-.
4.     Purchase of 1000 units of UTI on 17.12.90 @                               10,000.00
          Rs.10/-
5.     Savings of Dena Bank, Lodhi Road, New Delhi (A/c                               539.00
          No. 4102) as on 31.12.93.
6.     Saving at UBI, Safdarjung Development Area, New                             8,433.67
          Delhi (A/c No. 2282) as on 31.12.93.
                              TOTAL                                              21,101.14

Investigation further revealed that accused Shri Diwakar Sharma was found in the possession of the following movable/immovable assets at the end of check period i.e. 2.2.2005.

CC No.17/13                                                                       (Bhupesh Kumar)
CBI vs .Diwakar Sharma                     Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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Sl                       PARTICULARS                                    AMOUNT
                                                                          (Rs)
1.     Saving at UBI, Safdarjung Development Area, New                            8,268.00
       Delhi (A/c No. 2282)
2.     Saving at SBI, NCERT, New Delhi (A/c No. 7289)                             1,082.34

3. Payment made for purchase of Housing Flat D-101, Jai Jagdambe Apartment, Sector-62, Noida from June2000 to August 2004. 1,593,315.00

4. Payment made at Kendriya Niketan Welfare Housing Society, Plot No. F-31, Sector-50, Noida in February-April, 2003. 156,730.00

5. Payment made at Government and Public Sector Employee Welfare Housing Organisation, Sector-44, Noida April, 2004. 42,880.00

6. Payment made at Jan Vikash Co-operative Group Housing Society, Dwarka onward January, 2004. 484,516.00

7. Purchase of Flat No. 21-H, Pocket-II, Kondli Garoli, Phase II, Mayur Vihar Phase-III on 28.1.99. 50,000.00

8. Purchase Flat No. 8-A, Pocket A-2, Kondli Gharoli, New Delhi on May 94. 330,000.00

9. Purchase Flat No. 177-E, S-A, GR-13, Type-II, Kondli Gharoli, New Delhi on January 1997. 165,000.00

10. Purchase of Vehicle Maruti Esteem having No. DL- 3CN-3185 from M/s Bhasin Motors Pvt. Ltd on 17.12.2000. 556,232.99

11. Purchase of Vehicle Maruti 800 having No. DL- 6CB-2991 from M/s Competent Automobiles on 204,998.00 8.1.97.

12. Purchased Fiat Car having No. DEB-0084 from Ms. Sunita Dhaundiyal on March, 95. 45,000.00

13. Premium on LIC policy No. 120991253 on dated 341.00 1.3.99

14. Premium on LIC policy No. 120965586 onward 18,260.00 15.3.99 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 6

15. Premium on LIC policy No. 120611524 onward 51,662.00 28.9.96

16. Premium on LIC policy No. 110113688 on dated 28.02.1989 832.50

17. Saving at Bank of India, Mayur Vihar, New Delhi (A/c No. 10198) 7883.00

18. Saving at UTI Bank Krishna Nagar, New Delhi (A/c No. 18416) 117,187.00

19. Saving at Dena Bank, Lodhi Road, New Delhi (A/c No. 4102) 531.00

20. Saving at Standard Chartered Bank, Sansad Marg, New Delhi (A/c 52310295129) 8,399.00

21. Saving at ICICI Bank, Mayur Vihar, New Delhi (A/c No.6297010-80294) in the name of Diwakar Sharma 410,950.00

22. Saving at ICICI Bank, Mayur Vihar, New Delhi (A/c No. 6297010-80289) in the name of Master Ishan 11,155.00

23. Saving at IOB Bank, Rohini, New Delhi (A/c No. 5,487.00

884)

24. Saving at SBI, NCERT, New Delhi (A/c No. 7685) 11,244.07

25. Purchased 1300 shares of Kalinga Cement Ltd. on 10.10.95 @ Rs 10/- per share 13,000.00

26. Purchased 100 shares of Joy Vinayls Ltd. on 18.10.94 @ Rs 10/- per share. 1,000.00

27. Purchased 100 shares of Kinetic Capital Finance Ltd on 12.05.94 @ Rs 10/- per share which later converted to 4 shares of Kinetic Finance Ltd. on 1,000.00 24.4.01

28. Purchased 25 fully convertible debentures of Ahmedabad Electricity Ltd on 12.01.94 @ Rs 120/-

each later converted to 50 shares 3,000.00

29. Purchased 100 shares of Indian Seamless Steel Alloys Ltd. on 10.2.94 @ Rs 10/- per share 1,000.00

30. Purchased 100 shares of Nova Udyog Ltd @ Rs.

    10/- share                                                                1,000.00


CC No.17/13                                                                  (Bhupesh Kumar)
CBI vs .Diwakar Sharma                Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                     7

31. Value of household items as per Inventory Memo prepared on House Search at House No. 251/12 R.K. Puram 114,240.00

32. Value of household items as per Inventory Memo prepared on House Search at D-101, Jai Jagdambay Apartment, Sector-62, Noida 121,800.00

33. Value of household items as per Inventory Memo prepared on House Search at 437-H, Pocket-II, Mayur Vihar, New Delhi 8,000.00

34. Cash found during search on 2.2.2005 from the residence and office premises of accused Diwakar Sharma 147,850.00 TOTAL 46,93,843.9 Further the investigation disclosed that total income of the accused Shri Diwakar Sharma during the check period from 1.1.1994 to 2.2.2005, from all the known sources is as under:

Sl                       PARTICULARS                                  AMOUNT
                                                                        (Rs)

1. Housing Loan from SBI, Rajinder Nagar for flat No. D-101, Jagdamba Apartment, Sector-62, Noida on March, 2002 800,000.00

2. Sale of Flat No. 21-H, Pocket-II, Kondli Garoli, Phase-II, Mayur Vihar, Phase-III on 30.12.2000 200,000.00

3. Car Loan from Citi Bank on dated 15.12.2000 for 182,052.00 vehicle DL-3CN-3185

4. Car Loan from GE Countywide on January, 1997 for vehicle DL-6CB-2991 102,000.00

5. Car Loan Taken from Department (Ministry of Science and Technology) in the year 1995 40,000.00

6. Profit/gain from making investment in Golden Trading Pvt. Ltd under Scheme G77/19 during 1996 1,060.00

7. Profit/gain received for making investment in M/s C.L. Chit Fund Pvt. Ltd. under Scheme X-11/8 479.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 8 during 1994

8. Survival Benefit received against Policy No. 120965586 from LIC, Faridabad 7,500.00

9. Survival Benefit received against Policy No. 120611524 from LIC, Mayur Vihar 4,807.00

10. Interest accrued from Saving bank account 10198 maintained at Bank of India, Mayur Vihar, New Delhi in the name of Diwakar Sharma from 1.1.94 2,313.00 to 31.1.2005

11. Interest accrued from Saving bank account 18416 maintained at UTI Bank, Krishna Nagar, New Delhi 1,290.00

12. Interest accrued from Saving bank account 4102 maintained at Dena Bank, Lodhi Road, New Delhi in the name of Diwakar Sharma during check 319.00 period

13. Interest accrued from Saving bank account 46451 maintained at PNB, Lodhi Road, New Delhi in the name of Diwakar Sharma during check period 146.00

14. Interest accrued from Saving bank account 52310295129 maintained at Standard Chartered Bank, Sansad Marg, New Delhi 694.02

15. Interest accrued from Saving bank account 6297010-80294 maintained at ICICI Bank, Mayur Vihar, New Delhi in the name of Diwakar Sharma during check period 568.00

16. Interest accrued from Saving bank account 2697010-80289 maintained at ICICI Bank, Mayur Vihar, New Delhi in the name of Master Ishan from 18.7.2002 to 3.2.2005 2,474.00

17. Interest accrued from Saving bank account 2282 maintained at Union Bank of India, Safdarjung Area, New Delhi in the name of Diwakar Sharma from 1.1.94 to 31.1.2005 9,570.00

18. Interest accrued from Saving bank account SB A/c No. 884 in the name of Ishan under the guardianship of Shri Diwakar Sharma maintained at Indian CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 9 Overseas Bank, Rohini 487.00

19. Interest accrued from Saving bank account SB A/c No. 9372 in the name of Diwakar Sharma maintained at UBI, Nehru Place, New Delhi 591.00

20. Interest accrued from Saving bank account SB A/c No. 7685 in the name of Dilo Chand Sharma & Savita Jakhmola maintained at SBI, NCERT, New 2,586.07 Delhi

21. Interest accrued from Saving bank account SB A/c No. 7289 in the name of Dilo Chand Sharma maintained at SBI, NCERT, New Delhi 373.34

22. Interest and dividend received from Share of Torrent Power AEC for the period of January 1994 to 31 st January 2005 1276.82

23. Received payment for maturity of 1000 unit of UTI on 6.12.97 25,200.00

24. Loan received from Ramesh Kumar Gautam on July, 1994 84,000.00

25. GPF withdrawal/advance taken from Department (Ministry of Science and Technology) from January, 1994 to July, 1999 266,768.00

26. Net Salary during the period January 94 to February 134.089.00 96

27. Net Salary during the period 96-97 to August 2004 960.080.00 TOTAL 28,30,723.25 Investigation has disclosed that the accused had incurred the following expenditure during the check period from 1.1.1994 to 2.2.2005:

Sl                       PARTICULARS                                  AMOUNT
                                                                        (Rs)

1. Repayment of Housing Loan to SBI, New Rajinder Nagar for Feb.2002 to January 05 211,210.00

2. Loan given to his wife Smt Savita Jakhmola during CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 10 1998-99 for flat No. C-502, Kendriya Mantralaya Employees Welfare Housing Society, Plot No. GH-

19, Sector056, Gurgaon 164,142.00

3. Repayment on Car Loan to CITI Bank for vehicle No. DL- 3CN-3185 198,003.00

4. Repayment on Car Loan to G.E. Countrywide from January 1997 to December 2001 for vehicle No. DL-6CB, 2991 173,363.00

5. Repayment of car loan to department till August 2004 for his vehicle DEB-0084 45,600.00

6. Extra expenses made in the investment in M/s C.L. Chit Fund Pvt. Ltd. under scheme X-11/7 during 26,829.00 1994

7. Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 28.8.98 17,172.00

8. Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 20.8.99 21,465.00

9. Extra payment made to M/s Tanuj Ishan Chit Pvt.

Ltd from 21.9.95 to 30.3.1996 for participating in its 5,500.00 chit

10. Payment made to Ramesh Kumar Gautam during 1997-1998 83,380.00

11. Registration of Vehicle No. DEB 0084 on 25.3.95 at RTO Ashok Vihar, Delhi 50.00

12. Registration of Vehicle No. DL4CN 3185 on 15.12.2000 Transport Department Janakpuri 3,965.00 Authority

13. Registration of Vehicle No. DL-6CB-2991 Sarai Kale Khan Transport Authority, Delhi on 8.1.97 2,100.00

14. Membership of Grand Life at Hotel Inter Continental, Barakhamba Road during 2003-04 9,500.00

15. Membership and facility availed at of Hotel Uppal Orchid, Mahipalpur during 2003-04 16,824.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 11

16. Expenses on Mobile Phone No. 9891050505 Nov.

    2002 onward                                                          104,875.00
17. Expenses on Mobile       Phone   No.        56038100,
    12.4.2003 onward                                                            525.00
18. Expenses on Mobile       Phone   No.        31065016,
    17.6.2003 onward                                                       19,080.00

19. Expenses on Mobile Phone No. 30936924 in the name of Diwakar Sharma C/o M/s Kendriya Niketan Welfare Housing Society 24,483.00

20. Expenses on Mobile Phone No. 9811017195, From Jan 2000 to 31st Jan 2005 225,725.00

21. Expenses on Mobile Phone No. 9811317195, 26.02.2004 onward 11,855.00

22. Expenses on Mobile Phone No. 9811424024, 31.08.2001 onward 60,326.00

23. Expenses on Mobile Phone No. 9818286596, 12,713.15 20.12.2002

24. Expenses on Citi bank Credit Card No. 4568229123682008 from 17.7.95 to 26.6.99 48,520.00

25. Expenses on Citi bank Credit Card No. 5425569134113000 from 16.11.94 to 22.11.99 55,331.00

26. Travelling expenses since Nov. 2004 onward by Air and Rail M/s Dolphin Travel Service, Vikas Marg, Laxmi Nagar, Delhi-92 66,172.00

27. Insurance premium of Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi 2,312.00

28. Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C- 19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 20.12.2001 18,805.00

29. Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C- 19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 15.3.2004 10,359.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 12

30. Insurance premium on Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi on 21.8.2002 630.00

31. Insurance premium on Vehicle No. DEB 0084 from New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi on 28.4.2004 648.00

32. Insurance premium on Vehicle No. DL 3CN-3185 for the period 20.11.2002 to 19.11.2003 14,524.00

33. Education expenses on Ishan S/o of Diwakar Sharma at Delhi Public School, Vasant Kunj, New 195,071.00 Delhi since 1997

34. Expenses on servicing of vehicle No. DL-6CB- 2991, in the month of January, 1998 at Motor Craft, 4,741.00 Noida

35. Expenses on servicing of vehicle No. DL-4CN-3185 on 19.6.2003 at M/s Gupta Service Station, Moti Bagh, New Delhi 12,500.00

36. Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July, 95 to June, 98 @ 2,500/- 90,000.00 p.m.

37. Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July 98 to January 2005 @ Rs 3000/- p.m. 231,000.00

38. Payment made in respect of water bill for house No. 251 Sector 12, R.K.Puram, New Delhi 5,394.00

39. Electricity Bill Payment for H.No. 251, Sector 12, R.K.Puram from August 95 to December 2004 29,601.00

40. Payment made to M/s D.K.Video on 20.12.2000 for purchasing of Cordless phone 2,990.00

41. Purchase of one Washing Machine, make Samsung having No. WA 75K5C Manoj Electronics, 101, Pratap Nagar, Mayur Vihar, Phase-I, Delhi 14,000.00

42. Purchase of one article from Samsung Electronics, C-39-A, Meerut Road, Industrial Area, Ghaziabad 11,467.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 13

43. Purchase of Hand Set of one Panasonic Hand Set (GD 75) on 20.9.2002 from Hello Sarvottam, Mukherjee Nagar, New Delhi 7,500.00

44. Purchase of Colour TV (Goldstar) having Chasis No. 4107949 on 16.7.95 from Aakash Electronics, 85, Sarojini Nagar, ND 11,000.00

45. Purchase of Tyres from M/s Empress Sales Pvt Ltd. 4,300.00 Munirka on 27.1.2003

46. Purchased one Washing Machine, make IFB from M/s Pankaj Electronics on 8.10.2003 19,000.00

47. Purchased one Mobile Phone Model 3315 from M/s Flutes Music & Telecom Dr Mukherjee Nagar, Delhi-9 on 14.2.2004 3,600.00

48. Payment made to MTNL against installation and bill for phone No. 6166165 from 5.2.98 to 15.4.2003 55,450.00

49. Payment made to M/s Kuhar Taxi Services on 10.7.2004 for hiring vehicle vide bill No. 8911 dated 7,976.00 10.7.2004

50. Payment made to M/s Kuhar Taxi Services on 30.12.2003 for hiring vehicle vide bill 8515 dated 30.12.2003 5,215.00

51. Medical expenses for the period of 19.11.04 to 26.11.04 at Kailash Hospital, Sector 27, Noida 24,640.00

52. Medical expenses for the period of 11.3.04 to 26.03.04 at Kailash Hospital, Sector 27, Noida 35,755.00

53. Medical expenses on 27.09.2001 vide bill No. 52 at Kailash Hospital, Sector 27, Noida 4,450.00

54. Medical expenses in Nov. 04 at Venu Eye Institute & Research Centre, Seikh Sarai, New Delhi 1,550.00

55. Medical expenses in May-July 04 at Apolo Cliniq, Vasant Kunj, New Delhi-70 3,085.00

56. Loan given to Harish Sharma during 2002 from purchase of 197-E, Pocket-IV, Mayur Vihar, Delhi 150,000.00

57. Payment made towards electric Meter connection & Electricity consumption on D-101, Jai Jagdambe CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 14 Apartment, Sector-62, Noida from July 2004 to December 2004 11,886.00

58. Loan given to his wife Smt Savita Jakhmola on 7.12.2004 160,000.00

59. Household expenses (taken as 1/3 of the salary of accused Diwakar Sharma) 376,651.00 TOTAL 31,34,808.26 Investigation has further disclosed that the accused Diwakar Sharma during the check period from 1.1.1994 to 2.2.2005 had received a net salary of Rs 10,94,169/-. On the basis of guidelines, household expenditure of the accused person for the check period has been calculated @ 1/3rd of his salary income Rs 3,76,651.11.

Investigation has further disclosed that Smt. Savita Jakhmola w/o Diwakar Sharma has been working as Physics Teacher (PGT) since January 1991 at Navyug School, Sarojini Nagar, which is managed and controlled by New Delhi Municipal Committee (NDMC). No instances either documentary or orally came which show that she acquired unlawful income. But investigation in respect of Assets in possession of Smt Savita Jakhmola was also made. Investigation has disclosed that at the beginning of check period i.e. on 31.12.1993, Smt Savita Jakhmola was in the possession of the Assets worth Rs 10,087.86 in her name & she was found in possession movable/ immovable assets amounting to Rs 31,41,296.20 in her name on 2.2.2005.

Her total income during the period 1.1.1994 to 2.2.2005 from all known sources, known to CBI, was Rs. 43,33,460.12 & expenditure incurred by Smt Savita Jakhmola during this period was Rs 6,73,185.16. All these transactions in the name of self or in his wife were not CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 15 intimated to the Department by accused Diwakar Sharma.

During the course of investigation, accused Diwakar Sharma was interrogated. Accused Diwakar Sharma could not satisfactorily explain the sources income for the acquisition of the assets acquired in his own name.

Thus, the extent of disproportion, if Diwakar Sharma's role is considered alone comes as under:-

Assets at the end of check period (Statement-B) 46,93,843.90 Assets at the beginning of check period (Statement - 21,101.14 A) Assets acquired during the check period (B-A) 46,72,742.76 Expenses during the check period (Statement - D) 3,134,808.26 Total assets acquired and expenses incurred during the check period 78,07,551.02 Income during the check period (Statement-C) 28,30,723.25 Extent of which asset and expenses are disproportionate to the income 49,76,827.77 % of disproportionate asset with reference to income 175.81% The likely saving attributed to Smt Savita Jakhmola comes as under:

Assets at the end of check period (Statement-B) 31,41,296.20 Assets at the beginning of check period (Statement - 10,087.86 A) Assets acquired during the check period (B-A) 31,31,208.34 Expenses during the check period (Statement - D) 6,73,185.16 Total assets acquired and expenses incurred during 38,04,393.50 the check period Income during the check period (Statement-C) 43,33,460.12 Saving attributed to Savita Jakhmola 5,29,066.62 (But no statement as mentioned in the chart of likely savings etc. of Smt.Savita Jakhmola has been attached with the charge-sheet) CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 16 The savings of Smt.Savita Jakhmola was found to be more than her assets and expenditure. Hence, benefit of Rs. 5,29,066.62, has been given to accused Diwakar Sharma. Even after giving benefit of difference to Diwakar Sharma the disproportionate assets still stands to the tune of Rs 44,47,761.15 which is 132.38% more to his all the sources of income known to CBI and the calculation of the same comes as under:

Computation of DA Sl. Options Details Dispropor- % of tionate Dispropor

-tionate 1 Extent of Assets =46,72,742.76 44,47,761.15 132.38% disproportionate Expenditure= 31,34,808.26 after including the Income = 33,59,789.87 likely income of Smt Savita Jakhmola The sanction to prosecute the accused was accorded under Section 19 of PC Act 1998, by Sh.K.K.Sharma, Desk Officer, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, New Delhi on behalf of President, Govt. of India (competent authority). After completing the investigation chargsheet under Section 13(2) r/w Section 13(1)

(e) of PC Act was filed in the Court on 19.06.2007 against accused Diwakar Sharma.

2. The accused was summoned. After supplying copies of chargesheet, charge under Section 13(2) r/w Section 13(1)(e) of PC CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 17 Act 1988 was framed against the accused by my Ld. Predecessor on 07.04.2010.

3. PROSECUTION EVIDENCE The prosecution has examined 108 witnesses in support of its case.

3.1 PW1 is Sh. Subhan Khan. This witness has submitted to the effect that he has purchased flat no. 21 H, Pocket II, EHS, Kundali Gharoli, Mayur Vihar Phase III for a sum of Rs. 2.0 lac from accused Diwakar Sharma. The payment was made in cash. The relevant documents viz. Power of attorney, sale agreement, registered Will etc. were executed when he had purchased the flat from accused Diwakar Sharma. When he purchased the flat, 10 installments of Rs.15,200/- were payable to DDA.

During cross-examination, the witness has submitted that he does not possess any document to show that he has purchased flat from the accused. The witness further deposed that accused never used his official capacity whenever he met him.

3.2 PW-2 is Mr. Arun Kumar Dhar. He has submitted to the effect that vide bill/cash memo dated 08.10.2003 pertaining to M/s Pankaj Electronics Ex.PW2/A1, a washing machine was purchased by Diwakar Sharma for a sum of Rs.19,000/- . The payment of a sum of Rs.19,000/- was made vide cheque no.619346 dated 8.10.2003 bearing a/c No.114249 of Syndicate Bank, DTC Depot, Sarojini Nagar, New Delhi. The witness was CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 18 cross-examined at length and the same would be discussed at the relevant time of appreciation of evidence.

3.3 PW-3 is Mr.Sanjay Jain. He has submitted to the effect that vide invoice/cash memo no. 158 dated 20.9.2002 of M/s Hello Sarvottam Ex.PW1/A, a Panasonic handset was sold to Diwakar Sharma for a sum of Rs.7500/.

3.4 PW-4 is Mr.Pradeep Kumar. He has brought on record invoice dated 29.08.2002 Ex.PW4/A of M/s Samsung India Electronics Pvt. Ltd. and further submitted to the effect that vide said invoice, 15" TV was sold to Diwakar Sharma for a sum of Rs.11,467/-.

3.5 PW-5 is Mr.Virender Kumar. He has submitted to the effect that in the year 2005, he was posted as Senior Assistant in State Bank of India, New Rajinder Nagar branch and vide letter Ex.PW3/A, the information regarding operation of current account in the name of M/s Tanuj Ishan Construction Pvt. Ltd. was handed over to CBI alongwith certificate under Section 2A of Banker's Book of Evidence Act Ex.PW3/A1. The witness further brought on record the statement of housing loan account no. 01593/051893 in the name of Diwakar Sharma as Ex.PW3/A2 and certificate U/S 2A of Banker's Book of Evidence Act as Ex.PW3/A-3. The statement of current account pertaining to M/s Tanuj Ishan Construction Pvt. Ltd. as Ex.PW3/A4; debit voucher dt.21.3.2002 of a sum of Rs.5000/-

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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and debit slip dt.23.3.02 of Rs.7,95,000/- as Ex.PW5/Y and Ex.PW5/Y1. He has further deposed that vide deposit slips, account holder Diwakar Sharma had repaid sum of Rs.65,000/- and Rs.9280/- respectively towards part repayment of housing loan. During his cross-examination, the witness stated it to be correct that loan was sanctioned as per banking norms and there was no deviation of any rule or norms.

3.6 PW-6 is Mr.Sunil Kumar, an official from BSES Rajdhani Power Limited, West Block, R.K.Puram. He has submitted to the effect that vide letter dated 12.12.2005 Ex.PW6/A, detailed statement of account Ex.PW-6/A1, from January, 1994 to October, 2005 pertaining to meter No.302263 in the name of R.S.Bissa, House No.251, Sector 12, R.K.Puram was sent to CBI. The statement of account Ex.PW-6/A1 shows the total amount paid against electricity consumption.

During cross-examination, the explanation of the witness was called to the effect that to whom flat no.251, Sector 12, R.K.Puram, Delhi was alloted by Estate Officer for the period as mentioned in Ex.PW6/A1, to which the witness has replied that he is not aware of the same but R.S.Bissa was registered consumer of the electricity connection installed therein. The witness further submitted that he was not aware if Diwakar Sharma was residing there and if Smt. Sarla Devi was allottee of the said flat.

         3.7        PW-7 is Mr. Rajiv Kumar working as team Member,

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          20

Operations in Retail Assets Department of IDBI at Jhandewalan Branch, in the year 2005. He has submitted to the effect that vide letter dated 1.7.05 Ex. PW7/A (D 62) certain documents mentioned at serial number 1 to 13 were handed over to Inspector Satender Bisht of CBI. The witness further submitted to the effect that vide loan application Ex.PW7/B Smt.Savita Jakhmola applied for loan to the tune of Rs.12.0 lac on 12.09.03 which was sanctioned on 21.09.2003 to the tune of Rs.11.88 lac and the loan was repayable in 240 monthly installments @ Rs.10,123/-. The bank has also procured membership certificate Ex.PW7/C issued by office of Kendriya Mantralaya Employees Welfare Housing Society and the pay order was issued in favour of Kendriya Mantralaya Employees Welfare Housing Society having account no.11522 of Indian Overseas Bank. Smt.Savita Jakhmola has also deposited processing charges of a sum of Rs.7800/- in cash on 24.9.03 at the time of applying the loan. The witness has also brought on record the sanction order as Ex.PW7/D and statement of account Ex.PW7/E. During cross-examination the witness has submitted to the effect that there is nothing on record to show that repayment of Rs.1,56,000/- was made by Diwakar Sharma but the payment was made by Ms.Savita Jakhmola by cheques.

3.8 PW-8 is Mr.Jagdhir Singh. He has submitted to the effect that in July, 2005 he was posted as Manger, PNB, Lodhi Road branch and vide letter dated 8.6.2005 an 8.7.2005 Ex.PW8/A, the documents mentioned therein were handed over to CBI. The CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 21 witness has further brought on record account opening form in respect to A.B. account bearing no. 46451 in the name of Diwakar Sharma opened on 5.8.1992 as Mark PA-1. The witness has also brought on record the original ledger pertaining to said account w.e.f. 05.08.1992 to July, 1995 as Mark PA-2. All photostate certified copies of statement of account of S.B.A/C No. 46451 of Diwakar Sharma for the period 7.9.1996 to 25.9.1996 is Ex.PW8/B; for the period 1.8.1997 TO 1.9.1997 is Ex.PW8/C; for the period 02.03.1998 TO 22.05.1998 is Ex.PW8/D; for the period 22.05.1998 to 03.03.2002 is Ex.PW8/E; for the period 02.09.2002 to 24.03.2003 is Ex.PW8/F and for the period 01.09.2003 to 22.09.2003 is Ex.PW8/G. The certificate issued by him under Section 2A of Banker's Book of Evidence Act in this respect is Ex.PW8/H. The witness has further deposed to the effect that on 30.12.1993 a sum of Rs.238.47 was balance in the said account.

During cross-examination, the witness has submitted that since he was Manager in the branch, he was competent to provide the information as sought. He has not brought any authority letter to show his authorization for attestation of the documents as he has already been retired. It was suggested to the witness that documents Ex.PW8/A to Ex.PW8/H are not correct documents, but the suggestion was denied.

3.9 PW-9 is Mr.Raje Nal. The witness has submitted to the effect that in the month of July, 05 he was posted at Dena Bank, Lodhi Road branch as computer operator. Vide letter dated 13.06.2005 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 22 Ex.PW9/A, statement of account bearing no.4102 from 06.02.1993 to 31.03.2005 was handed over to CBI. The witness further submitted that certificate u/section 2A of Banker's Book of Evidence Act, Ex.PW9/B was also handed over to CBI. The said account was in the name of Diwakar Sharma opened on 06.02.1993. The original account opening form is Mark PA-3. The witness has further brought on record the certified copy of ledger sheet for the period February, 1993 to March 1998 as Ex.PW9/C. Hand written statement in respect of account no. 4102 in the name of Diwakar Sharma is Ex.PW9/D. The computer generated statement of account of said account from 01.01.2002 to 30.5.2005 is Ex.PW9/E. During cross-examination, the witness has submitted that documents Ex.PW9/A to PW9/E were not prepared in his presence and further submitted that he has no personal knowledge of the case. It was suggested to the witness that Ex.PW9/A to Ex.PW9/E are incorrect or that he was deposing falsely, but the suggestion was denied.

3.10 PW-10 is Mr.Ravi Tokas. This witness has submitted to the effect that vide cash memo bearing no.10729 dated 27.1.2003 of M/s Empress Sales Pvt.Ltd. Ex.PW10/A, two tyres Ceat Rib were sold to Diwakar Sharma for a sum of Rs.4300/-.

3.11 PW-11 is Mr.Anil Kumar Sinha. He has submitted to the effect that in the year 2005 he was posted as Branch Manager, State Bank of India, Darya Ganj and vide production memo CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 23 dated 23.12.2005 Ex.PW11/A, he has handed over certain documents to CBI. The witness has further brought on record the account opening form bearing no.01190/044798 in the name of Mrs.Savita Jakhmola as Ex.PW11/B, certificate u/Section 2A as Ex.PW11/C and computer generated statement of account as Ex.PW11/D. He has further submitted that account was opened in the name of Mrs.Savita Jakhmola on 31.01.1998 with initial deposit of Rs.500/- and further submitted that as on 07.10.2004 the balance in the statement of account Ex.PW11/D was Rs.7.12.

3.12 PW-12 is Mr. Alok Kumar. He has submitted to the effect that in the year 2006, he was working as Accountant with M/s Akash Electronics and vide bill/invoice no. 658 dated 16.07.95 Ex.PW12/A, one Goldstar TV was sold to Mr.Diwakar Sharma for an amount of Rs.11,000/-. The delivery challan in this respect is Ex.PW12/B. During cross-examination, the witness has submitted that delivery was made at Mayur Vihar at the residence of purchaser which was accepted by his family member.

3.13 PW-13 is Mr.Madan Lal. He has submitted to the effect that in the year 2006, he was working in the Transport Department, East Zone, Anand Vihar as LDC. Vide letter dated 20.03.2006 the information in respect to vehicle bearing no. DL-7C-8685, Matiz was provided to CBI. The letter alongwith photocopy of receipt no. AV-2586 was Ex.PW13/A collectively. The said CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 24 vehicle was registered in the name of Mrs.Savita Jakhmola and a sum of Rs.5015/- was charged as registration fee from Mrs.Savita Jakhmola.

3.14 PW-14 is Mr.Jatin Chugh. He has brought on record the receipt cum invoice memo No.131 dated 14.02.2004 Ex.PW14/A pertaining to M/s Flutes Music & Telecom vide which one mobile make Nokia was sold to accused Diwakar Sharma for a sum of Rs.3600/-.

3.15 PW-15 is Mr. Abnip Mishra. He has submitted to the effect that in the year 2006 he was working with Mehra Sons Jewellers as Accountant. He has further submitted to the effect that on 02.12.1997 vide cash memo nos.8176 & 7163 Ex.PW15/A and Ex.PW15/B, gold ornaments of a sum of Rs.24,777/- and Rs.8223/-, respectively were sold to Mrs.Savita Jakhmola. The payment for the said ornaments was made vide credit card number mentioned on cash memos Ex.PW15/A and Ex. PW15/B. During cross-examination, the witness has submitted that he has no personal knowledge regarding mode of payment but he has deposed after going through the documents shown to him. It has been further deposed that bills were issued on the same date but there was gap in the serial numbers, to which it was further voluntarily submitted that there were 20 counters running at the same point of time and 10-12 bill books were used to be given at the different counters, to avoid inconvenience to the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 25 customers.

3.16 PW-16 is Mr.Suresh Chand. He has submitted to the effect that in the year 2006, he was posted as Inspector, Head Post Office, Sarojini Nagar and vide letter dated 10.03.2006 Ex.PW16/A certain documents were handed over to CBI. The witness has further brought on record the application for opening of PPF account as Ex.PW16/A-1, computer generated statement of PPF account No.303988 in the name of Mrs.Savita Jakhmola as Ex.PW16/A-2 and certificate issued under Banker's Book of Evidence Act as Ex.PW16/A-3. The witness has further submitted that as per statement of account from 25.02.1999 to 31.3.2004, the balance has been shown as 1,71,430/-.

3.17 PW-17 is Mr.Jeevan Singh Verma from National Insurance Company. This witness has brought on record certified copy of policy no.2000/6170550 related to Maruti Esteem No.DL4CL 3185 registered in the name of Sh. Diwakar Sharma as Ex.PW17/A. The witness has further submitted that payment of a sum of Rs.18,593/- was received vide cheque no. 582346. The computer generated policy schedule, certificate of insurance and payment receipt certificate were brought on record by this witness as Ex.PW17/B to Ex.PW17/D. 3.18 PW-18 is Mr.Mehar Singh Gandhi, Registration Clerk from office of Registering Authority cum SDO Civil Gurgaon. The witness has brought on record the document Ex.PW18/A CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 26 showing that vehicle bearing no. HR 26 L 1536 and further submitted that the vehicle was registered in the name of Mrs.Savita Jakhmola on 30.5.2000 against the payment of Rs. 2150/- vide receipt no. 38196 dated 11.05.2000.

3.19 PW-19 is Mr.Rajesh T.Nair, Assistant Account from M/s Indian Spinal Injuries Centre, Vasant Kunj. He has brought on record the list of consolidated bills Ex.PW19/B, for the period 30.09.2002 to 1.11.2002 of a sum of Rs.2105/- related to Mrs.Savita Jakhmola regarding medical facilities.

3.20 PW-20 is Mr.Ravinder Singh Rawat. During examination of this witness the accused has admitted the fact of having paid the premium in the sum of Rs.10,502/- by Smt.Savita Jakhmola as insurance premium for the period 3.5.2000 to 2.5.2001 of vehicle No. HR 26L 1536.

3.21 PW-21 is Mr.Amit Mehra. He has submitted to the effect that in the year 2002 he was posted a Clerk with Standard Chartered Bank, Sansad Marg branch and was doing the liasioning. He has submitted that vide letter dated 11.05.2005 Ex.PW21/A, certain documents were handed over to CBI. The documents include voucher dated 28.10.2004 Ex.PW21/A-1 and 27.7.2004 Ex.PW21/A-2 for a sum of Rs.10,000/- each, the original account opening form alongwith specimen signature of Diwakar Sharma Ex.PW21/A-3, ID proof of Diwakar Sharma as Mark AX and statement of account Ex.PW21/A4. The witness CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 27 has further submitted to the effect that initial deposit of Rs.10,100/- was made at the time of opening of account and the balance available in the account was a sum of Rs.8399/-.

During cross-examination, the witness submitted that he has no personal knowledge of the matter and has never seen Diwakar Sharma.

3.22 PW-22 is Mr.Rajiv Sharma, working as Assistant Editor Films Division, Ministry of Information and Broadcasting. He has submitted to the effect that in May, 2006 CBI officials enquired from him about Kendriya Mantralay Employees Welfare Housing Society to which he told CBI that land measuring two acre costing around Rs.2.16 crore, situated at Sector 56 Gurgaon was allotted to the society by HUDA. The object of the society was to provide dwelling units to Central Government Employees. Mr.Laxman Singh Rathore, Mr. Raj Kumar, Mr.Diwakar Sharma and Mr.Rajesh Kukreti were the office bearers of the society. The witness rightly identified the accused Diwakar Sharma in the Court and submitted that accused was also member of the society and flat no. C 502 was allotted to him initially which was later on transferred in the name of his wife. Membership fee was Rs.1610/-. The witness submitted that vide receipts Ex.PW22/A to Ex.PW22/D Diwakar Sharma has made payment to the tune of a sum of Rs.30,000/, Rs.50,000/-, Rs.82,532/- and Rs.1610/-, respectively. The witness has further deposed to the effect that vide receipts Ex.PW22/E and Ex.PW22/F, payment of Rs.One CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 28 Lac and Rs.11.88 lac, respectively were made by Mrs.Savita wife of Diwakar Sharma.

3.23 PW-23 is Mr.P.K.Sinha. He has submitted to the effect that in the year 2005 he was posted as an Officer, Bank of Baroda, Defence Colony, New Delhi. On 02.02.2005 on the directions of his seniors he had joined CBI search team. The search was conducted at the house of Diwakar Sharma situated at Mayur Vihar. During search documents/bills etc. were recovered vide Ex.PW23/A bearing his signatures at point A. The witness has further brought on record two files Ex.PW23/B and Ex.PW23/C. 3.24 PW-24 is Mr.Pradeep Mudgil working as Manager, Oriental Bank of Commerce with SLPS Head Office at Rajindra Place, New Delhi. He has submitted to the effect that on 02.02.2005 on the directions of his seniors he joined CBI search team for search of two flats bearing No.197 E Pocket IV, Mayur Vihar and 8A Pocket A2, Mayur Vihar, Phase III. The witness further deposed to the effect that inventories entered into Ex.PW24/A were seized in his presence. Out of said two flats, one flat was locked and in other flat they met the staff of Diwakar Sharma.

3.25 PW-25 is Mr. R.K.Sharma, Junior Analyst with Ministry of Science and Technology, at Mehrauli Road, New Delhi. He has submitted to the effect that he was having flat No.A-103 in Kendriya Mantralay Welfare Housing Society, Sector 56, CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 29 Gurgao. Mr.Diwakar Sharma his colleague was also having flat no. C-502 in the same society. In the month of February, 2002, CBI came to their society in connection with investigation and he has joined the search proceedings. The flat of Diwakar Sharma was lying opened and unoccupied. The total area of the flat was 1650 square feet and approximate value was found to be Rs.15.0 lac as on allotment made in the year 2004. Mr.Diwakar Sharma was not present at the time of search. No article was lying in the flat. The witness has further brought on record the observation/search memo as Ex.PW25/A. 3.26 PW-26 is Mr.S.K.Seth. He has submitted to the effect that in the year 2005 he was posted as Manager, Union Bank of India, Nehru Place, New Delhi. On 03.02.2005 CBI team alongwith Diwakar Sharma came to their bank. Diwakar Sharma was having one locker in their branch. Diwakar Sharma was having one key of the locker. After making relevant entry, the locker was opened, out of which one cash memo receipt and one FDR was recovered. The witness has brought on record the locker operating memorandum and seizure memo as Ex.PW26/A and Ex.PW26/B, respectively. The witness has also rightly identified the receipt and FDR found in the said locker as Ex.PW26/C and Ex.PW26/D, respectively.

3.27 PW-27 is Mr.Shyam Lal Sagar. He has submitted to the effect that in the year 1996 he came in contact with Diwakar Sharma, working as Section Officer with Ministry of Science CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 30 and Technology. He met Diwakar Sharma at asking of a lady Ms.Dipika Sharma. Mr.Diwakar Sharma told him that he is also doing chit business on part time basis and he wanted him to help him by bringing clients, for which he refused. He rather suggested him to enter into group housing society venture in Noida as being Government servant, he could bring lot of government servants and could also bring some members from public sector enterprises like banks etc. He agreed to that and then in 1999, a society was formed with the name Government and Public Sector Employees Cooperative Housing Society Ltd., District Gautam Budh Nagar and Mr.Diwakar Sharma got his sister Mrs.Sudha Sharma appointed as Secretary of the society. Mr.Diwakar Sharma through his contacts, brought 50- 60 member from various department in the said society which consisted 108 members in all. Mrs. Sudha Sharma being member was given a flat having cost around Rs.10-11 lac. Though Mrs. Sudha Sharma was Secretary on papers, yet it was Mr.Diwakar Sharma who used to appear on her behalf in all meetings and used to take all decisions. He was virtually a Secretary.

Then one more society with the name of Jai Jagdambe was taken over from its earlier managements at plot no.25, Pocket C58, Sector 62, Noida in which Mr.Diwakar Sharma was elected as President and he was Secretary of the society. It was managed by Diwakar Sharma and its office at Munirka. He was having a flat bearing no.D 101 in said society and its tentative price was Rs.13.50 lac.

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                         31

In May, 2001, he and Diwakar Sharma had taken over management of one society known as Jan Vikas Cooperative Group Housing Society in Dwarka. Mr.Diwakar Sharma was President in said society and he was the Secretary. They continued to hold said position though the said society is under CBI scanner and chargesheet has been filed, wherein he was also shown as an accused besides Diwakar Sharma. Land was allotted to said society by DDA. Mr.Diwakar Sharma is having membership in the said society. Initially he has paid Rs.4.84 lac approximately. The cost of the proposed flat opted by Diwakar Sharma was Rs.18.0 lac. Being member he was given share certificate of Rs.100/- face value. Thereafter, one organization known as Government & Public Sector Employees Welfare Housing Organization was formed in the year 2000 or 2001. It purchased one land in auction from Noida Authority for Rs.5.0 crore approximately. He was President and Mr.Diwakar Sharma was Secretary of that society. It was also to construct multi storey apartments at plot no.D13, Sector 44, Noida and there were 75 members including him and Diwakar Sharma. Mr.Diwakar Sharma had opted for the top most option i.e. type C which was having value more than Rs.16.50 lac. The bank account of society was with IOB Punjabi Bagh and another account was opened with SBI, New Rajinder Nagar.

In Jai Jagdambe Cooperative Housing Society situated at Sector 62 Noida, one flat bearing No. D 101 was alloted to Diwakar Sharma. The cost of the said flat was Rs.15.93 lac. The witness has identified the possession letter dated 31.03.2003 of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 32 said flat no. D 101, as Ex.PW27/A. The witness has further identified the list of allottees Ex.PW27/B, wherein, the name of Diwakar Sharma appears at serial no.76. The witness further identified different receipts as Ex.PW27/C to Ex.PW27/G vide which sum of Rs.65,000/-, Rs.80,000/-, Rs.2.0 lac, Rs.4.70 lac and Rs.86,954/-, respectively were paid by Diwakar Sharma. The witness further submitted that Jan Vikas Cooperative Society is near completion and Diwakar Sharma is president of that Society and got membership in his name. He has not been allotted any flat in such society so far. Being member he has paid initial payment of Rs.4.84 lac and has made payment of Rs.30 lac as member of the society. The witness has brought on record the receipt dated 3.2.2004 as Ex.PW27/H vide which Diwakar Sharma has paid Rs.4,84,416/- as initial payment.

The witness has further submitted to the effect that in the society i.e. Government and Public Sector Employees Welfare Housing Organization, Diwakar Sharma has been alloted a flat bearing no. D 402 on 7.11.2004. The witness has further brought on record the admission fee receipt dated 30.04.2002 of a sum of Rs.1610/- as Ex.PW27/I and receipt dated 6.5.2002 of a sum of Rs.30,000/- as Ex.PW27/J. The witness has further submitted that in the society namely Government and Public Sector Employees Housing Society, Smt.Sudha Sharma sister of Diwakar Sharma was allotted a flat of cost of Rs.11.0 lac. The flat was sold by Smt.Sudha Sharma after all dues were cleared in respect to the flat. The witness was shown the file containing the name of persons to whom flats CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 33 were allotted and thereafter the witness submitted that name of Diwakar Sharma appear at serial number 9 and the flat which had been allotted to him was shown as flat no. D 402. The said list was brought on record as Ex.PW27/K. The witness was also shown share certificate no.175 dated 18.6.2004 of Jan Vikas Cooperative Group Housing Society to which he submitted that the value of the share was Rs.100/- and has brought this document on record as Ex.PW27/L. The witness has also brought on record the letter Ex.PW27/M written by Jan Vikas Cooperative Group Housing Society Ltd. to Diwakar Sharma showing the cost of the flat as Rs.18,52,000/-, the allotment letter of Government and Public Sector Employees Housing Society as Ex.PW71/A, Memorandum of Association of organization as Ex.PW76/A and rules and regulations of organization as Ex.PW27/N. The witness was cross-examined at length. However, the same would be discussed at the appropriate stage of appreciation of evidence.

3.28 PW-28 is Mr.R.P.Pal, Retired Manager from Oriental Bank of Commerce, Jhandewalan, Delhi. He has submitted to the effect that on 02.02.2005 on the basis of instructions received from head office, he has joined search proceedings with CBI team and one flat at Noida was searched in his presence. The with has further submitted to the effect that search memo Ex.PW28/A and inventory memo Ex. PW28/B were prepared in his presence which bear his signatures at point A. CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 34 3.29 PW-29 is Mr.Manish Sharma. He has submitted to the effect that he is working with M/s Competent Automobiles and Mr.Ashish was also working in the said company as Chartered Accountant between 2000-2008. Vide production memo Ex.PW29/A, Mr.Ashish has handed over documents Ex.PW29/B-1 to Ex. PW29/B-5 to CBI. As per Ex.PW29/B-5, one Diwakar Sharma has booked one Maruti 800 with them and as per invoice Ex.PW29/B3 its total price was Rs.2,02,697.71 and the buyer made payment of Rs.1,96,362/- by cheque and Rs.8636/- vide receipts Ex.PW29/B-2 and Ex. PW29/B-1 respectively.

3.30 PW-30 is Mr.C.L.Gupta. He has submitted to the effect that he is Managing Director of M/s C.Lal Chit Fund Pvt. Ltd. He had gone to CBI office where CBI officials enquired about Diwakar Sharma and the chit fund. He told CBI that Diwakar Sharma is having two chits of Rs.1.50 lac each and he used to contribute by making payment of Rs.5000/- per month. He was making regular payments with respect to both chits. The chits were having number CL XI/7 ticket no.27 and CL XI/8 ticket no.17. The first installment of the scheme/chit fund XI/17 was given to him in 1994 and he paid Rs.5000/- and I the second scheme Diwakar Sharma paid Rs.5000/- on 1.8.96. The witness had identified production memo dated 25.4.05 Ex.PW30/A vide which ledger of account no. XI-6, XI-7, XI-8, XI-9 and ledger statements Ex. PW30/A-1 & PW30/A-2 were handed over. The intimation card dt. 30.12.94 was brought on CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 35 record as Ex. PW30/B. Ten receipts qua payments received with respect to chit funds were brought on record as Ex. PW30/C. Other 16 receipts qua payments of chit fund were brought on record as Ex PW30/D. Ledger statement vide which payments to the tune of Rs.99,990/- and Rs.1,29,390/- made to Diwakar Sharma was brought on record as Ex. PW30/A1 and Ex.PW30/A2. The witness was cross-examined at length and the same would be discussed at the relevant time of appreciation of evidence.

3.31 PW-31 is Mr.Manoj Namboodri from M/s G.E.Countrywide. This witness has proved documents viz. Original lease agreement, original receipt cum promissory note, copy of invoice and loan account ledger as Ex. PW31/B1 to Ex. PW31/B5 in respect to the disbursement of loan to the accused to the tune of Rs.1,02,000/- on 10.1.1997 for purchase of Maruti 800 Std. Car. He has further submitted that the loan was supposed to be repaid in 60 EMIs of Rs.2836/- which was repaid by 2001.

3.32 PW32 is Mr.Krishan Lal Wadhwa, Administration Officer from LIC of India and has submitted to the effect that policy no. 120611524 was issued by Mayur Vihar branch in the name of Diwakar Sharma. It was a money back policy of Rs.1.0 lac and date of commencement was 28.9.96 with quarterly premium of Rs.2869/-. The policy is Ex.PW32/A. The witness further submitted that by the time CBI has recorded his statement, the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 36 policy holder had made payment of Rs.51,662/- towards the policy. The policy holder made request for adjustment and accordingly the policy was revived and the unpaid premium was adjusted from money back and balance amount of approximately Rs.4000/- was paid back to him towards survival benefit. An amount of Rs. 4807/- was paid to policy holder vide cheque dated 11.12.2001 which contained in letter Ex.PW32/B. 3.33 PW-33 is Mr. Dhan Singh. He is also witness from LIC and has deposed to the effect that money back policy no.110113688 of a sum of Rs.50,000/- for 20 years, in the name of Dilochand Jakhmola was issued with quarterly premium of Rs.832.50. The witness further submitted to the effect that it was commenced from 28.2.89 and after first quarterly premium, no premium was paid and therefore, it was declared lapsed. The ledger is Ex.PW33/A and seizure memo is Ex.PW33/B (D-37).

3.34 PW-34 is Mr.Mahesh Chand from LIC has brought on record the policy no. 120965586 Ex. PW34/A (D6/iv) issued in the name of Diwakar Sharma. The witness has further submitted that it was money back policy for assured sum of Rs.25,000/-, commenced on 15.3.99 with yearly premium of Rs.2883/-. As per letter Ex.PW34/B (D123) sent by Branch Manager to CBI, the policy holder has paid Rs.18261/- towards premium and was paid survival benefits as well.

         3.35       PW-35 is Mr.J.P.Rout, Caretaker of Jagdamba Apartment,

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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Sector 62, Noida. He has submitted to the effect that he has a flat no. D-101 in the said apartment. In the year 2004 he has joined CBI to search the flat. Ex. PW28/A is the search list and inventory of the same is Ex.PW28/B. But he does not remember what articles were recovered during the search but the same are mentioned in the list which he had signed.

3.36 PW-36 Mr.Surender Kumar Chadda is the witness from LIC. He has submitted to the effect that Sh.P.J.Tikko, Branch Manager at Mayur Vihar during the year 2005 gave him a letter dated 16.03.2005 relating to some policy issued to Diwakar Sharma to hand over the same to CBI. The policy was for a sum of Rs.25,000/- and the quarterly premium of the same was Rs.341/- and the policy was commenced sometime in March 1999.

3.37 PW-37 is Mr.Gopal Krishan. He has submitted to the effect that he joined M/s Golden Trading Pvt. Ltd. In the year 1985 as Typist -clerk. The said company was engaged in chit fund business. Later the name of the company was changed to M/s BLA Chit Fund Pvt. Ltd.. On 01.04.05, as per seizure memo Ex.PW37/A he has handed over subscriber ledger of account no. GB 77/1 to 30, GB 78/1 to GB 79/30 containing pages from 1 to 103 vide seizure memo dated 01.04.2005 pertaining to chit no. GB 77/17. The scheme was valued for Rs.30,000/- and as per scheme the subscriber was required to deposit Rs.1000/- per month commenced from 08.6.1994 and it was closed in CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 38 November, 1996. As per record, Diwakar Sharma was paid sum of Rs.26,700/- at the end of the scheme by cheque no.314839 dated 15.04.1996.

3.38 PW-38 is Sh.Jagdish Salwan, Manager CITI Bank, Connaught Place, New Delhi. The witness has submitted to the effect that vide letter Ex.PW38/A dated 22.03.2005, the information of loan amount and credit card of Diwakar Sharma was handed over to CBI. As per record, Diwakar Sharma applied for purchase of Maruti Esteem, the estimated price of which was disclosed to be Rs.5,51,868/- and Diwakar Sharma was sanctioned a loan of Rs.1,82,052/-. The loan amount was disbursed through a promissory note. As per record, the loan account was closed on 09.11.2001 and total sum of Rs.1,98,003/- were paid as per statement of account Ex. PW38/B. The witness has further submitted that as per credit card No.5425569134113000, the total payment received was Rs.34,216.15 for the period 16.11.94 to 22.11.99. Further, as per record on credit card no.4568229123682008, the total payment received was Rs.38,420/- for the period 17.07.95 to 22.06.99. Both cards were in the name of Diwakar Sharma.

During cross-examination, the witness submitted it to be correct that there is no document on record which could indicate the amount received from the above stated period against the credit card. On this score, the witness volunteered submitted that he has taken the figure from the record and then added and calculated the same.

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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         3.39       PW-39 is Mr.Surender Kumar Aggarwal. He has submitted

that he was posted as Senior Manager in Indian Overseas Bank, Rohini Branch during April 2005 to April, 2008. He has further submitted to the effect that vide letter dated 04.05.2005 (D-66) he has forwarded certain documents Ex.PW39/A-1 to Ex. PW39/A-6 to CBI. The said letter contains the certified copy of the statement of account no. 884, voucher for receipt of Rs.5000/- dated 25.6.2002, specimen signature and account opening form. The saving bank account stands in the name of Master Ishaan by father and natural guardian Sh.Diwakar Sharma. The account was opened on 25.06.2002 by cash deposit of Rs.5000/-. As per record the account was introduced by one Shri S.N.Sagar, Ex-staff of the bank. The statement of account is Ex.PW39/A-2. The total balance in the account is Rs.5487/-.

3.40 PW-40 is Mr.Laxmi Narain Gupta from State Bank of India and has submitted to the effect that since 2004 he was posted at NCERT Branch as Dy.Manager. On 23.12.2005, pursuant to production memo dated 23.12.2005 Ex.PW40/A, he has forwarded account opening form Ex.PW40/A1, statement of account of Dilochan Sharma bearing account no.7289 Ex.PW40/A-2, account opening form of joint account of Savita Sharma and Dilochan Sharma Ex.PW40/A-3 and its statement of account Ex.PW40/A-4. As per record Sh.Dilochan Sharma opened an account on 04.02.1993 and as per record the balance as on 31.12.1993 was Rs.800/- and the balance as on 31.01.2005 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 40 was Rs.1082.34. The joint account of Sh.Dilochan Sharma and Savita Sharma was opened on 12.02.1994 and the first deposit in the account was of Rs.5000/-. As per record, the balance as on 31.01.2005 was Rs.11244.07.

During cross-examination, the witness has submitted that documents produced by him have not been certified under the Banker's Book of Evidence Act.

3.41 PW-41 is Mr.Sri Pal Singh, Head Clerk from Ashok Vihar Authority and has submitted to the effect that on 23.02.2005, in pursuant to production memo he has handed over the certified copy of particular of vehicle no.DEB 84 in the name of Diwakar Sharma Ex.PW41/A. The particular of vehicle are Ex.PW41/B. 3.42 PW-42 is Mr.Dharm Pal Singh. He has submitted that in the year 2006, he was posted as Senior Manager, Bank of India, Mayur Vihar branch. He has further submitted to the effect that in on 13.01.2006, in pursuant of production memo Ex.PW42/A he has handed certain documents to CBI. The Ex.PW42/B is the forwarding letter. The witness further submitted that he has handed over original account opening form of Diwakar Sharma of saving account no.10198 dated 05.03.1994. He has also handed over statement of account of same w.e.f. 14.01.1996 to 30.06.1996 Ex.PW42/C. The statement of account of account bearing no.14354 of Mrs.Anju Jakhmola is Ex.PW42/D. 3.43 PW-43 is Mr.Murudi Krishna Murti. He has submitted to the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 41 effect that in the year 2005 he was working as Sr.Manager, Engineering Projects India Ltd. He was treasurer of Govt. and Public Sector Employees Cooperative Group Society Ltd.. He was also treasurer of Jan Vikas Cooperative Group Housing Society and Mr.Diwakar Sharma was the President of this society. He was secretary of Public Sector Employees Cooperative Group Society Ltd. and Govt. and Public Sector Employees Cooperative Housing Society Ltd.. The Govt. and Public Sector Employees Cooperative Housing Society Ltd. initially did a housing project in Sector 62 and did another project in Sector 50. Mr.Diwakar Sharma was not holding any flat/plot in Govt. and Public Sector Employees Cooperative Housing Society Ltd. and in Public Sector Employees Cooperative Housing Society Ltd. nor he was any office bearer in these societies. He has handed over the list of members of Govt. and Public Sector Employees Cooperative Housing Society Ltd. as Ex.PW43/B (D-112) and another list of member of Public Sector Employees Cooperative Housing Society Ltd. Ex.PW43/C to CBI. The list of members is collectively Ex.PW43/D (D-113). During cross-examination, the witness submitted that no list of office bearer is available on record.

3.44 PW-44 is Mr.Milan Gupta working as Finance Manager at Uppal's Orchid National Highway, 8, Near IGI Airport, New Delhi, in February 2005. He has further submitted to the effect that in pursuant to seizure memo dated 22.02.2005 Ex.PW44/A, certain documents were handed over to CBI viz. a letter written CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 42 by him to Mr.Satinder Bisht Ex.PW44/B viz. membership form having no.160200 dated 25.02.2002 of TLC of Sh.Diwakar Sharma for Rs.5300/- Ex.PW44/C, three cash receipts bearing no. 768, 9651 and 9659 Ex.PW44/D1 to D-3 respectively, guest folio no.23430 with supporting bills amounting to Rs.4,702.01 paid by Diwakar Sharma for room and food charges Ex.PW44/E-1 to E-8 collectively, cash receipt no.10698 dated 8.1.2005 of Uppal's Orchid vide which Diwakar Sharma has paid Rs.8000/- as room and food advance Ex.PW44/F, cash receipt no.1321 dated 9.1.2005 of Uppal's Orchid vide which Diwakar Sharma has paid Rs.1177/- Ex.PW44/G, guest folio no.26055 with supporting bills amounting to Rs.6822.96 paid by Diwakar Sharma Ex.PW44/H-1 to H-8. The witness further submitted that Diwakar Sharma was member of TLC, who was under Secretary, Ministry of Science and Technology. Mr.Diwakar Sharma had paid a sum of Rs.5300/- towards membership on 25.02.2004 and his membership number was 160200/-. As per record, Diwakar Sharma has deposited Rs.3000/- as hotel charges against guest folio no.23430. On 31.10.2004, Diwakar Sharma made balance payment of Rs.1702.01 in cash. Mr.Diwakar Sharma arrived in the hotel on 30.10.2004 and departed on 31.10.2004. On 08.01.2005 Diwakar Sharma paid a sum of Rs.8000/- by cash as advance for the room charges and accordingly guest folio no.26055 was prepared. He remained in hotel from 8.1.2005 to 9.1.2005. According to record, a bill of Rs.6822.96 was prepared and an amount of Rs.1177.04 was refunded to him in cash. The CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 43 membership of Diwakar Sharma was valid upto 25.02.2005.

3.45 PW-45 is Mr.Deepak Dhawan. He has submitted that in February, 2005 he was working as Operations Executive in Hotel Inter Continental, New Delhi. As operations executive his duty was to look after the business and selling of cards and also to look after the accounts relating work. On 24.02.2005, pursuant to seizure memo Ex.PW45/A he has handed over letter dated 21.2.2005 Ex.PW45/B of Sh.Arun Kumar, Financial Controller Inter Continental The Grand, Barakhamba Road. He has also handed over cash receipt no. 037329 dated 22.11.2002 vide which Diwakar Sharma has paid a sum of Rs.4500/- and the same is Ex.PW45/C. The witness has also brought on record receipt dated 23.12.2003 Ex.PW45/D vide which Diwakar Sharma has paid an amount of Rs.5000/-. The witness has further submitted that Diwakar Sharma took membership but on 22.11.2002 of club advantage and was given membership no.CA 212938 and he made payment of Rs.4500/- against receipt no.037329. Mr.Diwakar Sharma renewed his membership on 23.12.2003 and the same was valid upto January 2005 for which he made payment of Rs.5000/- vide receipt No.043870.

3.46 PW-46 is Mr.Ashim Kumar Chattopadhyay has submitted that in December 2006 he was working as Assistant in the department of Science and Technology. In pursuant of letter dated 19.05.2005 Ex.PW46/A, service book Ex.PW46/B, personal file no.51-A Ex.PW46/C, another personal file no.A-

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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              19015      Ex.PW46/D,    annual       property         return        Ex.PW46/E

pertaining to Diwakar Sharma were handed over to CBI. The witness further submitted that vide letter dated 27.7.2005 Ex.PW46/F-1 to F-7 were handed over to CBI. As per service record, net salary drawn by him for the period January 1994 to August 2004 was to be Rs.10,94,169/-. The break up of the figure from January 1994 to February 1996 was Rs.1,34,089/- and for the period 96-97 to August 2004 was Rs.9,60,080/-.

During cross-examination, the witness has submitted that he is not aware if Diwakar Sharma performed election duty in Kashmir in 1996. He is not aware of the fact what was the amount of ex-gratia, honorarium or extra benefits paid to him for such duty at Kashmir. Drawn statement in respect of Diwakar Sharma is available from March 1996 to August 2004. It was suggested to the witness that complete income of the accused has not been shown in the record, but the suggestion was denied.

3.47 PW-47 is Mr.Rai Singh who has submitted that in the month of April, 2005 he was working as Peon in Sarai Kale Khan Authority. The witness has further submitted that vehicle no.DL-6CB-2991 was registered with Sarai Kale Khan Authority on 08.01.1997, in the name of Diwakar Sharma and the record in this respect is Ex.PW47/B1 to B-15. The vehicle was hypothecated to Maruti Countrywide Auto Finance and as per record, RTO had charged Rs.2100/- towards registration fee, road tax and hypothecation charges and the same is stated in CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 45 receipt no.2872 dated 08.01.1997.

3.48 PW48 is Mr.Anupam Singh. He has submitted to the effect that in May, 2005 he was posted as Manager UTI Bank, Krishna Nagar. On 13.05.2005, pursuant to production memo Ex.PW48/A (D-49) he has handed over certain documents to CBI. The witness has further submitted that in pursuant to this production memo he has handed over original saving account opening form of Diwakar Sharma, Smt.Savita Jakhmola, Harish Kumar, Makheshwari Devi and M/s Tanuj Ishan Construction Pvt. Ltd. which are Ex.PW48/B to Ex.PW48/F, respectively. Vide Ex.PW48/B the account of Diwakar Sharma was opened on 08.03.2004 with an initial deposit of Rs.1000/-. As per Ex.PW48/C the account of Smt.Savita Jakhmola was opened on 03.11.2004 with initial amount of Rs.1,00,000/-. The account Ex.PW48/D was opened on 27.12.2004 with initial deposit of Rs.6000/-. The account Ex.PW48/E was opened on 08.09.2004 with initial deposit of Rs.10,000/-.

3.49 PW-49 is Mr. R.K.Singh from M/s Bharti Televentures Limited. He has submitted to the effect that statement of account of mobile numbers 9818286596 in the name of Diwakar Sharma and 9810877077 in the name of Sunita Dondhiyal is Ex.PW49/B (colly.6 pages). As per record, Diwakar Sharma has paid a sum of Rs.12,713.15 for services for the period 20.12.2002 till 31.01.2005. During cross-examination, the witness has submitted that there is no document relating to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 46 identification of Diwakar Sharma.

3.50 PW-50 is Mr. Gyanendra Kumar Jain, Proprietor of M/s Dolphin Travel Service, Vikas Marg, Laxmi Nagar, Delhi-92. The witness has submitted to the effect that Diwakar Sharma has purchased certain air tickets from his office i.e. on 04.11.2004 for a sum of Rs.35,411/- vide invoice Ex.PW50/B. Vide invoice no.5627 dated 13.11.2004, the agency had booked the hotel Ramanant Shree at Bangalore/Mysore for Mr.Sharma and they have charged for a sum of Rs.4633/-. The invoice is Ex.PW50/D. Vide invoice no.712 Ex.PW50/E of a sum of Rs.8848/-, Diwakar Sharma had approached them on 18.11.2004 and booked on ticked for Delhi-Ahmedabad and three tickets for Allahabad-Delhi being the return ticket. The invoice no.5687 for a sum of Rs.8530/- Ex.PW50/F indicates purchase of tickets from Delhi-Lucknow-Delhi in the name of Diwakar Sharma. Vide inovice no.6059 for a sum of Rs.8426/-, D Sharma purchased air tickets from Lucknow-Delhi for two persons, in cash. The same is Ex.PW50/G. Vide invoice no.6077 for an amount of Rs.4212/- dated 10.01.2005 indicates the purchase of air ticket from Delhi-Lucknow and the same is Ex.PW50/H. Invoice no.6078 for a sum of Rs.4439/-relates to purchase of air ticket for Lucknow-Delhi in the name of D.Sharma and same is Ex.PW50/J. During cross-examination, the witness has submitted that witness used to make payments in cash and receipt must be with the accused. All the payments were made by accused Diwakar CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 47 Sharma himself. There is no requirement of any written request being given by customer for issuance of tickets and therefore, there is no document on record being signature of Diwakar Sharma. He admitted it to be correct that none of the documents address, telephone number and other particulars of Diwakar Sharma are written.

3.51 PW-51 is Mr.Deepak, Nodal Officer from Vodafone Mobile Services Limited. The witness has submitted that on 17.03.2005 certain documents were forwarded to CBI by Mr.Gulshan Arora, Nodal Officer vide Ex.PW51/A. The witness further submitted that documents related to three mobile numbers. The documents relating to mobile number 9811017195 are Ex.PW51/B (8 pages). The documents relating to second mobile number 9811317195 are Ex.PW51/C (6 pages). The documents relating to third mobile number 9811424024 are Ex.PW51/D (5 pages). The mobile number 9811017195 might have been activated on 23.10.1996 in the name of M/s Tanuj Ishan Construction Pvt. Ltd. and relates to Diwakar Sharma. The charges paid was Rs.4320/-. The witness further submitted that as per record, the amount paid till 31.1.2005 was Rs.3,77,319.17 towards services. As matter of record, the company has received total sum of Rs.3,81,639/- as activation charges etc. for different monthly bills till 31.01.2005 from Diwakar Sharma.

The second mobile number 9811317195 might have been activated on 26.02.2003 ad the stood in the name of Diwakar Sharma. A sum of Rs. 3965/- was paid by subscriber towards CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 48 security and other activation charges. As matter of record, the company has received Rs.11,855/- till 29.03.2004 from Diwakar Sharma.

Third mobile number 9811424024 is in the name of Diwakar Sharma and might have been activated on 31.08.2001 and as per record, an amount of Rs.2760/- was paid towards security and other charges. The company has received a total sum of Rs.60,326/- from Diwakar Sharma till 31.01.2005.

During cross-examination the witness has submitted that he cannot tell the payment of the bills were made either by cheque or cash, nor he can tell as to who has made the payment.

3.52 PW-52 is Mr.Hari Devi from American Express Bank Ltd.

The witness has submitted to the effect that on 29.03.2005 vide letter Ex.PW52/A, he has forwarded certain documents to CBI. The documents forwarded by him are Ex.52/B (36 pages). The documents pertains to American Express card no. 3769 307624 91003 and subscriber of the same was Diwakar Sharma.

3.53 PW-53 is Mr.Jitender Mishra. This witness is from M/s Reliance Infocom Ltd. and has brought on record the details of telephone number 011-31065016 (09312265016) & 011- 30936924. The application no.2015339332 relates to Diwakar Sharma. The documents indicates payment of Rs.3350/- towards activation charges. From the record it appears that application was submitted by one dealer M/s Kalra Book Depot.

As per record, telephone no.011-31065016 was allotted on CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 49 the application dated 19.05.2003 and it must have been activated in a day or two thereafter.

The application form pertaining to telephone number 011- 30936924 in the name of Kendriya Niketan Welfare Association through Diwakar Sharma dated 23.12.2003 through agent Kalra Book Depot. An amount of Rs.2000/- was paid as activation charges. He cannot tell how much amount was paid by Diwakar Sharma against the user charges.

3.54 PW-54 is Mr.M.N.Vijayan, Nodal Officer from Tata Teleservices Limited. The witness has submitted to the effect that on 21.03.2005 vide letter Ex.PW54/A certain documents were forwarded to CBI. The documents are Ex.PW54/B (5 pages). The documents relate to telephone number 56038100 in the name of Diwakar Sharma. As per record, telephone number was issued in his name on 12.04.2003 against payment of subscription charges of rs.525/-, in cash, towards activation charges and receipt in this regard is in the name of Diwakar Sharma. As per record this telephone has not been deactivated and a sum of Rs.7990/- was the expenditure incurred towards this connection, however, this amount was not paid to company.

3.55 PW-55 is Mr.Jitenderveer Arora, who has submitted to the effect that in the month of December 2005 he was working as Senior Manager in Union Bank of India, Nehru Place, New Delhi. On 22.12.2005, in pursuance of production memo Ex.PW55/A certain documents Ex.PW55/B (16 pages) were CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 50 produced before the CBI. The witness has further deposed to the effect that one saving account number 9372 was opened on 08/08/1995 with initial deposit of Rs.1000/- in the name of Diwakar Sharma. As per record, as on 31.01.2005 the balance in the said account was 'nil'.

3.56 PW-56 is Mr.Deepak Dhingra. He has deposed to the effect that in January, 2006 he was working as Manager, UTI Bank, Krishna Nagar Branch and on 16.01.2006 as per production memo Ex.PW56/A he has forwarded certain documents Ex.PW56/B (17 pages) to CBI. The record relates to account of Diwakar Sharma, Savita Jakhmola, Harish Kumar, Makeshwari Devi and M/s Tanuj Ishan Construction Pvt. Ltd..

3.57 PW-57 is Mr.Umesh Kumar, Development Officer from New India Assurance Company. The witness has submitted to the effect that on 28.03.2005, in pursuant to production cum seizure memo Ex.PW57/A certain documents were handed over to CBI. The documents were Ex.PW57/B which relates to insurance of vehicle no.DL-6CB-2991 belonging to Diwakar Sharma for the period 21.8.202 to 20.8.03 and 28.04.204 to 27.04.2005 and he has paid Rs.630/- and Rs.648/- to the insurance company. During cross-examination the witness has submitted that payment was made towards yearly renewal of insurance policy of the said car.

         3.58       PW-58 is Mr.Tanay Gupta, partner of M/s Gupta Service

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CBI vs .Diwakar Sharma                           Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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Station, Moti Bagh, South, New Delhi. He has submitted to the effect that on 12.04.2006 certain documents were handed over to CBI in view of production memo Ex.PW58/A. It contains bill books Ex.PW58/B to Ex.PW58/D. The documents indicates that the payments have been made in respect to the vehicle No.DL 4CN 3185. Further, from record a cheque no.047151 for a sum of Rs.12,500/- was paid but he does not remember the name of the person who signed the cheque. During cross-examination, the witness submitted that he does not know why the car had come to him as his Manager handled it but it appear from the bill that it came for service. It was not in his knowledge that Diwakar Sharma has or has not claimed this amount from insurance company. He is not sure whether the car was personally delivered by Diwakar Sharma or was collected from his home.

3.59 PW-59 is Mr.Deepak Kumar Verma from LIC. He has submitted to the effect that on 21.03.2005 vide letter Ex.PW59/A Shri Rakesh Pandita, Branch Manager has handed over the documents pertaining to policy number 113517344 of Smt.Savita Jakhmola to CBI. The documents are Ex.PW59/B (11 pages). The policy was endowment plan for 10 years and the assured sum was Rs.1.0 lac with yearly premium of Rs.10,546/-.

3.60 PW-60 is Mr.Ashok Kumar. He has submitted to the effect that his father has took one LIG flat in 1979 HUDCO scheme and deposited Rs.1500/- for registration. His father expired in CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 52 October 1980 and since they were not able to pay remaining amount, they sold the flat to Diwakar Sharma for a sum of Rs.30,000/-. The receipt Ex.PW60/A was executed by his brother Sh.K.L.Vaish and his mother. His mother expired in July, 1997. The flat was costing Rs.2,76,200/- and the file related to flat is Ex.PW60/B (collectively).

During cross-examination, the witness submitted that as per receipt Ex.PW60/A they have received only Rs.5000/- from Diwakar Sharma. The witness further volunteered that total transaction was for Rs.30,000/- and remaining amount of Rs.25,000/- was paid in the year 2008 when the GPA was executed.

3.61 PW-61 is Mr.Rajesh Sethi. This witness has testified to the effect that he worked with Samsung Digital Plaza, Manoj Electronics as a salesman and as per bill dated 31.12.2003 Ex.PW61/A, Diwakar Sharma had purchased washing machine of Samsung make for Rs.14,000/-. During cross-examination the witness has submitted that there is a column customer signature in this bill. There is no signature in the column customer signature. He does not know Diwakar Sharma.

3.62 PW-62 is Prakash Chandra. He has submitted to the effect that in May,2005 he was working as Sr.Telecom Operating Assistant (General), Bikaji Cama Place. On 13.05.2005 he has produced certain documents to CBI in pursuant to production memo Ex.PW62/A. He has handed over files in connection with CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 53 telephone no.6100168 Ex.PW62/B and file in connection with telephone no.6165165 Ex.PW62/C to CBI. The telephone no. 6100168 was installed at the house No.251, Sector 12, R.K.Puram, New Delhi in the name of Smt.Savita Jakhmola on 13.4.2000. Smt.Savita Jakhmola made application for installation of phone at the said address and in this regard payment of Rs.3000/- was made vide cheque. Mrs.Savita Jakhmola was allotted telephone No.6100168 on the same day and as per bill submitted, the total amount received from the customer might be Rs.40,579/- as per record. In regard to telephone no. 6165165, the witness has submitted that it was installed at house No.251, Sector 12, R.K.Puram in the name of Dr.Ashish Nathani on 06.02.1998 on the application submitted by Dr.Ashish Nathani. As per record, payment of Rs.3000/- was made vide DD No.002173 issued from Vysya Cooperative Bank, Patparganj, Delhi. The total payment for a sum of Rs.52,450/- was received from the customer for service rendered by the MTNL.

During cross-examination the witness submitted that bill for telephone number 6100168 was slightly more than normal. In respect to telephone number 6165165 in the name of Dr.Ashish Nathani, the witness has submitted that it was general telephone and was not applied under the quota fixed for medical practitioners. The proof of residence was not given by Dr.Ashish Nathani while applying for phone. They used to take proof of residence during the period in question for booking a telephone.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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         3.63       PW-63 is Mr.Avtar Singh. He has submitted to the effect

that in June 2005 he was partner of M/s Kuhar Taxi Service, DDA Local Shopping Centre, Pocket I, Mayur Vihar Phase I, Delhi. He knew Diwakar Sharma who was the regular customer of their firm. So far he remember his brother Surmukh Singh rendered services to Diwakar Sharma for taxi from Delhi to Jaipur and Ajmer and accepted cash payment of Rs.5215/-. The bill dated 01.05.2004 indicating receipt of payment for Rs.500/- is Ex.PW63/A. Another bill no. 8911 dated 10.07.2004 for services of taxi amounting to Rs.7476/- is Ex.PW63/B. During cross-examination the witness submitted that he cannot say if Diwakar Sharma has hired car except on above two occasions.

The witness was recalled on application under Section 311 Cr.P.C. moved by the CBI and during his re-examination, the witness has submitted that letter dated 24.06.2005 Ex.PW64/C is in handwriting of his brother. Vide this letter photocopy of bill of Rs.5215/- Mark PW63/A was sent to CBI.

3.64 PW-64 is Abhay Kumar Jain. He has submitted to the effect that he was officiating as Sub Divisional Officer I, Pashimanchal Vidyut Vitran Nigam, Noida in the month of April, 2004. Vide letter dated 21.4.2006, Ex. PW64/A certain details were furnished to CBI. The statement of account relates to payment of electricity charges qua the meter no. D99421 installed on 21.7.2004 in the house of Diwakar Sharma at house no. D 101, C58/25, Sector 62, Noida. The witness further CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 55 submitted that UP Power Corporation of Noida received a sum of Rs.1718/-, 8900/- and 10,618/- on 21.7.2004. The bill raised for the month of November and December qua said meter was Rs.1478/- and 390/-, respectively. During cross-examination the witness submitted that he has merely delivered letter Ex. PW64/A to CBI. He has no personal knowledge about the case. The corresponding bill of entries made in the letter are not available in record.

3.65 PW-65 Mr.Sunil Dutt is the witness from LIC. He has deposed to the effect that the policy no.330774400 was issued in the name of Savita Jakhmola and the policy was commenced on 28.12.2002. The premium thereon was Rs.10,474/- on the yearly basis and total sum of Rs.31,422/- were paid in this endowment policy. During cross-examination the witness submitted that as per record Savita Jakhmola has paid only Rs.10,474/- against the policy. He cannot say whether subsequent to this Savita Jakhmola made any payment.

3.66 PW-66 is Mr. K.K.Sharma. He has submitted to the effect that in June 2007 he was Desk Officer in the department of Personnel and Training, Govt. of India and was authorized to authenticate the order passed by President of India under the Govt. of India (Order and other Instruments) Rules, 1958 and allocation of business Rules as notified under article 77 of Constitution of India. The witness further submitted that he had power to authenticate the orders related to sanction granted by CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 56 President of India. It has been further deposed by the witness that on 11.6.2007, as Desk Officer, duly authenticated the sanction order granted by President of India for prosecution of Diwakar Sharma, Under Secretary Govt. of India, Department of Science and Technology Bhawan, Mehrauli Road. The sanction order is Ex.PW66/A bears his signatures at point A on each page. The documents placed before President of India were case diary and documents collected by IO during investigation including statement of witnesses recorded by IO under Section 161 Cr.P.C.. As per sanction order, the President of India took into account the said material placed before him and being satisfied granted sanction for the prosecution of Diwakar Sharma.

During cross-examination, the witness submitted to the effect that so far he remembered the case was forwarded by department of Science and Technology but he does not remember what remarks were given by department on proposal. He had gone through the record placed by CBI which, prima facie, indicates the case of disproportionate assets against the accused but beside the record he did not have any knowledge against accused. As per record the check period was from 1994 to 2005. He had no knowledge if Diwakar Sharma had not attended the office from the year 1999 to 2005. he had no knowledge that Diwakar Sharma was not paid salary for this period. As per record the accused was given opportunity to explain his case, but he could not explain his case. He had properly analysed the case and did not grant the sanction CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 57 mechanically. He cannot say if Diwakar Sahrma was not given proper opportunity by CBI to explain his expenditure. He did not know if before giving explanation, the accused has written three letters to provide him the relevant documents. He was not able to locate the letters on record written by the accused to CBI demanding the documents in order to enable him to furnish the explanation. He had not found on record any letter dated 11.8.06 written by CBI to accused. It was suggested to the witness that sanction has been granted mechanically and the accused has been prejudiced on this account, but the suggestion was denied. It was further suggested to the witness that on account of non supplying of documents by CBI to accused, the accused could not furnish the explanation which resulted into the filing of wrong chargsheet against the accused.

3.67 PW 67 is Smt.Sarla Devi. She is the witness in whose name the government flat no. 251, Type II, Sector 12 was allotted. She deposed to the effect that she has rented out the said premises to Diwakar Sharma, husband of Savita Jakhmola at monthly rent of Rs.2000/- which was enhanced to Rs.2500/- per month. She got the rent till 2004 or 2005. The electricity and water charges were used to borne by the tenant himself. Sh.R.S.Bissa was earlier allottee of the flat in whose name electricity and water bills used to come and Diwakar Sharma used to make payment of these bills. Subsequently, water and electricity bill started to come in her name. The file Ex.PW67/A (D-2) contains the documents relating to allotment of flat. During cross-

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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examination the witness submitted that in the flat, brother of Savita Jakhmola also used to reside. Diwakar Sharma paid the electricity and water charges only for the period he resided in the flat.

3.68 PW68 is Dr.Ashish Naithani. He submitted to the effect that he is Doctor by profession and did his BAMS from Tibbia College, Karol Bagh in the year 1994. The telephone no. 6165165 was given to him by telecom department and it was installed at flat no. 261, sector 12, R.K.Puram, New Delhi. The telephone was given to him because Doctor by profession were immediately entitled to connection. When the telephone was allotted to him Diwakar Sharma and Smt. Jakhmola were occupant of the flat with him. The form C No.807094 Ex.PW68/A was filled by him in his own handwriting, bears his signature at point A. Ex.PW68/B is the duplicate application in his handwriting accompanying the said form. He has paid a sum of Rs.3000/- vide DD no. 002173of Vysya Cooperative Bank. The telephone was disconnected in the month of April, 2003. He does not remember if Diwakar Sharma reimbursed the payment of Rs.3000/- to him. He had not taken membership of any society run by Sh.Diwakar Sharma. He does not remember if he took any loan from Diwakar Sharma or Smt. Savita Jakhmola. He maintains saving bank account in Bank of India, Vikas Marg, opened in 2001 and also had another account with Vysya Bank opened in the year 1994-95.

During cross-examination the witness submitted that his CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 59 father retired as PGT Physics from Govt. School. His paternal grandfather was contractor and maternal grandfather was Advocate. His father was alloted DDA flat in 70's in Kalkaji, New Delhi and the said flat has already been disposed of around the year 1994-95. The flat was sold for sum of Rs.12.0 lac approx. The payment was partly made in cash and partly by way of cheque. He is not sure if copy of documents of said flat is available with his father or not. He got share of Rs.2.0 lac from his father for open the clinic. As per his knowledge the money was distributed equally among all siblings. His father gave a loan of Rs.2.65 lac to accused in the year 2000 which was given by way of cheque. The loan amount was not returned by the accused by the year 2005. Apart from the said loan he had no knowledge if any other loan was extended by his father to the accused. The witness further submitted that Ishan Jakhmola is his nephew born in the year 1992 and on his Mundan Ceremony he has given cash gift of Rs.5100/- to Ishan. He used to give Rs.501 to Rs.1000/- on every birthday of Ishan. He has given approximately Rs.11,000/- to Ishan during 1994 to 2004 on his birthdays. The 10Th Birthday of Ishan was celebrated in big way in the year 2002 on which he has given Rs.11,000/- to Ishan. On occasion of Raksha Bandhan and Bhaiya Duj he used to Rs.501 to Rs.1000/- and total amount given by him would be around Rs.7000-8000/-. He has given Rs.11,000/- to his sister and brother-in-law on their 10th wedding anniversary. The witness further submitted that at the time of Grah Pravesh ceremony at Jagdamba Apartment in Noida in 2003 or 2004 he has given CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 60 cash gift of Rs.21,000/-. He used to live in the same house with his sister and brother-in-law at R.K.Puram. The witness has further submitted that it might be correct that total expenses of telephone in question might have been approximately Rs.60,000/-. Most of the time the bill of telephone in question was paid by him in cash as he used the same. He stayed at R.K.Puram between 1997 to 2005. The expenses pertaining to rent, electricity and water charges used to shared in the ratio of 50:50 between him and his sister.

3.69 PW-69 is Mr.Dharam Pal Tanwar, working as Assistant Administrative Officer from New India Assurance Company, Pashchim Marg, Vasant Vihar, New Delhi. He has submitted to the effect that on 4.5.2005 in pursuance of production memo Ex.PW69/A (D46) he has handed over certified copy of two policies in the name of Diwakar Sharma. The certified copy of policy no. 312400/31/01/03635 is Ex.PW69/B1 to B4. He also handed over certified copy of policy no. 312400/31/03/04144 which is Ex.PW69/C1 to C4. The vehicle no. DL 4CN 3185 is in the name of Diwakar Sharma and the same was insured in his branch on 20.12.01. The amount charged was 18,805 which was received by way of cheque 430508 dated 20.12.2001 drawn on Bank of India, Mayur Vihar. In the year 2004 the same vehicle was again insured in his branch on 15.03.2004 and the insurance amount paid toward the same was Rs.10,359/-.

         3.70       PW-70 is Mr.Anil Wadhawan working as Assistant in office

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of Directorate of Transport, Govt. of NCT of Delhi, Janakpuri in the month of January, 2005. The witness submitted to the effect that on 23.2.2005, in pursuant to seizure memo Ex.PW70/A1 to PW70/A12 (D20) CBI seized certain documents from him. The witness has stated to the effect that vehicle no. DL 4CN3185 was registered on 15.12.2000 in the name of Diwakar Sharma who has paid Rs.3,965 and registration charges. As per sale certificate the vehicle was sold by M/s Bhasin Motors. During cross-examination the witness submitted that Ex.PW70/A2 is the receipt issued by M/s Bhasin Motors as token of having received Rs.3,965/ from Diwakar Sharma against registration charges. No receipt has been issued by his department because money was not received from Diwakar Sharma.

3.71 PW 71 is Mr.Piyush Sharma. He has submitted to the effect that in the year 2002 he was working as Project Engineer at Government and Public Sector Employees Welfare Housing Organization registered where he mainly worked relating to civil construction. The letter dated 2.11.2001 Ex.PW71/A (D12) has been signed by one S.Cairae, Manager (Residential Plots). The receipt no. 267 of Rs.1610/- paid on 30.4.2002 towards the admission fee and processing charges is already Ex.PW27/1. The receipt no. 290 of sum of Rs.30,000/- paid by Diwakar Sharma in cash on 6.5.2002 is Ex.PW27/J. The witness further submitted that Diwakar Sharma was Secretary of society he was alloted flat no. 402 at Government and Public Sector Employees Welfare Housing Organization. He cannot say if the amount CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 62 paid by him was Rs.42,880/-. The physical possession of the flat was not handed over to him because as per rule the possession of the flat was to be handed over to Diwakar Sharma only after he clear all the dues. During cross-examination the witness submitted that he was posted at site of this project. All the accounts and cash of the society were used to be kept in the office. He did not deal with any payment either in cheque or cash received by the society.

3.72 PW-72 is Mr.Ravi Kant Ram Pal. He has submitted to the effect that in May 2005 he was working as DGM, Finance, M/s Bhasin Motors (India) Pvt. Ltd. On 2.5.2005, as per production memo Ex. PW72/A (D45) he has handed over certain documents to CBI. The documents are Ex.PW72/B1 to B17. The invoice no. 13142 is dated 17.12.2004 vide which vehicle no. DL4CN 3185 was delivered to Diwakar Sharma. The price of the car as per invoice was Rs.5,56,232.99. As per receipt Ex.PW72/B1 cheque of Rs.3.40 lac against the invoice was received from Diwakar Sharma. As per invoice Ex.PW72/B2 a payment of Rs.1,89,552/- was made by Diwakar Sharma. As per invoice Ex.PW72/B3 payment of Rs.2681 was received in cash from Diwakar Sahrma. During cross-examination the witness submitted that none of the receipt bear signature of Diwakar Sharma. Rs.1,89,552/- was received through Citibank Finance.

3.73 PW-73 is Mr.Dinesh Chandra. He has submitted to the effect that Diwakar Sharma was President, he was Vice CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 63 President and Mr.S.L.Sagar was Secretary of Jai Jagdambe Cooperative Group Housing Society Ltd.. In the society Diwakar Sharma had got three BHK quarter and made payment in installments. He does not remember the exact period but it was between June 2000 to 2004. The witness further submitted that he was also President of another society Kendriya Awas Welfare Housing Society registered with Registrar of Cooperative Societies. The land was alloted to the society but the members did not like it and therefore money was refunded and no further activity was carried out. Mr.Diwakar Sharma was one of the member of society and later on he became Secretary of the society. He has paid membership fee for a sum of Rs.1610/- and also paid further contribution which was later on refunded as the society became defunct.

During cross-examination the witness has submitted that he was also associated as Treasurer with accused who was Secretary of society namely Kendriya Niketan Welfare Housing Society. When the raid was conducted by CBI, he was under

impression that raid is in connection with affairs of the society. After 2-3 days of the raid he checked the accounts of Kendriya Niketan Welfare Housing Society. As per accounts book of society, a loan of Rs.16.0 lac was standing against Diwakar Sharma. In Kendriya Awas Society there was a loan of Rs.4.0 lac against Diwakar Sharma. Diwakar Sharma had issued cheque of Rs.1,71,361/- in Jai Jagdambe Society which was dishonored for want of insufficient funds and it became a matter of discussion. It is correct that he did not receive any cash CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 64 payment as an office bearer of the society. The witness further volunteered that cash payment was either received in the office or by Diwakar Sharma. He has seen photocopy of the receipt No.1751 of Rs.86954/- dated 08.08.04 Ex.PW73/DA but it does not bear any signature.

3.74 PW-74 is Mr.Mayur Saraswat, posted as Senior Officer in ICICI Bank, Mayur Vihar in the year 2004-06. The witness has submitted that in July, 2005 he has handed over certain documents concerning the accounts of one Diwakar Sharma and another account of Ishant Sharma under the guardianship of Diwakar Sharma vide letter dated 04.07.2005 Ex.PW74/A (D-

58) to CBI. The list of vouchers and statement of accounts attached with said letter is Ex.PW74/B. The account of Master Ishant Sharma bearing no.629701080289 was opened on 18.07.2002 and the said part of the document is Ex.PW74/B. The account was freezed in the year 2005 and the balance amount was 11,155/-. The account of Diwakar Sharma was opened on 18.07.2002. The document in this regard are collectively Ex. PW74/B. The account was freezed in the month of February 2005 with balance of Rs.4,10,950/-.

During cross-examination, the witness has submitted to the effect that there was credit entry of Euro 300/- dated 31.08.2002 in the account of Master Ishant Sharma. The witness has further submitted to the effect that total amount of Rs.53,000/- was received by way of cheques. The cash amount of Rs.20,000/- and Rs.30,000/- were deposited in the account of Ishant Sharma CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 65 on 23.11.2002. A credit entry of Rs.4.0 lac in the account of Diwakar Sharma through cheque of Nainital Bank on 19.05.2003. Mr. Diwakar Sharma issued a cheque of Rs.4,70,000/- in favor of Jai Jagdamba Group Housing Society. On 01.02.2005 a sum of Rs.4,00,000/- was credited in the account of Diwakar Sharma from Vijya Bank.

3.75 PW-75 is Om Prakash Kohli from the Union Bank of India, Safdarjang Branch. He has submitted to the effect that vide letter dated 16.01.2006 (D-74) Ex.PW75/A, he has handed over statement of account of Diwakar Sharma pertaining to account no.2282(SB) for the period 01.04.1996 to 23.12.2005 Ex.PW75/B, the same was certified under Bankers Book of Evidence Act vide certificate Ex.PW75/C and maintenance policy of the bank Ex.PW75/D. The witness further submitted that letter dated 09.06.2005 (D-56) bearing signature of Mr.Asit Swarup, Chief Manager is Ex.PW75/E and alongwith said letter account opening form in the name of Diwakar Sharma of account no. 2282 Ex.PW75/F, copy of statement of account for the period 07.11.2004 to 21.05.2005 Ex.PW75/G were also handed over to CBI. The witness further submitted that certificate under Banker Book of Evidence Act is Ex.PW75/H. The witness further deposed that statement of account from 04.10.1993 to 03.04.1996 was not provided to CBI because as per maintenance policy, all records of more than 09 years old are destroyed. During cross-examination, the witness submitted that he has informed the CBI that an amount of Rs.6,53,000/-

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CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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was withdrawn from this account in cash. As per photocopies of vouchers, there was credit of Rs.1,25,000/- on 09.11.2000, credit of Rs.1,50,000/- on 19.10.200 and credit of Rs.35,000/- on 18.12.2000. These vouchers were brought on record as Ex.PW75/DA.

3.76 PW-76 is Mr.Vijay Sachar. He has deposed to the effect that in the year 2000 he was doing part time accounting job for his clients. One of his client was a society namely Government and Public Sector Employee Welfare Housing Organization having its office at Munirka and project of the same was located at Noida. The land to this organization was allowed by the Noida Authority. The society made payment of around 4 to 5 Crore to the Noida Authority. The memorandum of association of said organization Ex.PW-76/A shows that Diwakar Sharma was Secretary of this society. The Principal Executive Officer of the society was also Sh.Diwakar Sharma and he was the custodian of all the records and property of society. Sh.Diwakar Sharma had power to receive and disburse the cash. Ex.PW76/B is the lease deed executed between the society and Noida Authority. One flat was also allotted to Diwakar Sharma. The witness has identified the receipt dated 30.04.2002 for a sum of Rs.1610/- already Ex.PW27/I, receipt dated 06.05.2002 for a sum of Rs.30,000/- already Ex.PW27/J and receipt dated 27.01.2005 for a sum of Rs.11,270/- Ex. PW76/C and submitted that vide said receipts Diwakar Sharma has paid total sum of Rs.42,880/-.

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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During cross-examination the witness has submitted that Diwakar Sharma has taken the loan of Rs.4,84,416/- from Mrs.Anju Jakhmola to deposit in a society namely Jan Vikas. He also received an entry of Rs.4,00,000/- from one Mr.Ajay Khurana in order to make the payment in Jai Jagdamba society. Mr.Diwakar Sharma had withdrawn a sum of Rs.70,000/- from the account of his minor son Master Ishant Sharma and deposited Rs.4,70,000/- in Jai Jagdamba Society. He recalled that Diwakar Sharma had received a cheque of Rs.1,00,000/- from one of his friend Mr.Sagar for purchase of marble. When the raid was conducted, Diwakar Sharma was under the debt of Rs.30,00,000/- and he repaid this amount after resigning from the service and setting up his own business in next three years. The amount of Rs.1,47,850/- seized by the CBI during search, was in fact cash in hand of Kendriya Niketan Welfare Housing Society. The sim cards were used to be purhcased in the name of Diwakar Sharma as there was no identity proofs of said societies and Diwakar Sharma was the Chief Functionary.

3.77 PW-77 is Smt.Sunita Dhaundyal. She has submitted to the effect that in the month of March 1995 she has sold one Fiat car bearing no.DEB-0084 to his brother Diwakar Sharma for Rs.45,000/-.

She has further submitted that she alongwith her sister-in- law Anju Jakhmola established a company in the name and style of M/s Tanuj Leasing and Finance Pvt. Ltd. having its registered address at 8-A, Pocket A-2, Mayur Vihar, Phase III, Delhi. The CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 68 premises was taken from Diwakar Sharma and so far she remember it was rent free accommodation. She had one current account no. 10982 at Bank of India, Mayur Vihar in the name of M/s Tanuj Leasing and Finance Pvt. Ltd. Letter dated 24.04.2006 (D-89) was shown to this witness and the witness submitted that this letter was in her handwriting and the letter was brought on record as Ex.PW77/A. The witness further submitted that Diwakar Sharma taken the loan from M/s Tanuj Leasing and Finance Pvt. Ltd. on 28.08.1998 and 20.08.1999 for Rs.60,000/- and Rs.75,000/- respectively and the same is Ex.PW77/B and PW77/C. So far she remember, her company was having one landline and one mobile phone. The payments were being made from the account of M/s Tanuj Leasing and Finance Pvt. Ltd.. The services of mobile phone no. 9811017195 was discontinued but later on Diwakar Sharma was using the said number and payment in this regard was made by him. The witness further submitted that she herself and her Bhabhi Anju Jakhmola was also running another company M/s Tanuj Ishan Chits Pvt. Ltd. During the period 21.09.1995 to 30.03.96, Diwakar Sharma had deposited an amount of Rs.1,05,000/- for a chit opened in his name. Subsequently the amount was repaid. Statement of account of said company was brought on record as Ex. PW77/D. The witness further submitted that her family members and family of Diwakar Sharma was having similar financial status. There was no special exchange of gifts exchanged with Diwakar Sharma but there were certain gifts exchanged with Mrs. Savita Jakhmola.

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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The gift exchanged between her and Mrs.Savita Jakhmola were of insignificant type.

During cross-examination, the witness submitted that financial aspect of the companies were looked after by his brother Harish Jakhmola and his wife Anju Jakhmola. She cannot show any document regarding return of loan of Rs.1.35 lac taken by Diwakar Sharma from M/s Tanuj Leasing and Finance Pvt. Ltd.. She cannot say whether any rent was given for the use of Diwakar Sharma's flat for the purpose of running said two companies. In this respect witness further submitted that this fact can be stated by Harish Jakhmola. The witness further submitted to the effect that Diwakar Sharma had good relations with her father-in-law and its possible that he has given his assets of the house without any payment.

3.78 PW-78 is Mr.Pawan Singh, Nodal Officer from Idea Cellular Ltd. He has submitted to the effect that on 17.03.2005, in pursuance to seizure memo, certain documents Ex. PW78/A1 to A8 were handed over to CBI. The witness further submitted that application form vide which mobile no.9891050505 was allotted in the name of Diwakar Sharma. Alongwith application form, photocopy of election I-card and cash receipt of Rs.1000/- for activation charges and Rs.11,500/- for special number and STD deposited. During his cross-examination, the witness submitted that Diwakar Sharma was shown Secretary of GAPSE organisation.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          70

         3.79       PW-79 is Mr.Rajan Narula. He has submitted to the effect

that in the month of March 2005, he was working as Administrative Officer in National Insurance Co.Ltd. At DAB branch, Karampura and had handed over certain documents to CBI vide letter Ex. PW79/A1 to A5. The witness further submitted that as per their record, vehicle No.DL4CN 3185 was registered in the name of Diwakar Sharma and it was insured with their branch from 20.12.2002 to 19.12.03 and its premium of Rs.14,524/- was paid vide cheque drawn at Union Bank of India. During cross-examination, the witness has submitted that it is mandatory to record the engine number and chasis number on the policy.

3.80 PW-80 is Mr.D.P.Gautam. He has submitted to the effect that in March, 06 he was working as Asst. in State Bank of India, Daryaganj branch. On 22.03.2006 in pursuant to production memo Ex.PW80/A-1 to A-7, he has handed over certain documents to CBI. The witness further submitted that as per production memo dated 23.12.2005 (D-104) already Ex.PW11/A certain documents were handed over to CBI. The witness has identified the original account opening form and statement of account of M/s Savita Jakhmola. The witness further submitted that as per statement of account, on 07.09.99 there is debit entry of Rs.50,000/- and on date of maturity i.e. 14.03.2000, the amount was Rs.51,765.31.

During cross-examination, the witness submitted that Ex. PW80/A-3 is a credit voucher of Rs.26,000/- vide which CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 71 this money has been credited to account no. 44798 of Sarita Jakhmola by this pay in slip, because of deposit of cheque no.650626 of Vaish Cooperative, New Bank Ltd.. The Ex. PW80/A-4 is a credit voucher of Rs.12,000/- vide which this amount had been credited to account no.44798 of Savita Jakhmola and this amount was transferred from Sundry deposit account to account of Savita Jakhmola and IO did not enquired the same from him.

3.81 PW-81 is Joginder Pal Singh. He has submitted to the effect that in the year 2005-06 he was posted as Dy.Manager, Sarojini Nagar branch and has handed over certain documents vide production memo Ex. PW81/A (D-108). The witness further submitted that he has handed over the original account opening form of account no.3422 Ex. PW81/B pertaining to Mrs.Savita Naithani Jakhmola, statement of account for the period 8.2.91 to 1.10.96 Ex. PW81/C, statement of account for the period 27.1.97 to 31.05.05 Ex. PW81/D and certificate under Banker's Book of Evidence Act Ex. PW81/E. The witness was cross- examined at length, however, the same would be discussed at the time of appreciation of evidence.

3.82 PW-82 is Mr.Vijay Kumar Sharma. He has submitted to the effect that in the year 2005 he was posted as clerk in Syndicate Bank, Sarojini Nagar branch. The witness further submitted that vide letter Ex.PW82/A certain documents were submitted to CBI. The document pertain to vehicle loan of Mrs.Savita CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 72 Jakhmola of vehicle No.HR 26L 1536. The witness further submitted that loan of Rs.2,10,000/- was disbursed on 28.4.2000 repaid in 60 monthly installments of Rs.5040/-. The statement of loan account duly certified under Banker's Book of Evidence Act is Ex.PW82/B and cheques and vouchers are collectively Ex. PW82/C. Vide letter dated 08.02.2005 (D-67), he has handed over statement of account no.114249 of Mrs.Savita Jakhmola for the period 01.12.2001 to 05.04.2005. The letter is Ex.PW82/D. The statement of account and its certificate under Banker's Book of Evidence Act are brought on record as Ex. PW82/E and Ex. PW82/F. 3.83 PW-83 is Mr.Suresh Kumar Arora. He has submitted to the effect that he was posted as Branch Manager, Syndicate Bank, Sarojini Nagar from November 2005 to May 2009. Vide letter dated 23.08.2006 Ex. PW83/A he has handed over certified statement of account Ex. PW83/B of account no.114249 pertaining to Smt.Savita Jakhmola for the period 1.4.96 to 30.9.01. He has also given certificate under Banker's Book of Evidence Act Ex. PW83/C. 3.84 PW-84 is Mr.Jagmohan Singh, proprietor of M/s Maan Jewelers, doing the business of sale and purchase of diamond jewelery. He has submitted to the effect that receipt Ex.P320 was issued in the name of Smt.Makheshwari Devi qua which he has purchased gold @ Rs.520/- per gram amounting to Rs.4,00,624/-. The receipt was purportedly signed by Diwakar CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 73 Sharma. The witness has further submitted that vide receipt no.10022 dated 14.12.2004 Ex.PW84/A a sum of Rs.1,79,984/- was made by cheque no.950747 in favor of Ms.Savita Jakhmola. The payment was made to Ms.Savita Jakhmola as she produced the gold and stated that the gold belonged to her. During his cross-examination, witness submitted that he has purchased the gold weighing 770.430 gms after considering the report of Government approved valuer and the report is Ex..P-313.

3.85 PW-85 is Mr.Bimal Kumar Bera. He has submitted to the effect that he is proprietor of Bimal Jwewlery House engaged in the business of sale and purchase of gold jewelery. The witness further submitted that on 03.12.2004 they have purchased gold jewelery weighing 389.680 gms and payment of Rs.2,20,169/- was made by way of cheque no. 430475 and receipt in this regard is Ex.PW85/A. The witness further submitted that vide receipt No.17 dated 06.09.2004 Ex.PW85/B he has purchased gold jewelery from Mrs.Makheshwari Devi for a sum of Rs.3,99,879/-. The payment was made on the basis of valuation report Ex.P313.

3.86 PW-86 is Ms.Zahida Alam. She has submitted to the effect that in the year 1990 she has purchased the flat no.8A, Pocket A-2, Kondli Gharoli vide Will Ex.PW86/A, receipt Ex.PW86/B, general power of attorney Ex. PW86/C, special power of attorney Ex.PW86/D from Smt.Urmila Devi. The witness further submitted that in the year 1993 her son met with an CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 74 accident and she was compelled to sell the flat and as such her husband approached Diwakar Sharma for disposing of the flat. At that time, Diwakar Sharma was doing the business of property dealer. Thereafter, on 26.5.94, an agreement for Rs.2,50,000/- was prepared and an amount of Rs.30,000/- has been received for this purpose. The said receipt and agreement is Ex.PW86/E. The witness further submitted that copy of Will dated 01.10.1994, receipt dated 11.10.94 of Rs.1.0 lakh, agreement to sell , special power of attorney, rent agreement and agreement to appoint arbitrator are Ex.PW86/F (colly.). The witness further submitted that these documents were executed by him for the purpose of sale of flat No.8A, Pocket A-2, Kondli Gharoli to Diwakar Sharma. She does not know about the receipts Mark A1 to A5 issued by DDA. The witness further volunteered that infact half of the payment was paid by her husband and remaining payment was paid by Diwakar Sharma. The witness was cross-examined at length. However, the same would be discussed at the appropriate stage of appreciation of evidence.

3.87 PW-87 is Mr.Arindam Gupta. He has submitted to the effect that on 08.07.2003 he joined as Divisional Manager, National Insurance Company Ltd, Division no.15, Himalaya House, K.G.Marg, New Delhi and vide letter dated 10.04.2006 Ex.PW87/A (D42) he has forwarded certain record pertaining to vehicle bearing no.HR 26L 1536. The annexure Pg.is Ex.PW87/B and remaining annexures are Mark B1 (colly.). The CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 75 witness further submitted that as per Ex.PW87/A, vehicle no. HR 26L 1536 was in the name of Smt.Savita Jakhmola. The vehicle was initially insured with Oriental Insurance Co Ltd. for the period 03.05.2000 to 02.05.2001. Subsequently the said vehicle was insured with their office for the period 2001-02 and premium of Rs.9930/- was paid. The premium for the year 2002-03 was Rs.8842/-, the premium for the year 2003-04 was Rs.3257, premium for the period 2004-05 was Rs.2750/- and the premium for 2005-06 was Rs.2424/-. The total insurance paid for the period 03.05.2001 to 06.05.2004 was Rs. 24,779/-. During cross-examination the witness submitted that the statement Ex. PW87/B was prepared by him on the basis of records available in the office pertaining to these policies.

3.88 PW-88 is Mr.Vivek Sharma, Accounts Officer in Delhi Lawn Tennis Association, R.K.Khanna Tennis Stadium, New Delhi. He has brought on record the documents i.e. application form of Ishan Jakhmola for coaching fee for admission relating to Tennis and further submitted that is application dated 19.04.2003 and an amount of Rs.11,500/- was deposited by Smt.Sunita Jakhmola vide cheque no.610242 Ex. PW88/B. 3.89 PW-89 is Mr.Rohit Singh, who worked with SBI Credit Cards and Payments Services Private Limited from May, 2003 to May, 2012. The witness has identified the letter dated 10.04.2006 written by Mr.Vitul Kwatra, Assistant Vice President, Customer Services as Ex. PW89/A, computer CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 76 generated certified copy of statement of account of Smt.Savita Jakhmola Ex. PW89/B from the period 23.9.2000 to 23.10.2005, communication of photocopy application form and identity proof as Mark A, computer generated copy of monthly statement of Smt.Savita Jakhmola for the period from September 2000 to January 2005 bearing seal of SBI cards and payment Pvt. Ltd. as Ex. PW89/C. During cross examination the witness submitted that documents available in the file are system generated and were not prepared in his presence. He has seen the document Ex. PW89/C for the first time in the Court.

3.90 PW-90 is Mr.Krishan Lal Anand, partner of M/s Ratna Jewellers. He has submitted that M/s Ratna Jewellers is doing the business of sale and purchase of gold and diamond jewellery. He is registered valuer duly authorized by Central Board of Direct Taxes. Ex. P313 is the report of valuation of jewelery bearing his signature at point A. The witness has also identified his signature on the copies thereof on Ex.P314 at point A. The valuation amount as per report was Rs.40,08,869/- as on 31.03.2004. The witness further submitted that the valuation report Ex.PW84/B is for a sum of Rs.11,99,910/- as on 30.03.2004.

3.91 PW-91 is Mr.G.L.Sagar. He has submitted to the effect that in the year 2005 he was Secretary of RWA of Shramdeep Society. Flat no. B-604, valued around Rs.12.0 lac was in the name of Harish Sharma, original member of the society.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                         77

Mr.Harish Sharma is brother of Diwakar Sharma. During cross- examination, the witness submitted that Diwakar Sharma is his friend for the last 15 years and in the year 2004 Diwakar Sharma fallen seriously ill and remained in Kailash Hospital. During that period, wife of Diwakar Sharma had sought financial help from him and he arranged Rs.40,000/- to meet out the medical expenses of the accused. It was repaid in the year 2006-07. In the year 2003, Diwakar Sharma arranged a function on the inaugural of his flat at Jagdamba Society with 400-500 guests. On that occasion, as per custom he has given Sagan of Rs.501/-.

3.92 PW-92 is Mr.Anil Kumar Bhasin, Secretary of RWA, Jagdamba Apartments, Noida. He has submitted to the effect that flat no.D-101 is owned by Diwakar Sharma who was president of society. The said flat is three bedroom flat having 1500 sq.feet area and the cost of the flat was around Rs.14.5 lac in the year 2000. During cross-examination, the witness has submitted that RWA of Jagdamba Apartments was formed after its completion. Diwakar Sharma performed Grah Parvesh ceremony of his allotted flat in the year 2004 which was attended by 400-450 persons. In the ceremony he has given sagan of Rs.1100/-.

3.93 PW-93 is Mr.Anuy Kumar. He has submitted to the effect that in February 2005 he was working as Supervisor in Government and Public Sector Employees Welfare Housing CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 78 Group. He knows Diwakar Sharma, present in the Court. The witness further submitted that he has no knowledge about ownership of flat no.402 or area of said flat. The witness was cross examined by Ld. PP for CBI with permission of the Court on the ground that he was resiling from his earlier statement. During cross-examination, witness submitted that his statement under Section 161 Cr.P.C. Ex. PW93/DX was recorded by CBI. His statement is true and correct. He could not tell these facts earlier due to lapse of time. During his cross-examination, the witness submitted that he worked on the site for around 2-3 months.

3.94 PW-94 is Mr.Manoj Sharma. He has submitted to the effect that he joined M/s Motorcraft India Pvt. Ltd.in the year 1999 as Assistant Accountant. He has identified five bills Ex. PW94/A1 to A5 issued in the name of Diwakar Sharma by the company against repair/service of vehicle no. DL6CB 2991. During cross- examination, the witness has submitted that bills Ex.PW94/A1 to A5 were of the period prior to joining of his company, however, he has submitted these bills to CBI on the instructions of his senior. He cannot say on the basis of bills/invoice that when the payment was received.

3.95 PW-95 is Mr.Harish Kumar, brother of accused Diwakar Sharma. He has submitted to the effect that Diwakar Sharma was working as Under Secretary in Ministry of Science and Technology. Diwakar Sharma was married in the year 1989 with CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 79 Savita Jakhmola who was working as Teacher in Navyug School, Sarojini Nagar. Flat no. 197E Pocket IV, Mayur Vihar was purchased by him from Sh.Deep Chand in the year 1999 for a sum of Rs.6.5 lac. The possession letter regarding Shramdeep Sehkari Awas Samiti Ltd. Ex.PW95/A bears his signature at point A. The receipts Ex.PW-95/B-1 to B-7 of a sum of Rs.12,60,000/-, Rs.8,50,000/-, Rs.1,70,000/-, Rs.4,50,000/- Rs.1610/-, Rs.4,50,000/- and Rs.90,000/- respectively are of Shramdeep Sehkari Awas Samiti Ltd. During cross-examination the witness has submitted that in the year 1992 he was married to Anju Jakhmola. In the year 1995 his wife Anju Jakhmola established a company namely M/s Tanju Ishaan Leasing Finance Company Pvt. Ltd. The company had registered office at 8A/2A, Mayur Vihar Phase III, New Delhi, premises owned by Diwakar Sharma and was rented out to the Company. Initially for 2-3 months no rent was paid but thereafter a sum of Rs.2000-2500/- was paid to Diwakar Sharma towards rent. M/s Tanuj Ishaan Chit Funds Pvt. Ltd. was also a company established by his wife and his sister Sunita Dhondial. It was also operating from 8A/2A Mayur Vihar Phase-III and the company was paying rent of Rs.2000-2500/- to Diwakar Sharma. The witness further submitted that cheque bearing no. 850793 dated 09.02.2004 was issued by his wife for an amount of Rs.4,84,416/- in favor of Jan Vikas Cooperative Group Housing Society. The cheque was issued by his wife as loan to Diwakar Sharma for making payment to society. The said amount was refunded alongwith interest in the year 2006. In the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 80 year 2004 his mother has divided jewelery of around Rs.12.0 lac in equal parts amongst Savita Jakhmola, Anju Jakhmola and Sunita Dhondial. The task of sale of jewelery was given to Savita Jakhmola being eldest in the family. His Bhabhi sold the jewelery and distributed the proceeds and gave his sister and wife Rs.4.0 lac each through cheque. Ishaan son of Diwakar Sharma is his nephew and he has attended the function of Mundan ceremony and 10th birthday ceremony and he had given Rs.5000/- and 11,000/- respectively on these occasions. He has also attended Grah Pravesh of Diwakar Sharma and gifted Rs.11,000/- in the year 2003.

3.96 PW-96 is Mr.Anand Kumar Jain. He has submitted that he was chartered accountant of Diwakar Sharmaa in the year 2001- 02 and had filed his income tax return. The witness has identified the income tax returns of Diwakar Sharma and Savita Jakhmola filed in the year 2003-04 as Ex. PW96/A and Ex. PW96/B respectively. The witness has further submitted that in pursuance of production-cum-seizure memo Ex. PW96/C (D

18), he has handed over certain documents to CBI official. The witness was cross-examined at length. However, the same would be discussed at the appropriate stage of appreciation of evidence.

3.97 PW-97 is Mr.Satyapal Singh. The witness has submitted to the effect that in February, 2005 he was posted as SI, EOU VII, New Delhi. On 02.02.2005 he took part in search proceedings in CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 81 premises of Harish Kumar, F-156, Nanakpura, New Delhi-29. The search list Ex.PW97/A (D3) bears his signature at point A. 3.98 PW-98 is Inspector R.L.Yadav. He has submitted to the effect that in February 2005 he was posted as Inspector CBI, EOU-VII, New Delhi and on 02.02.2005 he participated in search proceedings in respect of Diwakar Sharma at 322, Pocket V, Mayur Vihar, Delhi. The search list Ex. PW98/A bears his signature at point A. 3.99 PW-99 is Mr.Prince Sethi, posted as Manager in ICICI Prudential Life Insurance Co.Ltd. in the year 2003. He has submitted to the effect that in the month of March, 2005 he handed over letter dated 28.03.2005 Ex.PW99/A (D-121) to IO of the case. The witness further submitted that he has handed over enclosures which were certified copies of proposal form comprising 8 sheets. The enclosure is photocopy of original form and the same is Ex.PW99/A1. The witness has further submitted that as per their record, Savita Jakhmola had applied for Save n Protect policy on 31.01.2002 on payment of one year premium of Rs.10,280/-. The policy no.00154295 was for ten years. Second and third premiums were of Rs.10,280/- each.

3.100 PW-100 is Mr.Brijesh Kumar. He has submitted to the effect that he joined Kendriya Niketan Welfare Housing Society in the year 2003 and remained there till 2007. The organization was having registered office at 197E, Pocket IV, Mayur Vihar Phase CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 82 I . Accused Diwakar Sharma was Secretary of the society. The total cost paid by society was Rs.10.0 crore, which was collected by members of the society. The witness has further submitted that accused Diwakar Sharma had applied for one flat. The receipt book of the society has been identified by the witness as Ex. PW100/A and witness further submitted that vide receipt no.003 dated 10.02.2003, accused Diwakar Sharma has deposited a sum of Rs.5120/- and vide receipt no.024 dated 05.04.2003 he deposited Rs.1,51,610/-. Though the flat was allotted to Diwakar Sharma but possession of flat was not handed over to him as he was defaulter and had not paid the full amount. On 22.12.2006 he has handed over some documents pertaining to society to IO vide production memo Ex. PW100/B. The documents forwarded by him were a forwarding letter Ex.PW100/B1. The witness has also identified the certified copy of list of members Ex.PW100/B2, bye-laws of society Ex.PW100/B3. He has further submitted that there were three types of flat i.e. A, B and C. Type A flat was costing about Rs.15-16 lac, type B flat was costing about Rs.20-22 lac and type C flat was costing about Rs.28-30 lac. Accused Diwakar Sharma was allotted a type B or C flat in his name. Receipt No.024 dated 05.0.2003 is jointly in the name of Savita Jakhmola and Diwakar Sharma. One mobile phone of which number he does not remember, was allotted to Diwakar Sharma as Secretary of the Society. But he does not remember if the expenses of said mobile was borne by the accused or the society. During cross-examination, the witness submitted that he cannot CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 83 say whether the cheque paid vide receipt no.024 dated 05.04.2003 in receipt book Ex.PW100/A was actually realized or got dishonored.

3.101 PW-101 is Mr.S.Balasubramoniam. He has submitted to the effect that in the year 2005 he was posted as Dy. SP in EO-III Division of CBI and he was authorized by Inspector Satinder Bisht to carry out searches at the Administration Office of Govt. Public Sector Employees' Welfare Housing Organization at 8A, Pocket A2, Mayur Vihar Phase III, New Delhi. On search the premises was found locked. On enquiry it was revealed that the office premises has been shifted to 197E, Pocker IV, Phase I, Mayur Vihar, New Delhi. Search was carried out in said premises. The administration Officer of the organization Mr. Brijesh was also remained present during the course of search. The documents as mentioned in the search list already Ex.PW24/A were taken into police possession. Unaccounted cash amounting to Rs.97,850/- found in the office room of Diwakar Sharma was also taken into police possession. One witness from Oriental Bank of Commerce was also present at the time of search. Alongwith him other CBI staff was also present, after completion of search, the documents and other articles were taken back to CBI office and deposited in Malkhana. He has identified his signature at point B on search list Ex. PW24/A. The witness further submitted that office at 197E, Pocket IV, Phase I was found locked and was got opened with the help of a locksmith. Mr.Brijesh Kumar was summoned CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 84 to the premises. The witness has submitted that certain files as Ex. PW101/A to Ex. PW101/P were seized alongwith other documents. During cross-examination, the witness submitted that the authorization was for search of premises 8A, Mayur Vihar, New Delhi. He did not wait for another authorization for search in premises No.197, Pocket A, as he came to know that office had been shifted and IO was informed accordingly on phone.

3.102 PW-102 is Mr. Anil Singh, Addl. S.P. CBI. He has submitted to the effect that in the year 2005 he was posted as Dy. SP in CBI, EOU VII Branch and on the instruction of SP of said branch he conducted investigation of the case. On 02.02.2005 he conducted search at C 502, Vigyan Vihar, Sector 56, GH 19, Gurgaon where he came to know that Diwakar Sharma was having office at F-92/1, First floor, Hanuman Market, Munirka. Accordingly search was conducted at at F-92/1, First floor, Hanuman Market, Munirka in the presence of independent witness Sh. Gabbar Singh Chauhan. Search report Ex. PW102/A bears his signature at point A. Certain documents were seized vide production cum seizure memo Ex. PW102/B. Other documents seized by this witness are Ex. PW102/B1 to Ex. PW102/B4. The witness further submitted that he has also seized other documents already brought on record. He has further submitted that after the documents were seized vide seizure memo Ex. PW102/B, the same were handed over to IO. During cross-examination, the witness has submitted that there CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 85 was no written authorization to conduct search. He has not given any specific details of documents in file D-5(iv), Ex. PW102/B3. The file D-5(i) Ex. PW102/B4 page no. 25 pertains to statement of account of M/s Tanuj Ishaan Chits Pvt. Ltd. He cannot explain that how it is connected to accused Diwakar Sharma.

3.103 PW-103 is Insp. P. Thapa. He has submitted to the effect that in the year 2005-06 he was posted as Inspector, CBI EOU-VII Branch, New Delhi. The witness submitted that part of the investigation was entrusted to him. He has seized some documents and conducted locker operation. The witness has further submitted that on 02.02.2005 he had conducted the search of Harish Kumar at F-156, Nanakpura, New Delhi vide search already Ex. PW97/A. The conduct was in the presence of independent witnesses Sh. Pawan Kumar Kohli and Sh.I.S.Tanwar. The documents seized also include the original certificate of registration of vehicle no. DL6CB 2991 and vehicle no. DL9SE 0850.

On the same day i.e. 03.02.2005, he alongwith Inspector Satinder Bisht conducted the locker operation in respect of locker no.170 in the name of Diwakar Sharma in Union Bank of India, Nehru Place, in the presence of two independent witnesses. The locker operation memorandum prepared in this regard Ex.PW26/A bears his signature at point B. The seized documents being original cash memo and original FDR are already Ex.PW26/C and Ex.PW26/D respectively.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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On 03.02.2005, he alongwith Inspector Satender Bisht conducted the locker operation in respect of locker no.16 in the name of Diwakar Sharma in UTI Bank, Krishna Nagar in the presence of an indepndent witness. The locker operation memorandum prepared in this regard Ex. PW103/A bears his signature at point A. The witness further submitted that on 13.02.2006 he seized various documents from Sh.D.P.Singh, Sr. Manager, Bank of India vide production memo Ex.PW103/B. The seizure memo includes a letter dated 11.02.2006 addressed to Satender Bisht by Sh.D.P. Singh and one cheque no.850793 already Ex.PW27/D. During cross-examination, the witness submitted that he cannot show any authorization in his favour.

3.104 PW-104 is Mr.Shatrujeet Kapoor, IGP, Hissar, Haryana. He has submitted to the effect that in January 2005 he was posted as SP, EOU-VII Branch, CBI, New Delhi. He has further submitted that FIR Ex. 104/A was registered in this case on the basis of source information. Investigation of this case was entrusted to Inspector Satender Bisht. During cross-examination, the witness has submitted that the source information was submitted by another officer which was verified by his branch under his supervision. In this case no formal PE was registered.

3.105 PW-105 is Mr.Kamal Singh Rothan. He has submitted to the effect that he was employee of M/s Tanuj Ishan Construction Pvt. Ltd. The witness has identified cheques Ex.PW77/B and CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 87 Ex. PW77/C for a sum of Rs.60,000/- and Rs.75,000/- respectively and submitted that these cheques were issued by M/s Tanuj Leasing and Finance Pvt. Ltd. in favor of accused Diwakar Sharma. The cheques were probably issued to Diwakar Sharma as loan. The witness was allowed to cross-examine on the ground that he was resiling from his statement recorded under Section 161 Cr.P.C. and during cross-examination by Ld. PP for CBI, witness has submitted it to be correct that in all the cases of loans, M/s Tanuj Leasing and Finance Pvt. Ltd. used to charge 18% compound interest. He had calculated the figures and told CBI that accused Diwakar Sharma had repaid Rs.77,172/- and Rs.96,465/- respectively. But he does not remember whether he has told CBI that whether this payment has been done in 18 installments. The witness has further identified cheque no.218414 dated 10.09.96 for a sum of Rs.5000/-, cheque no.357176 dated 28.7.97 for Rs.50,000/- and cheque no.357177 dt.10.5.97 for Rs.15,000/- and further submitted that all these were issued by Diwakar Sharma in the name of company. The cheques were brought on record as Ex.PW105/A. The witness has further submitted that vide these chequed Diwakar Sharma has made payment to M/s Tanuj Leasing and Finance Pvt. Ltd. He cannot tell whether the payments made by M/s Tanuj Leasing and Finance Pvt. Ltd. to accused Diwakar Sharma in the form of loan, were fictitious transaction and accused Diwakar Sharma was not in requirement of any such loan. Certain payments were made to Diwakar Sharma by M/s Tanuj Leasing and Finance Pvt. Ltd., CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 88 but he cannot say whether the same were loan transactions or not. In this respect he further submitted that the same can be clarified by the Directors i.e. Sunita Dhondial and Anju Jakhmola. Accused Diwakar Sharma has neither supply any goods nor rendered any services to M/s Tanuj Leasing and Finance Pvt. Ltd. It was suggested to the witness that the said concern was actually run by him and not by Sunita Dhondial and Anju Jakhmola and the same was denied. The witness has also identified that certified copy of customer application form in the name of M/s Tanuj Leasing and Finance Pvt. Ltd. made to Essar which is part of Ex.PW51/B. The mobile number 9811017195 used to be with Smt.Sunita Dhondial. The said connection was in the name of M/s Tanuj Leasing and Finance Pvt. Ltd. in the year 1999 or 2000, the operation of this mobile was stopped. Thereafter, the said mobile was transferred in the name of Diwakar Sharma. He might have told CBI in his statement that after transfer of mobile number 9811017195 in the name of Diwakar Sharma, the bill used to be received by him in his name and paid by him.

The witness further submitted that he used to look after the site in respect of plot alloted to Govt. and Public Sector Employees Welfare Housing Organization, D-13, Sector 44, Noida. Accused Diwakar Sharma was Secretary of said society. The witness submitted that without relevant documents he cannot comment whether phone number 9811424024 was in the name of accused Diwakar Sharma in the capacity of Secretary of said society. The witness further submitted that at the time CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 89 when the CBI made enquiry from him, he might have told that mobile phone number 9811424024 was in the name of Diwakar Sharma because at that time, he had no option. At this stage, witness voluntarily submitted that even at that time no documents were shown to him. The witness has identified the application which is part of the Ex. PW51/D. He further submitted that he used to look after the site in respect of plot no. F-31 at Sector 50, Noida which was alloted to Kendriya Niketan Welfare Housing Society. Accused Diwakar Sharma was Secretary of this Society also. He cannot tell if mobile no.30936924 was in the name of Diwakar Sharma as Secretary of this society. After looking at customer application which was part of documents Ex.PW53/B, the witness submitted that apparently the same in the name of Kendriya Niketan Welfare Housing Society and the name of authorized person is shown as Diwakar Sharma. The witness has identified the signature of Diwakar Sharma on said application, separately exhibited as Ex.PW105/B. He has also identified the impression of signature of Sunita Dhondial at point A on the certified copy of customer application made in the name of M/s Tanuj Leasing and Finance Pvt. Ltd. which is part of Ex.PW51/B and the said customer application form is separately exhibited as Ex.PW105/C. The customer application form in the name of Diwakar Sharma with address Secretary, Govt. and Public Sector Welfare Housing which is part of Ex. PW51/D. In respect to mobile number 30936924, the witness has submitted that he cannot say whether the payment of mobile were not CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 90 made by society and were made by Diwakar Sharma. On this account he has submitted that only the Accountant can clarify the same. Further the witness has submitted that he told CBI that payment in respect of mobile no. 30936924 were made by Diwakar Sharma and not by the society, however, he had made statement under duress.

The administrative work of M/s Tanuj Ishan Chit Pvt. Ltd. were being looked after by him. The Directors of the company were Smt.Sunita Dhondial and Smt. Anju Jakhmola. He does not remember whether Diwakar Sharma has made any payment or withdrawal from the said concern. The suggestion was given to the witness that the said concern was actually run by Diwakar Sharma, but the same was denied. It was also suggested to the witness that he always been employed by Diwakar Sharma and had been assisting him in running the various cooperative Group Housing Societies and Tanuj Ishan Group Companies, but the same were denied. The statement of account in respect to M/s Tanuj Ishan Chit Pvt. Ltd. was shown to the witness but the witness did not identify the same. The witness further submitted that in the year 1997 he used to get salary of Rs.2500/- pm and the same reflects in the statement mark PW105/X1. Certain payments were made to Diwakar Sharma from M/s Tanuj Ishan Chits Pvt. Ltd. He admitted to the correct that if certain payments were made by M/s Tanuj Ishan Chits Pvt. Ltd. then certainly the payments were made by accused Diwakar Sharma to M/s Tanuj Ishan Chits Pvt. Ltd. He cannot say what was the exact amount which were paid and he cannot comment whether CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 91 such payments have been reflected in the statement Mark PW105/X1. He used to simply hand over the bank statement to CA and CA used to prepare the further accounts. He does not has sufficient knowledge regarding accounts. He cannot comment whether accused Diwakar Sharma was coordinating with CA. All the books of account remained with CA probably by the name of Sh.Dinesh Kumar Garg who was having office at Pahar Ganj. He might have told CBI that accused Diwakar Sharma paid an amount of Rs.1,05,000/- for participating in the chits of M/s Tanuj Ishan Chits Pvt. Ltd. during the period 21.09.95 o 30.03.96. He had told CBI in his statement that during 1996 Diwakar Sharma had withdrawn an amount of Rs.1.0 lac from M/s Tanuj Ishan Chits Pvt. Ltd. it was suggested to the witness that payments between accused Diwakar Sharma and M/s Tanuj Ishan Chits Pvt. Ltd. were manipulated payments as the said company was actually run by accused Diwakar Sharma.

The production memo dated 19.05.2005 was identified by the witness as Ex. PW105/E. The witness has further submitted that he had represented the IO that he was the Administrative Officer of Jai Jagdambey Sehkari Awas Samiti Ltd. and accordingly the IO had recorded the said fact. Accused Diwakar Sharma was President of Jai Jagdambey Sehkari Awas Samiti Ltd. He has handed over original receipt book Ex. PW105/E1 to E-4 of Jai Jagdambey Sehkari Awas Samiti Ltd. to IO on 19.05.2005.

The witness has identified the production memo dated CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 92 24.05.2005 Ex. PW105/F. The witness further submitted that he had represented himself as Administrative Officer of Govt. and Public Sector Employees Welfare Housing Organization (Regd.) and accordingly the IO had recorded the said fact. In this respect the witness has further submitted that he has handed over original receipt book Ex. PW105/F1 to F2 of Govt. and Public Sector Employees Welfare Housing Organization (Regd.) to IO on 24.05.2005.

The witness has also identified production memo dated 24.06.2005 Ex. PW105/G and further submitted that he has represented himself as Administrative Officer of Kendriya Niketan Welfare Housing Society (Regd.) to IO. The receipt books of the same were identified by the witness as Ex.PW100/A. The witness has also identified production memo dated 28.06.2005 Ex. PW105/H and also identified the receipts bokks Ex.PW105/H1 to H3. In regard to receipt books, the witness further submitted that Ex.PW105/E to Ex. PW105/H were in the custody of Diwakar Sharma, who handed over the same to him and he further handed over the same to IO. The witness further submitted that he came into contact with Diwakar Sharma through his relative in 1999-2000. He used to get one payment. However, the witness again submitted that he used to receive payment separately from different societies/companies. He does not remember the exact break up. The total salary he used to receive in the year 1997 was Rs.2500/- per month.

The witness has identified letter dated 28.04.2006 Ex.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          93

PW105/J (D-88) and submitted that it bears the signature of Anju Jakhmola at point A. On this aspect, the witness further submitted that vide said letter it was informed to CBI that the documents pertain to M/s Tanuj Leasing and Finance Pvt. Ltd. and M/s Tanuj Ishan Chits Pvt. Ltd. were not available as the companies have been closed. These companies were closed in the year 1999 or 2000.

During cross-examination, the witness has submitted that he has not seen the ledger and balancesheet of M/s Tanuj Leasing and Finance Pvt. Ltd. and M/s Tanuj Ishan Chits Pvt. Ltd.in the Court. He admitted to be correct that in chit business sometime there is a profit and sometime there is loss also. He does not remember the profit and loss of Diwakar Sharma in such business. The Ex.PW51/D is the application form of Sterling Cellular Ltd. for mobile no.9811420424.

3.106 PW-106 is Dy.SP Satinder Bisht, IO of the matter. He has brought on record the entire documents prepared by him during investigation. The evidence of this witness would be discussed during appreciation of evidence.

3.107 PW107 is Smt.Usha Gandhi. She has submitted to the effect that in the year 2005, she was posted as Zonal Revenue Officer, RK Puram, Delhi Jal Board. The witness has brought on record the letter dated 11.05.2005, addressed to IO as Ex. PW107/A and further submitted that vide this letter information regarding bill pertaining to water connection no.38674 was provided.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                            94

During cross-examination, the witness submitted that letter Ex.PW107/A indicate the bill raised against the premises during 1st May 94 to 30th April 2005.

3.108 PW-108 is Mr.R.N.Sharma. He has submitted to the effect that he was working with Kailash Hospital and Heart Institute, Noida since 1996. The witness has further submitted that letter dated 02.08.2005 Ex. PW108/A (D-63) was addressed to Inspector CBI and alongwith said letter medical treatment papers pertaining to Diwakar Sharma were also provided to IO. The witness has also identified the CT Scan receipt of a sum of Rs.4450/- as Ex.PW108/B, hospital bill of Rs.35,755/- as Ex. PW108/C. During cross-examination, the witness has submitted that bill Ex. PW108/C dies not indicate the amount received by hospital.

3.109 PW-109 is Mr.Parshotam Lal. He has submitted to the effect that during February 2004 to January 2007 he was working as Director (Vigilance) in NDMC, New Delhi. The witness has further submitted that at request of CBI, details of payments in respect to Smt.S.Jakhmola from 1991 to 2005 were provided vide letter Ex. PW109/A and the documents sent alongwith said letter were Ex.PW109/B. During cross-examination, the witness has submitted that documents containing the details of salary were prepared in the school and he has merely forwarded the same to CBI. He does not know if the arrears disbursed on the implementation of Vth CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 95 Pay Commission have been included in this or not. He is not aware of the fact that whether remuneration paid to Mrs.Savita Jakhmola for invigilator's duty for public exams are included in the salary sheet or not. This is not in his knowledge that Mrs. Savita Jakhmola used to perform duties for practical exams in different schools of Delhi and she used to be paid remuneration for checking the answer sheets.

3.110 PW-110 is Mr.Vivin Ahuja. He has submitted to the effect that during 2006 he was posted as Dy. Director Vigilance, Vikas Sadan, DDA. The witness has further submitted that vide letter 07.03.2006 Ex. PW110/A he has forwarded the allotment file of flat bearing No.21H, Pocket II, Kondli Gharoli-II to CBI. The documents alongwith letter were identified by the witness as Ex. PW110/B. 3.111 PW-111 is Mr.Yashpal Verma, Sr. Accountant in Venu Eye Institute and Research Center, Sheikh Sarai-II, Delhi. He has submitted to the effect that letter dated 03.08.2005 Ex.PW111/A he has provided information of consultation fees and charges of visual field. The witness has identified two attested copies of receipts amounting to Rs.200/- and Rs.1350/- as Mark PW111/X1 and PW111/X2.

3.112 PW-112 is Mr.Radheyshyam Jaiswal. He has submitted to the effect that during the financial year 2005-06 he was working as Income Tax Officer, Ward 40(2), New Delhi. He was asked CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 96 by CBI regarding copy of return of accused Diwakar Sharma for the year 1995 to 2006. Except the return of AY 2003-04, the returns for other years were not traceable. The witness has identified the letter dated 20.01.2006 Ex.PW112/A and submitted that the said letter was written by him to the CBI.

3.113 PW-113 is Mr.Shrikar Bhatt. He has submitted to the effect that during the year 2005 he was working as Company Secretary in Torrent Power AEC Ltd. He has further submitted that vide letter dated 09.09.2005 Ex.PW113/A, he has furnished details of payment of dividend paid to Diwakar Sharma.

3.114 PW-114 is Mr.Shrikant Gupta. He has submitted to the effect that in the year 2005 he was working as Branch Head, UTI Bank, Krishna Nagar, Delhi. He has identified the certificate issued under Section 2A of Banker's Book of Evidence Act as Ex. PW114/A. The witness further submitted that vide Ex.PW56/B, the details of company, their account number and number of original vouchers were provided to CBI. The witness has further submitted that the certificate on said documents u/S 2A of Banker's Book of Evidence Act bears his signature at point A. 3.115 PW-115 is Mr. PJ Tikkoo. He has submitted to the effect that in April 2005 he was working as Branch Manager, LIC, Mayur Vihar and vide letter dated 2.4.05 Ex.PW115/A (D-124) certain information regarding policy no.120611524 was furnished to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 97 CBI. The copies of documents provided with letter are Ex.PW115/B. Letter dated 16.3.05 addressed to Inspector Satinder Bisht is Ex.PW115/C (colly.).

During cross-examination, it was suggested to the witness that basis of the payment of Rs.74,594/- shown as premium paid is not enclosed with the information forwarded to CBI, but the suggestion was denied. He is not able to show from the record the basis of calculating the figure and the details of Rs.74,594 and Rs.51,642/-. The information provided to CBI does not disclose the mode of payment of premium amounting to Rs.51,642/-.

3.116 PW-116 is Mr.Kesoram Khatak. He has submitted to the effect that in the year 2005 he was posted as Branch Manager in Palam Branch of LIC. The witness has further submitted that CBI has asked information regrding policy no.330774400 of Savita Jakhmola which was furnished alongwith letter dated 22.03.2005 Ex.PW116/A. As per status report, the premium charged by LIC was Rs.10,474/- for one year at the time of opening of account. The total amount of Rs.20,948/- was collected for 02 years. excluding the aforesaid amount of Rs.10,474/- as reflected at page No.4 of D-129. During cross- examination, it was suggested to the witness that status report Ex.PW116/A does not indicate the payment of Rs.10,474/- as premium, but the suggestion was denied and on this account the witness further submitted that policy was issued only after payment of premium.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          98

3.117 PW-117 is Mr.Karikeswar Jena, Officer Superintendent, DPS, Vasant Kunj and submitted to the effect that vide letter Ex. PW117/A information regarding the details of fee paid by Diwakar Sharma for his son Ishan Jakhmola for the period 1997

- 2005 were furnished to CBI. He has been authorized to appear in Court vide authority letter Ex.PW117/B. Prosecution Evidence was closed.

4. Statement of the accused Diwakar Sharma was recorded U/s 313 Cr.P.C. The entire incriminating evidence came on record against the accused was read over to him. In regard to the evidence regarding ownership of flat no.D-101, Jagdamba Apartments, Sector 62, Noida, flat in Kendriya Niketan Welfare Housing Society, flat no.8A, Pocket A-2, Kondli, Flat no. 177-E, Kondli Gharoli has not been denied by the accused. But the accused has disputed on account of payments of flats. In regard to the evidence regarding purchase of mobile phone, washing machine, colour TV and tyres etc, the accused has denied to have purchased the same. The accused has also denied to have made payments against different mobile/telephones used by him. On the evidence of payment of telephone bills by the accused, the accused submitted that said phones were used by him while dealing with affairs of housing societies and societies used to pay the bills or reimbursed the same later on. In regard to other documentary evidence regarding the payments of registration and insurance premiums of different vehicles, accused took plea that documents have not been CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 99 proved as per law. The accused has further denied that he was member of Grand Life at Hotel Inter Continental. The accused has further submitted that he has taken loan from his father-in-law and other friends from time to time but the same was not added to his income. Further the accused has denied entire incriminating evidence against him. The accused further submitted that he intends to lead defence evidence.

5. Thereafter, accused Diwakar Sharma moved an application under Section 315 Cr. P.C. to allow him to appear in witness box as a witness. The same was allowed vide order dated 08.03.2016. The accused was examined as DW-1 and stated to the effect that on 1.1.1994 at the beginning of check period he had Rs.80,000/- (appox.) cash in his hand and Rs.1.80 lac cash in hand of his wife in addition to the income as calculated by the IO. He was officer of five group housing societies which was building housing projects in Noida and Gurgaon. The members of these societies were Central, State and PSUs employees. He was President of Jai Jagdambe Housing society, Secretary of Kendriya Mantralay Housing Society, Secretary of Govt. and Public Sector Employees Welfare Housing Organization, Secretary of Kendriya Niketan Welfare Housing Society and President of Jan Vikas Housing Society. He was not paid any remunerations by the societies but the expenses of his mobile phones and petrol bills were either paid or reimbursed by the societies. He was also extended interest free loans by these societies. On the day of registration of case, an amount of Rs.16.0 lac was outstanding of Kendriya Niketan CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 100 Welfare Housing Society and the certificate in this respect is Ex. DW1/A issued by Mr. Anand Kumar Jain, CA of the society. It has been further submitted that loan of Rs.4.0 lac of Kendriya Awas Housing Welfare Society. The certificate in this respect signed by Mr.Jain is Ex.DW1/B. Society namely M/s Swarn Jyoti Cooperative Housing Society transferred a sum of Rs.1.0 lac in his account for purchase of marble, but the marble was not purchased and amount of Rs.1.0 lac remained in his account and was treated as loan by the society. Apart from these loans, he has taken a loan of Rs.4.0 lac from Sh.Surender Kumar one of his friend and certificate in this regard signed by Surender Kumar is Ex.DW1/D. A loan of Rs.4,84,016/- was outstanding against him of his sister- in-law (Bhabhi) Smt. Anju Jakhmola which was repaid by him after the check period. He has further deposed that a cash loan of Rs.40,000/- was taken when he was hospitalized at Kailash Hospital and this amount has been returned by him after check period. He further deposed that a sum of Rs.50,000/- was found at his home and an amount of Rs.1.47 lad was found at the office of society was also treated as loan by the society as this amount was seized by the society. When the search was conducted he was under

impression that it was a case in the functioning of society but later on he came to know that it was a case of disproportionate assets.

Whenever IO called him, he joined the investigation. IO enquired about his income and expenditure. He requested the IO to supply him to copies of documents seized in the matter because without going through the documents it was not possible for him to account for income and expenditure. He has also written letters CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 101 dated 6.1.06 and 4.8.06 Ex. DW1/E and Ex. DW1/F to IO and in view of his request, IO always assured him to supply the copies of documents. However, when the chargsheet was filed, he was shocked as he was not given opportunity to explain before IO, his assets, income and expenditure etc. The witness further deposed that in the y ear 1998 and 2000, he was suffering from Sarciodosis and was admitted in hospital many times and during this period, his in-laws and other relatives helped him amounting to Rs.8.25 lac by way of cheques in the account of his wife. In addition to this a sum of Rs.2.65 lac was also given to him as help by way of cheques in his account.

The witness further deposed to the effect that his wife received an amount of Rs.1.72 lac in her account by way of income tax refunds or dividends/refunds from UTI against the investments made by his wife before the check period. His wife had gold and other jewelery of 2474.05 grams. Some of the gold jewelery was sold which has been accounted for in the chargsheet while the remaining gold was sold by his wife in Dariba Kalan and its amount of Rs.9,69,600/- was given to him by his wife.

The witness further deposed to the effect that her mother fell seriously ill in 2000 and gave two sets of gold to his wife and asked her to sell the first set and give the proceeds of same to her daughter and daughter-in-law and also asked his wife to keep the balance gold and deal with the same in the manner she wishes. This gold was sold by his wife and proceeds amount of the same to the tune of Rs. 5,62,750/- were given to him.

The witness further deposed that his father-in-law sold his CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 102 DDA flat at Kalkaji in 1994 and its proceeds were equally divided among his six children and his wife got 1/6th share to the tune of Rs.2.0 lac. The witness further deposed that his wife joined Govt. service in the year 1985 as TGT Physics and became Principal in 2013. During all these years she performed invigilation duty and checked answer sheets and upto the year 2005, she received a total of Rs.75,000/-. The witness further deposed that in 1996 he went to Jammu and Kashmir on election duty and for this he was paid a sum of Rs.26,000/- in cash.

The witness further deposed to the effect that in chargsheet his salary for 11 years has been wrongly calculated and his salary is short by Rs.5,20,070/-. The calculation sheet prepared by him in this respect is Ex. DW1/G. During check period he has sold a flat to Mr.Subham Khan and received a sale consideration of Rs.2.80 lac, whereas in chargesheet on this account, his income has been shown as Rs.2.0 lac only. The witness further deposed to the effect that an amount of Rs.1.38 lac received in the account of his minor son, given to him through different cheques, has not been accounted for in chargsheet. They performed Mundan ceremony of their son in 1994 and cash gifts amounting to Rs.40,000/- were received by them on this occasion from family members, relatives and friends. The witness further deposed to the effect that on his 10th wedding anniversary, they received cash gifts of Rs.45,000/- after deducting all expenses. On 10th birthday of his son in 2002, they received cash gifts amounting to Rs.75,000/- from relatives and family friends after deducting expenditure. The witness further submitted that on Grih Pravesh of his flat in Jagdambey Apartment CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 103 in the year 2004, the total collection of cash gifts was Rs.1.50 lac after deducting the expenditure. The witness further deposed that cash gifts to his son during his 11 birthdays, except 10th birthday, amounting to Rs.60,000/- approximately. The witness further deposed to the effect that in 1994 he purchased a flat out of his wife's savings in Mayur Vihar, which he rented out in 1996 to two companies till 2001 and its rental income comes to Rs.1.0 lac.

The witness further deposed to the effect that the amount of Rs.4,59,582/- shown as expenditure incurred by him on different mobile phones were used by the office bearers, site engineer etc. of different societies during 60 months of check period. All these expenses were incurred by four societies already mentioned.

The witness has further submitted to the effect that landline number 6165165 installed at his residence 251/12, R.K.Puram was in the name of his brother-in-law Dr.Ashish Nathani, who used to share accommodation with them. Dr. Ashish Nathani also shared total expenses incurred on rent, electricity and water charges on 50:50 basis. His mother was recipient of two pensions of his father as one for his father service in Army and another for his Government service after pre-mature retirement from army. He resigned from his job in 2005 and he earned approximate Rs.1.0 crore in next four years and settled all loans of societies, friends and relatives. The witness was cross-examined at length by Ld. PP for CBI. However, the same would be discussed at the appropriate stage of appreciation of evidence.

5.2 DW-2 is Ms.Savita Jakhmola. She has submitted to the effect that she is M.Sc. Physics and M.Ed. and working as Head CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 104 of Navyug School Mandir Marg, New Delhi. She has further submitted to the effect that she joined as part time teacher in Govt. Girls Sr.Secondary School No.3, Sarojini Nagar from 1982 to 1985. She was selected in Delhi Administration School as TGT Science and worked for three years from 31.10.1985 to 18.12.1987. On 19.12.1987 she joined Shyama Prasad Vidyalya and worked there till 19.12.1990. From 20.12.1990 till 01.01.1994 she worked as PGT Physics in Navyug School, Sarojini Nagar and from 1994 till January, 2014 she has worked in various Navyug Schools as PGT Physics. The witness has brought on record the certificate issued by the Principal of Govt.Girls Sr.Secondary School no.3 Ex.DW2/A, photocopy of memorandum of Sharda Public School issued to her as Mark DW2/X, appointment letter dated 30.10.1985 issued to her by Deputy Director Education as Ex.DW2/B, memo dated 22.10.1990 issued to her by the Principal of Shyama Prasad Vidyalya as Ex.DW2/C, appointment letter dated issued to her by the Principal of Navyug School, Sarojini Nagar, Ex.DW2/D and relieving order dated 30.01.2004 issued to her by the Principal Navyug School, Moti Bagh Ex.DW2/E. She was married to accused Diwakar Sharma on 19.11.1989. The witness further submitted that on 02.02.2005, 5-6 officials from CBI searched their house and took away all the documents relating to transactions, copies of income tax returns and related to housing societies in which her husband was office bearer. The witness further submitted to the effect that at the start of check period, she was having a sum of around Rs.3,38,000/- cash in her hand CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 105 as she was working as teacher since 1982. Apart from Rs.3,38,000/- she was also having cash in hand of a sum of Rs.30,000/- which she received as honorarium from NCC. She has also received certain gifts, cash, jewelery at the time of her marriage from her parents' side as well as from in-laws and out of said cash amount, she had given a sum of Rs.1.80 lac to her husband to purchase the flat no. 8A at Mayur Vihar Phase III.

The witness further submitted that flat no.21 H, Mayur Vihar was sold to Mr.Shubham Khan for Rs.2.80 lac.

The witness further submitted to the effect that in the year 2003-04 they performed Grah Parvesh ceremony of their house at Jagdambe Apartment, Sector 62, Noida, wherein they received cash as gifts from guests and after meeting with all expenses, a sum of Rs.1.50 lac was saved. During check period, financial help of Rs.8,25,000/- was given to her by her father and other family members, through cheques. She has also received certain funds from UTI as well as income tax department to the tune of Rs.1,72,000/-. The witness further submitted to the effect that in December 2004 gold of about 2.5 KG was sold by her to Maan Jeweler and Bimal Jewelers, at Karol Bagh and one jeweler at Dariba Kalan. Her mother-in-law had gifted her gold around 1 KG which was sold by her to a jeweler at Dariba Kalan in December, 2004.

The witness further submitted that in 1995-96 she has received a sum of Rs.2.0 lac as her share from the property i.e. DDA flat sold by her father. She has received an amount of Rs. 75,000/- towards invigilator duty and checking of answer sheets CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 106 and the honorarium of external examiner appointed by CBSE.

The witness further submitted to the effect that her husband booked a flat in Jan Vikas Housing Society for which her sister- in-law Mrs.Anju Jakhmola had payment of Rs.4,84,000/- to the society, on his behalf. In the year 1996, they had performed Mundan Ceremony of their son Ishan in which they received a sum of Rs.40,000/- as gift from their relatives. The witness was cross-examined at length. However, the same would be discussed at the appropriate stage of appreciation of evidence.

DE was closed.

6. I have heard the arguments of Sh.S.Jaiswal, Ld. Sr. PP for CBI and Sh.Kamal Kapoor, Ld. Counsel for accused. Written submissions have also been filed by both parties.

7. Ld. counsel for accused has submitted that as per provisions of CBI manual, before registration of FIR, preliminary enquiry is required to be conducted and in case any material is collected against the accused during the preliminary enquiry, only then the FIR can be registered. But in this matter no preliminary enquiry has been conducted which shows that the CBI has flouted their own codified procedure by registering the FIR straightway. It has been further submitted that the accused was posted as Under Secretary in the Ministry of Science & Technology and was associated with some housing societies. There was no complaint either from the office of the accused or from any housing society against the accused. But simply on receipt of some anonymous CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 107 complaint/source information, the FIR has been registered by the CBI in hasty manner. It has been further contended that in case CBI conducted preliminary enquiry, the accused might have chance to explain his position and there might have been no reason to register the FIR. It has been further contended that this act of CBI vitiate the entire proceedings. Reliance has been made in case Vinit Narain & ors. Vs Union of India & anr. 1998 (1) SCC 226 and Shashi Kant vs CBI & ors., 2007 (1) SCC 630.

On the other hand, ld. Sr. PP for CBI has submitted that in view of provisions of Section 154 of Cr.P.C. on receipt of information that any cognizable offence has been committed, then the police has no option except to register the FIR. The reliance has been made in case Lalita Kumari vs Govt. of UP & ors., 1 WP (Criminal) No.68 of 2008.

Heard. Material perused.

Before proceeding ahead, here it is necessary to reproduce Section 154 of Cr.P.C., which is as under :

154. Information in cognizable cases.- 1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

2) ...........

3) ...........

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                           108

In case State of Haryana vs Ch.Bhajan Lal, AIR 1992 SC 604, Hon'ble Supreme Court has, inter alia, held as under :-

The condition which is sine qua non for recording a FIR is that there must be an information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154(1) the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

In the light of provisions enshrined in Section 154 of Cr. P.C. and aforesaid judgment, whenever officer-in-charge of Police Station receive information disclosing a cognizable offence, he has no other option except to register the FIR.

In case Lalita Kumari vs Govt. of UP & ors (Supra), Hon'ble Supreme Court has held as under :-

Conclusion/directions:

111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a condition.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered.....

iv) the police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 109 officers who do not register the FIR if information received by him discloses a cognizable offence.

In view of this judgment, in case the information furnished to the police, does not disclose a cognizable offence only then the preliminary inquiry is required to be conducted, but in case the information disclose commission of cognizable offence then the police officer has no other option except to register the FIR. It has been further held that in case police officer does not register the FIR on receipt of information of cognizable offence, then action must be taken against him.

As per CBI crime manual Chapter IX, para no.9.1 "when information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry.

Reverting to the present matter, at this juncture, the Court is required to see if in this matter, credible information available with the CBI disclosing the commission of cognizable offence, or not. For this purpose the contents of FIR Ex. PW104/A scrutinized carefully which reflects that at the time of registration of FIR, the CBI had the information that the accused had acquired assets to the tune of Rs.70.0 lac which were observed to be disproportionate to his known source of income of Rs.20.0 lac.

Under these eventualities, when the CBI had credible information regarding disproportionate assets of the accused, then the CBI had no other option except to register the FIR. Under these circumstances there was no necessity to conduct preliminary CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 110 inquiry and the act of registration of FIR has been performed as per CBI crime manual Chapter IX, para no.9.1. I have carefully gone through the judgments in cases Vinit Narain and Shashi Kant (Supra). and it is found that findings of the said judgments are not applicable to the facts of the instant case.

In the light of above discussion, the contention of ld. Counsel for accused that in the absence of preliminary inquiry, the whole proceedings stand vitiate, are found to be without any merits and stands discarded accordingly.

8. The next contention of ld. counsel for accused is that as per Section 13(1)(e) of PC Act, it is imperative that the accused must be given opportunity to offer his explanation before filing of the chargsheet. In this matter the accused has requested IO to supply relevant documents to enable him to explain his point of view. Even the accused has written two letters one in January, 2006 and another in the month of August, 2006 i.e. Ex.DW1/E and Ex.DW1/F. But the said letters were neither replied nor the documents were supplied. Hence, the accused could not explain his defence to IO for which accused is entitled for benefit. The reliance has been made in case K.Veeraswami vs UOI, 1991 (3) SCC 655.

On the other hand, Ld. Sr.PP for CBI has submitted that proper opportunity was given to accused persons to explain the source of income during the investigation and this fact has come in the evidence of PW-106, IO SI Satinder Bisht.

Heard. Material perused on this score.

Before proceeding ahead here it is necessary to reproduce CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 111 the relevant portion of the evidence of PW-106 IO DSP Satinder Bisht, which is as under :-

During examination-in-chief :-

During the course of investigation, I examined the accused Diwakar Sharma and put the disproportionate amount before him. Accused stated that he will explain the alleged disproportionate amount before the Court. No satisfactory explanation was offered to me by the accused for disproportionate amount.

During cross-examination :-

During investigation I have given proper opportunity to the accused to explain his assets and expenditure. When the accused was called at our office, after search, he was allowed to inspect all the documents to enable him to explain his assets, expenditure, income and liability (Vol.But the accused has not demanded the copies of documents seized during search at that time but he has inspected the documents)........ It is correct that the accused and his wife joined the investigation whenever they were directed to do so.

From the said portion of the evidence of IO, it left with no doubt that the accused was given proper opportunity to join the investigation and the accused has even joined the investigation.

Further the accused claimed that he was not provided the copies of documents and has even brought on record two letters dated 6.1.2006 and 4.8.2006 i.e. Ex. DW1/E and Ex. DW1/F to substantiate his contentions in this regard. On this score it is found that when the explanation in this respect was called from the IO, he deposed that he did not remember if the accused has handed over CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 112 any such letters to him.

Here the question arises whether the accused was entitled for copy of any document during investigation? In this respect it is found there is nothing in Cr. P.C. which gives right to the accused to obtain the copies of documents collected by IO for investigation to enable the accused to explain his view to the IO. As per the provisions of Cr.P.C., the accused is entitled for the entire set of documents only after filing of the chargsheet u/Section 207 Cr. P.C., if the case is triable by the Magisrate or under Section 208 Cr.P.C., if the case is triable by Court of Sessions. In case K.Veeraswami vs. UOI & ors., 1991 SCR (3) 189, Hon'ble Supreme Court has, inter alia, held as under :-

To state that after collection of all material, the investigating officer must given an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating him to the position of an enquiry officer or a judge. He is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he filed in the Court as a chargsheet. The investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. Indeed, fair investigation requires that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate.

The Investigating Officer is required to consider his explanation and the charge sheet filed CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 113 by him must contain such averment. The failure to mention that requirement would vitiate the charge sheet and renders it invalid. This sub-mission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. ...... The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the Court as charge sheet.

In case State of Maharashtra and other vs Ishwar Piraji Kalpatri and others, 1996 Cri.L.J. 1127(1), Hon'ble Supreme Court has, inter alia, held as under :-

the aforesaid passage leaves no manner of doubt that the opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. The conclusion arrived at by the learned single Judge that principles of natural justice had been violated, as no opportunity was given before the registration of the case is clearly unwarranted and contrary to the aforesaid observation of this Court in K.Veeraswami's case (Supra).

In the light of aforesaid judgments it is found that the stage available to the accused to explain his assets etc. is before the Court only and not during investigation. Under these circumstances, even if it is presumed that the accused had written letters Ex. DW1/E and Ex. DW1/F and the IO has not acted upon these two letters, CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 114 even then the accused is not entitled for any benefit because the IO was not under any obligation to supply documents to accused. In view of the foregoing discussion, the arguments of ld. Counsel for accused that he was not afforded proper opportunity to explain his defence during investigation is without any merits.

SANCTION

9. The next contention of ld. counsel for accused is that the sanction to prosecute the accused granted by the competent authority in this matter was not valid. On this account it has been submitted that CBI has not taken the advice of Central Vigilance Commission (CVC). It has been further contended that correct and complete record was not placed before the sanctioning authority.

On account of taking advice from CVC, the accused has referred Rule 22.15.1 of CBI (Crime) Manual 2005, as under :-

"In all cases under Prevention of Corruption Act, 1988 where sanction for prosecution is required to be issued in the name of the President, the CBI will forward its report, after completion of the investigation, to the Central Vigilance Commission and endorse a copy thereof to the Administrative Ministry/Department concerned for such comments as they may wish to make. Their comments shall be forwarded by the Ministry/Department concerned to the CVC within one month from the date of receipt of the CBI report or such period as may be fixed by the CVC. After due consideration of the CBI report, other relevant records and comments received from the Administrative Ministry/Department, the CVC will tender advice to the concerned Ministry/department whether prosecution should be sanctioned or not. Appropriate orders will, CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 115 thereafter, be issued by that Ministry/department."

The accused has also referred the following provisions of CVC Act:-

8. (1) The functions and powers of the Commission shall be to - (a) exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 be charged at the same trial; (b) give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under sub-section (1) of Section 4 of the Delhi Special Police Establishment Act, 1946.

Ld. Counsel for accused has further submitted that the CBI manual is based on Cr. P.C. and is binding upon CBI and the CBI cannot violate the provisions of CBI manual. On the basis of these submissions it has been submitted that it is a grave irregularity on the part of the CBI, therefore, the sanction to prosecute the accused accorded in this matter cannot be termed as valid sanction. The reliance has also been made in cases Vinit Narain & ors. Vs UOI, 1991 SCC 261, Inspector of Police, Visakhapatnam vs Suryasankaram Karri, 2006 (7), State of Karnatakar through CBI vs C.Rangarajaswamy, 2005 (8) SCC 370, Ashok Kumar Agarwal vs CBI, WP (Cri) 1401/2002, State of Goa vs Babu Thomas, 2005 (8) SCC 130.

On the other hand Ld. Sr.PP for CBI has submitted that as per CBI (Crime) Manual para 22.15.1, CVC has to tender advice to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 116 the concerned Ministry /department, but it is nowhere mentioned therein that the concerned ministry or department is bound to follow the advice of CVC. It has been further contended that as per deposition of PW-106 IO Satinder Bisht, copy of file was sent to CVC and further argued that once the copy of case file was sent to CVC, the CBI has no role as to what advice was tendered by the CVC to the concerned department because at that point of time the matter was between the CVC and concerned department. It has been further submitted that there is no irregularity or illegality in the sanction order Ex.PW66/A brought on record by PW-66 Sh. K.K.Sharma.

Heard. Material perused.

As pointed out by Ld. Sr.PP for CBI, PW-106 IO DSP Satender Bisht during cross-examination on calling explanation, has deposed to the effect that copy of file was sent to CVC. The testimony of this witness in this respect, remained un-controverted and un-impeached because no further explanation of the witness was called. Even no suggestion was put to the witness that he has not sent the copy of the file to CVC. On this account, I find substance in the contention of Ld. Sr.PP for CBI that once the copy of file was sent to CVC, the CBI has no role to play in the process of granting sanction by the authority. Under these circumstances it is found that CBI has not violated the Rule 22.15.1 of CBI (Crime) Manual because the copy of the file was sent to CVC.

Further, ld. Counsel for accused has submitted that the advice to CVC is mandatory by virtue of Cl.(a) of sub-section (1) of Sec.8 of CVC and has relied upon judgment in case Vineet CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 117 Narain v UOI, 1988 Cr.L.J. SC.

On this aspect, in case UOI vs Prakash P. Hinduja and another, (2003) 6 SCC 195, Hon'ble Supreme Court has discussed judgment in case Vineet Narain (Supra) and, inter alia, held as under :-

In view of the contentions raised it becomes necessary to examine the judgment in Vineet Narain in the little detail so as to understand its real content and import. ...... A duty has been cast on CVC to review the progress of all cases moved by CBI for sanction of prosecution, especially those in which sanction has been delayed or refused. The judgment nowhere says that CBI will have to take concurrence or sanction from CVC before filing a charge-sheet in court. No right of any kind has been conferred upon the alleged offender or the accused to approach CVC or to challenge the action of CBI in submission of a charge-sheet in court on the ground of some purported irregularity in making a report to CVC regarding the progress of investigation. .......... The direction issued was never meant to create or confer some kind of additional rights in favour of the accuse as was held by the High Court. The accused has absolutely no right to approach CVC for taking any steps to stop CBI from either proceeding against him or from launching prosecution against him by filing a charge-sheet. Further, the directions issued do not confer any kind of a right upon the accused to assail the charge-sheet on the ground that CBI had not reported the progress of investigation to CVC or had not taken some kind of approval or concurrence from it before submission of the charge-sheet in court.

In the light of this judgment, CBI is not required to take sanction from CVC before filing charge-sheet. Reverting to the present matter, for the sake of arguments, if it is presumed that CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 118 there was any lapses on the part of IO regarding sending the file to CVC, it does not effect the case of the prosecution in the light of this judgment. Hence, the contention of ld. Counsel for accused in this respect is without any merits. I have carefully gone through the judgments in cases Inspector of Police, Visakhapatnam vs Suryasankaram Karri, , State of Karnatakar through CBI vs C.Rangarajaswamy, Ashok Kumar Agarwal vs CBI & State of Goa vs Babu Thomas, and found that findings of said judgments are not applicable to the facts of the instant case.

The next contention of ld. Counsel for accused is that the letters Ex. DW1/E and Ex. DW1/F written by accused to IO for supply of documents were not sent alongwith other record to competent authority which reflects that the complete record was not sent to the competent authority which invalidates the sanction order.

On this score, as already discussed, the accused has no right to obtain the copies of documents during investigation. Under these circumstances, in case the said two letters have not been sent alongwith other record to the competent authority for obtaining the sanction to prosecute the accused, it does not effect the case of prosecution or invalidates the sanction order.

It has been further contended that details of the income and assets/expenditure of wife of accused has not been mentioned in the charge-sheet and without any such details, the sanction authority could not have applied its mind and this fact becomes more important when the accused was given benefit of a sum of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 119 Rs.5,29,066.62 from the saving of wife of accused. On the basis of these submissions it has been submitted that complete record was not placed before sanctioning authority and sanction was accorded without application of mind, merely in mechanical manner.

On this score, Ld. Sr.PP for CBI has submitted that CBI has given benefit of certain amount to the accused by considering the same to be savings of his wife. In case, the income of wife of accused was not the same as mentioned in the charge-sheet, he was having opportunity to explain her proper income and savings during his defence evidence.

Heard. Material perused.

In this matter, the prosecution has shown the assets of wife of the accused as Rs.43,33,460.12 during check period. But as matter of record there is no break-up of assets/income/expenditure of Smt.Savita Jakhmola. It is great lapses on the part of IO. However, when the IO appeared in witness box as PW-106, during evidence he has explained in this regard. Before proceeding ahead, here it is necessary to reproduce the relevant portion of examination-in-chief and cross-examination of the IO, which is as under :-

For calculating the saving amount of Smt.Savita Jakhmola, I had examined Smt.Savita Jakhmola during the course of my investigation and also examined other witnesses who proved her assets/income/expenditure. In respect of the items taken as asset/income/expenditure of Smt.Savita Jakhmola, there were no dispute. I have gone through the statement of Smt.Savita Jakhmola recorded by me u/S. 161 Cr.P.C. on 20.02.2006, 08.03.2006, 09.03.06 and 09.02.2007. On CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 120 09.02.2007, Smt.Savita Jakhmola specifically stated that she does not dispute the various asset acquired by her during the check period/various income earned by her during the check period and various expenditure incurred by her during the check period.

Cross-examination of PW-106 on this aspect :-

I have calculated the income, assets and expenditure of Smt.Savita Jakhmola, w/o of the accused. In the same manner I examined the accused also and recorded his statement, but I have not filed the said statement alongwith the charge- sheet. I can produce the same, if required. ...... I have placed on record the investigation qua income, assets and expenditure of wife of th accused. ...... It is also wrong to suggest that I at own recorded the false statement of Smt.Savita Jakhmola u/S 161 Cr.P.C. in which I mentioned wrong facts and due to this reason she was not examined.

From the said portion of evidence of IO, one fact remained on record that the existence of statements of Smt.Savita Jakhmola u/Section 161 Cr.P.C. recorded by the IO on different dates as referred in the evidence of IO, was in the knowledge of the accused. Existence of said statements further strengthen from the fact that a suggestion was put to the IO that he has recorded false statements of Smt.Savita Jakhmola and has mentioned wrong facts. Further the accused at no stretch of time has taken the plea that he was not supplied with the copies of statements. All the aforesaid statements are on record and the existence of the statements has been proved by the IO. Under these eventualities it is observed that since the statements are already on record and the accused knew CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 121 the existence of these statements, hence, in order to bring true facts on record for the just decision of the case, no prejudice would be caused to the accused, if the statements are considered for assessing the income and expenditure of Smt.Savita Jakhmola, during check period. The statements of this witness recorded on 09.02.2007 has been perused and, inter alia, it contains tables showing the details of her income, expenditure and assets during check period. Therefore, the information qua break-up of income, assets, expenditure and savings can be gathered from the statements of Smt.Savita Jakhmola. This fact nullify the claim of accused that there is no break-up of income and assets of Smt.Savita Jakhmola. Whether the prosecution has succeeded in proving these facts would be considered later on during appreciation of evidence.

Further, the sanction to prosecute the accused was brought on record by PW-66 Sh.K.K.Sharma, who deposed that at relevant time he was posted as Desk Officer in the department of Personnel and Training, Govt. of India and was authorized to authenticate the order passed by President of India under the Govt. of India (Order and other Instruments) Rules, 1958 and allocation of business Rules as notified under article 77 of Constitution of India. He further deposed that in his official capacity, he had the power to authenticate the orders relating to sanction granted by the Hon'ble President of India. Before proceedings ahead here it is necessary to reproduce the Article 77 of Constitution of India and relevant portion of the said rules, which are as under :-

Article 77 of Constitution of India.- Conduct of business of the Government of India. -

(1) All executive action of the Government of India CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 122 shall be expressed to be taken in the name of the President.

(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.

MINISTRY OF HOME AFFAIRS NOTIFICTION New Delhi, the 16th February, 2002 S.O.211(E).- The following Order made by the President on 16-01-2002 is published for general information.

ORDER In exercise of the powers conferred by clause (2) of article 77 of the Constitution and in suppression of the Authentication (Orders and other Instruments) Rule, 1958, except as respects things done or omitted to be done before such suppression, the President is pleased to make the following rules, namely:-

(1) These rules may be called the Authentication (Orders and other Instruments) Rules, 2002. (2) They shall come into force on the date of their publication in the official gazette. All orders and other instruments made and executed in the name of the President shall be authenticated -

(1) by the signature of a Secretary, Special Secretary, Additional Secretary, Joint Secretary, Director, Deputy Secretary, or under Secretary to the Government of India; or CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 123 (2) by the signature of a Director or Desk Officer in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to the Government of India (Allocation of Business) (3) ...........

(4) ...........

In view of the provisions of Article 77 of Constitution of India, all the executive actions of Government of India shall be taken in the name of Hon'ble President and, inter alia, the orders etc. made in the name of Hon'ble President shall be authenticated in a manner as may be specified in the rules made by the President.

The aforesaid notification bearing no. S.O. 211(E) of Ministry of Home Affairs has been ordered by the President on 16.01.2002 and as per sub-rule (2) of the notification, inter alia, Desk Officer in the ministries are competent to authenticate the orders of President of India.

Reverting to the present matter, the power of this witness to authenticate the orders relating to sanction granted by the Hon'ble President of India has not been disputed.

Further from careful scrutiny of sanction order Ex. PW66/A , it is found that the details of all movable, immovable properties, income, expenditures of the accused as well as his wife have been mentioned therein. During lengthy cross-examination of this witness, Ld.counsel for accused failed to extract anything in favor of accused that the entire record was not perused before according sanction. More over, on the basis of the record placed before sanctioning authority, the authority reached at the conclusion that the accused has been found in possession of assets CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 124 amounting to Rs.44,47,761.15 disproportionate to his known source of income for which he could not offer any satisfactory explanation during investigation. This shows the sanctioning authority had requisite record to accord sanction to prosecute the accused. Hence, it cannot be presumed that sanctioning authority has not perused the material or has that sanction to prosecute the accused has been granted in mechanical manner.

10. Further, ld. Counsel for accused has submitted that the ingredients of Section 13(1)(e) of PC Act have not been proved by the prosecution because the total income, assets and expenditures of the accused and his wife have been wrongly assessed by the CBI. It has been further urged that in this matter the prosecution has failed to prove the immovable or movable assets of accused as mentioned in charge-sheet, which shows that the prosecution has failed to discharge its initial burden. It has been further submitted that the burden shifts to the accused only when the prosecution discharge its initial burden. Reliance has been made in case M.Krishnareddy vs State 1992 (4) SCC 45.

It has been further submitted that the accused is not required to explain with mathematical exactitude of DA but is required to prove the same as preponderance of probabilities. The reliance has been made in cases K.Veeraswamy vs UOI, (1991) 3 SCC 655, C.S.D. Swamy v The State, AIR 7 1960 SCR 1 (461), Hemantha Kumar Mohanty v State of Orissa, 1973 (1) SLR 1121, State v Bharat Chandra Roul, 1995 Cr.L.J. 2417 (Orissa).

Heard. Material perused. Before proceeding ahead, for CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 125 reference here it is necessary to reproduce the Section 13(1)(e) of the PC Act and relevant law, as under :-

Section 13 (1)(e) of the Prevention of Corruption Act, 1988 reads thus :

"A public servant is said to commit the offence of criminal misconduct,

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation. For the purposes of this section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

In VK Puri Vs. Central Bureau of Investigation, 2007(6) SCC 91, the conditions essential to bring a case u/S 13(1)

(e) of the PC Act were laid down as under:

                    a)    The accused is a public servant;
                    b)    The nature and extent of the pecuniary
                          resources of property found in his
                          possession;
                    c)    His known sources of income, i.e. known to
                          the prosecution.
                    d)   Such resources or properties found in
                          possession of the accused were
                          disproportionate to his known sources of
                          income.
                    e)    After the aforementioned ingredients
                          are established by the prosecution, the
                          burden of proof would shift on the accused
                          to show that the prosecution case is not
                          correct.

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CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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                    Once    the    above       ingredients           are         satisfactorily

established, the offence of criminal misconduct u/S.13(1)(e) is complete, except if the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused. On this account, arguments advanced by ld. Counsel for accused are found to be correct that initial burden to prove that accused was found in possession of disproportionate assets is on the prosecution and once the prosecution succeed in proving this fact, only then the burden shifts to the accused. However, it would be too early to comment whether the prosecution has succeeded to prove this fact because the evidence has not yet been scrutinized. The same would be considered later on, after appreciation of evidence.

Further as contended by ld. Counsel for accused, admittedly the burden on the accused is not as onerous as lies on prosecution as the prosecution is required to prove its case beyond reasonable doubt and per contra, the accused is required to show preponderance of probabilities of existence of any fact. However, it is also well settled law of land that the defence of the accused should satisfy the judicial mind on the preponderance of probabilities.

In this case, whether the prosecution has succeeded in proving its case beyond reasonable doubts or that the accused has succeeded in establishing its probable defence to the satisfaction of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 127 the Court, is matter of appreciation of evidence and the same would be looked into later on at the appropriate stage.

11. Ld. counsel for accused has submitted that as per charge-

sheet the total assets of accused and his wife were calculated as Rs.1,16,11,944/- whereas from the statement of witnesses, only Rs.89,07,164/- has been proved. It has been further submitted that large amount of assets and expenditures attributed to the accused or his wife has not been proved by the prosecution.

In this regard, the material available on record has been scrutinized and each asset as mentioned in charge-sheet, has been discussed as under :-

ITEM NO.1. Saving of Rs. 8268/- at UBI, Safdarjung Development Area, New Delhi (A/c No. 2282) The statement of account of aforesaid number in the name of accused of Union Bank of India has been brought on record as Ex. PW75 Om Prakash Kohli. The statement of account reflects that as on 11.1.2005 i.e. within the check period, a sum of Rs.8268.67 was balance in the said account. The accused has not controverted it during cross-examination. Hence, it is found that the said amount of Rs.8268.67 is asset of the accused.

ITEM NO. 2. Saving at SBI, NCERT, New Delhi (A/c No. 7289) The statement of account Ex. PW40/A1 in the name of Dilochand Sharma (earlier name of the accused) a sum of Rs.1,082/- were balance in his account as on 06.01.2005. The statement of account Ex. PW41/A1 was brought on record by Mr.Laxmi Narain Gupta of NCERT Branch of SBI showing the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 128 balance of a sum of Rs.1,082/- and the same is considered to be asset of the accused.

ITEM NO.3 Payment made for purchase of housing Flat no. D-101, Jagdamba Apartment, Sector 62, Noida from a sum of Rs.15,93,315/-.

Ld. Sr.PP for CBI has submitted that the accused during check period has owned a flat No. D-101, Jagdamba Apartment, Plot no.C-58/25, Sector 62, Noida and has paid a sum of Rs. 15.93 lac for the same.

On the other hand, ld. counsel for accused has submitted that the accused has paid Rs.12.70 lac only as consideration amount for purchase of flat and not Rs.15.93 lac as per case of the prosecution.

Heard. Material perused.

The prosecution has examined PW-27 Mr.Shyam Sagar, Secretary of Jai Jagdambe and submitted that at relevant time accused was President of the society. The witness submitted that the cost of the flat was Rs.15.93 lac and brought on record the details of payment made by accused to the society i.e. Receipt no. 707 dated 09.06.2000 Ex.PW27/C Rs. 6,500/- Receipt no. 1270 dated 20.03.2002 Ex.PW27/D Rs.8,00,000/- Receipt no.1680 dated 18.05.2003 Ex.PW27/F Rs.4,70,000/- Receipt no. 1272 dated 06.04.02 Ex.PW27/E Rs.2,00,000/- Receipt no. 1751 dated 08.08.04 Ex.PW27/G Rs. 86,954/-

                                           Total                         Rs.15,63,454/-



CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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The accused has not brought on record any material that how he claim to have purchased the flat @ Rs.12.70 lac. Hence, the contention of ld. counsel for accused on this account is found to be without any basis and stands brushed aside accordingly. Hence it is found that the cost of the flat No. D-101, Jagdamba Apartment, Plot no.C-58/25, Sector 62, Noida was Rs.15,63,454/- and the same was asset of the accused.

ITEM NO. 4 Payment of Rs.1,56,730/- made at Kendriya Niketan Welfare Housing Society, Plot No. F-31, Sector-50, Noida.

In this respect it is found that PW100 Brijesh Kumar deposed that during the relevant period he was Administrative Officer of Kendriya Niketan Welfare housing society. Accused Diwakar applied for one flat and deposited Rs 5120/- vide receipt no. 003 dated 10.2.2003 and Rs 151610/- vide receipt no. 024 dated 5.4.2003 for the said flat. During cross-examination payment made by the accused against the said receipts has not been controverted and evidence of this witness on this score remained unconverted, unimpeached and therefore it is found that prosecution has succeeded in proving that the accused has paid Rs. 1,56,730/-

(payment made by both the receipts) for the flat allotted to him in Kendriya Niketan Welfare Housing Society.

ITEM NO. 5 Payment made at Government and Public Sector Employee Welfare Housing Organisation, Sector-44, Noida April, 2004.

On this score, it is found that PW-27 has brought on record the receipt Ex. PW27/I and Ex.PW27/J vide which accused has CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 130 paid sum of Rs.1610/- towards admission fee for membership of the said society and a sum of Rs.30,000/- vide receipt Ex.PW27/J towards land money. Further, PW-76 Mr.Vijay Sachar has brought on record receipt Ex. PW76/C dated 27.01.2005 vide which further payment of Rs.11,270/- was made as membership fee. The total amount comes to Rs.42,880/- which is found to be asset of the accused.

ITEM NO.6 Payment made at Jan Vikash Co-operative Group Housing Society, Dwarka onward January, 2004 Next contention of ld. Cousnel for accused is that the part payment of Rs.4,84,416/- in respect of one of the flat issued in the name of accused in Jan Vikas Group Housing Society was made by his sister-in-law Smt.Anju Jakhmola by way of cheque Ex.PW27/DA. The said amount was returned by accused, hence, the same can not be considered as assets of the accused.

Heard on this score. Material perused.

PW-27 Mr.S.L.Sagar, who was Secretary of society at relevant time, during cross-examination has stated that the said amount was received on behalf of the accused by way of cheque issued by Mrs.Anju Jakhmola. The cheque was brought on record as Ex. PW27/DA. PW-76 Mr.Vijay Sachar and PW-96 Mr.Harish Kumar, husband of Mrs.Anju Jakhmola has also stated in same manner on this account.

On this score it is found that the source of income of Mrs.Anju Jakhmola has not been brought on record to show that the amount paid by her to the society on behalf of the accused was CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 131 paid by her from her savings. Further, there is; no material on record which suggest whether the said amount has been returned by the accused and, if so, when; no record that the accused has intimated his department of said loan; no ITR of Mrs Anju Jakhmola failed to show her capacity to advance such loan. Hence, the accused has failed to explain to the satisfaction of the Court that the said amount was received by accused from lawful source. Hence this amount is considered as asset of the accused.

ITEM NO.7 OF INCOME. Flat no. 21-H, Pocket II, Kondli Gharoli, Mayur Vihar Phase III.

On this account, Ld. Sr.PP for CBI has submitted that the accused has purchased the said flat on 28.1.1999 and has paid Rs.50,000/- for the same. But no witness has been examined in this respect nor any document has been brought on record that this property was purchased by the accused for Rs.50,000/- amount during the check period. Hence, without any further discussion, it is hold that the same cannot termed as assets of the accused acquired during the check period.

ITEM NO. 8. Flat No. 8-A, Pocket A-2, Kondli Gharoli, New Delhi Ld. Sr.PP for CBI has submitted that accused purchased one Flat No. 8-A, Pocket A-2, Kondli Gharoli, New Delhi for a sum of Rs.3.30 lac from one Zahida Begum on 11.10.94 by way of Will, agreement to sell receipt etc. Ex. PW86/F and Ex. PW86/E. On the other hand, ld. Cousnel for accused has submitted that the prosecution has proved that a sum of Rs.3.30 lac was paid CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 132 against the said property.

On this score, it is found that Ms.Zahida Alam appeared in witness box as PW-86 and inter alia, she has brought on record agreement to sell, Will, GPA, SPA and two receipts etc. collectively as Ex. PW86/A which include one receipt vide which the accused has paid a sum of Rs.1.0 lac to her. Further, the witness has also brought on record another receipt and agreement executed on 26.5.94 Ex.P286/E which reflects that the total consideration amount of Rs.2.50 lac for the flat was agreed between the parties, out which Rs.30,000/- was paid as earnest money and remaining amount of Rs.2.20 lac was agreed to be paid by 26.9.94. The prosecution has not brought any other document to show that any further amount was paid by the accused. The proved documents i.e. receipt Ex. PW86/E and Ex. PW86/F shows that accused has paid total Rs.1.30 lac as sale consideration. Under these circumstances, it is found that the accused has paid Rs.1.30 lac for the this flat which can be considered as asset of the accused.

ITEM NO. 9 Flat No. 177-E, GR-13, Type-II, Kondli Gharoli, New Delhi As per prosecution, the said flat was purchased by the accused in the year 1997 for which he has made total payment of Rs.1.65 lac.

On the other hand, ld. Counsel for accused has submitted that accused has paid Rs.5000/- only as consideration amount during check period.

On this score it is found that prosecution has examined PW- 60 Mr.Ashok Kumar, son of late Sh.Mishri Lal original allottee of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 133 the flat. As per evidence of this witness flat was sold to accused for a sum of Rs.30,000/- for which receipt Ex.PW60/A was executed by brother and mother of the witness in favor of the accused. The receipt Ex. PW60/A perused which reflect that Rs.5000/- was paid by the accused on 15.1.97. During cross-examination the witness submitted that the remaining amount of Rs.25,000/- was paid after 2008 when GPA was executed. There is no other documentary proof on record which suggest that any other amount has been paid by the accused as consideration of the said flat during check period. Under these circumstances in the absence of any cogent evidence, it is found that the accused has invested Rs.5000/- only on the said flat during the check period which can be considered as his asset.

ITEM NO. 10. Purchase of Maruti Esteem Car No. DL 3CN 3185.

In order to substantiate its contention, Ld. Sr.PP for CBI submitted that as per the invoice No.13142 dated 17.12.2000 of a sum of Rs. 5,56,232.99, the Car No.DL4CN 3185 was delivered to the accused.

On the other hand, ld. Counsel for accused has submitted that the prosecution has failed to prove that a sum of Rs.5,56,232.99 was paid by accused for this car. It has been further submitted that a total sum of Rs.5,32,233/- only were paid.

Heard. Material perused on this account.

The ownership of the said car has not been disputed by the accused. PW-72 Mr.Ravi Kant Ram Pal, Dy.General Manger (Finance) of M/s Bhasin Motors Pvt. Ltd. has brought on record the documents relating to the said car collectively Ex. PW72/B1 to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 134 B17. The invoice bearing no. 13142 dt.17.12.2000 is also part of the record which reflects the total cost of car as Rs.5,56,232.99. However, the actual payment of the car made by the accused are through receipt dated 15.12.2000 of a sum of Rs.3.40 lac in cash, receipt dated 18.12.2000 of a sum of Rs.1,89,552/-by way of cheque No. 151545 drawn on Citibank and receipt dated 17.12.2000 of a sum of Rs.2681 in cash. Thus total amount comes to Rs.5,32,233/-. There is no other document of M/s Bhasin Motors on record which reflect that they have received any other payment against sale of said car apart from Rs.5,32,233/- from the accused. Hence, the value of the car is found to be Rs.5,32,233/- and not Rs.5,56,232.99 as claimed by the prosecution.

ITEM NO. 11. Purchase of Car make of Maruti 800 having No. DL-6CB-2991.

In this respect it is found that as per invoice Ex. PW29/B3, the value of the car was Rs.2,02,697/-. However, as per receipt dated 8.1.97 Ex.PW29/B1 and receipt dated 13.1.1997 Ex.PW- 29/B-2 a sum of Rs.8,6,36/- and Rs.1,96,362/- respectively were received by M/s Competent Automobile from the accused. The total amount paid for the car comes to Rs.2,04,998/-. The ownership of the car and payment of Rs.2,04,998/- has not been denied by the accused. Therefore, the value of the car is found to be Rs.2,04,998/- and the same are asset of accused.

ITEM NO. 12. Purchase of car make of Fiat bearing no. DEB- 0084.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          135

As per prosecution, accused has purchased the said car from his sister Mrs.Sunita Dhondiyal in the month of March, 1995 for a sum of Rs.45,000/-.

On the other hand, it has been contended on behalf of accused that prosecution has failed to bring any cogent material on record that the accused has paid a sum of Rs.45,000/- for the said car.

Heard. In this respect, the evidence of PW-77 Mrs.Sunita Dhondiyal perused, wherein, she in unmistakable terms has submitted that she has sold the said car to the accused for a sum of Rs.45,000/-. The lengthy cross-examination of this witness reveals that the accused has nowhere denied the fact of purchase of the vehicle from this witness against a sum of Rs.45,000/-. Hence, the evidence of PW-77 in this respect remained un-controverted and un-impeached and no reasonable ground is made out to doubt the evidence of this witness in this respect. Hence, it is found that the prosecution has succeeded to prove that value of the said car was Rs.45,000/- and the same is found asset of the accused acquired during check period.

ITEM NO.13 LIC policy No. 120991253 on dated 1.3.99.

Ld. Counsel for accused has submitted that prosecution has failed to prove that a sum of Rs.341/- is asset of the accused.

On this account, it is found that prosecution has examined PW-36 Surender Kumar Chaddha and PW-115 Mr.P.J.Tikkoo. PW- 36 has submitted to the effect that policy was for a sum of Rs.25,000/- with quarterly premium @ Rs.341/-. The policy CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 136 commenced in March, 1999. This fact has not been denied during cross-examination. The premium paid to the tune of Rs.341/- reflect from the receipt dated 15.3.2005 brought on record by PW- 115 as part of Ex.PW115/C (colly.). Therefore, the said amount of Rs.341/- is found to be movable asset of the accused.

ITEM NO.14 Premium on LIC policy No. 120965586 Ld. Counsel for accused has submitted that prosecution has failed to prove that accused has paid a sum of Rs.18261/- against the said policy.

On this aspect, it is found that PW-24 Mr.Mahesh Chand from the LIC office has brought on record the LIC policy Ex. PW34/A and the letter Ex. PW34/B. The Ex. PW34/A is the premium intimation letter which reflect that sum assured was Rs.25,000/- commenced on 15.03.99 with yearly premium of Rs.2,883/-. This premium intimation letter reveals that the last premium was paid in the month of March, 2003 and the next due was 15.03.2004. As per Ex. PW34/A against the said policy, the accused has paid total premium of Rs.14,415/- (i.e. 5 x 2883) w.e.f. 15.03.1999 to March, 2003. There is no other material on record i.e. receipt/mode of payment etc. that the accused has paid any other amount. Therefore, sum of Rs.14,415/- has been considered as assets of accused during the check period.

ITEM NO. 15. LIC policy No. 120611524 On this account, ld. Counsel for accused has submitted that prosecution has failed to prove that any amount was paid against CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 137 the said policy by the accused.

Heard. The prosecution has examined two witnesses in support of this claim. PW-32 is Mr.Krishan Lal Wadhwa and PW- 115 Mr.PJ Tikkoo both officers from LIC. PW-32 has brought on record the insurance policy as Ex.PW32/A which reflects that it commenced from 28.09.1996 for the sum assured of Rs.1.0 lac with 28 quarterly payments of a sum of Rs.2,869/-. It was money back policy for 12 years. As per terms of policy, on the completion of first four years, the policy holder was entitled for 30% of the sum assured. It transpires that after four years, the policy holder was entitled for a sum of Rs.30,000/- as money back of the total sum assured of Rs.1.0 lac. In this matter, the policy commenced on 28.9.96, hence, on 28.09.2000, the policy holder was entitled for Rs.30,000/-. The letter Ex. PW32/B written by Sr.Branch Manager, addressed to Diwakar Sharma reflects that as on 11.12.2001, a sum of Rs.4807/- was paid to the accused as the money back benefit after adjusting the unpaid premium of Rs.22,952/- with interest on the pending premium of Rs.2241/-. Since 08 installments were not paid, after adjusting the said installments which comes to Rs.22,952/- with interest of Rs.2241/-, a remaining sum of Rs.4,807/- was paid to the accused and the policy was continued. This reflects that Rs.45,904/- were invested by the accused till September 2000 (i.e. 28.09.96 to 30.09.2000, total 16 quarters (16x2869 = 45,904/-)). There is no other material on record which shows that the accused has made any other payment. Hence, the amount of Rs.45,904/- is considered as movable asset of accused acquired during check period.

CC No.17/13                                                                        (Bhupesh Kumar)
CBI vs .Diwakar Sharma                      Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          138

ITEM NO. 16. Premium on LIC policy No. 110113688.

On this aspect, prosecution has examined PW-33 Sh.Dhan Singh an officer from LIC. He has brought on record the ledger sheet of policy no.110113688 as Ex. PW33/A which shows that only one quarterly premium of Rs.832.50 was paid on 28.02.1989 i.e. prior to start of check period. Hence, the same cannot be taken as asset of the accused acquired during check period.

ITEM NO. 17. Saving of Rs.7,883/- at A/c No. 10198, Bank of India, Mayur Vihar, New Delhi On this aspect it is found that prosecution has examined PW-42 Sh.Dharam Pal Singh from Bank of India who has brought on record the statement of account with closing 18.6.2005 as Rs.7883/- which is also part of Ex.PW42/C. Thus, the amount of Rs.7883/- is found to be the asset of the accused.

ITEM NO. 18. Savings of Rs.1,17,187/- at UTI Bank Krishna Nagar, New Delhi (A/c No. 18416) In this respect, from perusal of file it is found that PW-48 Mr. Anupam Singh, Manager UTI Bank, inter alia, brought on record the account opening form of account bearing no. no.166010100018416 pertaining to accused as Ex. PW48/B which reflect that it was opened with initial amount of Rs.1000/-. The evidence of PW-56 Mr.Deepak Dhingra who is also Manager of UTI Bank, Krishna Nagar has inter alia, brought on record pertaining to account no.166010100018416 as part of Ex.PW56/A, which reflects that vide voucher dated 20.8.04 a sum of Rs.1.0 lac CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 139 was credited in this account. The original voucher is on record. Further, as per record, Rs.20,000/- were also credited in the account of accused on 15.10.04 from account of one Deepa Chauhan and on 27.1.2005 and 29.1.05 Rs.3500/- and Rs.11,270 were debited from this account. After deducting the said amount, the documents reflect that the total amount available was Rs.1,06,230/-. Hence, it is found that the prosecution has succeeded to prove that a sum of Rs.1,06,230/- only was available in this account.

ITEM NO. 19. Savings of Rs.531/- at Dena Bank, Lodhi Road, New Delhi (A/c No. 4102) In this respect it is found that PW-9 Mr.Raje Nal, Bank Official from Dena Bank has appeared in witness box and has brought on record the original account opening form No. 4102 of Diwakar Sharma as Mark PA and statement of account from 01.01.2002 to 30.05.2005 Ex.PW9/E, showing the balance as on 31.12.2004 as Rs.531/-. But this fact has not been denied during cross-examination. There is no ground to doubt the testimony of this witness, hence, the amount of Rs.531/- lying in the account of the accused are found to be movable asset of accused.

ITEM NO.20. Savings of Rs.8,399/- at Standard Chartered Bank, Sansad Marg, New Delhi (A/c 52310295129) In this respect it is found that PW-21 Mr.Amit Mehra, Cashier from Standard Chartered Bank has brought on record the statement of account of Diwakar Sharma bearing account no. 52310295129 collectively as Ex. PW21/A4 showing the balance of a sum of Rs.8,399/-. The fact of existence of said amount has not CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 140 been disputed during cross-examination of this witness. Hence, it is found that the amount of Rs.8,399/- in the said account of the accused are found to be movable assets of the accused.

ITEM NO.21. Savings of Rs.4,10,950/- at ICICI Bank, Mayur Vihar, New Delhi (A/c No.6297010-80294) in the name of Diwakar Sharma On this account, ld. Counsel for accused has submitted that the prosecution has failed to prove that a sum of Rs.4,10,950/- was balance in the account of the accused. It has been further submitted that prosecution has examined PW-74 Mr.Mayur Saraswat, bank official from ICICI bank who has brought on record statement of account of accused, but the same has not been certified under Banker's Book of Evidence Act.

Heard. Material perused. PW-74 Mr.Mayur Saraswat, Sr.Officer of ICICI Bank has inter alia, brought on record the statement of account of accused as Ex.PW74/B (Colly.) showing the balance as on 1.2.2005 as Rs.4,10,950/-. When the statement of account was exhibited, no objection was taken by the accused. Had the accused taken the objection of admissibility at that relevant time, then the position might be different. But the accused has waived his right by not taking the objection when the document was brought on record. But at this stage, the objection of the accused regarding admissibility of statement of account of accused is not maintainable. Reliance in this regard can be made in case, R.V.E.Vehkatachala Gounder vs Arulmigu Viswesaraswami & V.P.Temple and another, (2003) 8 SCC 752.

Further, during cross-examination the evidence of this CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 141 witness remained un-controverted and un-impeached on this score. Hence, it is found that the amount of Rs.4,10,950/- in the said account of the accused are movable assets of the accused.

ITEM NO.22. Savings of Rs.11,155/- at ICICI Bank, Mayur Vihar, New Delhi (A/c No. 6297010-80289) in the name of Master Ishan On this aspect, ld. Counsel for accused has submitted that the amount in the account of his son Master Ishan Sharma cannot be termed as assets of the accused as the said amount came into account of his son by way of gifts from the different relatives. It has been submitted that in this matter also the certificate under Banker's Book of Evidence Act has not been filed alongwith statement of account of Master Ishan.

Heard. PW-74 Mr.Mayur Saraswat has brought the statement of account of Master Ishan as Ex.PW74/B. However, objection of ld. Cousnel for accused on the account of non-filing of certificate under Banker's Book of Evidence Act is not maintainable in the light of judgment in case of R.V.E.Vehkatachala Gounder (Supra).

There is no material on record which reflects that the account holder i.e. Master Ishan was having any independent source of income. Further, from the perusal of pay in slip etc, it is found that since accused was guardian of his minor son Ishan, hence, the amount of Rs.11,155/- in the said account of Master Ishan Sharma belongs to the accused.

ITEM NO. 23. Savings of Rs.5,487/- at IOB Bank, Rohini, CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 142 New Delhi (A/c No. 884) In this respect it is found that PW-39 Mr.Surender Kumar Agarwal, Sr.Manager from Indian Overseas Bank has brought on record the statement of account of Diwakar Sharma bearing account no. 884 collectively as part of Ex. PW39/A-1 to A-6 showing the balance of a sum of Rs.5,487/-. The fact of existence of said amount has not been disputed during cross-examination of this witness. Hence, it is found that the amount of Rs.5,487/- in the said account of the accused are movable assets of the accused.

ITEM NO. 24. Savings of Rs.11,244/- at SBI, NCERT, New Delhi (A/c No. 7289) This fact has not been controverted by the accused. Hence, without any detailed discussion, it is found that the amount of Rs.11,244/- belongs to the accused.

ITEM NO.25. Purchased 100 shares of Kalinga Cement Ltd. on 10.10.95 @ Rs 10/- per share, worth Rs.13,000/-. ITEM NO.26. Purchased 100 shares of Joy Vinayls Ltd. on 18.10.94 @ Rs 10/- per share, worth Rs.1,000/-. ITEM NO.27. Purchased 100 shares of Kinetic Capital Finance Ltd on 12.05.94 @ Rs 10/- per share which later converted to 4 shares of Kinetic Finance Ltd. on 24.4.01, worth Rs.1000/-.

ITEM NO.28. Purchased 25 fully convertible debentures of Ahmedabad Electricity Ltd on 12.01.94 @ Rs 120/- each later converted to 50 shares, worth Rs.3000/-.

ITEM NO. 29. Purchased 100 shares of Indian Seamless Steel Alloys Ltd. on 10.2.94 @ Rs 10/- per share, worth Rs.1000/-.

ITEM NO. 30. Purchased 100 shares of Nova Udyog Ltd @ Rs. 10/- share, worth Rs.1000/-.

All these items are taken up altogether. But in order to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 143 prove any of the said items, the prosecution has not examined any witness nor brought on record any document. Hence, without any detailed discussion, it is hold that the said items cannot be termed as assets of the accused.

ITEM NO. 31. Value of household items to the tune of Rs.1,14,240/- as per Inventory Memo prepared on House Search at House No. 251/12 R.K. Puram.

The inventory memo for the recovery of items from the house of accused at 251, Sector 12, R.K.Puram, New Delhi alongwith estimated price of items as mentioned against each item has been brought on record by the IO PW-106 Insp. Satinder Bisht. During lengthy cross-examination of the witness, the recovery of items, their acquisition during check period and their estimated price as mentioned in the inventory memo Ex.PW-106/B has not been controverted. Hence, without any further discussion it is found that said items valued Rs.1,14,240/- belongs to the accused.

ITEM NO.32. Value of household items as per Inventory Memo prepared on House Search at D-101, Jai Jagdambay Apartment, Sector-62, Noida, worth Rs.1,21,800/-

The inventory memo of recovery of items from the flat No. D-101, Jai Jagdambay Apartment, Sector 62, Noida was proved as Ex.PW28/B, by PW-28 Sh.R.P.Pal, official from Oriental Bank of Commerce who had joined the search proceedings. The evidence of this witness has been corroborated by the witness Mr.J.P.Rout, PW- 35 who had also accompanied PW-28 at the time of search. The inventory Ex. PW28/B contains list of items recovered from the said flat. PW-106 IO Satinder Bisht has proved the memorandum CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 144 as Ex.PW-106/C of the articles recovered as per inventory memo Ex. PW28/B. It has been mentioned in the memorandum Ex PW- 106/C that the value of the articles was assessed in the presence of accused with his mutual understanding and total value of articles was found to be worth of Rs.1,21,800/-. Again on this score, the possession of the accused over flat in question, his ownership over articles and the fact that the articles were acquired during the check period was not disputed during cross-examination of PW-106 IO SI Satinder Bisht. On the other hand, PW-28 and PW-35 were not cross examined at all. Hence, it is found that said items valued Rs.1,21,800/- belongs to the accused.

ITEM NO. 33. Value of household items as per Inventory Memo prepared on House Search at 437-H, Pocket-II, Mayur Vihar, New Delhi.

The prosecution has examined PW-23 Mr.P.K.Sinha an independent witness who has joined the investigation alongwith officials of CBI at the time of search at the house and has brought on record search list Ex. PW23/A which also contain observation memo showing articles recovered from the said house and their values. The material reflects that the house was in possession of Smt.Makheshwari Devi, mother of the accused. Further, IO Insp.Satinder Bisht has brought on record the memorandum Ex. PW106/D on record which reflects that the memorandum was prepared in the presence of accused and who has explained the acquisition of articles by him or by his mother. The same shows that the accused has explained the IO that all the articles belongs to her mother, apart from three articles i.e. steel almirah containing 20 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 145 numbers of gents clothes with tentative cost of Rs.10,000/-, footwear (six pairs, tentative cost of Rs.3000/-) and two photo albums of family with tentative cost of Rs.5000/- which belongs to him. Hence, as per memorandum Ex. PW106/D, the total items belong to accused worth around Rs.18,000/-. There is nothing on record which suggest that the accused has controverted the ownership of said items, their identification or the fact that the same were purchased during the check period. As per the prosecution, the value of the articles belonging to accused were worth Rs.8000/-, whereas as per memorandum Ex. PW106/D, the same were worth around Rs.18,000/-. Hence, the Court has no option except to consider the value of the said articles as Rs.18,000/-. Before parting away, here it is necessary to discuss that since the copies of memorandum etc. were already supplied to accused, therefore, its contents were in the knowledge of the accused, hence, he cannot claim that the exaggerated value of the property was not in his knowledge. Hence, it is found that the said three articles recovered from the said house worth Rs.18000/- belonged to accused and the same are considered as assets of accused.

ITEM NO.34. Cash found during search on 2.2.2005 from the residence and office premises of accused Diwakar Sharma As per seizure memo Ex. PW106/A, 100 currency notes of denomination of Rupees 500 each totaling Rs.50,000/- were recovered on 2.2.2005 during the search of house of accused at 251, Sector 12, R.K.Puram.

CC No.17/13                                                                         (Bhupesh Kumar)
CBI vs .Diwakar Sharma                       Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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Further, PW-101 submitted that at the time of search at the house of accused at 197E, Pocket IV, Phase I, Mayur Vihar, apart from other documents a cash of a sum of Rs.97,850/- was recovered from the office room of the accused.

In this respect, the accused claimed that the said amount belongs to different societies where the projects of societies were in progress.

Heard.

The cash amount of a sum of Rs.97,850/- was recovered from the society office and not from in person of the accused. Hence, it cannot be ruled out that the amount might have belong to the society for which the accused is entitled for benefit.

In respect to the cash amount of Rs.50,000/- recovered from the house of accused, the accused has not brought on record any documentary proof that he had kept the society amount in his house. In the absence of any such material, the Court is of considered view that the same belongs to the accused only and not to the society. Hence, it is found that the said cash amount of Rs.50,000/- was the assets of the accused.

PLEA OF ADDITIONAL INCOME

12. Ld. Counsel for accused has submitted that certain additional income of accused has not been considered by the IO.

12.1 First of all it has been submitted by the accused that salary of the accused during check period has been wrongly calculated. It CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 147 has been further submitted that amount of salary of Rs.7,38,110/- has not been added.

On the other hand, Ld. Sr.PP for CBI has submitted that total salary drawn by the accused during the check period was Rs.10,94,169 and the same has been correctly calculated on the basis of actual salary of the accused by his department.

Heard on this score. Material perused. It is found that the prosecution has examined PW-46 Mr.Ashim Kumar Chattopadhyay Assistant in the department of Science and Technology, who has brought on record service book, personal file, GPF statement, arrears etc. of accused as Ex. PW46/B to E and from Ex. PW46/F1 to F7. This witness has in unmistakable terms has submitted that as per service record the net salary drawn by the accused from January 94 to August 2004 was Rs.10,94,169/- and the break up of the figure from January 1994 to February 1996 would be Rs.1,34,089/- and for the period 1996-97 to August 2004 would be Rs.9,60,080/-. The witness was cross-examined by the accused. But the explanation of witness on account of calculation of salary was not called. Hence, no ground is found to doubt the testimony of PW-46 in respect to the salary of the accused during check period as stated by him.

12.2 It has been further submitted that loan of Rs.1.0 lac obtained by the accused from Swarn Jyoti Cooperative Group Housing Society has not been added as deposed by PW-27 Mr.S.L. Sagar, PW-76 Mr.Vijay Sachar and PW-96 Mr. Anand Kumar Jain has stated to this effect.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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                    Heard. Material perused.

The evidence of all said three witnesses perused. The evidence of PW-27 Mr.S.L.Sagar reflects that this witness is the person who was associated with accused in different societies in capacity of Secretary etc. During his cross-examination, the witness has submitted to the effect that he was associated with Swarna Jyoti Society and from Swarna Jyoti Society a payment of Rs.1.0 lac was made to the accused, which was returned by the accused in the year 2007. But this witness has not deposed the exact period when the amount of Rs.1.0 lac was paid to the accused.

PW-76 Mr.Vijay Sachar is the person who was looking after account job of the societies and submitted that the accused has received a cheque of Rs.1.0 lac for purchase of marble from his friend Sagar who had a housing society in Gurgaon. The receipt of cheque deposit is on record which is part of Ex. PW56/A. The same perused which reflects that one cheque of a sum of Rs.1.0 lac drawn on Indian Overseas Bank, Punjabi Bagh branch was deposited by the accused in his account no. 18416 on 18.08.2004. But it is not clear that from which account the cheque was issued. However, one unexplained fact remained on record that why the cheque was issued in the individual name of the accused and not in the name of the society.

PW-96 is Mr.Anand Kumar Jain, Chartered Accountant who deposed that he has filed income tax returns of accused from the year 2001-02 till date. During cross-examination the witness has also submitted that Rs.1.0 lac was given by the society to accused for purchase of marble for use of Swarna Jyoti Group Housing CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 149 Society.

Further, as per accused, the said amount was given to him as loan, but as per evidence of PW-76 and PW-96 the amount was given to accused for purchase of marble for society. On this aspect, the accused has failed to explain on record that if the said amount was given for purchase of marble, then how the accused has treated the same as loan. Further, there is no evidence on record which suggest that accused has purchased any marble against the said amount, if not, then why. One thing also remained unexplained that why the amount of Rs.1.0 lac was given from the individual account of Mr.Sagar that too in the individual name of the accused and why the amount was not given from the account of society.

Under these eventualities it is found that the evidence on which accused has relied upon is not clear and consistent and accordingly it is hold that the accused has failed to prove that the said amount came into his account from the known source of income. Hence, it cannot be termed as additional income of accused.

12.3 It has been further argued that the accused has obtained financial help from his father-in-law Mr.S.P.Nathani. It has been further submitted that PW-68 Mr.Ashish Nathani and PW-75 Mr.Om Prakash Kohli have corroborated the version of accused on this account and PW-75 has also brought on record the voucher Ex. PW75/DA vide which amount was deposited in the account of accused.

Heard. Material perused.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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As per record, PW-68 Mr.Ashish Nathani, brother-in-law of accused had deposed during cross-examination that his father has given loan of Rs.2.65 lac to accused in the year 2000, whereas the accused who appeared in witness box as DW-1 has also deposed that in the year 1998-2000 while he was seriously sick, his in-laws helped him with a sum of Rs.2.65 lac. Hence, from evidence of both these witnesses it is not clear if it was loan or otherwise a financial help given to the accused on account of his illness.

As matter of record the accused was in job in the year 2000 and if he happened to be sick during said period, then he could have easily reimburse the amount from his department being Government servant as per CCS Rules. But there is no material on record which suggest that the accused has reimbursed any amount, he incurred on the medical expenses and if not, then why. The accused has also not brought on record any material to show that he has disclosed the receipt of said amount to his department. Further the accused in order to justify this amount, has not brought on record any material to show the income of his father-in-law and his capacity to pay the said amount to the accused.

Under these circumstances, the said amount, if the accused has received from Mr.S.P.Nathani cannot be termed to be income from known sources and accordingly the same cannot be termed as additional income.

12.4 The next contention of the accused is that the amount of Rs.3000/- paid for the installation of telephone no.6165165 be treated as his additional income. It shall be discussed later on, at CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 151 appropriate stage during the discussion of sharing of rent, electricity/water charges between the accused and his brother-in- law PW-68 Dr. Ashish Naithani.

12.5 The accused has further submitted that he has received Rs.2.0 lac towards the share of property situated at Kalkaji, sold by his father-in-law for a sum of Rs.12.0 lac approximate and PW-68 Dr.Ashish Nathani has substantiate the version of the accused in this respect. On the other hand, Ld. Sr.PP for CBI has submitted that in case the property was sold by father-in-law of the accused then only wife of the accused was entitled for her share and same cannot be termed as income of the accused.

Heard. Material perused.

The sale documents of the property were not brought on record to show that the property owned by his father-in-law and it was actually sold that too for a sum of Rs.12.0 lac. The exact date on which any such sale transaction has not been disclosed. Further, the substance has been found in the contention of Ld. Sr.PP for CBI that in case the property was sold by father-in-law of the accused, then only wife of the accused was entitled for the share and not the accused. Under these circumstances, the plea of the accused that he has received Rs.2.0 lac from his father-in-law does not inspire the confidence of the Court and accordingly the said amount cannot be termed as additional income of accused.

12.6 Further the accused has submitted that he has received Rs.5,100/- from PW-68 and Rs.5000/- from PW-95 on the Mundan CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 152 ceremony of his son Ishan; Rs.11,000/- on birthday of his son; Rs.11,000/- each from PW-68 and PW-95 on 10th birthday of his son; gifts of a sum of Rs.21,000/- from PW-68 and Rs.11,000/- from PW-95 at the time of Grih Parvesh at Jagdamba Apartments; Sagan of Rs.501/- from Mr.G.L.Sagar, Rs.1100/- from PW-92 Anil Kumar Bhasin; Rs.5000/- from PW-95 Harish Kumar, Rs.11,000/- on 10th birthday of his son, Rs.11,000/- on Grih Parvesh; Rs.8000/- by his wife on Raksha Bandan/Bhaiya Dooj; Rs.11,000/- on wedding anniversary It has been further submitted that the said amounts may be treated as additional income of accused.

On the other hand, Ld. Sr.PP for CBI has submitted that as per accused he has organized big functions at all the occasions viz. Mundan Ceremony of his son, birthday of his son and Grih Parvesh etc. and invited lot of guests. It has been further submitted that if the accused had received gifts during said functions, then the accused might have incurred lot of money to organize the said functions, which he has not disclosed.

Heard. Material perused.

I find substance in the contention of ld. PP for CBI that in case the accused has received any present/gift in the form of money on the functions organized by him then the accused might have incurred the expenses on said functions and what expenses he has incurred on said functions, has not been disclosed by the accused. Further, the accused has not brought on record any documentary proof i.e. statement of bank account etc. to show that he has deposited the said amount in the bank or that he has intimated his department about the receipts of gifts. The plea of the accused is CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 153 found to be baseless without any merits and stands discarded accordingly.

12.7 The accused has further taken plea that his brother-in-law Dr.Ashish Nathani was residing with him and used to bear half of the rent of residence, water bill, electricity bill. It has been further submitted that his brother-in-law has paid total Rs.1.32 lac towards rent of flat w.e.f. 1997 to 2005, 50% water bills to the tune of Rs.2697/- and 50% of electricity charges to the tune of Rs.14,800/-. On the other hand, Ld. Sr.PP for CBI has submitted that Mr.Ashish Nathani never resided with accused and even if he has resided for any period, the accused has failed to bring on record any cogent material to show that there was any arrangement between him and his brother-in-law qua sharing of any water/electricity bills or rent.

Heard. Material perused.

In the criminal matters, accused is not required to prove his defence beyond reasonable doubts but it is enough for accused in his defence to satisfy the judicial mind on the preponderance of probabilities. The reliance can be made in cases Ouseph v State, AIR 2004 SC 2088 and Partap vs State of UP, AIR 1976 SC 966. Reverting to the present matter, the plea of the accused is that his brother-in-law Dr.Ashish Nathani resided with him during 1997 to 2005 and bore half expenditure of the rent of flat, electricity and water bills. On this score, as came earlier PW-68 Dr.Ashish Nathani has brought on record application form for new telephone connection applied by him on 05.08.98 as Ex.PW68/A. But as matter of fact no documentary proof has been attached with CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 154 application Ex.PW68/A which shows that Dr.Ashish Nathani was residing at the given address. Further, there is no explanation that why Dr.Ashish Nathani resided with accused at R.K.Puram though his family was having separate house in Delhi. Further, there is no documentary proof viz. election I Card, ration card, passport, electricity bill, driving license or any other document of Dr.Ashish Nathani on record which shows that he ever permanently resided with accused at his R.K.Puram flat.

Further there is no documentary proof that Dr.Ashish Nathani ever paid electricity, water or telephone charges of the said house.

The prosecution has examined Smt.Sarla Devi allottee of the flat in question as PW-67. She has nowhere stated that Dr.Ashish Nathani ever paid any rent to her. Dr.Ashish Nathani claimed to be a qualified BAMS, Doctor and for such educated persons a lot of documents are required to run his own clinic or for obtaining service which may include his visiting cards, election I-card, letter heads etc. But no such document has been filed by him to show that he ever resided at the said flat.

Further the seizure memo Ex. PW106/A and inventory memo Ex. PW016/B have been perused. Both these memos were prepared on 02.02.2005 at the time of search of house of accused. It reflects that at the time of search, only accused and his wife were present there. Further, from the list of articles recovered during the search, no item has been found which may be used by the Doctor. The inventory memo Ex.PW106/B of articles with their estimate value was prepared with mutual agreement with accused and two CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 155 witnesses. But the accused during cross-examination of IO or the other witnesses has not disputed any article that the same belongs to his brother-in-law Dr.Ashish Nathani. Further, during examination-in-chief, Dr.Ashish Nathani has submitted that he has applied for telephone vide application form Ex.PW68/A and the telephone connection was given to him in his professional capacity as Doctor. Under these circumstances, it can not be ruled out that telephone connection might have been obtained in the name of Dr.Ashish Nathani being Doctor on priority basis. As discussed above in the absence of any documentary proof, it cannot be presumed that PW-68 Dr.Ashish Nathani ever resided with accused at said flat. Once it is hold that Dr.Ashish Nathani never resided permanently with the accused, there is no question of sharing of rent amount or water/electricity bills/charges. Under these circumstances, it is hold that aforesaid amounts, certainly belongs to accused only. But accused is not entitled for any benefit because the rent, electricity and water charges have already been calculated and added by the CBI as expenditure of accused.

12.8 One of the contention of the accused is that telephone bills against telephone no. 6165165 paid by the accused may be calculated as his additional income.

In respect to this telephone PW-62 Sh.Prakash Chandra, Sr. Telephone Operating Assistant has proved the statement of account of this telephone as Ex.PW62/C and submitted that a total sum of Rs.52,450/- were paid against the bills raised against said telephone. As discussed above, once it is hold that Dr.Ashish CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 156 Nathani never resided with accused at the said address, therefore, it is found that telephone bills of Rs.52,450/- and the advance of Rs.3000/- for installation of telephone, paid by Dr.Ashish Nathani belongs to the accused. However, as discussed earlier the accused is not entitled for benefit because the amount has already been calculated by the CBI as expenditure of the accused.

12.9 Ld. counsel for accused has submitted that Sh.S.P.Nathani, father-in-law of the accused has provided financial help of a sum of Rs.8,25,808/- to his daughter Smt.Savita Jakhmola, wife of the accused. The amount has been received in the account of Smt.Savita Jakhmola and this fact has been stated by PW-80 Mr.D.P.Gautam, Officer from SBI, Darya Ganj branch, where Smt. Savita Jakhmola having account no. 44798 and by PW-81 Mr.Joginder Pal from State Bank of Travancore, where Smt.Savita Jakhmola was having SB A/c no. 3422. But this amount has not been added by IO to the income of the accused and further submitted that the same may be treated as additional income of the accused.

On the other hand, Ld. Sr.PP for CBI has submitted that in case Smt.Savita Jakhmola has received any amount from her father, the same cannot be treated as income of the accused especially when Smt. Savita Jakhmola being Government employee has her own independent source of income.

Heard. Material perused.

As per voucher Ex. PW80/A3 a sum of Rs.26,000/- was credited in the account no. 44798 of SBI by way of cheque and as CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 157 per vouchers from Ex.PW81/DB to Ex.PW81/DT a total sum of Rs.9,78,322/- came into the account no. 3422 of State Bank of Travancore of Smt.Savita Jakhmola. Further it is admitted fact that vide voucher Ex.PW80/A3, Ex.PW83/B, Ex.PW83/C, Ex.PW83/G, Ex.PW83/J, Ex.PW83/K, Ex.PW83/M to Ex.PW83/S, a total sum of Rs.8,25,808/- came into the account of Smt.Savita Jakhmola.

However, here the question arises whether the same can be termed as income of the accused. In this respect it is found that vide said vouchers the amounts were received from different banks viz. vide Ex.PW81/DB from Vaish Cooperative Bank, Patparganj; vide voucher Ex.PW81/DC 1200 US$ were received in the said account; vide vouchers Ex.PW81/DG, Ex.PW81/DK, Ex.PW81/DM, Ex.PW81/DN, Ex.PW81/DO, Ex.PW81/DR amounts were received by way of different cheques from State Bank of Travancore, vide Ex.PW81/DL the amount was received from Canara Bank; vide Ex.PW81/DP amount was received from SBI, Najafgarh, vide Ex.PW81/DQ from Oriental Bank of Commerce, Surajmal Vihar, vide Ex.PW81/DS from Syndicate Bank, Bahadur Shah Zafar Marg. There is nothing on record which suggest that all the accounts from where Smt Savita Jakhmola received amount in her account were maintained by Sh.S.P.Nathani, father-in-law of the accused Under these circumstances, it cannot be presumed that Smt.Savita Jakhmola has received aforesaid amounts in her account from the accounts maintained by her father only. Hence, due to lack of evidence it is hold that the accused has failed to bring on record any cogent material to prove that the said amount was received by Smt.Savita Jakhmola from her father.

CC No.17/13                                                                             (Bhupesh Kumar)
CBI vs .Diwakar Sharma                           Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          158

Further, in case it is presumed that Smt.Savita Jakhmola has received said amount from her father, even then the accused is not entitled for any benefit because the amount if any received by wife of the accused, the same cannot be termed as income of accused. I find substance in the contention of Ld. Sr.PP for CBI on this score. Therefore, the said amount cannot be termed as additional income of the accused.

12.10 Ld. counsel for accused has further submitted that gifts received in the bank account of Master Ishan Jakhmola is also additional income of accused. It has been further contended that PW-74 Mr.Mayur Saraswat, officer from ICICI Bank, Mayur Vihar has brought on record different vouchers as Ex.PW74/B which shows that amount has been received in the account of Master Ishan Sharma from different persons.

Heard on this score. Material perused.

As per statement of account part of Ex.PW74/B of Master Ishan of ICICI bank of account no. 629701080289 as on 14.06.2006, there was Rs.11,350/- in the said account and last transaction in said account took place on 17.05.2003. The cross- examination of witness reflects that as on 31.08.2002 Euro 300 were received in this account and total Rs.53,000/- were received by way of cheques and Rs.50,000/- cash was deposited in the account. But the accused has not come forward with any explanation that from where the amount has been received on different dates in the account of his minor son. In the absence of the source that from where the amount has been received, it cannot be CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 159 consider that the said amount was received from the known sources. Therefore, the said amount cannot be termed as additional income.

12.11 It has been further submitted that financial help to the tune of Rs.4.0 lac sought by the accused from his friend Surender Kumar and Ajay Khurana by way of cheque from Nainital Bank on 19.05.2003 be considered as additional income of the accused. On this score, it is found that accused has not brought any documentary evidence showing the condition of repayment and interest etc. to show that he has actually taken the said loan. Further, there is nothing on record which suggest that the accused has informed his department or in his ITR of relevant year. Further financial capacity of the persons from whom the accused has claimed to have taken the loan has not been produce to show that the loan was provided to the accused from their savings. In the absence of any such material, the arguments of ld. counsel for accused are found to be without any merits.

12.12 Ld. counsel for accused has submitted that the accused has received financial help of a sum of Rs.4.0 lac from Kendriya Awas Society through Vijya Bank and this fact stands proved from prosecution witnesses i.e. PW-73 Mr.Dinesh Chandra who was the then President of Kendriya Awas Society and PW-96 Mr.Anand Kumar Jain, Chartered Accountant of the society at the relevant time. It has been further submitted that Rs.4.0 lac was transferred in the account of accused by way of cheque of Vijya Bank which CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 160 reflects from the statement of account part of Ex.PW74/B brought on record by PW-74 Mr.Mayur Saraswat.

Heard on this score beside going through the record carefully.

Here it is necessary to reproduce the relevant portion of evidence of PW-73 Mr.Dinesh Chandra, which is as under :-

I was also President of another society namely Kendriya Awas Welfare Housing Society. It was also registered with RCS, Delhi. The object of this society was to provide housing to Government servant at minimum price. Initially there were 24-25 members. Subsequently the land was allotted to society, but the members did not like the same and therefore the money was returned and further no activity was carried out. Sh.Diwakar Sharma was also member in this society and later on he became Secretary of society. He also paid membership fee in the sum of Rs.1610/- and also paid further contribution which was later on refunded as the society had become defunct.

From the said portion of evidence of this witness, it reveals that even though the land was allotted to society, but the members did not like the same and accordingly the money was refunded. The evidence further reveals that no activity of society was carried out and the society became defunct.

Under these eventualities, the Court failed to understand that when the money was returned to members, then, from where the loan of Rs.4.0 lac was paid to the accused by the society.

Further, there is nothing on record which shows that the society was empowered to advance any loan to its office bearer CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 161 or its members. If the society was registered, certain bye-laws of the society must be in existence to prove that the society could advance loan from its account to anybody. Further, there is no resolution of office bearers nor the books of account of society that any loan has been advanced; there is no material which suggest that the account of society existed with Vijya Bank; no evidence on record which shows that who has signed the cheque on behalf of the society and who has authorized the said person to sign the cheque; no application of the accused to obtain the loan from society; no material which shows that any agreement took place between society and the accused for the repayment of loan and the rate of interest; no record which suggest that the accused has intimated his department for the loan taken from the society.

In respect to the evidence of PW-96 Mr.Anand Kumar Jain, as stated earlier he has submitted that in the account of Kendriya Awas Society there was loan of Rs.4.0 lac against the accused. But during his cross-examination, he was not asked to bring on record any document viz. statement of account of society or his own account etc. But when accused appeared in witness box as DW-1, he has brought on record one certificate Ex.DW1/B issued by PW-96 Mr.Anand Kumar Jain. The said certificate is dated 20.08.2008. As per record, PW-96 was cross examined on 25.10.2013. Now the question arises, when this witness was cross examined on 25.10.2013 then why the document i.e. certificate Ex.DW1/B if, prepared by this witness was not put to him. Further even if the document was not put then why the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 162 explanation of the witness qua existence of this document was not called.

Under these circumstances the genuineness of certificate Ex.DW1/B does not inspire the confidence of the court and it is not free from suspicion that it might have been prepared after thought. Under these circumstances no reliance can be made on document Ex.DW1/B. This discussion leads to conclusion that the accused has failed to prove that the amount of Rs.4.0 lac received by him in his account was from known source and cannot be termed as his additional income.

12.13 Next contention of ld. Cousnel for accused is that the part payment of Rs.4,84,416/- in respect of one of the flat issued in the name of accused in Jan Vikas Group Housing Society was made by his sister-in-law Smt.Anju Jakhmola. But this fact has already been discussed as item no.6 of income of accused.

12.14 Ld. Counsel for accused has submitted that the accused was looking after the project of the societies and for this purpose he used to use mobiles bearing nos. 9818286596, 9910017195, 9811317195, 9811420424, 9891050505, 56038100 and 31065016 for which the bill amount for the usage of said phones were paid by the societies or reimbursed by the societies.

Heard. The record reflects that PW49 R.K.Singh, Nodal Officer from Bharti Televenture Ltd has brought on record the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 163 statement of account of telephone no. 9818286596 as Ex. PW49/B which shows that bill for the said mobile of Rs.12,713.15 was paid by the accused.

In this respect it is found that PW51 Deepak employee of Vodafone Mobile deposed that earlier the Vodafone mobile services was known as HUTCH. The witness has brought on record the documents relating to mobile no. 9811017195 Ex. PW51/B, mobile no. 9811317195 Ex. PW51/C and mobile no. 9811420424 Ex. PW51/D. Alongwith all the said documents invoice payment statement has been filed by this witness. In respect to mobile no.9811017195 it has been found that earlier this mobile was in the name of M/s Tanuj Leasing & Finance, but later on it was transferred in the name of Diwakar Sharma and total payment made by Diwakar Sharma. As per prosecution, the total amount paid against this mobile was Rs.2,25,725/-. The accused has not controverted this fact at any stretch of time.

In respect to mobile no. 9811317195, it is found that as per record a total payment of Rs.11,855/- was made which includes security and activation charges. In respect to 9811420424 total payment of Rs.60,326/- was made including security and activation charges.

Further, the prosecution has examined PW53 Jitender Mishra, who has brought on record the details of mobile nos. 31065016 and 30936924 as Ex. PW53/B which includes the statement of bill raised and paid against the use of both these telephones.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                           164

In respect to mobile no. 31065016, the record further reveals that the said mobile was in the individual name of accused and total sum of Rs.19,080/- including other charges has been paid by the accused.

Other mobile no. 30936924 is in the name of Kendriya Niketan Housing Society and payment has been made by society. Thus the payment of same to the tune of Rs.24,483/- cannot be attributed to the accused.

PW-78 Mr.Pawan Singh has brought on record the details of mobile no. 9891050505 as Ex.PW78/A1 to A8. The witness has also brought on record copy of ledger of total payment made against the said mobile number during check period comes to Rs.1,00,894/- and not sum of Rs.1,04,875/- as calculated by the IO in the charge-sheet.

As matter of fact, apart from mobile number 30936924, the remaining mobile stood in the name of accused. The accused has not denied this fact. Further the accused has not denied the used of said mobile phones. Now the question arises as to whether who has paid the mobile bills. The accused claim that the bills were either paid by the societies or the same were reimbursed to accused after he paid the bills amount from his own pocket. But to substantiate his contentions, the accused has not brought on record; any documentary proof viz. statement of accounts of societies that bills for usage of mobile phones were ever paid by societies; no material which suggest that the society has ever reimbursed any bill amount to the accused, if so, no material that why the mobile phone connections were not CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 165 taken in the name of society, if so, in cash or by way of cheque; more over, the accused has not claimed that which of the mobile phone was used for which society. In the absence of any such documentary proof, the plea of the accused that the societies used to pay the said mobile phone bills is found to be vague and baseless. Technically the prosecution was required to file the affidavit of witness who has prepared the bill as per provision of Section 65 (B) of Indian Evidence Act. But making of payments of aforesaid bills has not been disputed by the accused, under these eventualities, non-filing of said affidavit does not effect the case of prosecution.

The aforesaid discussion reveals that the proseuction has succeeded in proving the fact that the accused has made the payments of said telephone bills, which shows that the prosecution has released the initial burden to prove. Hence, the burden shifts to the accused to satisfy the Court that he has made payments of telephone bills from known sources of income. The plea of the accused that the mobile bills were paid by the societies has already been discarded as discussed earlier. Hence, the payments of mobile bills paid by the accused, in no manner can be termed as income of the accused and are definitely expenditures of the accused.

12.15 The next contention of the accused that amount of Rs.1,47,850/- of Kendriya Niketan Society was his additional income.

This issued has already been discussed earlier.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          166



              12.16      Ld. counsel for accused further submitted that accused

has taken loan of Rs.40,000/- from his friend PW-91 Mr.G.L.Sagar in the year 2004 when he was hospitalized in Kailash Hospital due to his ill health.

Heard. In this respect evidence of PW-91 Mr.G.L.Sagar has been perused. Admittedly this witness during cross-examination has submitted that wife of accused has taken Rs.40,000/- from him to meet out medical expenses of accused.

It is admitted fact that wife of accused during the relevant period was a Government Teacher and was having independent source of income. On the other hand, the accused was also a Government employee during the said period i.e. in the year 2004. Now the question arises what compelled Smt.Savita Jakhmola, wife of the accused to take Rs.40,000/- from this witness for the medical treatment of the accused. As discussed earlier, the accused was Central Government employee he was entitled for reimbursement of medical bills as per CCS Rules. There is no material which shows that the accused applied for any reimbursement. As per deposition of PW-91 Mr.G.L.Sagar, he had been friend of the accused for about 15 years. Under these circumstances, it cannot be ruled out that this witness might have been won over by the accused to depose in his favor in the Court. Considering the entire facts and circumstances, no reliance can be made on the evidence of PW-91 Mr.G.L.Sagar and consequently the amount of Rs.40,000/- cannot be considered additional income of the accused.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                         167



              12.17      Ld. counsel for accused has further submitted that he

has obtained loan of a sum of Rs.16.0 lac from Kendriya Niketan Society. This fact has been deposed by PW-73 Dinesh Chandra and PW-96 Mr.Anand Kumar Jain. But the said amount has not been added as additional income of the accused by the IO.

Heard. Admittedly, PW-73 Mr.Dinesh Chandra and PW96 Mr Anand Kumar Jain, Chartered Accountant in respect to loan of Rs.16.0 lac have stated that a loan of Rs 16.0 lac of Kendriya Niketan Welfare Society was outstanding against the accused. But from the material on record, it is found that there is no document on record which shows that the society could advance any loan to its office bearer or its members. Further, if the society was happened to be registered, certain bye-laws of the society must be in existence that the society could advance any loan to anybody. Further, there is; no resolution of office bearers nor the books of account of society that any loan has been advanced to accused; no application of the accused to obtain the loan from society; no material which shows that any agreement took place between the society showing the terms for repayment of loan and the rate of interest; no record which suggest that the accused has intimated his department for the loan taken from the society. Under these circumstances, in the absence of any such documentary proof, the plea of the accused that he has taken loan of a sum of Rs.16.0 lac is found to be without any basis and stands discarded accordingly.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          168

12.18 Ld. Counsel for accused has further submitted that a loan of a sum of Rs.60,000/- and Rs.75,000/- was taken from M/s Tanuj Leasing and Finance Pvt. Ltd. but the said amount have not been added as additional income of accused during check period.

Heard. On this aspect also, it is found that the accused has not brought on record any documentary proof viz. loan agreement etc. showing the terms of repayment and rate of interest etc. Further, as per record PW-77 Sunita Dhondiyal one of the Director of M/s Tanuj Leasing & Finance Pvt. Ltd., who has deposed in this respect during cross-examination is sister of the accused. Under these circumstances, it cannot be ruled out that she might have deposed in favor of the accused in order to save him. Hence, the evidence of this witness is found to be not reliable and trustworthy to this effect. Under these circumstances, the Court has no hitch to reach at conclusion that so called loan of Rs.60,000/- and Rs.75,000/- by way of cheques Ex. PW77/B and PW77/C was nothing but a sham transaction and cannot be treated as additional income of the accused.

12.19 It has been further contended that ld. Counsel for accused that the gold proceeds of the gold sold by wife of accused for a sum of Rs.1,79,984/- and 2,02,169 has not been considered by the IO.

On this aspect, it has been found that the IO has already considered the same as income of Smt.Savita Jakhmola which CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 169 has already been came in her statement recorded on 09.02.2007 by the IO.

12.20 Ld. counsel for accused has further submitted that accused has received rent of a sum of Rs.1,20,000/- from M/s Tanuj Leasing and Finance Pvt. Ltd. from 1995 to 2000.

On this score it is found that accused has not brought on record any documentary proof to substantiate its contention in this respect. More over, PW-77 Ms.Sunita Dhaundial who happened to be one of the Director of M/sTanuj Leasing & Finance Co. submitted that the company was operating from the house of accused i.e. 8A, Pocket A-2, Mayur Vihar and it was rent free accommodation. In these circumstances, the arguments of ld. counsel for accused are found to be without any merits and as such the amount of Rs.1.20 lac cannot be considered the additional income of the accused.

12.21 Ld. counsel for accused further submitted that the accused was paid dividend of a sum of Rs.2077.82 from 1.10.94 to 3.8.2004 but the same has not been considered additional income of the accused.

Heard. In this respect prosecution has examined PW-113 Mr.Shrikar Bhatt, Company Secretary from M/s Torrent Power AEC Limited. He has brought on record letter 9.9.2005 Ex. PW113/A showing the details of dividend paid to accused from 1.1.94 to 3.8.04. Hence, the same can be considered as additional income of the accused.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                         170

12.22 It has been further submitted that six month salary of Smt.Savita Jakhmola i.e. from January 1997 to June 1997 @ Rs.9000/- p.m. totaling Rs.54,000/- has not been considered.

Heard. On this score, prosecution has examined PW-109 Mr.Purshotam Lal, Director (Vigilance) from NDMC who has brought on record Ex. PW109/B showing details of the salary paid to Smt.Savita Jakhmola. The said details also includes the salary paid to Smt.Savita Jakhmola from January, 1997 to June 1997. The salary paid to Smt.Savita Jakhmola comes to Rs.17,66,090/-. Hence, the contention of ld. cousnel for accused is found to be without any merits.

12.23 Ld. counsel for accused has further submitted that at the start of check period i.e. 01.01.1994 the accused was having cash of Rs.80,000/- in his hand and this fact has been stated by the accused when he was examined as DW-1.

On the other hand Ld. Sr.PP for CBI has submitted that there is no documentary proof that accused was having such amount in his hand.

Heard. Material perused. Admittedly, no documentary proof viz. income tax return of the relevant year or property return filed with department or bank statement etc. is on record to prove this fact. In the absence of any such material, it cannot be presumed that the accused was having Rs.80,000/- cash in his hand.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          171

              12.24      Ld. counsel for accused has submitted that the flat no.

21 H, Pocket II, EHS, Kundali Gharoli, Mayur Vihar Phase III was sold for the sum of Rs.2.80 lac and the accused who appeared in witness box as DW-1 has deposed in this regard and the evidence of DW-1 is corroborated by Smt.Savita Jakhmola DW-2.

On the other hand, Ld. Sr.PP for CBI has submitted that the flat was sold for a sum of Rs.2.0 lac only.

Heard. Material perused.

Mr.Subhan Khan appeared in witness box as PW-1 and stated to the effect that he has purchased the said flat from the accused, but he has not disclosed specific amount paid against which he has purchased the flat. As came earlier, DW-1 and DW-2 have stated that flat was sold for a sum of Rs.2.80 lac to Mr.Subhan Khan and evidence of both these witnesses during cross-examination remained un-controverted. But as matter of fact, accused has also not brought on record any transfer document to substantiate his contention in this respect.

The burden to prove the existence of any fact in criminal matter lies heavily on the prosecution as the prosecution is required to prove the facts beyond reasonable doubt. On the other hand, the accused is required to prove pre-ponderence of probabilities only. The claim of prosecution that the flat in question was sold for a sum of Rs.2.0 lac, as mentioned in the charge-sheet does not inspire the confidence of the Court in the absence of any verbal or documentary evidence. On the other hand, un-controverted evidence of DW-1 and DW-2 cannot be CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 172 brushed aside that the flat was sold for a sum of Rs.2.80 lac. Hence, it is hold that the flat was sold for a sum of Rs.2.80 lac and accordingly the different of Rs.80,000/- can be considered as additional income of the accused.

12.25 It has been further submitted that the accused has received cash of Rs.29,900/- as gift on the Mundan Ceremony of his son Ishan, cash gifts of Rs.34,000/- on his 10th wedding anniversary, cash gifts of Rs.53,000/- on 10th birthday of his, son, cash gifts of Rs.1,16,399/- at the time of Grih Parvesh at Jagdamba Apartments Rs.1,16,399 and cash gifts of Rs.49,000/- on other birthday of 11 years. On this score, it has been submitted that the same may be considered as additional income of accused.

Heard on this score. Material perused.

As already discussed, the plea of the accused on receipt of cash gifts on various occasions like Mundan Ceremony of his son, Grih Parvesh etc. has already discarded on the account of absence of any documentary proof. Therefore, the plea of the accused to consider said amounts as additional income of accused is also liable to be set aside and stands discarded accordingly.

12.26 Remuneration on election duty in J&K to the tune of Rs.26,000/-.

On this score, it is found that the accused has not brought on record any documentary proof. More over, the salary paid to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 173 the accused in the year 1996-97 has been brought on record by PW-46 Mr.Ashim Chattopadya but there is nothing in the drawn salary statement Ex.PW46/F1 to F7 that he has been paid any such amount. Hence, the plea of accused in this respect is found to be without any merits.

12.27 It has been further contended that the additional income of wife of accused has also not been considered by the IO. It has been submitted that at the start of check period on 1.1.94, she was having Rs.3.38 lac cash in hand and that she was paid honorarium of Rs.30,000/- for NCC duty and honorarium of Rs.75,000/- for invigilation and checking of answer sheet.

Heard on this score. No documentary proof viz. bank passbook, ITR of relevant period etc. has been brought on record by the witness which shows that she was having Rs.3.38 lac cash in hand in the year 1994. In respect to the honorarium as claimed to be paid for NCC duty and checking of answer sheet etc., again no documentary proof has been brought on record. In the absence of any documentary proof, it would not be safe to rely upon the contention of the accused that his wife was having said additional income.

12.28 Further contention of ld. counsel for accused is that wife of accused has sold 2474.05 gram gold for a sum of Rs.9,69,600/- and mother of the accused has sold gold weighing 1023.190 gram of Rs.5,62,750/-.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          174

On this aspect it is found that Smt.Savita Jakhmola who was examined as DW-2 has stated that she has sold gold to M/s Maan Jeweler, Bimal Jeweler and to one jeweler at Dariba Kalan. The sale proceed of the gold sold to Maan Jeweler and Bimal Jeweller has already been considered and even the IO has calculated the same as income of the Smt.Savita Jakhmola. The witness has not stated the name of the jeweler to whom she has sold the gold at Dariba Kalan nor any documentary proof has been filed. Hence, in the absence of any such material, the contention of ld. Counsel for accused that Smt. Savita Jakhmola has sold any gold to the tune of Rs.9,69,600/- at Dariba Kalan, is found to be without any merits. The position qua sale of gold by the mother of accused to the tune of Rs.5,42,750/- is also similar. Hence, in the absence of any such documentary proof the claim of the accused is found to be vague that his mother has sold gold for a sum of Rs. 5,62,750/-.

12.29 It has been further contended that Smt.Savita Jakhmola had income of a sum of Rs.1,72,000/- from UTI and other investments.

Again on this score, there is no documentary proof that she had any income from such sources.

13. Ld. counsel for accused has submitted that the evidence of certain witnesses on account of assets and expenditure of accused is not reliable and trustworthy on various grounds. The same are discussed as under :-

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          175

              13.1       It has been submitted that PW19 Rajesh T Nayar

Assistant Accountant of Indian Spinal Injury Center has brought on record the computer generated list of the bills paid on different dates amounting to Rs 2105/-, but the same cannot be read in evidence in view of Section 65B of Indian Evidence Act.

Heard. The witness has nowhere stated that he has prepared the list of consolidated funds or the computer generated bill Ex. PW19/B. In the absence of any certificate U/S 65B of Indian Evidence Act the same cannot read in evidence and reliance in this regard can be made in case Anvar P.V. vs P.K.Basheer and ors., (2014) 10 SCC 473.

13.2 In respect to the LIC premium brought on record by PW32 Kishan Lal Wadhwa.

This fact has already been discussed above.

13.3 Next contention of Ld counsel for accused is that the insurance premiums paid by the accused for insurance of vehicle no. DEB 0084 to the tune of Rs 2312/-, Rs 630/- and Rs 648/- for different period cannot read in evidence being computer generated receipts.

On this score it is found that PW57 Sh Umesh Kumar has brought on record the copies of all these three insurance copies on record on record as Ex.57/B. During cross-examination the accused has not denied that he has not insured his vehicle against these policies and has not made the payments accordingly. Therefore, no ground is found to doubt the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 176 testimony of this witness.

13.4 Ld counsel for accused has also submitted that the documents brought on record by PW58 Tanmay Gupta regarding the service of his car and expenditure thereto cannot be read in evidence as per Indian Evidence Act.

On this score it is found that PW52 appeared in witness box as one of the partner of M/S Gupta Service Station and has submitted that for the repair car no. DL 4CN 3185 Rs 12500 was paid vide cheque no. 047151. He has brought on record the carbon copies of the bills. During cross examination, the correctness of the bill has not been disputed. The accused has also not controverted the fact of issuance of cheque of Rs.12,500/-. Under these circumstances there is no ground to discard the testimony of PW58 Tanmay Gupta.

13.5 It has been further contended that PW59 Sh Deepak Verma has brought on record the copy of insurance policy in the name of Savita Jakhmola which reflects that the installment premium of Rs.10,546/- were paid by Smt Savita Jakhmola.

Heard. During cross-examination it has not been denied that the policy does not exist in the name of Smt. Savita Jakhmola. Under these circumstances no ground is found to doubt the testimony of this witness.

13.6 It has been further submitted that PW62 has brought on record the computer generated receipt of Rs 3000 and the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 177 computer generated consolidated statement of the telephone charges to the tune of Rs 40,579 paid by Smt Savita Jakhmola and the same cannot be read in evidence.

Heard. In respect to the payment of Rs 3000 it is found that Smt Savita Jakhmola has mentioned the payment of Rs 3000 in the application form and the DD No. etc. the application form is duly signed by Smt Savita Jakhmola. The original application form brought on record as part of Ex. PW62/B. Hence the payment of said amount stands proved as per law.

In regard to the consolidated details of the payments of Rs. 40,579/- made against the telephone number 6100168 it is found that it is a computer generated detail and no certificate U/S 65B filed and therefore same cannot be read in evidence.

13.7 PW69 Dharamal Tanwar has brought on record the computer generated premiums to the tune of Rs 18505/- and 10359 and the same cannot be read in evidence.

Heard. This witness has brought on record the policies no. 312400/31/01/03635 and 312400/31/03/04144 in respect to vehicle no. DL 4CN 1385 showing the payment of premium paid against the policy as Rs. 18505/- and Rs 10359, respectively. The documents have been brought on record as part of Ex. PW69/B1 to B4. During cross-examination, the accused has not denied the fact that he has not got his vehicle insured against the said policies. Hence, the policies stands proved and accordingly it also stand proved that the accused has CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 178 paid the aforesaid amount for the insurance of his vehicle.

13.8 It has been further contented that PW70 Anil Wadhawhan has brought on record the computer generated receipt of the registration of Esteem car of the accused showing the receipts of Rs 3965 by the registration authority. Hence, no reliance can be made on the evidence of this witness.

On this score it is found that PW70 Anil Wadhawan has nowhere stated that the amount was received by the transport authority from the accused. Further the receipt Ex. PW70/A2 of a sum of Rs 3965 was computer generated which is not supported by the certificate U/S 65B and therefore the same cannot be read in evidence.

13.9 Ld counsel for accused further submitted that the document brought on record by PW79 Rajan Narula in respect to the insurance of vehicle no. DL 4CN 3185 cannot be read in evidence.

Heard. It is found that PW79 has brought on record the documents pertaining to insurance of vehicle no. DL 4CN 3185 as Ex. PW79/A1 to A5 which, inter alia, contains photocopy of hand written document showing the receipt of Rs 14524 by the insurance company from the accused. During cross- examination the genuineness of the document has not been disputed nor any objection has been taken regarding the mode of proof or admissibility of document at the time of evidence of this witness. Therefore, no ground is found to doubt the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 179 genuineness of the same showing the payment of Rs 14524 by the accused to the insurance company.

13.10 It has been further submitted that the documents brought on record by PW99 showing the payment of premium of Rs 30840 by Smt Savita Jakhmola have not been proved as per law.

In this respect it is found that this witness has brought on record the letter dated 28.03.2005 vide which the information of policy in the name of Smt Savita Jakhmola has been furnished to the CBI. The letter shows that a total premium of Rs 30840 has been paid. The witness has also brought on record the hand written insurance policy in the name of Smt Savita Jakhmola as Ex. PW99/A1 which reflects that vide cheque no. 016005 of State Bank of Travancore a sum of Rs 10280 has been paid by Smt Savita Jakhmola. During cross-examination the genuineness of the insurance policy has not been disputed. Nor it has been controverted that Smt Savita Jakhmola has not issued the said cheque. Though photocopy of the insurance policy was filed but the objection on the admissibility of the document has not been taken. Under these circumstances no ground is found to doubt the genuineness of the same and it is further found that the document stood proved as per law. Therefore it stands proved that a sum of Rs 10280 was paid against the said policy. But there is no legally admissible document on record to prove that any further payment has been made against the said policy.

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CBI vs .Diwakar Sharma                              Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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               13.11     Next contention of Ld counsel is that insurance policy

brought on record by PW115 Sh P J Tikkoo has not been proved as per law. @@ This fact has already been discussed as item no. 15 of assets of accused.

13.12 It has been further submitted that evidence of PW-116 cannot be read in evidence.

In this respect it is found that PW116 has brought on record the details of policy no. 330774400 of Smt Savita Jakhmola as Ex. PW116/A. The proposal for insurance is also part of this document which reflects that at the initial premium of Rs 10474 was paid by Smt Savita Jakhmola as the proposal also bears signatures of Smt Savita Jakhmola which has not been denied. The status report of the policy has been brought on record which is computer print out but no certificate U/S 65B of Indian Evidence Act has been attached. Therefore, the same cannot be read in evidence. Accordingly, there is no material which suggest that any other payment has been made by Smt Savita Jakhmola apart from aforesaid Rs 10,474/-.

14. Ld counsel for accused has further submitted that certain amount of assets and expenditure has not been proved by the prosecution witnesses. The same are taken up one by one. 14.1 Purchase of washing machine as per evidence of PW2. In this respect it is found that PW2 Arun Kumar Dhar Accountant of M/S Pankaj Electronics has brought on record CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 181 bill/cash memo of machine as Ex. PW2/A1 which is in the name of Diwakar Sharma. This witness has also identified the cheque number 619346 dated 8.10.2003 of a sum of Rs 19,000/- drawn on Syndicate Bank bearing signatures of Savita Jakhmola wife of accused. During cross-examination of this witness the issuance of cheque Mark PX by Savita Jakhmola in favour of Pankaj Electronics of a sum of Rs 19000/- has not been controverted. Further there is nothing on record which suggests that receipt Ex. PW2/A1 is forged or false document or any ground to doubt the testimony of this prosecution witness. Hence, it is found that the prosecution has succeeded in proving the purchase of washing machine by accused from Samsung Company for Rs 19000/-.

14.2 PW3 Sanjay Jain qua purchase of Panasonic Handset.

On this score it is found that this witness is authorized signatory of Hello Sarvottam and he has brought on record invoice cash memo dated 20.9.2002 in the name of Diwakar Sharma as Ex. PW1/A. The said invoice reveals that Panasonic handset was sold to Diwakar Sharma for a sum of Rs 7500/-. The witness was not cross examined at all. Hence it is found that this witness has duly proved the fact that handset of Panasonic was sold to accused for Rs 7500/-.

14.3 PW4 Pradeep Kumar who has deposed qua the purchase of Samsung TV for a sum of Rs 11467/-. Heard on this score. Material perused. This witness has brought on record the carbon copy of invoice dated 29.8.2002 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 182 vide which TV was sold for a sum of Rs 11467 Ex. PW4/A. The witness has been cross-examined but it has not been controverted that the accused has not purchased the TV against this invoice or that he has not made the payment for the same. Therefore this document stands fully proved.

14.4 PW10 Sh Ravi Tokas deposed qua purchase of tyres for a sum of Rs 4300/-.

In this respect it is found that as per evidence of PW10 Ravi Tokas, one of the Director of M/s Mem Press, cash memo bearing no. 10729 dated 27.1.2003 of Rs.4300/- Ex.PW10/A is in the name of the accused. The witness was not cross examined at all. No reasonable ground is found to doubt the evidence of this witness qua purchase of the tires for a sum of Rs 4300 by the accused vide memo Ex. PW10/A. 14.5 PW12 Alok Kumar deposed qua purchase of TV for Rs 11000/-.

In this respect it is found that PW12 Alok Kumar is Accountant of M/S Akash Electronics. He has brought on record the bill dated 16.7.95 Ex. PW12/A for a sum of Rs 11000 qua sale of one colour TV Goldstar. The witness further submitted that he has prepared the bill and bears his signatures at point A. The witness further submitted that the TV was delivered vide delivery memo Ex. PW12/B. During cross- examination the purchase of the TV by the accused or the delivery of TV at his residence has not been disputed by the accused. Hence it is found that the prosecution has succeeded in CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 183 proving the fact that the accused has purchased TV for a sum of Rs 11000.

14.6 PW34 Mahesh Chand qua payment of LIC premium of Rs 18261/-.

This fact has already been dealt with earlier as Item No. 14 of assets of accused.

14.7 PW36 Surender Kumar Chaddha has deposed qua LIC policy premium of a sum of Rs 341.

This fact has already been dealt with earlier as Item No. 13 of assets of accused.

14.8 PW38 Jagdish Salwan deposed qua payment of Rs 48520/- and payment of Rs 55331/-.

In this respect it is found that PW38 Jagdish Salwan Manager of Citi Bank has brought on record the letter dated 22.3.2005 vide which, inter-alia, the statements of credit card no. 4568229123682008 and credit card no.5425569134113000 of accused. All the statements are computer generated but no certificate U/S 65B of Indian Evidence Act attached with and therefore, the same cannot be read in evidence.

14.9 PW41 Shri Sripal Singh deposed qua registration of Fiat Car for a sum of Rs 50/-.

In this respect it is found that PW41 Sh Sripal Singh is witness from Ashok Vihar Transport Authority and he has produced the document pertaining to car bearing no. DEB 84 in the name of Sh Diwakar Sharma as Ex. PW41/B. The witness has nowhere stated that any amount was received from the accused nor there is any document that Rs 50/- was received CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 184 from the accused by the transport authority for registration of the vehicle.

14.10 PW45 is Deepak Dhawan deposed qua membership of accused Inter Continental Hotel for Rs 9500/-. In this respect it is found that PW45 Deepak Dhawan is Operation Executive of Hotel Inter Continental New Delhi. He has brought on record cash receipt no. 037329 dated 22.11.2002 of as sum of Rs 4500 as Ex. PW45/A and receipt no. 043870 dated 23.12.2003 Ex. PW45/B for payment of Rs 5000 for grant of life membership. The receipts are carbon copy of the receipt book which shows that the both the receipts were issued in the name of Diwakar Sharma. Apart from these two receipts no further document qua application etc. for the membership of the Grand Inter Continental has not been brought on record. During cross examination the witness has in unmistakable terms stated to the effect that the receipt can be issued to anyone who tell his name as Diwakar Sharma. Under these eventualities it would not be safe to rely upon the receipts only to prove that accused has made payment of a sum of Rs 9500 against both receipts. Hence, the prosecution failed to prove this fact.

14.11 PW47 Rai Singh deposed qua payment of Rs 2100 for registration of Maruti 800.

In this respect it is found that PW47 Rai Singh Peon from Sarai Kale Khan Authority who has brought on record the documents pertaining to registration of Maruti car no. DL 6CB 2991 in the name of accused as Ex. PW47/B1 to B15. But one CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 185 computer generated receipt qua the payment of Rs 2100 also attached with the documents. But no certificate U/S 65B has been attached in support of the said computer generated receipt. Therefore, the same cannot be read in evidence.

14.12 PW49 R.K.Singh deposed qua payment of Rs 12713.15 against mobile no. 9818286596.

This has already been discussed above.

14.13 PW50 Gyanendra Kumar Jain deposed qua traveling expenses to the tune of Rs 66172.

In this respect it is found that PW50 Gyanendra Kumar Jain is proprietor of M/S Dolphin Service and submitted to the fact that accused has booked air tickets from time to time for different destinations and has paid for the same. The different invoices issued for the same has been brought on record by this witness as Ex. PW50/B, PW50/D to PW50/J and the amount was received from Mr Diwakar Sharma. During cross examination the witness has submitted that none of the document contains address, telephone number and other particulars of Diwakar Sharma. However, as a matter of fact the payment against the different invoices has not been controverted during cross-examination nor the fact has been denied that the accused or the persons mentioned in the invoices never traveled on the basis of the air tickets obtained against the said invoices. Under these circumstances no ground has been made to doubt the evidence of this witness that total sum of Rs 66162 has been incurred on the travel expenses by the accused.

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CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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14.14 PW51 Deepak deposed qua payment of Rs 225725/- for mobile no. 9811017195, payment of Rs 11855/- against mobile no. 9811317195 and payment of Rs 60326 against mobile no. 9811420424.

These items have already been discussed above.

14.15 PW53 Jitender Mishra deposed qua the payment of Rs 19080 against mobile no. 31065016 and payment of Rs 24483/- against mobile no. 30936924.

These items have already been discussed above.

14.16 PW61 Rajesh Sethi deposed qua payment of Rs 14000 for purchase of washing machine.

In this respect it is found that PW61 Rajesh Sethi Sales Manager has brought on record the invoice dated 31.12.2003 vide which a machine make Samsung was sold for a sum of Rs 14000/-. The invoice is in the name of accused. During cross- examination it has not been controverted that the accused has never purchased the said machine and never made payment of Rs 14000/-. even no suggestion was given in this respect. Under these circumstances the evidence of the witness is found to be credible and its stand proved that the accused has purchased the said washing machine and has made payment of Rs 14000/- for the same.

14.17 PW63 Sh Avtar Singh deposed qua payment of Rs 5215/- by the accused for hiring taxi freight. In this respect it is found that PW63 Avtar Singh has deposed that he is partner of M/S Kuhar Taxi Service and has brought on record two invoices Ex. PW63/A of a sum of Rs 500 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 187 and Ex. PW63/B of a sum of Rs 7476/- and has submitted that both these bills pertained to Diwakar Sharma. During cross- examination Ld counsel for accused failed to shake the testimony of this witness qua hiring of taxi by the accused and making the total payment of Rs 7976/-. Hence this fact stands proved.

14.18 PW64 Abhay Kumar Jain deposed qua payment of electricity charges of Rs 11886/- of Jagdambey Flat. In this respect it is found that PW64 Abhay Kumar Jain is Sub Divisional Officer of Paschimanchal Vidyut Nigam Ltd and submitted to the effect that electric meter D-99421 was installed on 21.04.2007 at house of Diwakar Sharma at house no. D-101 C-558/21, Sector 62, Noida. The witness has brought on record the letter dated 21.4.2006 of Sh Rajesh Kumar Deputy General Manager as Ex. PW64/A showing the details of the electricity charges paid against the said bill. The said letter also contains the details of payment of electricity charges against DD NO. 509868 for a sum of Rs 1718/- and DD No. 509869 for a sum of Rs 8900/- and the total amount comes to Rs 10618/-. Nothing came in the cross-examination in favour of the accused regarding the payment of said amount. Hence, the said amount stands proved by this witness.

14.19 PW65 Sunil Dutt regarding payment of Rs.31,422/- against LIC insurance policy of Smt.Savita Jakhmola.

This fact has already been discussed.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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14.20 PW77 is Sunita Dhaundiyal qua purchase of Fiat car for a sum of Rs 45000/- by accused.

In this respect it is found that this fact has already been discussed as earlier as Item No. 12 of assets of the accused.

14.21 PW87 Arindam Gupta deposed regarding insurance of Matiz and expenditure of Smt Savita Jakhmola wife of the accused of Rs 24779/-.

In this respect it is found that PW87 Arindam Gupta has brought on record the details of the payment made in respect to the insurance of vehicle no. HR 26L 1536 owned by Smt Savita Jakhmola. In this respect it is found that witness has brought on record the details of the payments made by Smt Savita Jakhmola against the insurance policies of the vehicle purchased by her from 2001-2002 to 2004-2005 through cheques from her account from Syndicate Bank, Bank of Travancore and ICICI Bank. During cross-examination the accused has not denied the making of payment against the said insurance policies by his wife Smt Savita Jakhmola to the insurance company. Hence, it stands proved that a sum of Rs 24779/- had been paid by Smt Savita Jakhmola.

14.22 PW94 Manoj Sharma had deposed qua repair of Maruti 800 for Rs 4741/-.

In this respect it is found that PW94 Manoj Sharma Assistant Accountant with Motor Craft India Pvt Ltd has brought on record five bills in the name of Diwakar Sharma in respect to repair/service no. DL 6CB 2991. But all these bills are computer generated and no certificate U/S 65B of Indian CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 189 Evidence Act has been attached. Hence, it is found that the said computer generated bills have not been proved by the prosecution as per law.

14.23 PW100 Brijesh Kumar deposed qua payment of Rs 157730/- to Kendriya Niketan Society.

This item has already been discussed earlier as item no.4 of assets of accused.

14.24 PW108 R.N.Sharma deposed qua payment of Rs 35755/- as medical bills at Kailash Hospital In this respect it is found that PW108 R.N.Sharma President of Kailash Hospital and Heart Institute inter-alia brought on record one receipt in the name of accused as PW108/C of a sum of Rs 35755/-. During cross-examination certain clarification on account of this receipt has been called but the fact of payment of said amount has not been controverted. Nor the accused has put suggestion to the witness that he has not made any such payment against the said receipt. Under these circumstances no ground is found to doubt the testimony of this witness, genuineness of the receipt Ex. PW108/C and the fact that the amount shown in the receipt was duly paid.

14.25 PW111 Yashpal Verma deposed qua payment of Rs 1550/- as medical expenses of Venue Eye Institute. In this respect it is found that PW111 Yashpal Verma has brought on record two attested photocopies of receipt of Rs 200 and Rs 1350/- but during cross-examination the accused has not disputed the fact of making of said payments to the hospital.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          190

Hence, it stands proved that the accused has made payment of Rs 1550/-.

14.26 PW117 Kartikeshwar Jaina deposed qua deposit of fees of Rs 195071 with DPS Vasant Kunj towards the eduction of Ishan Jakhmola son of the accused.

In this respect it is found that PW117 Kartikeshwar Jaina is Officer Superintendent of DPS Vasant Kunj has brought on record letter dated 117/A written by Principal of the accused to the IO and alongwith this letter the details of the expenditures incurred by the accused towards the eduction of his son w.e.f. academic year 1997-98 to 2004-2005 has been shown. This fact has not been disputed by the accused during cross-examination of this witness. Hence it is found that prosecution has succeeded in proving that sum of Rs 195071 incurred by the accused towards studies of his son Ishan at DPS stands proved.

15. It has been further contended by Ld counsel for accused that the certain assets and expenditures of the accused have been taken which were beyond check period.

i) It has been submitted that the payment of Rs 5015/- made for registration of Matiz car did not fall within the check period.

On this aspect statement of PW13 Madan Lal perused who has brought on record the receipt qua payment of Rs 5015/ made by Smt Savita Jakhmola for registration of vehicle no. DL 7C 8685. This receipt is dated 24.02.2005. The check period taken in this matter is from 01.01.94 to 02.02.2005. Hence, the aforesaid receipt part of Ex. PW13/A has been found beyond the check period.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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         ii)        It has been further submitted the LIC premium paid by

accused to the tune of Rs 832/- as per Ex. PW33/A was paid before the start of check period i.e. on 28.02.89.

This fact has already been discussed earlier.

16. Ld. Counsel for accused has further submitted that certain assets and expenditure of accused and his wife Smt.Savita Jakhmola have not been proved by the prosecution witnesses and attention of the court has been drawn towards number of witnesses towards the amount not proved, which are as under :-

16.1 PW-15 Mr.Abhinav Mishra qua purchase of gold.

In this respect this witness has brought on record two cash memo no. 8176 and 7163 both dated 2.12.97 as Ex.PW15/A and Ex. PW15/B of sum of RS.24,777/- and Rs.8223/- respectively. The payment for purchase of gold against both memos have been paid through credit card. During his cross- examination the fact of making of payment through credit card has not been disputed. Even otherwise there is no reasonable ground to doubt the testimony of this witness. Hence, the arguments of ld, counsel for accused in this regard found to be without any merits.

16.2 PW-16 Mr.Suresh Chand qua balance in PPF account of Mrs.Savita Jakhmola.

This witness has brought on record the account opening form of PPF account in the name of Smt.Savita CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 192 Jakhmola as Ex.PW16/A1 and has also brought on record the copy of the ledger of Smt.Savita Jakhmola as PW16/A2 alongwith certificate under Section 2A of Banker's Book of Evidence Act. The witness has further submitted that as per statement of account w.e.f. 25.2.99 to 31.3.2004 a total sum of Rs.1,71,430/- were lying in this account alongwith interest comes to Rs.50,026/-. During cross-examination the testimony of witness remained unconverted on all these important aspects. Hence, the amount as deposed by this witness stands deposed. Hence, the arguments of ld, counsel for accused in this regard found to be without any merits.

16.3 PW-22 Mr.Rajiv Sharma, qua payment for Gurgaon flat.

This witness has submitted that he was member of Kendriya Mantralaya Employee Welfare Society and that the accused was also member of the society. The witness has produced the receipts of payments received by society from its members. The relevant receipts of payments made by the accused were brought on record by this witness as Ex.PW22/A to F, for Rs.30,000/-, Rs.50,000/-, Rs.82,532/- Rs.1610/- Rs.1.0 lac and Rs.11.88 lac, respectively. The total amount Rs.14,52,142/-. Since the original receipts have been brought on record, the same stand proved.

16.4 PW-27 Mr.S.L.Sagar qua payment made against Flat no. D-101, Jagdamba Apartments.

CC No.17/13                                                                            (Bhupesh Kumar)
CBI vs .Diwakar Sharma                          Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
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This fact has already been discussed as item NO. 3 of assets of the accused.

16.5 PW-60 Mr.Ashok Kumar qua payment of flat no.177/E, Kondli.

This fact has already been discussed as item no.9 of assets of the accused.

16.6 PW-67 Smt. Sarla Devi, qua payment of rent of R.K.Puram flat.

In this respect, as per charge-sheet the rent for for house no. 251, Sector 12, R.K.Puram w.e.f July, 95 to June, 98 has been paid @ Rs.25,00/- (total Rs.90,000/-) and rent from July, 98 to January, 2005 @ Rs.3000/- (total Rs.2,31,000/-) per month. However, if the total months are calculated from July, 98 to January, 2005, the same comes to 79 months and rent for said period @ Rs.3000/- per month comes to Rs.2,37,000/- (3000x79). PW-67 Smt.Sarla Devi, allotee of the flat has corroborated the claim of prosecution on this aspect. The accused has not controverted this fact at any stretch of time. Therefore, the total rent paid by the accuesd comes to Rs.3,27,000/-. Before parting away here it is necessary to mention that in the charge-sheet rent from the period July, 98 to January 2005 has been wrongly calculated as Rs.2,31,000/- but the actual rent comes to Rs.2,37,000/-. This fact was in the knowledge of the accused as he was supplied with copy of charge-sheet. Therefore, he cannot CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 194 claim that he did not know the exact figure or that any prejudice has been caused to him.

16.7 PW-72 Mr.Ravi Kant Rampal, qua purchase of Esteem.

This fact has already been discussed in item no.10 of income of the accused.

16.8 PW-78 Mr.Pawan Singh, for mobile no. 9891050505.

This fact has already been discussed earlier.

16.9 PW-86 Ms. Zahida Alam qua purchase of Flat at Mayur Vihar, Phase III.

This fact has already been discussed in item no.8 of assets of the accused.

17. Expenditure of accused during the check period from 1.1.1994 to 2.2.2005:-

Ld. counsel for accused has submitted that the prosecution witnesses have failed to prove the expenditures incurred by the accused to the tune of Rs. 31,34,808.26 as claimed by the CBI. Contentions of the accused in this regard are taken one by one.

17.1 Repayment of Housing Loan to SBI, New Rajinder Nagar for Feb.2002 to January 05, of Rs.2,11,210/-.

It has not been disputed.

17.2 Loan given to his wife Smt Savita Jakhmola during 1998-99 for flat No. C-502, Kendriya Mantralaya Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon, Rs.1,64,142/-.

CC No.17/13                                                                              (Bhupesh Kumar)
CBI vs .Diwakar Sharma                            Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                        195

On this score it has been found that PW-22 Rajiv Sharma deposed to the effect that one flat bearing No.C-502 was allotted to the accused in Kendriya Mantralaya Employees Welfare Housing Society for which accused has made payment of Rs.30,000/-, Rs.50,000/-, 82,532/- and 1610/- on different dates vide receipts Ex. PW22/A to PW22/D. The same comes to Rs.1,64,142/-. As per this witness, the flat was thereafter transferred by the accused in the name of his wife Smt.Savita Jakhmola and she has paid the further payment of Rs.1.0 lac and Rs.11.88 lac vide receipt no. Ex. PW22/E and PW22/F. During cross-examination, the testimony of this witness remained un-controverted which reflects that for the payment of aforesaid flat, the accused has contributed to the tune of Rs.1,64,142/-, which can be considered as expenditure of the accused.

17.3 Repayment on Car Loan to CITI Bank for vehicle No. DL- 3CN-3185, Rs.1,98,003/-.

In this respect, prosecution has examined PW-38, who has brought on record the hire-purchase agreement Ex.PW38/A and statement of account Ex. PW38/B. The witness was not cross examined at all during cross-examination. Hence, the fact stands proved that the accused has repaid loan of Rs.1,98,003/-.

17.4 Repayment on Car Loan to G.E. Countrywide from January 1997 to December 2001 for vehicle No. DL-6CB, 2991 It has not been disputed.

17.5 Repayment of car loan to department till August 2004 for his vehicle DEB-0084, of Rs.45,600/-.

PW-46 A.K.Chattopadhyay witness from department of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 196 Science & Technology brought on record the letter dated 27.7.05 as Ex.PW46/F1 written by Sh.S.D.Singh,Section Officer to SP, CBI, wherein it has been mentioned that car loan of a sum of Rs.40,000/- was advanced to the accused on 20.02.1995 which has already been recovered alongwith interest of a sum of Rs.5600/-. The same comes to Rs.45,600/-.

17.6 Extra expenses made in the investment in M/s C.L. Chit Fund Pvt. Ltd. under scheme X-11/7 during 1994, of Rs.26,829/-.

It has not been disputed.

17.7 Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 28.8.98, of Rs.17,172/-.

17.8 Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 20.8.99, 21,465/-.

Both these Items are taken up together. On this aspect it is found that as per evidence of PW-105 Kamal Singh Rothan, accused has taken loan of Rs.60,000/- and Rs.75,000/- on 28.8.98 and 20.8.98 and has repaid sum of Rs.77,172 and Rs.96,465/- respectively. It shows that the accused has paid extra sum of Rs.17,172 and Rs.21,465/- against the actual amount taken. Hence, this fact stands proved.

17.9 Extra payment made to M/s Tanuj Ishan Chit Pvt. Ltd from 21.9.95 to 30.3.1996 for participating in its chit, Rs.5500/-.

On this aspect it is found that PW-105 has stated that accused has withdrawn Rs.1.0 lac from M/s Tanuj Ishan Chits Pvt. Ltd. and has paid sum of Rs.1,05,500/-. For participating in chits w.e.f. 21.9.95 to 30.3.96. The difference comes to Rs.5500/-. The evidence of this witness remained un-controverted. The same is CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 197 found to be expenditure of the accused.

17.10 Payment made to Ramesh Kumar Gautam during 1997-1998, of Rs.83,380/-.

The prosecution has failed to bring any evidence on record to substantiate its contention in this respect.

17.11 Registration of Vehicle No. DEB 0084 on 25.3.95 at RTO Ashok Vihar, Delhi, of Rs.50/-.

Already discussed and treated as NIL.

17.12 Registration of Vehicle No. DL4CN 3185 on 15.12.2000 Transport Department Janakpuri Authority, of Rs.3965/-.

Already discussed and treated as NIL.

17.13 Registration of Vehicle No. DL-6CB-2991 Sarai Kale Khan Transport Authority, Delhi on 8.1.97, of Rs.2100/-.

Already discussed and treated as NIL.

17.14 Membership of Grand Life at Hotel Inter Continental, Barakhamba Road during 2003-04, of Rs.9500/-.

Already discussed and treated as NIL.

17.15 Membership and facility availed at of Hotel Uppal Orchid, Mahipalpur during 2003-04, for Rs.16,824/-.

Not disputed.

17.16 Expenses on Mobile Phone No. 9891050505 Nov. 2002 onward, for Rs.1,04,875/-.

Already discussed and the amount of Rs.1,00,894/- has been found to be the expenditure of the accused.

17.17 Expenses on Mobile Phone No. 56038100, 12.4.2003 onward, for Rs.525/-.

Not included as no evidence came on record.

17.18 Expenses on Mobile Phone No. 31065016, 17.6.2003 onward, for Rs.19,080/-.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                          198

Already discussed and the said amount has been attributed to expenditure of accused.

17.19 Expenses on Mobile Phone No. 30936924 in the name of Diwakar Sharma C/o M/s Kendriya Niketan Welfare Housing Society, of Rs.24,483/-.

Already discussed and treated as NIL.

17.20 Expenses on Mobile Phone No. 9811017195, From Jan 2000 to 31st Jan 2005, for Rs.2,25,725/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.21 Expenses on Mobile Phone No. 9811317195, 26.02.2004 onward, for Rs.11,855/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.22 Expenses on Mobile Phone No. 9811424024, 31.08.2001 onward, for Rs.60,326/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.23 Expenses on Mobile Phone No. 9818286596, 20.12.2002, for Rs.12,713/-

Already discussed and the said amount has been attributed to expenditure of accused.

17.24 Expenses on Citi bank Credit Card No. 4568229123682008 from 17.7.95 to 26.6.99, for Rs.48,520/-.

Already discussed and treated as NIL.

17.25 Expenses on Citi bank Credit Card No. 5425569134113000 from 16.11.94 to 22.11.99, of Rs.55,331/-.

Already discussed and treated as NIL.

CC No.17/13                                                                           (Bhupesh Kumar)
CBI vs .Diwakar Sharma                         Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                      199

17.26 Travelling expenses since Nov. 2004 onward by Air and Rail M/s Dolphin Travel Service, Vikas Marg, Laxmi Nagar, Delhi- 92, for Rs. 66,172/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.27 Insurance premium of Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi, for Rs.2312/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.28 Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C-19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 20.12.2001, for Rs.18,805/-

Already discussed and the said amount has been attributed to expenditure of accused.

17.29 Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C-19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 15.3.2004, for Rs.10,359/-

Already discussed and the said amount has been attributed to expenditure of accused.

17.30 Insurance premium on Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi on 21.8.2002, for Rs.630/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.31 Insurance premium on Vehicle No. DEB 0084 from New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 200 Delhi on 28.4.2004, for Rs.648/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.32 Insurance premium on Vehicle No. DL 3CN-3185 for the period 20.11.2002 to 19.11.2003, for Rs.14,524/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.33 Education expenses on Ishan S/o of Diwakar Sharma at Delhi Public School, Vasant Kunj, New Delhi since 1997, for Rs.1,95,071/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.34 Expenses on servicing of vehicle No. DL-6CB-2991, in the month of January, 1998 at Motor Craft, Noida, for Rs.4741/-.

Already discussed and treated as NIL.

17.35 Expenses on servicing of vehicle No. DL-4CN-3185 on 19.6.2003 at M/s Gupta Service Station, Moti Bagh, New Delhi, for Rs.12,500/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.36 Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July, 95 to June, 98 @ 2,500/- p.m., for Rs.90,000/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.37 Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July 98 to January 2005 @ Rs 3000/- p.m., for Rs.2,31,000/-.

Already discussed and the said amount has been attributed to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 201 expenditure of accused. However, on this account a sum of Rs.2,37,000/- has been attributed to the accused.

17.38 Payment made in respect of water bill for house No. 251 Sector 12, R.K.Puram, New Delhi, for Rs.5394/-.

In this respect, prosecution has examined PW-107 Smt.Usha Gandhi, Zonal Revenue Officer, from DJB has brought on record letter dated 11.05.2005 pertaining to water connection no. 38674 installed at the abovesaid address. She further submitted that water bill raised from 1.5.94 to 30.4.05 was sum of Rs.5394/-. The check period in this matter has been taken upto 02.02.2005. Hence, the bill contains certain amount beyond the check period. However, by calculating the months w.e.f. 1.05.94 to 30.04.2005 comes to 132 months and proportionately the monthly water bill comes to Rs.40.86. Under these circumstances, the bill for the months February to April, 05 is liable to be deducted from the said amount i.e. Rs.5394. Therefore, the remaining bill comes to Rs.5274/- and the same is considered as water bill paid by the accused.

17.39 Electricity Bill Payment for H.No. 251, Sector 12, R.K.Puram from August 95 to December 2004, for Rs.29,601/-.

On this aspect, PW-6 Mr.Sunil Kumar witness from BSES Rajdhani Power Ltd. has proved the handwritten details of the bills as Ex.PW6/A1, paid against the meter No.302263 installed at the aforesaid residence, inter alia, for the said period. Hence, the same stands proved.

17.40 Payment made to M/s D.K.Video on 20.12.2000 for purchasing of Cordless phone, for, Rs.2990/-.

The prosecution has failed to bring any evidence on record to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 202 substantiate its contention in this respect.

17.41 Purchase of one Washing Machine, make Samsung having No. WA 75K5C Manoj Electronics, 101, Pratap Nagar, Mayur Vihar, Phase-I, Delhi, of Rs.14,000/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.42 Purchase of one article from Samsung Electronics, C-39-A, Meerut Road, Industrial Area, Ghaziabad, for Rs.11,467/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.43 Purchase of Hand Set of one Panasonic Hand Set (GD 75) on 20.9.2002 from Hello Sarvottam, Mukherjee Nagar, New Delhi, for Rs.7500/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.44 Purchase of Colour TV (Goldstar) having Chasis No. 4107949 on 16.7.95 from Aakash Electronics, 85, Sarojini Nagar, ND, for Rs.11,000/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.45 Purchase of Tyres from M/s Empress Sales Pvt Ltd. Munirka on 27.1.2003, for Rs.4300/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.46 Purchased one Washing Machine, make IFB from M/s Pankaj Electronics on 8.10.2003, for Rs.19,000/-.

Already discussed and the said amount has been attributed to expenditure of accused.

CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                       203

17.47 Purchased one Mobile Phone Model 3315 from M/s Flutes Music & Telecom Dr Mukherjee Nagar, Delhi-9 on 14.2.2004, for Rs.3600/-.

The prosecution has examined PW-14 Jatin Chugh, Store Manager of M/s Flutes Music & Telecom. He has brought the invoice dated 14.02.2004 on record which shows mobile phone make of Nokia has been sold to the accused for a sum of Rs.3600/-. There is nothing in the cross-examination of this witness which cast suspicion on the testimony of this witness in this regard. Hence, this fact stands proved.

17.48 Payment made to MTNL against installation and bill for phone No. 6166165 from 5.2.98 to 15.4.2003, of Rs.55,450/-.

Not disputed.

17.49 Payment made to M/s Kuhar Taxi Services on 10.7.2004 for hiring vehicle vide bill No. 8911 dated 10.7.2004, of Rs.7976/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.50 Payment made to M/s Kuhar Taxi Services on 30.12.2003 for hiring vehicle vide bill 8515 dated 30.12.2003, for Rs.5215/-.

The prosecution has examined PW-63 Avtar Singh from Kuhar Taxi Services who has brought copy of cash on record as Ex.PW63/A showing the taxi fare as 5215/- for journey from Delhi to Jaipur, Ajmer and badk to Delhi. This fact has not been controverted at all during cross-examination. Hence, this fact stands proved.

17.51 Medical expenses for the period of 19.11.04 to 26.11.04 at Kailash Hospital, Sector 27, Noida, of Rs. 24,640/-.

In this regard, it is found that prosecution has examined PW-

CC No.17/13                                                                        (Bhupesh Kumar)
CBI vs .Diwakar Sharma                      Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                       204

108 R.N.Sharma, President of the hospital who has brought on record the admission slip as Ex. PW108/A qua admission of accused in Kailash Hospital. This reflects that a total sum of Rs.24,640/- have been paid. The admission slip also bear signatures of Smt.Savita Jakhmola, wife of the accused for giving consent for admission of the accused in hospital. Hence, the said amount stands proved.

17.52 Medical expenses for the period of 11.3.04 to 26.03.04 at Kailash Hospital, Sector 27, Noida, for Rs.35, 755/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.53 Medical expenses on 27.09.2001 vide bill No. 52 at Kailash Hospital, Sector 27, Noida, of Rs.4450/-

On this aspect it is found that PW-108 Mr.R.N.Sharma has brought on record the computer printout of receipt Ex.PW108/B. But no certificate under Section 65B of Indian Evidence Act has been filed. Hence, the same cannot be termed as proved and amount cannot be attributed to accused.

17.54 Medical expenses in Nov. 04 at Venu Eye Institute & Research Centre, Seikh Sarai, New Delhi, of Rs.1550/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.55 Medical expenses in May-July 04 at Apolo Cliniq, Vasant Kunj, New Delhi-70, of Rs.3085/-.

No evidence came on record in this respect. Hence, the same cannot be attributed to expenditure of the accused.

CC No.17/13                                                                        (Bhupesh Kumar)
CBI vs .Diwakar Sharma                      Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                         205

17.56 Loan given to Harish Sharma during 2002 from purchase of 197-E, Pocket-IV, Mayur Vihar, Delhi, for 1,50,000/-.

The prosecution has failed to bring any evidence on record to substantiate its contention in this respect.

17.57 Payment made towards electric Meter connection & Electricity consumption on D-101, Jai Jagdambe Apartment, Sector-62, Noida from July 2004 to December 2004, for Rs.11,886/-.

Already discussed and the said amount has been attributed to expenditure of accused.

17.58 Loan given to his wife Smt Savita Jakhmola on 7.12.2004, of Rs.1,60,000/-.

The prosecution has failed to bring any evidence on record to substantiate its contention in this respect.

17.59 Household expenses (taken as 1/3 of the salary of accused Diwakar Sharma), of Rs.3,76,651/-.

The salary of the accused has already been calculated as Rs.10,94,169. In view of the judgment in case Sajjan Kumar vs State of Punjab, AIR 1964 SC 464. The household expenditures should be calculated to 1/3rd of the total salary. Accordingly, in this matter, proportionately the total expenditure of the accused comes to Rs.3,76,651/-.

18. In this matter as per charge-sheet the IO has calculated the income, expenditure, assets of Smt.Savita Jakhmola, as under :-

Assets at the end of check period 31,41,296.20 Assets at the beginning of check period 10,087.86 Assets acquired during the check period 31,31,208.34 Expenses during the check period 6,73,185.16 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 206 Total assets acquired and expenses incurred during 38,04,393.50 the check period Income during the check period 43,33,460.12 Saving attributed to Savita Jakhmola 5,29,066.62 Further, the benefit of savings of Smt.Savita Jakhmola of a sum of Rs.5,29,066.62 was given to the accused.

As matter of fact, Smt.Savita Jakhmola wife of accused was not prosecuted in this matter as abater or criminal conspirator. Meaning by Smt.Savita Jakhmola was not accused in this matter. Hence, it was beyond the jurisdiction of the Court to call her explanation on any aspect of income, asset or expenditure because as per provisions of Section 13 (1)(e) of PC Act, only accused is required to explain in this regard. As stated above, benefit of Rs.5,29,066.62 from savings of Smt.Savita Jakhmola has been given to the accused. The prosecution has also examined number of witnesses and brought on record bulky material to prove the income, assets and expenditure of Smt.Savita Jakhmola. Here the Court failed to understand that when she was having her independent source of income, separate expenditures and assets, then why the benefit of Rs.5,29,066.62 was given to the accused. At this juncture, it is found that by bringing unwarranted material on record qua the assets, income and expenditure of Smt.Savita Jakhmola, a lot of time of the Court has been wasted. However, since the evidence in this respect has already come on record, the same has been looked into to consider the income, assets and expenditure of Smt.Savita Jakhmola. Certain evidence/material qua income etc. of Smt.Savita Jakhmola already discussed and certain items are not considered due to lack of evidence.

The same are as under :-

CC No.17/13                                                                              (Bhupesh Kumar)
CBI vs .Diwakar Sharma                            Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                     207

Income of Smt.Savita Jakhmola on the basis of the evidence on record :-

Sl                         Particulars                                      Amount
No.
1.        Loan taken from her husband Shri Diwakar                            164,142.00
          Sharma during 1998-99 for flat No. C-502,
          Kendriya Mantralaya Employees Welfare

Housing Society, Plot No. GH-19, Sector 56, Gurgaon (PW-22)

2. Housing Loan from IDBI Bank, Siri Fort, New 1,188,000.00 Delhi for flat No. C-502, Kendriya Mantralaya Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon (PW-7)

3. Interest accrued from Saving bank account 44978 --

maintained at SBI, Daryaganj, New Delhi

4. Interest accrued on maturity of FD on 14.3.2000 1,765.31 at State Bank of India, Daryaganj, New Delhi (PW-80)

5. Interest accrued from Saving bank account 4,597.00 449783422 maintained at State Bank of Travancore, Sarojini Nagar, New Delhi (PW-81)

6. Interest accrued from Saving bank account 1417.00 166010100036573 maintained at UTI Bank, Krishna Nagar, New Delhi in the name of Savita Jakhmola from 31.11.2004 to 31.01.2005

7. Interest accrued from Saving bank account 4,612.00 114249 maintained at Syndicate Bank, S.N.Depot, New Delhi in the name of Savita Jakhmola from 96 to 2.2.2005 (PW-83)

8. Car Loan from Syndicate Bank, Sarojini Nagar, 210,000.00 New Delhi on dated 28.4.2000 for vehicle HR-26- L-1536 (Matiz Car)

9. Interest accrued on PPF Account No 303988 at 50,130.00 Sarojini Nagar Post Office, from 30.04.96 to 31.1.2005. (PW-16) CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 208

10. Sale of Gold Ornaments to M/s Maan Jewellars 179,984.00 on 14.12.2004

11. Sale of Gold Ornaments to M/s Bimal Jewellary 220,169.00 House on 3.12.2004

12. Loan taken from her sister Smt Jaya Nathani on --

Dec, 2004 to Jan,2005

13. Loan taken from her husband Shri Diwakar --

Sharma on 7.12.2004

14. Loan taken from her sister-in-law Anju Jakhmola --

on 7.12.2004

15. Loan taken from her sister Smt Sashi Deoli on --

18.12.2004

16. Salary received by Savita Jakhmola from office 1,766,090.00 from January 1994 to 31st January 2005 TOTAL 37,90,906.31 Proved assets of Smt. Savita Jakhmola during check period.

Sl                          Particulars                                      Amount
No                                                                            (In Rs)
1.        Payment of Flat No. C-502, Kendriya Mantralaya                    1,452,142.00

Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon.

2. Balance of State Bank of Travancore, Sarojini 18,432.94 Nagar, New Delhi (SB A/c 3422) as on 31.12.93

3. Saving at Syndicate Bank, Sarojini Nagar Depot, 15,311.14 New Delhi (Saving A/c No. 114249)

4. Premium Paid for LIC policy No. 113517344 in 10,556.00 the year 2003 at LIC, Connaught Place, New Delhi

5. Premium Paid for LIC policy No. 330774400 for 10,474.00 the year 2003-05 at LIC Palam, New Delhi

6. Premium Paid for ICICI, Jandhewalan for policy 30,840.00 No. 00154295 for the year 2003-05 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 209

7. Saving at SBI, Daryaganj, New Delhi (A/c No. 7.12 44978)

8. Balance at UTI Bank, Krishna Nagar, New Delhi 926,740.00 (Saving A/c No. 166010100036573)

9. Fixed Deposit (VCC) No. 33765 34377 dated --

01/03/2004 in the name of Savita Jakhmola at Syndicate Bank, S.N. Depot

10. Payments made for Matiz Car HR-26L-1536 302,000.00

11. Balance at PPF Account No. 303988 at Sarojini 171,430.00 Nagar Post Office on 31.3.2004

12. Investment at M/s Tanuj Ishan Construction Pvt 1,00,000.00 Ltd vide cheque No. 33425 dated 6.1.2005 TOTAL 30,37,933.2 Proved expenditure of Smt.SavitaJakhmola during check period.

          Particulars                                                   Amount              (in
                                                                        Rs)
1.        Payment made for file charges to IDBI for getting                        7,800.00
          house loan for Flat No. C-502, Kendriya

Mantralaya Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon on 19.9.2003 & 24.9.2003.

2. Repayment of IDBI loan from September, 2003 to 155,336.00 January, 2005 for Flat No. C-502, Kendriya Mantralaya Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon.

3. Repayment of Car Loan to Syndicate Bank, 227,975.00 Sarojini Nagar, New Delhi from 28.4.2000 to 1.3.2002 for vehicle HR-26-L-1536.

4. Processing fee paid to Syndicate Bank, Sarojini 300.00 Nagar, New Delhi on 27.4.2000 for Car loan.

5. Payment made to MTNL against installation and 43,579.00 bill for phone NO. 6100168 from 13.4.2000 to CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 210 20.1.2003

6. Payment made to M/s Ratna Jewellars on --

14.12.2004 for valuation

7. Registration of Vehicle No. HR-26-L-1536 2,150.00

8. Registration of Vehicle No. DL-7C-8585 at RTO, --

Anand Vihar

9. Medical Expenses Mrs. Savita at M/s Indian 2,105.00 Spinal Injuries from 30.9.2002 to 1.11.2002

10. Purchase of Gold Ornaments from M/s 33,814.00 Mehrasons Jewellars, Connaught Place 2.12.97

11. Premium paid to Oriental Insurance Co. Ltd 10,502.00 Division Office No. 22, New Delhi-15 towards Insurance on Vehicle No. HR-26-L-1536 for the period 3.5.2000 to 2.5.2001

12. Premium paid to National Insurance Co. Ltd, 1st 24,779.00 Floor, Himalaya House, 23 Kasturba Gandhi Marg, New Delhi towards insurance on Vehicle No. HR-26-L-1536 for the period 3.5.2001 to 6.5.2004

13. Expenses on SBI Credit Card No. 145,630.16 4006661500209700 from September, 2000 to 31.1.2005

14. Payment made to DLTA vide cheque no. 610242 11,500.00 of Syndicate Bank for coaching fees of her son Ishan on 19.4.2003 6,65,470.00 Hence, on the basis of the evidence on record, the total income, assets, expenditure and savings of Smt.Savita Jakhmola comes as under :-

Assets acquired during the check period 30,37,933.00 Expenses during check period 6,65,470.00 Total assets acquired and expenditure during the 37,03,403.00 check period CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 211 Income during the check period 37,90,906.00 Savings attributed to Savita Jakhmola 87,503.00 Hence, the total savings of Smt.Savita Jakhmola comes to Rs.87,503.00. As per charge-sheet, the total savings attributed to Smt.Savita Jakhmola has been calculated to the tune of Rs.5,29,066/- and the benefit of said amount was given to the accused. Here the question arises whether the accused is entitled for benefit of Rs.87,503/- calculated on the basis of the evidence adduced by the prosecution or to the tune of Rs.5,29,066/- as mentioned in the charge-sheet.

On this aspect it is found that the burden to prove the exact income, assets and expenditure of Smt.Savita Jakhmola as mentioned in charge- sheet. As stated earlier, since Smt.Savita Jakhmola was not prosecuted in this matter, hence, she was not required to explain about her income etc. On the other hand, the prosecution has failed to bring on record sufficient evidence to prove the entire income etc. of Smt.Savita Jakhmola on record, as mentioned in the charge-sheet. Under these eventualities, in case the complete evidence not came on record, or withheld by the prosecution then the fault cannot be attributed to accused because he was required to explain his point of view only specifically in his knowledge. But since the benefit of Rs.5,29,066.00 has already been given to the accused as per charge-sheet, the Court is of the considered view that the benefit of said amount should be given to the accused, though on record the savings of Smt.Savita Jakhmola are of less amount. Hence, it is found that the accused is entitled for the benefit of amount of Rs.5,29,066/- as mentioned in the charge-sheet. Accordingly, the said benefit is given to the accused.

CC No.17/13                                                                        (Bhupesh Kumar)
CBI vs .Diwakar Sharma                      Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                    212

FINAL CONCLUSION AS TO THE INCOME, EXPENDITURE AND ASSETS OF ACCUSED.

19. The Income of the accused as per record/evidence during the check period :-

Sl                       PARTICULARS                                   AMOUNT
                                                                         (Rs)

1. Housing Loan from SBI, Rajinder Nagar for flat No. D-101, Jagdamba Apartment, Sector-62, Noida on 800,000.00 March, 2002

2. Sale of Flat No. 21-H, Pocket-II, Kondli Garoli, Phase-II, Mayur Vihar, Phase-III on 30.12.2000 200,000.00

3. Car Loan from Citi Bank on dated 15.12.2000 for 182,052.00 vehicle DL-3CN-3185

4. Car Loan from GE Countywide on January, 1997 for vehicle DL-6CB-2991 102,000.00

5. Car Loan Taken from Department (Ministry of Science and Technology) in the year 1995 40,000.00

6. Profit/gain from making investment in Golden Trading Pvt. Ltd under Scheme G77/19 during 1996 1,060.00

7. Profit/gain received for making investment in M/s C.L. Chit Fund Pvt. Ltd. under Scheme X-11/8 479.00 during 1994

8. Survival Benefit received against Policy No. 120965586 from LIC, Faridabad 7,500.00

9. Survival Benefit received against Policy No. 120611524 from LIC, Mayur Vihar 4,807.00

10. Interest accrued from Saving bank account 10198 maintained at Bank of India, Mayur Vihar, New Delhi in the name of Diwakar Sharma from 1.1.94 2,313.00 to 31.1.2005

11. Interest accrued from Saving bank account 18416 maintained at UTI Bank, Krishna Nagar, New Delhi 1,290.00

12. Interest accrued from Saving bank account 4102 maintained at Dena Bank, Lodhi Road, New Delhi 319.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 213 in the name of Diwakar Sharma during check period

13. Interest accrued from Saving bank account 46451 maintained at PNB, Lodhi Road, New Delhi in the 146.00 name of Diwakar Sharma during check period

14. Interest accrued from Saving bank account 52310295129 maintained at Standard Chartered 694.02 Bank, Sansad Marg, New Delhi

15. Interest accrued from Saving bank account 6297010-80294 maintained at ICICI Bank, Mayur Vihar, New Delhi in the name of Diwakar Sharma 568.00 during check period

16. Interest accrued from Saving bank account 2697010-80289 maintained at ICICI Bank, Mayur Vihar, New Delhi in the name of Master Ishan from 2,474.00 18.7.2002 to 3.2.2005

17. Interest accrued from Saving bank account 2282 maintained at Union Bank of India, Safdarjung Area, New Delhi in the name of Diwakar Sharma 9,570.00 from 1.1.94 to 31.1.2005

18. Interest accrued from Saving bank account SB A/c No. 884 in the name of Ishan under the guardianship of Shri Diwakar Sharma maintained at Indian 487.00 Overseas Bank, Rohini

19. Interest accrued from Saving bank account SB A/c No. 9372 in the name of Diwakar Sharma maintained at UBI, Nehru Place, New Delhi 591.00

20. Interest accrued from Saving bank account SB A/c No. 7685 in the name of Dilo Chand Sharma & 2,586.07 Savita Jakhmola maintained at SBI, NCERT, New Delhi

21. Interest accrued from Saving bank account SB A/c No. 7289 in the name of Dilo Chand Sharma 373.34 maintained at SBI, NCERT, New Delhi

22. Interest and dividend received from Share of Torrent Power AEC for the period of January 1994 to 31 st 1276.82 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 214 January 2005

23. Received payment for maturity of 1000 unit of UTI on 6.12.97 25,200.00

24. Loan received from Ramesh Kumar Gautam on July, 1994 84,000.00

25. GPF withdrawal/advance taken from Department (Ministry of Science and Technology) from January, 266,768.00 1994 to July, 1999

26. Net Salary during the period January 94 to February 1,34,089.00 96

27. Net Salary during the period 96-97 to August 2004 9,60,080.00 TOTAL 28,30,723.25 Apart from this income, the accused is also entitled for additional income and benefit of Rs.5,29,066.00 from the savings of Smt.Savita Jakhmola. The accused has proved additional income of Rs.2077.82 from dividends and Rs.80,000/- for sale of flat no.21-H, Mayur Vihar. Hence the total income of accused comes to Rs.34,41,867.07 (i.e. 28,30,723.25 + 5,29,066 + 80,000 + 2077.82).

The expenditure of the accused as per record/evidence during the check period :-

Sl                   PARTICULARS                      AMOUNT
                                                         (Rs)

1. Repayment of Housing Loan to SBI, New Rajinder Nagar for Feb.2002 to January 05 211,210.00

2. Loan given to his wife Smt Savita Jakhmola during 1998-99 for flat No. C-502, Kendriya Mantralaya Employees Welfare Housing Society, Plot No. GH-19, Sector 56, Gurgaon 164,142.00

3. Repayment on Car Loan to CITI Bank for vehicle No. DL- 3CN-3185 198,003.00

4. Repayment on Car Loan to G.E. Countrywide from January 1997 to December 2001 for vehicle No. CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 215 DL-6CB, 2991 173,363.00

5. Repayment of car loan to department till August 2004 for his vehicle DEB-0084 45,600.00

6. Extra expenses made in the investment in M/s C.L. Chit Fund Pvt. Ltd. under scheme X-11/7 during 26,829.00 1994

7. Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 28.8.98 17,172.00

8. Extra amount/interest paid towards the repayment of loan to M/s Tanuj Leasing & Finance Company for the loan taken on 20.8.99 21,465.00

9. Extra payment made to M/s Tanuj Ishan Chit Pvt.

Ltd from 21.9.95 to 30.3.1996 for participating 5,500.00 in its chit

10. Payment made to Ramesh Kumar Gautam during 1997-1998 NIL

11. Registration of Vehicle No. DEB 0084 on 25.3.95 at RTO Ashok Vihar, Delhi NIL

12. Registration of Vehicle No. DL4CN 3185 on 15.12.2000 Transport Department Janakpuri NIL Authority

13. Registration of Vehicle No. DL-6CB-2991 Sarai Kale Khan Transport Authority, Delhi on 8.1.97 NIL

14. Membership of Grand Life at Hotel Inter Continental, Barakhamba Road during 2003-04 NIL

15. Membership and facility availed at of Hotel Uppal Orchid, Mahipalpur during 2003-04 16,824.00

16. Expenses on Mobile Phone No. 9891050505 Nov.

       2002 onward                                                           1,00,894.00
17. Expenses on Mobile           Phone    No.        56038100,
       12.4.2003 onward                                                         NIL
18. Expenses on Mobile           Phone    No.        31065016,
       17.6.2003 onward                                                         19,080.00

19. Expenses on Mobile Phone No. 30936924 in the CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 216 name of Diwakar Sharma C/o M/s Kendriya Niketan Welfare Housing Society NIL

20. Expenses on Mobile Phone No. 9811017195, From Jan 2000 to 31st Jan 2005 225,725.00

21. Expenses on Mobile Phone No. 9811317195, 26.02.2004 onward 11,855.00

22. Expenses on Mobile Phone No. 9811424024, 31.08.2001 onward 60,326.00

23. Expenses on Mobile Phone No. 9818286596, 12,713.15 20.12.2002

24. Expenses on Citi bank Credit Card No. 4568229123682008 from 17.7.95 to 26.6.99 NIL

25. Expenses on Citi bank Credit Card No. 5425569134113000 from 16.11.94 to 22.11.99 NIL

26. Travelling expenses since Nov. 2004 onward by Air and Rail M/s Dolphin Travel Service, Vikas Marg, Laxmi Nagar, Delhi-92 66,172.00

27. Insurance premium of Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co.

Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi 2,312.00

28. Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C-19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 20.12.2001 18,805.00

29. Insurance premium of Vehicle No. DL 3CN-3185 paid to The New India Assurance Company Ltd., C-19, Shopping Complex, Paschimi Marg, Vasant Vihar, New Delhi on 15.3.2004 10,359.00

30. Insurance premium on Vehicle No. DEB 0084 from 2002-03 and 2004-5 New India Assurance Co.

Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi on 21.8.2002 630.00

31. Insurance premium on Vehicle No. DEB 0084 from New India Assurance Co. Ltd. Yusuf Sarai, Gulmohar Enclave, New Delhi on 28.4.2004 648.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 217

32. Insurance premium on Vehicle No. DL 3CN-3185 for the period 20.11.2002 to 19.11.2003 14,524.00

33. Education expenses on Ishan S/o of Diwakar Sharma at Delhi Public School, Vasant Kunj, 195,071.00 New Delhi since 1997

34. Expenses on servicing of vehicle No. DL-6CB-

2991, in the month of January, 1998 at Motor NIL Craft, Noida

35. Expenses on servicing of vehicle No. DL-4CN-3185 on 19.6.2003 at M/s Gupta Service Station, Moti Bagh, New Delhi 12,500.00

36. Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July, 95 to June, 98 @ 90,000.00 2,500/- p.m.

37. Rent paid to Smt Sarla Devi for H.No. 251, Sector 12, R.K.Puram from July 98 to January 2005 @ Rs 3000/- p.m. 237,000.00

38. Payment made in respect of water bill for house No. 251 Sector 12, R.K.Puram, New Delhi 5,274.00

39. Electricity Bill Payment for H.No. 251, Sector 12, R.K.Puram from August 95 to December 2004 29,601.00

40. Payment made to M/s D.K.Video on 20.12.2000 for purchasing of Cordless phone NIL

41. Purchase of one Washing Machine, make Samsung having No. WA 75K5C Manoj Electronics, 101, Pratap Nagar, Mayur Vihar, Phase-I, Delhi 14,000.00

42. Purchase of one article from Samsung Electronics, C-39-A, Meerut Road, Industrial Area, 11,467.00 Ghaziabad

43. Purchase of Hand Set of one Panasonic Hand Set (GD 75) on 20.9.2002 from Hello Sarvottam, Mukherjee Nagar, New Delhi 7,500.00

44. Purchase of Colour TV (Goldstar) having Chasis No. 4107949 on 16.7.95 from Aakash Electronics, 85, Sarojini Nagar, ND 11,000.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 218

45. Purchase of Tyres from M/s Empress Sales Pvt Ltd. 4,300.00 Munirka on 27.1.2003

46. Purchased one Washing Machine, make IFB from M/s Pankaj Electronics on 8.10.2003 19,000.00

47. Purchased one Mobile Phone Model 3315 from M/s Flutes Music & Telecom Dr Mukherjee Nagar, Delhi-9 on 14.2.2004 3,600.00

48. Payment made to MTNL against installation and bill for phone No. 6166165 from 5.2.98 to 15.4.2003 55,450.00

49. Payment made to M/s Kuhar Taxi Services on 10.7.2004 for hiring vehicle vide bill No. 8911 7,976.00 dated 10.7.2004

50. Payment made to M/s Kuhar Taxi Services on 30.12.2003 for hiring vehicle vide bill 8515 dated 30.12.2003 5,215.00

51. Medical expenses for the period of 19.11.04 to 26.11.04 at Kailash Hospital, Sector 27, Noida 24,640.00

52. Medical expenses for the period of 11.3.04 to 26.03.04 at Kailash Hospital, Sector 27, Noida 35,755.00

53. Medical expenses on 27.09.2001 vide bill No. 52 at Kailash Hospital, Sector 27, Noida NIL

54. Medical expenses in Nov. 04 at Venu Eye Institute & Research Centre, Seikh Sarai, New Delhi 1,550.00

55. Medical expenses in May-July 04 at Apolo Cliniq, Vasant Kunj, New Delhi-70 NIL

56. Loan given to Harish Sharma during 2002 from purchase of 197-E, Pocket-IV, Mayur Vihar, NIL Delhi

57. Payment made towards electric Meter connection & Electricity consumption on D-101, Jai Jagdambe Apartment, Sector-62, Noida from July 2004 to December 2004 11,886.00

58. Loan given to his wife Smt Savita Jakhmola on 7.12.2004 NIL

59. Household expenses (taken as 1/3 of the salary of CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 219 accused Diwakar Sharma) 376,651.00 TOTAL 25,83,587.15 In the light of evidence on record, accused has been found in possession of following assets during check period :-

Sl.                   PARTICULARS                     AMOUNT
                                                         (Rs)
1.     Saving at UBI, Safdarjung Development Area, New                               8,268.00
       Delhi (A/c No. 2282)
2.     Saving at SBI, NCERT, New Delhi (A/c No. 7289)                                1,082.34

3. Payment made for purchase of Housing Flat D-101, Jai Jagdambe Apartment, Sector-62, Noida from June2000 to August 2004. 15,63,454.00

4. Payment made at Kendriya Niketan Welfare Housing Society, Plot No. F-31, Sector-50, Noida in February-April, 2003. 1,56,730.00

5. Payment made at Government and Public Sector Employee Welfare Housing Organisation, Sector-44, Noida April, 2004. 42,880.00

6. Payment made at Jan Vikash Co-operative Group Housing Society, Dwarka onward January, 2004. 4,84,416.00

7. Purchase of Flat No. 21-H, Pocket-II, Kondli Garoli, Phase II, Mayur Vihar Phase-III on 28.1.99. NIL

8. Purchase Flat No. 8-A, Pocket A-2, Kondli Gharoli, New Delhi on May 94. 1,30,000.00

9. Purchase Flat No. 177-E, S-A, GR-13, Type-II, Kondli Gharoli, New Delhi on January 1997. 5,000.00

10. Purchase of Vehicle Maruti Esteem having No. DL- 3CN-3185 from M/s Bhasin Motors Pvt. Ltd on 17.12.2000. 5,32,233.00

11. Purchase of Vehicle Maruti 800 having No. DL- 6CB-2991 from M/s Competent Automobiles on 204,998.00 8.1.97.

12. Purchased Fiat Car having No. DEB-0084 from Ms. Sunita Dhaundiyal on March, 95. 45,000.00 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 220

13. Premium on LIC policy No. 120991253 on dated 341.00 1.3.99

14. Premium on LIC policy No. 120965586 onward 14,415.00 15.3.99

15. Premium on LIC policy No. 120611524 onward 45,904.00 28.9.96

16. Premium on LIC policy No. 110113688 on dated 28.02.1989 NIL

17. Saving at Bank of India, Mayur Vihar, New Delhi (A/c No. 10198) 7883.00

18. Saving at UTI Bank Krishna Nagar, New Delhi (A/c No. 18416) 1,06,230.00

19. Saving at Dena Bank, Lodhi Road, New Delhi (A/c No. 4102) 531.00

20. Saving at Standard Chartered Bank, Sansad Marg, New Delhi (A/c 52310295129) 8,399.00

21. Saving at ICICI Bank, Mayur Vihar, New Delhi (A/c No.6297010-80294) in the name of Diwakar Sharma 4,10,950.00

22. Saving at ICICI Bank, Mayur Vihar, New Delhi (A/c No. 6297010-80289) in the name of Master Ishan 11,155.00

23. Saving at IOB Bank, Rohini, New Delhi (A/c No. 5,487.00

884)

24. Saving at SBI, NCERT, New Delhi (A/c No. 7685) 11,244.07

25. Purchased 1300 shares of Kalinga Cement Ltd. on 10.10.95 @ Rs 10/- per share NIL

26. Purchased 100 shares of Joy Vinayls Ltd. on 18.10.94 @ Rs 10/- per share. NIL

27. Purchased 100 shares of Kinetic Capital Finance Ltd on 12.05.94 @ Rs 10/- per share which later converted to 4 shares of Kinetic Finance Ltd. on NIL 24.4.01

28. Purchased 25 fully convertible debentures of Ahmedabad Electricity Ltd on 12.01.94 @ Rs 120/-

    each later converted to 50 shares                                        NIL


CC No.17/13                                                                   (Bhupesh Kumar)
CBI vs .Diwakar Sharma                 Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016
                                      221

29. Purchased 100 shares of Indian Seamless Steel Alloys Ltd. on 10.2.94 @ Rs 10/- per share NIL

30. Purchased 100 shares of Nova Udyog Ltd @ Rs.

10/- share NIL

31. Value of household items as per Inventory Memo prepared on House Search at House No. 251/12 R.K. Puram 114,240.00

32. Value of household items as per Inventory Memo prepared on House Search at D-101, Jai Jagdambay Apartment, Sector-62, Noida 121,800.00

33. Value of household items as per Inventory Memo prepared on House Search at 437-H, Pocket-II, Mayur Vihar, New Delhi 18,000.00

34. Cash found during search on 2.2.2005 from the residence and office premises of accused Diwakar Sharma 50,000.00 TOTAL 41,00,640.41 On the basis of the aforesaid findings on income, expenditure and assets acquired by accused during check period, the disproportionate assets comes as under :-

1 Total Income during the check 34,41,867.07 period 2 Expenditure during the check period 25,83,587.15 3 Likely savings during the check 8,58,279.92 period (Income - Expenditure) 4 Assets acquired during check period 41,00,640.41 Disproportionate assets after 32,42,360.49 deducting the likely saving from total assets (Assets - Likely savings) %age 32,42,360.49x100 = 94.20% 34,41,867.07 CC No.17/13 (Bhupesh Kumar) CBI vs .Diwakar Sharma Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016 222

20. In the light of above discussion it is found that the prosecution has succeeded in proving beyond reasonable doubt that the accused Diwakar Sharma being public servant has amassed pecuniary resources and properties to the extent of Rs.32,42,361.06 which have been found to be disproportionate to his known source of income. Thus, being public servant he has committed an act of criminal misconduct under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988.

Accordingly, accused Diwakar Sharma is hold guilty of offence under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988.

21. Let accused be heard on point of sentence on next date of hearing.

(Bhupesh Kumar) Spl. Judge (PC Act), CBI-01(South) Announced in the Open Court Saket Courts : New Delhi.

today on 27.09.2016




CC No.17/13                                                                          (Bhupesh Kumar)
CBI vs .Diwakar Sharma                        Spl. Judge (PC Act), CBI-01(South)/New Delhi/27.09.2016