Delhi District Court
7.2016 vs . on 23 August, 2019
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE, (PC ACT) (CBI)-02,
ROUSE AVENUE COURT COMPLEX, NEW DELHI
Court Case No. 344/2019
RC NO. 04/(A)/2016/SPE/CBI/AC-III/ND
Central Bureau of Investigation (CBI)
Vs.
Sushil Dutt
S/o Late Sh. P.C. Joshi
R/o D-2, Vashisht Vihar, Air Force Station,
Palam, Delhi Cantt.110010. ....(Accused)
Instituted on : 22.12.2017
Charge framed : 25.04.2019
Arguments concluded on : 19.08.2019
Decided on : 23.08.2019
Appearances : Sh. V.K. Pathak, ld. PP for CBI.
: Sh. Surender Chauhan, Ld. Counsel for accused Sushil Dutt
: Accused Sushil Dutt on bail.
JUDGMENT
1. The assets of a public servant are stated to be disproportionate if they exceed his known sources of income (including expenditure incurred) and public servant is liable to be prosecuted for the offence of criminal misconduct punishable u/s 13 (1) (e) of Prevention of Corruption Act 1988.
CBI Vs. Sushil Dutt. Page 1 out of 77
2. In the present case, source information led to the registration of RC no.04/(A)/2016/SPE/CBI/AC-III/ND against accused Sushil Dutt, the then lower division clerk (LDC), 31 Moment Control Unit (MCU), Indian Air Force Station, Delhi Cantt.-110010. The investigation has resulted into submission of charge-sheet by CBI against the accused.
Facts:-
3. It is the case of the prosecution that accused Sushil Dutt has amassed assets disproportionate to his known sources of income during the check period from 01.04.2008 to 14.10.2008. The account No.360010200004213 was opened on 16.04.2008 with Axis Bank, Nazafgarh Branch, Delhi and was closed on 23.10.2008. The cash deposits amounting to Rs.2,74,07,600/- (rupees two crores seventy four lakhs seven thousand and six hundred) were made into this account besides an amount of Rs.13,63,00,000/- (rupees thirteen crores sixty-three lakhs) was transferred into this bank account by various persons. In total, a sum of Rs.16,37,07,600/- (Rupees sixteen crores thirty seven lakhs seven thousand and six hundred) was deposited in this account of accused during the check period. Cash amount of Rs.3,84,85,593/-
CBI Vs. Sushil Dutt. Page 2 out of 77 was withdrawn and Rs.13,28,59,007/- were transferred out of the said account, during the check period.
4. It is also stated in the charge sheet that younger brother of accused Sushil Dutt opened bank account No.360010100042583 with Axis Bank, Najafgarh Branch on 22.05.2008 and an amount of Rs.5,90,00,000/- (rupees five Crores ninety lakhs) came into the account (no.360010200004213) of accused Sushil Dutt from the account of his brother Jagdish Chander Joshi.
5. Accused Sushil Dutt joined the service on 13.07.1998 as lower division clerk with Indian Air Force on compensatory grounds after the death of his father. Accused got married in April 2000 and one son was born to him in April 2001. The wife of accused has deserted him in the year 2005 and has been living separately with her son. The younger brother of accused namely Jagdish Chander Joshi is unmarried and staying with the accused in the same house. He was having job profile and was independent income tax assessee during 01.04.2008 to 14.10.2008 and filed income tax returns about his income.
CBI Vs. Sushil Dutt. Page 3 out of 77
6. The assets and expenditure of accused Sushil Dutt has been calculated independently for the purposes of calculation of disproportionate assets. The transactions in the bank accounts of accused have revealed that accused deposited heavy cash/cheques on different occasions to his accounts besides carrying out bank transactions through cheques, RTGS transfers etc. for which accused has no explanation.
7. According to prosecution, the assets of accused at the beginning of check period were Rs.7,279/-; assets at the end of the check period were Rs.5,04,59,072/- and assets acquired during the check period are Rs.5,04,51,793/- and expenditure incurred during the check period is Rs.1,51,264/-. In other words, total assets acquired and expenditure incurred during the check period has come out worth Rs.5,06,03,057/- (rupees five crores six lakhs three thousand and fifty seven) whereas accused earned income of Rs.2,54,248/- only during the check period. Thus, accused has been having assets disproportionate to his known sources of income to the tune of Rs.5,03,48,809/- (rupees five crores three lakhs forty eight thousand eight hundred and nine) which is 19803%. It is claimed by CBI that accused could not satisfactorily explain about the possession of disproportionate assets.
CBI Vs. Sushil Dutt. Page 4 out of 77
8. The charge sheet was submitted on 22.12.2017 and on the basis of charge-sheet, cognizance has been taken vide order dated 30.11.2018 against the accused.
On Charge:-
9. Vide order on charge dated 25.04.2019, formal charges were framed against the accused for the offence punishable u/s 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act, 1988. Accused pleaded not guilty to the charge and claimed trial.
On Evidence:-
10. During the trial, prosecution examined 13 witnesses in all.
The sum and substance of prosecution evidence is as follows :-
10.1. PW1 Amanpreet Singh Bindra, posted as Branch Head, Axis Bank, Nazafgarh, Delhi in the year 2016, handed over documents to the CBI during the investigation of the case and deposed about letter dated 15.07.2016 along with documents so furnished as Ex.PW-1/A (colly); letter dated 18.07.2016 along with documents Ex.PW-1/B (colly); letter dated 15.07.2016 along with documents CBI Vs. Sushil Dutt. Page 5 out of 77 Ex.PW-1/C (colly); letter dated 15.07.2016 along with documents Ex.PW-1/D (colly) pertaining to account no. 360010200004213. The witness further stated that he provided details of cheque books along with certificate under Bankers Book of Evidence Act vide letter dated 14.11.2007 Ex.PW-1/E (colly); and about letter dated 20.12.2017 and the account statements of account nos.
360010100033035 and 360010200004213 Ex.PW-1/F (colly); original vouchers pertaining to account no.360010200004213 with letter dated 28.11.2017 Ex.PW-1/G (colly). The witness stated that he provided the documents from the records maintained in the bank in official course of business. During cross-examination, PW-1 admitted that he was not posted with Najafgarh Branch in the year 2007 and account opening forms Ex.PW-1/A (colly) and Ex.PW-1/C (colly) were not executed in his presence. As per RBI guidelines, identity proof and address proof are required for opening an account along with PAN card and form 60. In case PAN card is updated in the system of the account holder, form 60 need not be given. PW-1 admitted that he could not have known accused Sushil Dutt personally and could not identify his handwriting and signatures. The cheque book used to be issued to the account holder only on his request. For depositing cash in the account, cash CBI Vs. Sushil Dutt. Page 6 out of 77 deposit slip is required to be filled and signed and if the deposit is less than Rs.10 lakhs, no declaration is required and if it is more than Rs.10 lakhs, declaration about source of funds is required to be signed by the account holder. The procedure for withdrawal of funds from account used to be through cheques only. 10.2. PW-2 Sushil Lamba working with M/s Galaxy Toyota, since 2007 has deposed about the purchase details of Toyota car no.DL- 4CNE-0237 and proved the relevant record/file Ex.PW-2/A. 10.3. PW-3 Satender Kumar posted as Sub-Registrar-IX Kapashera, Distt. South west, New Delhi in the year 2016, deposed about letter dated 12.07.2016 Ex.PW-3/A, vide which certified copies of documents (special power of attorney, sale deeds etc.) Ex.PW-3/B (colly) were handed over to the CBI. 10.4. PW-4 Ms. Sushma Sharma, from the office of MTNL, Janakpuri, Delhi also provided documents during the investigation of the case and has deposed about letter dated 13.12.2016 Ex.P-7, vide which she provided payment details in respect of telephone No.25671388 Ex.PW-4/A. CBI Vs. Sushil Dutt. Page 7 out of 77 10.5. PW-5 Rajender Singh, Record Keeper, Raja Garden Authority, Transport Department, submitted documents to CBI and has deposed about letter dated 08.12.2017 Ex.PW-5/A and documents i.e. certified copies of registration certificate, copy of MTNL Bill [Ex.P-6 (colly)], receipt, form no.20, sale certificate, form no.22, tax invoice [Ex.PW-5/B (colly)].
10.6. PW-6 Basanta Kumar, officer incharge officiating, Civil Admin, 31 movement control unit, Air-force Station, Palam has given salary details of accused vide letter dated 23.09.2016 and statement of immovable property of accused Ex.PW-6/A (colly) and biodata of accused, monthly payslip and certificate Ex.PW-6/B (colly).
10.7. PW-7 Virender Singh, ITO, Ward-66 (4), New Delhi deposed about letter dated 24.10.2016 Ex.PW-7/A vide which information was provided by him regarding non-availability of income tax returns for the year 2007 to 2012 with respect to accused Sushil Dutt having PAN No.AINPD5259R. PW-7 also stated about letter Ex.P-8 and assessment order passed by him.
CBI Vs. Sushil Dutt. Page 8 out of 77 10.8. PW-8 Raj Singh posted as Deputy SP CBI, AC-III, was entrusted with the investigation after registration of the case. The witness deposed about search-cum-seizure memo Ex.P-10, statement of account Ex.P-2 and statement of account and account opening form and other documents Ex.PW-1/A (Colly); Ex.PW-1/B (colly); Ex.PW-1/C (colly) and; Ex.PW-1/D (colly) from Axis Bank. The witness also collected other relevant documents during the investigation of the case and thereafter investigation of the case was transferred from him. The witness has been cross-examined at length.
10.9. PW-9 Om Prakash Meena was posted as assistant manager, United India Insurance Company Ltd. In the presence of this witness specimen signatures/handwriting (S-1 to S-10) of accused Sushil Dutt were obtained vide Ex.PW-9/A (colly).
10.10. PW10 Manish Saxena, posted as Manager with Axis Bank, Najafgarh Branch, Delhi in the year 2007-08, deposed about accounts no.360010100033035, 360010200004213 and about various credit vouchers vide which cash deposits were made on CBI Vs. Sushil Dutt. Page 9 out of 77 different occasions. The witness has been cross-examined at length. 10.11. PW-11 Alka Gupta is an expert witness working with CFSL since 1988. She received specimen signatures and questioned signatures of this case vide letter dated 08.12.2017 Ex.PW-11/A and subsequently admitted handwriting of the accused were sought by her through letter dated 07.06.2018 Ex.PW-11/B. The witness stated that she compared specimen and admitted signatures with questioned signatures and furnished her detailed report Ex.PW- 11/C. She has been cross-examined on behalf of defence. 10.12. PW-12 Parvender Kumar posted with CBI, AC-III branch conducted the investigation of the present case after taking it over from PW-8 Dy.SP Sh.Raj Singh. The witness deposed about FIR Ex.PW-12/A. He stated that during the investigation he collected documents from the bank and offices and has deposed about letters and various documents received. He also recorded statements of witnesses and also sought explanation from accused regarding heavy cash transactions in his account. The report was submitted to SP for forwarding to competent authority for taking prosecution sanction against the accused, which was received. PW-
CBI Vs. Sushil Dutt. Page 10 out of 77 12 has also been cross-examined on behalf of defence. 10.13. PW-13 Rajesh Bhandari has been sanctioning authority and has deposed about sanction order Ex.PW-13/A whereby he granted sanction for prosecution against the accused.
All the above witnesses have been cross examined at length on behalf of defence.
On Statement u/s 313 CrPC.
11. After closure of prosecution evidence, statement of accused was recorded u/s 313 CrPC wherein entire evidence appearing on record has been put-forth in question answer form to the accused to seek his explanation.
12. The accused has denied having deposited cash amounts in accounts by signing the vouchers or declarations. Accused, however admitted having opened account no.360010100033035 although stated that he did so on the asking of his senior Sqn Ldr Polu Sreedhar. With respect to cash deposit of Rs.2,15,00,000/- dated 22.05.2008 in account no. 360010100033035, accused stated that he signed credit vouchers and declaration which were printed but no amount was filled therein. In respect to entry of cash CBI Vs. Sushil Dutt. Page 11 out of 77 amount of Rs.2.00 lakhs dated 19.08.2008 in account no. 360010100033035, accused stated that he did not deposit any such cash amount but signed few printed slips without filling the amount on the asking of Polu Sreedhar. Accused has admitted having signed papers for the purchase of Totoya Innova but stated that he did so at the request of Sqn Ldr Polu Sreedhar. In respect to entry of interest deposit amounting to Rs.1,64,419/- in account no. 360010100033035, accused stated that it cannot be attributed to him as he did not deposit any such cash into his account. According to the accused, he has no knowledge about the documents handed over by PW-1 Amanpreet Singh Bindra and PW-3 Satender Kumar. Accused however, admitted that he signed one Special power of attorney on the asking of Polu Sreedhar and once he visited the office of Sub-Registrar-IX for this purpose. The salary particulars of the accused are stated to be matter of record. Accused has admitted having given specimen signatures and writings to the investigating officer.
13. Accused further stated that account no. 360010200004213 has not been opened by him. About the signing of credit vouchers and declarations forms, accused stated that he signed few blank CBI Vs. Sushil Dutt. Page 12 out of 77 printed credit vouchers on the asking of Polu Sreedhar, but denied having signed any declaration form. According to accused, sanction has not been properly granted. The witnesses have not disclosed complete and true facts as have been influenced by Polu Sreedhar.
14. Accused further stated that he has been living in Government accommodation. Sqn Ldr Polu Sreedhar was his officer, who assured him to get loan for him from Axis Bank at reasonable rate of interest. On this pretext, Polu Sreedhar got various documents signed from him and believing him, accused signed the same. The account no.360010100033035 was opened by him at the request of Polu Sreedhar and he signed the documents at his office and he had given Rs.7,000/- to Polu Sreedhar as initial cash deposit in the account, whereas only Rs.6,000/- are being reflected in the bank record. Thereafter, accused did not deal with the bank nor carried out any transaction. He has no knowledge about the transactions and he did not deposit any amount nor withdrew any amount from account no.360010100033035. So far as account no. 360010200004213 is concerned, accused claims having no knowledge about the same. According to accused, he is innocent and only because of illegal CBI Vs. Sushil Dutt. Page 13 out of 77 activities of Polu Sreedhar, he has been involved in this case.
15. Accused has also denied having opened account no. 360010100061418 and related papers Ex.PW-8/PX (colly) & Ex.PW- 8/PX1 (colly). Accused preferred to lead evidence in defence.
16. In defence, accused has summoned records pertaining to accounts bearing No.360010200002646; 360010100024310; 360010200002561 and; 360010100041609 of Polu Sreedhar and also record pertaining to bank account No.360010200003988 of Bala Showry Vallabhaneni maintained at Axis Bank, Najafgarh Branch, Delhi. Record has been proved by DW-1 Pankaj Sharma as Ex.DW-1/A to Ex.DW-1/G. On Arguments
17. Arguing on behalf of prosecution, ld. PP Sh. V.K. Pathak submitted that prosecution has been able to bring sufficient evidence on record to prove possession of disproportionate assets by accused Sushil Dutt during the check period. It is contended that evidence is primarily documentary in nature which includes different bank accounts opened with Axis Bank, Najafgarh Branch CBI Vs. Sushil Dutt. Page 14 out of 77 and transactions carried out therein. The original cash deposit slips and declarations whereby huge amounts were credited into the accounts of accused have been brought in evidence. The assets possessed by accused during the check period have been much beyond his income and accordingly the offence of criminal misconduct is established against the accused. At no stage, accused has made any bonafide disclosures about huge cash deposits into his accounts. During the course of trial, accused has pleaded that cash deposits were without his knowledge or consent but apparently the pleas are false and frivolous. There is strong documentary evidence supported by expert opinion showing that accused opened the accounts and made deposits under his signatures. The sanction has been properly granted by the sanctioning authority u/s 19 of Prevention of Corruption Act 1988. Referring to the judgment of Indu Bhushan Chatterjee Vs. The State of West Bengal, 1958 AIR 148, it is submitted that sanctioning authority examined all the relevant papers before according sanction.
18. Referring to the judgments of State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, 1981 AIR 1186 and Om CBI Vs. Sushil Dutt. Page 15 out of 77 Prakash Sharma Vs. CBI, Crl. M.C. No.1876/2011 decided on 26.03.2012, it is submitted that prosecution has been able to bring strong evidence on record about disproportionate assets of the accused. The accused was required to account for such resources or property as burden shifted upon accused to satisfactorily give account for possession of disproportionate assets. The accused has failed to give any justified explanation about disproportionate assets.
19. Accused Sushil Dutt has been working as LDC during the check period and was earning meager salary while at the same time he was carrying out transactions worth Crores of Rupees. The charges against the accused are established beyond reasonable doubt and accordingly findings of conviction be returned against the accused.
20. On behalf of defence, ld. counsel Sh. Surender Chauhan submitted that the present RC has been registered by SP CBI Asif Jalal on the basis of source information. However, Asif Jalal has not been examined in evidence and therefore FIR/RC cannot be read in evidence. The judgment of Bhugdomal Gangaram & Ors. Vs. CBI Vs. Sushil Dutt. Page 16 out of 77 State of Gujarat, (1984) 1 SCC 319, has been relied upon to assert that since the informant has not been examined as a witness, the factum of source information is not admissible. The sanction order has also been challenged stating that same has not been granted with application of mind. The sanctioning authority just signed the draft sanction order without giving any hearing to the accused. No departmental inquiry has been initiated or conducted against the accused.
21. With respect to Toyota Innova Car, it is contended that during the house search of accused, no such car was found in his possession or control nor the papers of this vehicle were recovered. Rather, the vehicle's insurance papers in the name of Polu Sreedhar were recovered from the house search of accused which shows that vehicle was purchased by Polu Sreedhar in the name of accused.
22. With respect to account no.360010200004213, it is contended that same was opened without the authority of the accused. The account opening form was not sent to CFSL to verify the signatures of accused. The statement of account shows that first entry is about transfer of Rs.7,40,80,000/- from the account of CBI Vs. Sushil Dutt. Page 17 out of 77 V. Balashowry. The cash deposit slips and declarations have not been signed by accused and in these circumstances, inference is to be drawn that Manish Saxena (PW-10), V. Balashowry and Polu Sreedhar manipulated the records and opened the account without authority and knowledge of the accused.
23. With respect to the cash deposits in account no. 360010100033035, it is asserted that presence of accused in the bank during cash deposits, is not established by any material brought on record. If the accused every time visited the bank for the purposes of cash deposits, he should have signed all the deposit slips, whereas admittedly some of the deposit slips do not bear the signatures of accused. Ld. defence counsel contended that fraud has been played upon the accused by his senior Sqn. Ldr. Polu Sreedhar. Investigation is unfair and malafide and check period has been reduced arbitrarily. Referring to the statements u/s 161 CrPC Mark PW-12/X1, PW-12/X2 and PW-12/X3, it is contended that cash deposits have been accounted for and it is clear that V. Balashowry and Polu Sreedhar manipulated the accounts and transactions in question. The accounts in question have been closed and as per the last entry, the amounts were transferred to the account of Polu CBI Vs. Sushil Dutt. Page 18 out of 77 Sreedhar. It is further contended that accused Sushil Dutt has been under the command of Polu Sreedhar and was following his instructions. The real beneficiaries have been Polu Sreedhar and V. Balashowry and not the accused as their motive was to purchase agricultural land. The accounts of Polu Sreedhar and V. Balashowry maintained in the same bank also reflect huge transactions as evident from Ex.DW-1/A to G and Ex.DW-1/C. Ld. counsel strongly contended that Polu Sreedhar, V. Balashowry and Manish Saxena (PW-10) should also have been summoned u/s 319 CrPC. The disproportionate assets have been satisfactorily explained and accounted for and accused Sushil Dutt is innocent and deserves to be acquitted. Ld. counsel has relied upon following judgments in support of his arguments:-
• N.P. Lotikar Vs. CBJ and another, 1992 SCC online Bom 438;
• State Rep. By the Dy. Supdt of Police Vs. K. Ponmadi formerly MLA decided on 11.08.2006;
• P.S. Rajya Vs. State of Bihar, (1996) 9 SCC 1;
• Punjab Rao Vs. State of Maharashtra, (2002) 10 SCC 371 and;
• Rishi Kesh Singh and ors. Vs. State, AIR 1970 Allahabad 51.
24. I have given due consideration to the contentions raised by both the sides and also examined the facts and evidence of the CBI Vs. Sushil Dutt. Page 19 out of 77 case brought on record. I have also gone through the written submissions, submitted on behalf of defence. Findings:
25. The case against the accused is for disproportionate assets. The relevant provision of Prevention of Corruption Act as provided u/s 13 (1) (e), reads as under:-
Section 13(1)(e) in The Prevention of Corruption Act, 1988:-
13. Criminal misconduct by a public servant.- (1) 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.
26. To substantiate a charge under section 13(1)(e) of the Act, the prosecution must prove the essential ingredients namely:
(i.) the prosecution must establish that accused is a public servant;
CBI Vs. Sushil Dutt. Page 20 out of 77
(ii.) the nature and extent of the pecuniary resources or
property which were found in his possession;
(iii.) it must be proved that as to what were his known sources of income i.e. known to the prosecution;
(iv.) it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income.
Once the said ingredients are satisfactorily established, the offence under Section 13(1)(e) of the Act is complete, unless the accused is able to account for such resources or property. The initial burden is on the prosecution to establish that the accused had acquired the property disproportionate to his known sources of income. It is only after the prosecution has proved the requisite ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts on to the accused.
27. To bring out the case of disproportionate assets, the prosecution is required to prove on record following points:
• Assets before the check period.
• Assets possessed by accused during and at the end of check period.
CBI Vs. Sushil Dutt. Page 21 out of 77 • Income earned during the check period • Expenditure incurred during the check period.
28. The calculation of disproportionate asset is done in the following manner.
• Firstly the assets acquired during the check period are calculated by deducting assets existing at the beginning of check period from the assets existing at the end of the check period.
• The expenditure incurred during the check period is added to the assets acquired during the check period.
• From this sum, income earned during the check period is deducted and whatever remains, are the assets disproportionate to the known sources of income and accordingly, percentage of DA is calculated.
29. In the instant case, the check period is w.e.f. 01.04.2008 to 14.10.2008. The charge-sheet submitted against the accused contains all the statements and calculations. On Sanction
30. The accused admittedly has been public-servant being CBI Vs. Sushil Dutt. Page 22 out of 77 lower division clerk (LDC), 31 Moment Control Unit (MCU),Indian Air Force Station, Delhi Cantt-110010 and required sanction u/s 19 of PC Act has been obtained against him for prosecution. The sanction order dated 02.05.2008 Ex.PW-13/A has been proved by PW-13 Rajesh Bhandari, Commanding Officer, 31 MCU, Air Force Station, Palam, New Delhi, who was the competent authority to accord the sanction. The sanction has been challenged by the defence on the ground that same is defective due to non-application of mind having been granted in a mechanical manner by PW-13.
31. The relevant law on this aspect is the judgment of State of Maharashtra through CBI V Mahesh G. Jain (2013) 8 SCC 119, Hon'ble Supreme Court culled out the principles of law relating to sanction. The relevant portion of the said judgment is reproduced hereunder:
• "..14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
• 14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. • 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning CBI Vs. Sushil Dutt. Page 23 out of 77 authority and his satisfaction was arrived at upon perusal of the material placed before him.
• 14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
• 14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. • 14.6 If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. • 14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
32. It has been held in the case of The State of Rajasthan vs Tarachand Jain, (1974) 3 SCC 72 that, "....
17. The fact that the Chief Minister was competent to accord sanction for the prosecution of the respondent in accordance with the rules of Business has not been disputed before us but it has been urged that the prosecution has failed to prove that the Chief Minister accorded his sanction after applying his mind to the facts of this case So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had been given the CBI Vs. Sushil Dutt. Page 24 out of 77 sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. ....."
33. I have examined the sanction order Ex.PW-13/A. The sanction order itself shows that entire material was examined by the sanctioning authority before according sanction. The statements and calculations were available before the sanctioning authority. Considering the record of the case in the light of settled legal position, I am of the opinion that sanction has been duly granted by the competent authority.
34. Adverting to the facts in issue, the statements relied upon by the prosecution pertaining to assets, income and expenditure of the accused are required to be considered in the manner that correctness of facts and figures as stated in the statements, is established. So far as check period is concerned, it is the prerogative of the investigating officer to fix the same. The accused has been working in the capacity of public servant during the check period and his income, expenditure and assets of the check period only have been calculated. I find no logic in the argument that check period has been arbitrarily reduced.
CBI Vs. Sushil Dutt. Page 25 out of 77 Assets possessed at the beginning of check period:
35. First of all, the statement containing assets before the check period is considered:
Statement A (Assets possessed by accused Sushil Dutt beginning of the check period i.e. 01.04.2008 to 14.10.2008) Sl. Bank Deposits Date of Bal. As on No. cash 01.04.2008 deposits
1. Balance of A/c No. 91182010026553 21.07.2005 1299.89 (Old A/C No.077480) with Syndicate Bank Palam, Pinto Park, New Delhi
2. Balance in A/c No.360010100033035 23.10.2007 5979 with Axis Bank, Najafgarh, New Delhi Total 7278.89
36. Both the above said entries are duly proved on record as balance amounting to Rs.1299.89 in account No. 91182010026553 as on 01.04.2008 stands admitted by the accused during admission denial of documents u/s 294 CrPC vide Ex.P-2 and the balance in account no. 360010100033035 as on 01.04.2008 amounting to Rs.5,979/- has been proved in the statement of account [part of Ex.PW-1/B (colly)] by PW-1 Amanpreet Singh Bindra.
37. The conclusion is that statement A is taken as correct and amount of Rs.7278.89 is taken as assets possessed by accused CBI Vs. Sushil Dutt. Page 26 out of 77 at the beginning of check-period.
Assets possessed during check period:-
38. Coming to statement B (Assets possessed by Sushil Dutt during 01.04.2008 to 14.10.2008), the prosecution has projected the following entries:
Statement B (Assets possessed by Sushil Dutt during 01.04.2008 to 14.10.2008) Sl. No. Details of asset Amount in rupees
1. Household Articles 6000 2008-2009 As per Inventory Memo dated 01.07.2016 Total 6000 Movable Assets
2. Toyota Innova Car 939768 Date of bearing registration purchase No.DL4CNE 0237 26.04.2008 Total 939768 Cash Deposits Liquid Assets (A/c No.360010200004213), Axis Bank, Najafgarh branch.
3 09.05.2008 900000
4. 19.05.2008 4350000
5. 22.05.2008 800000
6. 22.05.2008 8800000
7. 27.05.2008 12600
8. 30.05.2008 12450000
9. 14.10.2008 95000 Total 27407600 Cash Deposits Liquid Assets (A/c No.360010100033035) Axis Bank, Najafgarh branch.
CBI Vs. Sushil Dutt. Page 27 out of 77
10. 13.05.2008 341986
11. 22.05.2008 21500000
12. 19.08.2008 200000
Total 22041986
13 Balance in A/c 34784.39 as on
No.91182010026553 14.10.2008
(Old A/c No.077480)
with Syndicate Bank
Palam, Pinto Park New
Delhi
14 Closing balance at the 3062 as on
end of check period in 14.10.2008
Account No.
360010100033035 with
Axis Bank, Najafgarh,
New Delhi
15. Closing balance at the 25872 as on
end of check period in 14.10.2008
current Account No.
360010200004213 with
Axis Bankj, Najafgarh ,
New Delhi
Total 63718.39
Grand Total 50459072
Entry at Serial no.1
39. This entry amounting to Rs.6,000/- is for house hold articles i.e. washing machine acquired by the accused during the check period. The fact is proved through Ex.P-10, which is search list dated 01.07.2016, which was prepared at the time of house search of accused. As per explanation given by accused himself, year of acquisition of washing machine was year 2008. Thus, Rs.6,000/- is taken as cost of asset acquired by accused during the check period.
CBI Vs. Sushil Dutt. Page 28 out of 77 Entry at serial No.2 Toyota Innova Car
40. PW-2 Sushil Lamba, has been working with M/s Galaxy Toyota since 2007. The witness has brought the record pertaining to the purchase and registration of vehicle having registration no.DL-
4CNE-0237. It has been in the name of accused Sushil Dutt. The file has been proved on record as Ex.PW-2/A (colly). This Toyota Innova vehicle has been acquired by accused on 26.04.2008 and he spent an amount of Rs.9,39,768/- as reflected from customer receipt dated 26.04.2008 in the name of accused, [part of Ex.PW-2/A (colly)]. The payment towards purchase of this vehicle was made from account no.360010200004213, Axis Bank, Najafgarh Branch, New Delhi. The account also stands in the name of the accused. During cross-examination, PW-2 Sushil Lamba admitted that he is not in a position to say whether KYC documents were provided to him by accused personally.
41. In his statement recorded u/s 313 CrPC, accused admitted that he signed the papers for purchase of this car, but he did so at the request of Sqn Ldr Polu Sreedhar. Accused has denied having opened account no.360010200004213 with Axis Bank, Najafgarh Branch. According to the letter of Axis Bank dated 26.04.2008 [part CBI Vs. Sushil Dutt. Page 29 out of 77 of file Ex.PW-2/A (colly)], the issuance of pay order for Rs.9,39,768/- has been confirmed. The file Ex.PW-2/A (colly) also contains documents pertaining to accused Sushil Dutt which are telephone bills and obviously would have been provided by the accused. It is therefore proved that accused purchased this car/vehicle. The recovery of vehicle is not necessary particularly in view of the fact that vehicle was purchased in the year 2008 and house search was effected in the year 2016. Even as on date, the vehicle stands registered in the name of accused. Even if, accused purchased this car at the request of Polu Sreedhar, the asset is liable to be attributed to accused being the asset acquired by him during the check period in his name.
Entry at serial No.3
42. This entry is with respect to account no.
360010200004213, Axis Bank, New Delhi. The cash deposits made during the period 9th May 2008 to 14th October 2008 of which total sum comes to Rs.2,74,07,600/- (Rupees Two Crores Seventy Four lakhs seven thousand and six hundred) has been added to the assets of accused. PW-1 Amanpreet Singh Bindra has proved on record the account opening form of account no.360010200004213 CBI Vs. Sushil Dutt. Page 30 out of 77 Ex.PW-1/C (colly) which also contains copies of MTNL bills, ID proof and copy of PAN Card of accused Sushil Dutt. The account opening form as well as annexed documents are in the name of accused Sushil Dutt and also bear his signatures. Although accused has denied having opened the said account in his statement (u/s 313 CrPC) and also during cross-examination of prosecution witnesses, but there appears no truth in this plea of accused. There is no explanation coming forth on behalf of defence as to how documents of the accused came to be filed with the account opening form Ex.PW-1/C (colly).
43. For the purposes of cash deposit dated 09.05.2008 amounting to Rs.9,00,000/- (Rupees nine lakhs) PW-1 Aman Preet Singh Bindra who was posted as Branch Head, Axis Bank, Nazafgarh Branch, Delhi has proved the record from the bank. This deposit slip in original has been brought on record with letter Ex.PW-1/G (colly). This pay-in-slip/deposit slip, however does not bear the signatures of accused, although amount has been written. It stands confirmed from the entry in account no. 360010200004213 that cash deposit of Rs.9,00,000/- was made by the account holder as proved through statement of account [part of Ex.PW-1/D (colly)]. The record has CBI Vs. Sushil Dutt. Page 31 out of 77 been produced by the responsible officer of the bank from the proper source and therefore there is no reason to disbelieve the genuineness of the record. The procedural lapse in taking the signature of depositor on deposit slip is not that important since account of accused stands credited to the extent of Rs.9 lakhs on the same day and subsequent withdrawals/transfers were done by accused under his signatures by issuing requisite cheques etc.
44. The conclusion is that accused became richer by Rs.9 lakhs on 09.05.2008 and this amount is to be included in his assets so acquired during the check period.
Entry at serial No.4
45. This entry is about cash deposit of Rs.43,50,000/- (Rupees forty three lakhs and fifty thousand) dated 19.05.2008. The original pay-in-slip has been produced, but same does not bear the signatures of accused although his name is written over there. The slip is identified by PW-1 Aman Preet Singh Bindra along with his letter Ex.PW-1/D (colly) and also by PW-10 Manish Saxena as he stated that this credit voucher was authorized by him and bears his initials. The entry of Rs.43,50,000/- is also reflected in the statement of account no. 360010200004213 (part of Ex.PW-1/D).
CBI Vs. Sushil Dutt. Page 32 out of 77 Since account belongs to accused Sushil Dutt, the cash deposit and consequent addition to the assets of accused, is proved. Entry at serial No.5
46. This entry is about cash deposit of Rs.8,00,000/- (Rupees eight lakhs only). The original-pay-slip/deposit slip has been produced and proved through Ex.PW-1/D. This pay-in-slip bears signatures of accused Sushil Dutt. The slip was also sent for forensic analysis and the questioned signatures (on Ex.PW-1/D) of accused were compared with the specimen (Ex.PW-9/A) as well as admitted signatures (Ex.PW-6/A) of accused and the report is positive to the effect that signatures on Ex.PW-1/D at Q-5 are signatures of the accused. It is therefore clear that accused deposited a sum of Rs.8,00,000/- through cash in his account no.360010200004213, on 22.05.2008 i.e. during the check period. Entry at serial No.6
47. Sixth entry is also about cash deposit of Rs.88,00,000/- (Rupees Eighty Eight lakhs) on 22.05.2008, into the account no. 360010200004213. The original-pay-slip has been produced and proved through Ex.PW-1/D (colly). This pay-in-slip bears signatures CBI Vs. Sushil Dutt. Page 33 out of 77 of accused Sushil Dutt. PW-10 Manish Saxena has also confirmed the authenticity of this credit voucher which also bears his initials. This slip was also sent for forensic analysis and the questioned signatures of accused were compared with the specimen as well as admitted signatures of the accused and the report is positive to the effect that signatures on Ex.PW-1/D at Q-3 are signatures of the accused.
48. Also the handwritten declaration dated 22.05.2008 [Part of Ex.PW-1/D (colly)] has been given by accused with respect to cash deposits of (Rs.88,00,000/- and Rs.8,00,000/-) and the said declaration has been signed by accused at Q-4, which according to the expert report, are of accused. According to this declaration, accused stated that funds are procured through lawful means but no source from where accused got such huge amount has been disclosed by the accused either to his department or during trial before this court.
49. PW-10 Manish Saxena, has also proved these deposit slips as bearing his initials and declaration being in his handwriting. PW- 10 has strongly deposed in his testimony that accused came with CBI Vs. Sushil Dutt. Page 34 out of 77 cash to make the deposits. Therefore, these cash deposits are clearly attributable to accused Sushil Dutt and are liable to be included in his assets. It is therefore clear that accused deposited a sum of Rs.88,00,000/- through cash in his account no.360010200004213 on 22.05.2008.
Entry at serial No.7
50. The seventh entry is about cash deposit of Rs.12,600/- (Rupees Twelve Thousand and six hundred only) dated 27.05.2008. The original pay-in-slip has been produced, but same does not bear the signatures of accused although his name is written over there. The slip is identified by PW-1 Aman Preet Singh Bindra along with his letter Ex.PW-1/G (colly) and the entry of Rs.12,600/- is also reflected in the statement of account of accused (360010200004213) [part of Ex.PW-1/D (colly)].
51. The procedural lapse in taking the signature of depositor on deposit slip is not that important since account of accused stands credited to the extent of Rs.12,600/- on the same day and subsequent withdrawals/transfers were done by accused under his signatures by issuing requisite cheques etc. CBI Vs. Sushil Dutt. Page 35 out of 77
52. The conclusion is that accused became richer by Rs.12,600/- on 27.05.2008 and this amount is to be included in his assets so acquired during the check period.
Entry at serial No.8
53. The huge amount of Rs.1,24,50,000 (Rupees one crore twenty four lakhs and fifty thousand only) was deposited through cash on 30.05.2008, through pay-in-slip (part of Ex.PW-1/D colly) into account no.360010200004213. However, this pay-in-slip does not bear signatures of accused. The declaration is also attached with this pay-in-slip, but this declaration is not bearing the signatures of accused. PW-10 Manish Saxena, bank manager, has confirmed that the credit voucher and declaration are in his handwriting. Although PW-10 has admitted procedural lapse in not taking the signature of accused but in statement of account (part of Ex.PW-1/D), the cash deposit of Rs.1,24,50,000/- is reflected. It is further evident from statement of account that accused has been dealing with huge amounts in his account through transfers/withdrawals. It is true that banking procedure is not followed in respect to this cash deposit but the funds were acquired/possessed by accused and subsequently utilized by him at CBI Vs. Sushil Dutt. Page 36 out of 77 his liberty. It is not acceptable that accused was not knowing about such huge deposits in his account. Therefore, this amount is liable to be added to the assets of accused.
Entry at serial No.9
54. The entry is about cash deposit of Rs.95,000/- (Rupees Ninety five thousand only) dated 14.10.2008. The original pay-in- slip has been produced, but same does not bear the signatures of accused although his name is written over there. The slip is identified by PW-1 Aman Preet Singh Bindra along with his letter Ex.PW-1/G (colly) and the credit of Rs.95,000/- is also reflected in the statement of account no. 360010200004213 (part of Ex.PW- 1/D).
55. This account was closed on 23.10.2008 as reflected from the statement of account. The accused has been dealing with the above mentioned account and there are various entries of credit and debit. It would not have been possible to deposit the cash or to withdraw or transfer different amounts from this account without the authority or signatures of the accused. Therefore, amount of Rs.95,000/- has to be added to the assets of accused Sushil Dutt .
CBI Vs. Sushil Dutt. Page 37 out of 77
56. In defence, accused has denied having opened any such account no.360010200004213 and having deposited any such amounts through deposit slips or by furnishing declarations. The accused, in this way, has completely disowned the opening of the account no.360010200004213 as well as transactions carried out through this account.
57. PW-10 Manish Saxena, Manager Operations with Axis Bank Ltd., UTI Bank, deposed that account no.360010200004213 was opened by him vide account opening form and other documents i.e. MTNL Bill, ID Proof and copy of PAN Card (Ex.P4) and signature card as Ex.PW1/C (colly). PW-10 identified the signatures of accused on the documents. PW-10 deposed that at the time of opening of account, accused Sushil Dutt was present and submitted KYC documents i.e. self attested copy of ID card, residential proof and copy of PAN card (Ex.P-4), which were attested by Sushil Dutt by affixing his signature at point A on all the documents. During cross-examination, witness has been suggested that credit vouchers and declarations have been fabricated in collusion with Polu Sreedhar and that actual transactions were controlled by Polu CBI Vs. Sushil Dutt. Page 38 out of 77 Sreedhar in the name of accused Sushil Dutt. It has also been suggested that bank officials have been in collusion with Polu Sreedhar. Witness recorded his denial to these suggestions. However, these suggestions could not be proved on record particularly in view of sufficient evidence establishing signatures of accused Sushil Dutt on some of deposit slips and declarations.
58. Expert testimony is relevant by virtue of Section 45 of Indian Evidence Act and where the court has to form an opinion about the particular handwriting or signatures, the expert opinion is acceptable. In this case, expert opinion is given by PW-11 Alka Gupta. The defence counsel has raised objections as to the admissibility and evidentiary value of expert opinion on the ground that there is no corroboration and opinion of expert is fallible as identification is not a perfect science. The expertise of PW-11 Alka Gupta has also been questioned on the ground that she does not possess any educational degree on the subject and even the exercise of enlargement of questioned material has not been undertaken by her. The science of identification of signatures is not nearly so perfect and therefore there is always a risk of incorrect opinion being furnished or accepted.
CBI Vs. Sushil Dutt. Page 39 out of 77
59. According to legal position, court may deal with opinion of expert as to comparison of signatures u/s 45 of Indian Evidence Act, whereas u/s 73 of Indian Evidence Act, the court by its own comparison of writings can form its opinion. Irrespective of an opinion of handwriting expert, the court can compare the admitted handwriting with the disputed writing and come to its own independent conclusion. The corroboration to the expert opinion is always not necessary.
60. The Hon'ble Supreme Court in the case of Murari Lal v. State of M.P., AIR 1980 SC 531 held as under:-
"....
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said CBI Vs. Sushil Dutt. Page 40 out of 77 so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh (supra) were cases where the Court itself compared the writings.
61. In Ram Narain v. State of U.P., [1973] 2 SCC 86 the Apex Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be CBI Vs. Sushil Dutt. Page 41 out of 77 sustained. The Court held:
"It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert."
62. A similar view was expressed in the case of Bhagwan Kaur v. Maharaj Krishan Sharma, [1973] 4 SCC 46 in the following words:
"Expert testimony is made relevant by section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (section 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the CBI Vs. Sushil Dutt. Page 42 out of 77 Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
63. The Delhi High Court in the case of Rekha Sharma vs CBI, Crl. A 124/2013 has also made similar observations:
"....
478 (III) (ii) I have observed in preceding paragraphs that the report of the handwriting expert is admissible. I have perused the report and the expert has opined that the signatures match the specimen signatures obtained from the appellants. The argument that the opinion of a handwriting expert is not substantive evidence and can only be used for CBI Vs. Sushil Dutt. Page 43 out of 77 corroborative purpose is also rejected in view of the two judgments cited by the trial Judge; Murari Lal v. State of M.P., AIR 1980 SC 531 and Jaipal v. State, 2011 Cri LJ 4444 wherein the view of the Supreme Court is reiterated observing that there is no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted upon, unless substantially corroborated. As rightly observed by the trial Judge, when a piece of evidence directly connects a person with the offence, it becomes substantial piece of evidence. The presence of appellants' signatures on the fake list is evidence of their guilt and clearly demonstrates that they were part of the conspiracy. ......."
64. PW-11 Alka Gupta has been an expert witness having experience in documents examination. It is not disputed that specimen signatures of accused Sushil Dutt were taken during the investigation and they were sent for forensic analysis along with questioned signatures. PW-11 Alka Gupta has admitted having received questioned and specimen signatures (S-1 to S-10 Ex.PW- 9/A). During the process of forensic analysis, PW-11 asked for admitted handwritings of the accused which were also provided vide Ex.PW-6/A (they are official documents). According to the findings of PW-11 Alka Gupta (Report Ex.PW-11/C):-
"Both the questioned and the standard signatures agree with each other in general and individual writing characteristics such as movement, slant, spacing, CBI Vs. Sushil Dutt. Page 44 out of 77 alignment, relative size, proportion of letters. The skill and line quality of questioned signatures are also found consistent with these qualities of the standard signatures."
......."
65. The expert witness has confidently stood through the test of cross-examination. She is an independent, neutral and official witness. She has denied the suggestion that she furnished the report as per convenience of CBI. There is no reason to disbelieve the testimony of this witness as well as report furnished by her. There is no motive with CBI to falsely implicate accused Sushil Dutt or to falsely procure the expert opinion.
66. So far as the expertise of expert PW-11 Alka Gupta is concerned, it is clear that she has rich experience and requisite expertise having undergone in house training as to the examination of documents. One becomes an expert in the field of identification of handwriting and signatures by training, experience and constant observations. This court is convinced that PW-11 Alka Gupta is competent, reliable and dependable witness. The expert opinion clearly states that questioned documents carries the signatures of accused Sushil Dutt. The handwriting or signatures of a person are peculiar in nature and characteristics. The fact that personality CBI Vs. Sushil Dutt. Page 45 out of 77 enters into the handwriting and becomes an unconscious and dominant habit which establishes identity to every handwriting, is the basis on which evidence as to the handwriting is admitted and acted upon in courts. Although, a person's handwriting varies as to its precise detail, yet in its general habitual characteristics, it remains the same and inevitably and unmistakably retains every natural characteristic that identifies and distinguishes the same from others. There are four main movements employed in the formation of figures and letters (1) finger movement, (2) wrist movement, (3) forearm movement and (4) raised arm or whole arm movement. It is common knowledge that to enable an expert to give an opinion, handwriting signatures have to be magnified to an equal extent, superimposed and lines drawn to find out the angles to measure the length of various strokes and curves etc. With respect to the admissibility of the report, if the mode of proof is by means of an expert evidence, it all depends upon the quality of opinion given by the expert by assigning cogent and convincing reasons in support of his opinion. If the quality of opinion given by the expert is impeccable, having been supported by cogent and good reasons, there is no need to seek any corroboration. If for any reason the quality of the opinion is weak, it shall not be the sole CBI Vs. Sushil Dutt. Page 46 out of 77 basis for arriving at the conclusion unless it is corroborated by other means. The evidence of the expert being opinion evidence, cannot falsify the convincing direct evidence. In either case the relative quality of the evidence tilts the scales.
67. I have also carefully examined and compared the specimen signatures of accused with the signatures appearing on various documents of the bank (u/s 73 of Indian Evidence Act) and it is very much clear that accused has signed the questioned documents. Accused Sushil Dutt puts his signatures in a particular fashion and the signatures on all the relevant documents are similar, having been done in natural flow. There appears no scope of doubt that the questioned documents have been signed by the accused. I therefore, come to the conclusion that expert opinion is a substantial piece of evidence and directly connect the accused to account no.360010200004213, Axis Bank, Najafgarh, Delhi.
68. It is true that some of the pay-in-slips and declaration forms pertaining to account no.360010200004213 do not bear the signatures of accused, but it is apparent that huge amounts were deposited into this account maintained by accused Sushil Dutt . It is CBI Vs. Sushil Dutt. Page 47 out of 77 not possible for any other person to deposit huge cash into the account of accused without his knowledge and consent as subsequent withdrawals and transfers would not have been possible without the signatures of accused. Even otherwise, the account was closed on 23.10.2008. The present case was registered in the year 2016 on the basis of source information. At no point of time, accused came forward with any objection or any complaint with respect to unauthorized opening of account in his name without his knowledge or consent.
69. The Pleas taken in defence on behalf of accused are false and frivolous for the following reasons:-
• The documents annexed with the account opening form of account no. 360010200004213 belong to the accused which include photocopy of his ID card and PAN card. There is no explanation from the accused as to how the said documents could be used without his knowledge or consent.
• The statement of account no.360010200004213 (Part of Ex.PW-1/D) shows that transactions of cash withdrawals and transfers were effected through negotiable instruments. It is not possible that huge deposits were made into the account CBI Vs. Sushil Dutt. Page 48 out of 77 without the knowledge or consent of the accused. The subsequent cash withdrawals or transfers through negotiable instruments could not have been done without signatures of accused.
• Admittedly, accused purchased Toyota Innova car in his name although he pleaded that he did so on the request of Polu Sreedhar. The payment towards the purchase of this vehicle was made from account No.360010200004213. Therefore, the plea taken by accused that he has no knowledge about account no.360010200004213 is not consistent to his admission of having purchased the car.
• PW-7 Virender Singh, has deposed about assessment order Ex.P-8 and also proved the relevant proceedings. It is evident from this record that notice from Income Tax department was served upon accused in July 2016. The notices were served from income tax department seeking his explanation about non-filing of income tax returns despite heavy transactions worth crores of rupees in his accounts including account no.360010200004213. At no point of time, accused made any representation before the income tax authority that he did not open any such account, or that, he did not make any such CBI Vs. Sushil Dutt. Page 49 out of 77 cash deposits. He simply stated that deposits were made by Sqn Ldr Polu Sreedhar. Also, no complaint was filed by accused before any authority against unauthorized opening of account in his name or cash deposits in the account nor accused filed specific complaint against Polu Sreedhar or V. Balashowry.
• On careful examination of questioned signatures appearing on bank records such as account opening form (No. 360010200004213), deposit slips and declaration form dated 22.05.2008, I am convinced that peculiar signatures of accused are appearing and the signatures have been done in natural flow. Expert report also substantiates that accused signed these documents. There appears to be no manipulation about the bank record.
70. The prosecution witness Deputy SP Raj Singh (PW-8) has confirmed in his statement that he received records from the bank through letter with annexed documents Ex.PW-8/PX (colly) and Ex.PW-8/PX1 (colly). These documents are pertaining to account no. 360010100061418 also existing in the name of accused Sushil Dutt. Although this account was opened after the check period on CBI Vs. Sushil Dutt. Page 50 out of 77 10.01.2009 but these documents are important as they contain admission of accused about having opened account no.360010200004213. Infact, a cheque amounting to Rs.70 lakhs was received from M/s Vijetha Constructions as a refund and in this context, accused Sushil Dutt had written a letter dated 16.01.2009 to bank that earlier he was holding account No. 360010200004213 which has now been closed and thereafter he opened the account No.360010100061418.
71. Although accused has denied having opened account no. 360010100061418 but again he has not been truthful as his signatures are appearing on all the documents including account opening form and subsequent cheques which are produced in original. There is no reason to doubt the credibility of the bank record which has been produced by the responsible and independent officer. In defence, accused pleaded manipulation by his senior Polu Sreedhar and attributed the transactions of account no. 360010200004213 to him but has failed to bring strong evidence to prove the same. The statements of V. Balashowry and Polu Sreedhar recorded u/s 161 CrPC (Mark PW-12/X1, PW-12/X2 and PW-12/X3) are not the substantive piece of evidence and has CBI Vs. Sushil Dutt. Page 51 out of 77 no legal sanctity by virtue of Section 162 CrPC. Accused did not chose to summon either V. Balashowry or Polu Sreedhar in his defence evidence.
Conclusion:
72. I therefore come to the conclusion that accused has been taking false defence before this court. The account no. 360010200004213 and transactions through this account are clearly attributable to accused Sushil Dutt. As per statement of account, following cash withdrawals have been effected during the check period from this account:
Date Cheque no. Particulars Amount
23.04.2008 34901 To cash 1800000.00
24.04.2008 34902 To cash 700000.00
25.04.2008 34906 To cash 437000.00
26.04.2008 34908 To cash 10000.00
28.04.2008 34942 To cash 600000.00
28.04.2008 34941 To cash 700000.00
28.04.2008 34903 To cash 290000.00
28.04.2008 34911 To cash 1000000.00
29.04.2008 34913 To cash 900000.00
30.04.2008 34940 To cash 600000.00
30.04.2008 34916 To cash 6000000.00
30.04.2008 34939 To cash 500000.00
01.05.2008 34938 To cash 700000.00
02.05.2008 34937 To cash 657236.00
06.05.2008 34936 To cash 2000000.00
07.05.2008 34922 To cash 94952.00
09.05.2008 34946 To cash 702344.00
CBI Vs. Sushil Dutt. Page 52 out of 77
13.05.2008 34926 To cash 352561.00
13.05.2008 34950 To cash 900000.00
14.05.2008 34930 To cash 300000.00
17.05.2008 34933 To cash 100000.00
21.05.2008 34934 To cash 800000.00
27.05.2008 34964 To cash 259500.00
03.06.2008 34951 To cash 150000.00
06.06.2008 34947 To cash 10000000.00
06.06.2008 34948 To cash 25000.00
12.06.2008 34952 To cash 200000.00
16.08.2008 34962 To cash 30000.00
16.09.2008 14604 To cash 40000.00
It is not explained by accused as how to he dealt with cash amounts coming in his hands.
Entry at serial No. 10
73. This entry is related to account no. 360010100033035, Axis Bank, Najafgarh, Delhi. The account stands in the name of accused Sushil Dutt as per account opening form Ex.PW-1/A (Colly) and annexed copies of documents also belong to the accused. The documents are signed by accused. Ex.PW-1/B (colly) are the statements of accounts of different period of this account.
74. The accused has admitted during the trial and also in his statement (u/s 313 CrPC) that he opened this account by submitting his documents. However, according to the accused, CBI Vs. Sushil Dutt. Page 53 out of 77 account was opened by him at the instance of Sqn Ldr Polu Sreedhar. Even if the account was opened by accused at the request of some other person, he is responsible for natural and legal consequences for opening the account and for carrying out transactions therein. The account therefore is attributable to the accused.
75. The entry is dated 13.05.2008 about cash deposit of Rs.3,41,986/- (rupees three lakhs forty one thousand nine hundred and eighty six only). The pay-in-slip dated 13.05.2008 is produced in original (part of Ex.PW-1/B colly) but this does not bear the signatures of accused. The statement of account, however shows credit of Rs.3,41,986/- on 13.05.2008 by cash but on the same day there has been reversal of this entry and the amount is debited. It has also been accepted by PW-12 Parvender Kumar that this amount has been wrongly included in the assets of the accused in view of the reversal entry.
76. The conclusion is that in view of reversal entry this cash deposit is not attributable to the accused.
CBI Vs. Sushil Dutt. Page 54 out of 77
Entry at serial No.11
77. This entry is dated 22.05.2008 whereby huge cash of Rs.2,15,00,000/- (Rupees two crores fifteen lakhs only) was deposited in account no.360010100033035. Same is also reflected in the statement of account [part of Ex.PW-1/B (colly)]. The original pay-in-slip/cash deposit slip has been produced in evidence as part of Ex.1/B (Colly). This deposit slip bears the signatures of accused at point Q-1. The deposit slip was also sent for forensic analysis and the questioned signatures of accused were compared with the specimen as well as admitted signatures of accused and the report is positive to the effect that signatures on Ex.PW-1/B at Q-1 are signatures of the accused. The deposit slip is also accompanied with declaration dated 22.05.2008 and same has also been signed by accused wherein he stated that the amount is procured through lawful means and same will be utilized for purchase of agriculture land. The expert opinion has substantiated that the deposit slip and declaration carry the signatures of accused. It is also reflected through statement of account [part of Ex.PW-1/B (colly)] that accused has been dealing with huge amounts at his liberty by withdrawing money through cash and by effecting transfers through negotiable instruments. Accordingly, it is proved that accused has CBI Vs. Sushil Dutt. Page 55 out of 77 acquired an amount of Rs.2,15,00,000/- during the check period. It is important to note that no source from where accused got such huge amount has been disclosed by accused Sushil Dutt either to his department or during the trial before this court. Entry No.12
78. This entry is dated 19.08.2008 whereby cash of Rs.2,00,000/- (Rupees two lakhs) was deposited in account no. 360010100033035. Same is also reflected in the statement of account (360010100033035) [part of Ex.PW-1/B (Colly)]. The original pay-in-slip/cash deposit slip has been produced in evidence as part of Ex.PW-1/G (Colly). This deposit slip bears the signatures of accused at point Q-6. The slip was also sent for forensic analysis and the questioned signatures of accused were compared with the specimen as well as admitted signatures of the accused and the expert report is positive to the effect that signatures on Ex.PW-1/G at Q-6 are signatures of the accused. In this way, expert opinion has substantiated that the deposit slip carry the signatures of accused. It is also reflected through statement of account that accused has been dealing with huge amounts at his liberty by withdrawing money through cash and by transferring through negotiable CBI Vs. Sushil Dutt. Page 56 out of 77 instruments. So it is proved that accused has acquired an amount of Rs.2,00,000/- during the check period (01.04.2008 to 14.10.2008) and has to be included in his assets. Entry at serial No.13
79. Vide this entry, it has been shown that in account No.91182010026553 the balance at the end of check period was Rs.34,784.39p (Rupees thirty four thousand seven hundred eighty four and thirty nine paise only). In this account, the salary of the accused was being credited. PW-6 Basanta Kumar has produced the salary particulars duly certified by him as Ex.P-9. The balance amount as on 14.10.2008 is to be taken for the purposes of calculating the assets possessed by accused at the end of check period. The amount of Rs.34,784.39p is therefore taken accordingly. Entry at serial No.14
80. This entry amounting to Rs.3,062/- is the closing balance at the end of check period in account no. 360010100033035, which is attributed to the accused as an asset at the end of the check period, but in my opinion this amount can not be taken as it might have been the remainder of the earlier amounts credited (already CBI Vs. Sushil Dutt. Page 57 out of 77 included in statement B) in the account of accused. Therefore, this amount is not taken as asset being repetitive and liable to be deducted from statement B. Entry at serial No.15
81. This entry amounting to Rs.25,872/- is the closing balance at the end of check period in account no. 360010200004213, which is attributed to the accused, but in my opinion this amount can not be taken as it might have been the remainder of the earlier amounts credited (already included in statement B) in the account of accused. Therefore, this amount is not taken as asset being repetitive and liable to be deducted from statement B.
82. In defence, accused again pleaded that transactions in this account were carried out by Polu Sreedhar. However, accused has failed to establish this plea by means of concrete evidence. It is not explained as to how other person could carry out transactions in the account of accused without his knowledge or collusion. No evidence or witness is brought on this aspect. As per banking procedure, for every single transaction in the account, signatures of account holder on the relevant papers are necessary.
83. As per statement of account following cash withdrawals CBI Vs. Sushil Dutt. Page 58 out of 77 have been effected during the check period from this account:
Date Cheque no. Particulars Amount
26.07.2008 12461 To cash 50000.00
18.08.2008 23583 To cash 200000.00
19.08.2008 23582 To cash 10000000.00
25.08.2008 12881 To cash 4000000.00
27.08.2008 12883 To cash 150000.00
27.08.2008 12884 To cash 4000000.00
28.08.2008 12882 To cash 10000000.00
28.08.2008 12885 To cash 6000000.00
14.10.2008 23584 To cash 8000000.00
It is not explained by accused as how he dealt with cash amounts coming in his hands.
Conclusion
84. The statement B is taken in the manner that amounts mentioned at serial no. 10, 14 and 15 (total amounting to Rs.3,70,920/- (341986+3062+25872) are deducted from this statement i.e. Rs.50459072 - Rs.370920 = 5,00,88,152/-. Therefore, total amount Rs.5,00,88,152/- is taken as assets possessed by accused during the check period. Income of accused during check period:
85. Coming to statement C, Income earned by accused Sushil CBI Vs. Sushil Dutt. Page 59 out of 77 Dutt during the check period (01.04.2008 to 14.10.2008) the prosecution has shown the following entries:
Statement C Income earned by Sushil Dutt during the check period I.e. 01.04.2008 to 14.10.2008 Sl. Details of asset Date of Amount No. acquisition Income of Sushil Dutt
1. Gross salary 01.04.2008 89582 to 14.10.2008 Total 89,582.00
2. Interest received during the check period in 14.10.2008 247 account no. 91182010026553 (Old A/c No.077480) with Syndicate Bank Palam, Pinto Park, New Delhi
3. Interest received during the check period in 14.10.2008 164419 account no. 360010100033035 with Axis Bank, Najafgarh, New Delhi.
4. Interest received during the check period in 14.10.2008 0 account no. 360010200004213 with Axis Bank, Najafgarh, New Delhi.
Total 164666
Grand Total 254248.00
Entry at Serial No. 1
86. This entry is related to the gross salary of accused Sushil Dutt. In view of testimony of PW-6 Basanta Kumar and statement of account no.91182010026553 (Part of Ex.P-2) the salary earned by accused was Rs.89,582/- during the check period. This fact also stands admitted by accused in his statement u/s 313 CrPC, CBI Vs. Sushil Dutt. Page 60 out of 77 therefore the same is taken as income earned from salary during the check period.Entry at serial No. 2 & 3
87. These entries are about interest amounting to Rs.247/- and Rs.1,64,419/- received by accused in his account numbers 91182010026553 and 360010100033035 respectively. Both these amounts has been credited to the accounts {Statement of accounts [Part of Ex.P-2 (colly)] and [part of Ex.PW-1/B (colly)]} of accused and therefore, these entries are taken as correct.
88. The conclusion is that statement C is taken as correct and amount of Rs.2,54,248/- is taken as income earned by accused during the check-period.
Expenses during check period
89. Coming to statement D, Expenses incurred by Sushil Dutt during the check period 01.04.2008 to 14.10.2008 the prosecution has detailed the following entries:
STATEMENT D Expenses incurred by Sushil Dutt during the check period 01.04.2008 to 14.10.2008 CBI Vs. Sushil Dutt. Page 61 out of 77 Sl.No. Details of Expenditure Date Owners Amount Remarks name 1 Non-Verifiable Expenditure 01.04.2008 Sushil Dutt 29861 on Gross salary to 14.10.2008 Total 29861 Bank Charges
2. Bank charges in Account 01.04.2008 Sushil Dutt 67 No. 91182010026553 (Old to account No.077480) with 14.10.2008 Syndicate Bank Palam, Pinto Park, New Delhi
3. Charges debited in 01.04.2008 Sushil Dutt 117161 Account No. to 360010200004213 with 14.10.2008 Axis Bank, Najafgarh, New Delhi
4. Closing balance at the end 01.04.2008 Sushil Dutt 3077 of check period in Account to No.360010100033035 14.10.2008 with Axis Bank, Najafgarh, New Delhi Total 120305 Other expenses
5. Telephone Charges 01.04.2008 Sushil Dutt 1098 Telephone to bill paid by 14.10.2008 Sushil Dutt during the check period against telephone no.
25671388 Total 1098 Sub Total 151264 Entry at Serial No.1
90. This entry amounting to Rs.29,861 (rupees twenty nine thousand eight hundred sixty-one) is about non-verifiable expenditure spent by accused Sushil Dutt during the check period, CBI Vs. Sushil Dutt. Page 62 out of 77 which is one third of his gross salary.
91. The prosecution has relied upon the judgment of Sajjan Singh v State of Punjab, 1964 (1) Cri. L.J. 310 (Vol. 68, C.N.
87), on this point, Apex Court has held as follows:
"....
29. The total receipts by the appellant from his known sources of income thus appears to be about Rs. 1,03,000/. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant's possession, through himself or through his son (Rs.1,20,000/) were not disproportionate to his known sources of income. One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/per month must have been his average expenses throughout these years taking the years of high prices and low prices together. These expenses therefore cut a big slice of over Rs. 36,000/from what he received. The assets of Rs. 1,20,000/have therefore to be compared with a net income of Rs. 67,000/. They are clearly disproportionate indeed highly disproportionate.
....."
92. The prosecution has accordingly advanced arguments that at least one third of the income should be taken as non verifiable expenditure as it cannot be accepted that accused was not spending anything on maintaining himself and his family members throughout the check period.
CBI Vs. Sushil Dutt. Page 63 out of 77
93. Accused has been public servant and attending his office on regular basis. He lives in government house. Expenses are invariably incurred on necessary items like food, clothings, traveling electricity, water, mobile phone etc. As per settled legal position, 1/3rd of the total receipts from known sources of income are to be taken as expenditure on non-verifiable items. The prosecution in this case has only taken 1/3 rd of gross salary of accused as expenses on this count and not 1/3 rd of total income (which includes income from interest) and in this way, accused already has got concession. Thus, this calculation is taken as correct. Entries at serial No.2 and 3
94. Both these entries amounting to Rs.67/- and Rs.1,17,161/- are with reference to bank charges deducted from two accounts No. 91182010026553 and 360010200004213. The same are reflected from account statements [part of Ex.P2 (colly)] and [part of Ex.PW- 1/D (colly)]. Therefore, these expenditures are attributed to the accused for the check period.
Entry at serial no. 4
95. This entry pertains to closing balance at the end of check CBI Vs. Sushil Dutt. Page 64 out of 77 period in account no. 360010100033035 of accused. This can not be said to be expenditure incurred by accused. Therefore, this amount is to be deducted from this head.
Entry at serial No.5
96. This entry is about telephone charges amounting to Rs.1,098 paid by accused in respect of telephone number 25671388. PW-4 Ms. Sushma Sharma has proved on record statement of payment (Ex.P-7) made by subscriber Sushil Dutt of telephone no.25671388. This document is admitted by accused Sushil Dutt. Therefore, this expenditure is attributed to the accused.
97. To conclude, the total expenditure done by accused during the check period is taken as Rs.1,48,187/- (Rs.1,51,264 - Rs.3,077). Calculation of Disproportionate Assets:-
98. On the basis of above discussion, the conclusion about different statements comes as follows:
Statement A Assets before check Rs. 7,278.89 period Statement B Assets possessed during Rs.5,00,88,152/-
check period Statement C Income earned during Rs.2,54,248/-
CBI Vs. Sushil Dutt. Page 65 out of 77
check period
Statement D Expenditure incurred Rs.1,48,187/-
during the check period
99. The explanation to Section 13 (1) (e) of the PC Act, 1988 has the effect of defining the expression "known sources of income"
used in Section 13 (1) (e) of the PC Act, 1988. The explanation to Section 13 (1) (e) of the PC Act, 1988 consists of two parts. The first part states that known sources of income means income received from any lawful source and the second part states that such receipt should have been intimated by the public servant in accordance with the provisions of law, rules and orders for the time being applicable.
100. Referring to the first part of the expression "known sources of income" in N.Ramakrishnaiah vs. State of A.P., 2009 Cri.L.J.1767, the Supreme Court observed as under:-
"15. The emphasis of the phrase "known sources of income" in Section 13 (1) (e) (old Section 5(1) (e)) is clearly on the word "income." It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is classic and has a wide CBI Vs. Sushil Dutt. Page 66 out of 77 connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known sources of income" of a public servant.
(see also, State of M.P. versus Avadh Kishore Gupta (2004) 1 SCC 694).
101. Thus the expression "known sources of income" is not synonymous with the words "for which the public servant cannot satisfactorily account". The two expressions connote and have different meaning, scope and requirements. While the expression "known sources of income" refers to the sources known to the prosecution, the expression "for which the public servant cannot CBI Vs. Sushil Dutt. Page 67 out of 77 satisfactorily account" refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence act applies. Read in this light and background, the explanation to Section 13(1) (e) is merely a procedural Section which seeks to define the expression "known sources of income" as sources known to the prosecution and not to the accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared. The undeclared alleged sources are by their very nature are expected to be known to the accused only and are within his special knowledge. Read in this manner, the explanation to Section 13 (1) (e) of the P.C. Act 1988 is merely procedural and not substantive and it does not create a new offence. The effect of the explanation is to clarify and reinforce the CBI Vs. Sushil Dutt. Page 68 out of 77 existing position and understanding of the expression "known sources of income" i.e. the expression refers to sources known to the prosecution and not sources known to the accused. The second part of the explanation does away with the need and requirement for the prosecution to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out known sources of income of the accused public servant.
102. It is for the prosecution to prove that accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The legislature has advisedly used the expression "satisfactorily account" and the emphasis must be on the word "satisfactorily". That means, the accused has not only to CBI Vs. Sushil Dutt. Page 69 out of 77 offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on accused is an evidential burden and not a persuasive burden although could be discharged by accused on the balance of probabilities (relied upon K. Veeraswami vs. Union of India, 1991 (3) SCC 655)
103. Thus, the public servant/accused has to account for, to the satisfaction of the court, that the assets available with him or his resources for purchase of the assets were not disproportionate to the known sources of his income.
104. Accused Sushil Dutt is a public servant for 21 years and has been discharging public duties as LDC at 31 Moment Control Unit (MCU), Indian Air Force Station, Delhi Cantt. It is not the case of the accused that he has been mentally or physically unfit in any manner. Also, accused has not claimed that he is a person with low IQ (Intelligence Quotient). Crime is a crime irrespective that it was committed at the instance of some other person. In the words of accused himself, he opened bank account (No.360010100033035) on the asking of Polu Sreedhar and even signed unfilled credit vouchers/deposit slips at the instance of Polu Sreedhar. Accused CBI Vs. Sushil Dutt. Page 70 out of 77 has also claimed that entire money belongs to Polu Sreedhar and V. Balashowry. Similar claim was made by accused before the income tax authorities as evident from Ex.P-8. Even if these pleas are taken as true, accused cannot be exonerated. Attributing the acts of opening of bank accounts and signing of blank deposit slips to his senior, is not going to help the accused. There is no sanctity attached to such pleas in law.
105. Accused consciously signed bank documents pertaining to accounts in his name and it is unbelievable that he was not knowing about the nature and essence of transactions or the consequences thereof. It is apparent that accused has been dealing in crores of rupees through his accounts with Axis Bank, Najafgarh, despite having meager income from his salary. Even if accused involved himself at the instance of his senior, he has to face the legal and natural consequences for the criminal acts committed by him. It is also important to note that accused was driven by his own interest and motives in opening the accounts and making the cash deposits therein and in transferring various amounts from his accounts. It is unacceptable that accused was not knowing the consequences of his acts.
CBI Vs. Sushil Dutt. Page 71 out of 77
106. It may be true that accused has been dealing in crores of rupees at the instance of Polu Sreedhar and V. Balashowry, but only because he has been a part of larger conspiracy and played his role to facilitate the handling of tainted money. Public servant is governed by conduct rules and is required to disclose to his department about his assets and dealings. It is not permissible to public servant to help anyone in laundering black or illegitimate money. Even if, the plea that money belongs to Polu Sreedhar or V. Balashowry, is taken as true, yet by obtaining their money into his accounts, accused has possessed the same illegally. It is not possible that deposits were made without the knowledge or consent of the accused, because subsequent cash withdrawals or transfers through negotiable instruments could not have been possible without signatures of accused.
107. Only against cash deposits into the accounts of accused, the DA is calculated which is so huge. Even otherwise, Crores of rupees have come into the accounts of accused through cheques/transfers and they should also have been included as were possessed by accused during the check period, but available evidence on that count is only the bank statements and it is not CBI Vs. Sushil Dutt. Page 72 out of 77 possible to get into the details of those transactions. But the clear conclusion comes out that assets of accused have been way beyond his means.
108. It stands established that accused has been taking false and frivolous pleas in defence before this court. He denied the genuine documents of the bank and even his signatures on original papers. The conclusive evidence has come on record showing that accused has been the account holder of relevant accounts (No. 360010100033035 and 360010200004213) and has been carrying out transactions under his signatures. During examination of prosecution witnesses accused has taken the plea that he has no connection with V. Balashowry but at the same time admitted execution of Special Power of Attorney [Ex.PW-3/B (colly)] by V. Balashowry in his favour. It is obvious that V. Balashowry was not stranger to the accused also in view of recovery of photocopies of sale deed in favour of V. Balashowry from the house search of accused. The defence pleas are inconsistent and reveal the dishonesty of accused. Accused has tried to put entire blame on Sqn Ldr Polu Sreedhar and V. Balashowry (against both of them separate RC has been registered) and it is clear that they were CBI Vs. Sushil Dutt. Page 73 out of 77 equally involved in laundering the black money through the accounts of accused but accused is no less guilty as he provided them all the logistics through opening accounts in his name and by carrying out transactions under his signatures. There is no justified explanation as to why accused was signing the crucial documents such as deposit slips/credit vouchers at the instance of Polu Sreedhar. The defence argument that accused has not been the beneficiary has no substance as various cash withdrawals from the accounts came into the hands of accused and he dealt with the same as per his choice.
109. The registration of case has been proved by PW-8 Raj Singh. Non-examination of Asif Jalal is not crucial as FIR/RC itself is not a substantial piece of evidence. The FIR is the document which shows that information was received by the agency and same was reduced into writing. The judgment of Bhugdomal Gangaram (Supra) deals with different fact situation and is not applicable here.
110. This court is conscious about the contents of statements Mark PW-12/X1, PW-12/X2 and PW-12/X3. However, in view of the CBI Vs. Sushil Dutt. Page 74 out of 77 fact that separate case has already been registered against Polu Sreedhar and V. Balashowry, the law will take its own course against them. The fact remains that accused was equally involved in the entire transactions and possessed huge cash during the check period, which has been beyond his sources of income. Accused has failed to establish that accounts no. 360010200004213 and 360010100033035 were not operated or controlled by him or that he was having no knowledge about the transactions carried out through these accounts.
111. The clear conclusion comes out that accused committed criminal misconduct to gain pecuniary advantage. The ingredients of offence as defined u/s 13 (1) (e) of Prevention of Corruption Act 1988 are clearly established on record.
112. The accused has failed to account to the satisfaction of this court about the assets available with him or about the sources to acquire such assets. The income earned by accused primarily has been through his salary. It is not the case that accused was getting income through any other source. Therefore, crores of rupees acquired by accused into his account cannot be taken as CBI Vs. Sushil Dutt. Page 75 out of 77 income in any manner rather they are proceeds of immoral acts committed by accused in collusion.
113. In the ultimate analysis, the disproportionate assets are calculated in the following manner:
Calculation of DA of Sushil Dutt (CHECK PERIOD 01.04.2008 TO 14.10.2008) Assets at the End of check period (statement B) 50088152 Assets at the beginning of check period (statement A) 7279 Assets acquired during the check period (B-A) 50080873 Expenditure incurred during the check period 148187 (statement D) Total assets acquired and expenditure incurred during 50229060 check period [(B-A) + D] Income during the check period (statement C) 254248 Assets Disproportionate to the known sources of income 49974812 [(B-A)+(D-C)] Percentage of DA Assets Disproportionate to the known sources of income x 100 Income during the check period (statement C) Rs.4,99,74,812 x 100 2,54,248 19655.9% Conclusion:
114. In the result, I hold that prosecution has succeeded in proving that accused was having disproportionate assets to the CBI Vs. Sushil Dutt. Page 76 out of 77 tune of Rs.4,99,74,812/- i.e.19655.9% during the check period w.e.f. 01.04.2008 to 14.10.2008.
115. On the basis of above observations, I hold accused Sushil Dutt guilty for the offence of criminal misconduct punishable u/s 13 (1) (e) r/w Section 13 (2) of Prevention of Corruption Act 1988.
Accused is convicted accordingly.
116. Let the convict be heard on the point of sentence.
ANJU BAJAJ Digitally
CHANDNA
signed by ANJU BAJAJ
CHANDNA Date: 2019.08.23 15:24:39 +0530
ANNOUNCED IN THE OPEN COURT ANJU BAJAJ CHANDNA
on 23rd August 2019 Special Judge (PC Act) CBI-02,
Rouse Avenue Court Complex
New Delhi
CBI Vs. Sushil Dutt. Page 77 out of 77