Cc No.117/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 21 May, 2013

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Delhi District Court

Cc No.117/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 21 May, 2013

                                                  1


    IN THE COURT OF ANOOP KUMAR MENDIRATTA,
  SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
             TIS HAZARI COURTS, DELHI.

CC No. : 117/2011
RC No. : 01/2007
PS         : CBI/EOU-VI/New Delhi
Unique ID No. 02401R0046872009


C.B.I.

Versus

1.        Ajay Kumar Shrotriya
          S/o Shri G.S. Shrotriya
          R/o B-578, MIG Flats, Loni Road, Delhi.

2.        Sanjay Kumar Batra
          S/o Shri Bhim Sen Batra
          R/o 15/11-A, Tilak Nagar, New Delhi.

          Date of FIR                             : 23.01.2007
          Date of Institution                     : 31.01.2009
          Arguments concluded on : 21.05.2013
          Date of Judgement                       : 21.05.2013


JUDGEMENT

1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW16 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW16/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w 13(2) r/w 13(1)

(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW17/A bearing RC 1/2007 was accordingly registered and investigated by PW17 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution.

Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.

2. In brief, the contents of complaint dated 23.01.2007 made by SI CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.

As per the complaint Ex.PW16/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:

1) D-16, Fateh Nagar, New Delhi

2) D-15, Fateh Nagar, New Delhi

3) 24/13A, Tilak Nagar, New Delhi

4) 15/11A, Tilak Nagar, New Delhi

5) 16/23, Tilak Nagar, New Delhi

6) 22/23, Tilak Nagar, New Delhi

7) WZ-30, Krishna Park, New Delhi

8) WZ-23, Krishna Puri, New Delhi

9) WZ-150B, Krishna Park, New Delhi

10)4 Industrial Area, Tilak Nagar, New Delhi

11) C-16, Vikas Puri, New Delhi

12)WZ-406R, Janak Park, New Delhi

13)B-3/84, Paschim Vihar, New Delhi

14)A-5/11, Paschim Vihar, New Dehi

15)Shop No.19, New Market, Ramesh Nagar, New Delhi.

It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) (OIB) and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.

As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.

3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW17 Insp. N. Mahato and chargesheet was filed u/s 173 Cr.P.C.

It is alleged by the prosecution that Plot No. 15/11A, Tilak Nagar, New Delhi measuring about 100 sq. yards was owned by Sanjay Kumar Batra and booked by MCD on 03.06.02 vide FIR Ex.PW3/A for unauthorized construction at ground floor & first floor by Shri L.K. Goyal, JE (the name of the officer who had booked the unauthorized construction has been wrongly mentioned in the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

chargesheet as Ajay Kumar Shrotriya). The nature of the unauthorized construction is described by way of deviation/excess coverage against sanctioned building plan no. 401/B/WZ/02 dated 14.02.02 at GF and FF. Thereafter, a notice u/s 344 of DMC Act, 1957 dated 03.06.02 (Ex.PW2/A) was issued under signatures of Shri V.D. Malhotra, ZE (B) for stopping over the construction failing which the action would be initiated under Section 343 DMC Act, 1957. The owner/builder Shri Sanjay Kumar Batra was also directed to show cause within three days of the issue of the notice. The notice was further served by way of affixation by the concerned JE Shri L.K. Goyal after obtaining permission to execute the same by way of pasting. Since accused Sanjay Kumar Batra failed to respond to the same, a further notice u/s 343(1) of DMC Act, 1957 dated 07.06.02 (Ex.PW2/B) was issued to the owner of the property for demolition of the property within 6 days as the construction had been carried in violation of the building bye-laws. The notice was further served by way of affixation in the presence of the departmental witnesses by Shri L.K. Goyal, JE after seeking permission of Shri V.D. Malhotra, ZE(B)/AE to serve by way of pasting. Further, since the accused Sanjay Kumar Batra failed to respond to the said notices, the demolition order dated 19.06.02 (Ex.PW3/D) was proposed by Shri L.K. Goyal, JE which was further approved by Shri V.D. Malhotra, ZE(B) and the file was sent to Officer-in-charge (Buildings) for necessary action through Shri L.K. Goyal, JE.

It is further the case of prosecution that Ajay Kumar Sharotriya, JE did not take the UC file of property no. 15/11A, Tilak Nagar, New CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Delhi from MCD West Zone and wrongly made a noting dated 09.08.02 in the file (i.e. on the back of demolition order) that action could not be taken due to non-availability of police force. The aforesaid noting was further placed before AE(B) Shri J.S. Yadav on the same date who directed "try again" and the file was marked to OI(B).

It is further alleged that Ajay Kumar Shrotriya further fraudulently and dishonestly introduced entry dated 26.08.02 on the back of the demolition order to the effect, "demolished the 'chajjas' at first floor and ground floor". Also a corresponding entry is alleged to have been made in the demolition register maintained by OI(B) to the effect, "demolished the chajjas at first floor and ground floor" though the demolition was not carried and no charges were raised for causing demolition. The said entries are alleged to have been made by Ajay Kumar Shrotriya in conspiracy to save the property from demolition and to conceive the real intention of not demolishing the property.

It is further alleged that the entry dated 26.08.02 was revealed to be false since the same was not supported in the Action Taken Report for the month of August, 2002 and the demolition register maintained at PS Tilak Nagar showed that MCD staff had not reported on 26.08.02.

It is also the case of prosecution that during investigation, the aforesaid property was got inspected by team of officers from CPWD and report Ex.PW14/A was prepared reflecting the existing CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

construction at the time of inspection in the year 2007/08. It was reflected in the site plan which is a part of the report that a shop is being run in the unauthorized covered area on the front set back measuring about 15 ft. X 10 ft. and also an unauthorized coverage of verandah existed in the back 'set-back'.

4. Charge was framed against accused Ajay Kumar Shrotriya and Sanjay Kumar Batra u/s 120B r/w Sec 417/465/468/217 IPC r/w Sec 13(2) alongwith Sec 13(1)(d) of the Prevention of Corruption Act, 1988. Accused Ajay Kumar Shartoriya was further charged for substantive offences u/s 417/465/468/217 IPC and under Sec 13(2) r/w Sec 13(1)(d) of the Prevention of Corruption Act, 1988.

5. In support of its case, prosecution examined seventeen witnesses, namely, i. Shri Naresh Kumar ii. Shri Jai Bhagwan iii. Shri Moti Lal iv. Shri Brij Pal Singh v. Shri Ashok Kumar vi. Shri U.K. Dey vii. Shri Dal Chand viii. Shri Ramesh ix. ASI Jag Ram Singh x. Ct. Shiv Prasad xi. Shri Lal Chand xii. Shri R.S. Rana CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

xiii. Ct. Jacob Mathew xiv. Shri Himanshu Pandey xv. Shri S.S. Rana xvi. SI Arvind Kumar xvii. Insp. N. Mahato

(a) PW16 SI Arvind Kumar conducted the preliminary enquiry prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined by him along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya, JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person. Accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC and in this respect, a letter dated CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

23.01.2007 (Ex.PW16/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri.

(b) PW5 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE and proved the sanction order Ex.PW5/A.

(c) PW6 Shri U.K. Dey, Assistant Engineer CPWD, PW14 Shri Himanshu Pandey, SE CPWD and PW15 Shri S.S. Rana, Sr. Architect, NZ-2, CPWD proved the report Ex.PW14/A and drawings Ex.PW6/A-1 to A-3 prepared on the inspection of property in question during investigation and which reflected the construction existing at site in 2007/08.

PW6 Shri U.K. Dey proved the drawings (Ex.PW6/A-1 to A-3) in respect of property no. 15/11-A, Tilak Nagar, New Delhi and identified his signatures at point A along with signatures of other team members, namely, Shri Daya Chand, Shri S.S. Rana, Shri Himanshu Pandey and Shri D.K. Garg, the then SE, P&A. PW14 Shri Himanshu Pandey similarly proved the report Ex.PW14/A including drawings from page 2 to 4 (Ex.PW6/A-1 to A-3) and identified signatures of other officers on the report. He further stated that the report Ex.PW14/A and drawings Ex.PW6/A-1 to A-3 also reflect the permissible construction as per building bye-laws of 1983 and actual coverage at site.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

PW15 Shri S.S. Rana deposed on similar lines.

(d) PW3 Shri Moti Lal, the then Officer In-charge (Building) MCD deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers. Further, during his aforesaid assignment he had made various entries in missalbandh registers regarding unauthorized construction maintained in his office.

Further, FIR No. B/UC/WZ/2002/202 dated 03.06.02 (Ex.PW3/A) regarding building No.15/11A, Tilak Nagar was lodged by the then JE. He identified his initials at point A. He further stated that he had entered particulars of the FIR in missalbandh register (Ex.PW-3/B) at Sr. No.202 at point A and file was handed over to Shri L.K. Goyal, concerned JE on 3.6.02.

He further stated that show cause notice dated 03.06.02 (Ex.PW2/A) under DMC Act was issued under the signatures of Mr. V.D. Malhotra, Z.E. (Building). Further, on the back of the show cause notice (Ex.PW2/A), permission for pasting was sought by the concerned JE Shri L.K. Goyal, at point A-1 and the same also bears the counter signatures of Shri V.D. Malhotra at point B. He further stated that after seeking permission for pasting of the notice, Shri L.K. Goyal pasted the notice at site in the presence of witnesses and report bears signatures of ShriL.K. Goyal at point A-2.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

He further stated that order to issue second notice u/s 343 (1) of DMC Act dated 07.06.02 (Ex.PW3/C) was procured by Shri L.K. Goyal, JE which bears the signatures of Shri L.K. Goyal at point A and counter signatures of Shri Malhotra at point B. Further, entry of this notice was reflected in missalband register at point X. He further stated that second notice (Ex.PW2/B) was issued under the signatures of Shri V.D. Malhotra on 07.06.02 and the report regarding its pasting is available at the back of the notice under the signatures of Shri L.K. Goyal at point B dated 11.06.02.

He further deposed that demolition order dated 19.06.02 (Ex.PW3/D) was passed in respect of property in question which bears the signatures of Shri L.K. Goyal at point A and of Shri Malhotra at point B. Further, on the back of order for demolition dated 19.06.02, there is an endorsement dated 09.08.02, by Shri Ajay Kumar Sharotriya, "demolition could not be taken due to non-availability of police force". He further stated that as per endorsement at point A (Ex.PW3/D), the file was marked to him after the action.

He stated that there is a further endorsement which bears signatures of Shri Ajay Kumar Shrotriya at point B dated 26.08.02 regarding demolition action and the file was marked to AE (Building) but the same does not contain the countersignature of AE (Building).

He further stated that as per movement register (D-8) (Ex.PW3/E), on 09.08.02, no file pertaining to the property in question was taken over by Ajay Kumar Shrotriya or any other JE from his office for demolition. Further, as per movement register maintained by him in the office, no file of property No. 15/11A, Tilak Nagar, was received by Shri Ajay Kumar Shrotriya from 19.06.02 till CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

26.08.02. He further deposed that as per movement register, on 26.08.02, some other JE had taken file of property situated in Janak Puri.

He further deposed that the demolition register (Ex.PW-3/F), maintained by him during his tenure in the office was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard. He further proved the entries regarding demolition of property No.15/11A, Tilak Nagar at point A on page No. 30 of the register which bears the signatures of Ajay Kumar Sharotriya. He further stated that as per rule, the above said file should be handed over to him on the same day on the arrangement of police force for demolition but the same was never handed over to him by Ajay Sharotriya.

He further stated that the programme for demolition was chalked out by the concerned XEN and the same was communicated to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard of levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. He further stated that he had not sent any letter to the owner/ occupier of 15/11A Tilak Nagar for demand of demolition charges. He further stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area. Further, the action taken report against the unauthorized construction was prepared by him on the basis of demolition register which is usually written by the concerned JE.

He further stated that the Action Taken Report (Ex.PW3/G) CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

bears his signatures at point B on page No. 1,4,5,6 and 7 along with the signatures of the then EE, Shri Kadyan at point A. Further, he used to prepare the Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register which were maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him.

He further stated that as per Action Taken Report for the month of August-2002 and September, 2002 available in D-13 (Ex.PW-3/G), there is no mention of demolition of property No.15/11A, Tilak Nagar and the same was sent under the signatures of Shri Brij Pal Singh, the then XEN.

He also stated that he used to send the Action Taken Reports on the basis of demolition register and missalbandh register for the concerned period and after verifying from the records. Further, he used to submit Action Taken Report before XEN for forwarding it of higher officials.

(e) PW2 Shri Jai Bhagwan, Baildar in MCD, deposed that he remained posted as baildar in MCD from 2002 to 2010 in building Department and had also worked under Ajay Kumar Sharotriya. Further, during the relevant period Shri Moti Lal was OI(B).

He further stated that his duties involved demolition of unauthorized structure and pasting of notices.

He further stated that show cause notice under Section 344 (1)/343 of MCD dated 03.06.02 (Ex.PW2/A) bears his signatures at point A and was pasted at property No.15A, Tilak Nagar, on 04.06.02 CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

by the concerned JE.

He also stated that another notice dated 07.06.02 (Ex.PW2/B) bearing his signatures at point A was pasted by the concerned JE on property No.15/11A, Tilak Nagar, in his presence on 11.06.02.

(f) PW8 Shri Ramesh posted as Baildar in MCD deposed that he was confirmed as baildar in MCD on 01.04.1995 and is still working on the same assignment.

He further stated that the duties of Baildar includes the work of demolition and accompanying senior officers for the service of notices regarding unauthorized construction and sealing of properties. He further stated that from 2000 to 2003, he was posted in West Zone, Rajouri Garden and during the relevant period Moti Lal was working in their office and he used to visit as per the directions of OI (Officer In-Charge).

(g) PW4 Shri Brij Pal Singh deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, MCD, Rajouri Garden, New Delhi and during that period he was looking after building department in the supervisory/administrative capacity. The office was maintaining missalbandh register through OI(B) on daily basis in which entries regarding unauthorized construction were maintained on the basis of feedback given by the concerned JE/AE of the area. Further, the missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures. The monthly report was used to be sent to the higher authorities for their information regarding day to day working and monthly progress.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

He further stated that programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for the intimation to concerned police station for the requisition of police force for the assistance in carrying out the demolition. While sending monthly report to higher authorities it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/ sealing actions carried out during the previous month and booking of properties under 466 ( A) of DMC Act and action taken against the properties under Section 344 of DMC Act. Further, all the information used to be provided by OI(B) and the same was countersigned by him (EE) for sending it to the higher authorities.

He further stated that the Action Taken Report (Ex.PW-3/G) for the period from January to May 2003 except (February 2003, April, 2002 to December, 2002 and October, 2002) were sent by him under his signatures at point A. Further, the reports were forwarded by him and the same were put up before him by the concerned OI(B) Shri Moti Lal which were prepared on the basis of original demolition register.

He further stated that an entry regarding particular demolition is made in UC file. Further, the same is put up before concerned AE and after its due ratification by the AE, the UC file goes back to OI(B).

He further stated that as per UC file (D-3) and demolition order available on page 5 (Ex.PW3/D), there is marking of concerned file to AE (B) at entry available at point A dated 09.08.02 along with CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

comments "try again" and the file was further marked to OI(B).

He further stated that there is another entry regarding demolition on demolition order dated 26.08.02 at point X which shows that demolition was carried out on the same day and it was also marked to AE(B) but the same is not signed by the concerned AE(B).

He further stated that in the Action Taken Report and its annexures for the month of August-2002 and September, 2002 available in D-13 (Ex.PW-3/G), there is no mention of demolition of property No.15/11A, Tilak Nagar, which bears his signatures at point A. He also stated that such reports used to be sent by Mr. Moti Lal, O.I. (B) on the basis of demolition register and missalbandh register, for the concerned period and after verifying from the records. Further, the reports were sent to concerned higher officials on monthly basis for their intimation and necessary action, at their end.

(h) PW11 Shri Lal Chand posted as Driver in West Zone, MCD, Delhi deposed that he used to ferry the officials and the police force as and when directed by the officials and used to maintain log book (Ex.PW7/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column in the log book. He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 26.08.02.

He further stated that the log book was maintained by him for vehicle no. DDL 4607 driven by him on various dates and the entries on various dates on which he was deputed in the vehicle are in his CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

handwriting. Further, as per entry dated 26.08.2002, he had taken the vehicle on the requisition of the then JE Shri A. K. Goel who visited Janak Puri Police Station to take police force for demolition which bears his signatures at point B and the initials of Shri A.K. Goel at point C. He further stated that as per log book maintained by him, he had not gone anywhere with his vehicle with any other JE on 26.08.02.

He further proved entry dated 31.12.2002 at point D in log book whereby he had gone with the permission of the then JE Shri U. C. Saxena to workshop for repair of the vehicle and later on he returned back to the office without any other demolition work. He further stated that the entry bears his signature at point A and signature of the then JE at point B. He further stated that as per entry dated 03.12.2002 in log book, vehicle was requisitioned by Shri Ajay Kumar Sharotriya. Further, he went to P.S. Hari Nagar for taking police force accompanied with Ajay Kumar Shrotriya and finally left the force at P.S. Hari Nagar and came back. He further stated that the entry at point E bears his signature at point A and signature of Shri Ajay Kumar Shrotriya at point B. He further stated that on 27.02.2003, the vehicle was taken to workshop for repair as per entry at point F. Further, the same bears his signature at point A and signature of Ajay Kumar Shrotriya at point B. He also stated that on 27.02.2003, his vehicle was not taken for demolition work.

He further stated that on 27.03.2003, he had not taken vehicle anywhere for demolition because of breakdown and the vehicle was CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

booked by Shri Daljeet Singh Hooda. Further, the vehicle was taken to Subhash Nagar workshop for repairs.

He further stated that as per entry dated 19.09.2003 at point H, he had taken vehicle at the request of the then JE Mohd. Ahmed. The police force was taken from P.S. Hari Nagar for action and further, after leaving them back at P.S. Hari Nagar, they returned back to office.

He further stated that as per entry dated 03.03.2003 at point 'I', he had taken vehicle as per the requisition of Shri Ajay Kumar Sharotriya. Further, he had taken police force from P.S. Punjabi Bagh and then left back at same P.S. He further stated that as per entry dated 31.03.2003 at point J, he had taken vehicle to P.S. Paschim Vihar with Shri Ajay Kumar Shrotriya but police force was not available on that day and so he took his vehicle back to office.

PW7 Shri Dal Chand who was also posted as driver in MCD on vehicle No. DDL 4607 further proved the entries in the log book (Ex.PW7/A-colly). He stated that as per entry dated 09.06.03 the vehicle was taken to PS Punjabi Bagh and from there to East Punjabi Bagh and then back to office. The vehicle was requisitioned on the aforeaid date by JE Mohd. Ahmed who put his signatures at point A in column no. 12.

(i) PW13 Ct. Jacob Mathew deposed that he was posted as Constable in P. S. Tilak Nagar from 2002 to 2007 and was deputed on Dak duty which includes handling of diary dispatch work and delivery CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

and acceptance of dak to various offices. He further stated that he was maintaining demolition register at PS since he was attached with Reader to SHO, which contains entry regarding dak received from MCD office regarding demolition of unauthorized construction and requirement of police force by MCD office. He further stated that the requisition of police force by MCD was used put up before SHO for necessary action and arrangement and details of which were maintained in the demolition register by him or sometimes it used to be entered by the Reader. Further, as per entry at serial no. 33 dated 09.08.2002 at point C in demolition register (Ex.PW9/A) maintained at PS, a request from MCD was received for requisition of police force for carrying out demolition in the area of PS Tilak Nagar. However, MCD staff had not reported on that day for carrying of police force with them. He further clarified that in the last column against the said date remarks were made "not carried out" which is not in his hand. He also stated that first four columns of entry no.33 regarding requisition of police force are in his hand.

He further stated that as per entry at serial no. 34 dated 26.08.2002, there was also requisition for carrying out demolition in the area of PS Tilak Nagar. He clarified that as per entry in the last column of remarks it had been noted "not carried out" and only the entry in first four columns is in his hand.

(j) PW12 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW12/B) comprising of seven pages alongwith detailed reasons.

He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

dated 10.6.08 (Ex.PW12/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW12/B) comprising of seven pages alongwith detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A on Ex.PW12/B.

(k) PW9 ASI Jag Ram Singh deposed that he was posted in PS Tilak Nagar as Head Constable from 2006 to 2010 and during 2008 he was looking after the work of Reader to SHO, PS Tilak Nagar. Further, during the said period, he was performing duties such as entries of complaint, maintenance of all types of register including demolition register.

He further stated that register for the period 28.01.02 to 23.08.03 (Ex.PW9/A) maintained with reference to demolition at PS Tilak Nagar contained entries in handwriting of Constable Jacob Mathew who was working under him. Further, as per entry at Sl. No. 34 dated 26.08.2002 at point A, no demolition was carried out.

(l) PW17 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A. K. Ohri at point A CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

on FIR dated 23.01.2007 (Ex.PW17/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW16/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi.

He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like copy of missalband register (Ex.PW3/B), demolition register (Ex.PW3/F), log book (Ex.PW9/A) and attendance register (Ex.PW17/B).

He also stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW12/A) and also the report (Ex.PW12/B) was thereafter obtained.

He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW14/A).

He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/ 344 DMC Act and demolition order along with other relevant documents. Further, he had also joined the police officials from the concerned PS wherein a separate demolition CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

He further deposed that as per investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.

6. In their statement u/s 313 Cr.P.C. both the accused denied the case of the prosecution and took a stand that they are innocent and have been falsely implicated in this case.

(a) Accused Sanjay Kumar Batra denied the service of notices u/s 344/343 of DMC Act, 1957 and also stated that no demolition action had been taken by MCD. He further denied having known Ajay Kumar Shrotriya or having entered into any conspiracy with him. Accused further sought an opportunity to lead evidence in defence and examined DW3 Assistant Ahlmad in the Court of Shri Anil Kumar, ASCJ. The said witness proved the copy of the plaint (Ex.DW3/A) alongwith written statement (Ex.DW3/B) filed in Civil Suit No.151/09/02 titled as Yogender Kumar Mehta vs. MCD. The aforesaid suit for permanent and mandatory injunction was filed by Yogender Kumar Mehta, a neighbour of accused Sanjay Kumar Batra against MCD and other defendants for restraining defendant no. 3 & 4 from carrying unauthorized construction and converting the front portion into shops.

(b) Similarly, accused Ajay Kumar Shrotriya also denied the case CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

of the prosecution. Accused further took a stand in statement u/s 313 Cr.P.C that he has been falsely implicated in this case with a view to save the actual culprits since no officer in whose duration the construction was carried out or who joined after his transfer had been booked or even interrogated by CBI. He also filed statement u/s 313(5) Cr.P.C.

In his defence, accused Ajay Kumar Shrotriya examined DW1 Shri Babu Lal, DW2 Shri Pradeep Kumar Mittal and DW4 Shri J.S. Yadav.

DW1 Shri Babu Lal deposed that in 2002-2003 he was posted as Beldar in West Zone MCD, Rajouri Garden along with Ajay Kumar Sharotriya, JE. Further, he used to accompany Shri Ajay Kumar Sharotriya, JE as and when directed for purpose of affixation of notices under DMC Act and for purpose of demolition.

He further stated that Shri Ajay Kumar Sharotriya, JE had been Incharge of 5/6 Wards and about 5/6 beldars were associated for his assistance. Further, the AE concerned used to be the Incharge of demolition action.

He also stated that in part demolition action the chhajas used to be punctured and if required, the walls were also demolished and in case of commercial construction the shutters were also removed. Further, the assistance of the labour employed by the builder/ owner was also taken.

He further clarified that the action used to be also taken without police force in case the request for police force had not been made and CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

when the demolition action was fixed as per schedule then the MCD vehicle was taken. Further, at times, they used to visit the site on their own without the official vehicle.

DW2 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD Delhi produced the record in respect of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 03.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW2/X collectively). The same consisting of five pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001 and bears his signatures at point A, signatures of Shri A.K. Meena, EE at point C and Shri R.K. Ailawadi, Superintending Engineer at point B on each page.

It may be relevant to notice at this stage that DW Pradeep Kumar Mittal on examination in other cases in defence as well as CC No.114/11 also produced a chart indicating the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) in CC No.114/11 who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03. Also, the posting of respective Junior Engineer in the concerned wards in which the property booked by MCD were located was also provided by way of chart (Ex.DW1/X) in CC No.114/11.

DW4 Shri J.S. Yadav, EE(B), HQ, SDMC deposed that in the year 2002, he was posted as Assistant Engineer in West Zone, MCD, Rajouri Garden, New Delhi.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

He further stated that the programme for demolition of unauthorized construction is fixed by Executive Engineer (Building) with respect to all the wards in the area and AE of concerned Ward is the incharge of demolition of unauthorized construction at any particular site.

He further clarified that 'part demolition' means puncturing of walls, chhajja etc. and part of the demolition still remains to be carried. Further, the property is not saved from action of demolition wherein 'part demolition action' is taken. The unauthorized construction file relating to any property is closed by the orders of AE and above and JE concerned cannot close the unauthorized construction file.

He further stated that the JE concerned makes the entries of demolition in the concerned file relating to the unauthorized construction as well as in the demolition register maintained for the purpose. Further, the unauthorized construction file relating to the property remains in custody of OI(B) and the same is received by JE for making the concerned entries. Also, the missalband register, movement register remain in custody of OI(B).

He further deposed that for the purpose of claiming demolition charges, a separate entry is made with regard to the unauthorized construction file by the JE calculating the charges and a letter is thereafter issued by OI(B) to the concerned owner/builder. Further, no charges are claimed in case of minor demolition.

He further stated that the entry in respect of demolition is ordinarily made on the date on which the action is taken by the JE after obtaining the file from OI(B). During cross-examination, he CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

further identified his signatures on entry dated 09.08.02 on Ex.PW3/D.

7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:

a) That the sanction order Ex.PW5/A had been passed by PW5 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.

b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other Jes/AEs/EE/DC posted in West Zone, MCD.

c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show passing of gratification or meeting of accused at any point of time.

d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

minor demolitions.

e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the present chargesheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, Beldar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.

It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

f) It was also contended that it could not be inferred that the proceedings were not conducted by Ajay Kumar Shrotriya as per noting dated 26.08.02 and partial demolition action was not carried out, merely because the file was not reflected by the OI(B) in the 'file movement register'. Reliance was also placed on the cross-examination of PW3 Shri Moti Lal who admitted having missed the making of entries in several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.

g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 26.08.02 without police force and taken action in the four properties as reflected therein. It is submitted that the prosecution had only filed chargesheet in respect of file number 322/02 pertaining to CC No.114/11 and 202/02 pertaining to CC No.117/11 (i.e. the present case) but the entries with respect to file number 360/02 dated 19.08.02 and 321/02 dated 05.07.02 were not challenged though the same have also not been reflected in the file movement register.

h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 26.08.02 on the basis of inspection conducted in 2008 by CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried by the owner/builder in the intervening period of about five years.

i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 22 for a short duration from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03 and the investigating agency had made him as a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri A.K. Mittal, Shri U.C. Saxena, Shri S.K.Anand and Shri R.P.S. Nain who were posted in the intervening periods were given clean chit who failed to initiate any action but Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him.

j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 26.08.02 the action was taken by him in Tilak Nagar area without the aid of police force. It was submitted that merely because the demolition had been taken by Shri A.K. Mittal in the area of Janakpuri with the help of police force as reflected in entry dated 26.08.02 in the demolition register, it could not be assumed that Ajay Kumar Shrotriya had no powers to independently proceed in the area in his jurisdiction for taking the action as per law. It was urged CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

that a mere entry in the demolition register maintained at P.S. Tilak Nagar reflecting "not carried out" against the relevant entry did not lead to inference that the demolition action could not have been taken by Ajay Kumar Shrotriya without police force but only inference could be that aid of police force was not used for carrying demolition action on 26.08.02. It was also pointed out that the reason for 'not carrying out demolition' is not reflected in entry no. 34 in the demolition register maintained at P.S. Tilak Nagar and no adverse presumption could be drawn against Ajay Kumar Shrotriya merely on basis of aforesaid entry.

k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 26.08.02 as per entry made in demolition register and only an inference has been drawn that entry has been forged on account of failure of OI(B) to update the record.

l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.

m) It was also submitted that there was no discrepancy in entry dated 09.08.02 made in the UC file and demolition register since on 09.08.02 no police force was made available CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

for demolition to be carried in the area of Tilak Nagar and the same was accordingly recorded. It is submitted that the fact that Ajay Kumar Shrotriya had visited the police station is corroborated even from the vehicle Log Book wherein it is recorded against entry dated 09.08.02 that at PS Tilak Nagar police force was not available and from there after visiting some sites returned back. It is pointed out that in the aforesaid background, entry dated 09.08.02 made in demolition register maintained at PS Tilak Ngaar is to be seen wherein observation is made "not carried out" and "MCD and other force not reported". It is contended that in fact the 'other force' is reference to the police force though MCD staff had duly reported as per the entry made in the vehicle Log Book which is even relied by the prosecution. It is also submitted that merely because the files have not been reflected in the file movement register, it cannot be assumed that Ajay Kumar Shrotriya had not proceeded to PS Tilak Nagar.

Counsel for co-accused Sanjay Kumar Batra submitted that there could not have been any conspiracy, since different JEs were posted at the time of booking of alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular who had made entries dated 09.08.02 & 26.08.02 in the UC file and demolition register. It was also contended that there is absolutely no evidence to reflect that Sanjay Kumar Batra was known to Ajay Kumar Shrotriya, JE or had ever met him or if any CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

gratification had been passed. It was further submitted that Sanjay Kumar Batra had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. However, the partial demolition action claimed to have been carried in the property in question on 26.08.02 was disputed alongwith service of notices u/s 343/344 DMC Act, 1957.

On the other hand, ld. PP for CBI vehemently contended that the entry dated 26.08.02 in the demolition register as well as UC file was falsely made in conspiracy in order to help accused Sanjay Kumar Batra and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 09.08.02 was wrongly made by Ajay Kumar Shrotriya and he intentionally did not visit the police station Tilak Nagar for taking the police force and carrying the demolition action. Further, entry dated 26.08.02 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record. Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.

8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Mohd. Anans, Advocate for accused Sanjay Kumar Batra, ld. PP for CBI at length and perused the record.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 26.08.02 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused Sanjay Kumar Batra and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.

Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.

For the purpose of bringing the charge of criminal conspiracy CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.

The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:

"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.

41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."

9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.

In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

Another vs. The State of Maharashtra AIR 1979 Supreme Court

826.

"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.

22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.

The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.

However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.

It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11 & 109/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.

11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.

Evidence has been led on record in defence whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03. DW2 Shri Pradeep Kumar Mittal examined in defence in several cases including CC No.114/11 filed a separate chart reflecting the posting of concerned JEs in Ward No. 21 & 22 as under:

     Ward Name of JE's                                  Tenure of JE's in said
      No.                                               Ward
                 Sh. Ajay Kumar Shrotriya 20.06.02 to 02.09.02
                 Sh. A.K. Mittal                        02.09.02 to 14.012.02
     21-22       Sh. U.C. Saxena                        14.12.02 to 31.12.02
                 Sh. Ajay Kumar Shrotriya 31.12.02 to 31.03.03
                 Sh. S.K. Anand                         31.03.03 to 10.04.03
                 Sh. Ajay Kumar Shrotriya 10.04.03 to 29.05.03
                 Sh. R.P.S. Nain                        29.05.03 onwards

The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted only for a short period from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03.

One cannot lose sight of the fact that the building was booked on 03.06.02 by MCD by Shri L.K. Goyal, JE and unauthorized CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

construction is stated to be by way of "deviation/excess coverage against SBP No.401/B/WZ//02 dated 14.02.02 at GF and FF". The unauthorized construction had already commenced since even a Court case had been filed by neighbour of accused Sanjay Kumar Batra as per plaint Ex.DW3/A. As such, conspiracy permitting the raising of unauthorized construction would have been with the JEs posted at the relevant time rather than Ajay Kumar Shrotriya. However, the extent of excess coverage and the construction existing on the date of booking of FIR has not been specified. The investigating agency does not appear to have taken the aforesaid aspect into consideration and has only taken into account the entries made by Ajay Kumar Shrotriya reflecting partial demolition action for investigation.

Further action by way of issuance of notices u/s 344 (1) DMC Act, 1957 dated 03.06.02 Ex.PW2/A as well as notice u/s 343 DMC Act dated 07.06.02 Ex.PW2/B, was taken as per record of MCD and is not disputed even by prosecution though the service of notices is denied by Sanjay Kumar Batra. The issuance of the said notices under the signatures of then AE Shri V.D. Malhotra and proceedings thereupon taken up by the concerned JE Shri L.K. Goyal w.r.t. execution of aforesaid notices has not been doubted by the investigating agency and the execution of the same is also supported by the prosecution witnesses i.e. the baildars who had accompanied for purpose of execution of notices. Thereafter, even the passing of the 'demolition order dated 19.06.02 Ex.PW3/D proposed by Shri L.K. Goyal, JE and approved by Shri V.D. Malhotra, AE is not disputed by the prosecution.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

The investigating agency has exclusively only disputed the role of Ajay Kumar Shrotriya and entry dated 09.08.02 & 26.08.02 made by him. Vide entry dated 09.08.02 in the UC file, it was endorsed by Ajay Kumar Shrotriya "demolition could not be taken due to non- availability of police force". The file was thereafter marked to AE(B) who endorsed on the same date under his signatures "try again". A corresponding entry to the aforesaid effect was also made in the entry dated 09.08.02 in the demolition register maintained by MCD whereby it was endorsed by Ajay Kumar Shrotriya "no force". Investigating agency has further disputed entry dated 26.08.02 made by Ajay Kumar Shrotriya, JE on the demolition register whereby partial demolition action was stated to have been carried by him and the endorsement was made to the following effect "202/02/3.6.02- demolished the chhajja at FF, GF". A corresponding entry dated 26.08.02 was also made in the UC file (i.e. on the demolition order dated 19.06.02) to the effect "demolished the chhajja at FF & GF". The file was thereafter marked to AE(B) but does not bear any further endorsement/counter signatures.

12. The aforesaid entries dated 09.08.02 & 26.08.02 may now be scrutinized in the light of evidence and circumstances on record to assess if the same have been forged by Ajay Kumar Shrotriya as contended by prosecution. It may be seen that there is no discrepancy in entry dated 09.08.02 made in the UC file and demolition register since on 09.08.02 no police force was made available for demolition to be carried in the area of Tilak Nagar and the same was accordingly CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

recorded. The fact that Ajay Kumar Shrotriya had visited the police station is corroborated even from the vehicle Log Book wherein it is recorded against entry dated 09.08.02 that at PS Tilak Nagar police force was not available and from there after visiting some sites returned back. In the aforesaid background, entry dated 09.08.02 made in demolition register maintained at PS Tilak Nagar is to be seen wherein observation is made "not carried out" and "MCD and other force not reported". In fact the 'other force' is reference to the police force though MCD staff had duly reported as per the entry made in the vehicle Log Book which is even relied by the prosecution.

Merely because the files have not been reflected in the file movement register by OI(B), it cannot be assumed that Ajay Kumar Shrotriya had not proceeded to PS Tilak Nagar as contended by prosecution. In the aforesaid context it may also be noticed that by no stretch of imagination the entry dated 09.08.02 can be presumed to be forged as contended by prosecution since the same is endorsed by J.S. Yadav, AE(B) under his signatures on the same date and the prosecution has given a clean chit to the AE(B). The same also reflects that the possession of the file could have been taken by the JE even without reflecting the same in the file movement register and the same was duly dealt on 09.08.02 both by JE and AE(B).

It is surprising that the investigating agency did not examine AE Shri J.S. Yadav as a prosecution witness and was examined in defence by accused Ajay Kumar Shrotriya. It may be noticed that Shri J.S. Yadav, AE who was posted in the relevant ward on 09.08.02 & 26.08.02 has been cited as a witness by the prosecution in CC No.114/11 which was also taken up for CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

arguments alongwith this case and the accused have been therein acquitted vide judgement dated 16.05.13. In the aforesaid case, the prosecution had challenged the entry dated 26.08.02 made by accused in the demolition register as well as in the UC file claiming partial demolition action. Surprisingly, though entry dated 09.08.02 in the UC file made by Ajay Kumar Shrotriya in the present case reporting that demolition could not be taken due to non availability of police force has been countersigned by Shri J.S. Yadav, AE but he has not been cited as a witness by the investigating agency. The other entry dated 26.08.02 in the present case is also on the same lines as made in CC No.114/11 wherein accused have been acquitted. In the facts and circumstances, no adverse inference can be drawn against Ajay Kumar Shrotriya on the basis of entry dated 09.08.02.

13. Prosecution has next taken a stand that entry dated 26.08.02 made in the demolition register and UC file is forged and wrongly introduced by Ajay Kumar Shrotriya, JE since no police force was taken on aforesaid date and he could not have proceeded to carry the demolition action on his own. It has also been contended that since the movement of the file is not reflected in the file movement register, the file was not taken up as per procedure and the entry of demolition has been fabricated later on. It is further submitted that the demolition action had not been carried as the same is not reflected in the 'action taken report' for the corresponding month which is prepared by the OI(B) and also since the 'demolition charges' had not been claimed by the JE.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

In order to consider the contentions raised by ld. PP for CBI, it may be appropriate to refer to the entry dated 26.08.02 made in the 'demolition register' as well as the connected circumstances to assess if it is proved by the prosecution that the partial demolition action had not been taken up as reflected in the aforesaid entry dated 26.08.02 in the demolition register maintained by MCD.

A bare perusal of entry dated 26.08.02 made in the demolition register reflects that on 26.08.02 the schedule was fixed for demolition at Tilak Nagar under jurisdiction of Ajay Kumar Shrotriya, JE and also demolition programme was fixed in the area of P.S. Janakpuri under jurisdiction of A.K. Mittal, JE. The fact that Ajay Kumar Shrotriya did not visit P.S. Tilak Nagar as also claimed by him is corroborated by the log book relied by the prosecution which reflects as per deposition of PW11 Shri Lal Chand that on 26.08.02 the vehicle was taken from West Zone to P.S. Janakpuri and after taking action the police force was left at P.S. and vehicle returned to West Zone. There is no reference even in the entry made in the log book that Ajay Kumar Shrotriya had visited the Police Station or that the action had been taken in the area of Tilak Nagar with aid of police. The same is consistent with the stand of Ajay Kumar Shrotriya that no action was taken with the aid of police force and no adverse inference can be drawn merely because the police aid was not taken for the partial demolition action. The testimony of the witnesses during cross-examination is categorical to the effect that the action could have been taken by the JE, even without the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

police force and his explanation that he visited the property on his own with baildars cannot be discarded. If any such entry was forged, the same would obviously have been challenged or complained by AE or any other senior officer.

It is also pertinent to further observe that by mere part demolition action dated 26.08.02 the file never stood closed. Ajay Kumar Shrotriya had been transferred from the ward within a period of about six days of making of entry dated 26.08.02. Merely because the file has not been further taken up on being marked to AE(B) does not automatically lead to an inference that the proceedings had been forged. More so for the reason that the conspiracy with co-accused Sanjay Kumar Batra has not been proved beyond reasonable doubt.

It may be apt to note that in CC No.114/11 Shri J.S. Yadav, AE with reference to similar entry dated 26.08.02 made in the said file pertaining to same ward, in his examination-in-chief itself clarified that it is possible that if the concerned AE is not available in the office, the file may have directly gone to OI(B). He also clarified during cross-examination that JE has no powers to close the unauthorized construction file and the same is closed when the complete action for demolition is taken. He further stated during cross-examination that if the JE has not been able to take demolition action on any particular date, he may still take further action on the same date, if required.

PW4 Shri Brij Pal Singh, EE in this regard also admitted in cross-examination that there was no requirement to forward the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

request for requisition again on the date fixed for demolition action and the demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid context, the statement of PW1 Shri Umesh Singh, Baildar recorded in CC No.109/11 is also relevant as he deposed during cross-examination that they used to demolish the property even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar has been examined in defence as DW1 in the present case i.e. CC No.117/11 and a similar statement to aforesaid extent has been made by him in his examination-in-chief.

PW17 Insp. N. Mahato, IO in aforesaid context also admitted that the Baildars who had executed the notices under the DMC Act had disclosed during investigation that they used to accompany their respective JEs for pasting notices and demolition action. He was also confronted during his cross-examination dated 04.10.12 on page 30 in the present case (i.e. CC No.117/11) with the statement of Sh. Umesh Singh recorded u/s 161 Cr.P.C. (Ex.PW17/DX) wherein Sh. Umesh Singh had stated that he used to visit the field with Ajay Shrotriya, JE for purpose of execution of notices and part demolition of unauthorized construction.

In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

entry was forged or the partial demolition had not been carried out as inferred by the Investigating Agency.

It may also be noticed that the succeeding officers i.e. the JE and the AE posted after transfer of Ajay Kumar Shrotriya from the concerned ward on 02.09.02 did not bother to even take up the file for further demolition action but the investigating agency has ignored their role. The entry dated 26.08.02 made by Ajay Kumar Shrotriya, JE has only been disputed and claimed to be forged by the prosecution though the AEs and JEs subsequently posted were equally responsible to ensure complete demolition action and failed in their duty but have been given clean chit by investigating agency.

14. In the aforesaid aspect, it may also be noted that the demolition action is stated to have been taken in four properties on 26.08.02 by Ajay Kumar Shrotriya, JE i.e. file no.360/02 dated 19.08.02, file number 321/02 dated 05.07.02, 322/02 dated 05.07.02 (i.e. present case bearing CC No.114/11) and file number 202/02. The prosecution has disputed the demolition entry in respect of 322/02 and 202/02 but has not filed any charge-sheets in respect of demolition action carried in respect of file number 360/02 dated 19.08.02 & file number 321/02 dated 05.07.02. This reflects that demolition action in respect of file number 360/02 dated 19.08.02 & file number 321/02 dated 05.07.02 is not disputed by investigating agency even though the files of the aforesaid properties were not shown in the file movement register.

It is also imperative to point out that mere reflection of CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs /AEs for any other proceedings without recording the movement of file in the file movement register. In the aforesaid circumstances, the possession of the UC file being obtained by JE without entry in the demolition register since he did not accompany the official vehicle which proceeded with Shri A.K. Mittal, JE to PS Janakpuri, cannot be ruled out and no adverse inference can be drawn merely because the movement of file was not reflected in the movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remain with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.

It may be reiterated that DW2 Shri J.S. Yadav, concerned AE already referred to above categorically explained in CC No.114/11 in the examination-in-chief itself with reference to non reflection of the file in the movement register that the same may have been handed CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

over by the OI(B) to the JE without making the entry in the movement register. The same is the position in the present case and handing over of the file by the OI(B) to the JE on 26.08.02 cannot be ruled out. More so for the reason that even on 09.08.02 in this case the file had been handed over without making an entry in the movement register and the dealing of the file on the aforesaid date cannot be disputed since it has been countersigned by the concerned AE Shri J.S. Yadav.

It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.

15. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same also needs to be assessed in the light of other circumstances and evidence on record.

It is imperative to note that the during cross-examination of PW Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge- sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW3 Moti Lal in his cross-examination dated 07.03.12 CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

page no.6 in CC No.109/11 to the effect that:

"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."

It is also pertinent to note that during cross-examination of PW3 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW1 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW3 Moti Lal dated 01.05.12 on page no.4 may be noticed:

"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No.C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 6 of the cross- examination dated 01.05.12 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."

As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 26.08.02 is forged and the demolition action had not been carried by the JE.

16. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

claimed from the owner, the entry for partial demolition action was forged.

The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.

To assess the aforesaid contention, it may be noticed that PW4 Shri Brij Pal Singh, the then AE stated in cross-examination dated 01.05.12 (page 3 and 4 ) to the effect:

"The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."

PW16 Shri J.S. Yadav, AE in CC No.114/11 and examined as DW4 in the present case, in the aforesaid context also clarified that for minor demolitions, the demolition charges are not normally raised.

It was also admitted by PW17 Insp. N. Mahato (IO) in his cross-examination dated04.10.12 page 26 that "the demolition CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

charges in respect of action taken by MCD are required to be collected by AE and not by the JE." In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 02.09.02 the further action in this regard, if any, could be only taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 26.08.02 carrying partial demolition action had been forged.

17. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 26.08.02.

On the other hand, learned counsel for accused Ajay Kumar Shrotriya has pointed out that merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 26.08.02. It is further submitted that Ajay Kumar Shrotriya could not have taken any further action if the repairs had been carried after his transfer from the ward on 02.09.02..

At the outset, it may be noticed that the report (Ex.PW14/A) prepared by CPWD reflecting the existing construction in 2007/08 mentions the actual ground coverage as 83.61 sq. meters against permissible 62.3 sq. meters. It is also reflected that the actual FAR is 183.33 which is within the permissible limits 225 and the building is CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

ground plus one storey structure. It is also reflected that there is unauthorized coverage at the ground floor in the front set back area and in the staircase area and the property has been constructed 4-5 years before and the tentative year of construction is taken as 2002-03. The plan of the ground floor further reflects the shop of 15 ft. X 10 ft. in the front set back on the 100 sq. yards plot and a covered area of verandah on the back set back.

It is pertinent to note that at the time of registration of FIR, the extent of excess coverage against sanctioned building plan dated 14.02.02 was not specified and it was only indicated as deviation/excess coverage. In the aforesaid background, the action taken on 26.08.02 when the building may have still been under construction reflects "demolished the chhajja at first floor and ground floor". The existence of the shop in the year 2008 as observed in inspection does not lead to an automatic inference that the shop existed at the time of undergoing construction in 2002 and no action was taken by Ajay Kumar Shrotriya as reflected in entry dated 26.08.02. Rather the fact that extended chhajjas/projections were not found in existence in 2007/08 reflects that the same had been removed in 2002.

It cannot be ruled out that unauthorized construction removed by way of partial demolition action taken by Ajay Kumar Shrotriya on 26.08.02 may have been subsequently repaired or completed by the owner/builder of the property after his transfer on 02.09.02.. The facts and circumstances do not lead to an inference beyond reasonable CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

doubt that the entry dated 26.08.02 had been forged by Ajay Kumar Shrotriya.

18. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since the accused Ajay Kumar Shrotriya, JE had forged the entry dated 26.08.02 to benefit the owner/builder.

To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW17 Inspector N. Mahato during his cross- examination dated 20.09.12 stated that he did not come across any evidence that Ajay Kumar Shrotriya had met Sanjay Kumar Batra during 2002/03 or was known to him. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW17 admitted in his cross-examination dated 04.10.12 on page 17 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 26.08.02 had been falsely introduced which itself has not been proved beyond reasonable doubt.

For the purpose of offence of conspiracy, the evidence CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 26.08.02 the property of the owner/ builder could not have been saved from further demolition action. The action for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 02.09.02.

It may also be observed that the stand taken by accused Sanjay Kumar Batra that the notices u/s 344/343 DMC Act had not been received and demolition had not been carried does not automatically lead to inference that proceedings had been fabricated since even as per MCD record and stand of investigating agency the issuance of notices u/s 344 /343 DMC Act duly stands proved on record. So far as the carrying of demolition action is concerned, it has not been proved that partial demolition action was not undertaken by Ajay Kumar Shrotriya or the simple puncturing reflected in the entry dated 26.08.02 in demolition register was not feasible. Also, it cannot be ruled out as contended on behalf of accused Ajay Kumar Shrotriya that the aforesaid stand may have been taken by accused Sanjay Kumar Batra to protect his interest and since renovation/construction of demolished portion could not have been carried without permission under provisions of DMC Act, 1957.

It may also be noticed that a Court case had been filed in CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

relation to the construction carried in the premises in question by one Yogender Kumar Mehta against MCD, Sanjay Kumar Batra and others. The grievance as per the plaint Ex.DW3/A filed on record was that the property was intended to be reconstructed upto three floors without getting the plan sanctioned and may be used for commercial purpose. The 'lanter' is stated to have been laid by extending the chhajjas on the main road and it was apprehended that shops may be constructed in the property. In response to the same, vide written statement dated 26.07.02 (Ex.DW3/B), it was submitted by MCD that a building plan had been sanctioned on 14.02.02 which was valid upto 13.02.04 and notices had been issued u/s 343/344 after booking the unauthorized construction vide FIR on 03.06.02. It was further submitted that the deviation/excess coverage shall be demolished in due course of time. The fact that the chhajjas stood demolished is corroborated from the CPWD report as the same are not reflected therein. The carrying of further demolition action on completion of building lay on the hands of the succeeding officers after transfer of Ajay Kumar Shrotriya on 02.09.02. The conspiracy, if any, would have been more probable with the succeeding officers than with Ajay Kumar Shrotriya. In the facts and circumstances, the entry dated 26.08.02 cannot be presumed to be forged in conspiracy with accused Sanjay Kumar Batra.

19. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation to only fix Ajay Kumar Shrotriya ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.

The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question. The number of cases involving unauthorized construction and failure to take requisite action is far larger but investigation has been simply confined by the investigating agency to 15 cases pertaining to Ajay Kumar Shrotriya.

The investigation has been partisan right from inception of Preliminary Inquiry by selecting only 15 properties involving Ajay Kumar Shrotriya and carrying further investigation only with respect to partial demolition entries.

Also the dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

20. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.

Announced in the                                    (Anoop Kumar Mendiratta)
open Court on                                         Special Judge (PC Act)
21st May, 2013                                        CBI-08, Central District,
                                                      Tis Hazari Courts, Delhi.

CC No.117/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.

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Cc No.117/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 21 May, 2013