Delhi District Court
Cbi vs . 1. N.K. Grover (A1), on 10 September, 2013
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CBI case . No. 11/11
IN THE COURT OF SH. N. K. KAUSHIK
SPECIAL JUDGE, PC ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI case . No. 11/11
Date of Institution: 25.10.2008
Date on which Judgment Pronounced: 10.09.2013
Decision: Acquittal
CBI case no. 11/11
RC no. S19/2006/E 0005/CBI/EOUVII/New Delhi
In the matter of:
CBI versus. 1. N.K. Grover (A1),
The then Junior Engineer,
S/o Sh. Jagdish Chand Grover,
R/o F. No. 205/Lakshmi Apartments,
Sector9, Rohini, Delhi and
809/21, Netaji Nagar,
Rohtak, Haryana.
2. Anand Prakash Sharma (A2),
The then Assistant Engineer.
Son of Late Pt. Deep Chand Sharma,
R/o R.P. 118, Maurya Enclave,
Preetam Pura, New Delhi.
3. Bhusan Kumar Uppal (A3),
The Director of M/s Uppal
Properties Pvt. Ltd,
Son of Late Sh. Mulkh Raj Uppal,
R/o N55, Panchsheel Park,
New Delhi17.
CBI vs. N.K. Grover & Ors. 1 of 154 pages
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CBI case . No. 11/11
4. M/s Uppal Properties Pvt. Ltd. (A4),
N55, Panchsheel Park,
New Delhi17.
.............Accused persons
JUDGMENT
1. The brief facts, as disclosed by the prosecution, are that accused N.K. Grover (herein after referred to as A1) and accused Anand Prakash Sharma (herein after referred to as A2) entered into a criminal conspiracy with accused Bhusan Kumar Uppal (herein after referred to as A3) to grant fraudulently a completion certificate in respect of accused (a juristic person being a company) M/s Uppal's Orchid Motel (herein after referred to as A4) at Samalkha, Delhi, after manipulation of false NOC report, concealment of true facts, based on forged structural certificate and ignoring the non compoundable and unauthorized constructions in the aforesaid Uppal's Orchid Motel.
2. Accused (A1) and (A2) being the then Junior Engineer and Assistant Engineer, respectively, in the MCD were the public servants at the relevant time. They are alleged to have abused their power and position to illegally benefit accused (A3) and (A4) to protect unauthorized and non CBI vs. N.K. Grover & Ors. 2 of 154 pages 3 CBI case . No. 11/11 compoundable constructions, contrary to public interest, by grant of completion certificate, illegally.
3. That M/s Uppal Properties Pvt. Ltd. was registered as a company (a juristic person) with the Registrar of Companies, vide certificate of incorporation No. 5544270, dated 08.05.1991. At that time, Sh. M.K. Mehra and Sh. Amrit Swarup Verma were the directors. On 07.06.1991, Sh. Amrit Swarup Verma resigned from the company and instead accused Bhusan Kumar Uppal (A3) entered and was inducted as a Director.
4. That on 14.07.1997, accused B.K. Uppal (A3), who was the Director of the said company, submitted an application along with building plans to the MCD, for construction of a Motel at Village Samalkha, New Delhi. As the company failed to comply with the terms of the notice of MCD pointing out the deficiencies, its application for construction of the motel building was rejected.
5. That on 30.12.1998, an appeal was filed by accused (A3) against the rejection of the building plans. That after removal of objections and after completion of other CBI vs. N.K. Grover & Ors. 3 of 154 pages 4 CBI case . No. 11/11 formalities, a sanction letter dated 03.05.1999 was issued to the company sanctioning construction of a motel consisting of a basement, ground floor and the first floor, in accordance with the sanctioned plan.
6. That subsequently, the building for motel was raised at the site by M/s Uppal Properties (P) Ltd, accused (A4) through accused (A3), being the person at the helm of affairs of (A4).
7. That on 27.03.2001, accused (A3) submitted a completion report along with documents to the MCD, Najafgarh Zone, New Delhi and prayed for issuance of a completion certificate or occupancy certificate for the use of the said building. Accused B.K. Uppal (A3) also submitted, in addition, three affidavits cum undertakings, regarding Ramp, CFO Clearance, installation of lift and photographs of the building.
8. That on 02.07.2001, Sh. M.S. Yadav, the then Assistant Engineer(Building) along with Sh. S.K. Meena, Junior Engineer(Building) had allegedly inspected the building and noticed unauthorized construction and submitted a CBI vs. N.K. Grover & Ors. 4 of 154 pages 5 CBI case . No. 11/11 note, dated 02.07.2001, containing the deviations/unauthorized constructions. Accordingly, the property was booked and FIR was registered by the MCD, as per DMC Act, on 14.08.2001, for violations and unauthorized construction. After accused (A3) responded to the show cause notice and furnished detailed reply, Sh. S.K. Meena, the then Junior Engineer(Building) allegedly again visited the building on 22.08.2001, and reported that the stand taken by the company was unsatisfactory. He, then, again proposed/reiterated issuance of the notice of demolition in respect of the unauthorized construction. These two officers namely, M.S. Yadav and S.K. Meena were allegedly transferred, in the meanwhile.
9. That thereafter, accused Anand Prakash Sharma (A2) joined as Assistant Engineer(Building), whereas accused N.K. Grover (A1) joined as Junior Engineer(Building). Allegedly, it was at this stage, that a criminal conspiracy was stated to have been hatched amongst the accused persons namely, B.K. Uppal (A3), N.K. Grover (A1) and Anand Prakash Sharma (A2) to protect the unauthorized construction of the accused company (A4) by obtaining a completion certificate on the basis of false/fabricated CBI vs. N.K. Grover & Ors. 5 of 154 pages 6 CBI case . No. 11/11 documents and a false NOC inspection report, showing non compoundable constructions as compoundable one.
10. It is further alleged that in pursuance of the said conspiracy, the already ongoing file with demolition action proposal was stalled and instead the matter was processed, with malafide intention, by accused N.K. Grover (A1) and accused Anand Prakash Sharma (A2) and in pursuance of the said conspiracy, on 19.11.2001, accused N.K. Grover submitted a false NOC Report Form, pertaining to Uppal's Orchid Motel i.e. accused (A4). He submitted that all the unauthorized construction/deviations were compoundable and a compounding fee of Rs.4,07,401/ was, allegedly, determined by him to be paid to the MCD for regularization.
11. Though, as per report of Sh. S.K. Meena, the then Junior Engineer, there was no basement in the building and that other unauthorized constructions existed including under the ramp. That the accused (A3) & (A4) had dishonestly shown the ground floor as basement for availing the undue advantage for a coverage area of 3031.50 sq. Mtrs CBI vs. N.K. Grover & Ors. 6 of 154 pages 7 CBI case . No. 11/11 and also for the total height of the building. That accused N.K. Grover (A1) deliberately ignored altogether the non compoundable deviations pertaining to the usage of basement and unauthorized construction of ramp, swimming pool etc, and gave his report to accused Anand Prakash Sharma (A2), who in turn forwarded the report of accused (A1), N.K. Grover, as it is, to his superior officials to falsely induce them to issue the completion certificate, in question, in this case.
12. A query by the higher officers in the matter was raised but an answer, on 23.11.01, was mentioned and forwarded by accused Anand Prakash Sharma (A2) stating, interalia, that there existed no noncompoundable deviations at the site of (A4) and the existing, so to say, basement was within the permissible limit as per the policy.
13. That on the basis of false and manipulated recommendations of accused N.K. Grover (A1) and accused A.P. Sharma(A2), a completion certificate was ultimately issued on 05.12.01 despite the fact that as per earlier inspections, there existed noncompoundable deviations/unauthorized construction, warranting CBI vs. N.K. Grover & Ors. 7 of 154 pages 8 CBI case . No. 11/11 demolition action, in the property viz. unauthorized constructions in the form of accommodation under the ramp, no basement (and instead, in lieu thereof, an extra floor), a swimming pool, etc at the site and that there was excess area which was covered, beyond the sanctioned plan and the compoundable limits.
14. That accused B.K. Uppal (A3) submitted a forged structural certificate in respect of the aforesaid Motel certifying that the building was constructed according to the sanctioned plan and structural designs. That the architect Sh. Ashu Pal in his statement to CBI denied his signatures on the said structural certificate.
15. That the aforesaid criminal acts of omission and commission of all the accused persons namely, N.K. Grover (A1) and Anand Prakash Sharma(A2), B.K. Uppal (A3) and M/s Uppal Orchid's Motel (A4) allegedly constituted offences, punishable under section 120B IPC and also under section 218, 420, 471 IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
CBI vs. N.K. Grover & Ors. 8 of 154 pages 9 CBI case . No. 11/11
16. It is further alleged that, sanction for prosecution of the accused persons, namely, N.K. Grover (A1) and Anand Prakash Sharma (A2), who are public servants, was obtained from the competent authority.
17. The case of the prosecution, thus, in brief, is that all the accused persons namely, N.K. Grover (A1), Anand Prakash Sharma(A2), Bhusan Kumar Uppal(A3) and M/s Uppal Properties Pvt. Ltd.(A4), during the year 2001, at Delhi, had entered into a criminal conspiracy with dishonest intention and illegal object to get issued the completion certificate, illegally, in respect of M/s Uppal's Orchid Motel, by fraudulently and illegally inducing the MCD, on the basis of false/forged documents i.e. false NOC report, forged structural certificate, false compounding charges for non compoundable and unauthorized construction etc. All the accused persons, thus, are alleged to have committed an offence, punishable under section 120B IPC.
18. Further, in pursuance to the aforesaid criminal conspiracy, during the aforesaid period and place, all the accused persons, dishonestly and fraudulently, by falsely mis CBI vs. N.K. Grover & Ors. 9 of 154 pages 10 CBI case . No. 11/11 representing and inducing the MCD on the basis of false NOC report and compounding charges, forged structural certificate etc and that there was unauthorized construction and a number of non compoundable deviations cheated the MCD and got issued/obtained the Completion Certificate, illegally, in respect of M/s Uppal's Orchid Motel and thus, cheated the MCD. All the accused persons, thus, are alleged to have committed an offence, punishable under section 420 IPC read with section 120B IPC.
19. Further, in pursuance to the aforesaid criminal conspiracy during the aforesaid period and place, all the accused persons, dishonestly and fraudulently with criminal intent to cheat and obtain completion certificate, illegally from MCD used forged structural certificate as genuine, in respect of accused M/s Uppal's Orchid Motel. All the accused persons, thus, are alleged to have committed an offence, punishable under section 471 IPC read with section 120B IPC.
20. Further, accused N.K. Grover(A1), during the year 2001, at Delhi, in pursuance to the aforesaid criminal conspiracy, CBI vs. N.K. Grover & Ors. 10 of 154 pages 11 CBI case . No. 11/11 in the capacity of public servant along with accused Anand Prakash Sharma (A2) had prepared a record/false NOC Report, concealing therein the facts of unauthorized construction and deviations of noncompoundable nature with the intention to save the property i.e. Uppal's Orchid Motel from demolition and to save other co accused persons from legal punishment. Accused (A1) and (A2), thus, are alleged to have committed an offence, punishable under section 218 IPC read with section 120B IPC.
21. Further, accused N.K. Grover (A1) along with co accused Anand Prakash Sharma(A2), during the year 2001, at Delhi, in pursuance of aforesaid criminal conspiracy, dishonestly and fraudulently, by criminally misconducting and by abusing their official position as public servant, submitted/forwarded and recommended the false NOC report to higher authorities for approval/issuance of the Completion Certificate in respect of Uppal's Orchid Motel, concealing the fact therein that there was massive unauthorized construction and deviations of non compoundable nature in the said motel and recommended falsely for payment of compounding CBI vs. N.K. Grover & Ors. 11 of 154 pages 12 CBI case . No. 11/11 charges and thus, facilitated and arranged for co accused persons (A3 & A4) the Completion Certificate, illegally, in respect of M/s Uppal's Orchids Motel and thereby, protected the said property/Motel from demolition against public interest & policy and procured pecuniary advantage to the co accused persons (A3 & A4) against the public interest and policy. Accused (A1) and (A2), thus, are alleged to have committed an offence punishable, under section 13(2) read with section 13(i)(d) of the Prevention of Corruption Act, 1988 read with 120B IPC.
22. Primafacie, offences under section 120B IPC, under section 420 IPC read with section 120B IPC, under section 471 IPC read with 120B IPC against all the accused persons and substantive offences under section 218 IPC read with section 120B IPC and under section 13(2) read with section 13(i)(d) of Prevention of Corruption Act, 1988, read with 120B IPC, in addition, against accused persons namely, N.K. Grover (A1) and Anand Prakash Sharma (A2) were made out.
23. Charge, accordingly, was framed against the accused persons, to which, they pleaded not guilty and claimed CBI vs. N.K. Grover & Ors. 12 of 154 pages 13 CBI case . No. 11/11 trial.
24. The prosecution, in order to substantiate its claim and contentions, examined as many as 17 witnesses.
25. Thereafter, accused persons were examined under section 313 Cr. P.C.
26. Defence has also produced two witnesses, in support of their defence.
27. The prosecution, has contended that the case of the prosecution stands proved, in view of the documents, circumstances and other material that has appeared on record. That the prosecution witnesses have supported and proved the prosecution version beyond any doubt.
28. The defence, on the other hand, has strongly contended that the prosecution has miserably and completely failed to prove its case, much less, beyond reasonable doubt. That the prosecution witnesses and the documents relied upon by the prosecution itself have failed its case.
CBI vs. N.K. Grover & Ors. 13 of 154 pages 14 CBI case . No. 11/11
29. On behalf of the parties, apart from oral submissions written arguments have also been filed, which have been placed on the record.
30. The prosecution has cited the case law reported as :
(i) State of NCT of Delhi vs. Ajay Kumar Tyagi, Criminal appeal no. 1334 of 2012 (@ SLP (Crl.) No. 1383 of 2010), decided on 31.08.2012.
(ii)Superintendent of Police... vs. Deepak Chowdhary & Ors, decided on 17.08.1995;
Equivalent citations: 1996 AIR 186, 1995 SCC(6) 225.
(iii) AIR 2010 Supreme Court 3718 "C".
(iv) Murarilal vs. State of MP, AIR 1980 Supreme Court 531.
(v) State of MP vs. Ram Singh, AIR 2000 Supreme Court 870.
31. The defence has cited following case law reported as:
i. Major S. K. Kale Vs. State of Maharashtra, AIR 1977 Supreme Court 822 ii. C. Chenga Reddy & Others Vs. State of A. P. , AIR 1996 Supreme Court 3390(1) iii. Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Anr., Civil Appeal No. 1193 of 2012.
iv. State of Madhya Pradesh Vs. BacchuDas @ Balram & Ors., AIR 2007 SC 1236 v. Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Others, (2001) 6 SCC 145 CBI vs. N.K. Grover & Ors. 14 of 154 pages 15 CBI case . No. 11/11 vi. M/s Thermax Ltd. & Ors. Vs. K. M. Jhony & Others, (2011) STPL (Web) 858 SC (2011) 13 SCC 412. vii.Aneeta Hada Vs. M/s Godfather Travels & Tours, 2012 IV AD (SC) 489; Cri Appeal No. 838 of 2008.
viii.Maksud Saiyed Vs. State of Gujarat, (2008) 5 SCC 668 ix. S. K. Alagh Vs. State of Uttar Pradesh & ors., (2008) 5 SCC 662 x. Keki Hormusji Gharda & Ors Vs. Mehervan Rustom Irani & Anr. (2009) 6 SCC 475 xi. B. Jagadeesh Vs. The Deputy Superintendent of ..... 2011 in Crl. O P. No. 6419 of 2007.
xii.Ashok Kumar Todi Vs. Kishwar Jahan & Ors., 2011 Crl. Appeal No. 602 of 2011.
xiii.Shashikant Vs. CBI & Ors., Appeal (Crl.) 1127 of 2006.
xiv.Amitbhai Anilchandra Shah Vs. CBI & Anr., (2013) 6 SCC 348 xv. Sri L. Shankaramurthy Vs. The State, Criminal Petition No. 3213/2012 C/W (Karnataka High Court) xvi.Khet Singh Vs. Union of India, 2002 Supreme Court, Appeal Crl.31 of 2000.
xvii.State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172;
xviii.Megha Singh Vs. State of Haryana, 1995 Cri. L. J. 3988 xix.State of Karnataka Vs. Sheshadri Shetty And Ors., 2005 Cri. L. J. 377 CBI vs. N.K. Grover & Ors. 15 of 154 pages 16 CBI case . No. 11/11 xx. Vineet Narain & Others Vs. Union of India & Anr., Supreme Court on 18 December, 1997. xxi.State of T. N. Vs. M. M. Rajendran on 5 February, 1997.
xxii.Behari Lal Gupta Vs. State of Himachal Pradesh, 1984 Cri. L.J. 1809.
xxiii.Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, on 3.9.1997.
xxiv.Ayyasamy & Anr. Vs. State through Inspector of Police Vigilance, 1996 Cri. L. J. 119, Madras High Court.
xxv.Mithan Lal Vs. State, 1968 Cri. L. J. 431 xxvi.Rakesh Kapoor Vs. State of Himachal Pradesh, Crl. Appeal No. 1839, 2012 xxvii.Punjabrao Vs. State of Maharashtra, Manu/SC/1480/2001 xxviii.Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr., Crl. Apl. 1695 of 2009; (2009) 8 SCC 751 xxix.Jibrial Diwan Vs. State of Maharashtra, AIR 1997 SC 3424.
xxx.State of UP Vs. Ram Babu Mishra, AIR 1980 SC 791 xxxi.Magan Bihari Lal Vs. The State of Punjab, (1977) 2 SCC 210 xxxii.State of Madhya Pradesh Vs. Sheetla Sahai & ors., (2009) 8 Supreme Court Cases 617.
32. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the case law, cited at the bar.
CBI vs. N.K. Grover & Ors. 16 of 154 pages 17 CBI case . No. 11/11
33. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the same. I have also considered the rival arguments that have been advanced, at the bar. My findings are as under:
34. At the very outset, it is observed that material witnesses, cited and examined by the prosecution PW1, PW2, PW10 & PW12 turned hostile to the version of the prosecution and were cross examined by the Ld. Sr. PP for the CBI at length. They, however, have toppled/shattered the case of the prosecution, altogether.
35. PW1, Sh. Anil Jain was an Architect. He has proved the plans i.e. basement plan, ground floor plan, first floor plan, elevation plan, site plan and terrace plan as Ex.PW1/A1 to Ex.PW1/A6, which were prepared by him, for submission in MCD for sanction. He has identified his signatures, at pt. A, on each of the said plan. He was, however, declared hostile by the prosecution. He failed to prove the signatures of the owner on the said plans.
36. PW2, Ashu Paul Malhotra was also an architect. He has CBI vs. N.K. Grover & Ors. 17 of 154 pages 18 CBI case . No. 11/11 proved the basement floor plan, which is completion plan for Motel M/s Uppal Properties Private Ltd as Ex.PW2/A1(D5) and which was prepared by him after completion of the building. He has identified his signatures at pt. A and that of accused B.K. Uppal (A3), at pt. B, on the said completion plan. The basement floor plan was, admittedly, prepared by him after the completion of construction (which, according to this witness, was done under his supervision).PW2, therefore, demolished the case of the prosecution when prosecution itself, through this witness, proved the existence of basement and its completion plan, when the construction was completed.
37. Similarly, PW2 has proved the completion plan for ground floor of the said building, which was prepared by him as Ex.PW2/A2(D6). He has identified his signatures at pt. A and that of accused (A3), at pt. B, on the same.
38. PW2 has identified his signatures at pt. A and that of accused (A3) at pt. B on the completion plan for first floor of the aforesaid building, which has been proved as Ex.PW2/A3(D7).
CBI vs. N.K. Grover & Ors. 18 of 154 pages 19 CBI case . No. 11/11
39. The prosecution, itself, therefore, through this witness has proved that when construction was completed in 2001, basement, ground floor and first floor were raised. This completely wiped out the case of the prosecution. In cross examination by the State, he has deposed that "I would not have signed the completion plan if the building plan was not adhering to building bye laws."
40. PW2 has further deposed that whenever they apply for a completion certificate, along with a covering letter, they forward a set of architectural drawings, structural stability certificate and area statement (which is a printed format of the corporation).
41. PW2 could not identify his signatures at encircled portion 'Q2'on the structural certificate, Mark PW2/1(which was also marked as Ex.PW2/C). In cross examination, he has deposed that "some employee of my office must have got the structural certificate signed from the structural engineer. That structural certificate is sent to the concerned authority from our office. It must have been followed in this case also."
CBI vs. N.K. Grover & Ors. 19 of 154 pages 20 CBI case . No. 11/11
42. PW2 has deposed that the aforesaid plans, Ex.PW2/A1 to Ex.PW2/A3 were prepared by him at the instance of accused (A3), Director of accused (A4), after the completion of the structural work of the aforesaid building. That he had supervised the construction of the building of the motel, in question.
43. PW2 has further deposed that the building, which was constructed, was at variance with the sanctioned building plan, which had shape of building as 'U' shape. It, however, was changed to 'rectangular' shape but as per Building Bye Laws, FAR was adhered to while making the said change. It was, thus, demonstrated by him that change of shape of building was inconsequential, having no impact on the FAR which was sanctioned.
44. PW2 has clearly deposed that the building which was constructed consisted of basement, ground floor and first floor. That for making basement of building, the land is dug and in that portion, the basement is made, however, for making building of this motel, land was not dug for the purpose as the land was in a low lying area.
CBI vs. N.K. Grover & Ors. 20 of 154 pages 21 CBI case . No. 11/11
45. PW2 has further deposed that when he had prepared and signed the aforesaid completion plans, the structure of the building had already been constructed. He has further deposed that when the completion plans, Ex.PW2/A1 to Ex.PW2/A3 were submitted on 27.03.2001, the surrounding of the building was filled upto the road level but filling was not done upto the road.
46. PW2 has further identified his signatures at pt. A, on the specimen writings and signatures, encircled and marked as S11 to S17 (D15), which have been collectively proved as Ex.PW2/B. Subsequently, he was declared hostile by the prosecution.
47. PW2 has completely ruined the case of the prosecution. He has proved that basement in the premises was constructed under his supervision. He has proved the site plan of the basement which the prosecution got proved in his examination in chief itself. He has further proved that the structural certificate was sent from his office. It, therefore, appears that someone from his office might have forged his signatures. Nothing appeared in his cross CBI vs. N.K. Grover & Ors. 21 of 154 pages 22 CBI case . No. 11/11 examination done by the State prosecutor to suggest otherwise anything in support of the prosecution's version.
48. PW3, Sh. Rajender Kumar was an LDC, an official witness from MCD, who was posted in Najafgarh Zone, at the relevant time. He is a formal witness.
49. PW3 has deposed that vide seizure memo, Ex.PW3/A(D24), he had handed over documents to CBI, which bears his signatures, at pt. A, which have been duly identified by him.
50. PW3 has proved the bill book, which shows that payment of Rs.4,07,401/ was made on behalf of accused M/s Uppal Properties (P) Ltd (A4) on 05.12.2001, as Ex.PW3/B(D14).
51. PW3 has identified the signatures of Sh. Jagbir, the then JE in Najafgarh Zone, Building Department, at pt. C, on the demolition register(D9), dated 07.06.2005, which is a report, pertaining to the year 2005, regarding partial demolition of property, which has been mentioned, at pts.A and B. The said report has been proved as Ex.PW3/C, CBI vs. N.K. Grover & Ors. 22 of 154 pages 23 CBI case . No. 11/11 which has also been certified by the then Executive Engineer (Building), Mr. Malik, at pt. D, whose signatures have been duly identified by PW3. The report, Ex. PW 3/C, however, has no relevance to the present case as the said report pertains to partial/cosmetic/fake demolition during the year 200506 and is the subject matter of other case pending in the other court.
52. The Misalband register, showing the unauthorized booking of Uppal Properties (P) Ltd at Main road Village Samalkha, Khasra no. 8/5/2 by the then JE, Sh. S.K. Meena, has been proved as Ex.PW3/D. The said register has also been duly certified by the then Executive Engineer(Building), Mr. Malik, at pt. D, whose signatures have been duly identified by PW3.
53. PW3 has deposed that he had also handed over the G8 Bill Book of MCD, Najafgarh, regarding demolition charges, paid bills, to the CBI, which have been collectively proved as Ex.PW3/E(D17), consisting of page numbers from 7001 to 7100(carbon copies). He has identified his handwriting and signatures at points A, B and C, on receipt no. 7043 (in triplicate), which was drawn by him. The said bill book has CBI vs. N.K. Grover & Ors. 23 of 154 pages 24 CBI case . No. 11/11 been proved as Ex.PW3/E colly, which shows that money deposited in the year 2005 by accused (A4) i.e. M/s Uppal Properties (P) Ltd, was given in cash. The aforesaid documents proved by the prosecution clearly show that the property, in question, was booked for unauthorized construction in 2005, much after the period when completion certificate was issued. The documents in file D6 relied upon by the prosecution (though not exhibited in this case but has been relied upon by the prosecution & therefore, can be read against the prosecution) shows existence of basement as its misuse has been specifically mentioned. Misuse of basement could be possible only if it existed.
54. PW4, Sh. Shashi Kumar Meena, was posted as Junior Engineer (Building) in MCD, Najafgarh Zone, at the relevant time.
55. PW4 has proved the file in respect of accused M/s Uppal Properties Private Ltd, which was opened in the MCD, after completion of construction, on an application for issuance of completion certificate, as Ex.PW4/A. He has identified the signatures of Sh. O.P. Malik, the then AE of CBI vs. N.K. Grover & Ors. 24 of 154 pages 25 CBI case . No. 11/11 the Zone at point A, on the said application for issuance of completion certificate, which has been proved as Ex.PW4/A1.
56. PW4 has further deposed that he was directed to inspect the building at Samalkha Village along with Sh. M.S. Yadav, regarding which a note was made by him, at page no.2 of file Ex.PW4/A, which has been proved as Ex.PW4/A2, bearing his signatures at pt. A, which have been duly identified by him.
57. PW4 has further deposed that vide note of Sh. M.S. Yadav, the then AE, Ex.PW4/A3, instructions were issued to him, which bears the signatures of said Sh. M.S. Yadav, at pt. C, which have been duly identified by PW4.
58. PW4 has further proved the file no. 13/B/UC/2001, dated 14.08.2001, attached with the file, Ex.PW4/A, which contains notings, as Ex.PW4/B.
59. PW4 has deposed that after receiving instructions Ex.PW4/A3, he made a note, seeking instructions from the then ZE(B)/NG or AE(B) in the file Ex.PW4/B, which CBI vs. N.K. Grover & Ors. 25 of 154 pages 26 CBI case . No. 11/11 has been proved as Ex.PW4/B1, which bears his signatures at pt. A, which have been duly identified by him.
60. PW4 has further deposed that when the instructions were not received by him, he made a note, dated 08.08.2001, at page no. 3/N of file Ex.PW4/A, again seeking instructions from the then AE(B), which has been proved as Ex.PW4/A4, bearing his signatures at pt. A, which have been duly identified by him.
61. PW4 has identified the signatures of Sh. M.S. Yadav, the then AE(B), at pt. B on the note, which has been proved as Ex.PW4/A5, as he had seen him signing and writing in the official capacity.
62. PW4 has further deposed that he registered FIR (under the DMC Act) on 14.08.2001, which has been proved as Ex.PW4/B2.
63. PW4 has further deposed that a notice, dated 14.08.01, was sent by him to accused M/s Uppal Properties P Ltd, which was issued by Sh. M.S. Yadav. He has identified the CBI vs. N.K. Grover & Ors. 26 of 154 pages 27 CBI case . No. 11/11 signatures of Sh. M.S. Yadav, at pt. A, which has been proved as Ex.PW4/B3.
64. PW4 has further deposed that the reply of accused (A4) i.e. M/s Uppal properties regarding the aforesaid notice, Ex.PW4/B3, was marked to him by Sh. M.S. Yadav, vide his note, Ex.PW4/B4. He has duly identified the signatures of Sh. M.S. Yadav, at pt. A, on the said note.
65. PW4 has further deposed that he made a note, Ex.PW4/B5, mentioning therein that the reply received from accused (A4), M/s Uppal Properties Pvt. Ltd, was unsatisfactory, which bears his signatures at pt. B, which have been duly identified by him.
66. PW4 has further deposed that when he had gone for inspection of the site, he had seen the sanctioned plan, submitted by the party and that when he inspected the site, he did not find any basement, which fact has been mentioned by him in his report, Ex.PW4/A2. In cross examination, he has, however, demonstrated that his report was vague, his visit to the spot was doubtful, he was indulging in arm twisting and was confused and that he CBI vs. N.K. Grover & Ors. 27 of 154 pages 28 CBI case . No. 11/11 did not, in fact, issue second demolition notice as no such notice was got signed by the then AE(B) i.e. PW9 and no such issued notice is available on record. All this indicated that there was in fact no unauthorized construction in the premises.
67. PW5, Sh. Sanjay Sharma was posted as Junior Engineer (Vigilance)in MCD, New Delhi, at the relevant time.
68. PW5 has deposed that in December, 2006, he had received an order from SE(B) Head Quarter that he had been nominated as member of the committee, constituted to assist the CBI. That the other members of the team/committee were Sh. Rahul Saraswat, Sh. A.K. Mittal, Sh. Wadhwa, Sh. Karan Singh, Dahiya, Mr. Dayani etc and that the nodal officer was Sh. R.K. Gupta, the then SE(B) Head Quarter.
69. PW5 has deposed with regard to the letter, dated 06.12.2006, bearing no. D/228/SE(B)/HQ, as mark PW5/A.
70. PW5 has further deposed that he along with other team members went to CBI office, where they met Sh. Thapa, IO CBI vs. N.K. Grover & Ors. 28 of 154 pages 29 CBI case . No. 11/11 of the case, who took them to the site at Uppal Orchid, where he asked all the teams members to measure the building and calculate the area so that the excess coverage of the building could be determined with respect to sanctioned plans, however, no measurement was done on that day and a report in this regard was also submitted to Nodal Officer for necessary action.
71. PW5 has further deposed that subsequently, in the second week of August, 2007, all the above named members of the team met at site of Uppal Orchid, where they compared the drawings, which were made available to the inspection team.
72. PW5 has identified his signatures at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D, on the map, showing details of ground floor coverage area, which has been proved as Ex.PW5/B.
73. Similarly, PW5 has identified his signatures at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D, on the map, showing CBI vs. N.K. Grover & Ors. 29 of 154 pages 30 CBI case . No. 11/11 the details of first floor coverage area, which has been proved as Ex.PW5/C.
74. PW5 has further proved the map, showing the details of second floor coverage area as Ex.PW5/D, which bears his signatures at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D, which have been identified by PW5.
75. PW5 has further proved the map, showing the details of basement coverage area (AC Plant, Water supply plant, toilets, ESS etc) as Ex.PW5/E. He has identified his signatures, at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D, on the aforesaid map.
76. PW5 has further proved the map, showing the details of ground floor main building coverage area, as Ex.PW5/F, which bears his signatures at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D, which have been duly identified by PW5.
CBI vs. N.K. Grover & Ors. 30 of 154 pages 31 CBI case . No. 11/11
77. Similarly, PW5 has proved the map, showing the details of mezzanine floor, terrace of second floor and sections of main building coverage area, as Ex.PW5/G. He has identified his signatures, at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Jagdish Dayani, at pt. C and that of Sh. Rahul Saraswat at pt. D.
78. PW5 has further deposed that on 21.08.07, all the team members met at Asaf Ali Road, Car Parking Office of Chief Engineer(B) Head Quarter and a detailed report was prepared there after comparing the site plans with the sanctioned plans, which has been proved as Ex.PW5/H (consisting of two pages along with annexure). The said detailed report bears his signatures at pt. A, that of Sh. A.K. Mittal, at pt. B, that of Sh. Jagdish Dayani at pt. C and that of Sh. Rahul Sarawat, the then Executive Engineer(B), Najafgarh Zone, at pt. D, which have been duly identified by PW5.
79. PW5 has also identified the signatures of said Sh. Rahul Saraswat at pt. A, on the forwarding note, which has been proved as Ex.PW5/I. In crossexamination, this witness, however, admitted that height of the building was not CBI vs. N.K. Grover & Ors. 31 of 154 pages 32 CBI case . No. 11/11 measured, the measurement of all items were not checked from the site plan, that the team visited the spot twice, and that no rough notes were prepared at the site. He also deposed that he did not visit the spot as an expert.
80. PW6, Sh. Sher Singh Mittal was posted as Architectural Assistant at Architect Department, MCD, Kashmere Gate. At the relevant time, he had already retired from MCD.
81. PW6 has deposed that he along with Sh. V.P. Bhardwaj, prepared existing building plan of Uppal Orchid Hotel, located at Village Smalkha, near IGI Airport on the oral instructions of SE(B), Head Quarter, Town Hall and that after completing the job, they submitted the said plans to Sh. Jagdish Dayani, the then AE (Building), South Zone.
82. PW6 has reiterated the site plan & Area Chart, Ex.PW5/B; first floor plan, Ex.PW5/C; second floor covered area, Ex.PW5/D; basement plan, AC Plant, water supply plant, toilets, ESS, Ex.PW5/E; ground floor plan, Ex.PW5/F and Mezzanine floor, terrace of second floor and sections, Ex.PW5/G. He has identified his signatures at pt. E and that of Sh. Ved Prakash Bhardwaj, at pt. F, on the aforesaid CBI vs. N.K. Grover & Ors. 32 of 154 pages 33 CBI case . No. 11/11 plans. His crossexamination, however, shows that there was nor record of his visiting the spot, of preparation of notes, his appointment letter to do the job for MCD (he deposed strongly that he got oral instructions from MCD), the earlier defective plans which originally were prepared by him were not produced on record and that he could not tell as to where from the expert team took him to the spot which is very strange.
83. PW7, Sh. Harjit Singh was working as Manager in the Punjab & Sind Bank, Industrial Branch, Connaught Place, New Delhi, at the relevant time. He has deposed that vide seizure memo, Ex.PW7/A, he had handed over documents to the CBI. He has identified his signatures at pts. A & B, on the same. He is a formal witness.
84. PW8, Sh. Satya Kumar Sharma was posted as Office Incharge (OI) in the Building Department, MCD, Najafgarh Zone, at the relevant time. He is a formal witness.
85. PW8 has deposed in detail about the procedure of the MCD, pertaining to unauthorized construction of the CBI vs. N.K. Grover & Ors. 33 of 154 pages 34 CBI case . No. 11/11 building.
86. PW8 has reiterated copy of page 81 of Demolition Register of Najafgarh Zone, Ex.PW3/C and copy of Misalband register, Ex.PW3/D; certified copies of which were given during his tenure. He has further deposed that he did not seal G8 Bill Book of MCD, Najafgarh Zone, which is Ex.PW3/E.
87. PW8 has further deposed that vide seizure memo, Ex.PW8/A, three files were handed over by him to the CBI, which bears his signatures at pts. A & B, which have been duly identified by him.
88. Similarly, PW8 has further deposed that vide seizure memo, Ex.PW8/B, documents were handed over to the CBI, which bears his signatures at pts. A & B, which have been duly identified by him.
89. PW8 has further proved the seizure memos, Ex.PW8/C & Ex.PW8/D, vide which documents were handed over by him to CBI, which bears his signatures at pt A, which have been duly identified by him.
CBI vs. N.K. Grover & Ors. 34 of 154 pages 35 CBI case . No. 11/11
90. PW9, Sh. M.S. Yadav was posted with additional charge in Building Department of Najafgarh Zone of MCD, at the relevant time.
91. PW9 has reiterated file, Ex.PW4/A, which he dealt during his posting in the said department. He has deposed that he had made a joint inspection of the site of the building in question, along with the then JE, Mr. S.K. Meena, on 02.07.2001.
92. PW9 has reiterated report, Ex.PW4/A2, which bears his signatures at pt. B, which have been identified by him. He has further reiterated note, Ex.PW4/A5; FIR, Ex.PW4/B2; show cause notice, Ex.PW4/B3 and reply to show cause notice, Ex.PW4/B4 on which he gave his instructions, vide his note, dated 22.08.2001, which bears his signatures at pt. A, which have been duly identified by him.
93. PW9 has identified the signatures of accused (A2), at pt. A, on the letter, at page no. 12 of file, Ex.PW4/A, which has been proved as Ex.PW9/A. CBI vs. N.K. Grover & Ors. 35 of 154 pages 36 CBI case . No. 11/11
94. Similarly, PW9 has identified the signatures of accused (A2) on the note, at page no. A/10 of file, Ex.PW4/A, which has been proved as Ex.PW9/B.
95. PW9 has further identified the signatures of Sh. Firoz Ahmad, the then Superintending Engineer, at pt. B on the notes, Ex.PW9/C (on the same note sheet page A/10) and Ex.PW9/E (on the note sheet page 10/N).
96. Similarly, PW9 has identified the signatures of accused (A2), at pt. A, on the note, available at note sheet page (10/N), which has been proved as Ex.PW9/D.
97. Similarly, PW9 has identified the signatures of accused (A1) on the note, on the note sheet page from page 5/N to 7/N (10/N), which has been proved as Ex.PW9/F.
98. Similarly, PW9 has identified the signatures of accused (A2), at point A, on the carbon copy of page 6 of file, Ex.PW4/A, which has been proved as Ex.PW9/G.
99. PW9 has further deposed that building of M/s Uppal Orchid Motel was found to be in rectangular shape on CBI vs. N.K. Grover & Ors. 36 of 154 pages 37 CBI case . No. 11/11 02.07.2001. He has further deposed that no basement in the building was existing during his inspection in the building in question. In cross examination, he has materially contradicted PW 4 as well as the case of the prosecution.
100.PW10, Sh. H.K. Majmudar was the structural engineer. He has proved the document, Ex.PW10/A (D11), which is a structural certificate. He admitted his signatures on the same at point 'X'. He has also admitted of having received payments from accused (A4) from time to time for his services rendered. He was declared hostile and did not support the case of the prosecution.
101.In cross examination, he has deposed that "it is correct that when I signed on Ex.PW10/A, it did not bear the signatures of the owner and architect."
102.PW11, Sh. Y. Surya was posted as Deputy Government Examiner of Questioned documents in the office of GEQD, Hyderabad. He has identified his official stamp at pt. X, on the document, containing disputed writings, marked as Q1 to Q3, which have been proved as Ex.PW10/A(D11).
CBI vs. N.K. Grover & Ors. 37 of 154 pages 38 CBI case . No. 11/11
103.Similarly, PW11 has identified his official stamp at pt. X on the specimen writings of accused Bhusan Kumar Uppal, marked as S1 to 10, which have been collectively proved as Ex.PW11/A.
104.PW11 has reiterated, Ex.PW2/B, which bears his official stamp at pt. X, which he duly identified.
105.PW11 has further identified his signatures at point A and that of Sh. Mohinder Singh, at point B, on the opinion, dated 03.06.2008, contained in the file D15/1, which has been proved as Ex.PW11/B.
106.PW11 has further deposed that the aforesaid opinion, Ex.PW11/B was forwarded along with original questioned documents and specimen, vide letter, Ex.PW11/C. He has identified the signatures of Sh. Mohinder Singh, at pt. A, on the said letter.
107.PW11 has further deposed that his opinion that 'the person who wrote the specimen mark S1 to S10 also wrote Q1', is based upon the cumulative consideration of various CBI vs. N.K. Grover & Ors. 38 of 154 pages 39 CBI case . No. 11/11 similarities observed among the writing habits of the person. Similarly, he has deposed that his opinion that 'the person who wrote the specimen marked S11 to S27 did not write the questioned writing and the opinion on Q2 and Q3' is based upon the cumulative, consideration of various dissimilarities observed between specimen and questioned writings.
108.PW12, Sh. Jagdish Dayani was posted as Junior Engineer in building Head Quarter at Town Hall, Delhi, at the relevant time.
109.PW12 has identified his signatures at pt. A on the seizure memo, dated 01.09.2006, which has been proved as Ex.PW12/A.
110.PW12 has further deposed that vide the aforesaid seizure memo, Ex.PW12/A, two files, which were maintained in the routine course in MCD Office, were handed over by him to the CBI, which have been proved as Ex.PW12/B and Ex.PW12/C, respectively.
111.PW12 has identified the entry at page no. 6, wherein it CBI vs. N.K. Grover & Ors. 39 of 154 pages 40 CBI case . No. 11/11 has been mentioned that the tax was deposited on the same date, which is mark PW12/A1.
112.PW12 has further identified his signatures at pt. A, on the note at page 1/N to page 4/N, mentioning about the deficiencies, which has been proved as Ex.PW12/D1.
113.PW12 has further deposed that on the directions of Sh. Pushkar Sharma, the then Assistant Engineer (Building), an invalid notice, was issued, copy of which is at page 3/C. He has identified the signatures of said Sh. Pushkar Sharma at pt. A on the aforesaid notice, which has been proved as Ex.PW12/D2, as he had worked under him and had seen him writing and signing.
114.PW12 has further deposed that since there was no compliance of the invalid notice, he had proposed for rejection of request for sanctioning of the building plan, vide his note, Ex.PW12/D3, which bears his signatures at pt. A, which has been duly identified by him.
115.PW12 has further deposed that his aforesaid proposal was rejected by Sh. M.N. Dass, the then Executive CBI vs. N.K. Grover & Ors. 40 of 154 pages 41 CBI case . No. 11/11 Engineer(Building), Head Quarter, vide his note, Ex.PW12/D4, which bears the signatures of said Sh. M.N. Dass at pt. A, which have been duly identified by PW12.
116.PW12 has further deposed that a rejection letter was issued under the signatures of Sh. Pushkar Sharma, at pt. A, which have been duly identified by him. The said letter has been proved as Ex.PW12/D5.
117.PW12 has further deposed that thereafter, an appeal/application was filed against the aforesaid rejection by accused M/s Uppal Properties Pvt. Ltd, after partial compliance of the earlier objections, which is contained in the file Ex.PW12/C, at page 48/C and has been proved as Ex.PW12/D6. He has identified his signatures at pt. A, on the same.
118.PW12 has further identified his signatures at pt. A on his note at page 1/N to 6/N, which was made by him at the time of processing the aforesaid appeal/application, which has been proved as Ex.PW12/D7.
119.PW12 has further deposed that when he found that CBI vs. N.K. Grover & Ors. 41 of 154 pages 42 CBI case . No. 11/11 certain deficiencies were still existing there, another invalid notice was issued, which has been proved as Ex.PW12/D8. He has identified the signatures of Sh. Pushkar Sharma, at pt. A, on the same.
120.PW12 has further identified his signatures at pt. A on the note which was made by him after inspecting the site of the motel, in question, along with the representative of the accused and vide which, he referred the file to Town Planning Department through proper channel for the purpose of verification of documents, ownership etc. The said note has been proved as Ex.PW12/D9.
121.PW12 has identified the signatures of Sh. R.P. Sharma, the then JE(B), at pt. A, on the note at page no. 15/N, which has been proved as Ex.PW12/D10 as he had seen him signing the documents in his official course of business.
122.PW12 has also identified the signatures of Sh. R.P. Sharma, the then JE(B), at pt. A on the note, which has been proved as Ex.PW12/D11.
123.PW12 has further identified the signatures of Sh. Pushkar CBI vs. N.K. Grover & Ors. 42 of 154 pages 43 CBI case . No. 11/11 Sharma, at pt. A, on his note, which has been proved as Ex.PW12/D12.
124.PW12 has further deposed that the building plan was sanctioned by Sh. Surender Pal, the then Executive Engineer(Building) Head Quarter, vide his note, Ex.PW12/D13. He has identified his signatures at pt. C and that of Sh. Pushkar Sharma, at pt. A and that of Sh. R.P. Sharma, the then JE, at pt. B, on the said note, which have been duly identified by him.
125.PW12 has further identified his signatures, at point A, on the report along with annexures, running into seven pages, which has been proved as Ex.PW12/D14 colly. He has deposed that the said report is correct, as per the observations made by the team during inspection and that the shape of the building was found to be 'square'. PW 9 had deposed that it was rectangular. That there existed no basement at the site and that they found ground, first and second floor, in the said building.
126.PW12 has further deposed that subsequently, to assist CBI, a team was constituted in December, 2006, of which CBI vs. N.K. Grover & Ors. 43 of 154 pages 44 CBI case . No. 11/11 he was a member. He deposed contrary to PW5 that inspection of the spot was conducted 67 times. PW5 has deposed that they went to the spot on two occasions. That the team pointed out the discrepancies in the plans, which were prepared by private architect, who was issued work order (no work order was placed or proved on record) for preparation of existing building plan of M/s Uppal Properties Private Limited. That accordingly, modified/corrected plans were got prepared, as per existing position. The original (defective) plans, prepared by PW6, however, were not produced nor shown to this witness by the prosecution, throwing doubt on this issue. He reiterated subsequent plans, prepared by the architect, Ex.PW5/C to Ex.PW5/G, which bear his signatures at pt C, on each plan, which have been duly identified by him.
127.PW12 has further reiterated report, Ex.PW5/H, which bears his signatures at pt. C, which he duly identified. He has deposed that along with the said report, they had attached the copy of building bye laws, which were applicable at the relevant time. He has further deposed that along with the building plan, annexure A is also attached, which has been proved as Ex.PW12/D15. He CBI vs. N.K. Grover & Ors. 44 of 154 pages 45 CBI case . No. 11/11 has further proved the notification of DDA, pertaining to motel, copy of which is Ex.PW12/D16.
128.PW12 could not identify the signatures of Director of M/s Uppal Properties Private Limited on document D7, which is Mark PW12/P1 in file, Ex.PW12/B. He was declared hostile by the prosecution.
129.In his cross examination by Ld. Senior PP for CBI, PW12 stated that he did not remember whether he stated in his statement to the CBI that he can identify the signatures of accused B.K. Uppal on document, MarkPW12/P1. His deposition in the cross examination by the defence clearly demonstrates that the report, Ex.PW5/H is questionable, without reasons and has not covered the vital points relating to this case.
130.PW13, Sh. K.S. Mehra was posted as Commissioner MCD, at the relevant time. He accorded sanction in respect of accused A.P. Sharma, the then Assistant Engineer and N.K. Grover, the then Junior Engineer, vide sanction orders, Ex.PW13/A & Ex.PW13/B, which bear his signatures & official stamp, at pt. A, on each of the said CBI vs. N.K. Grover & Ors. 45 of 154 pages 46 CBI case . No. 11/11 sanction orders, which have been duly identified by him.
131.PW13 has further deposed that he had gone through the material received from CBI, including SP's report, statements of witnesses and documents received from them and after going through the same, he came to the conclusion that there was prima facie sufficient material to accord sanction for prosecution against both the said accused persons.
132.PW14, Sh. Pushkar Sharma has reiterated sanction file in respect of M/s Uppal Properties Private Limited, which was maintained in the Building Head Quarter, MCD, Ex.PW12/C. He has further reiterated his note, Ex.PW12/D12 and identified his signatures at pt. A on the same.
133.PW14 has further deposed that the condition no. 4, which has been mentioned in the note Ex.PW12/D11, pertaining to approval of basement was dealt with by Sh. R.P. Sharma, the then JE(B), who submitted his note at page 22 N after processing, which has been proved as Ex.PW14/A. He has identified his signatures, at pt. B, that CBI vs. N.K. Grover & Ors. 46 of 154 pages 47 CBI case . No. 11/11 of Sh. R.P. Sharma at pt. A and that of Sh. MM Das, the then SE(B), Head Quarter, at pt. C, on the said note.
134.PW14 has further deposed that after compliance of the other conditions, the matter was put up to him by Sh. R.P. Sharma, for issuance of sanction letter on 03.05.1999 and that he had directed for issuance of sanction letter, vide his note, Ex.PW14/B. He has identified his signatures at pt. A on the said note. He reiterated sanction letter, Ex.PW12/D16, on which he identified his signatures at points A and B.
135.PW14 has further reiterated sanctioned building plans, Ex.PW1/A1 to Ex.PW1/A6 and has identified his signatures at pt. C, on each of the said plan. He has also reiterated map, Ex.PW12/D1, which bears his signatures at pt. A and B, which have been duly identified by him.
136.PW14 has further deposed that the plans were sanctioned after application, Ex.PW12/P1, was moved by the party, which might have been submitted by the party along with whole set of documents in the file, Ex.PW12/B. He, however, could not identify the signatures of the owner on CBI vs. N.K. Grover & Ors. 47 of 154 pages 48 CBI case . No. 11/11 Ex.PW12/P1. He, however, turned hostile to the version of the prosecution.
137.PW15, Sh. M.M. Dass was posted as Superintending Engineer(Building) (Head Quarter), in the MCD, at the relevant time.
138.PW15 has reiterated document, regarding approval of the basement of the property, Ex.PW14/A in the file Ex.PW12/C, which bears his signatures at pt. C, which have been duly identified by him. He has deposed that the proposal mentioned in the said document was put up to him by the then Executive Engineer, Sh. Surender Pal, which bears his signatures at pt. D, which have been duly identified by PW15 as said Surender Pal had worked under him and he had seen him writing and signing in the official course of business. He has further deposed that after seeing the document, he had approved the same and that the entire file, Ex.PW12/C including the site plans of the property in question, was placed before him when the approval was accorded by him. He has further deposed that after according the approval, he had sent the file back to Mr. Surender Pal, the then Executive Engineer.
CBI vs. N.K. Grover & Ors. 48 of 154 pages 49 CBI case . No. 11/11
139.PW16, Sh. Prakash Thapa was posted as Inspector, CBI, at the relevant time. He has identified the signatures of Sh. MM Oberoi, the then SP CBI, at pt. A, on each page of the FIR, which has been proved as Ex.PW16/A.
140.PW16 has reiterated seizure memos, Ex.PW8/A and Ex.PW8/B, on which he has identified his signatures at pt. C. He has deposed that vide the aforesaid seizure memos, he had seized documents from Sh. Satya Kumar Sharma.
141.PW16 has further reiterated seizure memos Ex.PW3/A, Ex.PW7/A, Ex.PW8/C, Ex.PW8/D and Ex.PW12/A, which bear his signatures at pt. C, which have been duly identified by him.
142.PW16 has further identified his signatures at pt. C on the seizure memos, which have been proved as Ex.PW16/B1 & Ex.PW16/B2.
143.PW16 has further identified his signatures at pt. A on the report, forwarded by Sh. Pradeep Srivastava, the then Chief Vigilance Officer, which has been proved as CBI vs. N.K. Grover & Ors. 49 of 154 pages 50 CBI case . No. 11/11 Ex.PW16/C. PW16 was, however, not the author of the document, Ex.PW16/C. He was, therefore, not competent to prove it. He has identified the signatures of Sh. MM Oberoi, the then SP, CBI, who had marked this letter along with enclosures, at pt. B, on the said letter.
144.PW16 has further identified his signatures at pt. C and that of Sh. Jagdish Dayani, who had handed over the said documents, at pt. B, on the seizure memo, which has been proved as Ex.PW16/B3.
145.Similarly, PW16 has identified his signatures at pt. C and that of Sh. Rajender Kumar, who had handed over the said documents, at pt. B, on the seizure memos, which have been proved as Ex.PW16/B4 & Ex.PW16/B5.
146.PW17, Sh. LM Majhi was also the Investigating Officer of this case. He has deposed that during investigation, he had recorded statements of witnesses and collected documents.
147.PW17 has reiterated specimen writings/signatures of Architect, Ashu Paul, which were taken by him, in the CBI vs. N.K. Grover & Ors. 50 of 154 pages 51 CBI case . No. 11/11 presence of independent witness, Sh. Gyanesh Jain, collectively, as Ex.PW2/B. He has identified his signatures at pt. B, on the same. Similarly, he has reiterated the specimen signatures of accused Bhusan Kumar Uppal(A3), marked S1 to S10, collectively, as Ex.PW11/A, on which he has identified his signatures at pt. B. He has deposed that the said specimen signatures were also obtained in the presence of an independent witness, Sh. Gyanesh Jain.
148.PW17 has further deposed that the questioned documents and specimen signatures were forwarded by him to the GEQD through letter of the then Branch SP, Sh. Rakesh Aggarwal, which has been proved as Ex.PW17/A. He has identified the signatures of said Sh. Rakesh Aggarwal, on the said letter.
149.Now, I come to the version put forward by the defence witnesses.
150.DW1, Sh. Sant Ram Malik was an employee of M/s Uppal Properties Private Limited. He has deposed that the supervision over the construction was done by his Director, Sh. Shiv Kumar Khattar and that he used to assist CBI vs. N.K. Grover & Ors. 51 of 154 pages 52 CBI case . No. 11/11 him. That the construction consisted of basement, ground floor and first floor. He has further deposed that no official team from MCD or Mr. Meena or Mr. Yadav came to inspect the building in question, in his presence.
151.In reply to specific court question that as to whether DW1 brought any document to show that he was a diploma holder in Civil Engineering, he produced two photocopies, which have been marked as DW1/X1 and DW1/X2.
152.DW1 has denied the suggestion that he was not appointed to supervise the construction and that for this reason, he did not know even the names of the directors and their signatures. He has further stated that in his knowledge, they did not receive any notice from MCD during the whole of the construction period. He has further denied the suggestion that since he was not working and posted there, he could not tell that several notices from MCD were sent and received by M/s Uppal Properties Private Ltd.
153.DW1 was not sure, he, however, stated that at pt. A, it appeared to be the signatures of architect, Ashu Paul on CBI vs. N.K. Grover & Ors. 52 of 154 pages 53 CBI case . No. 11/11 Ex.PW2/A1.
154.DW1 has further admitted that there were so many entries and exit points during construction but the same were filled up on completion of construction. He has further denied the suggestion that there were regular entry and exit points, built with beautification involving a lot of expenditure and the same were not closed after the completion of the building. He has denied the suggestion that he has deposed falsely.
155.DW2, Sh. R.M. Gupta has deposed that he had joined the MCD on 01.04.61 and has retired as Superintending Engineer (Building Head Quarter) on 31.03.2001. That during this period, he had worked as JE(Works and Building), AE(Works and Building), Executive Engineer and Superintending Engineer (Works and Building) Head Quarter.
156.DW2 has deposed that whenever any construction is carried out without any valid sanction, it is termed as unauthorized construction. It is the primary duty of JE to detect any unauthorized construction and when it is CBI vs. N.K. Grover & Ors. 53 of 154 pages 54 CBI case . No. 11/11 carried out in his area, he is duty bound to issue notice under section 344(1) and 343 and demolition order, under section 343 and besides this, he has to process case for sealing the property and prosecuting the violators. He has further deposed that all this has been provided in the Manual of Instructions, 2003.
157.DW2 has further deposed that NOC/completion certificate/occupancy certificate is issued by Executive Engineer of the Building of the Zone and that the DC of the Zone can also give the said certificate.
158.DW2 has further deposed that compounding of any unauthorized construction or deviation from sanctioned building plan are basically dealt with by the JE (Building), who submits his report further to Assistant Engineer, Executive Engineer and Superintending Engineer and JE calculates the compounding fees, which is liable to be cross checked by the superior officers, as per Building Bye Laws and Master Plan.
159.DW2 has further deposed that the height of the building is governed from average center line of the adjoining road, CBI vs. N.K. Grover & Ors. 54 of 154 pages 55 CBI case . No. 11/11 as per Building Bye Laws 2.11. That a building starts from basement and goes upward. That the lower storey of the building is termed as basement partly below the ground and partly above the ground level. That the portion below the zero level will be considered as basement. That the minimum height from the zero level is .9 meter or 3 feet and maximum 4 feet and 1.2 meter from the zero level and that the rest of the height of the basement should be below the zero level. That change of shape and size of a sanctioned portion is permissible within the parameters of same coverage area, height and other part of the building bye laws that this is not provided in bye laws but it is a matter of practice.
160.DW2 has further deposed that whenever AE accompanied JE to the spot for inspection, it must be mentioned in the report. He again said, it is optional. He has further deposed that inspection of the spot is mandatory for the JE before issuance of completion certificate or occupation certificate or compounding/regularization of the building.
161.DW2 has further deposed that if a completion certificate or NOC is wrongly issued, the building which comprises of CBI vs. N.K. Grover & Ors. 55 of 154 pages 56 CBI case . No. 11/11 non compoundable deviations/unauthorized construction/any fraudulent statement or any other thing which are not in conformity with the building bye laws, Master Plan, the completion certificate so issued can be withdrawn and all other actions for the unauthorized construction can be initiated.
162.DW2 has denied the suggestion of the prosecution that in the event there is some space between the constructed building and the road then, center of the height of the building is to be measured from the surrounding ground rather than the center of the road. He has further denied the suggestion that he has deposed falsely in order to help the accused in this regard.
163.DW2 has further denied the suggestion of the prosecution that prior to effecting change in the shape, amendment in the sanctioned plan is needed.
164.I have carefully gone through the entire relevant material, appearing on record and have also considered the case law cited at the bar. My findings are recorded herein below.
CBI vs. N.K. Grover & Ors. 56 of 154 pages 57 CBI case . No. 11/11
165.It is contended on behalf of the accused N. K. Grover (A1) that presumption as provided under section 20 of the P. C. Act, 1988, is not applicable in the present case as none of the basic ingredients, as applicable in case of public servant has been fulfilled and hence the prosecution is under the obligation/burden to prove its case against the accused person beyond the reasonable doubt.
166.That PW1 Anil Jain could not identify the alleged signatures on the site plan and did not support the prosecution. He has turned hostile to the version of the prosecution.
167.That PW2, Ashu Paul has specifically stated in his examinationinchief that the building was constructed consisting of basement, ground floor and the first floor. PW 2 has also stated that "when the completion plans, Ex. PW 2/A1 to Ex. PW 2/3 were submitted on 27.3.2001, the surrounding of the building was filled upto the road level".
168. It is also contended on behalf of the accused N. K. Grover (A1) that PW 2 not only admitted the fact of preparing the plans but also categorically stated that at CBI vs. N.K. Grover & Ors. 57 of 154 pages 58 CBI case . No. 11/11 the time of preparation of the completion plans by him, the surroundings of the building was filled upto the road level and thus the structure which has been alleged by the prosecution to be the ground floor, was actually a basement.
169. That PW 4 S. K. Meena has himself created doubts about his alleged report and established that his alleged reports were based on the assumptions alone.
170.That PW 4 S. K. Meena admitted his note dated 30.7.2001 and from his testimony it is clear that firstly, PW4 himself was confused regarding his reports. Secondly, he did not take into consideration the road level and even he did not measure the depth of the construction from the road level. Thirdly, he did not take into the consideration the bye laws for measuring the alleged deviations. Fourthly, he completely ignored the Clause 2.11 Bye Laws while submitting his alleged report and thus, his testimony is untrustworthy and cannot be relied upon to arrive at any conclusion.
171.That PW 5, Sanjay Sharma himself created the serious CBI vs. N.K. Grover & Ors. 58 of 154 pages 59 CBI case . No. 11/11 doubts on the alleged report of the said committee as they did not even measure or take into consideration the height of the building and raising of the ground level upto the road level with earth and further did not take into consideration the building bye laws.
172.That taking into consideration, the testimony of PW 5 Sanjay Sharma, the tenure of the accused N. K. Grover at the alleged post of JE (B) is very material as the accused N. K. Grover just joined the said post of JE (B) in September, 2001, after the transfer of S. K. MeenaJE (B) and by that time, the entire construction had admittedly been over.
173.That PW6 Sher Singh cannot be believed to be trustworthy for establishing the construction of the property in question in 2001 because his testimony pertains to the year 2007 i.e. after a long gap of more than five years from the transfer of the accused N. K. Grover and it cannot be presumed to be reflecting the position of the spot as of the year 2001.
174.That the testimony of the PW9 M. S. Yadav qua the accused N. K. Grover (A1) or alleged proving of Ex. PW 9/F, CBI vs. N.K. Grover & Ors. 59 of 154 pages 60 CBI case . No. 11/11 is untrustworthy as he was not aware about the material aspects of the NOC. PW9 was not competent to identify the signatures of accused N. K. Grover in the alleged note sheet, Ex.PW9/F, as accused N. K. Grover remained posted in the Building Department from October, 2001 to May, 2001, whereas PW 9 M. S. Yadav was posted from 28.6.2001 to 28.8.2001.
175.That from the testimony of the PW 12 Jagdish Dayani, it is clear that this witness cannot be relied upon, muchless to link or establish any kind of accusation against the accused N. K. Grover(A1).
176.It is further contended that from the testimony of the PW16Prakash Thapa, it is clear that he conducted a biased investigation and the case is suffering from the lacunas of free and fair investigation, which are fatal to the case of the prosecution.
177.It is further contended that from the testimony of the prosecution witness, the prosecution has miserably failed to prove or to establish the guilt of accused person more particularly as against accused N. K. Grover(A1) as the CBI vs. N.K. Grover & Ors. 60 of 154 pages 61 CBI case . No. 11/11 prosecution has failed to discharge its obligation to prove its case beyond the reasonable doubts.
178.It is further contended that the building in question was completed in March 2001 and the owner had applied for the completion certificate on 27.3.2001, whereas the accused N. K. Grover (A1) joined the area after a gap of six months from the completion of the building. That according to the report of S. K. Meena, who is the predecessor of accused N. K. Grover(A1), the building was inspected by him and his superior officers, who found that the construction was carried out in respect of sanctioned plan. That after his transfer, said S. K. Meena handed over the file to AE (B) but the same was never handed over to the accused N K Grover(A1).
179.That accused N. K. Grover (A1) only calculated the compounding fee as per the directions of his superiors. That even AE (B) mentioned in his report that he has checked the averments of his report. That accused N. K. Grover (A1) was not competent to do any favour to M/s Uppal Properties as the completion certificate was to be issued by the then EE, which was done after due CBI vs. N.K. Grover & Ors. 61 of 154 pages 62 CBI case . No. 11/11 verification.
180.That in the order of the Hon'ble Lt. Governor, in which accused A. P. Sharma (A2) was exonerated , it is observed that the deviation from the sanctioned building plan were found during the inspection carried out in 2006 and not during the tenure of accused A. P. Sharma(A2) when he obtained the approval for completion certificate and that the height of the building is to be taken from the road level and not from the plinth level because the hotel is located in a low lying area. Further that, as per the bye laws, the floor below the road level should be treated as basement.
181.Thus, it is contended on behalf of the accused N. K. Grover (A1) that the prosecution has miserably failed to prove or establish the guilt of the accused beyond reasonable doubts.
182.It is contended by accused (A2), Anand Prakash Sharma that the present case was registered by the CBI, based on the outcome of the preliminary enquiry, conducted by the CBI, vide case no. 2/2006EOU VII, New Delhi, dated 10.05.2006, wherein allegations of offences under section CBI vs. N.K. Grover & Ors. 62 of 154 pages 63 CBI case . No. 11/11 120B, 193 IPC and section 13(2) read with 13(i)(d)(ii) of the Prevention of Corruption Act, 1988, were made out, as against accused Raj Pal Dabas, the then Executive Engineer(B), Sh. Jagbir Singh, the then Junior Engineer(B) and M/s Uppal Orchid Hotel. That the role of accused Anand Prakash Sharma (A2) did not figure in the preliminary enquiry or even in the FIR.
183.That accused (A2) only forwarded the report submitted by his junior i.e. accused (A1) in respect of the property, in question, for consideration and necessary administrative approval of the higher officers/competent authority through proper channel. That he has followed the procedure, in this regard. That accused (A2) joined Najafgarh Zone as Assistant Engineer (B) and thereafter, issued a letter/ notice, dated 08.11.01 to accused (A4), which is Ex.PW9/A and is available on page no. 12 of the file, Ex.PW4/A (D4) and sought clarifications, regarding existence of basement and height of the building. That he also directed them to submit certain documents. That owner M/s Uppal Properties Private Limited (A4) submitted detailed reply on 09.11.01, which is available at page no. 7 of file, Ex.PW4/A, wherein clarification was CBI vs. N.K. Grover & Ors. 63 of 154 pages 64 CBI case . No. 11/11 made and it was asserted that the basement was in existence and that there was no excess coverage at the site. That the owner further clarified that ramps had been constructed, as per site requirements, being a low lying area and the ramps were earth filled and that no space was created thereunder. That the owner further submitted undertakings/affidavits, which are available in the file, Ex.PW4/A(D4).
184.That thereafter, accused (A1) inspected the site on 19.11.01 and submitted his NOC report, which is Ex.PW9/F to accused (A2). That he has submitted that all deviations were compoundable in nature and has also calculated the compounding fees of Rs.4,07,401/, as is indicated at page no. 6 of the note portion of Ex.PW9/F. That the details of compoundable deviations were distinctly given. That the said report of accused (A1) was forwarded by accused (A2) to the then Executive Engineer, Sh. Saminder Nagi for consideration and approval. The said Executive Engineer forwarded the same to the then Superintending Engineer, Mr. Feroz Ahmad, for approval. That Mr. Feroz Ahmad returned the file to the Executive Engineer on 22.011.01 with some enquiries, which are CBI vs. N.K. Grover & Ors. 64 of 154 pages 65 CBI case . No. 11/11 reflected at page no. 8 of the note in the file, Ex.PW4/A. That thereafter, the said Executive Engineer marked the file to accused (A2), who marked it to accused (A1), for compliance. That towards compliance, accused (A1) submitted his report, dated 23.11.01, which is reflected at page no. 9 and 10 of the note portion of file, Ex.PW4/A, indicating that the site had been checked and that there was no non compoundable deviation at the site and that all the compoundable deviations had been taken care of and that the existing basement was within the permissible limit, as per policy. That the file was thereafter, put up before accused (A2), who in turn forwarded the report of accused (A1), vide his note, Ex.PW9/D to the then Executive Engineer(B). That the same was thereafter, forwarded by the the Executive Engineer to the then Superintending Engineer with his comments "may kindly approve please". That the then Superintending Engineer, vide his note, Ex.PW9/E forwarded the proposal with the remark "Proposal of EE(B) may kindly be seen for approval"
on 26.11.01. That the file was thereafter, returned to the then Executive Engineer(B) for issuance of occupancy certificate/completion certificate. That the Executive Engineer issued the occupancy/completion certificate, CBI vs. N.K. Grover & Ors. 65 of 154 pages 66 CBI case . No. 11/11 which is Ex.PW17/X3 on 05.12.01 with the condition that 'NOC from CFO be obtained before actual occupancy of the building'.
185.It is, therefore, contended that due process was followed in processing, while issuing completion certificate. That accused (A1) completed all the formalities, as per prevailing practice in the building department of MCD and as are laid down in Appendix'H', which is the requisite form. That the compounding fees of Rs.
4,07,401/ was undisputedly deposited by the owner, vide document, Ex.PW3/B, colly, appearing on record.
186.It is further contended that the completion certificate, as stated above, was issued, in this case on 05.12.01 by the then Executive Engineer after the necessary approval from the concerned Superintending Engineer as well as the Deputy Commissioner. However, despite all this, none of them was interrogated by the IO nor any one of them has been arrayed as accused or cited as witness, in this case. That being so, for issuance of completion certificate, which was neither issued by Accused (A1) nor by (A2), they cannot be held liable for anything in any CBI vs. N.K. Grover & Ors. 66 of 154 pages 67 CBI case . No. 11/11 manner, whatsoever. That the issuing authority, in this case was the then Executive Engineer and the officers up to the level of Deputy Commissioner were involved. That there is no allegation, regarding any false/fraudulent document by accused (A1) and (2), which might have mislead the Executive Engineer, Superintending Engineer or the Deputy Commissioner. That there is no complaint either on behalf of any one of them. Under the circumstances, no liability can be fastened upon accused (A1) and (A2) for fraudulently or dishonestly or illegally issuing the completion certificate, in question.
187.PW17, who was IO of this case, in his cross examination has clearly admitted "I had seen the completion certificate, which is on record as Ex.PW17/X3. The same was issued by the then Executive Engineer, Sh. S.S. Nagi. It is correct that I did not examine Sh. S.S. Nagi. I had also not examined the then Superintendent Engineer. I do not remember whether completion certificate is issued with the approval of DC or SE. I do not remember whether I had verified that the completion certificate was issued with the approval of DC and SE".
CBI vs. N.K. Grover & Ors. 67 of 154 pages 68 CBI case . No. 11/11
188.It, therefore, obtains on record that the IO of this case took no care to examine either the then Executive Engineer, who issued the completion certificate nor he bothered to examine or interrogate the then Superintending Engineer or the Deputy Commissioner. All this shows that no attempt was made by him to ascertain the truthfulness of the basis and circumstances of the issuance of completion certificate, in question.
189.The documents made available by the prosecution on record, admittedly, indicates that owner M/s Uppal Properties Private Limited (A4) applied for issuance of completion certificate through accused (A3) on 27.03.01, vide application, Ex.PW4/A1, available in file, Ex.PW4/A.
190.PW4, Sh. S.K. Meena, the then Junior Engineer(B) allegedly inspected the site on 02.07.01 along with the then Assistant Engineer(B), Mr. M.S. Yadav (PW9) and prepared report, Ex.PW4/A2. Thereafter, the file was put up by Sh.
S.K. Meena to Mr. M.S. Yadav, on 15.07.01, which was endorsed by him on 17.07.01. That the file, Ex.PW4/A further reveals that Sh. M.S. Yadav recommended for action as per DMC Act to Sh. S.K. Meena on 26.07.01. The CBI vs. N.K. Grover & Ors. 68 of 154 pages 69 CBI case . No. 11/11 record, however, indicates that Sh. S.K. Meena did not take any further step, on the other hand, he recorded note, dated 08.08.2001, which is Ex.PW4/A4, mentioning that he requested the then Assistant Engineer/Zonal Engineer(B) to give necessary accompany to him for site inspection again, as higher authority i.e. Executive Engineer had mentioned in his report, dated 11.06.01 that no such unauthorized construction was found in the building and that no structural construction was carried out after 11.06.01 in the building. All this clearly indicates that Junior Engineer(B) himself was not sure regarding existence of any unauthorized construction/deviation at the site and was reluctant to book the property.
191.The record indicates that on 14.08.01, Junior Engineer(B) without revisiting the site to clarify the position, lodged FIR, which Ex.PW4/B2 in file, Ex.PW4/B, without mentioning therein the complete details of deviations/unauthorized construction in the building and further got issued notice, dated 14.08.01, which is Ex.PW4/B3, under the signatures of the then Assistant Engineer(B). Admittedly, the owner replied to the said notice, vide reply, Ex.PW4/B4 on 20.08.01. Thereafter, CBI vs. N.K. Grover & Ors. 69 of 154 pages 70 CBI case . No. 11/11 Assistant Engineer(B) instructed the Junior Engineer on 22.08.2001 to visit the site again and to go through the plan, submitted by the owner. That the file was marked to JE but PW4S.K. Meena neither visited the site nor he issued the second notice for demolition to the owner, thereafter.
192.It is contended that PW4 has deposed falsely in this regard before the court and has stated in his statement made on 31.10.2012 that "I examined the matter and gave my note, vide which I have written that the reply is unsatisfactory and thereafter, second notice has been issued and I identify my signatures at pt. B on my note, which is Ex.PW4/B5". This statement is contradicted by PW9, Sh. M.S. Yadav, who stated in his examination in chief that "A reply to the show cause notice was received from the party, which is already Ex.PW4/B4. On which, I gave my instruction, vide my note, dated 22.08.01 and I identify my signatures below the note at pt. A. The file was never put up to me after this and was kept by JE(B)".
193.PW9, Sh. M.S. Yadav has further reiterated the aforesaid fact in his cross examination that he did not sign the CBI vs. N.K. Grover & Ors. 70 of 154 pages 71 CBI case . No. 11/11 second notice, as the same was not put up to him. Even otherwise, no such notice is available on record or was produced by the prosecution. This clearly indicates that PW4, Sh. S.K. Meena has deposed falsely in this regard.
194.PW16, Sh. P. Thapa, who has partly investigated this case, deposed on 12.02.2013 that "there is no second notice on record for demolition of the deviations or unauthorized construction, issued by the then JE concerned i.e. Sh. S.K. Meena".
195.PW17, Sh. LM Majhi has also corroborated this when he deposed that "no demolition order was passed and demolition notice issued by Sh. S.K. Meena and M.S. Yadav after booking the property for the first time till they were transferred after about four months".
196.From the record of file, Ex.PW4/A, it is clear that the application, dated 27.03.01, which is Ex.PW4/A1, was not rejected by ZE(B), on the other hand, the owner M/s Uppal Properties Private Ltd was asked to submit more documents i.e. the completion plan, structural stability certificate, supervision certificate, photographs of the CBI vs. N.K. Grover & Ors. 71 of 154 pages 72 CBI case . No. 11/11 building and proof of ownership. Had the proposal for issuance of completion certificate been rejected, there was no reason for the ZE(B) to ask for the additional documents to be submitted by the owner. All this is clear from the note sheet at page no. 1 of file, Ex.PW4/A, produced by the prosecution.
197.Further, in case, the proposal for issuance of completion certificate was rejected on 03.04.01, there was no reason for the AE to visit the property in question on 02.07.01 for inspection. There is no evidence adduced by the prosecution even otherwise to show that the proposal for issuance of completion certificate was rejected on 03.04.01.
198.As per building bye laws, adjoining road level is taken as reference level from which the height of the building is measured. Basement is defined under clause 2.9 of the Building Bye Laws as a lower storey of a building below or partly below ground level. In the instant case, the position is taken as correctly as the motel in question is located in a low lying area. The prosecution has not adduced any evidence to the effect as to from which level they had CBI vs. N.K. Grover & Ors. 72 of 154 pages 73 CBI case . No. 11/11 considered zero level at the time of alleged inspection of the site, in this case. The prosecution has failed to appreciate clause 2.11 of the Building Bye Laws, 1983.
199.In the instant case, the road abutting the land was at a higher level, the zero level was, therefore, to be taken from the central line of the adjoining road from which point the height of the building was to be considered.
200.PW2, Sh. Ashu Paul Malhotra, witness of the prosecution in his examination on 13.12.2013 himself has deposed that "I had discussions with Mr. B.K. Uppal before starting construction at the planning stage and at that time, it was decided not to dig as this was already a low lying area and there could have been a problem with water logging and it was decided that as the road abutting the land was at a higher level, to make the building or the said basement, at the ground level and subsequently, filling of earth around the basement upto the road level. When the completion plan Ex.PW2/A1 to Ex.PW2/A3 were submitted i.e. 27.03.01, the surrounding of the building was filled upto the road level but the filling was not done upto the road".
CBI vs. N.K. Grover & Ors. 73 of 154 pages 74 CBI case . No. 11/11
201. This witness has further deposed that "the soil was filled upto the distance of approximately 12 to 13 feet surrounding the building."
202.PW12, Sh. Jagdish Dayani has also deposed that "it is correct that in any building, abutting the road, the zero level is taken as Center of the road."
203.PW13, Sh. K.S. Mehra also deposed that "I was conversant at the relevant time with the building bye laws including the basement & zero level of the building. I am aware of the fact that zero level of the building abutting the road is to be considered from the road level, as per bye laws". It is asserted that in view of this PW13 ought not to have accorded sanction as the existence of the basement in the premises stood established and no case was made out against (A1) and (A2).
204.The defence witness, DW2, Sh. R.M. Gupta also deposed that "for the purpose of building height, the height of the building is governed from average center line of the adjoining road, as per Building Bye Laws 2.11."
CBI vs. N.K. Grover & Ors. 74 of 154 pages 75 CBI case . No. 11/11
205.Regarding change of shape and size of the building, PW2, Sh. Ashu Paul Malhotra has deposed that the "sanctioned plan had shape of the building as 'U' shape but it was changed to rectangular shape. As per building bye laws, the FAR was adhered to while making the above changes".
206.PW12, Sh. Jagdish Dayani has also confirmed, when he deposed on 23.01.2013 that "it is correct that the shape of the building can be altered than the sanctioned plan to a different shape, provided it is as per building bye laws, within the permissible limits of covered area".
207.DW2, Sh. R.M. Gupta also deposed to this effect and stated that "change of shape & size of a sanctioned portion is permissible within the parameters of same coverage area, height and other part of the Building Bye Laws."
208.The perusal of the FIR, dated 14.08.2001, under DMC Act, copy of which is Ex.PW4/B3 of Sh. S.K. Meena, his report, dated 02.07.2001, which is Ex.PW4/A2, the FIR, proved by the prosecution in this case, dated 12.01.05, lodged by Sh. Jagbir Singh, the then JE(B) in respect of unauthorized construction/deviation, inspection report, CBI vs. N.K. Grover & Ors. 75 of 154 pages 76 CBI case . No. 11/11 Ex.PW5/H(colly) and charge sheet, Mark PW17/X, filed by the IO in case titled as "CBI vs. Jagbir Singh", indicates that there are major contradictions, regarding existence of deviation/unauthorized construction at the site. That as such, under the circumstances, it cannot be ruled out that after issuance of completion certificate on 5.12.2001 and before booking of the property by MCD on 12.01.05 or thereafter some unauthorized construction might have been raised or the existing construction was subjected to misuser. There is no evidence on record that the alleged deviations/unauthorized constructions were in existence at the time of issuance of completion certificate in the year 2001.
209.The prosecution has not brought on record any evidence to show as to which portion of the building, in question, was constructed at what time and in which year. It is evident from the statements of the members of the inspection team, which inspected the property in the year 2006 that they did not verify this fact at the time of their inspection.
210.PW12, Sh. Jagdish Dayani has deposed in his statement, CBI vs. N.K. Grover & Ors. 76 of 154 pages 77 CBI case . No. 11/11 which was recorded on 23.01.2013 that "I cannot tell what was the position in the year 2001 qua the building plan, when it was constructed." He has further deposed that "I cannot tell tell about the changes between 2001 and 2006 when the inspection was carried out by us. We had submitted our report in respect of our inspection during the month of August, 2006." Apart from this, unauthorized construction of swimming pool and some other construction, which was shown in the inspection report, Ex.PW5/H were in fact existing in the adjoining plot . This has been confirmed by PW12 in his deposition.
211.PW5, Sh. Sanjay Sharma has also deposed in his cross examined that 'he cannot tell as to what was the position two years prior or five years prior from the date of their inspection regarding the building structure at the spot'.
212.It is further contended that the structure which was existing at the site at the time of inspection, was a three storey structure and was regularized by the MCD as such, vide letter, dated 15.05.09, as is evident from the document Mark PW17/DA, which is not disputed also.
CBI vs. N.K. Grover & Ors. 77 of 154 pages 78 CBI case . No. 11/11
213.It is further contended by accused Anand Prakash Sharma(A2) that the charge sheet, Ex.PW13/DX1 (on the same allegations) was served upon him in respect of the departmental enquiry, which was conducted. The outcome of the departmental enquiry was challenged by him, before the Hon'ble Lt. Governor of Delhi, who quashed the order, dated 03.09.09, vide which departmental enquiry was held against him. The Hon'ble Lt. Governor of Delhi upheld the contentions of accused (A2), based upon the correct interpretation of building bye laws, holding that there existed basement at the premises and accordingly, accused (A2) was exonerated from all the charges, levelled against him, vide his order dated, 04.05.2011. That the said order became final and had been implemented also by the Vigilance Department, as is clear from Ex.PW13/DX.
214.Accused (A2) has further contended that inspection of the spot and regarding compounding of unauthorized construction to visit the spot, is the job of the concerned JE. That the JE calculates the compounding fee, which is liable to be calculated, as per Building Bye Laws. That in the instant case, the NOC report was submitted by accused CBI vs. N.K. Grover & Ors. 78 of 154 pages 79 CBI case . No. 11/11 (A1), which was forwarded by accused (A2), to his superior officers and the same was inspected also and that that is why, the completion certificate was issued.
215.It has also been contended that as per clause 7.5.2 of the Building Bye Laws, on completion of construction work, the owner has to submit notice of the completion through the licensed Architect/Engineer, who supervised the construction, in the prescribed proforma along with copies of the completion plan and other documents, mentioned therein. That it was not the job of accused (A2) to verify the genuineness of the documents, submitted by the owner through the architect along with the application or thereafter. Even otherwise, the prosecution has miserably failed to show that any such document was intentionally used by the owner knowing it to be forged to obtain the completion certificate.
216.It is contended that the allegations in this case are that MCD officials i.e. accused (A1) and (A2), in criminal conspiracy with other accused persons, issued a completion certificate in respect of M/s Uppal Orchid CBI vs. N.K. Grover & Ors. 79 of 154 pages 80 CBI case . No. 11/11 Hotel by deliberately submitting a false report that there was no unauthorized construction in the hotel and that there was basement, ground floor, first floor where as there was no basement, and there was ground floor, first floor and second floor in the said building. That completion file was processed by accused (A1), accused (A2) issued notice, dated 08.11.01 to M/s Uppal Properties Pvt. Ltd. (A4), directing them to submit documents, mentioned in the notice and to clarify about the basement and height of the building.
217.As contended by accused (A2), it has been contended on behalf of accused (A3) &(A4) also that on 19.11.01, accused (A1) submitted NOC report in respect of the said property, which was forwarded by (A2) to the Executive Engineer on 20.11.01. That the Executive Engineer in turn marked the same to the then Superintending Engineer, for approval. That the then Superintending Engineer returned the file with certain queries to the Executive Engineer on 22.11.01. That the file came to accused (A2) and then on 23.11.01, accused (A2) submitted his report to the effect that there was no non compoundable deviations at the site and the basement existed within the permissible limit, as per CBI vs. N.K. Grover & Ors. 80 of 154 pages 81 CBI case . No. 11/11 policy.
218.That the said report was accepted by the then Superintending Engineer and the Deputy Commissioner. The issuance of completion certificate was approved and was ultimately issued by the then Executive Engineer on 05.12.2001. That on 12.01.2005, one Jasbir Singh, the then JE of MCD inspected the motel in question and gave the following report:
"...There is excess coverage against the sanctioned building plans in all the floors of the main building. In addition to the extra coverage, the basement stands converted in to a regular floor and is being put to use for running a restaurant and other facilities for Motel, which is not permissible as per building bye laws........."
219.That thereafter, the demolition of unauthorized construction was done and a sum of Rs.15,750/ was also paid to the MCD towards the demolition charges. That some orders were passed by the Hon'ble High Court of Delhi in a writ petition, titled as "Kalyan Sanstha Social Welfare Organization vs. UOI & Ors," in pursuance to that FIR was registered in this case, regarding the fake CBI vs. N.K. Grover & Ors. 81 of 154 pages 82 CBI case . No. 11/11 demolition shown with respect to the property in question. No separate FIR, however, was recorded in the present case. In the instant case, the FIR of the said case has been illegally used.
220.In this case, PW1, Mr. Anil Jain, Architect, prepared plans, which are Ex.PW1/A1 to Ex.PW1/A6. He, subsequently, turned hostile and was cross examined by the State but to no benefit to the prosecution.
221.PW2, Mr. Ashu Paul Malhotra is the material witness, cited and examined by the prosecution. That he has not supported the case of the prosecution. On the other hand, he has ruined the case of the prosecution, altogether. This witness has deposed that he was Architect, who supervised the construction and prepared basement completion plan, Ex.PW2/A1. He has also proved ground floor completion plan, Ex.PW2/A2 and that of first floor, which is Ex.PW2/A3. That it is the prosecution itself, which has got these documents proved. That once, the prosecution itself got proved that there was a basement completion plan, the case of the prosecution stands demolished at once.
CBI vs. N.K. Grover & Ors. 82 of 154 pages 83 CBI case . No. 11/11
222.This witness has further deposed that the building was built on the land which was already a low lying area and the road abutting the land was at higher level and earth filling (soil) was done around the basement upto the road level upto the distance of approximately 12 to 13 feet surrounding the building before filing application for the completion certificate. In cross examination, this witness has stated that structural certificate, which is Ex.PW2/C is essentially given by the structural engineer and the same is signed by the structural engineer as well as by accused B.K. Uppal (A3). This witness has deposed that the structural certificate was sent from his office to the concerned authority. This witness has further deposed that after completion of the structure, he did interior work of the motel for about six months and till that time, he remained associated with this work. There were three floors in the building namely, basement, ground floor and first floor.
223.PW3, Mr. Rajender Kumar proved seizure memo, Ex.PW3/A. He has also proved the payment of compounding charges, amounting to Rs.4,07,401/ on 05.12.01, vide bill book, Ex.PW3/B. He has also proved the other documents, Ex.PW3/C to Ex.PW3/E. CBI vs. N.K. Grover & Ors. 83 of 154 pages 84 CBI case . No. 11/11
224.PW4, Mr. Shashi Kumar Meena was the then Junior Engineer, who was directed by the Assistant Engineer for checking the building. He has proved his note, Ex.PW4/B1 in the file Ex.PW4/B. He has further deposed that he registered FIR, dated 14.08.01, which is Ex.PW4/B2 and that he sent notice, dated 14.08.01, which is Ex.PW4/B3 to M/s Uppal Properties Pvt. Ltd(A4), to which reply was also received. In his cross examination, he admitted that the quantum of deviations were not mentioned in the notice, Ex.PW4/B3. He has also admitted that he had not mentioned floor wise deviations in the said notice. He could not say where from the zero level of the building is measured if the plot is abutting road side or a street. He was not able to define a plot and differentiate between land and plot. He was also unable to comment upon what is contained in the bye laws. He also could not say whether the land in question was 2 or 3 meters below the road level, as he did not measure it. He has admitted that the area covered in the basement is not included in the FAR. He has admitted that he prepared the report, Ex.PW4/A2. He has admitted that he did not prepare the site plan of the excess coverage and that the CBI vs. N.K. Grover & Ors. 84 of 154 pages 85 CBI case . No. 11/11 change in the shape of the building is permissible, as per bye laws.
225.PW5, Mr. Sanjay Sharma was part of the team constituted to assist CBI in investigation of this case. He deposed that the members of the team met at the site and map, Ex.PW5/B, showing details of the ground floor coverage area bears his signatures. Ex.PW5/C to Ex.PW5/G are the maps of the various floors. He has admitted his signatures on the report, Ex.PW5/H. In cross examination, however, he admitted that the team did not carry the sanctioned site plan along with them, when they went to the spot and that they randomly cross checked the dimensions. He has admitted that no rough notes were prepared at the site. That he did not know as to who dictated and typed report, Ex.PW5/H.
226.PW6, Sher Singh Mittal deposed that he along with one Mr. V.P. Bhardwaj prepared site plan and other plans, which are Ex.PW5/B to Ex.PW5/F. He, however, deposed that the plans were not made at the spot. That there is no proof on record to suggest that they inspected the building at all and thereafter, prepared the aforesaid CBI vs. N.K. Grover & Ors. 85 of 154 pages 86 CBI case . No. 11/11 plans. His cross examination reveals that there is absolutely no record of his ever visiting the site or preparing notes and making the plans afterwards. That he has no idea about the building plans, relating to M/s Uppal Properties Pvt. Ltd. (A4) prior to March, 2007. That no site plan was shown to him by the CBI.
227.PW7, Harjit Singh has proved the seizure memo, Ex.PW7/A.
228.Similarly, PW8, Satya Kumar Sharma has proved the seizure memo, Ex.PW8/A to Ex.PW8/D.
229.PW9 is the material witness examined by the prosecution. He has deposed that he visited the site along with PW4 on 02.07.01 and that inspection report, Ex.PW4/A2 was prepared. He has admitted that reply, Ex.PW4/B4 was received from the party. In his cross examination, he admitted that they have not taken along with them the sanctioned building plan. That he has also stated that the second notice was not signed by him as the same was not put up to him. He has further stated that he had never asked for the second inspection. This witness has further CBI vs. N.K. Grover & Ors. 86 of 154 pages 87 CBI case . No. 11/11 deposed that he does not remember, when they left for the site on 02.07.01. That he admits that he did not own scooter when he had gone to the site but still says that he had gone to the site from MCD office by scooter. That there is no cogent proof of his visiting the site as he was unable to say whether he did not come back to the office from the site.
230.PW10 has proved the structural certificate, Ex.PW10/A. He has turned hostile to the version of the prosecution.
231.PW11, Sh. Y. Surya Prasad is the handwriting expert, who has proved his report, Ex.PW11/A.
232.PW12, Sh. Jagdish Dayani has proved his signatures on the seizure memo, Ex.PW12/A, regarding seizure of files, Ex.PW12/B and Ex.PW12/C. He made note, Ex.PW12/D1. He has proved his noting/reports/document, Ex.PW12/D2 to Ex.PW12/D16. In his cross examination, he could not tell the position of the building in the year 2001 qua the building plan, when it was constructed. He also could not tell about the changes between 2001 and 2006, when the inspection was carried out. He has admitted that any CBI vs. N.K. Grover & Ors. 87 of 154 pages 88 CBI case . No. 11/11 building abutting the road, the zero level is taken as center of the road. He has also admitted that the shape of the building can be altered than mentioned in the sanctioned plan to a different shape provided it is as per building bye laws, within the permissible limits of the covered area. He has also admitted that the completion certificate in this case was issued after approval of the Executive Engineer, Superintendent Engineer and Deputy Commissioner.
233.PW13, Mr. K.S. Mehra has proved the sanction order, in this case, which is Ex.PW13/A.
234.PW14, Sh. Pushkar Sharma is another formal witness, who has proved his note, vide which he had directed for issuance of sanction letter as Ex.PW14/B and has proved his signatures on the plans, which are Ex.PW1/A1 to Ex.PW1/A5.
235.PW15, is the another formal witness, who has proved his signatures on Ex.PW14/A of file, Ex.PW12/C.
236.PW16, Sh. Prakash Thapa is the IO of the case, who partly investigated the case In his deposition, he stated that he CBI vs. N.K. Grover & Ors. 88 of 154 pages 89 CBI case . No. 11/11 does not know as to from where the height of the building stood measured. He even did not know that accused B.K. Uppal was not the owner and that it is the company, which is the owner of the property, in question and that he did not see the premises in question, prior to 27.07.06. He admitted that FIR, recorded by CBI and proved in this case, has no reference to the facts of this case. He also admitted that no separate FIR for this case was registered by CBI. That the facts of this case came to the light, when he seized documents from MCD. He admitted that he did not find out the outcome of the appeal in the departmental inquiry, against accused A2.
237.PW17, Sh. LM Majhi is the second IO of the case, who admitted that completion certificate, which is Ex.PW17/X3 was issued by Executive Engineer, Sh. S.S. Nagi. He has admitted that he did not examine the said Executive Engineer or even the Superintendent Engineer. He did not remember whether the completion certificate was issued with the approval of the Deputy Commissioner and Superintendent Engineer. He possessed no knowledge that change of shape of building within the permissible area limit, was allowed, as per Building Bye Laws. He has CBI vs. N.K. Grover & Ors. 89 of 154 pages 90 CBI case . No. 11/11 admitted that PW4 did not mention deviations in his FIR but he specifically admitted that it is correct that the construction that existed pursuant to the completion certificate was not demolished till the filing of the charge sheet. He did not remember about the non compoundable deviations. He did not know the procedure followed in obtaining the completion certificate. He admitted that he did not take any permission from Magistrate or any other judicial authority or even from Ld. Special Judge, CBI for taking specimen writing/signatures of these persons, whose specimen he collected during the investigation.
238.The defence witnesses, DW1 and DW2 clearly proved that the construction consisted of basement, ground floor and first floor in this case and no official team from MCD or PW4 or PW9 even came to inspect the building in presence of DW1. That the height of the building is governed from the average center line of the adjoining road, as per Building Bye Law 2.11. That the portion below the zero level is considered as basement. That the minimum height from the zero level is 0.9 meters or 3 feet and maximum height is 4 feet from the zero level. That the change of shape and size is permissible.
CBI vs. N.K. Grover & Ors. 90 of 154 pages 91 CBI case . No. 11/11
239.As stated herein above, PW2 has demolished the case of the prosecution.
240.On receipt of notice of completion, in terms of Building Bye Law 7.6, MCD was required to inspect the work and communicate the sanction or refusal or objections thereto in the proforma, given in Appendix'H' within 60 days from the date of receipt of notice of completion. It is settled that in case, nothing is communicated within this period, the completion is deemed to have been approved by the authority for occupation.
241.In this case, vide letter, dated 03.04.01, MCD asked the owner to submit few more documents, which were immediately submitted. That from 03.04.01 till 14.08.11, the MCD did not communicate to the owner M/s Uppal Properties Pvt Ltd(A4), as such, the whole case of the prosecution falls flat. That the MCD sat over the file for three months and it was for the first time that on 02.07.01 that PW4, Sh. S.K. Meena is said to have inspected the site, vide, Ex.PW4/A2, which reads as under:
(i) Layout plan of the existing structure does not tally with the sanction plan in respect of size and shape.
CBI vs. N.K. Grover & Ors. 91 of 154 pages 92 CBI case . No. 11/11
(ii) As per the surrounding/feasibility of the site, no basement constructed in this premises while the applicant shows the basement in completion plan.
(iii) Unauthorized construction in shape of ramp under the covered area is not mentioned in the sanctioned building plan.
(iv) Covered area of the ground floor is more than permissible area.
(v) Total height of the building is more than the permissible height.
(vi) Presently, no sanitary fittings in existence of this building. Hence, this building is in ongoing stage till date in respect of finishing work.
242.Admittedly, this note was put up to the then AE on 15.07.01. There is no reason available on record as to why PW4, Sh. S.K. Meena kept on sitting over the file till 15.07.01. Further, vide note, dated 23.07.01, the then AE, who is PW9, Sh. M.S. Yadav directed PW4 that "please put up after necessary compliances as above", vide Ex.PW4/3. That he further directed PW4, Sh. S.K. Meena to take all necessary action, as per Building Bye Law and amended DMC Act and directed him to put up action taken report at the earliest for further transmission to the higher authority. PW4, on the other hand, vide his note, dated 08.08.01, which is Ex.PW4/A4, requested PW9 to give suitable advice on which, PW9 made note, dated 09.08.01, which is Ex.PW4/A5, recording that PW4, Sh. S.K. Meena was CBI vs. N.K. Grover & Ors. 92 of 154 pages 93 CBI case . No. 11/11 avoiding the matter and requested the higher authorities namely, Executive Engineer(Building) to issue show cause notice to PW4 as he had been avoiding taking action.
243.It is, therefore, clear that no action in fact, was taken by PW4, Sh. S.K. Meena and PW9, Sh. M.S. Yadav and instead they were entering into blame game as against each other.
244.That after 27.03.01, notice for the first time was issued to the owner in mid August, 2001. That the FIR in terms of DMC Act was registered by PW4 on 14.08.01. That it is clearly mentioned in the the said reply of accused (A4) signed by (A3) that the basement has been constructed as per sanctioned building plan exactly below ground floor area. It was also mentioned that the building at site consisted of basement of 25,282 sq. feet and ground floor of 25,282 sq. feet and first floor of 7,113 sq. feet, as shown in annexure '1' (completion plan).
245.That PW4, Sh. S.K. Meena despite directions of AE, did not visit the site, on the other hand, he wrote vaguely that the reply is unsatisfactory.
CBI vs. N.K. Grover & Ors. 93 of 154 pages 94 CBI case . No. 11/11
246.PW4, therefore, neither went to the site nor gave report. Surprisingly, vide his note, dated 28.08.01, PW4 mentioned that demolition notice, under section 343 of DMC Act was prepared but Mr. M.S. Yadav (PW9) had refused to sign the said notice. It is the admitted case of the prosecution that no second notice was given, under section 343 of DMC Act to the owner of this case. As such, no further action was taken, as nothing survived.
247.Further, PW4 did not state in his notice, dated 14.08.01 that there was no basement at the site. The cross examination of PW4 clearly demonstrates that he did not visit the site on 02.07.01, either.
248.That cross examination of PW4 has demolished the case of the prosecution.
249.The cross examination of PW9 shows that his visit to site along with PW4 on 02.07.01 is doubtful.
250.That accused (A2) was exonerated by the Lt. Government of Delhi, clearly holding that there was no basement, existing at the spot and that accused (A2) correctly CBI vs. N.K. Grover & Ors. 94 of 154 pages 95 CBI case . No. 11/11 interpreted the building bye law and was not guilty of concealment of any valid opinion of his superiors. The Appellate authority namely, Lt. Governor of Delhi observed as under :
"G. During the personal hearing, the appellant produced extracts of building bye laws to claim that as per building bye laws the reference level is the road level. In this case, the foundation of the building was 8'10' below the road level, accordingly the first construction above the foundation was 8' below the road level. Hence, he averred that the first level is a basement and not the ground floor, as mentioned in the charge memo. He further reiterated that when the completion certificate was submitted for approval, the Superintending Engineer (NGZ) raised certain objections and returned the file on 22.11.01 for rectification. The Charged Officer has replied the objections/queries and made necessary rectifications and again submitted the file to the Superintending Engineer(B) through Executive Engineer(B). The Superintending Engineer(NGZ) was then fully satisfied with the report of the Charged Officer and had approved the recommendation for the issue of Completion Certificate. He also informed that the basement was just a hall when the issue of completion certificate was being considered.
5. I have gone through the written and oral contentions of the appellant. The impugned penalty order, his representation submitted to the Disciplinary Authority and relevant record of the CBI vs. N.K. Grover & Ors. 95 of 154 pages 96 CBI case . No. 11/11 case. The main contention of the appellant is that inquiry officer failed to consider that deviations from the sanctioned building plan were found during the inspection carried out in the year 2006 and not during his tenure when he had duly processed and obtained approval of the competent authority for issue of completion certificate. Secondly, the height of the building is to be taken from the road level and not from the plinth level because the hotel is located in a low lying area. Accordingly, as per the bye law produced by the appellant the floor below the road level should be treated as basement. It is also to be considered that the proposal for approving the 'Completion Certificate' prepared by the appellant was approved by DC(NGZ) after the Executive Engineer & Superintending Engineer had duly recommended the same. Therefore, the contention of the appellant that the height of the building should not be taken from the foundation level merits consideration.
6. In view of the foregoing, I set aside the impugned penalty imposed by the Disciplinary Authority vide order, dated 22.09.09, thereby, exonerate the appellant. The appellant, Sh. A.P. Sharma, Assistant Engineer, MCD be so informed."
251.The prosecution has, thus, failed to show that completion certificate was obtained by the owner or accused (A3) or accused (A4) by violating any provision of the DMC Act, in this case.
CBI vs. N.K. Grover & Ors. 96 of 154 pages 97 CBI case . No. 11/11
252.It has further been contended that the prosecution, in this case, has withheld the most important evidence, in as much as, they have neither examined Executive Engineer, who issued completion certificate nor Superintending Engineer nor the Deputy Commissioner, who approved the grant of completion certificate, in this case. They were neither arrayed as accused nor witnesses. It cannot, therefore, be said that the completion certificate, in this case, was issued, fraudulently or without compliance of the necessary pre requisites.
253.Accused B.K. Uppal (A3), cannot be held vicariously liable, being Director of M/s Uppal Properties Private Ltd, as there is nothing like vicarious liability in the criminal jurisprudence and especially, with regard to the offences, alleged in this case.
254.Regarding forgery or use of forged structural certificate, Ex.PW10/A, it is contended that the said certificate bears the signatures of Structural Engineer, PW10. In his cross examination, PW10 has deposed that "It is correct that I had told the CBI that I have CBI vs. N.K. Grover & Ors. 97 of 154 pages 98 CBI case . No. 11/11 signed the structural certificate, Ex.PW10/A in the capacity of structural engineer. It is correct that structural certificate, Ex.PW10/A bears my initials at MarkX. It is also correct that I had been paid for my services by way of cheques by M/s Uppal Properties Pvt. Ltd. from time to time for the services rendered by me. It is also correct that when I had signed on Ex.PW10/A, it did not bear the signatures of the owner and the architect."
255.Ex.PW10/A, therefore, is not a false structural certificate, nor it was used by accused B.K. Uppal (A3), knowing it to be forged.
256.That IO acted illegally in not taking specimen signatures, in this case, contrary to law.
257.The Hon'ble Supreme Court in the case law reported as State of UP. vs. Ram Babu Misra, AIR 1980 SC 791, has held as under:
"Para 4. The second paragraph of section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare"such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is CBI vs. N.K. Grover & Ors. 98 of 154 pages 99 CBI case . No. 11/11 that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?"
258.In the case law reported as Magan Bihari Lal vs. The CBI vs. N.K. Grover & Ors. 99 of 154 pages 100 CBI case . No. 11/11 State of Punjab (1977) 2 SCC 2010, the Hon'ble Supreme Court Court has held as under :
"Para 7. Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert's opinion without substantial corroboration."
259.Accused (A2) was exonerated by the Lt. Governor of Delhi, as noted herein, above. In the case of P.S. Rajya vs. State of Bihar, reported as 1996, SCC(Cri) 897, the accused was exonerated in the departmental proceedings. The Hon'ble Supreme Court has held that the charge in the departmental proceedings and the charge in the criminal proceedings were identical and if the charge could not be established in the departmental proceedings one wonders what is there further in the prosecution to proceed against the appellant.
260.In the case, cited as K.C. Builders and Anr. vs. The Assistant Commissioner of Income Tax, the Hon'ble Supreme Court has held that once the penalties were cancelled on the ground that there was no concealment, the quashing of prosecution, under section 276 C was CBI vs. N.K. Grover & Ors. 100 of 154 pages 101 CBI case . No. 11/11 automatic, the following part of the judgment can be quoted with profit:
"If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross examination and, therefore, the prosecution may proceed with the trial.
In our opinion, the view taken by the Learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a defense document in as much as the passing of the order as aforementioned is unsustainable and unquestionable."
CBI vs. N.K. Grover & Ors. 101 of 154 pages 102 CBI case . No. 11/11
261.It is well settled that where two views are possible, the one favouring accused is required to be adopted In the case law, reported as State of Madhya Pradesh vs. Bacchudas @ Balram & Ors., AIR 2007 SC 1236 equivalent 2007 Cri.LJ. 1661(page no. 3 at para 8), the Hon'ble Supreme Court has held as under:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
262.That the inspection conducted by the team, vide their report, Ex.PW5/H, pertains to the year 2007 as the alleged inspection was conducted in August, 2007, where as the alleged completion certificate was issued in the year 2001. The inspection report, even otherwise, does not inspire any confidence as firstly, PW2 supervised the construction, prepared completion plans in 2001 of the basement, ground floor and first floor; secondly, the structural engineer gave structural certificate, Ex.PW10/A, admittedly. The said certificate reads as under:
CBI vs. N.K. Grover & Ors. 102 of 154 pages 103 CBI case . No. 11/11
1. Certified that the building(s) has been constructed according to the sanctioned plan and structural design (one set of structural drawings as executed is enclosed) which incorporates the provisions of structural safety as specified in relevant prevailing IS Codes/Standards/guidelines.
2. It is also certified that construction has been done under our supervision and guidance and adheres to the drawings submitted and the records of supervision h ave been maintained by us.
3. Any subsequent change from the completion drawings will be the responsibility of the owners(s).
263.Thirdly, on 12.01.05, the then Junior Engineer, Jasbir Singh on visit of the motel, found unauthorized construction and misuse of the basement. This is even otherwise clear from the file, D6, containing documents, vide which the property was booked for unauthorized construction.
264.Once, the case of the prosecution, based on the documents, contained in file D6, proves that there was CBI vs. N.K. Grover & Ors. 103 of 154 pages 104 CBI case . No. 11/11 mis use of basement, it pre supposes the existence of the basement. This altogether takes away the case of the prosecution.
265.Fourthly, it is admitted by the prosecution witnesses that the property in question was built on a land, which is low lying area and it was 810 feet below the road level.
266.Fifthly, no conclusion can be drawn from the position of the structure found in August, 2007 to show that the same position existed in the year 2001.
267.Sixthly, the joint inspection report, Ex.PW5/H, nowhere shows as to on what basis, it was concluded that the basement was not there.
268.Seventhly, the question of unauthorized construction was ultimately decided by the Hon'ble High Court of Delhi, vide judgment, dated 04.06.04, in the matter of Uppal Hotels P. Ltd & Anr. vs. MCD & Anr. In WP(C) 4441/2008. The MCD Building Department, issued letter mark PW17/DA, dated 15.05.09. The said letter reads as under:
CBI vs. N.K. Grover & Ors. 104 of 154 pages 105 CBI case . No. 11/11 "Kindly refer to your letter, dated 12.02.09 and subsequent reminders. The property is as per existing/completion plan and there is no unauthorized construction and misuse at site at present."
269.This is clear that the building constructed had basement, ground floor and first floor. The prosecution case is, therefore, baseless and devoid of any merit. The prosecution has withheld examination of material witnesses, who were Executive Engineer, Superintendent Engineer and Deputy Commissioner, who approved the issuance of completion certificate, in this case.
270.In the case law, reported as Takhaji Hiraji vs. Thakore Kubersing Chamansing and Ors (2001) 6 SCC 145, the Hon'ble Supreme Court has opined as under:
"it is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a CBI vs. N.K. Grover & Ors. 105 of 154 pages 106 CBI case . No. 11/11 material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non examination of such other witnesses may not be material. In such a case the Court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itselfwhether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise."
271.That accused, B.K. Uppal (A3) cannot be held vicariously liable, being the director of accused company (A4). In this regard, case law titled as M/s Thermax Ltd & ors. Vs. KM Jhony & Ors. 2011 STPL(Web) 858(2011) 13 SCC 412(Page no. 429 at para 40), has been relied upon, wherein the Hon'ble Supreme Court has held as under :
"We have already noted that the offence CBI vs. N.K. Grover & Ors. 106 of 154 pages 107 CBI case . No. 11/11 alleged in the criminal complaint filed by respondent no. 1 is under sections 405 and 420 IPC where under no specific liability is imposed on the officers of the company, if the alleged offence is by the company. In the absence of specific details about the same, no person other than appellant no. 1Company can be prosecuted under the alleged complaint."
272.Further, in this regard, case law, reported as Aneeta Hada vs. M/S Godfather Travels & Tours, 2012 IV Ad(SC) 489 (page no. 11 at para 33), has also been been relied upon.
273.The same view was adopted in the case law reported as Maksud Saiyed vs. State of Gujarat, (2008) 5 SCC 668, wherein the Hon'ble Supreme Court has held as under:
"The Magistrate is required to apply his mind. The penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. The learned magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for CBI vs. N.K. Grover & Ors. 107 of 154 pages 108 CBI case . No. 11/11 any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
274.In the case law reported as S.K. Alagh vs. State of Uttar Pradesh, (2008) 5 SCC 662, it was held by the Hon'ble Supreme Court that "Appellant 1 is the Managing Director of the Company. Respondent 3 was its General Manager. Indisputably, the Company is a juristic person. The demand drafts were issued in the name of the Company. The company was not made an accused. The dealership agreement was by and between M/s Akash Traders and the Company.
275.To the same effect, is the judgment reported as Sabhita Ramamurthy and Anr. vs. RBS Channabasavaradhy {(2006) 10 SCC 581, wherein the Hon'ble Supreme Court has held that "If and when a statute contemplates creation CBI vs. N.K. Grover & Ors. 108 of 154 pages 109 CBI case . No. 11/11 of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself ."
276.In the case law titled as B. Jagadeesh vs. The Deputy Superintendent of .... on 12.04.2011 in Crl. O.P. No. 6419 of 2007 (page no. 5 at para 15), it was held that "in the Indian Penal Code, there is no such penal provision making the directors of the company also liable for punishment for the offence committed by the company."
277.Admittedly, no separate FIR was registered, in this case. That investigation of the case, without registering the FIR is per sey illegal and malafide.
278.In the case of Ashok Kumar Todi vs. Kishwar Jahan & Ors., 2011 Supreme Court, it was held by the Hon'ble Supreme Court that "Para 23. Under the scheme of the Code, investigation commences with lodgment of information relating to the commission of an offence".
CBI vs. N.K. Grover & Ors. 109 of 154 pages 110 CBI case . No. 11/11 "The direction to conduct investigation requires registration of an FIR preceding investigation and, therefore, had to be treated as casting an obligation on the CBI to first register an FIR and thereafter, proceed to find out the cause of death, whether suicidal or homicidal. In order to find out whether the death of Rizwanur Rahman was suicidal or homicidal, investigation could have been done only after registration of an FIR..."
279.In the case of Shashikant vs. CBI & Ors, Appeal Crl. 1127 of 2006, it was observed that "Para 28. Only when a FIR is lodged, the officer in charge of the police station statutorily liable to report thereabout to a Magistrate who is empowered to take cognizance in terms of proviso to Section 157(1) of the Code.
Thus, registration is a sine qua non for starting investigation {Mohindro vs. State of Punjab and Ors (2001) 9 SCC 5811, also refers}"
The present case is not a part of the first FIR.
The FIR is under section 120B, 193 IPC and section 13(i)(d) with the investigation of FIR CBI vs. N.K. Grover & Ors. 110 of 154 pages 111 CBI case . No. 11/11 under section 13(i)(e). This case having disclosed different distinct offence under section 218, 420 & 471 IPC read with 13(i)(d) of Prevention of Corruption Act, 1988. Hence Test of sameness or theory of consequence does not apply.
(i) No FIR registered in this case.
(ii) No investigation could have been carried out without first registering FIR in the case.
(iii) Investigation without FIR registration means illegal investigation.
280.In this regard, case law reported as Amitbhai Anilchandra Shah vs. CBI & Anr. (2013) 6 SCC 348, and the case law reported as Sri L. Shankaramurthy, son Lashkari ...Vs. The State, refers to, wherein, it was observed "Therefore, the Police Officer Incharge is duty bound to comply with the mandatory requirements of section 154 of Cr.P.C."
281.It was further observed "The entire proceeding leading to conducting the seizure panchanama even without registering the cases as required under section 154 of the Cr.P.C is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C. and the act on the CBI vs. N.K. Grover & Ors. 111 of 154 pages 112 CBI case . No. 11/11 part of the police officer concerned is nothing but an act which could be termed as abuse of the process of law."
282.In the case law, reported as State of Punjab vs. Baldev Singh, 1999(6) SCC 172 (page no. 20 last line), it was observed by the Hon'ble Supreme Court that "...Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would CBI vs. N.K. Grover & Ors. 112 of 154 pages 113 CBI case . No. 11/11 render the trial unfair then that evidence must be excluded..."
283.The entire proceedings are vitiated by the IO, who is the complainant being the person having come to know, for the first time, about issuance of completion certificate allegedly fraudulently in this case, investigates the case. In this regard, the case law reported as Megha Singh vs. State of Haryana, 1995 Cri L.J. 398, refers to.
284.In the case law reported as State of Karnataka vs. Sheshadri Shetty And Ors., 2005 Cri L.J. 377, the Hon'ble High Court of Karnataka observed that "Where the law prescribes a prohibition to the Investigating Officer being the complainant, such as a situation in which the law would preclude a prosecutor from being a witness at a trial or a situation in which where the prosecutor is absent, the Presiding Officer takes over the role of the prosecutor. The law prescribes a certain bar for valid reasons, there can be no compromise and if the bar is transgressed then the consequences are automatic."
" Before parting with this judgment, we need to remind the prosecuting authorities that the error that has occurred in the present case CBI vs. N.K. Grover & Ors. 113 of 154 pages 114 CBI case . No. 11/11 ought never to be repeated and the Director General of Police still bring it to the notice of all Investigating Officers in the state that there is a legal bar to an Investigating Officer functioning in the dual capacity of the complainant also and that this error should not be repeated because it would virtually vitiate even an otherwise reasonably good investigation. Secondly, we do feel that when atrocities of the present type take place that a highly specialized, intelligent and above all honest professional investigation be undertaken. It is not difficult if there is a genuine will to get to the root of the atrocity to find out the real culprits and ensure that they are brought to book."
285. That the prosecution has failed to prove its case and the defence has shown that the prosecution version is not sustainable. In the case law, titled as Punjabrao vs. State of Maharashtra, Supreme Court of India, 2001, The Hon'ble Apex Court observed as under :
"Para 3. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
CBI vs. N.K. Grover & Ors. 114 of 154 pages 115 CBI case . No. 11/11
286.That in this case, there is neither forgery nor use of any forged document. The structural certificate, Ex.PW10/A has not been proved as a forged document by the prosecution. This certificate, admittedly, bears the signatures of the then Structural Engineer, PW10. PW10, Mr. H.K. Majmudar has deposed in his cross examination "It is correct that I had told the CBI that I have signed the structural certificate, Ex.PW10/A in the capacity of structural engineer. It is correct that structural certificate, Ex.PW10/A bears my initials at MarkX. It is also correct that I had been paid for my services by way of cheques by M/s Uppal Properties Pvt. Ltd. from time to time for the services rendered by me. It is also correct that when I had signed on Ex.PW10/A, it did not bear the signatures of the owner and the architect."
287.Further, PW2, Ashu Paul Malhotra, in his cross examination stated that structural certificate, Ex.PW2/C is essentially given by the structural engineer and the same is signed by the structural engineer as well as Mr. B.K. Uppal and also that the structural certificate is sent form his office to the concerned authority.
288.Ex.PW10/A is not a false document. In the case of Mohd. CBI vs. N.K. Grover & Ors. 115 of 154 pages 116 CBI case . No. 11/11 Ibrahim & Ors. vs. State of Bihar & Anr.(2009) 8 SCC 751 (para 10, 11 and 12 at page no. 4, 5 and 6), it was observed by the Hon'ble Supreme Court that "Para 14. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently make or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other persons.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication' or
(c) deception practiced upon him, know the contents of the document or the nature of the CBI vs. N.K. Grover & Ors. 116 of 154 pages 117 CBI case . No. 11/11 alteration.
In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
Para. 17. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted."
289.That PW2 has owned the responsibility and stated that someone in his office must have got signed the structural certificate from the Structural Engineer. The signatures of PW2 were not done in the presence of accused B.K. Uppal (A3). Hence, it cannot be said that any false document was created either by PW2 or accused B.K. Uppal or that it was to his knowledge that some employee of the architect has made signatures of PW2 in his presence. Admittedly, application for completion certificate has to be submitted through the licensed architect. Thus, no offence under section 471 is made out against accused (A3). CBI vs. N.K. Grover & Ors. 117 of 154 pages 118 CBI case . No. 11/11
290.In the case law reported as Jibrial Diwan vs. State of Maharashtra, AIR 1997 SC 3424, it was observed by the Hon'ble Supreme Court that "This court in Dr. S. Dutt State of UP, AIR 1966 SC 523 has explained the words intent to defraud' as being not synonymous with words 'intent to deceive'. It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. Here by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done, dishonestly. Likewise, the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to any one which but for the deception the person defrauded would have acted otherwise. The basic ingredients of the act done 'dishonestly' or 'fraudulently' being missing, the charge under section 471 read with 465 IPC was totally misplaced and the High Court fell into an error in convicting the appellant on those charges".
291.IO acted illegally in obtaining specimen signatures, in this case, as it is well settled that the IO cannot take specimen signatures during investigation, without permission or CBI vs. N.K. Grover & Ors. 118 of 154 pages 119 CBI case . No. 11/11 direction of the judicial court. This is supported by case law reported as State of UP vs. Ram Babu Misra, AIR 1980 SC 791.
292.In another case law, cited as Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, it was observed by the Hon'ble Supreme Court that "Para 7. Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert's opinion without substantial corroboration."
293.In the case of State of Madhya Pradesh vs. Sheetla, 2009, Supreme Court, it was held by the Hon'ble Apex Court that " Para 49. It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counteraffidavit. On the other hand, those who were one way or the other connected with the decision, viz. Sh. J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made."
294.It is, therefore, asserted on the part of accused (A3) & (A4) CBI vs. N.K. Grover & Ors. 119 of 154 pages 120 CBI case . No. 11/11 that the prosecution has totally failed in proving the alleged offences, as against any of the accused persons and more specially against accused (A3) & (A4).
295.As against the contentions raised by the defence, Ld. Sr. PP for CBI could not counter their contentions at all, much less, competently. He has miserably failed to show from the evidence adduced by the prosecution itself that the prosecution has been able to establish their case as against the accused persons, much less beyond reasonable doubt. In fact, it is the deposition of prosecution witnesses and the documents relied upon by the prosecution alone that have failed the case of the State. The prosecution, therefore, could not establish that the accused persons are guilty of the alleged offences. The contention, as discussed above, raised by the defence which are based on record, correct logical reasoning, proper analysis of evidence adduced in this case and which are supported by binding legal precedents are liable to be upheld and are, therefore, accepted.
296. Even at the cost of repetition, it would be apt to list striking failures of the prosecution as under :
CBI vs. N.K. Grover & Ors. 120 of 154 pages 121 CBI case . No. 11/11
(i) The opening failure of the prosecution in this case begins with the FIR dated 27.7.2006, recorded by CBI, which has been proved as Ex.PW16/A. The FIR itself talks of the misuse of basement by the owner. Misuse is one thing and nonexistence is the other thing. Once, the FIR itself proclaims that there was misuse of basement, there cannot be a misuse unless something exists. Therefore, at the very outset, according to the FIR (which, admittedly, was recorded by the CBI after conducting preliminary enquiry) of the prosecution, basement existed in the premises. Once, the basement existed in the premises, the case of the prosecution falls flat as the entire axis of the prosecution's case hinges on the non existence of basement in the premises. (The issuance of completion certificate, dated 05.12.2001, without existence of the basement, is the core issue in this case).
(ii) Admittedly, the same IO who came to know of the alleged offences in this case during investigation of another case has investigated this case also. In other words, the complainant himself became the IO of the case, as such, the non observance of ethics, bias and unfair investigation were not ensured to be ruled out, in this case. CBI vs. N.K. Grover & Ors. 121 of 154 pages 122 CBI case . No. 11/11
(iii) PW1, PW2, PW10, PW12 and PW14 all of them, examined as material witnesses by the prosecution have turned hostile. Apart from this, the evidence led by other witnesses PW4, PW5, PW6, PW9, PW12, PW16 & PW17 shows that they are completely unworthy of credence and do not inspire any confidence in the version of the prosecution. Prosecution's witness after witness have only ruined their case. The prosecution witnesses thus have thrown the case of the prosecution completely overboard.
(iv) PW2, Sh. Ashu Paul Malhotra has totally failed the case of the prosecution, when the prosecution got proved the completion plans of the basement, in this case. PW2 has clearly deposed that the construction was carried out under his supervision and that after completion of the construction, he carried out some decorative work also, all in the year 2001. PW2 has, therefore, squarely proved that there existed basement in the premises at the relevant time when completion certificate was sought.
(v) PW2 has proved as under:
(i) He prepared the basement plan,
CBI vs. N.K. Grover & Ors. 122 of 154 pages
123
CBI case . No. 11/11
Ex.PW2/A1(D5), ground floor plan, Ex. PW2/A2(D6), completion plan, Ex.PW2/A3(D7) after the construction of the building.
(ii) In his cross examination, he clearly stated that till the time he remained associated with this work there were three floors namely, basement, ground floor and first floor and he did the interior work for the ground floor and the first floor.
(iii) He stated that FAR was adhered to and that the shape of the building was changed from U shape to rectangular shape.
(iv) He stated that the building was built on the land which was already a low lying area and the road abutting the land was at higher level and earth filling (soil) was done around the basement upto the road level upto the distance of approx. 12 to 13 feet surrounding the building before applying for the completion certificate.
(v)He clearly stated that he would have not signed the completion plan if the building was not adhering to building bye laws.
(vi) In cross examination, PW2 further stated that structural certificate, Ex.PW2/C is essentially given by the structural engineer and the same is signed by structural engineer as well as Mr. B.K. Uppal and also that the structural certificate is sent from his office to the concerned authority.
(vii) He also stated that he did the interior work of the motel for six months after completion of the motel and that till the time he remained associated with this work there were only three floors namely, basement, ground floor and first floor."
(vi) PW 2 Ashu Paul, in his cross examination, admitted that structural certificate(which is proved on record as Ex.PW10/A also by PW10) was essentially given by the structural engineer (who was examined as PW10) and the same was signed by the structural engineer as well as Mr. B. CBI vs. N.K. Grover & Ors. 123 of 154 pages 124 CBI case . No. 11/11 K. Uppal (A3) and the same was sent from his office to the concerned authority i.e. MCD. The prosecution failed to prove as to who forged the signatures on Ex. PW10/A. It was also not proved that accused (A3), (A2) & (A1) knew about it or that they used the same knowing it to be having forged signatures of the Architect, PW2. PW2 has deposed that someone in his office might have signed in his place. None of the accused, therefore, can be said to have committed offence under section 471 IPC. {Reliance is placed on case law reported as :
(a) Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC 751, wherein it was held "If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted"
(b) Jibrial Diwan Vs. State of Maharashtra, AIR, 1997, SC 3424)}.
(vii) That there is no evidence on record that wrongful loss or disadvantage was caused to the MCD and there is no evidence that wrongful gain or advantage was caused to M/s Upptal Properties Pvt. Ltd (A4). PW 2 has owned the responsibility and stated that someone in his office had signed on his behalf. The signatures of the PW2 were not done in the presence of the accused (A3), B. K. Uppal, hence it cannot be said that any false document was created by CBI vs. N.K. Grover & Ors. 124 of 154 pages 125 CBI case . No. 11/11 accused B. K. Uppal or that it was in his knowledge that some employee of the architect had forged signatures of the PW 2 in his presence. It is clear that no offence under section 471 IPC is made out either against the accused (A3), B. K. Uppal or against (A1) or (A2) as there is no evidence that any one of them used the said certificate knowingly as forged structural certificate. The forgery, if any, was committed in the office of PW2 and it was used by PW2 or his office. The IO did not direct his investigation towards the actual guilty persons, if any and did not collect relevant evidence in this regard, for the reasons best known to him.
(viii) PW4, Mr. Shashi Kumar Meena and PW9, Mr. M.S. Yadav have proved only vague reports. Their whole conduct and notings show that they were indulging in arm twisting only and in fact were fighting with each other instead of complying with the provisions of the DMC Act, in a lawful and fair manner. Their deposition does not inspire confidence, at all. On the other hand, their cross examination clearly demonstrate that their visit to the spot, itself is highly doubtful. Besides this, PW4 deposed about issuance of second notice where as PW9, who was superior to PW4 clearly deposed that second notice was never put up to him by PW4 for signing. Without signatures of PW9, who was AE(B) at the relevant time, no such notice could have been issued. Thus, PW4 & PW9 have materially contradicted each other.
(ix) That PW4 in cross examination has shattered the CBI vs. N.K. Grover & Ors. 125 of 154 pages 126 CBI case . No. 11/11 case of the prosecution as he deposed:
(i) PW4 admitted that he had not taken the sanctioned plan with him when he went to the site.
(ii)PW4 stated that he had examined the sanctioned plan in office but there is no official entry proof to show that he went to officer in charge(building) and checked the sanctioned plan.
(iii)PW4 admitted that the quantum of deviations are not mentioned in the notice, Ex.PW4/B2.
(iv) PW4 admitted that he has not mentioned floor wise deviations in the notice.
(v) PW4 did not know where from the zero level of the building is measured if the plot is abutting a road side or a street.
(vi) PW4 could not comment after looking into clause 2.11 of the bye laws.
(vii) PW4 admitted that the file, Ex.PW4/B does not even contain the office copy of the second notice.
(viii) PW4 admitted that he had not mentioned whether change in shape i.e. from U shape to rectangular shape is not permissible under the bye laws.
(ix) PW4 admitted that he had sought for the second inspection in order to seek clarification as he was confused.
(x) PW4 was unable to give the date of his second visit. There is no noting on file to show whether PW4 at all visited the site second time.
(xi) PW4 could not say exactly upto what time he remained at the spot.
(xii) PW4 could not say as to at which spot he met Mr. M.S. Yadav.
(xiii) PW4 admitted that he prepared the report, Ex.PW4/A2 in his office.
(xiv) The notes prepared at the spot are not placed on record.
(x) PW 4 could not say whether the land in question was CBI vs. N.K. Grover & Ors. 126 of 154 pages 127 CBI case . No. 11/11 2 or 3 meter below the road level as he did not measure it.
He admitted that the area covered in the basement is not included in the FAR (Floor Area Ratio).
(xi) PW 4 admitted that he did not prepare the site plan of the excess coverage. That the change in shape of the building is permissible as per bye laws (as per deposition of PW12 & DW2).
(xii) That no action was taken but there was blame game between PW 4 S. K. Meena and PW 9 M. S. Yadav and there was dereliction of duty on the part of PW4 & PW9, so long as they remained posted in the area where the building in question was located.
(xiii) In the reply to the show cause notice of MCD, it was mentioned by the owner, admittedly, that the basement has been constructed as per sanctioned building plan exactly below ground floor area. That the building consist of basement 25, 282 Sq. feet and ground floor 25,282 sq. feet and first floor 7, 133 sq. feet as shown in annexure1. This was neither contradicted by PW4 nor by PW 9 nor by the IO during the investigation.
CBI vs. N.K. Grover & Ors. 127 of 154 pages 128 CBI case . No. 11/11
(xiv) That PW4 S. K. Meena neither went through the plan, nor visited the site after reply of the owner (A3) and (A4) despite direction of PW9 nor submitted his report/details at the construction at the site, as is obtaining in their respective notings proved on record by the prosecution, itself.
(xv) That PW4, S. K. Meena mentioned vide his noting dated 28.8.2001 that demolition notice u/s 343 of DMC Act was prepared but Mr. M. S. Yadav had refused to sign the said notice which has been contradicted by PW9 M.S. Yadav. It is, therefore, clear that no case for unauthorized construction during 2001 was made out and no action of demolition was undertaken even after accused (A1) & (A2) left the area. As per file, D6, placed on record by the CBI, the action for demolition was taken only in the year 2005 by the then J.E. who too reported of misuse of the basement and not of non existence of the basement. (xvi) Further, PW 4 S.K. Meena did not mention the absence of basement in his notice dated 14.8.2001. CBI vs. N.K. Grover & Ors. 128 of 154 pages 129 CBI case . No. 11/11 (xvii) PW 9 M. S. Yadav, who allegedly inspected the site on 2.7.2001 alongwith JE, S. K. Meena, admitted in his cross examination that they have not taken alongwith them the sanctioned building plan. If sanctioned plans were not with them, with what they compared the existing structure at the site is an unexplained mystery. Admittedly, there is no second notice on record, having been placed by the prosecution. It indicates that no such notice was issued. PW4, therefore, clearly bluffed/perjured in his statement.
(xviii) Visit of PW9 at the site is doubtful as it has appeared in the cross examination of PW9 as :
(i) PW9 admitted that sanctioned building plan was not taken to the spot.
(ii) There is no record to show that PW9 had seen the sanctioned building plan before going to the spot.
(iii) PW9 stated that he did not sign the second notice as it was not put up before him.
(iv) PW9 stated that he never asked for the second inspection.
(v) PW9 also stated that vide his noting, dated 22.08.01, he had directed PW4, Sh. S.K. Meena to visit the site and verify.
(vi) PW9 admitted that he did not specifically mention the rectangular shape of the building in the report.
(vii) PW9 did not remember when he left for the CBI vs. N.K. Grover & Ors. 129 of 154 pages 130 CBI case . No. 11/11 site.
(xix) The testimony of PW4 & PW9 is, therefore, not only totally contradictory but is also unsustainable and untrustworthy. It, on the other hand, demolishes the case of the prosecution, altogether.
(xx) PW5, Mr. Sanjay Sharma and PW12, Sh. Jagdish Dayani in their deposition have put a question mark on the report, Ex.PW5/H, as it renders it doubtful whether they actually visited the premises or not. No rough notes were admittedly prepared at the spot or produced/proved by the prosecution. It is strange that when Ex.PW5/H was prepared in the office, how dimensions could be remembered so precisely as given in Ex.PW5/H by the members of the team, no rough notes being prepared at the spot.
(xxi) There is no mention of the height of the building anywhere in the report, Ex.PW5/H much less as to where from and how the height of the building was to be measured. PW5 has admitted in his cross examination that height of the building during their visit was not measured. CBI vs. N.K. Grover & Ors. 130 of 154 pages 131 CBI case . No. 11/11 Without measuring height of the building from zero level, how the team could spell out that there was no basement. It has appeared on record in the deposition of the prosecution witnesses itself that the height was to be measured from the center of the road adjoining the building in question as zero level. Had it been done by the team, no case, as alleged, would have been made out.
(xxii) Further, the report of joint inspection team, Ex.PW5/H of the year 2007, has no bearing in deciding whether there existed basement in the year 2001 in the motel, when the completion certificate was issued for the following reasons :
(i) PW 2 Ashu Paul clearly stated that basement, ground floor and first floor were constructed.
(ii) The structural engineer gave structural certificate Ex. PW 10/A.
(iii) On 12.1.2005 JEJasbir Singh visited the motel and he found the unauthorized construction and misuse of the basement (as per FIR, Ex.PW16/A).
(iv) the floor constructed on a low lying area, below 8 -
10 feet of the road level which has been filed up by earth, cannot be ground floor. It has to be taken as basement.
(v) What existed in or found in 2007 cannot be the basis to conclude that six years ago in 2001, the same was the position in the absence of any cogent evidence like age of building etc. CBI vs. N.K. Grover & Ors. 131 of 154 pages 132 CBI case . No. 11/11
(vi) Joint inspection report, Ex.PW5/H, nowhere shows the basis on which it was concluded that the basement was not there as height of the building was, admittedly, not measured with reference to the zero level.
(vii) Only random check of the dimensions was made.
(viii) No rough notes were prepared at the spot.
(xxiii) PW5, Mr. Sanjay Sharma in cross examination accepted that:
(i) He visited the spot not as an expert.
(ii) No rough notes were prepared at the spot.
(iii) No plan was drawn at the spot.
(iv) The age of the building during inspection was not measured.
(v) He could not say what was the position of the building 2 years or 5 years prior to date of inspection at the spot of the building structure.
(vi) He did not know the definition of lowest storey.
(vii) They randomly cross checked the dimensions collectively (showing that all dimensions were not cross checked).
(viii) They did not measure the level of the road compared to the level of the land at site.
(ix) They did not measure the height of the building.
(x) They did not ascertain as to which portion was erected when.
CBI vs. N.K. Grover & Ors. 132 of 154 pages 133 CBI case . No. 11/11 (xxiv) PW5 has also deposed about visit of the technical committee to the spot once with the IO when measurement could not be taken and thereafter, in 2nd week of August, 2007 i.e. twice, in all. PW12, however, contradicted and deposed that they visited the spot 67 times. (xxv) PW6, Sh. Sher Singh Mittal has deposed that he retired from MCD in June, 2006. PW6 has deposed that they inspected the site in March 2007 and thereafter, prepared the building plans, consisting of 6 sheets. In his cross examination, he, however, deposed as under, only to reiterate and confirm serious dents in the prosecution story:
(i) Plan, Ex.PW5/G does not bear the date and also under his signatures, there is no date, admittedly. (This casts a doubt as to when the plan was drawn).
(ii) He was instructed orally to prepare the plan (can an outsider be engaged for paid service by MCD, without a written letter, is beyond comprehension).
(iii) He did not serve any notice before commencing their job at the spot to the owner of the property.
(iv) He did not keep record of his day to day work of one month allegedly devoted in doing the work in the premises, in question.
(v) Plan was made while sitting in office of Mr. Ved CBI vs. N.K. Grover & Ors. 133 of 154 pages 134 CBI case . No. 11/11 Prakash.
(vi) He did not give any measuremqent of the site to CBI.
(vii) Seven members of technical team took him to the spot but he did not remember from which place.
(viii) He signed the changed plan but admittedly did not put the date of change (the earlier plan prepared by them was, admittedly, defective).
(ix) The actual measurement were not verified by the technical committee.
(x) The original plans prepared admittedly were not placed on record.
(xxvi) The relevant provisions relating to basement given in Building Bye Laws, 1983(BBL for short) are :
BBL 2.9 Basement or Cellar The lower storey of a building with or without toilet/kitchen.
BBL 2.11 Building, Height of The vertical distance measured in the case of flat roofs, from the average level of the center line of the adjoining street to the highest point of the building adjacent to the street wall, and in the case of pitchedroofs, upto the point where the external surface of the outer wall intersects the finished surface of the sloping roof, and in the case of gables facing the road, the midpoint between the caves level and the ridge. Architectural features serving no other function except that of decoration shall be excluded for the purpose of taking heights. If the building does not about on a street, the height CBI vs. N.K. Grover & Ors. 134 of 154 pages 135 CBI case . No. 11/11 shall be measured above the average level of the ground around and contiguous to the building.
BBL 2.63 Plinth The portion of a structure between the surface of the surrounding ground and surface of the floor, immediately above the ground.
BBL 2.68 Road/Street Level or Grade The officially established elevation or grade of the central line of the street upon which a plot fronts and if there is no officially established grade, the existing grade of the street at its midpoint.
BBL 2.84 To Abut To be positioned juxtaposed to a road, lane, open space, building etc. (xxvii) PW 12 Shri Jagdish Dayani admitted that in any building abutting the road, the zero level is taken as center of the road and that the shape of the building can be altered than the sanctioned plan to a different shape as per the building bye laws. He further admitted that the completion certificate in this case was issued after approval of the Executive Engineering, Superintendent Engineering and Deputy Commissioner.
(xxviii) PW 16 Shri Prakash Thapa, IO of the case, does not know as to from where the height of the building stood measured. He even does not know that accused B. K. CBI vs. N.K. Grover & Ors. 135 of 154 pages 136 CBI case . No. 11/11 Uppal (A3) is not the owner but the company (A4)is the owner of the property. He admitted that no separate FIR was registered in this case and the facts of the present case came to the light when he seized the documents from MCD. That he did not find the outcome of the appeal in the departmental inquiry. Admittedly, the present case relates to the occurrence of 2001 when completion certificate was issued. The alleged conspiracy, accused persons, offences etc are altogether different and distinct and yet without registration of a separate case, he himself commenced the investigation in this case also.
(xxix) PW16/C is the inquiry report, dated 01.09.06, which has been filed by the Inspector, Prakash Thapa, PW16, who has partly investigated the present case. The prosecution has failed to tell as to why the author of the report i.e. Sh. Pradeep Srivastava, the then Chief Vigilance Officer, was not examined to prove this report. Admittedly, Sh. Pradeep Srivastava was neither cited as a witness nor he was examined as a witness nor it is the case of the prosecution that he was not available or could not be produced. The defence, therefore, did not get any opportunity to cross examine him, regarding veracity of the said report. PW16 CBI vs. N.K. Grover & Ors. 136 of 154 pages 137 CBI case . No. 11/11 was not competent to prove this report as he was not the author thereof. Ex.PW16/C, therefore, has not been proved, as per law.
(xxx) PW17 Shri L. M. Majhi, second IO of the case, admitted that he has no knowledge that the change of the shape of the building within the permissible area limit is permissible as per bye laws. He also admitted the fact that construction that existed pursuant to the completion certificate was not demolished till the filing of the charge sheet and that he does not know the procedure of obtaining the completion certificate. With such a background, how he could be expected to have investigated the present case, much less, as per law?
(xxxi) The notings in the file, Ex.PW4/A (D4) & Ex.PW4/B(D5) clearly demonstrates that entire thing was brought to the notice of their superior by accused (A1) & (A2), including the then Executive Engineer, the then Superintendent Engineer and the then Deputy Commissioner. Accused (A1) made a report, dated 05.12.01 to the effect that "deviations/excess coverage has since been compounded, so the case may be filed and should be sent CBI vs. N.K. Grover & Ors. 137 of 154 pages 138 CBI case . No. 11/11 for keeping in record please". This note was endorsed on 05.12.01 by accused (A2) and was fully endorsed by Sh. Saminder Nagi, the then Executive Engineer. The entire contents of files, Ex.PW4/A and Ex.PW4/B were, therefore, fully in the knowledge of the then Executive Engineer and with his approval only, the case was filed. Accused (A1) & (A2), therefore, cannot be blamed, in any manner, whatsoever, regarding their role in processing the case and grant of or issuance of the completion certificate, dated 05.12.2001, by the then Executive Engineer, S.S. Nagi. (xxxii) Ex.PW4/B2 is the notice, dated 14.08.2001, allegedly, prepared by PW4. In the column (i), description (vivran), it is mentioned that "U/C of excess coverage beyond sanctioned plan". The description, given by PW4, therefore, is vague, as he has not mentioned any deviation as to what was the unauthorized construction and to what extent it deviated from the sanctioned plan. (xxxiii) D6 is the file, relied upon by the prosecution, although the file was not proved by the prosecution, only a site plan, Ex.PW2/A2 in the file was exhibited. In any case, since this file is produced and relied upon by the CBI vs. N.K. Grover & Ors. 138 of 154 pages 139 CBI case . No. 11/11 prosecution, the same can be used as against the prosecution. This file contains demolition notice, dated 12.01.05 and show cause notice dated 12.01.05 on page 1 & 2, respectively, of the file, D6. Both these documents clearly show the existence of basement, ground floor and first floor in the premises, in question. On page 3 of the file D6, there is a note, dated 12.01.05, which also speaks that "basement stands converted into a regular floor and was being misused for running a restaurant". This contradicts the case of the prosecution. Ex.PW2/A2 in file D6 has been proved by the prosecution, which is a completion plan, duly signed by the then Executive Engineer, S.S. Nagi, on 05.12.2001. The plan, Ex.PW2/A2 was, therefore, well within the knowledge of the then Executive Engineer at the time of issuance of the completion certificate. Under the circumstances, how accused (A1) & (A2) can then be held guilty?
(xxxiv) Thus, all the material witnesses PW1, PW2, PW4, PW5, PW6, PW9, PW10, PW12 and PW14 along with IO PW16 and PW17, have only failed the prosecution's case. (xxxv) Defence witness, Sant Ram Malik, Supervisor, CBI vs. N.K. Grover & Ors. 139 of 154 pages 140 CBI case . No. 11/11 stated that in his presence no official team from MCD or Mr. Meena or Mr. Yadav came for inspection of the building raising doubt about the visit of MCD officials/team to the spot.
(xxxvi) DW2 R.M. Gupta, retired SE, stated that NOC/Completion certificate is issued by Executive Engineer and DC of the zone can also give the same. He also stated that the height of the building is governed from the average centre line of the adjoining road as per building bye law 2.11. That the portion below the zero level is considered as basement.
(xxxvii) Further, on receipt of notice of completion in terms of bye laws 7.6, MCD was required to inspect the work and communicate the sanction or refusal or the objection thereto in proforma Appendix H within 60 days from the receipt of the notice of completion and if nothing is communicated within this period, it shall be deemed to have been approved by the MCD for occupation. The communication admittedly was not made to the party by MCD within the said stipulated period of 60 days after receipt of the notice of the party in this case. From the CBI vs. N.K. Grover & Ors. 140 of 154 pages 141 CBI case . No. 11/11 period 27.03.2001 (when notice of completion was given by the party to MCD) till 27.05.2001, no communication was made by MCD to owner of M/s Uppal Properties Pvt. Ltd (A4) i.e. within 60 days from the date of receipt of notice which was 27.3.2001. Hence, the case of the prosecution falls flat as MCD did not bother to inspect the motel and did not find any fault with the notice of completion.
(xxxviii) That second notice i.e. Demolition Notice, which is mandatory u/s 343 DMC Act was not given to M/s Uppal Properties Pvt. Ltd. (A4) nor any demolition order was passed by the then Ex. Engineer, Supdt. Engineer or Deputy Commissioner in terms of DMC Act especially when everything was brought to their knowledge by accused (A1) & (A2), during the year 2001, hence, filing of the present charge sheet with the allegations that completion certificate was issued fraudulently was absolutely unwarranted.
(xxxix) That lay out plan was duly sanctioned for basement, ground floor and first floor and the Executive Engineer(B), S.S. Nagi had duly approved the same and CBI vs. N.K. Grover & Ors. 141 of 154 pages 142 CBI case . No. 11/11 then issued completion/ occupancy certificate on 5.12.2001. The completion certificate was, admittedly, not issued by accused (A1) or (A2) nor there was ever any complaint by the then Executive Engineer, Superintendent Engineer or Deputy Commissioner that anyone of them was falsely/fraudulently induced by accused (A1) or (A2) to approve or issue completion certificate, dated 05.12.2001. It was only after their due deliberation, the record proved by the prosecution shows, that it was issued. (XL) The evidence adduced by the CBI, no where shows that accused (A4)/ M/s Uppal Properties Pvt. Ltd. had obtained completion certificate in violation of any provisions of the DMC Act. In fact, as per by laws the reference level is the road level and if any building is to be constructed where foundation of the building is below the road level, the reference level would always be the road level. (XLi) That the record of MCD proved by the prosecution in this case shows that the completion certificate was submitted for approval and the SE raised certain objections, which were duly replied by the accused (A1), A.P. Sharma and the file was resubmitted to the SE(B) CBI vs. N.K. Grover & Ors. 142 of 154 pages 143 CBI case . No. 11/11 through Ex. Eng. (B). The SE was fully satisfied with the report of accused A.P. Sharma (A2) and approved the recommendation of the then Executive Engineer (B) for the issuance of the completion certificate. He was informed that basement was just a hall when the issue of certificate was being considered.
(XLii) The height of the building is to be taken from the road level and not from the plinth level because the motel is located in a low lying area. Accordingly, as per the bye laws, the floor below the road level has to be treated as basement. This fact is admitted by the prosecution witnesses as well as by DW 2 and is also clear from the building bye law 2.11 itself. Hence there is absolutely no breach of the relevant building bye law. (XLiii) That the view of the accused A. P. Sharma (A2) was upheld by the executive Eng. and SE and the D. C. It was further upheld by the Lt. Governor of Delhi in departmental proceedings. If the completion certificate was issued as per bye laws, there is no violation of DMC Act and no criminality arises in the matter.
CBI vs. N.K. Grover & Ors. 143 of 154 pages 144 CBI case . No. 11/11 (XLIV) That the charges against the accused A.P. Sharma (A2) in the Departmental enquiry were same on which the prosecution case in the present case is founded. In the Department enquiry accused A. P. Sharma had been exonerated by Lt. Governor and the decision was implemented also by the vigilance, as asserted by the defence and not countered by the State. This court is not bound to accept the outcome of the departmental proceedings but if the same is based on correct logic and reasons and tellies with the evidence adduced in the court by the prosecution, there is no bar to accept it. (XLV) Even if, by any stretch of imagination, two views are possible then the view based on evidence of the prosecution itself, favouring the accused in this case, is required to be adopted. It is well settled that where two view are possible, the one favourable to the accused should be adopted. (State of Madhya Pradesh Vs. Bacchudas @ Balram & Ors, AIR 2007 SC 1236 is relied upon in this regard. ) (XLVI) That the completion file was dealt with by JE to AE, SE, Ex. Eng. and D. C. That the most relevant and CBI vs. N.K. Grover & Ors. 144 of 154 pages 145 CBI case . No. 11/11 important witnesses in this case were, therefore, Superintendent Engineer, Executive Engineer and Deputy Commissioner in case the completion certificate was got issued by accused (A1) and (A2) by practising any deceptive inducement upon them. They had, admittedly, upheld the view and the report of JE, N. K. Grover (A1) and AE, A.P. Sharma (A2). The IO, however, did not examine them, which raises adverse presumption that if examined they would not have supported the prosecution case. (Case law of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and other (2001) 6 SCC 145, is relied upon). (XLVII) That criminal liability cannot be fastened upon accused (A3) for the alleged criminal liability of a company. It is a settled law that director of a company cannot be held vicariously liable for the crime of the company. That the IPC does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company, when the accused is the company. {The precedents reported as:
(i) M/s Thermax Ltd. & Ors Vs. K. M. Jhony & Ors 2011 STPL (Web) 858 SC (2011) 13 SCC 412 (420);
(ii) Aneeta Hada Vs. M/s Godfather travels & Tour, 2012 IV Ad CBI vs. N.K. Grover & Ors. 145 of 154 pages 146 CBI case . No. 11/11 (SC) 489
(iii) Maksud Saiyed Vs. State of Gujarat, (2008) 5 SCC 668
(iv) S. K. Alagh Vs. State of Uttar Pradesh, (2008) 5 SCC 662
(v)Sabitha Ramamurthy and Anr. V. R.B.S. Channabasavaradhya (2006)10 SCC 581
(vi) Keki Hormusji Gharda Vs. Mehervan Rustom Irani, (2009) 6 SCC 475,
(vii) B. Jagadeesh Vs. The Deputy Superintendent of ..... 2011 in Crl. O. P. No.6419 of 2007 refers to in this regard.} (XLVIII) The accused (A3), therefore, cannot be held guilty for the said offences under section 420 and 471 IPC for being the Director of M/s Uppal Properties Pvt. Ltd.(A4).
(XLIX) That for the conviction under section 13 (1) (d), there must be evidence on record that the accused "obtained" for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. Nothing of the sort has been proved by the prosecution in this case.
(L) That there is absolutely no evidence having been CBI vs. N.K. Grover & Ors. 146 of 154 pages 147 CBI case . No. 11/11 adduced and proved on record by the prosecution to show that the accused persons, N. K. Grover (A1) and A. P. Sharma (A2)have obtained any pecuniary advantage for themselves or for the accused (A3) and (A4) while completion certificate, dated 05.12.2001 was issued by the then Executive Engineer(B) of the MCD to (A4).
(Li) That the prosecution has not been able to show that there has been any deviation from the building bye laws relating to the construction of basement in the year 2001 to which issuance of the completion certificates relates to in this case.
(Lii) That after the approval of the sanctioned building plan and on receiving the completion certificate, the building was built. It is nowhere the case of the prosecution that the building was demolished in or around the year 20012002 and thereafter, it was rebuilt without the basement. Therefore, neither factually nor legally the alleged offences are made out.
(Liii) That the investigation of a case without registration of FIR is per se illegal and mala fide. {The case law reported CBI vs. N.K. Grover & Ors. 147 of 154 pages 148 CBI case . No. 11/11 as:
(i) Ashok Kumar Todi Vs. Kishwar Jahan & Ors, 2011 ( State of MP Vs. Mubarak Ali, AIR, 1959 SC 707);
(ii) Shashikant Vs. CBI & Ors. (Appl Cril. 1127 of 2006) refers to in this regard}.
(LIV) The present case, admittedly, is not under the sections or offences, mentioned in the FIR, Ex.PW16/A, proved in this case by the prosecution. The Charge sheet of this case admittedly disclosed different and distinct offences u/sec.
120B, 218, 420, 471 IPC and under section 13 (i) (d) & 13(2) of the PC Act, 1988. Hence, the test of sameness or theory of consequence does not apply qua the investigation of this case and the case registered vide FIR, Ex. PW 16/A. (LV) No separate FIR was registered in this case. No investigation could have been carried out without registration of FIR. Investigation without FIR means illegal investigation. {Reliance is placed on case law reported as :
(i) Amitbhai Anil Chandra Shah Vs. CBI & Anr. (2013) 6 SCC 348
(ii) L. Shankaramurthy Vs. The State, Criminal Petition No. 3213 / 2012
(iii) Khet Singh Vs. Union of India 2002 Supreme Court.
CBI vs. N.K. Grover & Ors. 148 of 154 pages 149 CBI case . No. 11/11
(iv)State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172.} (LVI) That the entire proceeding is vitiated if the IO, who is complainant, investigates the case. Unfair and illegal investigation causes prejudice.{Reliance is placed on case law reported as :
(i) Megha Singh Vs. State of Haryana, 1995 Cr. L. J 398
(ii) State of Karnataka Vs. Sheshadri Shetty & Ors., 2005 Crl. L. J.
377}.
(LVII) Senior officer of the MCD, who dealt with file, have neither been arrayed as accused nor made witnesses in the case. The law requires parity of treatment. By letting of senior officers, who accorded the approval, there is no parity of treatment and there is manifest violation of the Article 14 of the Constitution of India. {Reliance is placed on the case law reported as :
(i) State of M P Vs. Sheetla 2009 Supreme Court
(ii) Soma Chakravarty Vs. State through CBI, (2007) 5 SCC 403)}.
(LVIII) It is well settled that the departmental proceedings and criminal proceedings are altogether different and are distinct proceedings{reference can be made to case cited as "State of NCT of Delhi vs. Ajay Kumar Tyagi, Cr. Appeal CBI vs. N.K. Grover & Ors. 149 of 154 pages 150 CBI case . No. 11/11 no. 1334, decided by Hon'ble Supreme Court on 31.08.2012"}. The outcome of one proceeding is not dependent upon the outcome of the other. It is also settled that the proof that is required to sustain the criminal prosecution is much more stringent than the evidence needed to sustain the departmental proceedings. In the instant case, the allegations in the departmental proceedings did not sustain as against the accused (A2). The allegations could not be sustained in this case, either.
(LIX) Now, even if the contentions of the defence that there was no separate FIR recorded in this case and that the outcome of the departmental proceedings against accused (A2) shall wipe out the case of the prosecution are discarded or ignored, it obtains on record that still the prosecution, even otherwise, has miserably failed in proving its case, as has been discussed herein above. The prosecution witnesses one after the other have failed and demolished the case of the prosecution, in toto.
(LX) PW1, PW2, PW10, PW12 and PW 14 have clearly turned hostile to the version of the prosecution. The testimony of PW4, PW5, PW6, PW9, PW10 and other CBI vs. N.K. Grover & Ors. 150 of 154 pages 151 CBI case . No. 11/11 material witnesses, cited and examined by the prosecution do not inspire any confidence. Both the investigating officers have clearly shown lack of knowledge and competence to have investigated the present case, in accordance with law. The issue in this case was dependent upon the correct interpretation of the Building Bye Laws. No attempt was made by the Investigating Agency to ascertain what construction was in existence at site in the year 2001. No such reference was made to the technical committee which was constituted in this case, admittedly. The technical committee whatever allegedly they did was reported in the year 2007 without any reference to what existed in the year 2001. Their report qua the allegations in question, even otherwise, is neither relevant nor brings out cogent evidence. The technical committee report, Ex.PW5/H, as has been discussed herein above, is not above board being unreasoned, and having been given without measuring height of the building and without verification of all the dimensions from the plans allegedly prepared in the year 2007 by the orally hired private persons. (LXI) The completion certificate, in this case, was issued by the then Executive Engineer, S.S. Nagi on 05.12.2011. CBI vs. N.K. Grover & Ors. 151 of 154 pages 152 CBI case . No. 11/11 There is no evidence on record that at that time, the accused persons arrayed herein, entered into any conspiracy. There is no evidence that the said Executive Engineer, who issued the completion certificate, in this case, was fraudulently induced by any of the accused persons or that the then Superintendent Engineer and Deputy Commissioner, who duly approved the grant of completion certificate, in this case, were falsely induced by any of the accused persons. (LXII) There is not even an iota of evidence, having been collected or adduced by the prosecution that the superior officers were ever misled or falsely induced by accused (A1) or accused (A2) to approve and issue the completion certificate dated 5.12.2001. The best evidence, in case accused (A1) or (A2) had fraudulently induced either the Executive Engineer or Superintendent Engineer or Deputy Commissioner, could have been the examination of any one of them as a witness or in the alternative, arraying them as an accused person (to show that there was any criminal conspiracy hatched amongst the accused persons). In the absence of all this, it cannot be said that accused (A1) and accused (A2) did any illegal act or an act in illegal manner, in as much as, issuance of completion certificate, CBI vs. N.K. Grover & Ors. 152 of 154 pages 153 CBI case . No. 11/11 dated 05.12.2001, in this case, is concerned. (LXIII) The record produced by the prosecution itself clearly shows that accused (A1) and (A2) brought each and everything, including notings of PW4 & PW9 in the files, Ex.PW4/A(D4) & Ex.PW4/B(D5) to the notice of the then Executive Engineer, who in fact approved the closure of the file, containing vague notings by PW4 & PW9. That being the case, still if at all anybody could have been blamed, it was the then Executive Engineer or his superior officers, who approved and issued the completion certificate, in this case.
(LIV) It will be appropriate to make it clear that the present case has nothing to do and is unconnected with the fake or cosmetic demolition in the premises, which was carried out on the basis of the FIR, recorded under the DMC Act on 12.1.2005 by the MCD. That is the subject matter of another case, pending before another CBI court.
297. Under these circumstances operating, I find that the case of the prosecution miserably fails. Nothing has been proved as alleged against any of the accused persons to CBI vs. N.K. Grover & Ors. 153 of 154 pages 154 CBI case . No. 11/11 show that completion certificate, in this case, was issued, fraudulently, at the instance of accused (A1) to (A4) or in collusion with accused (A3) & (A4) in pursuance to any criminal conspiracy. None of the offences alleged under section 120B, 218, 420, 471 IPC and under section 13 (2) r/w section 13(1) (d) of the Prevention of Corruption Act, 1988, could be proved either by the prosecution as against any of the accused persons.
298.Thus, I am left with no other option but to hold that the prosecution has utterly failed in proving its case as against any of the accused persons.
299. As such, all the accused persons are entitled to be acquitted. Accused persons (A1), (A2), (A3) & (A4) are hereby, acquitted and are set at liberty.
300.Bail bonds of accused persons (A1), (A2), (A3) & (A4) are discharged.
301.File be consigned to record room.
Announced in the open court ( N. K. Kaushik )
on 10.09.2013 Special Judge, PC Act CBI
Dwarka Courts, New Delhi.
CBI vs. N.K. Grover & Ors. 154 of 154 pages