Delhi District Court
Cbi vs . Bhupinder Singh Bola on 6 October, 2016
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC/Reg No. 1/16 (old CC No. 39/12 & 29/11)
RCDAI2001A0044/ACB/CBI/New Delhi
U/s 13(2) r/w 13(1)(e) of Prevention of Corruption Act,
1988.
CBI Vs. Bhupinder Singh Bola
ID/CNR No. DLND010000012005
Central Bureau of Investigation
vs
Bhupinder Singh Bola (IPS AGMU:1993)
S/o Late Sh. Mohinder Singh
the then R/o 3Jai Singh Road, Parliament Street,
Police Station, Quarters, New Delhi.
(Permanent address) Village Gurditpura,
Distt. Patiala (Punjab).
Now at, D172, 3rd Floor, Saket, New Delhi.
Date of FIR : 05/07/2001.
Date of filing of chargesheet: 30/07/2005.
Date of cognizance : 03/02/2006.
Date of framing of charge : 21/11/2009.
Arguments concluded on : 29/09/2016.
Date of Judgment : 06/10/2016.
Appearances
For prosecution: Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused : Sh. Ramesh Gupta, Ld. Senior Advocate with Sh. Sunil
Sethi, Ld. Counsel for accused.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 1 of 86
JUDGMENT
1. The complaint about disproportionate assets led to registration of case against accused Bhupinder Singh Bola and his wife Smt. Praveen Bola. The investigation was conducted and accused B.S. Bola was sent to face trial.
2. Accordingly, accused Bhupinder Singh Bola has been prosecuted for the offence punishable u/s 13 (2) r/w 13 (1) (e) of The Prevention of Corruption Act, 1988 for having possessed assets worth of Rs. 16,03,216/ disproportionate to his known sources of income. The check period has been taken since 01/01/1989 till the search was made at his premises on 06/07/2001. According to prosecution, accused Bhupinder Singh Bola, IPS (AGMU:1993) was allegedly having income of Rs. 21,69,759/ and expenditure of Rs. 20,52,038/ during the check period and the assets acquired by him were having worth of Rs. 17,20,937/.
3. According to prosecution, after completion of studies, accused was selected as DANIPS Officer in the year 1978 and got elevated into IPS in May 2000. He has been alloted 1993 batch in AGMU Cadre. After joining service, accused remained posted in various capacities in Delhi Police CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 2 of 86 and Andaman Police. He was posted as Deputy Commissioner of Police, Special Cell, from April 1992 to March 1998. Prior to this, accused was posted as Additional DCP North, 10th Battalion, Delhi Police and at the time of registration of present case (i.e. 06/07/2001) accused was posted as Managing Director, Pondicherry Distilleries Ltd, Pondicherry.
4. It is further stated that accused married Ms. Praveen Kaur in May 1989 and had two sons namely Master Maninder Singh and Dweepinder Singh. Both of his sons have done their schooling from St. Columbus School, New Delhi and elder son Maninder Singh did his engineering in Electronics from CITM Faridabad in year 2002 and younger son Dweepinder Singh has done B.Com (Hons) from Hindu College in the year 2003.
5. As per investigation conducted, the assets before the check period of accused were Rs 2,31,840/; assets at the end of the check period were Rs 19,52,777/; income earned during the check period Rs 21,69,759/; expenditure incurred during the check period Rs 20,52,038/.
6. Disproportionate assets of accused B.S. Bola are computed in the following manner: CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 3 of 86
(i)Assets acquired during check period Rs. 17,20,937/
(ii)Income during check period Rs. 21,69,759/
(iii)Expenditure during check period Rs. 20,52,038/
(iv)Likely savings (ii) - (iii) Rs. 1,17,721/
(v)Disproportionate assets (i) - (iv) Rs. 16,03,216/ % of Disproportionate assets = disproportionate assets x 100 income = 73.89
7. Accused was found in possession of assets disproportionate to his known income to the tune of Rs. 16,03,216/ to which accused has failed to give any satisfactory account and accordingly he has been chargesheeted.
8. According to result of investigation, even if the income earned by Smt. Praveen Bola, wife of accused, is taken into account, the total assets of accused B.S. Bola get further enhanced by Rs. 1,96,576/ because Smt. Praveen Bola is also having assets disproportionate to her income. However, in the final report, Mrs. Praveen Bola was not sent for trial.
9. The cognizance was taken by Ld. Special Judge on 03/02/2006 on the basis of chargesheet. On 21/11/2009 order on charge was passed and accused B.S. Bola was charged for commission of an offence punishable u/s 13(2) read with Section 13(1)(e) of Prevention of Corruption Act, 1988, to which he pleaded not guilty and claimed trial.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 4 of 8610. In order to substantiate its case, prosecution has examined as many as 47 witnesses. The sum and substance of prosecution evidence is as follows: PW 1 Sh. Om Prakash, UDC, Education Department, joined the proceedings of this case on 06/07/2001, while he was working in Excise Department, Government of Delhi as Cashier. He visited the official residence of accused at 3, Jai Singh Road, New Delhi along with CBI officials and is a witness to search cum seizure memo Ex PW1/A, observation memo Ex PW1/B. The witness also proved the file (D46) Ex PW1/C containing documents. PW1 stated that entire search proceedings were conducted in his presence.
PW 2 Sh. Vijay Manchanda posted as ACP, HQ, Vigilance Branch on 12/11/2003, has proved his letter Ex. PW 2/A with enclosures pertaining to pay and allowances of accused from May 1987 to July 2001 Ex. PW 2/B (pages 1 to
12) showing gross and net salary.
PW 3 SI Puran Singh, was posted as ASI in Accounts Section in the office of DCP, North District, in the year 2004 and has proved (D26) Ex. P16 (pages 1 to 11) containing signatures of Sh. Hawa Singh, the then ACP, HQ.
PW 4 SI Tilak Raj was posted in 10th Battalion as CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 5 of 86 Accountant and Head Clerk from the year 2003 to 2006. He has proved (i) the payment of bill of Rs. 6,000/ to accused Ex. P19 and (ii) payment made by accused towards recovery of balance amount of advance against car loan, interest on car advance and interest on car advance for the month of May 1999. The witness also brought on record the pay bill register from March 1999 to February 2000 during which an amount of Rs. 1,40,000/ was paid to accused as car advance. Attested copies of pay bill registers for this period are Ex. P2 and Ex. P3.
PW 5 Sh. Amit Manohar Sinha posted in Kamla Nagar branch of LIC as Branch Manager, has deposed about details of policies number 110039443 and 110041440 issued in the name of accused B.S. Bola and has further given details about the premium payments and the maturity payments.
PW 6 Sh. Rajeev Kumar posted in Model Town branch of LIC as Assistant Branch Manager, has deposed about details of policies number 120520238 and 113103251 issued in the name of accused B.S. Bola and policies number 110331475 and 120520615 issued in the name of Mrs. Praveen Bola and has further given details about the premium payments and maturity payments.
PW 7 Sh. Om Parkash Malhotra, Jeweler by CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 6 of 86 profession, has prepared the valuation report Ex. PW 7/A of the jewelery found at the residence of Smt. Praveen Bola wife of accused B.S. Bola on the basis of rate of gold and diamond as on 06/07/2001. PW 7 has also prepared another valuation report Ex. PW 7/B of jewelery found in locker no. 292 (in the name of accused B.S. Bola) of Punjab and Sind Bank, Bhai Veer Singh Sadan Marg, Gole Market, New Delhi, on the basis of rate of gold as on 07/07/2001.
PW 8 Sh. Sameul, was posted as Daftari in the office of MLO, Transport Authority and has proved seizure memo Ex. PW 8/A through which he had handed over original file Ex. PW 8/B of vehicle number DDQ4843 (Maruti Car). This car was transferred in the name of accused B.S. Bola on 15/12/1989.
PW 9 Sh. O.P. Verma, Assistant Manager, SBI, has proved statements of account (D14) containing the details of bank accounts of different persons including accused and his family members.
PW 10 Inspector Raja Chatterjee was posted as SI in ACB, New Delhi. He has proved search cum seizure memo Ex. PW 10/A with respect to the proceedings conducted at Pondicherry residence of accused B.S. Bola.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 7 of 86PW 11 Sh. O.S. Ashok, Under Secretary, Ministry of Home Affairs, North Block, New Delhi, has proved sanction order of accused B.S. Bola Ex. PW 11/A by identifying the signatures of sanctioning authority. The original file is Ex. C1.
PW 12 Sh. Baldev Raj Gogia, Administrative Officer in SBI Funds Management, has deposed about the information with respect to the investment in the name of Smt. Praveen Bola wife of accused B.S. Bola contained in (D25) Ex. PW 12/A. PW 13 Sh. Ramesh Chandra Malhotra, Head Clerk, MCD, has proved the property tax file (D16) Ex. PW 13/A maintained in the MCD department with respect to flat no. C9F, Delhi Police Employees Group Housing Society Limited, Mayur Vihar, PhaseI, Delhi, in the name of accused. The witness deposed about seizure memo of file Ex. PW 13/B, assessment order Ex. PW 13/C and letter dated 08/07/2003 Ex. PW 13/D containing details of house tax paid by assessee accused B.S. Bola for the period 199394 to 200203.
PW 14 Sh. Arnab Bandyodhyay deposed that he was residing as tenant in the flat no. C9F, Delhi Police Apartments. He resided there for about three years and the initial rent was Rs. 6,500/ per month but later increased to Rs.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 8 of 867,500/ per month. The rent used to be paid by witness through cheque.
PW 15 Sh. R.K. Gupta, owner of firm M/s Ashoka Hardware Stores, has proved D49 showing sale of one jet pump worth Rs. 4,600/ vide receipt Ex. PW 15/A. PW 16 S. Onkar Singh was carrying on business of sale and purchase of motor vehicles on commission basis and deposed that he received Rs. 600/ in cash from accused B.S. Bola as commission on account of sale of Maruti Car bearing no. DDQ4843. The car was sold for a consideration of Rs. 40,000/, as per the witness.
PW 17 Smt. Anita Saini, has been running PCO shop at 17A/47, WEA Karol Bagh, New Delhi with two MTNL telephones installed therein. She proved receipts of the telephone calls made from her PCO vide Ex. PW 17/A and Ex. PW 17/B. PW 18 Dr. N.S. Mandhata, has proved (D70) Ex. PW 18/A bearing signatures of Dr. D.S. Rajesh with enclosures Ex. PW 18/A1 to Ex. PW 18/A3 containing probable expenditure incurred on maintenance of dogs.
PW 19 Sh. Sudhir Chandra Saxena was posted as JE, PWD from years 1989 to 1995 Parliament Street. The CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 9 of 86 witness stated that flat no. 3, Jai Singh Road, was occupied by accused, the then DCP in Delhi Police and proved the letter (D
68) Ex. PW 19/A containing details of civil work done in the flat.
PW 20 Sh. Ashok Kumar Aggarwal, Assistant Engineer, PWD proved the letter (D69) Ex. PW 20/A dated 23/08/2003 bearing signatures of Mr. S.L.S. Yadav and the report of the witness Ex. PW 20/B regarding regular annual repair & maintenance work in flat no. 3, Jai Singh Road, New Delhi.
PW 21 Sh. Anil Kumar Rathore was posted as Assistant Chemical Examiner with the office of Commissioner Excise Department in July 2001. The witness joined the search proceedings at the farm house situated at Bamraoli, Najafgarh Road, New Delhi and proved search cum seizure memo and observation memo Ex. PW 21/A and Ex. PW 21/B. PW 22 Sh. Prabhu Dayal working with Delhi Transport Corporation (DTC) proved the letter Ex. PW 22/A containing rate of tickets for travelling in DelhiFaridabad route by DTC bus.
PW 23 Sh. B.R. Sapra, Civil Engineer, has proved the receipt of Rs. 3,500/ from Smt. Praveen Kaur for preparing CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 10 of 86 farm house plan Ex. PW 23/A. PW 24 Sh. Shiv Kumar Sharma working with M/s Saya Automobiles Limited has deposed about the Maruti Car purchased by Smt. Praveen Bola (wife of accused) and the cost of car was Rs. 5,27,743/. Margin money of Rs. 1,90,000/ was contributed by the buyer and loan of Rs. 3,37,743/ was advanced. The witness has also given details of 33 installments paid by buyer from 19/06/1997 to 09/03/2000 vide statement Ex. PW 24/B. PW 25 S. Gurdev Singh, has been the taxi driver and he purchased Ambassador Car from Smt. Praveen Bola(wife of accused).
PW26 Sh. Vivek Kumar Aggarwal, Accounts Manager in Vibes Health Care Ltd., deposed about the slimming package of Ms. Praveen Bola and proved his letter Ex PW26/A. PW27 Sh. Jasbir Singh was posted as Manager, with Gole Market Branch of Punjab & Sind Bank in August 2003. The witness has proved his letter dated 18/07/2003 (D
15) Ex PW27/A along with documents handed over along with letter.
PW28 Sh. Jai Kishore Yadav employed as Deputy Finance Officer in BSES has deposed about his letter issued to CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 11 of 86 CBI giving details of payments on account of energy consumption against the electricity connection mentioned therein Ex PW28/A in the name of Smt. Praveen Kaur Bola (wife of accused) at Kh. No. 22/16/1, Bijwasan, Delhi.
PW29 Sh. Om Prakash Mehta was working with M/s Rajiv Motors as Section Officer. He proved the document Ex PW29/A (colly) containing receipt of Rs. 2,56,750/ dated 09/03/1995 regarding amount of sale of car in the name of Praveen Kaur.
PW30 Sh. Narrender Pal working with DVB as Section Officer has proved the expenditure on account of electricity charges in connection with electricity connection no. K6041388122 in the name of accused B.S. Bola, Ex PW30/A. PW31 Sh. Vivekanand Jaiswal, while being Assistant Engineer in DDA joined the investigation of the present case with IO N.K. Jain. He visited the farmhouse at Bijwasan of accused B.S Bola along with IO and in his presence valuation of articles found at the farmhouse were done after discussion with accused and his wife. The witness proved observation memo Ex PW31/A dated 13/09/2003 bearing his signatures. Each and every article were not valued since some of the articles were gifted, as stated.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 12 of 86PW32 Sh. Ashok Kumar, Proprietor of M/s TV House, has proved the cash memo dated 09/05/1999 through which refrigerator was sold to accused for Rs. 20,000/ Ex PW32/A. PW33 Sh. Amit Vikram Bhardwaj, Inspector CBI submitted the complaint on the basis of which the present RC was registered. He proved complaint dated 05/07/2001, Ex PW33/A. PW34 Sh. Balvinder Singh @ Kaka, businessman, has been running manufacturing unit of jeans at B6/1, Lal Quarters, Krishna Nagar, Delhi. He used to pay monthly rent of Rs 6,000/ to Ms. Praveen Bola since 1996 till 2001 or 2002 at the instance of Mr. Sabharwal, who was resident of America and was owner of the premises. The witness stated that Ms. Praveen Bola used to deliver the rent to owner Mr. Sabharwal.
PW35 Sh. Harjinder Singh has been in the business of car carriers and steel works. He deposed about steel work done in the flat of B.S. Bola in Delhi Police Society, Patparganj and receiving of Rs. 14,000/ to Rs. 15,500/ on this account in cash from accused B.S. Bola. He also proved the documents mark P35/1 dated 29/09/2003.
PW 36 Sh. Swaran Singh, businessman, deposed CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 13 of 86 that he started factory of crockery in the name and style of Heritage Ceramics Private Limited around year 1990 or 1991 and he had taken loan of Rs. 1,00,000/ through cheque from accused B.S. Bola without interest. He returned the said amount after 34 years. The witness also stated that he had given loan of about Rs. 60,000/ or Rs. 70,000/ to accused B.S. Bola around year 199596 without interest but the same has not been received back.
PW 37 Sh. Shyam Sunder Mittal is the joint purchaser (to the extent of onethird) of property purchased through sale deed Ex. P59 from Smt. Praveen Kaur.
PW 38 Sh. Rakesh Dutt was working as Junior Engineer (Technical) with CBI, ACB. He inspected the properties situated at Jai Singh Road and other flat at East Delhi in a society and prepared the valuation report Ex. PW 38/A. He has also given bifurcations about the works in the property vide Mark P38/1.
PW 39 Sh. Lok Nath Rai was working as LDC in the office of Sub RegistrarII, Janakpuri, New Delhi from July 2001 till November 2003. He has proved the letter dated 14/08/2002 signed by Sh. P.K. Dabas, SRII Ex. PW 39/A. The certified copy of sale deed dated 24/01/1997 was given vide this letter.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 14 of 86PW 40 Sh. Anil Agarwal, Taxation Advisor, deposed that he used to look after the accounts of M/s Ranu Enterprises partnership concern having three partners namely Mr. Arvinder Singh Lovely having 50% share, Mrs. Praveen Bola having 30% share and Mr. Harbhajan Singh having 20% share. He also maintained books of accounts of M/s Fairy Fabs, which was initially having three partners including Mrs. Praveen Bola.
PW 41 Sh. Narayan Kumar Iyer was working with M/s Apparel Export Promotion Council till his retirement in January 2012. He denied having dealt with file Ex. P73.
PW 42 Sh. Shashi Mahajan Managing Director of Trip Travels Private Limited deposed that he knows accused B.S. Bola being distinct relative of one of the Director Mr. Dharampal. Accused B.S. Bola purchased foreign exchange as well as air tickets for international journeys but the witness could not recollect whether accused made purchases for himself or for others. The witness identified cash memo dated 24/05/2001 in the name of Mrs. Praveen Kaur Bola Mark P 42/1.
PW 43 Sh. P.K. Arora was having dry cleaner shop in Krishna Nagar, Delhi and deposed that accused B.S. Bola sometimes used to come in the building where his shop was CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 15 of 86 situated as wife of accused was also having her office in said building. PW 43 was not knowing about the business of wife of accused.
PW 44 Sh. William has been examined as expert witness. The witness deposed that he was running car workshop in the name and style of Shubham Mortors. The witness has given the details of minimum mileage average pertaining to Tata Indica car consuming Diesel, Maruti Esteem Car consuming Petrol and Maturi 800 car consuming petrol in the year 2003.
PW 45 Sh. N.K. Jain, Inspector CBI was entrusted with the investigation of the present case and he has examined the facts of the case as contained in the FIR and also documents relating to income, expenditure and assets of accused and his wife. He deposed about documents received by him during investigation and also about the documents prepared by him such as details of PPF account, seizure memos, production cum seizure memos, observation memos in connection with farm house of accused and various lockers and documents received during the investigation.
PW 46 Sh. Mrunal Narayan Kamat, General Manager in IDBI Bank, has proved his letter Ex. PW 45/A dated CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 16 of 86 23/07/2003 giving particulars of IDBI Flexi Bond5 in the name of accused in respect of which Rs. 10,000/ was paid and date of purchase was 11/02/1999. Rs. 2,500/ was interest to said investor in the year 2000 and 2001. The witness also stated about the letter dated 06/08/2013 Ex. P50(1) providing the details to CBI with respect to bonds detailed therein.
PW 47 Sh. P. Balachandran Additional SP CBI, has proved the FIR of the case bearing signatures of SP Sh. Ramashastri by identifying his signatures. The FIR is proved as Ex. PW 47/A. He has conducted searches after the registration of the FIR at the house of accused B.S. Bola at Jai Singh Road, New Delhi along with independent witnesses and CBI officials. The witness deposed about the seizure memo Ex. PW 1/A. The witness also got valued the jewelery found in the house of accused and also deposed about the documents recovered from the search. The valuation report is Ex. PW 7/B, production cum seizure memo dated 06/07/2001 Ex. PW 40/A. The witness also deposed about the authorization with respect to the search at residential premises of accused at Pondicherry Ex. PW 47/B. He also deposed about recording of statements of witnesses and receiving of documents during the investigation and identified the accused.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 17 of 8611. The above mentioned witnesses have also been crossexamined on behalf of accused / defence.
12. After the closure of evidence, statement of accused was recorded u/s 313 Cr. PC, wherein entire incriminating evidence has been put across in question answer form to the accused. The accused in his response has disputed the correctness of complaint filed by complainant Amit Vikram Bhardwaj. With respect to sanction, it is pleaded that same has been granted on the basis of wrong calculations and without any application of mind. The details of assets before check period, assets at the end of check period, the income earned during the check period and expenditure incurred during the check period have been specifically put to the accused to which the accused has given separate and specific explanations. Although, some of the facts and calculations have been admitted but substantially there has been denial with respect to the manner of calculations and attributing the expenditure and assets to the accused. It is pleaded that wife of the accused namely Ms. Praveen Bola, has also been working and earning and therefore, it is not correct to attribute all the expenses to the accused. With respect to observation memo and non verifiable expenses, the accused has pleaded that search was CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 18 of 86 conducted at his residence at Jai Singh Road, Delhi in his absence and IO has not consulted him before taking the cost of household articles and also incorrectly attributed the articles exclusively to him. The representation of the accused was also not properly considered. The wife and mother of the accused were also having independent sources of income but no asset has been attributed to them. The accused has also tried to explain recovery of cash amount during the search by attributing the same to his wife. According to accused, non verifiable expenses have been incorrectly taken by IO in violation of the guidelines for investigation of disproportionate assets case. Accused claims that his wife was working and earning more than him and therefore, non verifiable expenses should have been taken from her income.
13. The accused has also given explanations to claim additions into his income on account of rental and agricultural income and also that the income of his spouse is to be included. The accused further claims that substantial amount of his income as well as the income of his wife has been concealed and not taken into account by the IO, although, same has been reflected in the income tax returns. The observation memo has been arbitrarily prepared and further accused claims innocence CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 19 of 86 and false implication.
14. In defence accused examined as many as 9 witnesses.
DW 1 Sh. Avtar Sing Pabla deposed that accused wife is first cousin of his wife. The witness has been resident of England and used to visit India every year. The witness has proved joint affidavit submitted in the year 2003 bearing signatures of his wife Ex. PW 1/A with postal envelope Ex. PW 1/B. The witness deposed that in the year 2001, he had to receive Rs. 2,00,000/ as advance money with respect to property no. 124, Shankar Road and the same was received by the wife of accused in the manner Rs. 50,000/ in cash and Rs. 1,50,000/ by way of draft. The receipt issued to the buyer through FAX is Mark DW 1/DB. During crossexamination, the witness admitted that for the first time he is disclosing the aforesaid facts. He could not produce the sale deed showing the property transaction. The witness denied the suggestion that he is deposing falsely.
DW 2 Sh. Aftab Ahmad Ramino deposed that he has been tenant in the house of the accused C9/F, Delhi Police Colony, Mayur Vihar, Delhi between year 199095 @ Rs. 2,000/ per month. During crossexamination, witness admitted CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 20 of 86 that no lease deed or any other document was executed. The witness could not show any document that he was resident of the said flat during period 199095. He denied the suggestion that he was only caretaker of the property or was never the tenant or that never paid any rent to the accused. The witness stated that it was the society flat and he was paying electricity and water charges directly to the authorities.
DW 3 Ms. Pooja Joshi has been the business partner of the wife of the accused and they started firm under the name and style of Fairy Fabs. She continued with the business till year 1993 only. During crossexamination, the witness could not give the details of opening or closing of the account of Fairy Fabs. She denied the suggestion to be deposing falsely to favour the accused.
DW 4 Ms. Inderjit Saini is the relative of the accused. She also stated that she started partnership firm under the name and style Fairy Fabs with the wife of the accused and the same continued till March 1993 when it was dissolved. The witness also stated that she gifted some household articles to Ms. Praveen Bola, while they migrated to Canada in the year 1998. The witness has been crossexamined during which she admitted that she cannot produce any documentary proof about CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 21 of 86 the firm Fairy Fabs nor she could produce the details of the items allegedly gifted. The witness denied to be deposing falsely.
DW 5 Sh. Raghubir Singh deposed that he has given two Air conditioners on hire basis to Ms. Praveen Bola for the period of one year @ Rs. 3,600/ per air conditioner per annum. He produced cash book of the bill no. 360 dated 06/04/2001 Ex. PW 5/A. DW 6 Sh. Maninder Singh Bola is the son of the accused and he deposed that he has been into cricket at National and International level and represented Indian Schools Cricket Team in Lombard Cricket Worldcup in year 1996 held in London, England. He was paid 300 pounds in cash by Indian High Commission and also received 300 pounds from School Games Federation of India. The certificate in this regard is Mark DW 6/A. DW 6 stated that he has spent all this amount on himself by purchasing shoes, clothes, watch, accessories etc. He also received 300 Dirham at Dubai and also did some purchasing from this money from Dubai. On coming to India, he was paid Rs. 40,000/ in cash and certificate is proved Mark DW 6/B. This money he had given to his father. He also received some cash in Mumbai but does not remember the CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 22 of 86 details. The witness further deposed that he was receiving monthly scholarship from Indian Airlines Sports Control Board as per Ex. DW 6/C. DW 6 further stated that he used to receive clothings, shoes, sports kit relating to cricket when he used to attend cricket camps at different places in India and proved the relevant certificates Ex. DW 6/D and Ex. DW 6/E. He also used to receive goods like cricket kit, shoes, cloths, watches, etc from many relatives in USA and Canada. DW 6 also proved the certificates with respect to his younger brother Sh. Dweepinder Singh Bola (since deceased) Ex. DW 6/F, Ex. DW 6/G, Ex. DW 6/H and Ex. DW 6/J. The witness has been crossexamined.
DW 7 Sh. Gursharan Singh deposed that he had a deal with Smt. Inderjeet Pabla for sale of shop no. 124, New Rajinder Nagar Market. He made a draft of Rs. 1,50,000/ and cash amount of Rs. 50,000/ and delivered the same to the wife of the accused Smt. Praveen Bola in June 2001. The deal was finalized by Mr. Chander Pal but subsequently same was canceled. The witness confirmed that he received the FAX message Ex. DW 7/A. During crossexamination the witness stated that he cannot produce the copy of bank draft. No agreement was executed between the parties. He denied the suggestion that no FAX was received as stated by him.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 23 of 86DW 8 Sh. Harminder Sabharwal deposed that his father was practicing as CA and was having the house at B6/1, Krishna Nagar, Lal Quarters, Delhi. His family left for USA in December 1991 and house hold articles were left as it is and goods were given to Mrs. Bola. The goods were instructed to be taken out by Mrs. Bola and second floor of house at Krishna Nagar was given on rent. The rent was taken by Mrs. Bola, which was Rs. 6,000/ per month. The house hold articles included clothes, furniture, electronics, kitchen articles and other general household articles, which were also kept with Mrs. Bola including some articles in the shop. The witness identified his signatures of his father on Annexure N Mark DW 8/A (colly). During crossexamination, the witness stated that facts narrated by him were told to him by his father. He went to America in July 1996 and returned in 2008. The witness has no knowledge whether his father ever claimed the articles. The father of DW 8 is still alive. The witness admitted that he has no personal knowledge of the facts narrated by him but denied the suggestion that he has given the statement to help the accused.
Accused B.S. Bola has examined himself under Section 315 Cr.P.C as DW9. In his evidence, he has tendered his representation dated 06/11/2003 having explanation with CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 24 of 86 respect to observation memo and further accused has relied upon the statements dated 12/06/2003, 14/08/2003 and 12/09/2003 recorded by IO N.K. Jain, during the investigation Ex., DW 9/26 to Ex. DW 9/28. The accused has further tendered the statement of his wife dated 11/06/2003 Ex. DW 9/29, affidavits of his relatives as well as relatives of his wife Ex. DW 9/1 to DW 9/16, list of articles given at the time of marriage in year 1979 Ex. DW 9/17, rent deed of flat no. C9/F, Delhi Police CGHS, Mayur Vihar, Delhi Ex. DW 9/18, carbon copy of gas connection receipts Ex. DW 9/19 and Ex. DW 9/20, preliminary enquiry dated 01/06/1999 Ex. DW 9/21, letter dated 16/07/2015 with respect to locker no. 341 Ex. DW 9/22, receipt dated 08/12/1981 about purchase of flat Ex. DW 9/23 and Ex. DW9/24, experience certificate dated 24/12/1975 with regard to service period of accused Ex. DW 9/25, representation Ex. DW 9/30. During crossexamination, accused stated that he and his wife requested their relatives and friends to sent the affidavits, which are Ex. DW 9/1 to DW 9/16. The department may have been intimated about the transactions mentioned in the affidavits, if the same was required. The accused could not produce any document regarding intimation of the transactions. The accused further stated that the gifts given to his wife and CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 25 of 86 children were not falling in the category, whereby permission was required as per CCS Rules. The accused denied the suggestion that his wife was showing her false business to legalize the ill gotten money. The accused admitted that he has been taking medical reimbursement of his wife from his office. The accused also denied the suggestion that amounts mentioned in the affidavits require prior permission as per CCS Rules. The accused further denied the suggestion that he produced false affidavits from the relatives and friends in order to put forth false claims. The farm house at Bijwasan, Delhi, has been in the name of the wife of the accused. The suggestion is denied that valuation of the farm house has been done and report is Mark DW9/PA. It is further denied that valuation of the property was calculated at Rs. 84,00,000/ (Rs. Eighty Four Lakhs Only). According to accused, valuation of this property has been exaggerated in the FIR. The accused has admitted that he has not given correct information through letter Ex. PW 13/A. The accused could not recollect as to whether the information given in the affidavits Ex. DW 9/PC is correct or not. The accused denied that affidavits Ex. DW 9/1 and Ex. DW 9/2 are manipulated and false documents or that no transaction vide Ex. DW 9/3 to Ex. DW 9/4 had taken place. He also denied CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 26 of 86 the suggestion that Ex. DW 9/5 to Ex. DW 9/16 are manipulated and false documents. The accused also denied the suggestion to be deposing falsely.
15. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI, Sh. Ramesh Gupta Ld. Senior Advocate with Sh. Sunil Sethi, Ld. Counsel for accused and examined the records.
Sanction:
16. The sanction order dated 29/07/2005 Ex PW 11/A has been challenged on the ground that same is invalid and defective due to non application of mind since entire material was not submitted particularly the documents, statements of witnesses and draft chargesheet. The sanction has been granted in a mechanical manner merely on the basis of SP report as also the draft sanction order was enclosed and has been signed in the same fashion. Ld. Defence Counsel has relied upon the following judgments in support of his arguments:
(i) State of Karnataka vs Ameerjan, (2008)1 SCC (Cri) 130;
(ii) Mansukhlal Vithaldas Chauhan vs State of Gujarat, 1997 SCC (Cri) 1120;
(iii) Ashok Kumar Aggarwal vs Central Bureau of Investigation, (2014) 14 SCC 295;
(iv) Ashok Kumar Aggarwal vs CBI & Others, 2016 Cri. L.J. CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 27 of 86 2410, Delhi High Court and
(v) Dhirajlal Chatrabhuj Ratnagrahi vs State of Maharashtra.
17. On the other hand, it is argued by Ld. Senior PP that sanction is valid and legal and statements of assets, expenditure and income of the accused were duly submitted for consideration. The sanction order itself shows that entire material was examined by the sanctioning authority before according sanction. Ld. Senior PP has relied upon the following judgments in support of his arguments.
(a) The State of Rajasthan vs Tarachand Jain, (1974) 3 SCC 72;
(b) State of Tamil Nadu vs Damodaran, 1993 Supp (1) SCC 221 and
(c) State of Maharashtra vs Ishwar Piraji Kalpatri and Others; (1996) 1 SCC 542.
18. In State of Maharashtra through CBI V Mahesh G. Jain (2013) 8 SCC 119, Hon'ble Supreme Court culled out the principles of law relating to sanction. The relevant portion of the said judgment is reproduced hereunder:
"..14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 28 of 86 before him and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. 14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
19. It has been held in the case of The State of Rajasthan vs Tarachand Jain (Supra) that, "....
17. The fact that the Chief Minister was competent to accord sanction for the prosecution of the respondent in accordance with the rules of Business has not been disputed before us but it has been urged that the prosecution has failed to prove that the Chief Minister accorded his sanction after applying his mind to the facts of this case So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 29 of 86 obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had been given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.
....."
20. I have perused the sanction order. The sanction order is detailed order providing the statements of assets, income and disproportionate assets and other facts considered by investigating authority to arrive at the conclusion. The sanction order for prosecution itself shows that the authority had applied its mind before conveying the sanction and material was placed before it.
21. The sanctioning authority could not be examined in this regard but original file was summoned and retained on record. On examining the original sanction file Ex. C1, I am of the opinion that there was sufficient material with the sanctioning authority to decide about the sanction. So far as the enclosed draft sanction order is concerned, this will not affect legality of the sanction order Ex. PW 11/A. (relied upon State of Tamil Nadu vs Damodaran (Supra)).
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 30 of 8622. Before adverting to the facts of the present case, it would be appropriate to consider the relevant provisions of Section 13(1)(e) of Prevention of Corruption Act, which reads as under: "13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct xxx xxx xxx
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."
23. To substantiate a charge under section 13(1)(e) of the Act, the prosecution must prove the essential ingredients namely (i) the prosecution must establish that accused is a public servant; (ii) the nature and extent of the pecuniary resources or property which were found in his possession; (iii) it must be proved that as to what were his known sources of income i.e. known to the prosecution; (iv) it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the said ingredients are satisfactorily established the offence under Section 13(1)(e) of the Act is complete, CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 31 of 86 unless the accused is able to account for such resources or property. The initial burden is on the prosecution to establish that the accused had acquired the property disproportionate to his known sources of income. It is only after the prosecution has proved the requisite ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts on to the accused.
24. In the instant case, the check period is w.e.f 01/01/1989 to 06/07/2001.
25. Prosecution has furnished the following statements to bring out the case of disproportionate assets against accused: Statement A: Assets before check period, Statement B: Assets at the end of check period, Statement C: Income obtained during the check period and Statement D: Expenditure incurred during check period.
26. The statements relied upon by the prosecution are annexed with the sanction order and calculations has been reproduced in the chargesheet also. The court is required to consider the correctness of facts and figures as stated in the statements (A, B, C and D mentioned above) to come to the just CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 32 of 86 conclusion of the case.
27. First of all taking the statement A, it is having 4 items/entries as follows: A. Assets before the Check Period in Rs.
1 Cost of Flat C9/F, Delhi Police Housing Society, Mayur 159100 Vihar.
2 Balance in SBI, Rail Bhawan Saving Bank A/c No. 33243 11917 held in the name of Sh. B.S. Bola on 01.01.1989 3 Balance in SB A/c No. 2719 of Sh. B.S. Bola in Punjab and 10023 Sind Bank, Gole Market on 01.01.1989 4 House Hold articles observed on the day of search at 3Jai 50800 Singh Road, Parliament Street, New Delhi Total 231840 Item No. 1: It is valued at Rs. 1,59,100/, however, on perusal of the document Ex. P25 (D38) also admitted by the accused, it is found that an amount of Rs. 1,59,100/ was paid up to 10/03/1988 (before the start of check period) and the said flat has been allotted to accused B.S. Bola vide Ex. P25 (4).
Item No. 2: The amount of Rs. 11,917/ is proved with Ex. 9/A (D
14) and same is also admitted by accused in his statement u/s 313 Cr. PC.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 33 of 86Item No. 3: The amount of Rs. 10,023/ is proved with Ex. P40 (1) (D58) and same is also admitted by accused in his statement u/s 313 Cr. PC.
Item No. 4: The household articles found during the search conducted at 3Jai Singh Road, Parliament Street, New Delhi, have been valued at Rs. 50,800/ as acquired before the check period. The cost of household articles found during the search have been valued at Rs. 10,07,850/ as having acquired during the check period. After deducting cost of fridge (separately taken in expenditure) and also for clothings Rs. 50,000/, the cost of household articles is taken as 9,37,850/. In this regard, the observation memo Ex. PW 1/B (D75) is prepared and same was signed by Sh. P. Balachandran, Additional SP CBI, independent witnesses and also by Smt. Praveen Bola wife of accused. During his statement recorded u/s 313 Cr. PC, the accused admitted about the search and stated that he was not present at that time and no consultation was conducted by investigating officer with him with respect to the cost of articles or whether same could be attributed to him only. According to accused, his representation was also not considered on this CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 34 of 86 account and the value of articles taken at Rs. 9,37,850/ is exaggerated. The wife and mother of accused were also staying in the said house and they both were having independent sources of income but no asset was attributed to them.
On examining the record, I find that accused has not given any specific evidence about the articles and value thereof which existed prior to the check period. By the representation Ex. DW 9/30 submitted by accused, it is claimed that approximately 89 items have been pertaining to the period prior to the start of check period (year 1989) but no material is brought on record on this aspect. The observation memo Ex. PW 1/B was recorded in consultation with wife of accused at that time and she had put her signatures on the same without any objection. No claim has ever been put forth by wife of accused that articles pertaining to pre check period have not been correctly included in the observation memo. The benefit of the articles existing before check period and articles which were mentioned as gifted were given after noting the remark against each item.
28. On examining the oral and documentary evidence, I find no material discrepancies in the observation memo and therefore the prosecution version is accepted on this count, CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 35 of 86 although, some benefit can be given to accused, while calculating his assets on the basis of observation memo. Therefore, amount of Rs. 50,800/ is taken and statement A is found to be correct.
29. Now coming to the Statement B, it is having 13 items/entries as follows: B. Assets at the end of Check period in Rs.
1 Cost of Tata Indica Car purchased by Sh. B.S. Bola in 1999 279388 2 Approximate value of the household articles observed 1007850 during the search operations 3 Cost of flat C9/F, Delhi Police Housing Society, Mayur 210600 Vihar 4 Cost of Aiwa music system observed at Pondicherry 9000 residence of Mr. Bola during search on 06.07.2001 5 Balance in SBI Rail Bhawan, SB A/c No. 33243 held in the 59834 name of Sh. B.S. Bola on 06.07.2001 6 Balance in SBI Rail Bhawan HUF A/c No. 14066 held in the 3423 name of Sh. Mohinder Singh & Sons and Karta of the account is B.S. Bola as on 06.07.2001 7 Balance in SBI Rail Bhawan PPF A/c No. 900946 of Sh. B.S. 48079 Bola on 06.07.2001 8 Balance in SB A/c No. 2719 of Sh. B.S. Bola in Punjab & 47403 Sind Bank, Gole Market on 25.06.2001 9 Balance in SB, Hyderabad Saving A/c No. 543 of Sh. B.S. 49200 Bola on 06.07.2001 10 Agriculture Land measuring 32 Karnal 2 Marla purchased 90000 by Sh. B.S. Bola in VillageChahar Majra, Tehsil Kharar, Distt. Ropar, Punjab on 16.02.1989 CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 36 of 86 11 Investment made in IDBI bonds on 11.02.1999 10000 12 Investement made in ICICI bonds on 24.03.2000 10000 13 Cash observed during the search on 06.07.2001 at Delhi 128000 and Pondicherry Total 1952777 Item No. 1: The cost of Indica car i.e. Rs. 2,79,388/ has been proved through Ex. P26 (D39) and also stands admitted by accused in his statement recorded u/s 313 Cr. PC.
Item No. 2: The facts and evidence regarding observation memo whereby an amount of Rs. 10,07,850/ has been attributed to the accused are that on 06/07/2001 search was made at the official residence of accused i.e. at 3, Jai Singh Road, New Delhi and the list of the articles found during the search was prepared vide Ex. PW 1/B. PW 1 Sh. Om Prakash stated that valuation and year of acquisition recorded in Ex. PW 1/B were on the basis of the answers given by the lady present. i.e. wife of the accused. The entire search proceedings were conducted in his presence as well in the presence of other witnesses. PW 1 identified his signatures on Ex. PW 1/A i.e. search cum seizure memo as well as on observation memo Ex. PW 1/B. During crossexamination, witness denied that he has wrongly CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 37 of 86 identified Ex. PW 1/A as the document prepared during the search proceedings and also denied that he signed Ex. PW 1/A on 04/08/2004 in CBI office. The witness specifically denied the suggestion that he falsely deposed about preparation and contents of Ex. PW 1/A. IO PW 45 Inspector N.K. Jain, has also proved the observation memo in his testimony and has been thoroughly crossexamined on the issue of articles shown in the memo as well as the prices mentioned thereof and the year of their acquisition. PW 45 admitted that he was not present at the time search was made on 06/07/2001 at the official residence of accused. The price of articles as shown in the memo are according to the prices stated by the wife of accused, who was present at the relevant time. It is admitted that accused has given his explanation during the investigation on the observation memo and further that cost of certain items mentioned in the memo could not be verified. The witness denied that he has wrongly shown the articles worth Rs. 50,800/ only as acquired before the check period or that household articles pertaining to pre check period were worth Rs. 34 lakhs which included marriage articles and articles purchased during the service from April 1978 to December CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 38 of 86 1988. The witness also denied that clothings should have been included in the non verifiable expenditure and further that the articles belonging to Sh. P.S. Shabarwal have been wrongly included in the observation memo. According to PW 45, no such information was given by the wife of the accused at the time of search and no such information was given by accused at any point of time to his office. It is admitted that affidavit of Sh. P.S. Sabharwal was annexed by the accused with his representation. PW 45 admitted that as per the circular dated 29/11/2001 (Ex. PW 45/DA), the clothings are included in non verifiable expenditure but further explained that full benefit of entire clothings was not given as only the benefit of normal clothings should be given because cost of clothings were too high in this case and it was decided by competent authority not to give the said benefit. It is admitted that calculation of clothings have been added in the assets of the accused. PW 45 stated that observation memo with respect to farm house was prepared by him and benefit is given as claimed. However, with respect to the cost of items in the observation memo Ex. PW 1/B, the claims of the accused were not cross checked as they were considered after thought. In the representation, the items claimed as gifts by relatives living abroad and entrusted articles CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 39 of 86 were considered and found to be an after thought. It is denied that value of the items of pre check period was much higher then the same shown in the observation memo. The same is based on the information provided by the wife of the accused. No such fact has been mentioned even in the income tax returns by the wife of the accused. PW 45 was further questioned about no requirement to disclose to the department about receiving of gifts by the government servant up to Rs. 7,000/ but the witness denied and stated that limit was either Rs. 1,000/ or Rs. 1,500/ at the relevant time. The witness further denied that gifts given to the wife or children of accused were not required to be included in such information. PW 45 further admitted that he has not given the benefit of the cash of Rs. 50,000/ recovered on the basis of property sale by Mrs. Pabla to Sh. Gursharan as no pay order of Rs. 1,50,000/ was recovered, although, Sh. Gursharan Singh was examined and accepted having given Rs. 50,000/ in cash to the wife of the accused but no proof was produced and the property / subject matter of sale was not owned by Sh. Gursharan Singh. IO admitted that cost of household articles as per observation memo comes to Rs. 9,37,850/ after deducting Rs. 50,000/ for clothings and Rs. 20,000/ for the cost of fridge. He also denied CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 40 of 86 that accused was not asked about the ownership of the articles mentioned in the observation memo and stated that accused could not satisfactorily explain the ownership of the articles. He further denied the suggestion that value of books taken as Rs. 72,000/ in the observation memo is incorrect. At the time of search, the books were randomly checked and cost was totalled and accordingly the same was arrived at by the officer conducting the search and with the help of the witness and wife of accused. PW 45 could not give definite answer as to whether the books are to be included in non verifiable expenditure. He denied that cash of Rs. 99,000/ shown in the observation memo has been incorrectly taken. The witness denied the suggestion that mother of the accused was living with him and part of the household articles as mentioned in the observation memo like jewelery, books, clothing, furniture, electronics, toys etc were purchased by her from her own savings. The witness replied that every detail given by the wife of the accused at the time of search was recorded. He denied that he has wrongly included the cost of two air conditioners as mentioned in the observation memo. The benefit of receipt dated 06/04/2001 with respect to two air conditioners was not considered and given as it was also considered to be an after thought. It is CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 41 of 86 admitted that verification was not done from the shopkeeper Saini Aircom. He denied that there was no scope of after thought as the explanation was given after receiving the copy of observation memo. He denied that explanation given by accused and his wife was not sent for consideration to the sanctioning authority. PW 45 has further denied that he has not taken into consideration that part of household articles were purchased by wife of accused out of the drawings in her hand amounting to Rs. 7,94,500/. The witness was questioned as to the receipt with respect to air conditioners shown in observation memo at serial number 122 as purchased by Ms. Bola for Rs. 5,000/ and wrongly valued at Rs. 12,000/ but the witness denied by stating that no such information was given at the time observation memo was prepared. It is admitted that affidavit of Sh. P.S. Sabharwal was not considered as said information was not given at the time observation memo was prepared. The witness denied that he has investigated the case as per his whims and fancies or that he has filed the charge sheet with ulterior motive. PW 45 denied the suggestion that he has not done the calculations correctly.
PW 47 P. Balachandran, Inspector CBI ACB, deposed that present case was registered on the basis of complaint of SI Amit CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 42 of 86 Vikram Bhardwaj of CBI against accused B.S. Bola and his wife vide Ex. PW 47/A. The witness conducted the searches at the residence of accused B.S. Bola at Jai Singh Road in the presence of other witnesses and CBI officials. The wife and mother of accused were present there and they called one gentleman also there at that time. The proceedings were recorded in the seizure memo Ex. PW 1/A and signed by witnesses and team members and also by Mrs. Bola. The documents were seized during search pertaining to business of Ms. Bola and other available documents. The witness identified his signatures on observation memo Ex. PW 1/B. The witness admitted that remark column at several places in the observation memo were left blank as wife of the accused could not tell the status of the articles. It is denied that cost of book at serial number 11 Rs. 3,500/ has been wrongly included and the same should have been taken as non verifiable expenditure. The cost of books were taken approximately in consultation with Ms. Bola. There were about 400 books but no list was prepared. The witness denied that he has taken the cost of the articles arbitrarily and excessively or that same was also tampered. The witness specifically denied that he has wrongly taken the cost of shoes, sandals, audio CDs, used clothes and other articles etc. With CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 43 of 86 respect to telephone instrument, the witness stated that they were not provided by MTNL as MTNL was not found printed or embossed on the same. The witness denied that ACs mentioned at serial no. 90147 were hired and deliberately not shown as such in memo. The witness further denied that wall cabinet at serial no. 167 were already installed in the government accommodation. It is also denied that clothes of mother have been included in the memo wrongly. He also denied that deliberately cash of Rs. 50,000/ have been included in the observation memo despite the explanation given by Sh. Gursharan Singh. He denied that ownership of the articles were not established from Mrs. Bola at the relevant time. It is admitted that wife of accused had her own independent business. The witness was also questioned about the fire insurance policy, whereby the cost of household articles were shown worth Rs. 2 lakhs. The witness could not comment about the insurance policy usually taken on higher side of value. PW 47 denied that nieces had come from Canada previous night and the luggage belonging to them were also counted. He denied that articles stated as gifted were not written as such in the observation memo or that he intentionally left the columns blank. The witness denied that show pieces were given as CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 44 of 86 mementos by various NGOs and religious organizations. The witness denied to be deposing falsely.
It is argued by Ld. Senior Defence Counsel Sh. Ramesh Gupta that observation memo has been prepared with a view to meet out the case of disproportionate assets and investigation in this regard is biased. The accused has been in service prior to the start of check period and assets belonging the pre check period have also been included in the observation memo. The copy of observation memo was not supplied to the accused or his wife within a reasonable period and was only supplied in the year 2003. The representation was given immediately thereafter but same was not properly taken into consideration. According to the guidelines of investigation of disproportionate assets cases, the clothings are to be included in non verifiable expenditure. The income of the wife of accused Mrs. P. Bola has also been concealed and it is claimed that the income to the extent of Rs. 11,97,795/ has not been included despite the same is reflected in the income tax records and balance sheet of firm M/s Fairy Fabs. The benefit of Rs. 1,05,000/ is also claimed with respect to TV, ACs, Computer, FAX, Microwave etc, alleging that same belonged to the wife of the accused and reflected in the balance sheet of M/s Fairy Fabs, admittedly run CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 45 of 86 by the wife of the accused. It is also contended that value of books shown as Rs. 72,000/ is exaggerated whereas much of the books belonged to pre check period. The value of ACs is also exaggerated since they were taken on hire basis. Ld. Counsel has relied upon the following judgments in support of his arguments.
(i) Babubhai vs State of Gujarat and Others, (2010) 12 SCC 254;
(ii) Jagan M. Seshadri vs State of T.N., (2002) 9 SCC 639;
(iii) Ashok Tshering Bhutia vs State of Sikkim, (2011) 4 SCC 402;
(iv) Dudh Nath Pandey vs State of Uttar Pradesh, (1981) 2 SCC 166;
(v) Pozir Uddin Ahmed vs union of India (represented by CBI), (2014) 134 AIC 720;
(vi) State Inspector of Police vs Surya Sankaram Karri, Appeal (Crl.) 1335 of 2004;
(vii) Sripada Gouda vs State of Karnataka Lokayuktha Police Station, Dharwad, (2012) 6 Kant LJ 180 and
(viii) Meghanad Nayak vs Republic of India, 2015 (I) OLR 1058.
I have examined the observation memo Ex. PW 1/B whereby the cost of articles found at the official residence of accused was taken as Rs. 10,07,850/. However during cross examination, IO PW 45 Inspector N.K. Jain admitted that it comes to Rs. 9,37,850/ (after deducting Rs. 50,000/ for clothings and Rs. 20,000/ for fridge). The total items CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 46 of 86 mentioned in the memo are 321. The items can be broadly categorized as follows: A). Electronics and Electricals, B). Furniture, C). Utensils/Crockery, D). Cosmetics, E). Sports, F). Watches, G). Clothes and Shoes, H). Books and I). other miscellaneous items.
It is not disputed that the quantity and nature of articles so mentioned in the observation memo has been found / possessed by accused, however, the defence has disputed the price / cost of the articles as well as the year of acquisition mentioned thereof. On considering the testimony of witnesses mentioned above, I find that they remained consistent and confident and have stood through the test of crossexamination and it is substantially established that observation memo was prepared after following due rules and regulations and the cost of articles and year of their acquisition was taken as per the CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 47 of 86 version of the wife of the accused. It is evident that various items have been mentioned as gifted and approximately for 50 items benefit has been given. The gifted items included electronics, crockery, cosmetics, watches, silver items, decoration pieces etc. Therefore, it cannot be said that observation memo was prepared on the basis of arbitrary calculations or that no consultation or discussion was conducted with the wife of the accused before arriving at conclusion about the cost of the articles. During cross examination of PW 1, no specific suggestion has been put forth that the cost of articles and the year of acquisition as mentioned in the observation was incorrectly recorded without consulting the wife of the accused. On consideration of the recorded testimony of witnesses and the nature of their cross examination, I find no material discrepancy and infirmity in the observation memo so as to come to the conclusion that same is incorrect or arbitrary. No specific motive has been attributed either to PW 47 the officer who conducted the search or to IO PW 45 for creating false evidence to implicate the accused.
It is clear that quantity of articles found at official residence of accused (public servant) comes to more than normal or usual, as it is noticed that even furniture items CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 48 of 86 included 4 sofa sets i.e. two five seater sofas, one seven seater sofa and one eight seater sofa and home was found having wall to wall carpeting. The volume of crystal crockery, decoration pieces and other furniture, electronic and electrical items are found to be on the higher side. The volume of whiskey bottles, clothings and shoes also show that accused and his family members were maintaining highend life style and were living in luxury.
Coming to the defence of accused, the representation Ex. DW 9/30 has been submitted whereby it is explained that most of the articles were gifted from the relatives, who were visiting from abroad and Mr. Sabharwal had entrusted all his household articles to the wife of the accused, while shifting abroad. On examining the affidavits so attached with the representation as well as the testimony of accused recorded u/s 315 Cr. PC (DW9) and the record, I am of the opinion that benefit of gifted items has already been given to the accused in the observation memo and no additional benefit of information contained in affidavits can be given now. The affidavits are of year 2003 and were procured from the relatives living abroad after giving information of the case and all the relatives have given the affidavits in a similar fashion stating gifting of shoes, clothing, CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 49 of 86 watches, crystal goods and cash. The value of cash only if calculated thereof comes more than Rs. 10 lakhs. It is strange that so many relatives were coming and gifting to accused and his family so much of articles as well as cash. The defence pleas taken by accused are not properly established on record as the relatives who had submitted affidavits have not come forward to testify in the court and it also seems difficult to believe that all the relatives were coming with so much gifts for the accused and his family. What prevented wife of the accused to disclose at the relevant time that items were gifted or entrusted property of Sh. P.S. Sabharwal particularly when they were her relatives and gifts were given to her. At no occasion any such information was given by accused to his department about said gifts and entrusted household articles despite that as per CCS Conduct rules, the gifts are permissible on specific occasions like wedding, anniversary, funeral or religious functions from near relatives or friends if the value of the gift exceeds Rs. 7,000/. In the present case, no gifts were taken on any such occasion. Also, as per CCS Conduct Rules, otherwise the government servant shall not accept any gift without the sanction of the government, if the value of that exceeds Rs. 1,500/. In my opinion, the submission of affidavits and the contentions of the CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 50 of 86 accused that the items were gifted or entrusted are not acceptable and it can only be termed as an after thought and procured evidence.
It is also claimed by accused that assets found at home were not attributed to his wife and mother despite that they were living there. It is evident from testimony of PW 21 Sh. Anil Kumar Rathore and PW 31 Sh. Vivekanand Jaiswal that the search was made at the farm house belonging to the wife of the accused and observation memo Ex. PW 21/A was prepared and valuation of articles was done vide Ex. PW 31/A. The items included furniture, electrical and electronics, decoration pieces, air conditioners and benefit of the gifted articles (approximately 30 in number) were also given and remaining articles were valued at Rs. 2 lakhs and entire benefit was given on this account. The benefit of jewelery was also given to the wife of the accused and also her immovable property was not taken into consideration for calculating disproportionate assets, although, it has been mentioned in the chargesheet that assets of the wife already crossed her income and are of much higher value. In this situation, much benefit cannot be given to the accused and the contention that his wife has been earning and contributing towards acquiring household is not acceptable. It is CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 51 of 86 also noticed that for most of the entries of expenses and assets, accused has tried to shift the same to his wife which appears to be an extreme view and same is not logical. Accused has also pleaded that his mother had independent source of income and she acquired household articles like jewelery, books, clothing, furniture, electronics, toys etc as mentioned in the observation memo but no evidence is brought on this aspect.
The clothings recovered during the search are on higher side and cannot be taken completely as non verifiable expenditure. The guidelines relied upon cannot have strict application as facts of every case are different. With respect to the articles worth Rs. 1,05,000/ i.e. Computer, ACs, Microwave, TV, FAX etc, I find that not even a single document is produced to show that these articles were purchased on behalf of M/s Fairy Fabs or by Mrs. P. Bola under her name or through her own funds. Even though articles have been reflected in the balance sheet of M/s Fairy Fabs, that is not the conclusive proof of the ownership of the articles.
However, it is also true that exact information cannot be given by any person about all the articles lying at house about their cost and year of acquisition and also considering that some articles might be belonging to wife of the accused being CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 52 of 86 the earning spouse, some benefit can be given to the accused. Value of the articles of the observation memo is taken as Rs. 9,37,850/ by the prosecution and in my opinion, benefit of 20 per cent i.e. Rs. 1,87,570/ should be granted and this amount be now taken at Rs. 7,50,280/.
Item No. 3: According to Ex. P25 (D38) an amount of Rs. 31,000/ was paid on 18/12/1989 and therefore, the value of the flat at the end of check period is taken as Rs. 1,90,000/. (1,59,000+31,000).
Item No. 4: The observation memo Mark P45/11 later on Ex. DW 9/PD (D76) shows that aforesaid music system was recovered from the house of accused at Pondicherry and it was worth Rs. 9,000/ acquired in the year 2000 as stated by the accused. Also, this fact has not been denied by the accused in his statement recorded u/s 313 Cr. PC and therefore, this item is included in the assets at the end of check period.
Item No. 5: This is proved with Ex. 9/A (D14) and same is also admitted by accused in his statement u/s 313 Cr. PC.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 53 of 86Item No. 6: The balance in aforesaid account is duly proved through Ex. PW 9/A and also admitted by the accused. The said HUF account had Rs. 3,423/ at the end of check period as on 06/07/2001. It is explained by accused that he is having one fifth share in this HUF account and has also given the names of other members besides him as Surjeet Singh Bola, Maninder Singh, Dweepinder Singh and Inderjeet Singh. It is also evident from Ex. PW 9/A (D14) that said HUF account stands in the name of Surjeet Singh Bola, Maninder Singh and accused B.S. Bola but IO stated that accused has been Karta of HUF. This part of testimony of IO PW 45 Inspector N.K. Jain has not been refuted by accused. The account is in bank at Delhi and brother of accused Sh. S.S. Bola has been permanent resident of Haryana. It is clear that accused has been managing and controlling this HUF account, hence, attributable to him only. This is taken as asset at the end of check period.
Item No. 7: This entry has been admitted by accused in his statement recorded u/s 313 Cr. PC and duly proved by Ex. PW 9/A (D
14).
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 54 of 86Item No. 8: This entry has been admitted by accused in his statement recorded u/s 313 Cr. PC and duly proved by Ex. P40 (1) (D
58).
Item No. 9: This entry has been admitted by accused in his statement recorded u/s 313 Cr. PC and duly proved by Ex. P25 (D38).
Item No. 10: The acquisition of agricultural land is proved through P 49 (13) (D63) and also admitted by the accused in his statement recorded u/s 313 Cr. PC. The accused has admitted that he purchased land for Rs. 80,000/ but stated that he took loan from his elder brother Sh. Surjeet Singh Bola, the then Engineer in Chief, Public Health, Haryana and information was duly given to the department concerned.
It is evident that agriculture land was purchased by accused B.S. Bola for a consideration of Rs. 80,000/ on 16/02/1989 and he also spent Rs. 10,000/ on stamp value and this asset comes out to be worth Rs. 90,000/. The version of the accused to the effect that he has taken loan from his brother Sh. S.S. Bola for purchase of this property cannot be accepted. On examining the official file Ex. P46 (D72), it is clear that the CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 55 of 86 land has been purchased prior to the alleged loan from brother Sh. S.S. Bola. The land has been purchased on 16/02/1989. It is informed by brother of accused Sh. S.S. Bola on 31/08/1989 that he advanced loan of Rs. 80,000/ to his younger brother on 13/03/1989 (page 141). It is, therefore, clear that the property has not been purchased by the accused after taking money from his brother. The factum of taking of loan of Rs. 80,000/ is otherwise not proved by any other sufficient material nor any bank entry is shown. Mere official communications on this issue that too after the same was initiated by the official authorities, are not sufficient to prove that the loan of Rs. 80,000/ was advanced by Sh. S.S. Bola to the accused. Therefore, Rs. 90,000/ is taken as an asset acquired by accused B.S. Bola, during the check period, from his own funds.
Item No. 11: This entry is proved through Ex. P50/1 (D79) and also admitted by accused in his statement recorded u/s 313 Cr. PC.
Item No. 12: This entry is proved through Ex. P51 (13) (D80) and also admitted by accused in his statement recorded u/s 313 Cr. PC.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 56 of 86Item No. 13: According to prosecution, cash of Rs. 1,28,000/ has been recovered during the searches at the residential premises in Delhi and Pondicherry. Rs. 99,000/ was recovered from Delhi residence and Rs. 29,000/ was recovered from Pondicherry residence. Accused has given his version in statement recorded u/s 313 Cr. PC that an amount of Rs. 99,000/ was recovered from Delhi residence in his absence where his wife and mother were also residing. The wife of accused had independent source of income and used to keep cash with herself and Rs. 49,000/ belonged to his wife and mother. With respect to Rs. 50,000/ it is pleaded that same belonged to Inderjeet Pabla, which was given by Mr. Gursharan Singh to the wife of accused as advance for Inderjeet Pabla. Mr. Gursharan was called at the spot for verification and his statement was also recorded in this regard. In defence evidence also, DW 1 Avtar Singh Pabla has supported this fact by stating that this payment was received by wife of the accused on behalf of his (DW1) wife Inderjeet Pabla with respect to the sale of property 124, Shankar Road, New Rajender Nagar, Delhi. The said payment has been received from Mr. Gursharan Singh and receipt was issued. On consideration of the record of observation memo, there is CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 57 of 86 nothing to suggest that Sh. Gursharan Singh was summoned at the spot or any verification was done with respect to the cash recovered. However, DW 7 Sh. Gursharan Singh has appeared in defence of accused and supported the version to the effect that property no. 124, Shankar Road, New Rajender Nagar, Delhi was agreed to be purchased by him from Inderjeet Pabla and amount of Rs. 2,00,000/ was paid by him in the manner that draft of Rs. 1,50,000/ and cash of Rs. 50,000/ was delivered to the wife of accused B.S. Bola in June 2001, but the witness could not produce any agreement or any other material to show that any such transaction had taken place. DW 1 is clearly not reliable as he proved his affidavit dated 02/10/2003 Ex. DW 1/A but there is no mention of this transaction in this affidavit. Since no sufficient evidence is there, the fact has not been proved by the accused that cash amount of Rs. 50,000/ belonged to Mrs. Inderjeet Pabla and the version so put forth appears to be an after thought. As such no statement was made by wife of accused at the time of recovery of cash amount.
This amount is to be attributed to accused as an asset and no benefit is granted on this account. The wife of accused has not come forward to claim the cash amount of Rs. 49,000/ even in her statement Ex. DW 9/29 recorded by IO(got CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 58 of 86 produced by accused during the trial) nor at the time of search any such fact was disclosed. The accused has admitted the recovery of cash of Rs. 29,000/ from his Pondicherry residence. Therefore, item is taken as asset of accused amounting to Rs. 1,28,000/.
30. In view of aforesaid discussions, the final calculation of assets at the end of check period of accused (Statement B) is taken at Rs. 16,74,607/.
31. Now coming to the income part, the prosecution has projected the income of the accused during the check period vide statement C it is having 19 items/entries as under: C. Income obtained during Check Period in Rs. 1 The salary income of Sh. B.S. Bola for the period 844152 01.01.1989 to 06.07.2001 (Rs. 17,31,092 Gross, Rs. 8,44,152 Net) 2 G.P.F. withdrawal taken vide order No. 653 CO dated 41000 04.10.1989 PO IV Tees Hazari 3 Vehicle loan taken for purchase of Tata Indica car DL6CG 140000 0029 from Department vide bill No. 171 dated 16.06.1999 4 50% share of proceeds of sale of 44 Kanals and 8 marla 250000 land situated at Village Bhaini, Punjab, jointly by Sh. B.S. Bola 5 Payment received from LIC against money back policies of 76867 Mr. Bola for the period 01.01.1989 to 06.07.2001 CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 59 of 86 6 Interest obtained in the saving bank A/c No. 33243 in SBI, 23517
(a) Rail Bhawan, of Sh. B.S. Bola from 01.01.1989 to 06.07.2001
(b) Interest obtained in HUF A/c No. 014066 in S.B.I., Rail 18948 Bhawan, N.D of Sh. B.S. Bola and others w.e.f. 02.03.95 to date of closing
(c) Interest obtained in the SB A/c No. 2719 in Punjab & Sind 6577 Bank of Sh. B.S. Bola from 01.01.1999 to 06.07.2001 7 Interest obtained in PPF A/c No. 900946 in SBI, Rail 19257 Bhawan, ND of Sh. B.S. Bola from 3/97 to 06.07.2001 8 Income obtained from rent against flat no. C9/F, Delhi Police Employees Cooperative Society from
(i) Sh. Shashi Bhardwaj, April 95 to June 98 78000
(ii) Sh. Arnabh Bandyopadhyay R/o 210, Shantidoot Apartments, 18, Vasundhra Enclave, Delhi96 from
(a) Aug 1998 to Oct. 1998 @ Rs. 6000/ pm + SD of Rs. 38000 20000
(b) Nov 1998 to Dec 2000 @ Rs. 6500/ pm 169000
(c) Jan 2001 to 06.07.2001 @ Rs. 7000/ pm 43129 9 Interest received from IDBI against the investment made 2500 on dated 11.02.2000 and 11.02.2001 10 Proceeds received from agricultural income produced 110000 obtained from the agricultural land at VillageChahar Majra, TehsilKharar, Distt. Ropar (Punjab) as shown in his property returns:
(i) In the year 1990 to 1999 @ Rs. 8,000/ per year
(ii) In the year 2000 (up to 06.07.2001) @ Rs. 20,000/ per year 11 Payment received from SBI magnums against the 24588 investments made along with interest on 17.08.2000 & 21.08.2000 12 Payment of Reward of Rs. 60,000/ received from 60000 department vide order No. 272635/CRIVCB, New Delhi CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 60 of 86 dated 31.03.96 13 Payment of reward received in case No. FIR153 dated 8000 17.06.1988 of Delhi Police on 12.01.1993 vide Govt. of India order dated 12.01.1993 14 Payment of Rs. 9,500/ against the sale of 0.315 bore Rifle 9500 No. AB830840 from M/s Karan Gun House in cash on 21.11.1992 15 Payment of car loan from department vide order no. 666 40000 dated 06.10.1989 sanctioned vide order of PHQ dated 28.09.1989 16 Payment received against the sale of Maruti800 car No. 31000 DDQ4843 on 13.07.1999 from Sh. Sanjeev Agarwal 17 Maturity amount of various investments in NSS 76833 18 Reimbursement of payment made against a test conducted 6000 at Escorts vide department order no. 31983201 10th Bn. DAP dated 24.04.1993 19 Refund received from Police Service Cooperative Society 52891 for purchase of plat on 02.09.1998 vide cheque no.
686511
Total 2169759
32. The item numbers 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the above said chart stand admitted by accused during the trial (u/s 294 Cr. PC and u/s 313 Cr. P.C), therefore, taken as established.
33. The following discussion is only with respect to the disputed entries / items.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 61 of 86Item no. 1: The gross salary is shown as Rs. 17,31,092/ and net salary is shown Rs. 8,44,152/. The documents pertaining to the payment of salary have been produced vide file D5(B). It is submitted by defence that the amount of Rs. 6,307/ is required to be added in the salary of the accused as the deductions have not been properly calculated for the months July 1999 to February 2000 and if the difference is calculated properly the amount of Rs. 6,307/ would be added in the payment of salary to the accused. I have gone through the relevant document i.e. page 38 of D5 (b) and it is clear that deductions have not been properly calculated and therefore, benefit of Rs. 6,307/ is to be given to the accused on this account. Income is added to the extent of Rs. 6,307/.
Item no. 8: It is pertaining to rental income of the accused. It is pleaded by defence that the amount of Rs. 1,04,000/ is required to be added as rental income for the period 199095 has not been taken by the IO. In this regard, the Annual Property Returns have been referred to, which is Ex. P43 (34) (D63) and also the Income Tax Returns of the accused Ex. PW 43 (60 onwards) (D63) and Ex. P46 (D72). It is clear that CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 62 of 86 rental income has been reflected @ Rs. 2,000/ per month. It is also testified by DW 2 Sh. Aftab Ahmad Ramino and also substantiated by rent deed dated 04/12/1990 Ex. DW 9/18. Since this rental income has accrued to the accused during the check period i.e. December 1990 to March 1995, it should have been taken under the head income. Accordingly, an amount of Rs. 1,04,000/ is added to the income of accused.
Item no. 10: It is pertaining to agricultural income of the accused. The agricultural income of the accused has been shown as Rs. 1,10,000/ starting from year 1989 till July 2001. The accused has pleaded in his statement u/s 313 Cr. PC that his agricultural income for the year 1989 have not been included and also the full year agricultural income for 2001 has not been included. On examining Ex. P43 (D63) and Mark P45/12 (D19), it is clear that amount has been properly taken by the IO. As per the calculations of accused himself, shown at page no. 9 of Ex. P43 (D63), the amount of agricultural income accruing to him from the year 1989 till year 2001 has been Rs. 1,20,000/. The amount of Rs. 10,000/ is required to be deducted since there is no evidence to show that this amount was already earned by accused prior to 06/07/2001 (which is cut off date for the end CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 63 of 86 of check period). The amount earned by the accused after the check period cannot be included in his income, therefore, Rs. 1,10,000/ taken is correct.
Additional Income claimed by accused: The accused has also pleaded that Rs. 33,009/ in the year 1991 as Canadian dollars were credited in his account through one Sh. Tarsem Banga. On this account, I have perused D14 page 374, which is copy of pass book of the accused (seized by prosecution) and it is clear that Rs. 33,009/ has been credited to the account of accused and also admitted by the IO in his crossexamination. In my opinion, it is to be added to the income of the accused.
The accused has further claimed that the income of Rs. 73,945/ earned by his minor sons on account of their prize money and stipend from Cricket Tournaments by virtue of Rule No. 64 of Income Tax Department, Government of India, is to be added to his income. The accused has also examined his son as DW 6 on this aspect who proved the documents (Ex. DW 6/A to Ex. DW 6/J) to support the version. Since both sons of accused were minor and got monetary prizes, the same can be included and benefit can be given to accused being CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 64 of 86 father / natural guardian.
34. On the basis of material on record and above discussion, the income (Statement C) of the accused is taken as follows: Rs. 21,69,759/ (originally taken by prosecution) plus Rs (6,307+1,04,000+33,009+73,945) i.e. Rs. 2,17,261/ (added as above). Total Rs. 23,87,020/.
35. Taking up the expenditure part, the prosecution has projected the expenditure of the accused during the check period vide statement D, having 44 items/entries as under: D. Expenditure incurred during check period in Rs.
1 Payment made against LIC policies by Sh. B.S. Bola from 134143
01.01.1989 to 06.07.2001
2 Payment made against LIC policies in r/o children S/Sh.: 3229
Maninder Singh Rs. 1614/
Dweepinder Singh Rs. 1615/
3 Insurance Premium against fire for H.No. C9F, Delhi Police 820
CGHS Ltd paid by Sh. B.S. Bola from 29.12.1989 to 20.06.2001 4 Insurance Premium for household articles against theft paid 932 by Sh. B.S. Bola (21.06.2000 to 20.06.2001) 5 Insurance expenses paid to New India Assurance Co. 10966 against his car No. DL6CG0029 6 Payment made to National Sports Club of India, New Delhi 29622 against membership and other expenses paid by Sh. B.S. Bola CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 65 of 86 7 Payment made to Delhi Gymkhana Club Ltd for 5210 membership on 20.12.1995 by Sh. B.S. Bola 8 Payment made to Delhi Distt. Cricket Association, New 14000 Delhi for membership and yearly subscription paid on or before 06.07.2001 9 Payment made by Sh. B.S. Bola for membership and annual 7800 subscription in BSF Golf Club till 06.07.2001 10 Payments made to Roshanara Club Ltd against processing 660 charges membership file 11 Payments made to Delhi Golf Club towards application fee 500 for membership dtd. 07.01.1994 12 Payment made to NRAI, JNU Stadium, New Delhi against 5005 the life membership on 05.10.1994 13 Property Tax paid to House Tax Department for flat no. C 42547 9/F, Mayur Vihar, PhaseII, New Delhi by Mr. B.S. Bola 14 Water and service charges paid by Mr. B.S. Bola for above 3700 flat (1990 to 2001) 15 Ground rent charges paid to society for above flat of Sh. 2470 B.S. Bola (from 1990 to 2001) 16 Expenses paid to M/s Concorde for the repair & servicing of 31637 the vehicles of Mr. B.S. Bola for the period 12.08.1999 to 17.02.2001 17 Payment made to Police Service Cooperative Group Housing 50200 Society, Gautam Budh Nagar, for the allotment of land in the name of Sh. B.S. Bola 18 Payment made to AIRTEL against his connection no. 46538 9810022880 from September 1998 to June, 2001 19 Payments made to Engineering College, for the course of BE 199650 in Electronics & Communication Engineering in r/o Maninder Singh 20 School fee paid to St. Columba's School on education of 96700 sons of Sh. Bola from 1989 to 1998 21 College fee paid to the Hindu College, University of Delhi, 5210 CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 66 of 86 during July, 1999 to September 2000 22 Traveling and pocket expenditure for attending the college 16000 at Faridabad in r/o Maninder Singh @ Rs. 400/ pm (14,000) at Delhi in r/o Dweepinder Singh @ Rs. 100/ pm (2,000) as per the statement of Sh. B.S. Bola 23 Payments made to Citi Bank against the purchase made on 28675 Citi Bank card of Sh. B.S. Bola and additional cards issued in the name of their family members 24 Expenditure made on purchase of 400lt. Fridge from M/s 20000 T.V. House, Hudson Lines, Kingsway Camp, Delhi on 09.05.1999 25 Expenditure made on purchase of jet pump for farm house 4600 from Ashoka Hardware Store, 504, Shiv Market, Wazirpur on 12.02.1999 26 Payment made to M/s Anita Communications 17A/47, 1445 WEA, Karol Bagh, New Delhi vide receipt No. 3045 dated 25.05.2001 and 3057 dated 31.05.01 27 Payment made for commission of sale of vehicle No. DDQ 600 4843 of Sh. B.S. Bola to one Sh. Sanjeev Agarwal 28 Telephone expenses paid against telephone Nos. (1) 23743232 of B.S. Bola (personal) for the period 63117 06.05.1997 to 15.05.2001 including registration charge. (2) 23347980 of B.S. Bola (official but used as a private 11010 phone during August, 2000 to 06.07.2001) 29 Payment of official telephone bill made for extra calls by Sh. 79810 B.S. Bola 30 Payments made to the department for repayment of car 33211 loan obtained for Maruti Car No. DDQ4843 vide receipt No. 8,9 & 10 dated 17.05.1999, 17.05.1999 and 03.06.1999 respectively 31 Payments made to Commissioner Excise, Delhi as fee of 3000 permit L49 for keeping specified no. of liquor bottles during the period 16.08.1999 to 10.04.2001 32 Payments made for rent of locker no. 341 in P&S Bank, 4415 CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 67 of 86 Gole Market; New Delhi in the name of Sh. B.S. Bola 33 Purchase of SBI Mutual Fund SBI Magnums by Sh. B.S. Bola 19000 on 22.02.1994 and 17.02.1995 34 Investments made by Sh. B.S. Bola in NSS (19881989 to 40000 19911992) 35 TDS paid outsides the Deparment for additional tax paid 58683 through challans by Sh. B.S. Bola 36 Payments made for purchase of Maruti 800 No. DDQ4843 50000 from Sh. Mahinder Pal Singh r/o 8/7, Geeta Colony, Delhi on 07.12.1989 37 Loans given by B.S. Bola to Smt. B.S. Bola (still a liability) 170000 38 Expenditure made for renovation / additionalteration in 52265 Govt. accommodation at 3Jai Singh Road, New Delhi as per the valuation report of JE, CBI, ACB, New Delhi 39 Payments made against electricity bill of flat no. C9/F, 31552 Delhi Police Apartments for Feb./April 1991 to April 1995 40 Expenditure on fuel for running of vehicles
(i) Tata Indica DL6CG0029 of Sh. B.S. Bola for 39,189 35827 Km.
(ii) Maruti Esteem DL6CC0029 of Smt. Praveen Bola for 42133 Km.
41 Expenditure on maintenance (foods and medications etc) of 76296 2 pet dogs as on 06.07.2001 on the basis of statement of veterinary Doctor
(i) German Shepherd of 1 year of age
(ii) Labrador of 10 years of age 42 Payments for foreign tour to travel agent during 1995 5000 43 Non verifiable expenditure 1/3rd of Gross Salary minus 539693 Income Tax 44 Amount deposited in PPF accounts of two sons by Sh. B.S. 16300 Bola Total 2052038 CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 68 of 86
36. The item numbers 1, 2, 5, 7, 8, 9, 10, 11, 12, 13, 17, 24, 27, 30, 31, 33, 34, 36, 42 and 44 of the above said chart stand admitted by accused during the trial (u/s 294 Cr. PC and u/s 313 Cr. P.C), therefore, taken as established.
37. The following discussion is only with respect to the disputed entries / items.
Item no. 3 &4: The expenditure of Rs. 820/ and Rs. 932/ have been taken as insurance premium against fire policy paid by accused. The existence of fire policy is not in dispute but it has been pleaded on behalf of accused that an amount of Rs. 140/ out of Rs. 820/ and entire amount of Rs. 932/ has been paid by the wife of the accused. This fact has also been admitted by IO PW 45 Inspector N.K. Jain in his crossexamination. Accordingly, the expenditure now taken is only Rs. 680/ and benefit of Rs. (932+140) 1,072/ is given to accused.
Item no. 6: According to accused, the calculation is incorrect and also pertains to his wife and children. The amount of Rs. 13,000/ is paid by his wife in cash. It is not disputed that club membership has been in the name of accused. Also, on CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 69 of 86 examining Ex. P24 (D36) the concerned receipts (duly admitted by accused during admission / denial), the expenditure of Rs. 29,622/ is attributed to accused being the primary member and family head.
Item no. 14 & 15: The amount of Rs. 2470/ and 3700/ have been shown as expenditure on account of water and ground rent charges paid to the society for the flat no. C9/F, Delhi Police Society, to which accused has submitted that same was paid by tenants. The evidence has also been brought on record on this aspect by examining DW 2, who deposed that he paid maintenance and other charges to the authorities directly. Letter Ex. PW 25(5) (D38) is also referred in this regard. Accordingly, this expenditure cannot be put upon the accused and therefore, the amount of Rs. 3700/ and Rs. 2400/ is deducted from the expenditure.
Item no. 16: It is submitted by accused that expenditure incurred by his wife on her car have also been included in this head, however, on examining the documents, I find that expenditure of Rs. 38,621/ is to be attributed to accused since the invoices [D37 (Ex. P86)] are in the name of the accused and also CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 70 of 86 pertain to his own car only. Also more so, since no evidence is brought on record that expenditure was made by his wife.
Item no. 18: It is pleaded by accused in defence that said mobile is used by his relatives, who were coming from abroad and they have contributed towards 50 per cent of the bill amount. The affidavits to this effect were submitted to CBI. However, the explanation given by accused is not plausible since no sufficient evidence is brought on record and when the connection has been standing in the name of the accused, he is only responsible for the payments made thereof. Nothing has been shown that relatives had made any payments to the accused on this account at any point of time. The affidavits so submitted to CBI is of no significance and carries no evidentiary value. This amount is attributed to the accused towards expenses.
Item No. 19: This amount has been admitted vide document Ex. P43 (D63) although, it is stated by accused in his statement u/s 313 Cr. PC that cash payments of Rs. 2,300/, Rs. 1,100/ and Rs. 650/ were not paid by him but no such material is produced in support and therefore plea is not acceptable. Since accused has been father and natural guardian of his son CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 71 of 86 Maininder Singh, the educational expenses are attributable to him.
Item no. 20, 21 & 22: The expenses on account of school fee / college fee of both sons is attributed, to which accused has submitted that same was incurred by his wife who was also working and earning. There is no record showing payment by her wife, therefore, this expenditure is attributed to the accused being father and natural guardian. More so, when accused seeks to include monetary benefits accruing to his children, to his own income.
Item no. 23: The expenditure of Rs. 28,675/ is mentioned on account of Citi Bank Credit Card, issued in the name of accused along with additional cards. Accused submitted in statement u/s 313 Cr. PC that he used the credit card for purchases of goods for his relatives coming from abroad and the amount was paid back by them up to 50 per cent of the bill amount and they also submitted affidavits to this effect to CBI. However, this plea will be of no help to the accused since accused has been the principal holder of the card and every expenditure done by accused through credit card is attributable to him irrespective of CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 72 of 86 the fact as to for whom the goods were purchased. So far as the contribution from relatives is concerned, nothing is brought on record and no such relative testified to substantiate this fact in this court. The mere oral submissions would not suffice the claim and the benefit would not be available to the accused.
Item no. 25
:
The receipt of jet pump Ex. PW 15/A for Rs. 4,600/ is proved by PW 15 and it is found in the house of accused, therefore this expenditure is to be attributed to him only.
Item no. 26: Accused had denied the amount of Rs. 1,445/ shown as spent on STD calls, however, there is nothing on record to suggest that the expenditure was not done by accused. It is evident that receipts dated 25/05/2001 were found at the house are in the name of accused only and also proved by PW
17. This expenditure is taken as done by accused.
Item no. 28: It is the expenditure on account of usage of telephone numbers 23743232 (personal) and 23347980 (official but used as a private phone) amounting to Rs. 63,117/ and Rs. 11,010/. The accused has denied that payments were made by him or calls were made by him on this phone, although, CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 73 of 86 admitted that telephones were installed at his residence in his name. It is pleaded that it was used by his wife and bills were paid by her, however, there is nothing on record to show that payments towards bills were made by her. Since the telephones were installed in the name of accused and bills were required to be paid by him, the expenditure is to be attributed to him.
Item no. 29: The expenditure on account of extra calls of official telephone bill is taken. The amount of Rs. 79,810/ has been made by accused on this account. The accused has pleaded that he has paid the amount after taking loan from PW 36 Sh. Swaran Singh. So far as the expenditure is concerned, the same is attributable to the accused as he has paid the said amount to the department as demonstrated through D61 Ex. P42 (111). So far as the factum of taking of loan is concerned, there is no convincing evidence on record. PW 36 is not believable in this regard as no such disclosure was made by him u/s 161 Cr. PC nor any document or material is produced to show any such advancement of loan to the accused during the relevant time. Also no official permission / intimation was taken by accused to avail loan from a private person.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 74 of 86Item no. 32: The accused has stated that Rs. 4,415/ amount of rent towards locker has been paid by his wife since the locker was in the joint name and wife only has been operating the same. It is clear from Ex. P40 that locker no. 341 is in the name of accused only and he has made payment towards its rent of Rs. 4,415/. Although, Ex. DW 9/22 conveys that locker was in the joint name but the statement of account Ex. P41 certified by Manager Punjab & Sind Bank, shows that amount was paid by accused, so Rs. 4,415/ is taken as expenditure done by accused.
Item no. 35
:
The amount of Rs. 58,683/ is taken on account of payment of additional tax liability by accused. However in defence, accused submitted that Rs. 6,147/ and Rs. 13,060/ are also included in this figure, which were deducted as TDS on the NSCs. On examining document page no. 44 of Ex. P44(56) (D64) and Ex. P53 (117) (D88), I find that IO had already given the benefit of aforesaid amount to the accused, therefore, this amount of Rs. 58,683/ is attributed to accused as expenses on account of tax liability.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 75 of 86 Item no. 37
:
The accused admitted that he paid Rs. 70,000/ to his wife as loan, whereas Rs. 1,00,000/ was given from HUF account. The HUF is a separate entity and cannot be attributed to him. However, same is not acceptable as he is the holder of the HUF account and being its head (Karta) has been in the decision making position to grant loan, that too to his spouse. The statement of IO that accused has been Karta of HUF is not refuted nor any evidence is produced by accused that he has not been managing or operating this account. This item is taken as correctly established.
Item no. 38: The prosecution has shown expenditure of Rs. 52,265/ on account of additional work in the house of accused at 3, Jai Singh Road, New Delhi. The accused has denied this amount. The prosecution has examined PW 38 Sh. Rakesh Dutt, Junior Engineer (Technical) who has evaluated the additional work and proved his report Ex. PW 38/A and calculation Mark P38/1. The prosecution has also examined PW 19 Sh. S.C. Saxena, Junior Engineer, PWD, who has also given his letter Ex. PW 19/A stating about the basic work done by him in the official accommodation of the accused which was limited only CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 76 of 86 to the raising of boundary wall. PW 38 has inspected the property in November 2003 and it is admitted by the witness that property was allotted to accused in year 1984. At the time of inspection of the property, no site plan of 1984 was supplied to the witness. The witness has also been not in a position to state as to when the said new construction was raised, whether in the year 1992 or 1989 or even later to 07/07/2001. The witness has admitted that he has taken the year 1992 as given by the IO. In the report, the witness has given bifurcations in Mark P38/1 with respect to the expenditure on construction and value thereof and the cost of renovation at official flat at 3, Jai Singh Road, New Delhi comes to Rs. 52,265/. It is also corroborated with the testimony of PW 35 Sh. Harjinder Singh that steel work was carried out at residence of accused and he received between Rs. 14,000 to Rs. 15,000/ in cash from the accused. The accused has simply denied this fact in his statement recorded u/s 313 Cr. PC and no specific statement has been made that no such work was done at his official residence at his cost. The fact is also mentioned in the affidavit Ex. DW 9/12 relied upon by accused that renovation was carried out in the flat at 3, Jai Singh Road as deponent has claimed having paid Rs. 12,000/ to the wife of the accused for CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 77 of 86 this purpose.
Therefore, this fact stands proved that renovation / additional work was done at official residence of the accused as per his desires. No discrepancy is found in the report of PW 38, whereby he has taken the cost of such addition / renovation. Therefore, amount of Rs. 52,265/ is taken towards expenses done by accused as he has been the official allottee of the house.
Item no. 39: The accused has pleaded that it was not paid by him. On examining D118 (Ex. PW 30/A), it is found that these receipts are of Rs. 31,552/ on account of electricity charges regarding property no. C9/F, Delhi Police Society and DW 2 Sh. Aftab Ahmad Ramino has also stated that he was paying the electricity charges. Therefore, this expenditure cannot be attributed to accused.
Item no. 40: The expenditure on fuel of Rs. 35,827/ on Tata Indica car belonging to accused is taken. The prosecution has calculated the expenditure on the basis of mileage of the car and the rate of the fuel, at the relevant time. In this regard, the witness Sh. William has also been examined as PW44. The CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 78 of 86 calculation is done on the basis of meter reading as evident from car service bills Ex. PW 26 (120) (D39) and Ex. P86 (1
47) (D137). It is evident that Tata Indica car was belonging to accused, whereas his wife was having her separate car i.e. Maruti Esteem.
It is difficult to believe that accused was using his vehicle at the expenses of his wife. Since the accused owned and used his car, it is natural and probable that he spent amount on the fuel. The expenses on fuel of the separate car owned by wife of accused are not included.
Item no. 41: It is not disputed by accused that he was having two pet dogs. The prosecution has attributed the amount of Rs. 76,296/ on account of maintenance of two dogs. The veterinary doctor has also been examined as PW 18 for proving Ex. PW 18/A. It is clear that accused was keeping two dogs one Labrador and other German Shepherd. Considering the documents Ex. PW 18/A1 to A3, it cannot be ruled out that sufficient amount was spent on upkeep and maintenance of the dogs of good breed. The accused has not given any satisfactory account to counter the calculations taken by prosecution. Therefore, the amount of Rs. 76,296/ as expenditure on dogs CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 79 of 86 is attributed to accused particularly when no costing of acquisition of dogs is included under the expenditure head. Accused has not explained as to from what source, he acquired the dogs of such good breeds.
Item no. 43: On the issue of non verifiable expenditure, the prosecution has taken Rs. 5,39,693/ as spent during the check period by the accused, which is onethird of the total gross salary minus income tax i.e. Rs, (1731092 112013=1619079/3)= Rs. 5,39,693/.
The prosecution has relied upon the judgment of Sajjan Singh v State of Punjab, 1964 (1) Cri. L.J. 310 (Vol. 68, C.N.
87), on this point, Apex Court has held as follows: "....
29. The total receipts by the appellant from his known sources of income thus appears to be about Rs. 1,03,000/. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant's possession, through himself or through his son (Rs. 1,20,000/) were not disproportionate to his known sources of income. One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/ per month must have been his average expenses throughout these yearstaking the years of high prices and low prices together. These expenses therefore cut CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 80 of 86 a big slice of over Rs. 36,000/ from what he received. The assets of Rs. 1,20,000/ have therefore to be compared with a net income of Rs. 67,000/. They are clearly disproportionateindeed highly disproportionate.
....."
The prosecution has accordingly advanced arguments that at least onethird of the income minus income tax should have been taken as non verifiable expenditure as it cannot be accepted that accused was not spending anything on maintaining himself and his family members through out the check period, particularly when the accused has been the family head. It is also submitted that no benefit on account of wife of the accused being earning spouse should be granted as she has been investing her income in acquiring immovable and movable properties and meeting other expenses.
On the other hand, accused has firstly relied upon circular Ex. PW 45/DA to assert that non verifiable expenditure to be attributed to his wife being the earning member, particularly when she has been earning more than him. Similar plea has been taken by accused in his statement recorded u/s 313 Cr. PC. It is also pleaded that IO has concealed the income of his wife to the extent of Rs. 11,97,795/ and even the admitted position is that wife of the accused has been earning more than CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 81 of 86 him.
It is evident that at the time of registration of FIR, assets and income of the accused and his wife were being taken into consideration but during the course of final investigation and filing the chargesheet, wife has not been made as an accused, although, it is mentioned in the chargesheet that on checking the assets of the wife of the accused, they were found to be beyond her income.
It is true and admitted position that wife of accused has been earning more than accused but at the same time it is evident that she has been making investments in movable and immovable properties, foreign tours and other expenses. Even she has been spending on foreign visits of the accused also. The assets acquired by the wife of the accused has not been considered for the purposes of calculation of disproportionate assets of accused. This contention of the accused is also contrary to his claims that his wife has been having sufficient resources with her to run the kitchen expenses as the factum of advancement of loan to the wife amounting to Rs. 1,70,000/ is also admitted on record.
Normally, it is common conduct that husband being Karta of the house is under moral and social obligation to run the CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 82 of 86 house even if wife is working and earning. The contention of accused that all expenses should be attributed to wife being earning spouse is not tenable. On perusal of circular Ex. PW 45/DA, it is clear that the procedure for investigation have been laid for application as far as possible in the case of disproportionate assets but it is also provided therein that it is improper to presume that all cases are identical and similar.
According to the judgment of Sajjan Singh (Supra), one third is to be taken from the total receipts from known sources of income. In the present case, income of accused comes out to be Rs. 23,87,020/ (Statement D) and 1/3 rd of the same comes out to be Rs. 7,95,673/.
Taking balanced view of the facts and circumstances and evidence appearing on record, I am of the opinion that non verifiable expenditure cannot be attributed to the accused exclusively and some part should also be attributed to the wife of accused being earning spouse. In my opinion, it would be justified if the ratio of 60:40 is taken in this regard and accordingly, 60% of Rs. 7,95,673/, which comes out to be Rs. 4,77,404/ is attributed to accused on account of non verifiable / kitchen expenditure.
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 83 of 8638. Thus, in view of above observations final calculation of expenditure done by accused during check period (Statement D) is taken at Rs. 19,57,939/.
39. On the basis of above discussions, the conclusion about different statements comes as follows: Statement A Assets before check period Rs. 2,31,840/ Statement B Assets at the end of check period Rs. 16,74,607/ Statement C (BA) Assets acquired during check period Rs. 14,42,767/ Statement D Income obtained during check Rs. 23,87,020/ period Statement E Expenditure incurred during check Rs. 19,57,939/ period
40. The disproportionate assets have to be computed by taking into consideration the assets acquired during the check period and then adding to it the expenditure incurred by accused during the check period and from the total sum, income earned during the check period is to be deducted. Calculation of Disproportionate Assets. (Statement C + Statement E) - Statement D = Rs. 10,13,686/ percentage of Disproportionate Assets= Disproportionate Assets x 100 Income Rs. 10,13,686 x 100 23,87,020 = 42.46% CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 84 of 86
41. In the result, the prosecution has succeeded in proving that accused was having disproportionate assets to the tune of Rs. 10,13,686/ i.e. 42.46%, as on 06/07/2001.
42. The rigour of Section 13(1)(e) of Prevention of Corruption Act, 1988, requires that the explanation by accused must be satisfactory so he cannot wriggle out by simply offering explanations. Considering the defence pleas and evidence, I hold that accused Bhupinder Singh Bola has not been able to give satisfactory account of disproportionate assets. The representation and defence version relied upon is not reasonable and plausible.
43. In the case of N. Ramakrishnaiah (dead) thr. Lrs. Vs State of A.P., 2009 (1) R.C.R. (Criminal) 286, Hon'ble Supreme court held that, ".....
16. The legislature has advisedly used the expression "satisfactorily account." The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. ......."
CC/Reg No. 1/16 CBI Vs. Bhupinder Singh Bola Page 85 of 8644. Therefore, in view of the above discussion, I conclude that prosecution has succeeded in proving that accused was having in his possession during the period of his office, that is, the check period, the pecuniary resources and property disproportionate to the extent of Rs. 10,13,686/ i.e. 42.46% to his known sources of income beyond reasonable doubt. The accused has failed to satisfactorily account for the excess of assets and expenditure in comparison to the his income during that period.
45. Accused Bhupinder Singh Bola is accordingly convicted for the offence punishable under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988.
46. Let the accused be heard on sentence.
(Anju Bajaj Chandna) Announced in open court Special Judge (PCAct)(CBI)6, today i.e., 06/10/2016 Patiala House Court, New Delhi.
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