Delhi District Court
Cbi vs (1) R.K.Gupta on 11 April, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI
AC No.03/2008
Unique Case ID No.02402R0002612008
FIR No.RC SIB 2007 E0002
Under Sections 120B read with 217/420 IPC
& 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) R.K.Gupta
S/o Late Sh. Kishori Lal
R/o 137, Savita Vihar,Delhi92.
(2) Rakesh Kumar
S/o Late Sh. Jwala Prasad
R/o 82, Nimri Colony, Delhi52.
(3) C.B.Singh
S/o Late Sh. J.S.Prasad
R/o E339, East Vinod Nagar,
Delhi91.
(4) Ashok Kumar Arora
S/o Late Sh. Sohan Lal
R/o 486, West Guru Angad Nagar,
Laxmi Nagar, Delhi.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 1 of 53
Date of Institution : 03.01.2008
Date of judgment reserved : 15.03.2013
Date of judgment : 08.04.2013
JUDGMENT
The accused persons, namely, R.K.Gupta, Rakesh Kumar, C.B.Singh and Ashok Kumar Arora (all on bail) have been sent to face trial by CBI, for the offences punishable under Section 120B read with 217/420 IPC & 13(2) r/w Sec. 13(1)(d) of PC Act. 2 At the time of commission of the offence, accused R.K.Gupta was posted as Executive Engineer, Rakesh Kumar was posted as Assistant Engineer and accused C.B.Singh was posted as Junior Engineer in Shahdara South Zone, MCD, whereas accused Ashok Kumar Arora was the owner/builder of property bearing No.J & K131, Laxmi Nagar, Delhi.
3 Briefly stating, the facts of the present case are that during the year 2006, Hon'ble Delhi High Court passed orders in WP(C) 4582/2003 against the Engineers and Officials of MCD regarding unauthorized construction and CBI was directed to probe their nexus with their hierarchy in Engineering Department, Builders as well as Politicians. As per orders of Hon'ble High Court in WP(C) AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 2 of 53 No.4582/2003, a preliminary inquiry No. PE SIB 2006 E0001 dated 10.05.2006 was registered. Preliminary inquiry was conducted by Inspector Sanjay Dubey(PW19). During inquiry, it revealed that during tenure of accused R.K.Gupta as Executive Engineer from 9.8.2004 to 31.12.2005, a total of 477 cases of unauthorized construction were booked. It also revealed that accused C.B.Singh, the then J.E., entered into a criminal conspiracy with accused Ashok Kumar Arora and did not take any demolition action at property No. J & K131, Laxmi Nagar, Delhi. Unauthorized construction at the said property after its purchase on 23.06.2004 was carried out by accused Ashok Kumar Arora without any Building Plan sanctioned by MCD. He had constructed flats thereon and sold it to various buyers. Inspector Sanjay Dubey gave a complaint Ex.PW19/A on the basis of which FIR Ex.PW20/A of the present case was registered. 4 Investigation of the case was assigned to Inspector V.Balasubramanian(PW28). On 24.04.2007, he issued letters Ex.PW28/B1 to Ex.PW28/B6 to various Authorities regarding unauthorized construction in property No. J & K131, Laxmi Nagar, Delhi and replies Ex.PW28/C1 to C8 thereto were received. On 26.06.2007, IO issued letter Ex.PW28/D to SHO PS Shakarpur and AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 3 of 53 reply Ex.PW28/E along with annexure Ex.PW13/A i.e. unauthorized construction register was received from SHO Inspector S.P.Tyagi(PW11) PS Shakarpur. On the request of CBI, Sh. Radha Charan(PW17), the then SDM, submitted report Ex.PW17/A. On 29.08.2007, IO issued letters Ex.PW28/F1 and F2 to BSES Yamuna Power Ltd. and Delhi Jal Board. On 31.08.2007, IO issued a letter Ex.PW28/G to the DCP(East) and a copy Ex.PW7/A thereto was endorsed to SHO Shakarpur. Reply Ex.PW7/B along with annexure Ex.PW7/B1 i.e. complaint made with regard to unauthorized construction on the property in question, to the said letter was received which has been proved by ACP K.L.Meena(PW7). MCD submitted reply Ex.PW28/H along with annexure Ex.PW28/H1. On 24.09.2007, IO issued a letter Ex.PW28/J to Executive Engineer (Building), MCD Shahdara South Zone and a reply Ex.PW28/K thereto was received. IO also issued letter Ex.PW28/L to Sub RegistrarVIII. Reply Ex.PW10/B along with enclosures Ex.PW10/A1 to A8 was received from Sh.B.S.Arora(PW10), the then SubRegistrar.
5 Sh. V.K.Bugga(PW1), Chief Town Planner, MCD wrote a letter Ex.PW1/A to Inspector J.R.Katiar(PW26). Along with AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 4 of 53 this letter, PW1 had enclosed notification dated 14.07.1987 Ex.PW1/B. PW26 Inspector J.R.Katiar also collected letter dated 28.05.2007 Ex.PW28/M1, letter dated 31.05.2007 Ex.PW2/A written by Sh. M.R.Mittal(PW2), Executive Engineer,MCD, letter dated 14.06.2007 Ex.PW28/M2, letter dated 26.06.2007 Ex.PW28/M3, letter dated 5.10.2007 Ex.PW28/M4 and original diary registers Ex.PW6/A and Ex.PW6/B from Sh. Sanjeev Sharma(PW6), LDC, Building Department, MCD Shahdara South Zone. Inspector V.Balasubramanian(PW28) seized all the above documents from Inspector J.R.Katiar(PW26) vide memo Ex.PW26/A. 6 On 24.10.2007, IO(PW28) seized various office orders of MCD Ex.PW3/A1 to A8 from Sh. Bikram Jeet Singh(PW3), Assistant Engineer, vide memo Ex.PW3/A. On 27.06.2007, IO seized various documents from Dr. Meena Dhawan(PW27) vide seizure memo Ex.PW27/A. Will Ex.PW12/A of Meena Dhawan(PW27) was proved by Sh. Pankaj Joshi(PW12), the then SubRegistrar. On 28.06.2007, IO seized copy of sale deed ExPW14/A proved by Sh. Subhash Chand(PW14), SubRegistrar vide memo Ex.PW25/A from Smt. Sunita Rani Mahajan(PW25), owner of the flat in property in question. IO also seized various documents AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 5 of 53 Ex.PW15/A and Ex.PW18/B to Ex.PW18/G regarding ownership of the flat on the property in question vide memo Ex.PW18/A from Smt. Primala Malhotra(PW18). IO also seized various documents from Smt. Nutan Sharma vide memo Ex.PW28/N. He also seized various documents from Smt. Meenakshi Chauhan vide memoEx.PW28/P. IO also seized copy of GPA Ex.PW21/A from Ms. Himshikha Anand (PW21), owner of the flat on property in question, vide memo Ex.PW21/B. IO also seized copy of GPA Ex.PW24/A from Smt. Veena Anand (PW24), owner of the flat on property in question, vide memo Ex.PW24/C. IO also seized copy of GPA Ex.PW16/B and copy of Agreement to Sale Ex.PW16/C from Smt. Manju Goel(PW16), owner of the flat on property in question, vide memo Ex.PW16/A. 7 On 17.09.2007, IO seized various files Ex.PW20/A1 to A9 pertaining to electricity connections in property No. J & K131, Laxmi Nagar, Delhi from Sh.Hitesh Golash(PW20), Assistant Manager, BSES Yamuna Power Ltd. vide memo Ex.PW20/A. On 19.06.2007, IO issued a letter Ex.PW28/Q to Superintendent Engineer, CPWD, calling for details in respect of property in question and reply dated 6.9.2007 thereto was received. IO also seized water AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 6 of 53 connection files Ex.PW9/B to Ex.PW9/J pertaining to property in question which were sent to CBI vide letter E.PW9/A written by Sh. Din Mohd.(PW9).
8 During investigation, it revealed that despite having received 5 complaints against unauthorized construction in the property in question, no action was taken by accused R.K.Gupta, Rakesh Kumar and C.B.Singh. Neither the property was booked for unauthorized construction nor the same was demolished. It also revealed that by not taking any action, abovesaid MCD officials facilitated unauthorized construction on the property in question which was sold to innocent buyers by accused Ashok Kumar Arora. Investigation also revealed that accused R.K.Gupta, being Executive Engineer, accused Rakesh Kumar, being Assistant Engineer and accused C.B.Singh, being Junior Engineer, were required to make field visits once in 30 days, 15 days and 7 days respectively as per office orders issued by MCD, but despite thereof, no action was initiated by them which resulted in raising of unauthorized construction.
9 The sanction Ex.PW22/A for prosecution of accused C.B.Singh was accorded by Sh. Naresh Kumar (PW22). Since AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 7 of 53 accused R.K.Gupta and Rakesh Kumar had been compulsorily retired/ dismissed, no sanction for their prosecution was obtained. 10 After completion of the investigation, the challan was put up in the court where the accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 11 The charge under Section 120B IPC read with Section 13(2) read with Section 13(1)(d) of the P.C. Act was framed against all the accused persons. Charges under section 217/34 and section 13(2) read with section 13(1)(d) of the P.C.Act were framed against accused R.K.Gupta, Rakesh Kumar and C.B.Singh. Accused Ashok Kumar Arora was also separately charged for offence punishable under section 420 IPC. All the accused persons pleaded not guilty to the charges framed against them and claimed trial. 12 The prosecution has examined 28 witnesses in support of its case. PW1 Sh. V.K.Bugga was the Chief Town Planner of MCD. PW2 Sh. M.R.Mittal was the Executive Engineer of MCD, whereas PW3 Sh. Bikram Jeet Singh was the Assistant Engineer, PW4 Sh. R.K.Gupta was the Assistant Engineer, PW5 Sh. Sushil Kumar was the Superintending Engineer and PW6 Sh. Sanjeev Sharma was the LDC in MCD. PW7 Sh. K.L.Meena was ACP of AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 8 of 53 Delhi Police, PW11 Inspector S.P.Tyagi was the SHO PS Shakarpur, PW13 HC Surender Kumar was the Reader to SHO, whereas PW8 HC Shashikant was the beat constable. PW9 Sh. Deen Mohd was the ZRO of Delhi Jal Board. PW10 Sh. B.S.Arora, PW12 Sh. Pankaj Joshi, PW14 Sh. Subhash Chand and PW15 Sh. Ajay Rawal were the SubRegistrars. PW17 Sh. Radha Charan was the SDM. PW16 Smt. Manju Goel, PW18 Smt. Primala Malhotra, PW21 Ms. Himshikha Anand, PW24 Smt. Veena Anand and PW25 Smt. Sunita Rani Mahajan were the owners of the flats on the property in question. PW27 Dr. Meena Dhawan was the owner of the plot in question which was purchased by accused Ashok Kumar Arora. PW20 Sh. Hitesh Golash was the Assistant Manager, BSES Yamuna Power Ltd. PW23 Israr Ahmad was the Mason. PW19 Inspector Sanjay Dubey conducted preliminary inquiry and made the complaint. PW26 Inspector J.R.Katiar and PW28 Inspector V.Balasubramanian were the Investigating Officers. PW22 Sh. Naresh Kumar granted sanction for prosecution of accused C.B.Singh.
13 The statements of all the accused persons were recorded under Section 313 Cr.PC. The accused persons have denied the present case against them. Accused R.K.Gupta has stated that AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 9 of 53 J.E./A.E. has to take action on the complaint received for unauthorized construction and being Executive Engineer, he has to fix the demolition programme. He had marked the complaint to AE who further marked it to JE for taking action. He has stated that he has been falsely implicated in this case. In the preliminary inquiry, no role was attributed to him. He had followed the office orders/ rules under DMC Act. Ashok Kumar was not known to him and no loss was caused to the Government during his tenure in the area. 14 Accused Rakesh Kumar has stated that complaint was marked by him to JE for taking appropriate action. JE was required to book the property for unauthorized construction and then to put the file before the AE. In this case, file was never put up before him so he was not aware of any unauthorized construction. He had not hatched any conspiracy. He did not know Ashok Arora nor ever met him.
15 Accused C.B.Singh has stated that no complaint of unauthorized construction in respect of property in question was ever received nor it was ever marked to him. No construction was carried out in property in question during his tenure. He never met Ashok Kumar Arora and did not facilitate anyone in raising unauthorized AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 10 of 53 construction. Sanction was accorded by PW22 without application of mind in a mechanical manner. No loss was caused to the Government in his tenure. Initials in dispatch register were not his and overwriting in the same shows that the entries were fabricated subsequently. 16 Accused Ashok Kumar Arora has admitted that he sold properties to the buyers examined by the prosecution. He stated that at the time of purchase of properties, there was pakka construction. He stated that he is ready to get the building regularized on compounding and fee if any.
17 All the accused persons opted to lead evidence in their defence. Three defence witnesses, namely, Sh. Sushil Kumar (DW1), Sh. Hari Ram (DW2) and Sh. Virender Narula (DW3) have been examined by the accused persons in support of their defence. 18 DW1 Sushil Kumar, UDC, Office of Executive Engineer(Building) Shahdara South Zone, MCD has brought the summoned record of regularization order of property Nos. D63, G45, G60, G38A and of MB152 and G29A Shakarpur as Ex. DW1/A. He has further stated that as per their record, no site plan was sanctioned with regard to properties of J&K Block, Laxmi Nagara between 1997 to 2006.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 11 of 53 19 DW2 Sh. Hari Ram, Head Clerk/OI (Building), Shahdara South Zone has stated that as per RTI reply Ex.DW2/A sent to accused C.B. Singh, information contained therein is correct. He further stated that as per their record, no action was taken after 2006 on property No.131, J&K Block, Laxmi Nagar. DW3 Sh. Virender Narula has stated that he was residing at 115, Block J&K, Laxmi Nagar, Delhi. Property No.131, J&K Block, Laxmi Nagar, Delhi is situated in front of his house. He knew accused Ashok Kumar Arora as he used to be his neighbour. Accused Ashok Kumar Arora purchased the house nine years back. Before the purchase of property by accused Ashok Kumar Arora, it was built pucca and was three storey building.
20 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as learned defence counsels for accused persons. I have also carefully gone through their submissions and the record of the case.
21 Ld.PP for CBI has argued that the plot in question was owned by PW27 Dr. Meena Dhawan which was sold to accused Ashok Kumar Arora who raised unauthorized construction over it without getting any building plan sanctioned. He has further argued AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 12 of 53 that as per office order of MCD, accused R.K.Gupta, Rakesh Kumar and C.B.Singh being engineers were duty bound to take action against the unauthorized construction but they failed to do so. It is further argued that despite complaints received against unauthorized construction over plot in question, no action was taken by abovesaid accused persons. It is further argued that owners of the flats have deposed that accused Ashok Kumar Arora was the owner of the plot in question who sold flats to them.
22 It has been argued on behalf of accused R.K.Gupta that there is no allegations against the accused except that he received the complaints. It is further argued that on receipt of complaints, he had marked the same to AE and then AE to JE and no action was required to be taken at his end. It is further argued that there is no evidence of any inaction on the part of the accused warranting criminal prosecution against him. It is further argued that there is no system of monitoring/ keeping a watch on the action taken by the Assistant Engineer/ Junior Engineer in respect of complaints marked to them.
23 On behalf of accused Rakesh Kumar, it has been argued that no action was required to be taken by him as only Junior AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 13 of 53 Engineer was required to take action and since no action was initiated by the Junior Engineer as such he was not able to initiate any action. 24 On behalf of accused C.B.Singh, it has been contended that there is no evidence that the complaints of unauthorized constructions were marked to accused C.B.Singh. No sanction under section 197 Cr.P.C. for prosecuting him under section 120B IPC was granted. There is no evidence of prior meeting of minds and criminal conspiracy. CBI has failed to prove as to how much monetary loss was suffered by the MCD.
Criminal Conspiracy 25 The first question arises for consideration is whether there was any criminal conspiracy between the accused persons for facilitating accused Ashok Kumar Arora in raising unauthorized construction on property bearing No. J & K131, Laxmi Nagar, Delhi and not taking any action by accused R.K.Gupta, Rakesh Kumar and C.B.Singh, being engineers of the MCD, despite having received the complaints of unauthorized construction being raised thereon. 26 While dealing with criminal conspiracies, Hon'ble Apex Court in case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 observed that "to constitute a conspiracy, meeting of AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 14 of 53 minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 15 of 53 Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy."
27 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra 1980 SCC (Cri.) 493, the Hon'ble Supreme has also observed that "it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court." 28 It has been argued on behalf of accused persons that the CBI has failed to produce any evidence to prove the charge of criminal conspiracy. It is further argued that there is no evidence of prior meeting of minds of accused persons. Ld. Counsel for accused C.B.Singh has relied upon a judgment in case of Shreya Jha vs. CBI 2008(1) CC cases( HC) 346 in which it was observed that to draw a case under section 120B IPC, it must be shown that there was an agreement, link and nexus between the accused persons. The sine qua AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 16 of 53 non for a charge to be sustainable under section 120 B IPC is the agreement between the parties.
29 In the present case, it is alleged that accused Ashok Kumar Arora raised unauthorized construction on property No.J & K131, Laxmi Nagar, Delhi against which complaints were received for raising unauthorized consideration and despite the same, accused persons R.K.Gupta, Rakesh Kumar and C.B.Singh had not taken any action on the said unauthorized construction and thus caused pecuniary advantage to their coaccused Ashok Kumar Arora. 30 To prove its case, prosecution has examined PW27 Dr. Meena Dhawan who deposed that she was the owner of plot in J & K Block of Laxmi Nagar which she sold when it was plain and there was only kacha construction thereon. There were two kacha( temporary) rooms and kacha boundary wall for the plot. She stated that she had given documents Ex.PW27/A to the CBI including documents Ex.PW12/A. 31 During her cross examination, PW27 stated that she could not recollect as to whom she sold the property. However, she stated that kacha rooms on the plot were made of kachi mitti. 32 Document Ex.PW27/A is the production cum receipt AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 17 of 53 memo vide which documents given by PW27 Meena Dhawan were seized by the CBI. In these documents, there is an agreement to sell dated 23.06.2004 between PW27 Meena Dhawan being seller and Sh. Navnit Kumar and accused Ashok Kumar being purchaser. In this agreement to sell the plot in question i.e. plot No. 131, J & K Block, Laxmi Nagar, Delhi was sold to accused Ashok Kumar. Will Ex.PW12/A also shows that PW27 Meena Dhawan bequeathed the property in question in favour of Navnit Kumar and accused Ashok Kumar. Both these documents duly prove that accused Ashok Kumar Arora was the owner of the property in question vide agreement to sell dated 23.06.2004.
33 It has been argued by ld counsel for accused Ashok Kumar Arora that at the time of purchase of said plot, it was a fully constructed building and no unauthorized construction over it was raised by accused Ashok Kumar Arora. In support of his case, accused Ashok Kumar Arora examined one Virender Narula as DW3. He has deposed that he was residing at 115 Block J & K, Laxmi Nagar and the property No. 131, J & K, Laxmi Nagar, Delhi is situated in front of his house. He further deposed that accused Ashok Kumar Arora purchased the said property and before its purchase, it AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 18 of 53 was built pakka and was three storeyed building. Accused Ashok Kumar Arora in his statement under section 313 Cr.P.C. has also denied that at the time of purchase of property, there was kacha construction, rather pakka construction existed thereon at the time of its purchase.
34 The contention of accused Ashok Kumar Arora and defence produced by him has been negated by the testimony of PW27 Meena Dhawan. Firstly, it has not been denied by accused Ashok Kumar Arora that he purchased the property in question from Meena Dhawan(PW27). He had also not disputed the document collectively exhibited as Ex.PW27/A as per which property was sold to him vide agreement to sell dated 23.06.2004. He had also not objected the making of Will Ex.PW12/A by Meena Dhawan(PW27). 35 The only contention raised by accused Ashok Kumar Arora is that at the time of purchase of property in question, there was a three storeyed building and there was no temporary construction thereon. PW27 Dr. Meena Dhawan who was the owner has specifically stated that when she sold the plot vide documents Ex.PW27/A and Ex.PW12/A, there was only kacha construction. No suggestion was given to this witness to the effect whether there AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 19 of 53 was three storeyed building or permanent structure at the time of its sale to accused Ashok Kumar Arora. So, from the oral testimony of PW27 and the documents Ex.PW27/A and Ex.PW12/A, it has been duly established that accused Ashok Kumar Arora was the owner of property in question and he raised construction thereon after its purchase from Meena Dhawan.
36 PW16 Smt. Manju Goel has deposed that in the year 2005, she purchase one flat on the ground floor of property No. 131, J & K Block, Laxmi Nagar from accused Ashok Kumar. She further deposed that the building was constructed by accused Ashok Kumar and prior to construction, there existed only kacha structure on the plot. She handed over GPA and agreement to sell Ex.PW16/B and Ex.PW16/C to the CBI vide memoEx.PW16/A. 37 PW18 Smt.Primala Malhotra has stated that she had booked flat on second floor of property No. J & K, 131, Laxmi Nagar, Delhi from accused Ashok Kumar Arora. At that time, some documents were executed. Document Ex.PW18/A was executed which was handed over to CBI. She proved the copy of GPA as Ex.PW15/A, agreement to sell as Ex.PW18/B, copies of water and electricity bills Ex.PW18/C to Ex.PW18/G. During cross AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 20 of 53 examination, she stated that she was told that buildings were not approved in Laxmi Nagar.
38 PW21 Ms. Himshikha Anand has stated that she purchased a flat at property No. J & K131, first floor, Laxmi Nagar, Delhi from Navnit Kumar and accused Ashok Kumar Arora vide GPA Ex.PW21/A which was handed over to CBI vide memoEx.PW21/B. She further stated that there were six flats in the building which was built up to third floor. During cross examination by Ld. PP for CBI, this witness stated that accused Ashok Kumar Arora informed her that the building plan was not got sanctioned from MCD. 39 Similarly, Smt. Veena Anand(PW24) and Smt. Sunita Rani Mahajan(PW25) have deposed that they purchased flat in the property in question from accused Ashok Kumar Arora. 40 Sh.B.S.Arora(PW10), Sh. Subhash Chand(PW14) and Sh. Ajay Rawal(PW15), the then Sub Registrars, have proved the ownership documents as Ex.PW10/A1 to A8 of the flats purchased by different buyers on the property in question. 41 As per the oral testimony of abovesaid owners of flats, they had purchased the flats on the property in question from accused Ashok Kumar Arora and as per their statements, a new AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 21 of 53 construction was raised on the building when the flats were purchased by them. The documents Ex.PW10/A1 to A8 also prove that accused Ashok Kumar Arora was the owner of the property in question and sold the flats to different buyers. 42 The prosecution has examined Sh. V.K.Bugga(PW1), Chief Town Planner, MCD who deposed that vide letter dated 24.04.2007 Ex.PW1/A, he informed the CBI that Laxmi Nagar Area was an unauthorized regularized colony. He proved the notification dated 14.07.1987 as Ex.PW1/B. 43 PW2 Sh. M.R.Mittal, the then Executive Engineer, MCD, has deposed that vide letter Ex.PW2/A, he informed the CBI that in case property falls in Lal Dora/ extended Lal Dora, no prior sanction is required. However, if property falls in unauthorized regularized colony, sanction is required.
44 As per notification Ex.PW1/B, Laxmi Nagar Complex in which the property in question falls was an unauthorized regularized colony. As per the testimony of PW2 Sh. M.R.Mittal, if the property falls in unauthorized regularized colony, sanction of prior building plan is necessary. But in the present case, it is clear from the evidence discussed above that no building plan was got AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 22 of 53 sanctioned by accused Ashok Kumar Arora prior to raising construction thereon and in the absence of building plan sanctioned, construction thereon was unauthorized. Accused Ashok Kumar Arora in his statement under section 313 Cr.P.C. has also admitted that he had not got the building plan sanctioned for the property in question and he was ready to get the building regularized on compounding and fee. Thus, to the admission of accused Ashok Kumar Arora himself, construction on the property in question raised by him was unauthorized.
45 The prosecution has examined Sh. R.K.Gupta(PW4), the then Assistant Engineer, MCD, who deposed that construction watch register is maintained wardwise by the Junior Engineer in which he records his observations about the stage of construction of a building. He further deposed that it is the duty of Junior Engineer to inspect every construction whether it is unauthorized or with sanction. There is circular in which a procedure of dealing with the properties mentioned in construction watch register including test check is mentioned. In cases of unauthorized construction, manual of instructions has been issued by the Department. 46 Sh. Sushil Kumar(PW5), Superintending Engineer AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 23 of 53 has also narrated the procedure about unauthorized construction. He deposed that booking of unauthorized construction is done by Junior Engineer and unauthorized construction means any construction carried out without the sanctioned building plan. After booking, unauthorized construction file is put up by Junior Engineer to Assistant Engineer for passing demolition order. Prior to issuance of demolition order, a show cause notice is issued to the owner of building. Demolition action is taken by the Junior Engineer. This witness specifically stated that it is the duty of Junior Engineer and Assistant Engineer to ensure that demolition is actually carried out. 47 PW3 Sh. Bikram Jeet Singh, Assistant Engineer(Building), MCD, has stated that vide memo Ex.PW3/A, he had handed over documents Ex.PW3/A1 to A8 to CBI. 48 Ex.PW3/A1 is the circular of MCD dated 22.03.1999 with regard to working of Building Department of MCD. It is mentioned therein that whenever any unauthorized construction against sanctioned building plan is noticed by the Junior Engineer, he is to prepare FIR and show cause notice and put up to the Assistant Engineer. These notices will be issued by the Assistant Engineer and demolition order will be passed by Assistant Engineer. The Assistant AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 24 of 53 Engineer was to carry out test check of 40% of unauthorized construction and the test check for Executive Engineer was 20%. It is further mentioned that it is incumbent on the part of Junior Engineer, Assistant Engineer and Executive Engineer of Building Department to have complete inspection of the area within 3 days, 7 days and 10 days respectively to ensure that all the effective actions are taken against the unauthorized constructions. The Junior Engineer and Assistant Engineer shall work under the direct supervision of the Executive Engineer.
49 As per Circular dated 15.01.2001 Ex.PW3/A2, it was reiterated that record be maintained and the action be taken against the unauthorized construction as per Circular dated 22.03.1999 Ex.PW3/A1.
50 Vide office order dated 20.08.2001 Ex.PW3/A4, MCD had resolved that the period of inspection was increased to 7 days for J.E., 15 days for A.E. and 30 days of E.E. for effective inspection of the area. It is also mentioned that each officer who carries out inspection of the area, was to submit weekly inspection report to the next higher officer in hierarchy.
51 As per office order dated 6.2.2003 Ex.PW3/A6, AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 25 of 53 Junior Engineer had to submit a certificate on first day of each week that he had taken all actions against unauthorized construction. The Assistant Engineer had to check the authenticity of such certificates during his inspection and submit a weekly certificate to Executive Engineer that action has been initiated against all unauthorized constructions. Similarly, weekly certificate were to be submitted by the Executive Engineer to Superintending Engineer. 52 As per office order of MCD Ex.PW3/A1, accused R.K.Gupta, Rakesh Kumar and C.B.Singh, being EE, AE and JE respectively, of the Building Department of the MCD, were duty bound to carry out physical inspection of the area and had to submit a report with regard to their visit and the unauthorized constructions noticed during their physical inspection. As per Ex.PW3/A1, these Engineers were to carry physical inspection within 10 days, 7 days and 3 days respectively but in the present case despite standing instructions of MCD, they had not taken any action against the unauthorized construction raised by accused Ashok Kumar Arora on the property in question. The physical inspection period for EE, AE and JE was enhanced to 30 days, 15 days and 7 days respectively vide office order Ex.PW3/A4.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 26 of 53 53 The unauthorized construction on the property in question was noticed by PW8 HC Shashi Kant. He has deposed that during the year 2004, he was posted as Head Constable at PS Shakarpur and was given the beat duty of area of J & K Block,Laxmi Nagar. He has further deposed that in the month of September, he had noticed unauthorized construction on property No. 131, J & K Block, Laxmi Nagar. He filled the form Ex.PW7/B1 meant for reporting unauthorized construction. Perusal of Ex.PW7/B1 shows that it was addressed to Dy. Commissioner, MCD, Shahdara, Zone regarding unauthorized construction and sent to him on 8.9.2004. 54 PW7 Sh. K.L.Meena, the then ACP of Delhi Police, has stated that office of DCP sent reply Ex.PW7/B to the CBI enclosing therewith copy of complaint of unauthorized construction Ex.PW7/B1.
55 PW13 HC Surendra Kumar has produced the original unauthorized construction register of PS Shakarpur for the period 2001 to 2004 and proved the extract of page No. 157 of the register as Ex.PW13/A. Perusal of extract Ex.PW13/A of unauthorized construction register of PS Shakarpur shows that on 1.9.2004, unauthorized construction on property in question i.e. J & K131, AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 27 of 53 Laxmi Nagar was noticed and its intimation was given on 8.9.2004. 56 PW6 Sh. Sanjeev Sharma, the then LDC, Building Department, MCD produced diary registers for the period 16.03.2004 to 14.09.2004 and from 16.09.2004 to 23.02.2005 and proved the same as Ex.PW6/A and Ex.PW6/B. As per his statement, vide entries No. 5379 dated 23.11.2004, No. 5424 dated 25.11.2004, No. 5656 dated 9.12.2004 and No.5694 dated 10.12.2004 in register Ex.PW6/A, complaints regarding unauthorized construction at property No. 131, J & K Block, Laxmi Nagar were received. He also stated that entry No. 4227 dated 15.09.2004 in register Ex.PW6/B, complaint of unauthorized construction with regard to property in question was received. He specifically stated that all the above 5 complaints were marked to and received by accused C.B.Singh against his signatures. During his cross examination, this witness denied that none of the complaints was marked to accused C.B.Singh.
57 It has been argued by ld counsel for accused C.B.Singh that none of the complaints allegedly received in MCD was ever marked to him and the same have been fabricated just to falsely implicate him in the present case.
58 As per testimony of PW6 Sh. Sanjeev Sharma, AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 28 of 53 complaints regarding unauthorized construction on the property in question were received in MCD which were marked to accused C.B.Singh being Junior Engineer and Incharge of the Ward. The oral testimony of PW6 has duly been corroborated by the entries in registers Ex.PW6/A and Ex.PW6/B which clearly show that complaints regarding unauthorized construction on the property in question were made which were assigned to accused C.B.Singh. The raising of unauthorized construction has also been corroborated by the complaint of HC Shashi Kant(PW8), Beat Constable of the area who made a written complaint by filling a form Ex.PW7/B1. No ill will, no motive or hostility has been imputed to above official witnesses of MCD and Delhi Police by accused C.B.Singh for falsely implicating him in the present case. Even no suggestion was given to the above witnesses as to whether they had any grudge or enmity against accused C.B.Singh which prompted them to depose against him.
59 As discussed above, accused R.K.Gupta, Rakesh Kumar and C.B.Singh, being EE, AE and JE of the area, were duty bound to carry out physical inspections of the area within the time prescribed as per circulars of MCD Ex.PW3/A1 and Ex.PW3/A4, AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 29 of 53 but they failed to do so and in disobedience to the MCD's Circulars, they had not carried out any physical inspection and had not taken any coercive action against the unauthorized construction raised by accused Ashok Kumar Arora on the property in question which caused pecuniary advantage to accused Ashok Kumar Arora and corresponding loss to MCD. The nontaking of any action on unauthorized construction on property in question raised by accused Ashok Kumar Arora, by accused R.K.Gupta, Rakesh Kumar and C.B.Singh proves their prior meeting of mind in facilitating their co accused Ashok Kumar Arora in raising unauthorized construction. Thus the authority relied upon by accused C.B.Singh in case of Shreya Jha (supra) is of no help to him as the prosecution has successfully proved the criminal conspiracy between accused persons. In view of above discussed evidence and documents proved, the prosecution has successfully established the charge of criminal conspiracy against all accused persons.
60 Consequently, all the accused persons, namely, R.K.Gupta, Rakesh Kumar, C.B.Singh and Ashok Kumar Arora are held guilty for the offence punishable under section 120B IPC. AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 30 of 53 Offence under section 217/34 I.P.C.
61 Accused R.K.Gupta, Rakesh Kumar and C.B.Singh have also been charged for offence punishable under section 217/34 IPC. As per the definition of Section 217 IPC, public servant who disobeys the direction of law with the intent to save person from punishment or property from forfeiture, shall be liable to punishment. 62 For bringing a guilt of an accused for the offence punishable under Section 217 IPC, the prosecution is required to satisfy that he has disobeyed the direction of law or the instructions of the MCD. In the present case, it has been alleged that despite having received the complaints regarding unauthorized construction on the property in question, above accused persons had not followed the instructions by the MCD to take action as per instructions contained in MCD's Circulars Ex.PW3/A1 and Ex.PW3/A4.
63 PW3 Sh. Bikram Jeet Singh, Assistant Engineer (Building), MCD has proved circulars/ office orders of MCD as Ex.PW3/A1 to A8 which mandate the physical inspection of the unauthorized constructions taking place in the area by the Executive Engineer, Assistant Engineer and Junior Engineer. As per Circular Ex.PW3/A1 of MCD dated 22.03.1999, whenever any unauthorized AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 31 of 53 construction against sanctioned building plan is noticed by the Junior Engineer, he is to prepare FIR and show cause notice and put up to the Assistant Engineer. These notices will be issued by the Assistant Engineer and demolition order will be passed by Assistant Engineer. The Assistant Engineer was to carry out test check of 40% of unauthorized construction and the test check for Executive Engineer was 20%. It further mandates that it is incumbent on the part of Junior Engineer, Assistant Engineer and Executive Engineer of Building Department to have complete inspection of the area within 3 days, 7 days and 10 days respectively to ensure that all the effective actions are taken against the unauthorized constructions. As per Circular dated 15.01.2001 Ex.PW3/A2 which is in continuation of earlier Circular of MCD Ex.PW3/A1, the record regarding unauthorized construction is to be maintained and the action be taken against the unauthorized construction. Vide office order dated 20.08.2001 Ex.PW3/A4, the period of inspection was increased to 7 days for J.E., 15 days for A.E. and 30 days of E.E. for effective inspection of the area. It is also mentioned that each officer who carries out inspection of the area, was to submit weekly inspection report to the next higher officer in hierarchy.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 32 of 53 64 As per office order dated 6.2.2003 Ex.PW3/A6, Junior Engineer had to submit a certificate on first day of each week that he had taken all actions against unauthorized construction. The Assistant Engineer had to check the authenticity of such certificates during his inspection and submit a weekly certificate to Executive Engineer that action has been initiated against all unauthorized constructions. Similarly, weekly certificate were to be submitted by the Executive Engineer to Superintending Engineer. 65 Accused R.K.Gupta, Rakesh Kumar and C.B.Singh, being Executive Engineer, Assistant Engineer and Junior Engineer respectively, of the Building Department of the MCD, were duty bound to carry out physical inspection of the area and had to submit a report with regard to their visit and the unauthorized constructions noticed during their physical inspection, as per office order of MCD Ex.PW3/A1. These accused persons were to carry physical inspection within 10 days, 7 days and 3 days respectively but in the present case despite clear cut instructions of MCD, they had not taken any action against the unauthorized construction raised by accused Ashok Kumar Arora on the property in question. The physical inspection period for EE, AE and JE was enhanced to 30 days, 15 AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 33 of 53 days and 7 days respectively vide office order Ex.PW3/A4 which has also not been followed by these accused persons. 66 PW8 HC Shashi Kant who was the duty constable in the area in which the property in question was situated has deposed that in the month of September, he had noticed unauthorized construction on property No.131, J & K Block, Laxmi Nagar. He filled the form Ex.PW7/B1 i.e. the complaint with regard to unauthorized construction noticed by him on the property in question. In the form/complaint Ex.PW7/B1, it has been reported by PW8 that unauthorized construction was noticed by him and the said information was sent by him. PW7 Sh. K.L.Meena, the then ACP of Delhi Police corroborated the statement of PW8 HC Shashi Kant top the effect that office of DCP received the said complaint and information of the same was sent to the CBI by annexing the copy of complaint Ex.PW7/B1.
67 Unauthorized construction on the property in question has also been corroborated by the extract of page No. 157 of unauthorized construction register Ex.PW13/A which shows that unauthorized construction on the property in question was noticed on 1.9.2004 and intimation in this regard was sent Deputy Commissioner AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 34 of 53 of MCD on 8.9.2004.
68 The diary registers for the period 16.03.2004 to 14.09.2004 and from 16.09.2004 to 23.02.2005 Ex.PW6/A and Ex.PW6/B respectively have been produced on record by PW6 Sh. Sanjeev Sharma. As per his oral testimony, vide entries No. 5379 dated 23.11.2004, No. 5424 dated 25.11.2004, No. 5656 dated 9.12.2004 and No.5694 dated 10.12.2004 in register Ex.PW6/A and entry No. 4227 dated 15.09.2004 in register Ex.PW6/B, complaints regarding unauthorized construction at property No.131, J & K Block, Laxmi Nagar were received in MCD. As per his deposition, the said complaints were marked to accused C.B.Singh who received the same against his signatures.
69 It has been argued on behalf of accused C.B. Singh that no such complaint was ever received by him and the same was never marked to him. It has also been argued that the entries in the diary registers Ex.PW6/A and Ex.PW6/B are forged. It has been argued on behalf of accused R.K. Gupta and Rakesh Kumar that the complaints received regarding unauthorized construction were marked to Junior Engineer for appropriate action and no action was required to be taken at their end. Ld. Counsel for accused R.K. Gupta AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 35 of 53 has relied upon an authority in case of Anil Kumar Bose Vs. State of Bihar (1974) 4 SCC 616 in which it was observed that a failure on the part of the concerned employee to perform his duty or to observe the rules of procedure laid down in the Duty Chart in a proper manner may be an administrative lapse on his part which per se cannot be equated with dishonest intention.
70 Firstly, as per office orders/circulars of MCD Ex.PW3/A1 and Ex.PW3/A4, all the, namely, R.K. Gupta, Rakesh Kumar and C.B. Singh were duty bound to physically inspect the sites of unauthorized constructions and they were also duty bound to report it to their higher officers in hierarchy. But it has been established from the evidence produced on record that they had not complied with the directions issued by MCD by way of circulars/office orders. It has not been shown by any of these accused persons that they ever visited the area in their control and noticed any unauthorized construction, rather as per complaint Ex.PW7/B1 and the complaints received in diary registers Ex.PW6/A and Ex.PW6/B it has been duly established that unauthorized construction on the property in question was raised by accused Ashok Kumar Arora during their tenure. 71 So far as contention regarding nonmarking of AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 36 of 53 complaints mentioned in diary registers Ex.PW6/A and Ex.PW6/B to accused C.B. Singh with regard to unauthorized construction on the property in question is concerned, the testimony of PW6 Sh. Sanjeev Sharma and the entries in the registers clearly proves that the complaints were received against the unauthorized construction and the same were marked to accused C.B. Singh. Even otherwise, accused R.K. Gupta and Rakesh Kumar in their statements under Section 313 Cr.P.C. have admitted the receipt of said complaints and marking of same to accused C.B. Singh. There is nothing contrary to the oral as well as documentary evidence of PW6 has been brought on record by accused C.B. Singh to establish that the same were forged or the same were not marked to him for taking appropriate action. 72 So far as mens rea or dishonest intention as contended by accused R.K. Gupta is concerned, there is clear evidence against accused R.K. Gupta, Rakesh Kumar and C.B. Singh that they had not followed the instructions contained in the office order/circulars of MCD as referred to above and thus committed dereliction in their duty in ignoring the unauthorized construction raised by their coaccused Ashok Kumar Arora. All this inaction on their part and nonobedience of circulars of MCD shows their AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 37 of 53 intention in facilitating their coaccused Ashok Kumar Arora. 73 Accused persons have also examined DW1 Sh. Sushil Kumar who deposed that building plan on certain properties in the area of Shakar Pur and Laxmi Nagar, which were in the near vicinity of property in question were sanctioned by the MCD. The evidence of this witness is of no help to accused persons inasmuch as it has already come in evidence that no building plan was got sanctioned for the property in question and that unauthorized construction over it was raised by accused Ashok Kumar Arora.
74 The above evidence and the discussion clearly proves the case of prosecution against accused R.K. Gupta, Rakesh Kumar and C.B. Singh that they knowingly disobeyed the directions of MCD issued vide office order/circulars Ex.PW3/A1 and Ex.PW3/A4 whereby they protected the unauthorized construction raised by their coaccused Ashok Kumar Arora on property No.J & K131, Laxmi Nagar, Delhi.
75 Consequently, accused R.K. Gupta, Rakesh Kumar and C.B. Singh are hereby held guilty for the offence punishable under Section 217/34 IPC.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 38 of 53 Offence U/s 420 IPC 76 Accused Ashok Kumar Arora has been charged for the offence punishable under Section 420 IPC. It is alleged against accused Ashok Kumar Arora that he unauthorizedly constructed flats in the property in question i.e. J & K131, Laxmi Nagar, Delhi and thereafter sold the said flats to different purchasers under the impression that the said flats were authorized and free from all sorts of encumbrances.
77 Section 420 IPC provides for punishment for those who cheats and thereby dishonestly induces the deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. 78 Term "cheating" has been defined in Section 415 of IPC. It defines whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 39 of 53 to that person in body, mind, reputation or property, is said to "cheat". 79 For bringing a guilt of a person within the purview of offence under Section 420 IPC, there is requirement of a complaint by a the person so aggrieved that he has been cheated or deceived by the culprit to deliver any property or omit to do anything which he would not do or omit if he was not so deceived.
80 In the present case, there is no complaint against accused Ashok Kumar Arora that he deceived any buyer of the flat with the false promise that the flats so sold were not authorized or were not free from all sorts of encumbrances. As per definition of cheating, as provided in Section 415 IPC, there must be a person who has been deceived. But in the present case, neither there is any complaint against accused Ashok Kumar Arora that he committed any cheating with any person or buyer of the flats of property No.J & K131, Laxmi Nagar, Delhi nor there is any evidence against him that he cheated any of the buyers of the flats on the said property. 81 In the absence of any complaint or evidence against accused Ashok Kumar Arora with regard to commission of cheating by him with the flat owners, the prosecution has miserably failed to prove the charge of offence under Section 420 IPC. Consequently, AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 40 of 53 accused Ashok Kumar Arora is acquitted for the offence punishable under Section 420 IPC.
Criminal misconduct 82 It is alleged against accused R.K. Gupta, Rakesh Kumar and C.B. Singh that being public servants and while posted as Executive Engineer, Assistant Engineer and Junior Engineer respectively in the building department of MCD, they abused their official position in not taking any action on the unauthorized construction on the property of their coaccused Ashok Kumar Arora and thus caused pecuniary advantage to him.
83 As discussed in the earlier part of the judgment, accused R.K. Gupta, Rakesh Kumar and C.B. Singh being public servants were duty bound to notice the unauthorized construction being raised in their area of jurisdiction. It has so been mandated in the office order/circular of MCD Ex.PW3/A1 and Ex.PW3/A4. But these accused persons voluntarily did not notice or conduct any physical inspection of the area in their jurisdiction just to show undue favour to their coaccused Ashok Kumar Arora in raising the unauthorized construction on the property in question i.e. J & K131, Laxmi Nagar, Delhi. Neither the property in question was booked by AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 41 of 53 them nor any coercive action was taken by them despite receipt of complaints as mentioned in diary registers Ex.PW6/A and Ex.PW6/B. Even the complaint regarding unauthorized construction on the property in question was made by the Delhi Police and despite the same, no action with regard to it was taken by accused R.K. Gupta, Rakesh Kumar and C.B. Singh for its booking or carrying out demolition.
84 As per statement of PW2 Sh. M.R. Mittal, being unauthorized regularized colony, there was necessity to get the building plan sanctioned in the area of Laxmi Nagar Complex where the property in question was situated. It is admitted case of accused Ashok Kumar Arora himself that he did not get the building plan sanctioned for the construction raised by him. All this shows that the construction raised by accused Ashok Kumar Arora on the property in question was unauthorized construction and despite same, accused R.K. Gupta, Rakesh Kumar and C.B. Singh neither booked the same nor took any action against the said unauthorized construction. 85 Sanction order for prosecution of accused C.B. Singh has been proved on record by PW22 Sh. Naresh Kumar. This witness has deposed that during June 2007, he was posted as Addl. AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 42 of 53 Commissioner, MCD, Delhi. In that capacity, he was competent to accord sanction for prosecution of Junior Engineer. Vide order dated 11.12.2007 Ex.PW22/A, he granted sanction for prosecution of accused C.B. Singh after perusing the relevant documents which were put up before him and after independently applying his mind. 86 This witness was crossexamined at length, but the defence has failed to put any dent to his testimony. 87 The accused C.B. Singh has failed to show anything that PW22 Sh. Naresh Kumar was not competent to accord sanction or the sanction accorded by him was without application of mind. On the other hand, it has duly been established that Sh. Naresh Kumar (PW22) was competent to grant sanction for prosecution of accused C.B. Singh and the sanction accorded by him was proper and valid. 88 In view of above discussion, prosecution has successfully established its case against accused R.K. Gupta, Rakesh Kumar and C.B. Singh that by abusing their official positions as public servants, they facilitated his coaccused Ashok Kumar Arora by not taking any action on his property No.J & K131, Laxmi Nagar, Delhi despite having knowledge of unauthorized construction over it with a view to cause pecuniary advantage to him and thus committed AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 43 of 53 a criminal misconduct. Therefore, accused R.K. Gupta, Rakesh Kumar and C.B. Singh are held guilty under Section 13(2) read with Section 13(1)(d) of the P.C.Act.
Conclusion 89 The prosecution has successfully established that there was criminal conspiracy between all the accused persons, object of which was to cause pecuniary advantage to accused Ashok Kumar Arora, who was the owner/builder of the property in question. It has been established that accused Ashok Kumar Arora was the owner/ builder of the property bearing No.J & K131, Laxmi Nagar, Delhi and thereupon he raised unauthorized construction. It has also been established that when the said property was purchased by him from PW27 Meena Dhawan, it was having only temporary structure and unauthorized construction over it was raised by accused Ashok Kumar Arora booked for raising unauthorized construction raised. 90 It has further been established that accused Ashok Kumar Arora raised unauthorized construction on the property in question. It has further been established that several complaints were received with regard to unauthorized construction on the property in question which were assigned to accused C.B. Singh, but despite that AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 44 of 53 no action was taken by accused R.K. Gupta, Rakesh Kumar and C.B. Singh despite receipt of complaints.
91 It has further been established that Delhi Police also complained against the unauthorized construction on the property in question, but despite receipt of said complaint also, no action on the same was taken by accused R.K. Gupta, Rakesh Kumar and C.B. Singh.
92 It has further been established that as per office orders/circulars of MCD Ex.PW3/A1 and Ex.PW3/A4, accused R.K. Gupta, Rakesh Kumar and C.B. Singh were duty bound to physically inspect the area in their jurisdiction. It has been proved on record that accused R.K. Gupta, Rakesh Kumar and C.B. Singh neither booked the property in question despite raising unauthorized construction over it nor took any action for the same, despite having clear cut directions of MCD that accused R.K. Gupta, Rakesh Kumar and C.B. Singh being Executive Engineer, Assistant Engineer and Junior Engineer were duty bound to physically inspect the sites. 93 The prosecution has failed to establish that there is any complaint against accused Ashok Kumar Arora to the effect that he committed cheating with any of the flat owners by selling the flats AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 45 of 53 to them under the pretext that the same were authorized or free from all sorts of encumbrances, nor there is any evidence on record that he committed any cheating with any of the flat owners. 94 Prosecution has established that accused R.K. Gupta, Rakesh Kumar and C.B. Singh while posted as Executive Engineer, Assistant Engineer and Junior Engineer respectively had not taken any action on the unauthorized construction over the property in question and thus abused their official position as a public servants thereby facilitated their coaccused Ashok Kumar Arora in raising unauthorized construction and causing pecuniary advantage to him. 95 In view of above discussion, evidence and material on record, all the accused persons, namely, R.K. Gupta, Rakesh Kumar, C.B. Singh and Ashok Kumar Arora are hereby held guilty for commission of offence under section 120B IPC read with section 217 IPC and 13(2) read with section 13(1)(d) of P.C.Act. Accused R.K. Gupta, Rakesh Kumar and C.B. Singh are also held guilty for commission of offence under Section 217 IPC and under Section 13(2) read with section 13(1)(d) of P.C.Act as they used their official position being public servants and facilitated their coaccused Ashok Kumar Arora in raising unauthorized construction and caused AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 46 of 53 pecuniary advantage to him. Accordingly, all the accused persons are convicted for the abovesaid offences.
96 Accused Ashok Kumar Arora is acquitted for the offence punishable under Section 420 IPC.
Announced in the open Court ( P.S. TEJI )
Dated: 08.04.2013 District & Sessions Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 47 of 53
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.03/2008 Unique Case ID No.02402R0002612008 FIR No.RC SIB 2007 E0002 Under Sections 120B read with 217/420 IPC & 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) R.K.Gupta
S/o Late Sh. Kishori Lal
R/o 137, Savita Vihar,Delhi92.
(2) Rakesh Kumar
S/o Late Sh. Jwala Prasad
R/o 82, Nimri Colony, Delhi52.
(3) C.B.Singh
S/o Late Sh. J.S.Prasad
R/o E339, East Vinod Nagar,
Delhi91.
(4) Ashok Kumar Arora
S/o Late Sh. Sohan Lal
R/o 486, West Guru Angad Nagar,
Laxmi Nagar, Delhi.
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 48 of 53
ORDER ON SENTENCE
I have heard Sh. Dhruv Kumar Sharma, Ld. Counsel
for convict R.K. Gupta, Sh. Rashid Hashmi, Ld. Counsel for convict Rakesh Kumar, Sh. Sanjay Gupta, Ld. Counsel for convict C.B. Singh, Sh. Manoj K. Srivastava and Ld. Cuonsel for convict Ashok Kumar Arora as well as Sh. S. Krishna Kumar, Ld. PP for the CBI on the quantum of sentence.
2 The learned PP for the CBI has submitted that the convicts have been held guilty for commission of criminal conspiracy. Convicts R.K. Gupta, Rakesh Kumar and C.B. Singh, being public servants, by misusing their official position caused pecuniary advantage to their coconvict Ashok Kumar Arora by allowing him to raise unauthorized construction and not taking any action against the said unauthorized construction. He has submitted that unauthorized construction on large scale is going on unchecked by the private builders in connivance with government officials and they have made mockery of the system. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.
3 The learned counsel for convict R.K. Gupta has AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 49 of 53 submitted that the convict is aged about 55 years. He is the sole bread earner of the family. He is having two sons who are still studying and the entire family is dependent upon him. On behalf of convict Rakesh Kumar, it is submitted that the convict is aged about 50 years. He is having three children in his family. His daughter is 22 years old who is unmarried. Convict is having two sons aged 21 years and 7 years. It is further submitted that wife of the convict has already expired and he is the only male member to look after his children. 4 On behalf of convict C.B. Singh, it is submitted that he is aged about 47 years. He his having wife aged 45 years, daughter aged 22 years and son aged 17 years in the family. Apart from them, convict is also having old aged ailing mother in the family to look after who is suffering from cancer. Medical documents in support of illness of mother of convict C.B. Singh have been filed. Convict is the sole bread earner of the family and entire family is dependent upon him. On behalf of convict Ashok Kumar Arora, it is submitted that he is aged about 49 years. He is the sole bread earner of the family. In his family, he is to support of his wife, son aged 18 years old and divorced daughter. Ld. Counsels for the convicts have submitted that in view of their familial circumstances, a lenient view AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 50 of 53 may be taken while awarding sentence to them.
5 Vide judgment dated 08.04.2013, all the convicts, namely, R.K. Gupta, Rakesh Kumar, C.B. Singh and Ashok Kumar Arora have been convicted under Section 120B IPC read with Section 217 of IPC and 13(2) read with Section 13(1)(d) of P.C. Act. Convict R.K. Gupta, Rakesh Kumar and C.B. Singh have also been convicted under Section 217 IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act.
6 Considering the circumstances under which the offences were committed, convicts are sentenced as under :
(i)Convict R.K. Gupta is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 217 IPC and 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(ii)Convict R.K. Gupta is awarded sentence of one year rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 217 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for three months.
(iii)Convict R.K. Gupta is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 51 of 53 In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(iv)Convict Rakesh Kumar is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 217 IPC and 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(v)Convict Rakesh Kumar is awarded sentence of one year rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 217 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for three months.
(vi)Convict Rakesh Kumar is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(vii)Convict C.B. Singh is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 217 IPC and 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(viii)Convict C.B. Singh is awarded sentence of one year rigorous AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 52 of 53 imprisonment with fine of Rs.25,000/ for the offence punishable under Section 217 IPC. In default of payment of fine, convict shall further undergo simple imprisonment for three months.
(ix)Convict C.B. Singh is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
(x)Convict Ashok Kumar Arora is awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ for the offence punishable under Section 120B IPC read with Section 217 IPC and 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, convict shall further undergo simple imprisonment for six months.
7 All the sentences of the convicts R.K. Gupta, Rakesh Kumar and C.B. Singh shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts. File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 11.04.2013 District & Sessions Judge (East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.03/2008 CBI Vs. R.K.Gupta etc. Page 53 of 53