Delhi District Court
Cbi vs . (I) Ashok Kumar (A1) on 15 November, 2016
100
IN THE COURT OF SH. SANJEEV AGGARWAL: SPECIAL
JUDGE: CBI03 (PC ACT): DELHI
CC No.08/15 (New Registration
No.532190/16)
RC No.52(A)/2000
CBI/ACB/ND
U/s : 120B /109 IPC and 13(2) r/w Sec.13(1)(e) of PC Act,
1988
CBI Vs. (i) Ashok Kumar (A1)
S/o Sh.Bansi Lal
R/o MCD Flats, D1, Bungalow Road,
Delhi.
(ii) Smt. Maya Devi (A2)
W/o Ashok Kumar
R/o MCD Flats, D1, Bungalow Road,
Delhi.
(iii) Ajay Gupta (A3)
Director of Sybron Leasing & Financial
Services
ELLAAR House 8358, Modal Basti
New Delhi.
(iv) Subhash Gupta (A4)
R/o 8268, New Anaj Mandi,
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Near Filmistan Cinema
Delhi.
(v) Atul Goyal partner (A5)
M/s Pace Financial Services
A1/129, Safdarjung Enclave, New Delhi.
(since discharged)
Date of Institution : 28.10.2003
Arguments concluded : 21.10.2016
Judgment Delivered : 15.11.2016
J U D G M E N T :
1. Brief facts as set out in the chargesheet are as under:
This case was registered on 20.07.2008 on the basis of
source information against Sh. Ashok Kumar, Deputy
Commissioner, MCD, Sadar Paharganj Zone, New Delhi, R/o D1,
MCD Flats Bunglow Road, Delhi that he had amassed huge assets
which are highly disproportionate to his known source of income. It
was further alleged that Sh. Ashok Kumar had purchased two flats
in Delhi in the name of his wife Smt. Maya at a cost of Rs. 40 lac(s)
as per sale deed which was grossly under valued. Whereas, as per
the land & Development office notified rates of circular dated
16.04.99, it should be Rs. 55 lacs approx and that Sh. Ashok
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Kumar had spent Rs. 10 lacs on renovation of above said property.
Besides, Sh. Ashok Kumar and his family members
were alleged to be in possession of heavy bank balances and
other expensive movable properties.
2. Sh. Ashok Kumar, prima facie, was in possession of
assets disproportionate by more than Rs. 45 lacs to his sources of
income.
3. Investigations had revealed that Sh. Ashok Kumar
comes from a middle class family background and did not have
sound financial capacity and was the only earning member of his
family and started his career as a Class III employee. His father
was a Lineman in Railways and he had two sisters and two sons
who were studying. His father in law was head Mali in CPWD and
his wife who is a graduate had nine brothers and sisters.
Sh. Ashok Kumar completed graduation from Ramjas
College, Delhi University after preliminary education from Govt.
Schools in Delhi. Thereafter he joined Scientific AssistantII in
Ministry of Defence in 1973. In the year 1976 he had joined as
Assistant in Ministry of Education. He joined MCD as
Administrative Officer in 1979. He is presently working as Deputy
Commissioner in MCD.
4. Investigations had also disclosed that the accused
Ashok Kumar was employed in Ministry of Defence, Sr. Quality
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Assurance Establishment(Arnaments) from April 1973 to
September 1975 as Junior Scientific Assistant Gr. II and Ministry of
Human Resource Development, Deptt of Secondary Education
from March 1976 to June 1979 as Assistant. The total net salary
received by him for this period workout to Rs. 33,468.69. After
deducting 1/3rd of the net income for household expenditures he
could have saved a maximum of Rs. 22,312/ which could be his
probable asset before the check period. But even if it is taken into
consideration, it would not make any substantial difference in the
D.A of Rs. 2,86,99,670.60 which were acquired by him during the
check period. The accused had not made any declaration of any
movable or immovable assets acquired by him to the departments
before the check period or at the time of joining service in MCD as
A.O. Hence, the assets before the check period is taken as nil.
The check period in this case has been taken from the
induction of Sh. Ashok Kumar as an Administrative Officer in MCD
from the year 06.07.1979 to 20.09.2000. It has further come out
during investigation that accused Ashok Kumar amassed assets
during the check period which is highly disproportionate and for
which he could not satisfactorily account for.
5. Investigations had disclosed that accused Ashok
Kumar remained posted as a public servant in various capacities
as mentioned below:
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S.No. Period Place of Posting
1 06.07.79 to 28.02.82 As A.O/AAC Lajpat Nagar, New Delhi
2 01.03.82 to 21.04.83 As AAC Nehru Place Zone
3 22.04.83 to 19.08.85 As ADO(V)
4 20.08.85 to 12.05.86 As AAC in A & C Department
5 13.05.86 to 10.08.89 As DD(V)
6 11.08.89 to 12.09.90 As Zonal Assistant Commissioner, West
Zone
7 13.09.90 to 03.05.93 As AC Head Quarters ZAC, SP Zone
8 13.09.90 to 03.05.93 As Additional Deputy Commissioner SP
Zone
9 06.09.93 to 18.04.94 As Additional Deputy Commissioner, Civil
Lines
10 19.04.94 to 31.07.94 As Additional Deputy Commissioner,
Narela
11 01.08.94 to 08.11.94 As Additional Deputy Commissioner,
S.P.Narela
12 09.11.94 to 12.01.97 As D.O Vigilance
13 13.01.97 to 01.06.98 As Deputy Commissioner, Najafgarh Zone
14 02.06.98 to 15.09.98 As Deputy Commissioner, West Zone
15 16.09.98 to 11.04.99 As Deputy Commissioner, Civil Lines
16 12.04.99 to 19.12.99 As Deputy Commissioner, West Zone
17 20.12.99 to 30.12.99 As Deputy Commissioner, S.P.Zone
18 31.12.99 to As Chief Labour Officer
04.04.2000
19 05.04.2000 to As Deputy Commissioner, S.P. Zone
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20.09.2000
During the course of investigations searches were
conducted at various places including the residence of accused,
Office of accused and other places.
6. Investigations had disclosed that during the aforesaid
period accused Ashok Kumar acquired assets disproportionate to his
known sources of income and he entered into a criminal conspiracy
with his wife Maya, Sh. Ajay Gupta, Director of M/s Sybron Leasing, a
private leasing company Sh. Subhash Gupta and Sh. Atul Goyal
partner of M/s Pace Financial Services a share broker firm who have
all abetted in the accumulation of disproportionate assets by the
accused by giving him unsecured loans and also creating false
income from investments in share business in the name of his wife
and children.
INCOME
7. Investigations had further disclosed that Sh. Ashok
Kumar has income from salary as well as other sources, the details of
which are mentioned below:
Investigations had disclosed that a total income of Rs.
10,31,771/ was received by him as salary for the check period under
consideration in view of the services rendered by him in the capacity
of a public servant while serving in MCD. The other sources of
income that have also been earned by the accused on account of the
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following heads are as follows:
S.No Details Amount
1 Income from salary of Sh. Ashok 10,31,771.90
Kumar for the period
2 Bank interest received on the 54,685.00
accounts of Smt. Maya, Sanjana and
Abhishek
3 P.P.F interest 1,147.00
4. Profit on sale of property E4/10, 4,26,600.00
Model Town, Delhi
5 Loan taken for purchase of car 52,800.00
Total 1,567,003.9
Interest Income earned by him through his various bank
accounts and the balance as on 29.09.00 is as follows:
Sl NO Name of Bank Name of the Interest earned Balance as on
account holder in Rs 29.09.200 in
& account Rs
number
1 UCO Bank SB A/c No. 10,571 17,404.1
Kamla Nagar 26696
Abhishek
Kumar
2 UCO Bank SB A/c No. 37,539 2,81,147.94
Kamla Nagar 26697 Mrs.
Maya
3 UCO Bank SB A/c No. 6,429 12,809
Kamla Nagar 26969 Miss
Ssanjana Rai
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4 Central Bank SB A/c No. 1,000
of India Phar 644 Ashok
Ganj Kumar
5 Canara Bank SB A/c No. 133 40,113
Kamla Nagar 18720 Mrs.
Maya
6 Indian Bank SB A/c No. 13 1013
Haus Khas 100055 Mrs
Maya
TOTAL 54,685 353,508
8. Investigations had also disclosed that Sh. Ashok Kumar's
wife Mrs. Maya had purchased a property E4/10 in Model Town
measuring 257 Sq Yds on 16/1/87 for Rs. 480000/ on which Rs.
38400/ was paid as stamp duty. This was sold to Ms. Amarjeet Kaur
w/o Satnam Singh r/o 114 Tagore Park Delhi through a property
dealer Sh. Rajeev Verma for Rs. 945000/ vide three sale deeds
dated 09.03.2000. Mrs. Maya had gained a profit of Rs. 426000/ in
the whole transaction. Investigation has also revealed that Sh. Ashok
Kumar had obtained a loan of Rs. 52800/ from his Dept MCD for
purchase of a second hand Fiat Car and the same is included in the
loan income. The actual cost of the car as revealed during
investigation i.e Rs. 55000/ is included in the assets of the accused.
Besides this investigation has revealed that accused
Ashok Kumar had claimed loans from his relative(s) like Mother and
Brother in Law as follows:
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Loans from Relatives
From Relation with To Amount
the accused
Smt. Rama Devi Mother Smt. Maya 150,000
Shri. Jagdish Brotherinlaw Smt. Maya 100,000
Kumar
Sh. Raj Kumar Brother Smt. Maya 100,000
All the above said loans were in cash. As already
discussed above, Smt. Ramo Devi mother of accused did not have
such financial standing to forward a loan of Rs, 1,50,000/ because
her husband was only a Head Mali with CPWD. Similarly, Sh.
Jagdish Kumar, brother of Smt. Maya also claims to have given the
loan to Smt. Maya out of his savings, who was working as a
Computer Assistant in MCD. Since Sh. Raj Kumar is no more, he
could not be examined in this regard. Considering the fact that all
these loans were in cash and the above relatives were financially
not in a position to forward personal loans for such heavy amount,
this amount cannot be taken as the income of his family.
Accused Ashok Kumar had also claimed loans from
other persons as follows:
Loans from other Persons:
S.No From To Year Amount
1 Sh. Subhash Gupta Sh. Ashok Kuamr July 1999 10,00,000.
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00
2 Sh. Ajay Gupta Sh. Ashok Kumar 1999 33,00,000.
00
Regarding the first loan, investigations had revealed
that Sh. Subhash Gupta had worked a Salesman in a Cloth shop
after completing his studies upto XII Std.
He claimed that he purchased a shop in 198889 and
started a grocery shop, from which he earned a monthly profit of
Rs. 7000/. Subsequently, he installed a plastic moulding machine
in the in the same shop. Investigations also revealed that he came
to know about Sh. Ashok Kumar through one Sh. S.K.Gupta of
Sybron Leasing Company Ltd a private financing company. Sh.
Subhash Gupta could not furnish the account number of his bank
account. As per the income tax returns of Sh. Subhash Gupta for
the last 2 years collected during investigation, his total salary from
all sources worked out to be only around Rs. 40,000/ which clearly
shows that Sh. Subhash Guptaa did not had such type of paying
capacity. Investigations also further revealed Sh. Subhash Gupta
sold two shops No. 1288, Chabbi Ganj, Kashmiri Gate in his name
to one Sh. J.P.Singh. As per the sale deed, an amount of Rs. 4.5
lakh was paid through cheque into the account of Subhash Gupta
in the month of March 1999. But investigation has revealed that the
amount received from the sale of the said shops was withdrawn
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immediately i.e in April 99 by Subhash Gupta. Further investigation
into the bank accounts of Subhash Gupta had revealed that
immediately prior to issue of cheque on 07.07.99 to Maya Devi for
Rs. 10 lacs cash had been credited in his account in two
installments of Rs. 5 lacs on 05.07.99, before which the balance
was only Rs. 4000/. No agreement exists with Maya Devi
regarding the grant of loan or as to how the amount was to be
recovered from her by Subhash Gupta.
9. Regarding the second loan, of Rs. 330000/ obtained
by Mrs Maya from Ajay Gupta, Directors of Sybron Leasing Pvt.
Ltd., investigations had revealed that whenever they forwarded
loan to Smt. Maya(through six cheques), immediately prior to that
cash was deposited in the current account of M/s Sybron Leasing
Company with State Bank of Patiala, Model Basti, New Delhi, with
account No. 3543. Money had also come into the account through
clearing from the accounts of Ajay Gupta & S.K.Gupta which again
revealed cash deposits before issue of cheques to the account of
Sybron Leasing. Investigations had also revealed that no terms
and condition was fixed and no guarantee was taken from the
accused and his family. Investigations had also revealed that the
said firm had given loans to not more than 20 persons and the
statement of account reflects huge transactions upto Rs. 5 lacs to
7 lacs. It is revealed that the money received was immediately
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disbursed on the same day or the next day and the balance in the
account on most of the dates was only few hundred rupees. There
is no permanent balance in the account. Investigations had also
revealed that no interest had been paid by Sh. Ashok Kumar or
Mrs. Maya on the said loan amount to M/s Sybron Leasing and
even the principal amount had not been returned by the accused
persons to M/s Sybron Leasing. It is further revealed that no
agreement had been executed with Maya Devi by Ajay Gupta
regarding grant of loan or as to how the amount is to be recovered
from her.
10. Investigations by Dy. Director of Income
Tax(Investigations) had also revealed that Subhash Gupta & Ajay
gupta could not explain the source(s) of cash deposits in their
accounts and they did not had the capacity to forward such heavy
loans.
On the basis of above stated facts the said loans
cannot be included in the income of the accused.
Income of Smt. Maya, Sanjana and Abhishek from Tuitions:
Sh. Ashok Kumar has claimed for the assessment year
19992000 tuition income for Sanjana, Abhishek and Maya as Rs.
64,000/. Investigation could not confirm the claim of Sh. Ashok
Kumar regarding tuition income and hence the benefit of income
from tuitions has not been given to the accused.
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Income from Shares
Investigations had also revealed that Smt. Maya, Sh.
Abhishek and Sanjana have claimed income of Rs. 38,58,760.7
from share business. It is revealed that during a period of two and
a half years with an initial investment of Rs. 1,00,000/ they had
earned an income of Rs. 37,58,760/. It was also revealed that Sh.
Atul Goel, Proprietor of M/s Pace financial Services was buying
and selling shares on the instruction of one Ashok Kumar,
employee of Sh. Dinesh Garg, Chartered Accountant of Smt.
Maya, Abhishek and Sanjana who did not know anything about
their shareholding. It was revealed that during the two and a half
years time,the payments were made through 13 cheques of Citi
Bank. All these share transactions were also got verified with
National Stock Exchange which had revealed that such
transactions had taken place in the client code of CVSOI of one
Vijay Sachdeva r/o Flat at Raj Narain Marg Delhi 54 and not in the
names of Maya, Sanjana & Abhishek. Investigation had also
established the following facts:
I) Smt. Maya, Abhishek and Sanjana were not allotted any
independent client code. All those transactions were made under
the client code CVS 01 which was owned by Vijay Sachdeva.
ii) All the transactions were being made in the name of M/s Pace
Financial Services and no shares were at any time held by these
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three persons Maya, Sanjana and Abhishek in their name.
Iii) Investigations had revealed that Maya, Sanjana and Abhishek
were never paid any dividend.
iv) Investigations had revealed that all purchases of shares valued
from Rs. 6 lacs to 8 lacs made by M/s PFS on behalf of these three
clients i.e Maya, Sanjana and Abhishek, when there was no
amount due in their accounts and the broker was making
investments on behalf of the investors, which is not permitted as
per SEBI rules.
v) Investigations had revealed that no instructions, in written, were
ever received regarding sale or purchases of the scrips, and its
transactions were carried out on oral instructions of an employee of
the Chartered Accountant Dinesh Garg.
vi) Investigations had also revealed that no contract has been
executed between M/s PFS and Smt. Maya, Abhishek and
Sanjana.
vii) Investigations had further revealed that many of the scrips held
by Maya, Sanjana, Abhishek were on Dmat and no Dmat account
in respect of any of these three persons was not opened. All
transactions were being made in the Dmat account of M/s PFS
maintained at Global Trust Bank, Connaught Place.
viii) The investigations by National Stock Exchange had clearly
established that the client codes given to Maya, Sanjana and
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Abhishek by M/s Pace Financial Services in his office at
Safdarjung Enclave, New Delhi do not exist in their system based
at Bombay. All the share transactions for which profit has been
claimed by Maya, Sanjana and Abhishek have been established by
NSE to have been carried out under the Client Code CVSO1 of
Vijay Sachdeva and hence belongs to him.
All these grounds clearly establish that these are not genuine
transactions and have been manipulated to account for the ill
gotten money of Sh. Ashok Kumar. Investigation had clearly
established that the owner of the said broker firm i.e Pace
Financial Services had prepared the statement of the transactions
for the advantage of Sh. Ashok Kumar. Investigations had thus
established that Maya, Sanjana & Abhishek had invested only Rs.
One lakh with the broker M/s Pace Financials who had generated a
profit of Rs. 38 lacs in their accounts by successfully posting profit
entries from the account of Vijay Sachdeva who were also
operating under the same client code CVSOI as that of Maya,
Sanjana & Abhishek. Hence, the benefit of income from these
share transactions has not been given to Maya, Sanjana and
Abhishek.
B. Assets
1. 5/12, Roop Nagar, Delhi
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Investigation has revealed that this property was purchased by
Smt. Maya on 20.04.2000 from one Sh. Brij Mohan Minocha. As
per the sale deed the house was purchased for Rs. 40 lacs. But
valuation conducted by the Chief Valuation Officer, Income Tax,
has revealed the value of the property, i.e 5/12, Rooop Nagar,
Delhi to be Rs. 2,34,66,100/. This value has been taken in the
final computation of disproportionate assets.
2. Property No. 106,107, Aurbindo Place, Hauz Khaz, New
Delhi
Investigation has revealed two properties i.e 106,107,
Aurbindo Place, Hauz Khas, New Delhi were purchased for Rs. 32
lacs by Smt. Maya from one Byford Leasing Company. This value
also seems to be highly under valued. Further investigation has
established that this amount was adjusted by Byford Leasing
Company against the loan taken by the company from State Bak of
Saurastara Connaught Place Branch for Rs. 1 crore for which the
property was mortgaged to the Bank. The title deeds are still with
the bank as the total amount is still to be recovered from Byford
Leasing Company. Investigation has revealed the bank i.e State
Bank of Saurastra has approached the Debts Recovery Tribunal
for recovery of the amount and the Tribunal has ordered for
auctioning of the property. Investigation has thus established that
this is only an investment in the property made by Ms. Maya w/o
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Asho Kumar whereas the title deed is still with the bank i.e State
Bank of Saurastra Connaught Place, New Delhi.
3. Plot No. 175, Pocket 17, Block 4, Sector 8 Rohini, Delhi
Investigation has revealed that the said property measuring 60 sq
yds. for Rs. 12200/ was purchased by Sh. Ashok Kumar in his
own name from DDA and had paid a sum of Ras. 76271 till
20.09.2000 towards this plot including penalty and ground rent
totalling to Rs. 88M471/ to DDA. Investigation has revealed that
even though the plot was sold by Ashok Kumar on 10.04.2000 to
one Sh. Sanjeev Verma the payment for the same i.e Cheque for
Rs. 250000/ was deposited by him in his bank account in October
2000 i.e after the check period and hence the profit obtained on the
benefit of sale is not being given to the accused.
The other details of assets of Sh. Ashok Kumar are as follows
1 Property No. 5/12, Rs. 2,34,66,100.00
Roop Nagar, Delhi
purchased on
17.04.2000
2 Property No. 106, 107, 32,00,000.00
Aurbindo Place, Hauz
Khas, New Delhi
3 Plot No. 175, Pocket 88,471.00
17, Block 4, Sector 8,
Rohini Delhi
purchased in 1982
4 Household articles as 3,09.850.00
per the inventory
prepared on
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21.09.2000 in respect
of D1, MCD Flat,
Bungalow Road, New
Delhi
5 Investments in LIC, 2,63,773
SCS, UTI, PPF and
ICICI Bonds
6 Bank Balances in 3,53,508.00
various accounts(as
explained in table)
7 Cash recovered during 778.00
search
8 Cost of second hand 55,000.00
car 118 NE
9 Investments in NSC 15,000.00
by Sh. Ashok Kumar
Total Rs. 2,77,52,480.00
EXPENDITURE
11. Investigations had revealed that Sh. Ashok Kumar had
incurred expenditure of Rs. 25,14,194.05 as expenditure under
various heads as detailed below during the course of the check
period under consideration. They are as follows:
Investigations had proved a total expenditure towards
education of five children of Sh. Ashok Kumar as Rs. 1,43,614/.
Following is the details of other expenditure incurred by the
accused and his family members during the check period:
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Details of Expenditure of Ashok Kumar
1 Educational expenses 1,43,614.00
towards five children of
accused Ashok Kumar
2 Electricity and water bills 56,589.00
paid in respect of 1E, MCD
Flat, Bungalow Road, Delhi
3 Telephone bills in respect of 1,01,762.00
telephone No. 3970397 and
3971800
4 Commission paid to property 5,000.00
dealer for 4/10, Model Town
5 Stamp duty in respect of 3,20,000.00
5/12, Roop Nagar, Delhi
6 Regularization charges for E 50,000.00
4/10, Model Town
7 Property tax paid in respect 2,73,910.00
of 5/12, Roop Nagar, Delhi,
E4/10, Model Town and
106, 107, Hauz Khas, Delhi
8 Income Tax paid by Smt. 8,61,375.00
Maya, Sanjana and Abhishek
for the assessment years
199899 and 19992000
9 Charges paid to jeweller for 300.00
getting evaluation report in
1986
10 LIC premium paid by Sh. 10,357.00
Ashok Kumar
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11 Nonverfiable expenditure 6,91,287.00
@33% of the net salary of
Ashok Kumar
Total 25,14,194.50
Investigations had thus disclosed that the figure relating
to Income, Expenditure and Assets of the accused Ashok Kumar
are as under:
A. Total Income = Rs. 15,67,003.90
B. Total Assets = Rs. 2,77,52,480.00
C. Total Expenditure = Rs. 25,14,194.50
Disproportionate Assets = Total assets + Expenditure +
income
= Rs. 2,86,99,670.6
% of D.A. = Rs. 2,8699670 x 100
Rs. 15,67,003
= 1831.4%
12. Thus the detailed investigations in the case had revealed
that Sh. Ashok Kumar during the check period acquired assets
disproportionate to his known sources of income for which he could
not satisfactorily account for. Further he had acquired
disproportionate assets worth Rs. 2,86,99,670.6 during the check
period with the active connivance of his wife Mrs. Maya and Atul
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Goyal of Pace Financial Services, Sh. Ajay Gupta, Director of
Sybron Leasing & Financial Services Pvt. Ltd., and Sh. Subhash
Gupta. Therefore a criminal case is made out against Sh. Ashok
kumar Deputy Commissioner, MCD Ms. Maya his wife, Sh. Atul
Goyal of M/s Pace Financial Services, Sh. Ajay Gupta of M/s
Sybron Leasing and Sh. Subhash Gupta u/s 120B/109 IPC and
13(2) r/w 13(1)(e) of PC Act 1988.
13. Vide order dated 25.11.2003, cognizance of the offence(s)
u/S 120B / 109 IPC and 13(1)(e) r/w Sec.13(2) of PC Act, 1988
was taken and accused persons Ashok Kumar, Maya Devi, Ajay
Gupta, Subhash Gupta and Atul Goel were summoned.
Thereafter, the matter kept pending in miscellaneous proceedings
for various years and finally vide detailed order on charge dated
27.01.14, charge was ordered to be framed against Ashok Kumar
(hereinafter A1) in respect of the offence(s) u/S 13(1)(e) r/w
Sec.13(2) of PC Act, 1988, whereas against Maya Devi
(hereinafter A2), Ajay Gupta (hereinafter A3), Subhash Gupta
(hereinafter A4) and Atul Goel (hereinafter A5) charge u/S 109
IPC r/w Sec.13(1)(e) r/w Sec.13(2) of PC Act was ordered to be
framed. After formal framing of charges, the matter was fixed for
prosecution evidence.
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14. Thereafter, prosecution has examined 94 witnesses in
support of its case.
15. PW1 is Gyan Chand, posted as UDC in Pay &
Accounts Office No.18, Prashad Nagar, Delhi. He deposed that in
November, 2000 he was working as LDC in Transport Authority,
Janakpuri, Delhi and on the directions of MLO Sh.Rajesh Kumar,
he had handed over one file Ex.PW1/B from the office record
pertaining to vehicle no.118NE (Premier) bearing Registration
No.DDD1967 to the CBI officer, which was seized vide seizure
memo (D293) Ex.PW1/A.
16. PW2 is Sh.Rampath Singh Verma, who was posted
as Sr.Audit Officer in Office of Chief Auditor, Statutory Audit
Department of NDMC, SDMC & EDMC. He deposed that in the
month of May 2001, he was working as Assistant Chief
Accountant, Najafgarh Zone, MCD and also had additional charge
of Narela Zone. He also deposed that during that period, salary of
the employees used to be given by Account Payee Cheque. He
has proved (D7) as Ex.PW2/A which bears his signatures at point
X, the same pertains to salary detail in respect of accused Ashok
Kumar, the then Dy.Commissioner, MCD during his tenure in
Narela Zone. He further deposed that as per record, the total net
salary paid to accused Ashok Kumar for the months of May, June
and July, 1994 was Rs.11,106/.
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He has further proved one forwarding letter dated
18.05.01 (D10) as Ex.PW2/B which bears his signatures at point
X. He deposed that alongwith this letter, detailed statement of Pay
& Allowances Ex.PW2/C in respect of accused Ashok Kumar, the
then Dy.Commissioner, MCD for the period 13.01.97 to 01.06.97
had also been sent to CBI and the total net salary paid to accused
Ashok Kumar for the said period was Rs.28,161/.
He has further proved statement of Pay & Allowances in
respect of accused Ashok Kumar (D3) dated 11.10.2000 for the
period 13.01.97 to 01.06.97 as Ex.PW2/D. He has also proved
letter dated 23.08.01 (D18) as Ex.PW2/E.
17. PW3 is Sh.Y.P.Suri. He deposed that in January
2003, he was posted as Valuation OfficerI, Income tax
Department (Valuation Cell) Rohit House3, Tolstoy Marg, New
Delhi. He had conducted valuation of property No.5/12, Roop
Nagar, Delhi on the asking of CBI and his valuation report (part of
D287) is Ex.PW3/A which bears his signatures at point X. The
handwritten forwarding letter and the annexures attached with the
report is Ex.JX which is part of Ex.PW3/A. The query letter dated
08.11.02 (part of D287) written by him to the CBI asking for some
details is Ex.PW3/B and the communication dated 15.11.02 from
CBI is MarkP3/1. He further deposed that the total value of the
property including land and building as assessed by him was
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Rs.2,28,66,100/ as detailed in his report.
18. PW4 is Sh.Mohit Rastogi. He deposed that he was
one of the Directors of Ram Chander Krishan Chander Saree Store
at 47D, Kamla Nagar. During the year 1998, they had taken a
portion of property in Roop Nagar on rent for Rs.10,000/ p.m. for
godown purposes from one Shri Minocha for about 45 months.
The photocopies of rent receipts and brokerage receipt (D251) is
collectively Mark P4/A (1 to 7) bearing his signatures at Mark X.
19. PW5 is Sh.Ravi Sethi (who was examined in place
of prosecution cited witness Hansraj Sethi, who was aged more
than 90 years and had been advised rest at home). He deposed
that prior to year 2001, his father Hansraj was running a chemist
shop under the name of United Pharmacy in Kamla Nagar and
during that period, they used to reside in 5/12, Roop Nagar since
late 50's and rent @ Rs.75/ p.m used to be paid for the second
floor portion on rent and the said premises was vacated during the
year 2000.
20. PW6 is Sh.Jyoti Prakash, who was working in
Miranda House College since 1990 and presently posted as Sr.
Assistant. He was working as Assistant in the year 2001. Around
2001, Ms.U.Rustagi was the Acting Principal in the College. He
deposed that alongwith the letter dated 09.04.01 Ex.PW6/A (D
248), statement of college dues charged from Ms.Sanjana Rai and
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Ms.Monika Rai, both daughters of accused Ashok Kumar as well
as photocopies of fee receipts had been sent to CBI. He further
deposed that the fee details i.e. statement of college dues had
been prepared by him from the office records .
21. PW7 is Sh.Savin Chacko, who was posted as
Accountant in St.Xaviers School in year 2001. He identified his
signatures at point Y and that of Principal Father Xavier at points X
and X1 on letter dated 15.06.01 Ex.P7/A (D246). He also
identified signatures of Father Xavier on letter dated 16.04.01
which is part of Ex.PW7/A at Mark X and the attached detail of fees
paid by Aman Rai (admission no.13475) and by Naveen
Priyadarshi/Abhisekh Kumar (admission no.10165) which is also
part of Ex.PW7/A bears his signatures at Mark Y.
22. PW8 is Sh.R.S.Khatri. He deposed that he was
posted as LDC in MCD, Civil Lines Zone, Accounts Department
from April 2000 till 2004. He proved communication dated 13.6.01
(D14) as Ex.PW8/1. He had also proved statement of salary of
accused Ashok Kumar w.e.f 06.09.93 to 30.04.94 and 16.09.98 to
14.04.99 as Ex.PW8/2, bearing his signatures at points X and X1.
He had also proved letter dated 12.11.01 (D20) as Ex.PW8/3.
23. PW9 is Sh. Satnam Singh. He deposed that he is in
the business of sale of Auto spare parts for the past about 35
years. In the year 2000, he had purchased property no.E4/10,
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Model Town measuring around 257 sq. yds. from Smt.Maya Devi
(accused no.2) w/o Ashok Kumar (accused no.1) for Rs.9.45 Lakhs
in the name of his wife Amarjeet Kaur, his daughter Jasneet Kaur
and his own name by way of three separate registries and the
three registered sale deeds were for Rs.3,15,000/ each. The
mode of payment in respect of all sale deeds was pay order. He
after seeing D190a which is attested photocopies of three sale
deed Mark P9/A, B and C and D191 containing photocopies of
three sale deeds MarkP9/A1, B1 and C1, stated that all these
appear to be sale deeds vide which the property no.E4/10, Model
Town was purchased by them. The sale transaction was through
property dealer Rajeev Verma and he had not paid him any
brokerage charges.
24. PW10 is Sh.Raj Kumar. He deposed that in
September 2000, he was posted as Vigilance Officer (Northern
Railway) having office at Baroda House. On 21.09.2000, he was
called by CBI to be a witness in the present case, he went to CBI
office, a team consisting of Pawan Kumar, Shehnaz and other
officers was constituted which was to visit residence of accused
Ashok Kumar. They went to Bunglow D1 of accused Ashok
Kumar near Delhi University. Value of the articles was being
stated by accused Ashok Kumar. A report of the valuable items
was prepared and was attached with the report. He had signed the
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report Ex.PW10/A (D274) at point X on both the pages and a
seizure memo Ex.PW10/B (D277) regarding seizure of some
documents from the premises was also prepared and sane bears
his signatures at Mark X on both pages.
25. PW11 is Sh.Dhare Singh. Nothing material has
come out from his examination. This witness was turned hostile by
the prosecution, even then he did not support the case of
prosecution.
26. PW12 is Sh.Dinesh Kumar. He deposed that in
year 2001 he was posted as a Jr. Assistant cum Typist in
Maharishi Valmiki College of Education, Shakkar Pur, Delhi.
Dr.Veena Sabarwal was the Acting Principal of the college in year
2001. On being deputed by the acting Principal, he had gone and
handed over the letter dated 15.06.01 (D244) and other
annexures Ex.PW12/A (colly.) (1 to 5) to the CBI.
27. PW13 is Sh.Rajeev Verma. He deposed that in
year 2001, he was in business of property dealing under the name
of New Gupta and Company and had office at B7, Model Town.
On the asking of CBI officers, he had handed over documents in
respect of sale of property no.E4/10, Model Town, PartII to them.
The said copies of sale deeds were seized by CBI officers vide
memo (D191) Ex.PW13/1, bearing his signatures at MarkX. He
further deposed that accused Ashok Kumar alongwith his wife had
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come to his office for selling the aforesaid property and also one
other plot in Rohini. The property in Model Town was sold through
him vide documents Mark P9/A1, A2 and A3 to Sh.Satnam Singh,
his wife and his daughter and the Rohini plot was sold through him
to his real brother. His brokerage charges around February 2000
were at the rate of ½ percentage of the sale value of the property.
He further deposed that the brokerage charges were usually used
to be charged from both the parties i.e. the buyer and the seller in
cash.
28. PW14 is Sh.R.K.Nagpal, who was posted as
Manager in Kamla Nagar Branch of UCO Bank from August 2000
till May 2001. He has proved letter dated 14.11.2000 Ex.PW14/1
vide which some documents had been handed over to the CBI,
statement of account in respect of saving bank A/c No.26969 in the
name of Sanjana Rai for the period 09.01.99 to 13.04.2000 Ex.PW
14/2, statement of account in respect of saving bank A/c No.26696
in the name of Abhishek Kumar for the period 06.06.2000 to
01.10.2000 Ex.PW14/3 and carbon copy of production cum
seizure memo dated 17.10.2000 Ex.PW14/4.
29. PW15 Sh.Vir Singh Pal, had been dropped by the
prosecution.
30. PW16 is Sh.Yogesh Minocha. He deposed that
property bearing no.5/12, Roop Nagar was sold by him and his
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brother in the year 2000 to accused Smt.Maya Devi/Mayawati for
Rs.40 Lakhs. He has proved certified copy of sale deed dated
07.04.2000 as Ex.PW16/1. He further deposed that he had made
upto date payment in respect of Electricity & Water bills when the
sale transaction took place.
31. PW17 is Sh.S.P.Meena. He was posted as Sub
Registrar, Pitam Pura from 26.07.2000 till 13.11.2002. He has
proved letter dated 28.05.01 Ex.PW17/1 vide which certain
documents were handed over to CBI. He has proved copies of
sale deed already Mark P9/A, B & C as Ex.PW17/2, 3 and 4. He
has also proved a document as Ex.PW17/5 which is attested copy.
32. PW18 is Sh.Vinod Kumar. He deposed that in
September 2000, he was posted as Sr. Clerk (Vigilance) in
Northern Railway, Baroda House, Delhi and on the asking of CBI,
he accompanied CBI officers for a raid. They reached at property
no.5/12, Roop Nagar and an observation memo Ex.PW18/1(D
275) was prepared, which bears his signatures at point X on each
page.
33. PW19 is Sh.pankaj Nakra. He was looking after the
repair work in property no.5/12, Roop Nagar around July 2000.
Thereafter a raid was conducted by CBI at the said premises. He
had spent about Rs.2.75 Lakhs to Rs. 3 Lakhs in the work at the
said premises, but received only Rs.2.5 Lakhs. He had also signed
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the observation memo Ex.PW18/1 at MarkP.
34. PW20 is Sh.Atul Kumar. He was posted as Sub
Registrar District North, Kashmere Gate from September 2000 till
September 2001. He proved letter dated 23.5.01 as Ex.PW20/1
vide which certified copy of sale deed Ex.PW16/1 was handed over
to CBI.
35. PW21 is Manoj Abusaria. He deposed that in
November 2001, he was posted as Hindi officer in the office of
L&DO, Nirman Bhawan, New Delhi. He has proved (D271) which
is copy of Schedule of Market Rates as Ex.PW21/1. He further
deposed that Schedule Market Rate of land w.e.f 1.4.98 in Roop
Nagar (Zone IV North Delhi) mentioned therein for residential land
was Rs.6,930/ per sq. meter and for commercial land was
Rs.14,490/ per sq. meter.
36. PW22 is Sh.K.P.Singh. He deposed that in June,
2001 he was working as AGM (Legal) Office at DGM (C&A), ISBT,
Delhi. He proved carbon copy of letter dated 18.06.2001 as
Ex.PW22/1 vide which documents (D242) and (D243) were
handed over to CBI officer.
37. PW23 is Sh.Dharam Singh. He deposed that he had
remained posted as UDC in Housetax Department, Civil Line Zone
from 1998 till 2000. He has proved (D262) as Ex.PW23/1 which is
statement in respect of property tax dues for property no.E4/10,
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Model Town, Delhi for the period 16.01.87 to 09.03.2000. He
further deposed that as per the statement, tax of Rs.3,219/ was
paid in respect of property for the said period and the said property
was in the name of Sh.Ram Murti Sharma from 1962 till 2000.
38. PW24 is Sh.Sanjiv Verma. He deposed that he had
handed over some documents to CBI vide seizure memo (D187)
Ex.PW24/1. He further deposed that plot no.175, Pocket7,
Sector8, Rohini, Delhi had been purchased by him from accused
Ashok Kumar for consideration of Rs.2,50,000/ vide cheque (D
259) Ex.PW24/2.
39. PW25 is Sh.P.S.Jangpangi. He deposed that in
June 2001, he was working as DE (FRS), Tis Hazari Telephone
Exchange. He has proved carbon copy of letter dated 14.06.2001
(D243) as Ex.PW25/1 vide which history of phone numbers
3910397 and 3971800 had been forwarded to CBI officers and the
respective histories are Ex.PW25/1A and 1B. He further deposed
that as per record, telephone number 3971800 was installed at
residence of accused Ashok Kumar on 27.02.98. He was declared
hostile by Ld.PP for CBI and in his cross examination on behalf of
prosecution he admitted that telephone no.3971800 was earlier
2521800 and even then it stood in the name of accused Ashok
Kumar.
40. PW26 is Sh.D.C.Putran. The said witness was also
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given up by Ld.PP for CBI as the witness pertained to post check
period transactions.
41. PW27 is Sh.Mahesh Chand. He has proved the
voucher no.236 dated 29.12.1986 as Ex.PW27/A vide which some
jewellery had been sold by and payment was made to accused
Mrs. Maya w/o accused Ashok Kumar.
42. PW28 is Sh.O.P.Saroha. He has proved the letter
dated 22.11.2000 and the annexed two sheets as Ex.PW28/A, B
and C, which are the details in respect of salary paid to accused
Ashok Kumar, the then DC Sadar Paharganj Zone for the period
March 1991 to 05.09.93 , August 1994 to 03.11.94, 21.12.99 to
October 2000 and also includes arrears of DA and the net salary
paid was Rs.2,21,640/.
43. PW29 is Sh.S.P.Rustagi. He has proved letter dated
16.10.2000 as Ex.PW29/1 and the annexures thereto as
Ex.PW29/1A (15)(colly.) and the letter dated 25.05.2001 as
Ex.PW29/2 and the annexures thereto as Ex.PW29/2A (15). He
deposed that the total salary paid during the said periods was
Rs.2,90,664/.
44. PW30 is Sh.R.K.Bhatnagar. He has proved letter
dated 23.10.2000 as Ex.PW30/1 and the annexures thereto (giving
details of salary payment made to accused Ashok Kumar) as
Ex.PW30/1A and the letter dated 03.05.2001 as Ex.PW30/2 giving
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details of salary payment made to accused Ashok Kumar). He has
also proved the seizure memo (D27) as Ex.PW30/3 vide which he
handed over the salary particulars of accused Ashok Kumar for the
period November 1994 to February 1996, which is Ex.PW30/3A to
the CBI officer.
45. PW31 is Sh.S.N.Mangla. He has proved a letter
dated 02.06.2001 (D238) as Ex.PW31/1 vide which detail of water
billing for the period 01.04.80 to 17.01.96 Ex.PW31/2 in respect of
Water connection No.49039 in the name of accused Ashok Kumar
at MCD Quarter no.1, Bunglow Road, Delhi had been furnished.
He has also proved photocopies of meter diary plate as Ex.PW31/3
(colly.) and computerized billing details in respect of water meter
installed in the aforesaid premises as Ex.PW31/4. He has also
proved the totalling of amount of bills for the premises from 1981 to
1995 as Rs.4396/ rounded of to Rs.4300/ at Ex.PW31/2A.
46. PW32 is Sh.Vineet Kumar. He has proved a letter
dated 06.10.2000 (D2) as Ex.PW32/1 and the annexed document
as Ex.PW32/1A giving details of Pay & Allowances drawn by
accused Ashok Kumar for the period 01.03.82 to 31.10.82 and also
a letter dated 04.06.2001 (D23) as Ex.PW32/2 and the annexed
document as Ex.PW32/2A giving detailed split up of Pay &
Allowances drawn by accused Ashok Kumar for the period
01.03.82 to 31.10.82.
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47. PW33 is Sh.G.R.Maurya. He has proved the detail
of payments made to accused Ashok Kumar as Ex.PW33/1 and
also a letter dated 01.06.2001 Ex.PW33/2 and the annexure
thereto containing details of payment of Pay & Allowances to
accused Ashok Kumar for the periods August 1979 to August 1981
and November 1982 to 03.05.83 as Ex.PW33/2A and 2B.
48. PW34 is Sh.Sudesh Kumar. He deposed that he
was a scrap dealer in June 2000 and he knew accused Ashok
Kumar. He deposed that when he had met accused Ashok Kumar,
he told him about scrap lying in 5/12, Roop Nagar and to contact
one Pankaj Nakra there. When he went there and met Pankaj
Nakra, he showed him the scrap building material lying there and
gave Rs.1,60,000/ in cash to said Pankaj as per the deal arrived
at between them in year 2000.
49. PW35 is Sh.Bharat Bhushan Sharma. He has
proved the information (D270) furnished by him to CBI as per
office record of UTI as Ex.PW35/1. This witness was declared
hostile by Ld.PP for CBI, but nothing material has come up on the
record in his cross examination by Ld.PP for CBI.
50. PW36 is Sh.Surender Khurana. He after seeing a
letter dated 11.6.01 to CBI Inspector and the attached details of
outstanding dues contained in four sheets of paper deposed that it
bears signature of Sh.B.L.Harit the then Meter Reading
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Superintendent on page no.4 at point Ex.PW36/1. This witness
was also declared hostile by Ld.PP for CBI, but nothing material
has come up on the record in his cross examination by Ld.PP for
CBI.
51. PW37 is Sh.P.C.Khanna. This witness had been
dropped by Ld.PP for CBI as his testimony relates to postcheck
period.
52. PW38 is Sh.Gurbaksh Singh. He has proved one
letter dated 10.10.2001 (D264) as Ex.PW38/1 and also
photocopies of five documents as Mark P38/A (colly.).
53. PW39 is Sh.K.D.Bhatt. He has proved one letter
dated 22.09.2001 as Ex.PW39/1 vide which status report and
premium history in respect of certain LIC policies upto 21.09.2000
as mentioned in the printouts which amounted to Rs.65,126/ were
handed over to CBI.
54. PW40 is Sh.Dayal Singh. He has proved letter
dated 24.07.01 as Ex.PW40/1 and the attached salary statement in
respect of accused Ashok Kumar as Ex.PW40/2. He deposed that
Ex.PW40/2 gives details of salary of accused Ashok Kumar for
31.12.99, 01.01.2000 to 10.01.2000, 11.1.2000 to 31.1.2000,
March 2000 and 01.04.2000 to 04.04.2000.
55. PW41 is Sh.Gautam Mahapatra. He has proved
letter dated 28.08.2001 as Ex.PW41/1 vide which photocopies of
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ICICI safety bonds were handed over by him to the CBI officer.
56. PW42 is Sh.Maroof Ahmad. He has proved letter
dated 04.04.2001 (D247) as Ex.PW42/1 vide which certain
documents had been handed over to the CBI, the list of documents
in that regard is Ex.PW42/2 and the documents were collectively
marked as Mark P42/a (1to 4).
57. PW43 is Sh.S.B.Shashank. He has proved letter
dated 09.09.2003 as Ex.PW43/1 vide which Sanction order (in
duplicate) in respect of accused Ashok Kumar duly accorded by
the MCD, the competent authority was forwarded to SP, CBI and
the sanction order including the necessary resolutions are
collectively Ex.PW43/2.
58. PW44 is Sh.Shyam Sunder. This witness had been
dropped by the prosecution being repetitive in nature.
59. PW45 is Sh.Deepak Kakkar. He has proved the
seizure memo as Ex.PW45/1 vide which some documents had
been handed over to the CBI from the bank record and the four
sheets of photocopies are collectively Mark P45/A (1 to 4).
60. PW46 is Sh. Narender. He has proved two letters
dated 03.01.2002 (D257) and letter dated 12.11.2001 (D261) as
Ex.PW46/1 and Ex.PW46/2.
61. PW47 is Sh.Chander Bhan. He has merely proved
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a letter (D265) dated 25.08.2001 as Ex.PW47/1. This witness was
declared hostile by the prosecution, but nothing material has come
up in his cross examination on behalf of prosecution.
62. PW48 is Sh.Deepak Mathur. This witness had been
dropped by Ld.PP on the ground that his testimony relates to the
period beyond check period.
63. PW49 is Sh.Ascharaj Kumar Lal. He deposed that
he was in possession of a car No.DDD1967, which was registered
in the name of his wife Smt.Kamlesh Kumari from around 1987 to
about 1989. Thereafter, the car was sold to one Ashok Kumar for
Rs.55,000/.
64. PW50 is Sh.Om Prakash. He has proved two
letters (D1) dated 28.09.2000 as Ex.PW50/1 and letter dated
25.07.2001 (D16) as Ex.PW50/2, vide which certain Pay details of
accused Ashok Kumar had been submitted vide Ex.PW50/2.
65. PW51 is Sh.D.L.Narang. He deposed that the
service book and personal file of MCD employees are maintained
in the Establishment Department. Director Personnel /
Addl.Commissioner is Incharge of the Establishment Department.
He had been posted as Administrative Officer and was looking
after transfer / postings of MCD Employees. He was also looking
after Property Return Cell at that time.
66. PW52 is Sh.Dinesh Mittal. He has proved noting on
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the notice u/S 160 Cr.P.C as Ex.PW52/1 and certified true copy of
sale deed in favour of accused Maya w/o accused Ashok Kumar as
Ex.PW52/2.
67. PW53 is Sh.Ravindra Nath. He deposed that during
December 2001, he was posted as Accountant in Sadar Pahar
Ganj Zone, Accounts branch, MCD, Delhi. He further deposed that
the property returns filed by employees are kept in the Central
Establishment Branch, MCD. The service books contains service
entries qua postings, pay scales, and accounts in respect of the
government servant.
68. PW54 is Sh.Dinesh Garg. He has proved income
tax file of accused Maya as Ex.PW54/A (colly.), personal book of
accounts of accused Maya as Ex.PW54/B (colly.), personal book of
accounts of Sanjana D/o accused Ashok Kumar as Ex.PW54/C
(colly.), income tax return file of Sanjana as Ex.PW54/D (colly.),
income tax return file of Abhishek as Ex.PW54/E (colly.) and
personal book of accounts of Abhishek S/o accused Ashok Kumar
as Ex.PW54/F (colly.), as also the ITRs of all these persons as
Ex.PW54/D1 and D2 (colly.)
69. PW55 is Sh.Vijay Setia. This witness was dropped
by Ld.PP for CBI as the testimony of said witness pertained to
period beyond the check period.
70. PW56 is Sh.S.K.Chugh. He has proved letter dated
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12.10.2001 as Ex.PW56/1 (D263) vide which certain details were
forwarded to CBI. He has also proved details contained in four
sheets as Ex.PW56/2 and also identified his signatures on
Ex.PW46/1.
71. PW57 is Sh.S.P.Ahluwalia. He has proved letter
dated 12.12.2001 (D196) as Ex.PW57/1.
72. PW58 is Sh.Nem Narain. He has proved the
seizure memo (D258) as Ex.PW58/1 vide which a cheque (D259)
Ex.PW24/2 was handed over to CBI officer.
73. PW59 is Sh.Mukesh Gupta. He has proved letter
(D102a) dated 03.08.01/03.10.01 as Ex.PW59/1 vide which
documents (D103) Ex.PW59/2, (D104) Ex.PW59/3 were handed
over to CBI. He had also handed over some documents pertaining
to saving bank account no.10981/65 of Subhash Chand vide
seizure memo (D105a) Ex.PW59/4. He has also proved one
voucher dated 07.12.2000 (D131) as Ex.PW59/5 and some
original documents as Ex.PW59/2A and Ex.PW59/3A and the
forwarding letter as Ex.PW59/6.
74. PW60 is Sh.Ganpat Rai. He has proved the copy of
statement of account as Mark P60/A and deposed that the
balance in this account as on 31.08.2000 was Rs.2,81,147.96 P.
He has also proved the account opening form of UCO bank as
Mark P14/B.
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75. PW61 is Sh.Shiv Charan. He has deposed
regarding the photocopy of Form no.16 for the period March 1996
to February 1997 in respect of accused Ashok Kumar which was
verified from the original Form no.24 and bears his initials at point
Mark X.
76. PW62 is Sh.Sushil Kumar Sharma . He has also
proved his signature at MarkS on Ex.PW61/1. He deposed that
as per this document, deductions under ChapterVI A which deals
with savings of the Government Servant was Rs.41,340/.
77. PW63 is Sh.M.S.Dagar. He has deposed that vide
letter dated 02.02.2002 (D199) Ex.PW63/1 written to CBI officer,
he had handed over certificate Ex.PW63/2, certified copies of
documents D204 and D205 , another certificate (D197)
Ex.PW52/1 to the CBI officers.
78. PW64 is Sh.Jagdish Kumar. He has deposed that
accused Maya Devi was his elder sister and he had advanced loan
of Rs.1 Lakh to her in the year 2002 which was repaid to him in
installments by her till year 2005, since she used to say that she
was short of funds and could not repay the amount at that time.
This witness was declared hostile by ld.PP for CBI and during his
cross examination by Ld.PP, he has denied the suggestion that he
had wrongly stated that Mrs.Maya Devi had taken loan of Rs.1
Lakh from her mother in law or about her having taken loan of Rs.1
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Lakh1.5 Lakh from Raj Kumar at the instance of accused Ashok
Kumar.
79. PW65 is Sh.Balwinder Singh. He has proved the
statement regarding pay of accused Ashok Kumar (D24) for the
period October 1985 till March 1986 as Ex.PW65/1.
80. PW66 is Sh.Ashok Kumar Sharma. He has proved
the photocopy of application for purchase of National Saving
Certificate as Ex.PW66/1 which was in respect of purchase of
three NSCs of Rs.5000/ each in the name of accused Ashok
Kumar with nominee as accused Maya (wife of accused Ashok
Kumar).
81. PW67 is Sh.P.C.Malhotra. He has proved a letter
(D245) as Ex.PW67/1 vide which some information was furnished
to the CBI.
82. PW68 is Sh.Subhash Chand Thakkar. He has
proved statement regarding pay of accused Ashok Kumar for the
month of April 1986 to 13.5.86 as Ex.PW68/1 and salary statement
of accused Ashok Kumar for the period September 1981 to
February 1982 (D27) as Ex.PW68/2.
83. PW69 is Sh.D.D.Ranjan. He has proved a letter (D
296) written to CBI as Ex.PW69/1 vide which salary particulars of
accused Ashok Kumar for the period March 1976 to June 1979 had
been handed over to CBI officer.
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84. PW70 is Ms.Usha Bansal. He has proved allotment
letter as Ex.PW70/1, challans as Ex.PW70/2 to Ex.PW70/4, and
the perpetual lease deed executed between DDA and accused
Ashok Kumar and his wife Maya as Ex.PW70/5 in file no.F
9(674)82/LAB (R) with respect to plot no.175, Pocket17, BlockF,
Sector8, Rohini, Delhi which was alloted to accused Ashok
Kumar. He has also proved a voucher as Ex.PW70/6 and initial
registration amount for aforesaid plot as Ex.PW70/7.
85. PW71 is Sh.Pawan Kumar. He was the initial IO of
this case. He proved the FIR as Ex.PW71/1. He was the team
leader of one of the team constituted for conducting raid. He
conducted raid at the residence of accused Ashok Kumar and
seized various documents and articles vide observation and
seizure memos Ex.PW10/A and Ex.PW10/B.
86. PW72 is Sh.S.K.Tyagi. He deposed that he
accompanied the CBI team for conducting raid at D1 Bunglow
road, Delhi. He has proved the observation memo (D272a) as
Ex.PW72/1 and search cum seizure memo as Ex.PW72/2 and
deposed that vide these memos certain documents / articles were
also seized by the CBI officers.
87. PW73 is Sh.Pushker Raj. He has proved the
production memo dated 11.10.02 as Ex.PW73/3 vide which
information Ex.PW73/A regarding advancing of car loan to accused
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Ashok Kumar for Rs.52,800/ and the recoveries made against
said loan from 1989 till 11.10.02 and the photocopy of contingent
bill, sanction bill and extract of approval note as Ex.PW73/2
(colly.).
88. PW74 is Sh.Shard Jain. He is Chartered
Accountant and used to file Income tax return of accused Subhash
Chand Gupta, Ajay gupta and Sybron Leasing & Finance Pvt. Ltd.
He has proved income tax return for the assessment year 1997
1998 of accused Ajay Gupta as Ex.PW74/A (colly.), ITRs of Sybron
Leasing for assessment year 19981999, 19992000, 20002001
as Ex.PW74/B (colly.) to Ex.PW74/D (colly.). He has also proved
ITR for the assessment year 19992000, 20002001, 20012002 of
accused Subhash Gupta as Ex.PW74/E (colly.) to Ex.PW74/G
(colly.).
89. PW75 is Sh.Narender Kumar Shourie. He has
proved the forwarding letter dated 26.07.01 as Ex.PW75/1,
statement of account of Sybron Leasing & Finance (P)Ltd. as
Ex.PW75/2, cheques of State Bank of Patiala, Model Basti Branch,
Delhi as Ex.PW75/3 to Ex.PW75/9; Ex.PW75/19 to Ex.PW75/24,
payinslips as Ex.PW75/10 to Ex.PW75/17. He has also proved
seizure memo dated 30.10.02 as Ex.PW75/18 vide which cheques
and certified copy of statement of account of accused S.K.Gupta
was handed over to CBI. He has also proved seizure memo dated
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15.11.02 as Ex.PW75/25 vide which certain documents were
handed over to the CBI.
90. PW76 is Sh.C.M.Tandon. He has proved cheques
of UCO bank, Kamla Nagar Branch, Delhi as Ex.PW76/1 (colly.),
payinslips as Ex.PW76/2(colly.), debt vouchers as Ex.PW76/3 to
Ex.PW76/5, statement of account of accused Maya as Ex.PW76/6,
seizure memo dated 08.11.02 as Ex.PW76/7, specimen signatures
card and account opening form of Maya as Ex.PW76/8 (colly.),
specimen signatures card and account opening form of Abhishek
Kumar as Ex.PW76/9 (colly.), specimen signatures card and
account opening form of Sanjana Rai as Ex.PW76/10 (colly.).
91. PW77 is Sh.Santosh Kumr Kukreja. He has not
proved anything.
92. PW78 is Sh.Ashok Kumar. He has identified the
letter (D99) as Ex.PW78/1.
93. PW79 is Sh.Sushil Kumar Sharma. He has proved
the account opening form of Maya in Canara Bank as Ex.PW79/1,
statement of account of Maya in Canara Bank as Ex.PW79/2.
94. PW80 is Sh.Suprabhat Lala. He has proved letter
dated 15.03.02 (D214) alongwith enclosure as Ex.PW80/1 (colly.),
letter dated 19.08.02 (D221) as Ex.PW80/2, letter dated 07.10.02
(D225) as Ex.PW80/3, letter dated 16.10.02 (D226) as
Ex.PW80/4, letter dated 09.12.02 (D233) as Ex.PW80/5, letter
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dated 05.02.03 (D237) as Ex.PW80/6 and letter dated 05.03.03
(D236) as Ex.PW80/7.
95. PW81 is Sh.L.K.Makhijani. He has proved seizure
memo dated 13.11.02 (D168a) as Ex.PW81/1, certified copy of
order dated 27.03.01 (D169) of Debt Recovery Appellate Tribunal,
Delhi as Ex.PW81/2, certified copy of order dated 28.05.99 (D
170) of Debt Recovery Appellate Tribunal, Delhi as Ex.PW81/3,
certified copy of letter dated 06.08.91 (D171) as Ex.PW81/4,
certified copy of Memorandum of Mortgage (D172) as Ex.PW81/5,
certified true copy of Resolution (D173) passed by West Bengal
Cement Ltd. as Ex.PW81/6, certified copy of Memorandum of
deposit of Title Deeds (D174) as Ex.PW81/7 (colly.), seizure
memo dated 11.11.02 (D175) as Ex.PW81/8, certified copy of
notice for settling sale proclamation issued by Recovery officer,
DRT (D176) as Ex.PW81/9, certified copy of Inspection Report (D
177) as Ex.PW81/10, pay in slips dated 05.07.99 (D178), dated
06.07.99 (D179), dated 05.07.99 (D180), dated 06.07.99 (D181)
as Ex.PW81/11 to Ex.PW81/14 and computer generated statement
of account of Byford Leasing Ltd. (D182) as Ex.PW81/15.
96. PW82 is Sh.Atul Kumar Jain. He was one of the
member of the raiding team which conducted raid at house
situated at Kamla Nagar, Delhi. He has deposed that the
observation memo Ex.PW72/1 and search memo Ex.PW72/2 was
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prepared in his presence and bears his signatures.
97. PW83 is Sh.Anil Goyal. He was one of the member
of the raiding team which conducted raid at house situated at
Kamla Nagar/Malka Ganj, Delhi. He has deposed that the
observation memo Ex.PW10/A and search memo Ex.PW10/B was
prepared in his presence and bears his signatures.
98. PW84 is Sh.Rupesh Kumar Verma. He has proved
search cum seizure memo (D276) as Ex.PW84/1.
99. PW85 is Sh.Rajiv Kumar. He has proved
production cum seizure memo dated 28.01.02 (D284) as
Ex.PW85/1, statement u/S 131 of IT Act, 1961 of accused Ajay
Gupta as Ex.PW85/2, statement u/S 131 of IT Act, 1961 of S.K.
Gupta as Ex.PW85/3, statement u/S 131 of IT Act, 1961 of
accused Subhash Chand Gupta as Ex.PW85/4, letter dated
19.07.02 (D285) as Ex.PW85/5, report as well as annexure are
collectively exhibited as Ex.PW85/6, letter dated 14.03.02 to
reopen the case u/S 147/148 of IT Act, 1961 against accused
Subhash Chand Gupta and M/s Sybron Leasing & Finance Pvt.
Ltd. as Ex.PW85/7 and Ex.PW85/8 and letter dated 25.04.01 as
Ex.PW85/9.
100. PW86 is Sh.Neeraj Kulshrestha. He has deposed
that letter dated 19.08.02 Ex.PW80/2 bears his signatures at point
A.
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101. PW87 is Sh.Vijay Sachdeva. He deposed that he is
investing in shares for the last 25 years. He knew accused Ashok
Kumar. He further deposed that he had introduced his broker
namely Atul Goel (accused who was discharged in this case) to
accused Ashok Kumar. He has proved an agreement entered into
between his wife Chanda Sachdeva and Atul Goel for share
business as Mark PW87/1 (colly.), agreement between his sister
Rita Sachdev and Atul Goel as Mark PW87/3 (colly.), two letters
both dated 01.05.02 as Ex.PW87/1 and Ex.PW87/2 and letter
dated 19.03.02 as ex.PW87/3.
102. PW88 is Md. Quamar Toheed. He has proved the
service book and personal file (D290) of accused Ashok Kumar as
ex.PW88/A (Colly.).
103. PW89 is Sh.Jagdish Salwan. He has proved letter
dated 23.11.02 (D158) written to CBI Inspector as Ex.PW89/1,
account opening form of M/s Pace Financial Services Ltd. with Citi
Bank as Ex.PW89/2 and the specimen signature card (D160) as
Ex.PW89/3.
104. PW90 is Sh.Jitender Pal Singh. He deposed that
he is in the business of spare motor parts in the name of Motor Life
Industries at 1386, Nikalson Road, kashmere Gate, Delhi. He had
purchased a property i.e. 1288, Chhabi Ganj, Vardhan House,
Kashmere Gate, measuring around 3800 sq. ft. from accused
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Subhash Chand Gupta and he had made payment of Rs.4.5 Lakhs
through cheque from the account of his mother in ABN Amro Bank.
He further deposed that he knew accused Ashok Kumar as well as
his wife. In year 2000, accused Maya Devi requested for some
financial help and he paid Rs.5 lakhs by cheque. He received back
the loan amount after 4/5 years and he had shown the loan amount
in his ITR. He has proved the certified copy of sale deed (D200)
executed between him and Subhash Chand as Ex.PW90/1.
105. PW91 is Sh.Ashok Kumar. He deposed that he is
cousin brother of accused Subhash Chand Gupta. He had
introduced accused Subhash Chand Gupta to open an account in
the State Bank of Patiala, Model Basti, Delhi.
106. PW92 is Sh.Krishan Gupta. He deposed that in
year 1995, M/s Sybron Leasing & Finance Pvt.Ltd. was
incorporated by him and his son Ajay Gupta(accused) and both
were Directors and his son Ajay Gupta was day to day Incharge of
the business of the company. He has proved the Memorandum
and Articles of Association of M/s Sybron Leasing & Finance Pvt.
Ltd. (D157) as Ex.PW92/A (Colly.), certified copy of Board
Resolution (D156) as Ex.PW92/C and specimen signature card
(D154) as Ex.PW92/D. He further deposed that Rs.33 Lakhs was
given as loan to accused Maya Devi by cheque.
107. PW93 is Sh.S.Balasubramany. He was one of the
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Investigating Officer of this case and has proved FIR and all other
relevant documents which were seized and relied upon by the
prosecution. He had filed the chargesheet of the present case.
108. PW94 is Ms.Shobha Dutta. She was also one of
the Investigating Officer of the present case and during the course
of investigation, she had also collected many documents and
recorded the statements of many witnesses.
109. After framing of charge(s) as stated above, one of
the accused namely Atul Goel preferred a criminal misc. petition
bearing No.1518/14 against the said order dated 27.01.2014
before the Hon'ble High Court and vide order dated 03.11.2014,
the Hon'ble High Court was pleased to allow the said petition and
the order on charge dated 27.10.2014, vide which charge(s) were
framed against the said accused was ordered to be set aside qua
the said accused and the present FIR u/S 13(1)(e) of PC Act
registered against the said accused Atul Goel and the proceedings
thereto were also quashed.
110. When the matter was listed for final arguments, it
was apprised by Ld. Public Prosecutor for CBI that they had
preferred an SLP bearing No.9783/15 against the said order of
Hon'ble High Court dated 03.11.2014, whereby one of the accused
namely Atul Goel had been discharged and the same was pending
in the Hon'ble Supreme Court, wherein notice had also been
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issued to the opposite party i.e. the said accused. It was also
stated by Ld.PP for CBI that the next date of hearing before
Hon'ble Supreme Court was 04.10.2016, in his assertions made on
30.09.2016. Thereafter on 07.10.2016, he stated that the same
was likely to be listed now on 25.10.2016 , so he prayed that the
matter be awaited and adjourned after 25.10.2016.
111. On the other hand, Ld. Counsels for A1,A2,A3 and
A4 strongly opposed the said argument of Ld.PP for CBI and
submitted that even in the SLP filed by the CBI against the order
dated 03.11.2014 before Hon'ble Supreme Court, no stay had
been sought by the CBI for the stay of Trial Court proceedings. Ld.
Counsel for A1 and A2 has also filed the copy of said SLP
preferred by the CBI on record. He also relied upon judgment of
Hon'ble Supreme Court titled Satya Narayan Sharma Vs State of
Rajasthan AIR 2001 SC 2856; 2001 Cr.L.J 4640 SC in which it
was held that " thus in cases under the Prevention of
Corruption Act there can be no stay of trials". After hearing
the parties and perusal of the SLP preferred by the CBI against the
order dated 03.11.2014, it was found that in the said SLP preferred
by the CBI before the Hon'ble Supreme Court, no stay of the Trial
Court proceedings had been sought. Further, despite opportunity
to the prosecution, no such application for stay had been moved or
was contemplated to be moved on behalf of CBI. Moreover, in
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view of the mandate of the Hon'ble Supreme Court in the aforesaid
judgment Satya Narayan Sharma (supra), the matter needed to
be proceeded with as per law.
112. Vide separate statement of Spl.PP for CBI the
prosecution evidence was closed on 17.03.2016. Thereafter,
separate statement of all the accused persons A1, A2,A3 and A
4 u/S 313 Cr.P.C were recorded, in which the entire incriminating
evidence appearing against all the aforesaid accused persons was
put to them, in which the defence of A1 mainly was that
I have been falsely implicated in this case. The
prosecution itself have proved the defence case by
leading primary evidence whether it may be
documentary evidence or oral evidence. Ignoring of
lawful income of Rs. 3,50,000/= taken as loan from Mrs
Ramo Devi, Jagdish Kumar & Raj Kumar by Smt. Maya,
drawings of Rs. 180,948/= made by Smt. Maya from her
own income as per Tax return w.e.f March, 1984 to
March, 2000, sale of gold Jewellery (Istridhan) for Rs.
46,648.10 Paisa, Income of Smt. Maya since
assessment year 198485 to the date of raid is
20/9/2000 can be calculated as Rs. 21,18,828/=, share
income of Abhishek and Sanjana amounting to Rs.
25,40,742=14, taking of loan of Rs. 10,00,000/= from
Subhash Chand by cheques taking of loan of Rs.
3300,000/= from Ajay Gupta Director of Sybron Leasing
Private Ltd, by cheques as shown in the charge sheet
is against the cannon of justice. If my income,
expenditure and assets were taken separately from the
income, expenditure assets belonging to my family
members, no case of disproportionate could be made
out against me.
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113. Similarly, the defence of (A2) Smt.Maya Devi was that:
I have been falsely implicated in this case. The
prosecution itself have proved the defence case by
leading primary evidence whether it may be
documentary evidence or oral evidence. Ignoring of my
lawful income of Rs. 3,50,000/= taken as loan from Mrs
Ramo Devi, Jagdish Kumar & Raj Kumar, drawings of
Rs. 180,948/= made by me from my own income as per
Income Tax return w.e.f March, 1984 to March, 2000,
sale of gold Jewellery (Istridhan) for Rs. 46,648.10
Paisa, my Income since assessment year 198485 to
the date of raid i.e. 20/9/2000 can be calculated as Rs.
21,18,828/=, share income of Abhishek and Sanjana
amounting to Rs. 25,40,742=14, taking of loan of Rs.
10,00,000/= from Subhash Chand by cheques taking of
loan of Rs. 3300,000/= from Ajay Gupta Director of
Sybron Leasing Private Ltd, as shown in the charge
sheet is against the cannon of justice. If my income,
expenditure and assets are taken separately, no case
of disproportionate could be made out against me and
my husband.
114. The defence of (A3) Ajay Gupta mainly was that:
I am innocent and falsely implicated in the
above case. The prosecution could not establish the
charge against me. The alleged loan amount of
Rs.33,00,000/ had been duly shown in the balance
sheets of M/s Sybron Leasing & Finance Pvt. Ltd.
and the said amount had been duly advanced as per
the objects and policies of the company through
cheque. There is no illegality in the said transaction.
I and Shri Kishan Gupta were the directors in the
said company and also the partners in M/s. Jay
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International, which was in the business of exports.
The Income Tax Returns of myself and Shri Kishan
Gupa duly prove our capacity to advance such
amount of loan. All sources of entries have been
duly explained in the bank statements. Further, the
Income Tax Department has also accepted the
returned income as true income during
reassessment proceedings, which were initiated on
the behest of the CBI with regard to ascertain the
genuineness of the above alleged loan of
Rs.33,00,000/ advanced to Mrs. Maya.
115. Similarly, the defence of (A4) Subhash Gupta
mainly was that:
I am innocent and falsely implicated in the
above case. The prosecution could not establish the
charge against me. The alleged loan of
Rs.10,00,000/ was forwarded to Mrs. Maya by way of
cheques and from all legitimate sources. Further,
the Income Tax Department has also accepted the
returned income as true income during
reassessment proceedings, which were initiated on
the behest of the CBI with regard to ascertain the
genuineness of the above alleged loan of
Rs.10,00,000/ advanced to Mrs. Maya.
116. I have heard Ld.counsel for A1 and A2
Sh.H.L.Chopra, Ld.counsels Sh.Salil Kumar Jha and Sh.Rajiv
Aggarwal for A3 and A4 and Sh.Naveen K.Giri, Ld.PP for CBI
and perused the record.
117. Ld.PP for CBI has relied upon following judgments in
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support of his contentions
(1) CSD Swami Vs State 1960 Cr.L.J.SC 131
(2) N.Ramakrishna Vs State of Andhra Pradesh 2009
Cr.L.J. 1767 SCN
(3) State of Bihar Vs Lalu Prasad 2008 Cr.L.J. 2433,
Patna.
(4) Jankiraman Vs State 2006 Cr.L.J SC 1232
(5) State of Tamil Nadu by Inspector of Police
(Vigilance) and Anti Corruption (2014) CCR
226 (SC 01)
118. Ld.counsels for accused persons have relied upon
following judgments in support of their contentions
(1) Krishnanand Agnihotri Vs State of M.P AIR 1977
SC 796.
(2) M.Krishna Reddy Vs State Deputy Suptd.of
Police AIR 1993 SC 313
(3) State of Andhra Pradesh Vs J.Satya Narayan VII
(200) SLT 43.
(4) State of M.P Vs Mohan Lal Soni (2000) 6 SCC 338
(5) Anand Bezbarnah Vs Union of India 1994 Cr.L.J
12
(6) Rekha Nambiar, Bhojraj Teli Vs CBI 224 (2015)
Delhi Law Times 379
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(7) State rep.by Dy.Supdt. of Police Vigilance and
Anti Corruption Vs K.Ponmudi formerly MLA,
formerly Minister for
Transport, Govt. of Tamil Nadu and ors. Reported
as 20062LW(Crl.)758.
(8) Revision Petition (Civil) No.348 of 2007 in Writ
Petition (Civil)
No.633 of 2005 titled as Smt.Dimple Yadav
Vs Vishwanath Chaturvedi & ors. Decided by Hon'ble
Supreme Court on 13.12.2012.
119. Ld.PP for CBI has argued that the prosecution has
been able to make out its case against all the accused persons
beyond any shadow of doubt, as all the ingredients to make out a
case u/S 13(1)(e) r/w Sec.13(2) of PC Act, 1988 has been
established against A1, whereas all the ingredients of the
offence(s) u/S 109 IPC r/w Sec.13(1)(e) r/w Sec.13(2) of the PC
Act have also been established against A2, A3 and A4, who had
all aided and helped A1 in amassing the disproportionate assets.
He has further argued that the assets of A1 are much more than
his known sources of income. The prosecution was forced to club
the assets of his wife (A2) Smt.Maya Devi and his son Abhishek
and daughter Sanjana with the assets of A1, as all the assets
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were generated / purchased out of the money provided by A1, as
none of the said persons, who are family members of A1, have
had any genuine sources of income and they were totally
dependent upon A1. He has also argued that all the income tax
returns filed by A1 and other family members of A1 are not
genuine, as the same had only been filed to somehow escape the
rigors of PC Act. He has further argued that merely by filing
income tax return or paying income tax does not mean that the
person who is filing the income tax return has the means or the
income for which he is paying the tax. Therefore, he has argued
that A1 has failed to give any satisfactory explanation regarding
his disproportionate assets, which was found in his possession and
A2 has actively aided A1 in this venture, therefore she is also
liable to be convicted u/S 109 IPC r/w Sec.13(10(e) r/w Sec.13(2)
of PC Act.
120. Regarding A3 and A4, Ld.PP for CBI has argued
that A3 and A4 are the persons who had extended the loan of
Rs.33 Lakhs and Rs.10 Lakhs respectively to A2, and the
prosecution has been able to establish that same were not genuine
transaction of loan and money for said transaction had also been
provided by A1. Therefore, A3 and A4 had also actively aided A
1 in amassing the disproportionate assets and are liable to be
convicted for abetment.
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121. On the other hand, ld. Defence counsels have
controverted the above arguments of Ld.PP for CBI. The Ld.
Defene counsel for A1 and A2 has argued that prosecution had
been fundamentally wrong in clubbing the income / assets /
expenditure of the family members of A1 alongwith the income /
assets / expenditure of (A2) Maya Devi as well as that of his son
Abhishek and daughter Sanjana. Since the same was illegal perse,
as per the settled law of the Hon'ble Apex Court. He has also
argued that A2 had independent source of income for which she
had also been filing income tax returns since the year 1983 and the
relevant income tax return(s) have been placed and proved on
record, according to which she had her own independent source(s)
of income. Since she was having independent source(s) of
income, therefore there was no legal bar in generating the assets
independently.
122. In any case, he has argued that as per settled law,
the prosecution had to establish by leading evidence of definite
character that the said properties / assets belonging to A2 were
benami or that A2 was not the actual owner of the same and
rather, it was A1 who was the real owner of the assets and the
money for generating the said assets had been provided by A1.
He has further argued that all the sources of income of A2 were
bonafide and genuine. She had even taken loans amounting to
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Rs.33 Lakhs and Rs.10 Lakhs from A3 and A4 which have been
duly reflected in the balance sheet / income tax returns of A3 and
A4 as well as of A2, further A2 had also shown the expenditure
of interest in her IT returns and all the assets which she had
purchased were purchased out of her own funds and income which
had no connection whatsoever with A1 and the very clubbing of
assets of A2 with A1 was absolutely illegal and similarly the
clubbing of assets of A1 with his other family members i.e. son
Abhishek and daughter Sanjana was also per se illegal and same
as per the CBI Manual and settled law cannot be done. He has
further argued that prosecution had wrongly added various items
into the assets as well as expenditure head of A1 and A2, which
have to be deleted as per the detailed written submissions made
by him and placed by him on the record.
123. He has, therefore argued that if the assets / income
and the expenditure of A2 is segregated from A1, as per the
settled law and CBI Manual, then the independent assets /
income / expenditure of A1 would be rather on the negative side
and no case of disproportionate assets would be made out, as the
income / likely saving(s) of A1 are much more than assets of A1.
Therefore, A1 and A2 deserves to be acquitted.
124. Similarly, Ld. Defence counsel for A3 and A4 have
argued that the loans of Rs.33 lakhs and Rs.10 lakhs were duly
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reflected in the income tax returns of A3 and A4 and the
prosecution has failed to prove that the money for the same was
provided by A1 which is evident from the testimony of the relevant
witnesses. He has also argued that the said loan transactions
have been duly reflected in the income tax returns which were
closely scrutinized by the IT authorities and after scrutiny, no
infirmity could be detected in the same, which shows that the said
loans were genuine transaction(s). Therefore, there was no
question of aiding or abetment to A1 in the amassing of
disproportionate assets as alleged by the prosecution. Therefore,
it has been argued that there was no evidence of abetment lead by
the prosecution on the record. Hence, A3 and A4 are also liable
to be acquitted.
125. I have gone through the rival contentions of the
parties and gone through the record.
126. With regard to the ingredients of Section 13(1)(e) of
Act, the same have been enunciated in judgment 2009
CRI.L.J.1767 "N. Ramakrishanaiah Vs. State of A.P. The
relevant paras of the said judgment are reproduced as under:
14. Section 13 of Prevention of Corruption Act, 1988 (in short the
'Act') deals with various situations when a public servant can be
said to have committed criminal misconduct. Clause (e) of Sub
section (1) of the Section is applicable when the public servant 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
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public servant cannot satisfactorily account of pecuniary resources
of property disproportionate to his known source of income.
Clause (e) of Subsection (1), of Section 5 of the Old Act was in
similar lines. But there have been drastic amendments. Under the
new clause, the earlier concept of "known sources of income" has
undergone a radical change. As per the explanation appended, the
prosecution is relieved of the burden of investigating into "source
of income" of an accused to a large extent, as it is stated in the
explanation that "known sources of income" mean income
received from any lawful sources, the receipt of which has been
intimated in accordance with the provisions of any law, rules or
orders for the time being applicable to a public servant. The
expression "known source of income" has reference to sources
known to the prosecution after thorough investigation of the case.
It is not, and cannot be contended that "known sources of
income" means sources known to the accused. The prosecution
cannot, in the very nature of things be expected to know the affairs
of an accused person. Those will be matters "specially within the
knowledge" of the accused, within the meaning of Section 106, of
the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
15. The emphasis of the phrase "known sources of income" in
Section 13(1)(e) (old Section 5(1)(e)) is clearly on the word
"income". It would be primary to observe that qua the public
servant, the income would be what is attached to his office or post,
commonly known as remuneration or salary. The term "income"
by itself, is classic and has a wide connotation. Whatever comes in
or is received is income. But, however, wide the import and
connotation of the term "income", it is incapable of being
understood as meaning receipt having no nexus to one's labour, or
expertise, or property, or investment, and being further a source
which may or may not yield a regular revenue. These essential
characteristics are vital in understanding the term "Income".
Therefore, it can be said that, though "income" in receipt in the
hand of its recipient, every receipt would not partake into the
character of income. For the public servant, whatever return he
gets of his service, will be the primary item of his income. Other
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income which can conceivably be income qua the public servant
will be in the regular receipt from (a) his property, or (b) his
investment. A receipt from windfall, or gains of graft crime or
immoral secretions by persons prima facie would not be receipt for
the "known source of income" of a public servant.
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.
127. To substantiate the charge U/s 13(2) r/w Section 13(1)
(e) of Act, the prosecution has to prove the following ingredients:
1. The accused is a public servant.
2. What were his known sources of income i.e
known to the prosecution.
3. The nature and extent of the pecuniary
resources or property which were found in his
possession; and
4. Such resources or property found in
possession of the accused were disproportionate to his
known sources of income.
128. It is admitted case that out of all the accused
persons, only A1 was the public servant at the time of filing of
chargesheet, as he was working as Deputy Commissioner in MCD
at the relevant time, which is a public authority. Therefore,
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sanction was required to prosecute him, as per Section 19 of the
PC Act. Who was competent authority to grant sanction in his
case, has been discussed in the judgment of G.S.Matharaoo V.
CBI decided by Hon'ble High Court in Crl.M.C.2695/2010 &
Crl.M.A. 13999/2010 on 25.01.2012, wherein it has been held as
under:
19. In terms of Section 59(d), DMC Act, it is clear that the
power of the Commissioner for disciplinary action is subject
to Regulations that may be made thereunder. By virtue of
power to make Regulations under Section 480 of the DMC Act,
th
the Corporation vide its notification dated 15 December, 1976
notified the Schedule to Regulation 7 which provided that for
category A posts, the Corporation was the authority
competent to impose penalty. This Regulation 7 and the
Schedule thereto have not been rescinded till date despite the
amendment under Section 59 of the DMC Act. As a matter of
fact, the Additional Commissioner (Establishment) had sent a
proposal to bifurcate the posts in Category A and as per the
amendments proposed, it was proposed that for officers of the
rank of Deputy Commissioner and above, the authority
competent to impose the penalty of removal would be the
Corporation and for the post below that of Deputy
Commissioner, the Commissioner would be the competent
authority...........
129. Therefore, the competent authority to grant
sanction for the officers of Dy. Commissioner and above would be
the Corporation i.e. the House of the Municipal Corporation. The
sanction in the present case Ex.PW43/2 had been granted by the
House i.e. the Corporation. Ld. Counsel for A1 has assailed the
validity of the sanction order stating that the sanction order has not
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been proved in a proper manner by PW43, as the said purported
sanction order is in fact a resolution passed by the MCD and the
law in this regard is well settled that the sanction order should be a
speaking order and the prosecution had to prove that the
signatures on the sanction were of the sanctioning authority or by
subordinate officer or clerk who was acquainted with the signatures
of the sanctioning authority. Merely filing the order purported to be
the sanction order alleged to have been signed by the competent
authority, does not prove the same. He has also argued that the
same suffers from non application of mind, as the Municipal
Secretary ought to have circulated the agenda to all the Members
of the Municipal Corporation alongwith the copies of statements
recorded u/S 161 Cr.P.C and other materials / documents collected
by the CBI before coming to the conclusion, whether to accord
sanction in this case or not. Therefore, he has argued that
sanction is faulty and is liable to be set aside.
In this regard, he has relied upon the testimony of
PW43 Sh.S.B.Shashank, who has proved the sanction order as
Ex.PW43/2 and the forwarding letter as Ex.PW43/1. In his cross
examination on behalf of A1, he has admitted that it is correct that
Resolution no.4 dated 05.06.03 does not mention about letter
No.F.33/Vig./405/C&C dated 03.03.03 or any other letter except
letter no.111 dated 13.01.03 and he also admitted that it was
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correct that the Municipal Secretary is Secretary of the Corporation
who records and keeps Minutes of proceedings of the Corporation
and has custody of documents connected thereto, but he was not
aware if the Municipal Secretary ought to have circulated the
agenda to all 134 Members of the Corporation alongwith copies of
statements recorded u/S 161 Cr.P.C, documents and connected
material collected by CBI. He also stated that he cannot say
whether or not the statements of witnesses and documents
collected during investigation were placed before the Corporation.
Relying upon this cross examination of PW43, Ld. Counsel for A1
has argued that the sanction is faulty and on this ground alone, A1
deserves to be acquitted.
130. On the other hand Ld.PP for CBI has argued that
the sanction has been granted by competent authority after due
application of mind and after considering all the materials collected
and produced before them by the CBI.
131. I have gone through the rival contentions.
132. Ex.PW43/2 shows that the item for sanction of A
1 was listed in the Municipal Corporation House as urgent
business no.264 dated 25.08.03, wherein the entire chargesheet
alongwith the relevant annexures and other documents were
placed before the House. It is the grievance of A1 that different
valuation of the property bearing No.5/12, Roop Nagar, Delhi is
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mentioned in the said agenda item itself, as different figures have
been mentioned by the CBI itself in the same, as at one place the
amount of Rs.67,82,876/ has been the valuation of the said
property, whereas in the same document, the valuation of property
in other place is Rs.2,34,66,100/ and also in the same parcel of
document(s), the valuation as per L&DO notified rates has been
mentioned as Rs.55 Lakhs. Therefore, he has argued that three
different valuation of the same property had been mentioned
alongwith the agenda documents, which proposed the sanction
qua A1, which shows that the sanction was granted in a
mechanical manner without due application of mind.
133. No doubt three different valuations have been
mentioned in the document(s) annexed with the agenda proposing
prosecution of A1. However, alongwith the said document(s),
there is a letter dated 13.02.03 in which it is stated that the said
property bearing no.5/12, Roop Nagar, Delhi had been valued by
the Income tax valuation Department and its valuation after further
investigation had been found to be 2.34 Crores, which was also put
alongwith with the relevant documents for perusal of the
Sanctioning Authority. There is nothing wrong in the same. In fact,
the Sanctioning Authority had not kept anything back and had put
everything before the House including three different valuations of
the property bearing no.5/12, Roop Nagar, Delhi. It was for the
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Sanctioning Authority to ask any further material if they so required
to accept or deny the same, which they did not do. Therefore, it
appears that they were duly satisfied that there was enough
material to accord sanction against A1, which they gave by
passing Resolution no.264 by saying
Resolved that as recommended by
the Appointments, Promotions, Disciplinary & Allied
Matters Committee vide its Resolution Np.4 dated
05.06.2003, the proposal of the Commissioner as
contained in his letter No.F.33/Vig./111/C&C dated
13.01.2003 read with his supplementary letter Nos.
F.33/Vig./405/C&C dated 03.03.2003, and
F.33/Vig./1483/C&C dated 22.08.2003, regarding
sanction for prosecution in respect of Shri Ashok
Kumar, Dy. Commissioner, MCD in case RC No.DAI
2000A0052 dated 20.07.2000 u/S 13(2) r/w 13(1)(e) of
PC Act, 1988, be approved.
134. The said resolution appears to have been passed
after due application of mind and after discussion of the matter with
the entire House and it was not necessary to circulate the copies of
the chargesheet and statements u/S 161 Cr.P.C and all the other
documents to all the 134 Members of the House, as it was the job
of the Municipal Secretary to answer any queries in this regard of
any Member, whether there was any deficiency in any document or
whether there was any aspect to be further elaborated or
discussed. It appears from the perusal of the sanction order
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Ex.PW43/2 that sanction was granted by the House, which was
competent to grant sanction qua A1 after considering the entire
material before it. The said matter referred to, in the agenda must
have been discussed at length before the House before it accorded
the sanction after due application of mind.
135. Regarding the contention of Ld. Counsel for A1
that the sanction order does not bear the signatures of Municipal
Secretary, therefore the same has not been validly proved. The
said contention is also without any substance, as the sanction
order has been duly certified by the Office of Secretary, Delhi
Municipal Corporation and it is certified to be true copy which is
duly admissible u/S 493 of the Delhi Municipal Corporation Act
1947, without production of the original, as the genuineness of the
document is duly certified by the said office. Further, it has been
held in the judgment (2013) 8 SSC 119 State of Maharashtra Vs
Mahesh G.Jain, as under:
16. Presently, we shall proceed to deal with the
contents of the sanction order. The sanctioning authority
has referred to the demand of the gratification for handing
over TDS certificate in Form 16A of the IncomeTax Act, the
acceptance of illegal gratification by the accused before the
panch witnesses and how the accused was caught red
handed. That apart, as the order would reveal, he has fully
examined the material documents, namely, the FIR, CFSL
report and other relevant documents placed in regard to the
allegations and the statements of witnesses recorded under
Section 161 of the Code and, thereafter, being satisfied he
has passed the order of sanction. The learned trial judge,
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as it seems, apart from other reasons has found that the
sanctioning authority has not referred to the elementary
facts and there is no objective material to justify a
subjective satisfaction. The reasonings, in our considered
opinion, are absolutely hypertechnical and, in fact, can
always be used by an accused as a magic trick to pave the
escape route. The reasons ascribed by the learned trial
judge appear as if he is sitting in appeal over the order of
sanction. True it is, grant of sanction is a sacrosanct and
sacred act and is intended to provide a safeguard to the
public servant against vexatious litigation but
simultaneously when there is an order of sanction by the
competent authority indicating application of mind, the
same should not be lightly dealt with. The flimsy
technicalities cannot be allowed to become tools in the
hands of an accused. In the obtaining factual matrix, we
must say without any iota of hesitation that the approach of
the learned trial judge as well as that of the learned single
judge is wholly incorrect and does not deserve acceptance.
136. The ratio of said judgment is applicable to the
facts of the present case.
137. I have gone through the sanction order. The said
sanction order is explicit. The said sanction order has been passed
after going through the documents annexed with the agenda items
in which the entire income of A1 during the check period, his
expenditure ascertained during the check period, his assets
generated during the check period, had all been given in detail and
the alleged disproportionate assets alleged to have been acquired
by A1 had also been detailed in the said sanction order
Ex.PW43/2. Since the matter was discussed by the entire House
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after going through the entire record placed before the Municipal
Secretary, therefore the entire material seems to have been
considered by the House, which was necessary for according
sanction. Sanctioning Authority appears to have weighed the pros
and cons in according the sanction. After going through the
income, expenditure, assets of A1 during the check period only
then it gave the necessary sanction. No particular form in which
sanction has to be granted has been prescribed under any law.
The sanction which was reproduced vide Resolution No.264
appears to have been validly granted and there appears to be no
infirmity or illegality in the same, therefore the arguments to the
contrary are without any substance and are rejected.
138. Before proceedings further, it would be expedient
to dispose off the arguments of the prosecution that certain assets
in the name of A2, which have been clubbed into the assets of A1
can be clubbed as such or whether the said assets in the name of
A2 were in fact belonging to A2 only and therefore cannot be
clubbed into the assets of A1, as the entire case of the
prosecution as well as defence mainly hinges upon the disposal of
the above argument. As per the prosecution case, the property
bearing No.5/12, Roop Nagar, Delhi purchased on 17.04.2000 as
well as property bearing No.106,107, Aurbindo Place, Hauz Khas,
New Delhi belonged to A1, though A2 is the ostensible owner of
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the same and it is the case of the prosecution that the entire funds
for the purchase of the aforesaid assets were provided by A1, as
A2 had no means or the status to purchase those assets.
139. For that it has to be found out or to be proved by
the prosecution that the money for the purchase of above assets
was provided by A1 that is to say that they were the benami
properties of A1 held in the name of A2, as A2 had no source of
genuine income. For that it would be expedient to find out at the
very outset, whether A2 had any legitimate source of income.
A2 has relied upon following source(s) of
income:
(1) Income stated in the income tax
returns filed by A2 from time to time.
(2) Loans :
(a) from the relatives
amounting to Rs.3.5 Lakhs.
(b) loan of Rs.10 Lakhs by
way of cheque issued by
A4 on 05.07.99
(c) Loan of Rs.33 Lakhs
extended by M/s Sybron
Leasing and Finance Pvt.Ltd. of
which A3 was one of the
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Director by way of six cheques
Ex.PW75/19 toEx.PW75/24.
(d) Income from share
profits.
140. If A2 is able to show that these transactions
were genuine and were not benami or the money was not
provided by A1, then the above source of income can be
termed as legitimate source of income, the second limb of the
argument would be, if the source(s) of the income of A2 are
legitimate or if they are not, then can it be said that the assets
acquired by A2 mentioned above with regard to the two
properties were purchased by A2 out of her own funds or an
inference can be drawn that the money for generating those
assets were provided by A1.
141. If the prosecution is able to establish that the
money for generating the above assets was provided by A1 or that
A2 had no legitimate source of income or that the said assets
were benami properties of A1 held in the name of A2, then the
same can be clubbed into the assets of A1 otherwise the same
cannot be clubbed into the assets of A1.
Let us take each item in seriatum:
(1)
Income stated in the income tax returns
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filed by A2 from time to time.
142. The said income tax return(s) of A2 have been
proved by her Chartered Accountant PW54 Sh.Dinesh Garg. All
these documents have been collectively exhibited as Ex.PW54/D1
and Ex.PW54/D2. The said income tax returns have been filed by
A2 since the assessment year 19841985, as in the income tax
return for the assessment year 198485, A2 had shown her
income from beauty parlour and also income from other sources.
Similarly, the income tax return filed by A2 for the assessment
years 19851986 and 198788 shows salary income as well as
income from beauty parlour. Similarly, in the income tax return filed
for the assessment year 198889, she had stated her income
generated from Coaching Centre of Beauticians and Parlour and
for the assessment year 19891990 her income had been shown
from tuition as well as interest on petty loans and for the
assessment year 19911992, her income had been shown
primarily from tuitions and interest on NSC and petty loans.
Similarly, the income for the assessment year 19921993 had been
shown to be from tuitions and interest on NSC and interest on petty
loans. Similarly, the income for the assessment year 19941995
shows her income from the same source, as also income for the
assessment year 19951996, as also that of assessment year
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19961997 and the income tax return for the assessment year
19971998 also shows her income primarily from tuitions as well as
from petty loans and that of assessment year 19981999 also
shows the income from same sources. It is mentioned in the note
appended with the income tax return filed for the assessment year
19981999 that she was assessed to income tax upto the
assessment year 19881989. She had not filed her income tax
return for the assessment year 19891990 to assessment year
19971998 as her income was below taxable limit for which she
was enclosing her statements of incomes for the assessment year
19891990 to 19971998 and she was also enclosing her balance
sheet as on 31.03.89 to 31.03.97. Therefore, it seems that the
income tax return for the assessment year 19891990 to
assessment year 19971998 were filed in one go.
143. Similarly, her IT return for the assessment year
19992000 shows her income from tuitions and share profits and
that of assessment year 20002001 her income has been shown to
be from share profits as well as long term capital gain i.e. sale of
the property no.E4/10, Model Town, Delhi. From the aforesaid IT
returns, it is apparent that A2 had been filing her income tax
returns from the assessment year 19841985 showing all her
income from salary, from running beauty parlour, tuitions as well as
interest from petty loans as well as income generated from share
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as well as from liquidation of asset i.e. long term capital gain i.e.
sale of property at Model Town, that is to say that A2 has had
various source(s) of income which were also duly depicted in the IT
returns and the same were duly assessed by the Revenue
Authorities from time to time. The Ld.PP for CBI has relied upon a
judgment State of Tamil Nadu by Inspector of Police (Vigilance)
and Anti Corruption (2014) CCR 226 (SC 01) (supra) in support
of his contention that merely because the fact that A2 had been
assessed to income tax and paid income tax cannot lead to an
inference that the said money was paid by A2 and the property in
the name of an income tax assessee itself cannot be a ground to
hold that it actually belongs to such an assessee, as it will give an
opportunity to a corrupt public servant to amass the property in the
name of known persons, pay income tax on their behalf and then
be out of the mischief of law.
144. On the other hand, Ld.counsel for A1 and A2
has relied upon judgment M.Krishna Reddy Vs. State (Supra) in
which it has been held that income tax returns and wealth tax
returns are unassailable documents as also the judgment
Krishnanand Agnihotri (supra) and he has also relied upon the
Judgment DSP Chennai Vs. K.Inbasagaran (supra) in support of
the same contention, as also judgment State of Andhra Pradesh
Vs J.Satyanarayana (supra), as also the judgment State of M.P
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Vs Mohanlal Soni (supra), the ratio of the aforesaid judgments
are reproduced as under:
(1) In Krishnanand Agnihotri Vs State of M.P
AIR 1977 SC 796, it was held as under:
17. In that case, it was contended that the
amounts lying in fixed deposit in the name of
one Shanti Devi was an asset belonging to the
appellant and that Shanti Devi was a benamidar
of the appellant. The Learned Judge speaking
for the Bench has disposed of that contention
holding that (para 26 of AIR) :
"It is well settled that the burden of showing that
a particular transaction is benami and the
appellant owner is not the real owner always
rests on the person asserting it to be so and this
burden has to be strictly discharged by
adducing legal evidence of a definite character
which would either directly prove the fact of
benami or establish circumstances unerringly
and reasonably raising an inference of that fact.
The essence of benami is the intention of the
parties and not unoften, such intention is
shrouded in a thick veil which cannot be easily
pierced through. But such difficulties do not
relieve the person asserting the transaction to
be benami of the serious onus that rests on him,
nor justify the acceptance of mere conjectures
or surmises as a substitute for proof."
(2) In AIR 1993 Supreme Court 313 titled
M.Krishna Reddy Vs. State Deputy Superintendent of
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Police, Hyderabad, it was held as under:
6. An analysis of Section 5(1) (e) of the
Act, 1947 which corresponds to S.13(1)(e) of the new
Act of 1988 shows that (it) is not the mere
acquisition of property that constitutes an offence
under the provisions of the Act but it is the failure to
satisfactorily account for such possession that
makes the possession objectionable as offending
the law.
14. We are unable to appreciate that
reasoning and hold that the prosecution has not
satisfactorily discharged the expected burden of
proof in disproving the claim of the appellant.
Therefore, on the face of these unassailable
documents i.e. the wealthtax and incometax
returns, we hold that the appellant is entitled to
have a deduction of Rs.56,240.00 from the
disproportionate assets of Rupees 2,37,842/.
19. Needless to say that this Court on
a series of decisions have laid down the guidelines
in finding out the benami nature of a transaction.
Though it is not necessary to cite all those
decisions, it will suffice to refer to the rule laid down
by Bhagwanti, J. as he then was in Krishnanand
Agnihotri V. State of M.P., AIR 1977 SC 796: (1977) 1
SCC 816. In that case, it was contended that the
amounts lying in fixed deposit in the name of one
Shanti Devi was an asset belonging to the appellant
and that Shanti Devi was a benamidar of the
appellant. The learned Judge speaking for the
Bench has disposed of that contention holding thus
: (para 26 of AIR) :
" It is well settled that the burden of
showing that a particular transaction is benami and
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the owner is not the real owner always rests on the
person asserting it to be so and this burden has to
be strictly discharged by adducing legal evidence of
a definite character which would either directly
prove the fact of benami or establish circumstances
unerringly and reasonably raising an inference of
that fact. The essence of benami is the intention of
the parties and not unoften, such intention is
shrouded in a thick veil which cannot be easily
pierced through. But such difficulties do not relieve
the person asserting the transaction to be benami of
the serious onus that rests on him nor justify the
acceptance of mere conjectures or surmises as a
substitute for proof."
(3) In Criminal Appeal No.5 of 1995, D/d. 26.4.2001
titled K.Goverdhan Versus State of A.P, Hon'ble Andhra
Pradesh High Court, has held as under:
14. Thus, in this case, the learned Special Judge
seems to have relied on only two circumstances for
holding that the assets in question are held by the
ostensible owners benami for the accused officer.
Firstly, the alleged absence of any known source of
income on the part of those ostensible owners and
secondly issuing of cheques by the accused officer
on various occasions in favour of D.W.5, who is his
soninlaw. It is pertinent to mention here that even
assuming that the ostensible owners in question do
not have any known sources of income this in itself
cannot be a conclusive circumstance for holding
that the property held by them was benami on
behalf of accused officer.
22. There is another aspect of the matter which
deserves to be mentioned. Mere fact that the
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ostensible owner had no source of income in itself
would not lead to any inference that the property in
question was purchased with the income of a
particular person. The absence of any source of
income to the ostensible owner would merely
indicate that the property might have been acquired
with the income flowing from some one else. As to
who that some one else is a matter of evidence and
proof. That circumstance cannot lead to an
inference that the property in question was acquired
with the income from the accused. As pointed out
by the learned Counsel for the appellant one of the
sons of Narsingamma who has been examined as
P.W.12 was himself a Government employee. No
material has been placed before the Court to show
that he might not have been interested in having the
property acquired benami in the name of his
mother. Thus, as stated above, it is a matter of
evidence and not a matter of mere inference though
the evidence may not be direct and may consist of
circumstantial evidence. In this case, the
Investigating officer P.W.43, has candidly admitted
that there is no material to show that the
investments for the purchase of properties alleged
to be benami were in any way traceable to the
income of the accused. No circumstantial evidence
of a definitive character has been placed on record
to lead to an inference that it was the income of the
accused which financed purchase of alleged benami
properties.
(4) In 2005 X AD (S.C.) 368 titled D.S.P Chennai
Vs K.Inbasagaran passed by Madras High Court, it was held
as under:
16. Now, in this background, when the accused
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has come forward with the plea that all the money
which has been recovered from his house and
purchase of real estate or the recovery of the gold
and other deposits in the Bank, all have been owned
by his wife, then in that situation how can all these
recoveries of unaccounted money could be laid in
his hands. The question is when the accused has
provided satisfactorily explanation that all the
money belonged to his wife and she has owned it
and the Incometax Department has assessed in her
hand, then in that case, whether he could be
charged under the Prevention of Corruption Act. It
is true that when there is joint possession between
the wife and husband, or father and son and if some
of the members of the family are involved in
amassing illegal wealth, then unless there is
categorical evidence to believe, that this can be
read in the hands of the husband or as the case may
be, it cannot be fastened on the husband or head of
family. It is true that the prosecution in the present
case has tried its best to lead the evidence to show
that all these moneys belonged to the accused but
when the wife has fully owned the entire money and
the other wealth earned by her by not showing in
the Incometax return and she has accepted the
whole responsibilities, in that case, it is very
difficult to hold the accused guilty of the charge. It
is very difficult to segregate that how much of
wealth belonged to the husband and how much
belonged to the wife. The prosecution has not been
able to lead evidence to establish that some of the
money could be held in the hands of the accused.
In case of joint possession it is very difficult when
one of the persons accepted the entire
responsibility. The wife of the accused has not been
prosecuted and it is only the husband who has been
charged being the public servant. In view of the
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explanation given by the husband and when it has
been substantiated by the evidence of the wife, the
other witnesses who have been produced on behalf
of the accused coupled with the fact that the entire
money has been treated in the hands of the wife and
she has owned it and she has been assessed by the
Incometax Department, it will not be proper to hold
the accused guilty under the prevention of
Corruption Act as his explanation appears to be
plausible and justifiable. The burden is on the
accused to offer plausible explanation and in the
present case, he has satisfactorily explained that
the whole money which has been recovered from
his house does not belong to him and it belonged to
his wife.
(5) In VII (2000) SLT 43 titled State of Andhra Pradesh Vs
J.Satyanarayana passed by Hon'ble Supreme Court of
India, it was held as under:
We fail to understand how the incometax
return, Ex.P17, filed by the wife on 2nd of January,
1986 could be labelled as an afterthought when it
had been filed much prior to even the rgistration of
the case against the respondent by the ACB. Not
only was that return be filed but the assessment had also been completed. The receipt of various loans which had been shown by the wife in the return, thus, stood accepted by the Income Tax Authorities. The evidence led by the prosecution itself by filing of incometax return of the wife coupled with the evidence of defence witnesses clearly goes to establish that the house in Anand Nagar Colony was an asset belonging to the wife of the respondent and not to the respondent himself. The High Court, therefore, rightly arrived at the conclusion that the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 said house could not be treated as an asset of the respondent by correct appreciation of evidence and proper application of law to the facts of the case. We are satisfied that the finding recorded by the High Court to the effect that the house in Anand Nagar Colony was an asset of the wife of the respondent and not of the respondent is correct and proper and suffers from no infirmity at all. Once we arrive at that finding, the conclusion becomes irresistible that an order of acquittal of the respondent recorded by the High Court is well merited. It suffers from no illegality, let alone perversity. We, consequently, do not find any reason to interfere with the well merited order of acquittal. This appeal, therefore, fails and is dismissed.
(6) In (2000) 6 Supreme Court Cases 338 titled State of M.P Vs. Mohanlal Soni, it was held as under: A complaint under Section 13(1)
(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 for the check period 25.09.1982 to 27.03.1993 was filed against the respondent public servant stating that he had acquired the property in excess of the known sources of his income. While submitting the chargesheet several important documents, which were collected during the course of investigation, were withheld. Most of the documents related to the income tax returns or income tax assessment orders. All these documents pertained to the period prior to 26.03.1993. Some of them even related to the year 1988. At the time of framing charges the respondent made an application seeking production of these documents in court. According to the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 respondent the said documents supported him. If those documents were considered even prima facie there was no scope to frame charges against him. But the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under Section 173(5) CrPC were required to be considered. Hence the respondent filed criminal revision which was allowed by the High Court directing that the documents collected during investigation be produced and may be taken into consideration by the court below while framing the charge. Thereafter the trial court framed charges under Section 13(1)(e) read with Section 13(2) of the Act. Aggrieved by the order framing charges, the respondent filed a criminal revision. The High Court accepted the case of the respondent, set aside the order of the trial court framing charges and discharged the respondent. Dismissing the SLP by the State, the Supreme Court.
145. In view of the aforesaid preposition of law laid down in the aforesaid judgments, it is apparent that the income tax returns and orders are unimpeachable documents, which have been accepted by the Income Tax Authorities and have been properly assessed and in the normal course, the said documents could not have been prepared in the anticipation that A1 would have to face charges in the future, as A2 had been filing her income tax returns almost 15/16 years prior to the raid at the house of A1, when the present case of disproportionate assets was registered against A1 and other accused persons. No doubt, it RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 was open for the prosecution to lead evidence of positive character to show that the money for the same was provided by A1 so as to show that A2 had no legitimate source of income, but since A2 had been continuously filing income tax returns and paying tax thereon and her income had also been assessed by the Income tax authorities / Revenue Authorities, it cannot be said now that she must have contemplated that later on at some point of time A1 would be prosecuted for a case of disproportionate assets, so that she should be prepared in advance to meet such an eventuality. Therefore, it is apparent from the above discussion that the income tax returns filed by A2 during the course of time were legitimate and genuine. Therefore, the income mentioned therein with regard to the source(s) other than loans and share profits, which shall be discussed hereinafter, were legitimate.
(2) Loans :
(a) from the relatives amounting to Rs.3.5 Lakhs.
146. The said loan of Rs.3.5 Lakhs has been shown in the income tax return (ITR) of A2 for the assessment year 1987 1988, when Smt.Maya Devi (A2) seems to have purchased the property bearing No. E4/10, Model Town, Delhi on 16.01.87 for a RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 sum of Rs.5,18,400/ and in the said balance sheet appended with the ITR for the assessment year 19871988, she had taken a loan of Rs.1,00,000/ and Rs.50,000/ from Ramo Devi and loan of Rs.1 Lakh each from Jagdish Kumar and Raj Kumar. It was stated during the course of argument by Ld. Counsel for A1 and A2 that Ramo Devi was the mother of A2 and Jagdish Kumar and Raj Kumar were the brothers of A2. Ld.PP for CBI has argued that the financial status of the aforesaid persons was very ordinary, as the husband of Ramo Devi was only a Mali with CPWD and both the brothers of A2 namely Jagdish Kumar and Raj Kumar were doing petty jobs, therefore they had no status to extend loan of Rs.3.5 Lakhs in total and the entire transaction was a sham one.
147. On the other hand, Ld.counsel for A1 and A2 has argued that the said loan(s) had been depicted in the ITR for the assessment year 19871988 and the same was also scrutinized by the Income tax authorities and were found to be correct and it would not lie in the mouth of the prosecution to assail the same after a time of almost 30 years and he has argued that the prosecution has examined PW64 Jagdish Kumar to prove that he had given a loan of Rs.1 Lakh to his elder sister i.e. A2 and he has also deposed that his sister had also taken a loan of Rs.1 Lakh from Raj Kumar and Rs.1 Lakh from her motherinlaw and the same, as discussed above has been duly reflected in the balance RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 sheets which are Ex.PW54/D1 and D2 (colly.). Therefore, it shows that the said transaction is genuine in nature.
148. I have gone through the rival contentions. PW64 Jagdish Kumar, the brother of A2 has been rather examined by the prosecution itself. He admitted that A2 is his elder sister and his father used to work as Mali in CPWD and he was posted as Sub Registrar in Civil Line Zone MCD (Birth & Death department) and around year 1986, he had advanced loan to his elder sister (A
2) Smt.Maya Devi and he was not in service prior to March 1989, but was doing private business and he was not having any bank account in year 1986 and repayment of loan started in the year 2002, when sum of Rs.5,000/ was given back to him and thereafter the balance too was paid back to him in installments and he had received the last installment in year 2005. He further deposed that after having given the loan amount to his sister (A2), he had requested for repayment of the same number of times, but she used to say that she was short of funds. In the cross examination, PW64 has stated that at the time of advancement of loan of Rs.1 Lakh by him to his sister (A2), A2 had also taken loan from his brother Raj Kumar as well as loan of Rs.1 lakh from her motherinlaw. It was stated during the course of argument that the said Raj Kumar, another brother of A2 could not be examined, as he had died.
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149. Now, in these circumstances in view of the testimony of PW64, who has been examined as prosecution witness, it has to be seen whether the family of A2 had the financial capacity to extend loan to her or not. From the perusal of the relevant ITR Ex.PW54/D1 and D2 (colly.), and from the testimony of PW64, it is apparent that the money / loan was given by the family members of A2 for the purchase of first house of A2. The family members of A2, though may not be financially very sound or can be said to be financially weak, but under the context of Indian society and culture, the family members of daughter are more than willing to help their daughter in case she asks for loan from them, more so for the purchase of first house.
150. Regarding the non repayment of loan immediately thereafter, it is in any case a matter of personal nature between the family members of A2 and the Court cannot go behind the same. In these circumstances, since the said loan amount had been duly reflected in the relevant ITR and has been proved to be so by PW64, the extending of loan by the relatives / maternal relatives of A2 appears to be bonafide one.
(b)
loan of Rs.10 Lakhs by way of cheque
issued by A4 on 05.07.99
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100
151. The prosecution has examined PW91 Sh.Ashok Kumar to prove the account opening form of account No.10981/65 in the name of Subhash Chand Gupta (A4) (D153) as Ex.PW59/2A, which was opened in the State Bank of Patiala, Model Basti Branch. Prosecution has also examined PW59 Sh.Mukesh Gupta, who worked with the said bank branch at the relevant time. He after seeing the letter stated that alongwith the said forwarding letter dated 03.08.01/03.10.01 Ex.PW59/1, he had handed over certain attested copies of the documents to CBI officer. D103 is the attested copy of account opening form of A4 which is Ex.PW59/2 and D104 is the attested copy of specimen signature card which is Ex.PW59/3. D105 is the attested copy of statement of account of A4 which is Mark P59/A. He also stated that some documents pertaining to the said account of A4 had been handed over by him to the CBI officer, which was seized vide seizure memo Ex.PW59/4 (D105a). The vouchers handed over by him are on judicial file as D106, D110, D111, D114, D115, D117, D119, D120, D122, D125, D126, D128 and D131. The prosecution by examining the aforesaid witness has proved that A 4 was having an account with State Bank of Patiala, Model Basti Branch, Delhi, which even otherwise has not been disputed by the accused. Perusal of the said statement of account Mark P59/A shows that the said account was being regularly operated in the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 course of business transaction and there were number of credit as well as debit entires in the said account from time to time made by the said accused. The prosecution has also proved one seizure memo Ex.PW59/4 by virtue of which 27 vouchers starting from 10.07.91 to 12.12.2000 were seized from the said bank branch. The said debit vouchers show that the said account was being transacted on regular basis by A4 and there were number of transactions with certain other persons. The prosecution has also proved D127, which is the admitted document of the prosecution as well as of A4, which was seized vide seizure memo Ex.PW59/4. D127 is a cheque dated 05.07.99 vide which loan of Rs.10 Lakhs was extended to (A2) Smt.Maya Devi.
152. Now, it is the prosecution case that A4 had no means or financial capacity to extend the said loan to A2 and the money for the same was provided only by A1 or A2. As discussed above, the statement of account of A4 Mark P59/A shows that there were several transactions in the bank account of said accused with certain other persons and the said bank account was regularly operated during the course of official business. Further, the income tax returns of A4 have been proved by his Chartered Accountant Sh.Sharad jain, who has been examined as PW74. He has proved the relevant income tax returns of the said accused as Ex.PW74/E, F and G (colly.). The above loan of Rs.10 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Lakhs had been admittedly extended on 05.07.99. The same is duly reflected in the income tax return for the assessment year 20002001 in the head of assets and as the loan extended to A2 and the interest income has also been shown in the liabilities on accrual basis as Rs.1,33,000/. The said income tax return had been filed on 31.05.01 as per the stamp appearing on the face of the said ITR. The said loan has also been correspondingly shown by A2 in her income tax return Ex.PW54/D1 and D2 (colly.) with regard to the ITR filed for the assessment year 20002001 in which a loan of Rs.10 Lakhs alongwith the interest accrued thereon as Rs.1,33,000/ has been shown in the column of liabilities. Therefore, A2 has shown the interest expenditure of Rs.1,33,000/ in the ITR for the corresponding assessing year 20002001 which corroborates with the ITR of A4.
153. Further, from the income tax return submitted by A2 Ex.PW54/D1 and D2 (colly.), more specifically the ITR for the assessment year 20002001, the said property i.e. 5/12, Roop Nagar has been shown as a fixed asset in the balance sheet, as it is stated that the advance money for the said house has already been paid.
PW74 Sh.Sharad Jain, has deposed that he had filed the ITR of A4 before income tax authorities since 19981999 and he has proved the same as above. In his cross examination RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 by Ld.counsel for A3 and A4, he stated that from the perusal of the record relating to A4, he can say that the income of A4 for the assessment year 19981999 was Rs.63,430/ and this was his total income in that year and in that year his source of income was from the salary and interest from loans given to individual parties. In general his source of income was salary, interest and capital gains on sale of house properties. He used to deal in sale purchase of properties also. In the assessment year 19992000, his source of income was from salary, profit from sale and purchase of property and bank interest. The total income from all these sources was Rs.2,87,771/. In the assessment year 19992000 his source of income was from salary, profit from sale and purchase of properties, bank interest and interest from Smt.Maya Devi (A2). Total income was Rs.3,08,039/. The income from Maya Devi (A
2) was accounted for on accrual basis only. As on 31.03.1998, he was having four properties and as on 31.03.1999 he was having three properties, in the assessment year 19981999, he did not sell any property, but in the assessment year 19992000 he sold two of his properties on 26.11.1998, the payment of third property was received on 31.03.99 and as such was booked in the assessment year 19992000 itself as income. However, the sale papers of this property were executed on 15.04.1999. Total consideration that he received was Rs.5 Lakhs. In the assessment year 19992000 he RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 had received Rs.4,50,000/ as advance on 31.03.1999. The money was deposited in the bank on 31.03.1999. He also stated that he participated in the proceedings initiated before the Income tax Authorities on behalf of A4, as the said case was taken for scrutiny on the basis of instructions received by income tax officer from investigation wing of the Income tax department. In the assessment year 20002001, A4 had advanced a loan of Rs.10 Lakhs by way of two cheques of Rs.5 Lakhs each to Smt.Maya Devi (A2), which was duly reflected in his balance sheet as on 31.03.2000, also an interest income of Rs.1,33,000/ was reported in his income tax return for this assessment year on accrual basis and the source of Rs.10 lakhs was properly disclosed and proved before income tax authorities in the scrutiny proceedings. There was no addition made by the income tax officer in the said assessment order that is to say that no anomaly / illegality was found in any of the transaction made by A4 as reflected at page no.9 i.e. balance sheet for the assessment year 20002001 Ex.PW74/F (colly.) and the assessment order dated 31.12.03 at page no.481 to 483 of judicial record is Ex.PW74/D1 (colly.).
154. From the testimony of aforesaid witness, who was the Chartered Accountant of A4, it is apparent that the income of A4 was primarily from salary, interest on loans and from RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the sale of house properties, which have also been only reflected in his ITRs. As per the income tax returns for the assessment year 19992000, he was having two house properties, which have been shown in the asset column of the balance sheet, whereas in the balance sheet for the assessment year 20002001, it appears that he had sold those two house properties and the sale consideration i.e. long term capital gain on the sale of the properties has been duly reflected in the income head in the ITR for the assessment year 20002001.
155. The same also seems to have been picked up by the income tax authorities for scrutiny i.e. the ITR for assessment year 20002001 was picked up by the income tax authorities for scrutiny on the instructions of income tax officer from Investigation Wing of the Income Tax Department. During the scrutiny done by the Income tax authorities u/S 143 and 148 of Income Tax Act, no addition was made by the Income tax Officer as per the assessment order Ex.PW74/D1 (colly.). Even the Income tax authorities did not find any anomaly in the loan transaction of Rs.10 Lakhs extended to A2, as A4 was able to explain the sources of extending the loan to A2 were genuine in nature.
156. However, the prosecution has relied upon sale deed, which was executed by A4 in favour of one Jitender Pal Singh, who has been examined as PW90. He has stated that he RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 had purchased the property bearing no.1288, Chhabi Ganj, Vardhan House, Kashmere Gate, Delhi from A4 and he made a payment of Rs.4.5 Lakhs through cheque from the account of his mother. He has proved the copy of sale deed as Ex.PW90/1 (D
200). The Ld. Public Prosecutor for CBI has argued that the said sale deed was dubious in nature, as A4 has purchased the same property vide sale deed dated 26.03.1999 Ex.PW93/A1 and immediately sold the same on 15.04.99, which raises doubt that the said transaction was only the paper transaction. He has also stated that in the sale deed Ex.PW93/A1, though it was stated that the sale consideration was received by way of cheque, but it is also mentioned in the sale deed that the payment of Rs.4 lakhs had been received in cash in advance, which raises doubt on the transaction, but rebutting the said contention of Ld.PP for CBI, the ld.counsel for A3 and A4 submitted that since the cheque had been dishonoured, therefore the payment has been made by way of cash and there is no discrepancy or doubt with regard to the said sale transaction.
157. I have examined the said plea. It may be that the cheque mentioned in the sale deed may not have been relied upon by the parties for various reasons, but it is duly mentioned in the sale deed that the sale consideration was received in cash i.e. to say that it cannot be said that the sale deed was executed without RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 any consideration. Therefore, there cannot be any doubt with regard to said sale transaction. It may be that A4 may have sold the property immediately after the execution of the previous sale deed on 15.04.99, but in both the cases, the requisite stamp duty has been paid and the sale deeds have been executed as per law. Therefore, no doubt can be raised about the same. In any case, in those days, such kind of sales if not genuine could have been easily made by execution of power of attorney, agreement to sell, will etc. which were in vogue in Delhi, on which no stamp duties were paid. Since in the present case, both the sale deeds have been executed on the stamp papers by paying appropriate stamp duty and the same have been duly registered as per the Indian Registration Act, there cannot be any doubt raised about the same now, especially when the prosecution has itself examined PW90 to prove the authenticity of the same.
158. Regarding the contention of Ld.PP for CBI that the said sale consideration received by A4 was immediately withdrawn by A4 after the execution of the sale deed dated 15.04.99 and the loan was extended to Smt.Maya (A2) when there was hardly any balance in the account of A4 on 05.07.99, as he was having very nominal balance in his account on that day and cash deposits of Rs.5 Lakhs each were deposited on 05.07.99 and 07.07.99 and the cheque in question was dated 05.07.99, shows RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 that A4 had no financial capacity and the money for the said amount had been deposited by either A1 or A2. Ld. Counsel for A4 has rebutted the same.
159. I have examined the said plea. Merely because A4 had withdrawn the money which he received after the execution of the sale deed on 15.04.99, which property was sold for Rs.4.5 Lakhs, then does not ipsofacto means that he had utilized the said money. He may have withdrawn the said money, kept it with him without utilizing the same. Thereafter, at the time of extending the loan to A2, may have redeposited the said money by way of cash on two days prior and thereafter to meet the said cheque, but that in no way shows that the said money was deposited by A4 and not by A1 or A2. As discussed above in the judgment of Krishnanand Agnihotri (supra), it is incumbent duty of the prosecution to prove the benami nature of the transaction i.e. to say that the prosecution has to prove that the money was provided by A1 or A2 by leading evidence of definite character.
160. As discussed above, from the ITRs of A4 including various transactions made by him from his bank statements and debit vouchers / cheques seized by the prosecution and the fact that his income tax return for the assessment year 20002001 was also picked up by the income tax authorities for scrutiny and during the reassessment done u/S 143 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 and 148 of IT Act, no infirmity could be detected, shows the clean nature of the transaction in question. PW93 S.Balasubramany, who was the main IO of this case was asked in his cross examination dated 14.12.2015, as to whether he tried to know who had deposited the amount in the account of A4, to which he stated that the investigation was done, but it could not be ascertained who had deposited the amount in the account of A4 and Sybron Leasing Pvt. Ltd. Therefore, prosecution has failed to prove that the said Rs.10 Lakhs was provided by A1 or A2 to A4. Therefore, it follows as corollary to the same that the loan transaction of Rs.10 Lakhs extended by A4 to A2 was a genuine one, as A4 was a man of means and had the financial capacity and capability to extend the said loan and there were no suspicious circumstances surrounding the same.
(c) Loan of Rs.33 Lakhs extended by A3 Director of M/s Sybron Leasing and Finance Pvt.Ltd. of which A3 was one of the Director by way of six cheques Ex.PW75/19 to Ex.PW75/24.
161. In this regard, the prosecution has examined PW 92 Shri Krishan Gupta. He has deposed that around the year 1995, M/s Sybron Leasing & Finance Pvt. Ltd. was incorporated by RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 him and his son Ajay Gupta and both were Directors of the same and its business was financing, but it was nonbanking company. He has also proved the Memorandum and Articles of Association of above company (D157) Ex.PW92/A (colly.). He has also proved the Board Resolution (D156) Ex.PW92/C authorising the company to open a bank account in the name of the said company. He has also proved the specimen signature card pertaining to account opening form of the said company Ex.PW92/D, which was current account. He has also stated that loan of Rs.33 lakhs was extended to Smt.Maya Devi (A2) by cheque(s). In his cross examination, he has stated that the said loan of Rs.33 lakhs was given to A2 as loan vide six different cheques of different amount totalling Rs.33 Lakhs, which are Ex.PW75/9 to Ex.PW75/24. The same bears the signatures of his son Ajay Gupta (A3), who was one of the Director of the said company.
162. Prosecution has also examined PW75 Sh.Narender Kumar Shourie, witness from State Bank of Patiala, Model Basti. He has proved the statement of account pertaining to Sybron Leasing & Finance Pvt. Ltd. in their bank which is Ex.PW75/2 and he has also proved the six cheques which are Ex.PW75/3 to Ex.PW75/9 by virtue of which loan of Rs.33 Lakhs was extended to A2 as stated above. He has also proved the corresponding payinslip by virtue of which the said account was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 credited. These slips are Ex.PW75/10 to Ex.PW75/17. Perusal of statement of account of M/s Sybron Leasing & Finance Pvt. Ltd. shows that there are various debit as well as credit entires made in this account, since year 1996 and there is huge credit entires of Lakhs of rupees in the normal course of business and the transactions have been carried out from the said bank on regular basis. It is not that it was a dormant company, having no financial capacity. At the time of extending the loan by way of different cheques, being first cheque dated 29.06.99 and the last cheque dated 05.04.2000, there are various transactions in the said bank even thereafter. So, it appears that the said company was having the financial capacity to extend the loan. The interest receivable from A2 and the ledger account pertaining thereto has also been proved as Ex.PW92/D2. It also shows that the same has been duly accounted for.
163. The audited balance sheet of the above company for the assessment year 20002001 also shows the consolidated amount of Rs.77,22,292/ as loans and advances in the head of current assets, loans and advances. It was argued by Ld.counsel for A3 that the said figure of Rs.33 Lakhs is included in the said loan amount of Rs.77 Lakhs as stated above and was not shown separately. Therefore, from the aforesaid income tax return Ex.PW74/D, it appears that the loan transaction has been duly RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 shown in the audited balance sheet annexed with the income tax return for the assessment year 20002001.
164. Similarly, from the perusal of the corresponding ITR of A2 Ex.PW54/D1 and D2, more specifically ITR for the assessment year 20002001 shows that A2 had shown the said loan alongwith the interest expenditure in the liabilities column of her balance sheet annexed with the said ITR for which the interest component, which was to be paid by her, is also included in the liabilities column. Therefore, it appears that the loan which was extended by aforesaid company was duly reflected in the income tax return of the said company as well as in the ITR of A2.
165. The Dy.Director of Income Tax (Inv.), UnitV(3), New Delhi, had also written a letter to SP, CBI Ex.PW85/6 regarding the investigation carried out by him with regard to the said loan transaction and vide said letter, he had requested the SP, CBI to apprise him about the investigation carried out by him with regard to the said loan transaction and other facts relating to the said transaction to help the Assessing Officer to do the needful. Vide letter dated 14.03.02 Ex.PW85/8, the concerned Income tax officer was directed to reopen the assessment with respect to the assessment year 20002001 u/S 147, 148 of the Income Tax Act. As stated above, vide above letter Ex.PW85/6 dated 31.07.02, the Dy.Director, Income Tax Investigation Wing put certain queries to RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the SP CBI, as he stated that their inquiries did not reveal anything adverse so far.
166. After reopening of the assessment u/S 147/148 of the IT Act, the matter was examined at length by the Assessing Authorities and vide order dated 31.03.04, the Assessing Officer did not find any infirmity in the said assessment and the income tax return filed by M/s Sybron Leasing & Finance P. Ltd. was accepted for the assessment year 20002001, the said order is Ex.PW92/D5 (colly.). Therefore, it appears that despite investigation by the Investigating Wing of the Income Tax Department and reopening of the assessment u/S 147/148 of the IT Act, the said transaction was found to be genuine by the IT Authorities.
167. Perusal of the record reveals that the aforesaid company had been filing ITRs alongwith the audited balance sheets for number of years, the same are Ex.PW74/A to Ex.PW74/D. Therefore, it is not that the said company had only been incorporated to extend loan to A2. It appears that the said company was doing the actual business of extending loans and earning income from the interest component received from the lendees during the regular course of their official business.
168. Ld.PP for CBI has argued that during investigations by the Investigating Wing of the Income Tax Authorities, statements of A3 and that of his father Shri Kishan RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Gupta and that of A4 Subhash Chand Gupta were recorded u/S 131 of the IT Act. These statements are Ex.PW85/2 and Ex.PW85/3 and Ex.PW84/5 respectively which are duly admissible as per the provisions of Income tax Act, therefore they should be read against A3 and A4.
169. On the other hand, Ld.counsel for A3 and A4 has controverted the said contention of Ld.PP for CBI and argued that the said statements are not admissible as the author(s) of the said statement have not been examined i.e who had scribed them had not been examined, secondly that the said statements are not complete statements and it has also not been proved that the said statements have been made voluntarily by the persons examined u/S 131 of the IT Act.
170. I have examined the said plea and find sufficient merit in the above contentions of Ld.counsel for A3 and A4 that the said statements cannot be admitted into evidence perse, as it is not a safe piece of evidence. Firstly the scribe, who had recorded the said statements has not been examined to prove the authenticity of the statements made by the persons mentioned therein. Secondly, nor it has been proved that the said statements were made voluntarily by the persons mentioned therein that is to say that those persons were explained the consequences of making such statement and they were not put to any force or RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 coercion while making the said statements. Thirdly, it appears that the said statements are not complete. Further, PW85 though stated in his examination in chief that oath was administered to persons in his presence, but at the same time in the cross examination he has admitted that statements Ex.PW35/2 and Ex.PW35/3 of A3 and A4 are not complete. He further admitted that after recording statement, the concerned official is required to give certificate "read over and affirmed as correct" (RO&AC). He also admitted that there was no such certificate on these statements, as these were part statements. Lastly, great prejudice would be caused to A3 and A4, if such statements are admitted into evidence as such, as A3 and A4 would have advantage of cross examining the person who allegedly recorded the said statements, if said witness had stepped into the witness box and by such cross examination it might have been ascertained as to whether they were subjected to force, coercion and duress for making their statements and such statements are not voluntary in nature. Therefore, looking from every angle, such statements are not admissible that is to say that it is not safe to rely upon such statements to support the case of the prosecution.
171. PW92 Shri Krishan Gupta, one of the Director of said company had also stated in his cross examination that there was no illegality or irregularity done in providing the loan of Rs.33 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Lakhs to A2, as the source had also been explained to the Income tax department. Similarly, PW93 I.O S.Balasubramany in his cross examination dated 14.12.2015 was specifically asked did he try to know who deposited the amount in the account of Subhash Gupta and Ajay Gupta during investigations, to which he answered that it could not be ascertained.
172. Therefore, it appears from the above discussion that sum of Rs.33 lakhs given by M/s Sybron Leasing & Finance P.Ltd. to A2 was provided by the company, which had independent sources of income. The said company had financial capacity to extend said loan, further the prosecution has failed to prove that the money for the same was provided by either A1 or A2 to the company. So, there cannot be any doubt about the genuineness of this loan transaction, which was also examined and reexamined by the Revenue Authorities under the provisions of Sec.147 and 148 of the IT Act. Therefore, this loan transaction is also found to be genuine in nature.
(d) Income from share profits.
173. The same was computed as Rs.38,58,760.7P, as per para no.23 of the chargesheet. A2 as well as son and daughter of A1 and A2 namely Abhishek and Sanjana had claimed income of Rs.37,58,760/ (figure rounded off) on the initial RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 investment of Rs.1,00,000/ during the period of 2½ years through one Atul Goel, Proprietor of M/s Pace Financial Services, who was buying and selling shares on the instructions of one Ashok Kumar, employee of Sh.Dinesh Garg, Chartered Accountant of above A2 and son and daughter of A1 and A2 and they had allegedly received payment by way of 13 cheques of Citi Bank.
174. Vide detailed order on charge dated 27.01.14, charge was also ordered to be framed against (A5) Atul Goel u/S 109 IPC r/w Sec.13(1)(e) r/w Sec.13(2) of PC Act including other accused persons. Thereafter, he preferred a revision petition before the Hon'ble High Court against the framing of charge u/s 482 Cr.P.C. The Hon'ble High Court vide order dated 03.11.14 was pleased to pass the following order which is reproduced as under: "The Apex Court in "State of Haryana & Ors Vs. Bhjajan Lal, 1992 Supp.(1) SCC 335, examined the scope of inherent powers of this Court in interference of its office by the appeals in the backdrop of interpretation of various relevant provisions of Cr.P.C under Chapter XIV and all the principles of law enunciated by the Apex court in a series of decisions relating to exercise of extraordinary power under Article 226 of Constitution of India or inherent powers under Section 482 of Cr.P.C which enumerate the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of Court or otherwise to RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 secure the ends of justice. The Apex Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelized inflexible guidelines or rigid formulae in order to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (I) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. There are a Catena of judgments of the Hon'bl;e Supreme Court. However, specific reference can be made to "State of U.P. Vs Golconda Linga Swamy & Anr., (2004) 6 SCC 522, wherein it was held that while exercising the powers under Section 482 Cr.P.C., the Court does not function as a Court of appeal or revision and that such a power though very wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by tests laid down in the section itself. Section 482 Cr.P.C envisages three circumstances under which inherent jurisdiction may be exercised namely (i) to give effect to an order under Cr.P.C, (ii) to prevent abuse of process of the Court, and (iii) to otherwise secure ends of justice.
In Golconda Linga Swamy's case(supra) it was also held that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction in the enactment dealing with the procedure and provide with all cases that possibly arise. When the complaint is sought to be quashed it is permissible to look into material to assess what the complainant has alleged and RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 whether any offence is made out even if the allegation are accepted in toto. Similarly, in the case of 'Devendra & Ors Vs. State of Uttar Pradesh & Anr., (2009) 7 SCC 495, Hon'ble Supreme Court observed that "when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior court would not encourage harassment of a person in a Criminal Court for nothing".
In view of the settled proposition of law as noted above, there does not remain any doubt that this Court has inherent power under Section 482 Cr.P.C and also extraordinary power under Article 226 of the Constitution of India to entertain the present petition. Since power is to be exercised sparingly due care and caution will be required to examine the allegations as set out in the FIR and also brought up from the evidence gathered during investigation.
In the instant case, learned Special JudgeIV, CBI(PC Act), Tis Hazari Courts, Delhi formed an opinion that prima facie case in respect of offence unde Section 109 IPC r/w Section 13(1)(e) punishable U/s 13(2) of the PC Act is made out who is accused no. 5 before the trial court. Learned Special Judge, however, rejected the contention raised on behalf of CBI that prima facie case in respect of offence of criminal conspiracy punishable U/s 120B IPC was also made by observing that even as per allegations of prosecution, the acts of accused no. 3, 4 and 5(petitioner herein) were independent acts and also that there was no allegation contained in the chargesheet that the accused persons had conspired RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 together with accused no. 1 or accused no. 2 to facilitate the commission of offence under Section 13(1)(e) punishable under Section 13(2) of Prevention of Corruption Act by accused no. 1.
Learned Trial Court relied upon judgments passed in 'Kanti Bhushan Bhadra Shah Vs. State of West Bengal', (2000) 1 SCC 722; 'Lalu Prasad Vs. State of Bihar', (2007) 1 SCC 49 and 'Sudhir Kumar Jain & Ors vs. State', (1994)(2) Crimes 954, to observe that no reasons are required to be recorded at the time of framing the charges against an accused. However, the order under challenge is completely silent about any incriminating evidence or document available before the trial court which raises grave suspicion against accused no. 5 who is the petitioner herein in respect of even the offence of abetment as charged against him.
On the other hand, Ld. Counsel for the petitioner urged that even as per the admitted case of CBI initial payment of Rs. 1,00,000/(Rupees One Lakh) was made by aforesaid three persons by way of three cheques and the amount of Rs. 37,58,760.70 paise(Rupees Thirty Seven Lakhs Fifty Eight Thousand Seven Hundred Sixty and Seventy Paise was made by the petitioner through 13 account payee cheques. He highlighted the fact that there is no allegation of cash transaction. He also submitted that all the share transactions have been verified by CBI during the course of investigation and the profit of Rs. 37,58,760.70 has been generated during the time span of two years and five months and at the time when there was boom in the stock market. In this regard, ld. Counsel for the petitioner has referred to the document filed by CBI as document -D 211 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 alongwith chargesheet/. He also pointed out that aforesaid three close relatives of the main accused have also suffered loss of about Rs. 11,70,000/ when the market prices of shares had fallen down steeply. Thus, the petitioner has provided his services as a share broker to the aforesaid three persons and has done nothing beyond that.
No doubt, the share transactions entered in the name of Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek by the petitioner herein were executed in the client code CVS 01 belonging to Mr. Vijay Sachdeva(PW68). However, merely because the close relatives of the main accused Ashok Kumar, had engaged services of the petitioner for making investment in the share market through him, it does not lead to any inference that the petitioner had aided or abeted in the commission of offence of accumulation of disproportionate assets by the main accused.
A perusal of trial court record would reveal that as per investigation carried out by CBI, Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek were introduced by Mr. Vijay Sachdeva(PW68) to the petitioner herein. In this backdrop, the submission made on behalf of petitioner that client code of said Mr. Vijay Sachdeva was used in the record of petitioners for identification, as surety and security in case of default, appeals to reasoning as in case of default of dues by those persons, the client code would indicate the name of the concerned person who had introduced the defaulters to share broker so as to claim reimbursement for such liability from introducer or to enforce the liability from defaulters through introuducer.
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It may also be noted here that the respondent CBI has filed a document i.e D227 with the chargesheet which clearly shows that besides above said three persons, client code of Mr. Vijay Sachdeva (PW68) was not only used for his family members and also for 37 other persons who were introduced by him. The detailed particulars including addresses of those 37 other persons, have been mentioned therein. As per the trade contracts, the share transactions executed on behalf of different persons in the same client code, used to be posted in the respective ledger accounts of each of the clients on the same day in order to ensure that each and every client got his separate contract note and at the same time to show that financial dealings carried out on behalf of each of them, is separate. Same is also apparent from perusal of document D207 which clearly shows that Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek had separate ledger accounts in which share transactions were posted on the same day.
A perusal of the trial court record would reveal that all the share transactions carried out in the name of Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek through M/s Pace Financial Services belonging to the petitioner in National Stock Exchange, were duly verified by CBI and all the said transactions are shown to have been actually carried out. It is nowhere the case of CBI t hat any of these share transactions as mentioned therein, was fake or that any particular transaction was manipulated.
It has been portrayed by CBI that against a total investment of Rs. 1,00,000/ made by Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek, they earned a huge profit amounting to Rs. 37,58,760.70 paise(Rupees RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Thirty Seven Lakhs Fifty Eight Thousand Seven Hundred Sixty and Seventy Paise). It would be relevant to highlight that the said profit amount had been generated during the time span of about two and half years i.e during the period 19992001. It is a matter of common knowledge that there was boom in the stock market during the period 19992000 on account of steep increase in the prices of some scripts and the share prices had increased even by 1000% during the said period. The relevant statements of accounts of these persons would show that they actually made a profit of about Rs. 49,20,000/(Rupess Forty Nine Lakhs and Twenty Thousand) during first two financial years I.e 1998 1999 and 19992000. At the same time, they also suffered a collective total loss of more than Rs. 11,00,000(Rupess Eleven Lakhs) during the financial year 20002001. This fact is also established from the statement under Section 161 Cr.P.C of PW39 as available in the trial court record. In other words, the aforesaid three persons initially made profits on account of boom in the stock market and suffered losses during the third year i.e financial year 2000 2001 when the share market came down. Not only this, it is nowhere the case of CBI that these persons did not pay tax on the profits earned by them during first two years or that any cash transaction took place between firm of the present petitioner and those three persons. The entire profit amount of Rs. 37,58,760.70 paise(Rupees Thirty Seven Lakhs Fifty Eight thousand Seven Hundred Sixty and Seventy Paise) is shown to have been paid by the firm of the present petitioner by way of 13 cheques as also affirmed by the investigation carried out by CBI.
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The persons had no separate demat account:
The contention raised on behalf of CBI that the aforesaid three persons were not having a separate demat account and same is an incriminating circumstance appearing the petitioner, does not carry any force for the simple reason that it is not mandatory for the client to have a demat account during the relevant period. As a matter of fact, the shares of the aforesaid three persons were lying in the demat account of M/s Pace Financial Services as margin, which is the usual practice being followed by share brokers in case of almost all their clients. It is customary for the clients in the stock market to keep their shares as margin for buying additional shares, in the demat account of their broker.
There was no intimation to the National Stock Exchange that these three persons were trading through M/s Pace Financial Services Another incriminating circumstance as pointed out on behalf of CBI was that there was no intimation furnished with National Stock Exchange that the aforesiad three persons were trading through the aforesaid firm of the present petitioner. However, there is no substance in the said submission of learned Special Public Prosecutor for CBI. It is pertinent to note that these three persons traded with M/s Pace Financial Services Ltd., during the period 19982000. The requirement for brokers to intimate the details of the clients to stock exchange, was notified by SEBI vide circular dated July 18, 2001[point(7) of the said circular] and was applicable prospectively for the clients trading after that date.
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The last transactions of these three clients happened about one year prior to this circular having come into existence. National Stock Exchange notified requirement of uploading client information to the Exchange vide circular dated July 20, 2001 and this circular is part of the document of CBI i.e D211.
Profit entries have been lifted from the account of Mr. Vijay Sachdeva and posted in the accounts of these three persons: It was vehemently argued on behalf of CBI that the profit entries had been lifted from the account of Mr. Vijay Sachdeva(PW68) and same were posted in the accounts of these three persons which is another incriminating circumstance appearing against the petitioner. The said argument appears to be impressive at the first instance but same is not tenable in the eyes of law and deserves to be rejected.
During the course of investigation, CBI had found that in the sale and purchase of shares, there were losses also. The gains initially were on account of boom in the stock market and when the market fell, there were losses also. As per PW39, Ms. Sanjana suffered a loss of about Rs. 7,70,000/(Rupees Seven Lakhs Seventy Thousand) during the financial year 20002001. Mr. Abhishek also suffered a loss of about Rs. 4,00,000/(Rupees Four Lakhs) in the financial year 20002001. Therefore, in the first two financial years, all the three persons made profits of Rs. 49,20,000/(Rupees Fourty Nine Lakhs Twenty Thousand) approximately but during third financial year i.e 20002001 when the stock market fell they suffered losses of Rs. 11,70,000/ approximately. Therefore, as mukch as 24% of the profits made over RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 a period of first two financial years, were wiped out in just a few months when the share market had fallen down. Moreover, the said three persons had paid full taxes on the profits of the first two years and the losses in the third year could not have been set off against the profits of the earlier years, thus, substantially raising their effective tax rates further by 24%. If the allegation of manipulating the accounts to generate profits were true, then there would not have been a net loss of about Rs. 11,70,000/(Rupees Eleven Lakhs Seventy Thousand) in the financial year 20002001.
Dividend is paid by the Companies to the Shareholders and not by brokers to their clients: The argument raised on behalf of CBI that no dividend was received by any of these persons clearly shows the involvement of present petitioner, is totally misconceived and is liable to be rejected. It is a matter of common knowledge that in case the shares are lying with broker as margin then the dividend is received by the broker from the companies and then the said broker credits the dividend amount in the accounts of its clients. This is the normal business practice which is generally followed by stock brokers dealing in the share market.
The transactions are void as per Section 14(1) and Section 15 of the Securities Contracts(Regulations) Act, 1946: Learned Special Public Prosecutor for CBI heavily relied upon provisions contained in Section 14(1) and 15 of the Securities Contracts(Regulations) Act, 1956(hereinafter referred to as SCR Act) in support of his contention that share transactions carried out in RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the name of aforesaid three persons namely Smt. Maya Devi, Ms. Sanjana and Mr. Abhishek were in violation of law.
In order to appreciate the rival submissions made on behalf of both the sides, it would be appropriate to refer to relevant provisions contained in Securities Contracts(Regulations) Act, 1956: "9. Power of recognised stock exchanges to make byelaws.
(3) The byelaws made under this section may -
(a) specify the byelaws the contravention of which shall make a contract entered into otherwise than in accordance with the byelaws void under subsection(1) of section 14;
(b) provide that the contravention of any of the byelaws shall render the member concerned liable to one or more of the following punishments, namely: -
(i) fine
(ii) expulsion from membership
(iii) suspension from membership for a specified period
(iv) any other penalty of a like nature not involving the payment of money
13. Contracts in notified areas illegal in certain circumstances: If the Central Government is satisfied, having regard to the nature or the volume of transactions is securities in any [State or States or area], that it is necessary to do, it may, by notification in the Official Gazette, declared this section to apply to such [State or States or area], and thereupon every contract in such [State or States or area], which is entered into after the date of the notification otherwise than[between the members of a recognised RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 stock exchange or recognised stock exchanges' in such [State or States or area] or through or with such member shall be illegal.
14. Contracts in notified areas to be void in certain circumstances: (1) Any contract entered into in any State or area specified in the notification under Section 13 which is in contravention of any of the byelaws specified in that behalf under clause(a) of subsection (3) of section 9 shall be void: (I) as respects the rights of any member of the recognised stock exchange who has entered into such contract in contravention of any such byelaw, and also
(ii) as respects the rights of any other person who has knowingly participated in the transaction entailing such contravention.
(2) Nothing in SubSection (1) shall be construed to affect the right of any person other than a member of the recognised stock exchange to enforce any such contract or to recover any sum under or in respect of such contract if such person had no knowledge that the transaction was in contravention of any of the byelaws specified in clause(a) of subsection (3) of section 9.
15. Members may not act as principals in certain circumstances -No member of a recognized stock exchange shall in respect of any securities enter into any contract as a principal with any person other than a member of a recognized stock exchange, unless he has secured the consent or authority of such person and discloses in the note, memorandum or agreement of sale or purchase that he is acting as a principal."
A bare perusal of the aforesaid provisions RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 would clearly show that Section 14 of the SCR Act is applicable only to the transactions done in any state or area specified in the notification issued under Section 13 by the Central Government. However, in the present case, all the share transactions were done on the trading platform of the National Stock Exchange and not in area which may be notified by Central Government under Section 13 of SCR Act. Moreover, no byelaws made under Section 9(3)(a) of SCR Act are claimed to have been framed or brought to the notice of this Court, which make the transactions of these three persons void. In any case, there is no such allegation in this regard appearing in the chargesheet filed by CBI before the trial court.
It may also be relevant to point out that Section 15 of SCR Act is applicable for transactions which are not conduced on Stock Exchanges. The said provision clearly provides that only in respect of transactions carried out by any member of recognized stock exchange, there is requirement to obtain written consent of the client on whose behalf, any member is entering into any contract as a principal member with any person other than a member of recognized stock exchange. However, this section is not applicable to the transactions of these three persons as all their transactions had taken place on National Stock Exchange. Infact, this fact has been mentioned by CBI in the chargesheet itself that all those transactions were verified by it from National Stock Exchange.
As per regulation of 3.1.8 of National Stock Exchange of India limited regulations(capital market segment) 1994, it was mandatory to enter the unique client code of client at the time of entering the order RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 in the stock exchange: The reliance placed by Ld. Special Public Prosecutor for CBI on the aforesaid regulation is again without any substance. No doubt, the said regulations of National Stock Exchange were originally framed in the year 1994 but it may be noted here that clause 3.1.8 was inserted in the regulations only on January 28, 2004. Same is quite apparent from the bare perusal of the relevant National Stock Exchange circular notifying this amendment. The said circular has been enclosed as Annexure A with the petition filed before this Court.
In view of the discussion made hereinabove, this Court is not able to lay its hand on any incriminating material which may arise grave suspicion against the present petitioner in respect of the offence of abetment as punishable under Sections 109 IPC.
In the case of 'Kanshi Ram vs. State' 2001(1) JCC 320 Delhi, it has been held by this Court that Court cannot act as a mouth piece of prosecution, but has to consider broad probabilities of the case, the total effect of the documents produced before the Court, any basic infirmities appearing in the case and so on.
Further in 'Bhim Singh Vs. State', 48(1992) 402, it has been observed by this Court as under: "the stage of framing of charges is an important stage in the criminal appeal and the Judge concerned has to carefully evaluate and consider the entire material available on record and he must judiciously apply his mind. Framing of charges erroneously would mean vital crossing for several areas the responsibility of Judge concerned is particularly fair, RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 greater in our country because of long delay in criminal trial and final disposal of criminal cases. Long prosecution invariably leads to tremendous harassment, mental agony and immense distress."
In the light of the aforesaid discussion, the petition is allowed. The impugned order dated 27.01.2004 passed by Ld. Special Judge IV, CBI(PC Act), Tis Hazari Courts, Delhi is set aside qua the petitioner and the FIR No. RC52(A) 2000/ACB/D1 dated 20.07.2000 under Section 13(1)(e) of Prevention of Corruption Act registered against the petitioner and the proceedings pursuant thereto are hereby quashed qua the petitioner."
175. When the matter was listed for final arguments, it was apprised by Ld. Public Prosecutor for CBI that they had preferred an SLP bearing No.9783/15 against the said order of Hon'ble High Court dated 03.11.2014, whereby one of the accused namely Atul Goel had been discharged and the same was pending in the Hon'ble Supreme Court, wherein notice had also been issued to the opposite party i.e. the said accused. It was also stated by Ld.PP for CBI that the next date of hearing before Hon'ble Supreme Court was 04.10.2016 in his assertions made on 30.09.2016. Thereafter on 07.10.2016, he stated that the same was likely to be listed now on 25.10.2016 , so he prayed that the matter be awaited and adjourned after 25.10.2016.
176. On the other hand, Ld. Counsels for A1,A2,A3 and RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 A4 strongly opposed the said argument of Ld.PP for CBI and submitted that even in the SLP filed by the CBI against the order dated 03.11.2014 before Hon'ble Supreme Court, no stay had been sought by the CBI for the stay of Trial Court proceedings. Ld. Counsel for A1 and A2 had also filed the copy of said SLP preferred by the CBI on record. He also relied upon judgment of Hon'ble Supreme Court titled Satya Narayan Sharma Vs State of Rajasthan AIR 2001 SC 2856; 2001 Cr.L.J 4640 SC in which it was held that " thus in cases under the Prevention of Corruption Act there can be no stay of trials". After hearing the parties and perusal of the SLP preferred by the CBI against the order dated 03.11.2014, it was found that in the said SLP preferred by the CBI before the Hon'ble Supreme Court, no stay of the Trial Court proceedings had been sought. Further, despite opportunity to the prosecution, no such application for stay had been moved or was contemplated to be moved on behalf of CBI. Moreover, in view of the clear mandate of the Hon'ble Supreme Court in the aforesaid judgment Satya Narayan Sharma (supra), the matter needed to be proceeded with as per law.
177. Therefore, since the Hon'ble High Court has already given observation that the said transaction was a genuine one in view of the order dated 03.11.2014. The genuineness of the said transaction has been clearly established by A2 as well as RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Abhishek and Sanjana, who are son and daughter of A1 and A2, till the time the same is set aside by the Hon'ble Supreme Court. Therefore, the share income of Rs. 38,58,760/ can be taken as a genuine transaction. During the course of argument, it was pointed out that out of the said amount, the share of A2 was Rs.16,93,164/ and that of Abhishek was Rs.15,020,99/ and that of Ms.Sanjana was Rs.6,63,496/.
178. From the above discussion, it has been established by A2 that she had legitimate source(s) of income as pointed out above. On the other hand, prosecution has failed to establish that her sources were not genuine or that the said source(s) were tainted from the money provided by A1. Now, as a corollary to the same, the next step would be to find out, whether the assets of A2 mentioned in the chargesheet were purchased by her from her own legitimate source of income or from the money provided by A1. In this list, one asset is Property no.5/12, Roop Nagar, Delhi purchased on 17.04.2000. In this regard, the prosecution has examined PW20 Sh.Atul Kumar, who was Sub Registrar at the relevant time. He after seeing the document (D
198) which is a letter dated 23.05.01, stated that the said letter bears his signature and same is Ex.PW20/1. Vide the said letter, certified true copy of the sale deed had been given to the CBI officer and the copy of sale deed is Ex.PW16/1.
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179. The prosecution has also examined PW16 Sh.Yogesh Manocha, one of the vendors, who had executed the sale deed dated 07.04.2000 in favour of A2. He has deposed that the said property bearing no.5/12, Roop Nagar, Delhi, belonged to his father and after his death, it was inherited by his elder brother Sh.Brijmohan Manocha (since deceased) and himself and said property was sold by them in the year 2000 to Ms.Maya (A2). The said property was sold for Rs.40 Lakhs. The property was consisting of ground floor, first floor and barsati, when it was sold. He has also proved the relevant sale deed dated 07.04.2000 as Ex.PW16/1 stating that the same bears his signatures as well as of his brother's. Her has also stated that uptodate payment in respect of electricity and water bills had been paid when the transaction took place and some house tax was pending, which was also subsequently paid by them. This witness was declared hostile by Ld.PP for CBI on certain aspects and in his cross examination he stated that he had received an initial amount (bayana) of Rs.5 Lakhs from Ms.Maya. He denied the suggestion that Ashok Kumar (A1) had paid initial amount of Rs.5 Lakhs each and subsequently paid the whole consideration amount. In his cross examination on behalf of A1 and A2, he stated that as far as he remember, the balance payment had been received by way of Bankers cheque/draft and it was correct RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 that details of payments received were mentioned in the sale deed Ex.PW16/1. He further stated that he as well as his brother had applied for income tax clearance certificate before execution of the sale deed in respect of the said property and the photocopies of relevant documents in that regard are Mark P16/B, B1,B2 and B
3. He also stated that one valuation report was also appended with the application for issuance of clearance certificate and the property had been sold as per the prevailing market rate i.e. at Rs.40 Lakhs.
180. In view of the testimony of PW16, one of the vendors to the sale deed, who has deposed that the property in question was sold as per the prevailing market rates i.e. at Rs.40 Lakhs and the income tax clearance certificate has also been applied by him and his brother before execution of the sale deed in respect of aforesaid property. It may be pointed out that at the relevant time, as per Section 230A (1) of the IT Act upto 31.05.01, any document of transfer of immoveable property valued at more than Rs.5 Lakhs could not be registered unless a certificate was obtained from the Assessing Officer in respect of payment or payment of tax liability of the transferor and in this regard application had to be made in the prescribed form no.34A. The said requirement was done away w.e.f 01.06.01 and in certain eventualities, the Central Government had the power in specified RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 areas of preemptive acquisition of the properties, which were under valued u/S 269 UC of the IT Act, which was also done. Therefore, in the present matter the mandatory IT certificate u/S 230(A)(1) of IT Act in the prescribed form no.34A was taken in respect of the sale of the property which was also appended with the sale deed in question.
181. The main bone of contention between the parties is with respect to the valuation of the property. As per the prosecution, final valuation of the property was Rs.2,34,66,100/ approximately, whereas as per the defence it had to be valued at the sale consideration value of Rs.40 Lakhs. In this regard, the documents submitted by the prosecution for obtaining sanction are relevant, as in the sanction for prosecution Ex.PW43/2, various documents had been appended by the prosecution. In one of them, the value of the property had been stated to be Rs.67,82,876/, whereafter a letter dated 13.02.03 was also sent to the Director Vigilance MCD stating that the CBI had got done the valuation of the property through Income Tax Valuation Department and according to said department, the value of property was found to be Rs.2,34,66,100/. It is also mentioned in the said revised letter that the IO in his FRI had taken the value as Rs.40 Lakhs because as per the sale deed, the house was purchased for Rs.40 Lakhs, but it was suspected that the cost of RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the property may be in crores and therefore by taking the value of the land as per the circular of Land & Development Office, the cost of the said building has been worked out by the IO as Rs.55 Lakhs minimum. The said house was also got evaluated by the JE of the branch. He had submitted his report and stated that the value of the land and the construction on the same works out to Rs.67,82,876/. Thereafter, a requisition was also sent to the Chief Valuation Officer, Income tax for valuation of the said building and his report has been received and the value of the property has been assessed as Rs.2,34,66,100/.
182. Therefore, it is apparent that different valuations were given by the CBI itself in the documents seeking sanction for prosecution. In the FRI report filed by the IO, she had initially taken the value of the property as Rs.40 Lakhs, as per the value mentioned in sale deed. But, it was suspected that the cost of the property may be in crores. Thereafter, the same was assessed as per the circular of L&DO and the value of the property was assessed as Rs.55 Lakhs by the IO. Thereafter, it was also got evaluated by the JE posted in the Branch of CBI, who submitted his report and according to his report, the value of the property was Rs.67,82,876/. Still not satisfied, the CBI referred the matter for evaluation to the Chief Valuation Officer, Income Tax, who finally gave his report assessing the value of the property to be RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Rs.2,34,66,100/.
183. Ld. Counsel for A1 and A2 had attacked this arbitrary valuation(s) done by the prosecution stating that even the prosecution was not sure on what basis they had valued the property and even their own reports are contradictory, as the IO had valued the property as per the circular of CBI Ex.PW93/D1 dated 28.11.01, wherein it has been specifically laid down that the immoveable properties have to be valued as per registered sale deed value. Thereafter, they had valued the property as per the circular of L&DO circular, as per which the value of the property was assessed to be Rs.55 Lakhs and still not satisfied, they had got the valuation of property from the J.E posted in their own branch, who had submitted his report vide which the value of the property was assessed to be Rs.67,82,876/ and finally, the matter was referred to the Valuation Cell of the Income Tax Department, where the property was valued at a very exorbitant value of Rs.2.34 crores. Ld. Counsel for A1 and A2 has argued that prosecution has failed to justify this exaggerated / inflated value of the property given by PW3 Sh.Y.P.Suri in his valuation report Ex.PW3/A and same is highly unsatisfactory, which shows that the said valuation is not reliable.
184. On the other hand, Ld.PP for CBI has argued that initially, though the IO may have valued the said property at RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Rs.40 Lakhs, but later on it was found that the value of the property was grossly under valued, therefore it was referred to the Chief Valuation Officer, Income Tax, who is an expert to give report on such kind of properties, who after thorough investigation and valuation found that the true value of the property was Rs.2,28,66,100/ and in this regard PW3 Sh.Y.P.Suri has also proved his valuation report Ex.PW3/A and nothing has come in his cross examination which could show that his valuation report was not correct. Therefore, the said property has been rightly valued.
185. I have gone through the rival contentions. PW 93 Sh.S.Balasubramany is the main IO of the case. He was cross examined on this aspect and in his cross examination he has stated that it was correct that as per the document all the payments were made through bank instrument to Yogesh Minocha and Brij Mohan Minocha and it was correct that during the course of investigations, the witnesses namely Yogesh Minocha and Brij Mohan Minocha were examined and they confirmed that there was no hidden transaction in the above deal and he had read the sale deed during investigation. It was mentioned in the sale deed that both the members had separately obtained ITC in form 34A u/S 230(A) (1) of the IT Act, 1961 in respect of sale of aforesaid property . He was also shown the relevant document which was Mark P16/B to Mark P16/B3. He was also asked that did he RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 examine the said officiating SP as to how he had assessed the cost of above property as Rs.55 Lakhs instead of Rs.40 Lakhs as shown in the sale deed, to which he stated that he did not examine him. He was also asked did he verify from the local inhabitants of Roop Nagar and Registrar in order to know the prevailing market rate at that time, to which he stated that as far as he recollect, the previous IO had collected the market rates prevailing at that time in Roop Nagar area.
He admitted in his cross examination that the CBI has its own valuation cell and one Engineer of JE rank was attached with the branch to assist the IOs in this work. He also stated that it was correct that Smt.Maya (A2) had paid the sale consideration through cheque(s) from her account and it was also correct that she was showing the details of her income in the ITR/balance sheet before the income tax authority and it was correct that Smt.Maya's income was assessed by the Income tax authority and thereafter, she had paid income tax for the year 19841985 . He was also asked that Smt.Shobha Dutta, the IO had taken the value of above property as Rs.40 Lakhs as per the sale deed of the property in her FRI, as mentioned in SP report no.84 dated 13.02.2003 tagged with sanction order, to which he stated that it was correct, but he stated that FRI is an internal document. He also admitted that it was correct that the valuation RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 report (D287) reveals that Valuation officer, Income tax had compared the rates of Roop Nagar property with F22 property situated in Model Town.
186. Similarly, PW94 Smt.Shobha Dutta was also cross examined on this aspect and in her cross examination, she stated that it was correct that normally after the conclusion of investigation, the IO of the case is required to write an FRI (final reportI) making specific final recommendations as to whether the case is made out or not. She further stated that as per Ex.PW20/1 (D198), SubRegistrar1 North's letter dated 23.05.01, the above property stood in the name of Smt.Maya (A2) and the total sale consideration shown in the sale deed was Rs.40 Lakhs. She was also shown the documents Ex.PW43/1 and Ex.PW43/2 (colly.) and after looking into the same, she stated that the house was purchased for Rs.40 Lakhs, hence the IO of FRI had taken the value as Rs.40 Lakhs. She further clarified that as she was under
transfer, she was told to submit a report and accordingly she submitted a report mentioning the value of above property as Rs.40 Lakhs and further conveying the facts of part of her investigation to the successor IO of the case, so that he may get an idea regarding upto which level she had conducted the investigation and from which end he has to start his investigation. She denied that she had recommended the sale consideration of RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Rs.40 Lakhs for the above property in her FRI and to close the further investigation.
187. Therefore, from the testimonies of PW93 and PW94 IOs of this case, it is apparent that the initially, the value of the above property was taken as per the circular of CBI Ex.PW93/D1 according to which the property is to be valued at registered sale deed value, yet different valuations were opted by the CBI. In one case, they valued the same property at Rs.55 Lakhs as per the circular of L&DO and in another case they relied upon the valuation report of their own J.E, according to which the value of the property was Rs.67,82,876/ and finally the value of Rs.2.34 crores as per valuation report of Chief Valuation Officer, Income Tax. No plausible explanation has been furnished by PW 93 as to when there were already three different valuation reports before him, then why he still referred the matter further to the Income tax authorities for valuation, as it appears to be all arbitrary exercise of power.
188. Even otherwise, the valuation of property given by PW3 Sh.Y.P.Suri, the valuer vide his report Ex.PW3/A does not appear to be reliable one, as the said valuer in his cross examination has admitted that it was correct that the fair market value is an assessment and there is no fix mathematical formula for ascertaining the exact fair market value. It is also correct that RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 there can be no exact valuation of a property and the fair market value is only an estimated ascertainment of the value which may vary slightly on either side. He also stated in his cross examination that he had not looked into the aspect that sale deed of property valued at Rs.40 Lakhs could not have been registered as on 07.04.2000 in absence of income tax clearance certificate. He has also stated that he was not aware of any letter No.J 2201/4/95LD dated 16.04.1999 where under Government of India had fixed schedule of Market rate of land for Roop Nagar area as Rs.6,930/ per sq. meter for residential property.
He also stated that the land rate in this case was ascertained on the basis of rate of property F22, Model Town and it was correct that the copy of sale deed of the property F22, Model Town has not been annexed with his valuation report. He also stated that despite his efforts, they could not trace out the land rates of properties sold in Roop Nagar during the relevant period and as such rate of land of adjoining Model Town area was taken into consideration. He also stated that he cannot say, if Smt.Maya Devi (A2) had sold her property measuring 257.9 sq.yds. in Model Town on 09.03.2000 for Rs.9,45,000/. He also admitted that it was correct that the rate of land can vary from locality to locality. He also admitted it as correct that he did not mention if property No.F22, Model town was residential or commercial. He had not RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 personally visited the said property.
189. From the cross examination of the aforesaid witness it is apparent that he had done the valuation of property which was situated at Roop Nagar on the basis of valuation of property bearing No.F22, Model Town, which is far away from Roop Nagar. He also did not find out from the SubRegistrar the value of the comparable sale deeds or the sale of the properties executed in and around when the sale deed in question was executed according to the prevailing market price in the area. He did not even find out whether the said property was commercial or residential. He did not even visit the said property. The valuer, as per the settled law was under obligation to value the property after taking into account the sale instances of comparable properties in the same area and rather, he arrived at the fair market value taking into account the property situated at Model Town, which is far away and that too without taking into account the situational area of the property where it was located and other factors. He even did not care to personally visit the said property and did not append the sale deed of the said property nor mentioned in his valuation report, whether it was commercial or residential.
190. In the present case, different valuation theories have been propounded by the prosecution itself at different rates, as discussed above. As per the circular of CBI Ex.PW93/D1 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 dated 28.11.01, it had to be done at the registered sale deed value, whereas as per the L&DO circular, it was valued at Rs.55 Lakhs and even as per valuation report of the JE of the CBI Branch, the valuation was done at Rs.67 Lakhs and lastly as per income tax authorities, it was assessed to be Rs.2.34 crores. The valuer in the present case had to justify his valuation report. As discussed above, the valuer cannot base his valuation of the property situated at Roop Nagar on the valuation of property situated at Model town. He should have taken the valuation of property situated in the same area and he cannot rely upon the valuation of property situated at Model Town or some other area. Even the valuation of adjoining area's property does not hold good. Every property has its own situational advantages and disadvantages and only on those basis, the property can be assessed or valued. The likes have to be assessed in the like manner. The valuer had also ignored the sale instances of comparable properties in the same area. Ld.counsel for A1 and A2 have also relied upon a judgment Kailash Suneja and ors. Vs Appropriate Authority (1998) 145 CTR 560 (DEL) where it was held that having acted in an arbitrary fashion in arriving at the fair market value of properties ignoring the sale instances of comparable situated far away from subject properties, by making adjustments for plus and minus factors in a whimsical manner, the orders for RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 preemptive purchase had to be quashed. The said judgment is squarely applicable to the facts and circumstances of the present case.
191. In the present case, different valuations have been appearing on the record. The prosecution had to justify that as to how they are relying upon the exaggerated / inflated valuation of the property of Rs.2.34 crores as mentioned in their chargesheet against the accused persons, when they themselves had stated in the chargesheet about the valuation of the property done by the IO as per FRI to be Rs.40 lakhs and as per their own circular dated 28.11.01 the property had to be valued at registered deed value. Thereafter, the valuation was done according to the L&DO circular vide which the valuation was Rs.55 Lakhs at the most. Thereafter, the valuation was done by the JE of the CBI branch itself and according to his report, the value of the property was Rs.67,82,876/, but no justification have been shown as to how they had valued the property at an astronomical value of Rs.2.34 crores. The very basis on which they are relying upon i.e. the testimony of the Chief Valuation Officer, Income Tax who has been examined as PW3 and his report, is highly unreliable and cannot be accepted.
192. Further, in the present case, Form 34A was issued to both the vendors by the Income tax authorities, as per RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the provisions of Section 230(A) of the IT Act, 1961, as prevailing at that time and therefore, the income tax authorities had the option at that time to refer the matter to their own valuation cell, if they found that the property had been under valued before issuing the income tax clearance certificate i.e. before issuance of Form 34A, which was not done and Form no.34A was duly issued, thereby indicating that they had accepted the valuation report submitted by the vendors alongwith their application seeking the income tax clearance. Therefore, the course adopted by the prosecution in this case by getting various valuations done from time to time, is highly capricious, as the same falls under the arc of arbitrariness. Therefore, they had to stick to their own circular as per which the sale consideration of Rs.40 Lakhs which is the registered sale deed value had to be taken as the value of said property or at the most Rs.55 Lakhs as per L&DO circular, but by no means it can be inflated to mammoth proportion of Rs.2.34 crores.
193. In view of the judgment of Krishnanand Agnihotri (supra), the prosecution has also failed to prove that the money for the purchase of the above property was provided by A 1, as no evidence in this respect has been brought on the record and for proving this fact, the evidence lead by the prosecution had to be of definite character and cannot be based on presumptions. As already discussed above, A2 had been filing her ITRs since the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 assessment year 19841985 and the factum of purchase of this house is reflected in the ITR for the assessment year 20002001, as it is shown in the asset(s) column of balance sheet appended with the relevant ITR and it is shown that advance for purchase of said house amounting to Rs.23,20,000/ has been paid. Said ITR are Ex.PW54/D1 and D2 (colly.). Further, PW93 S.Balasubramony in his cross examination dated 09.12.15 admitted that A2 had shown her income and assets possessed by her i.e. 5/12, Roop Nagar and flat no.106107, Aurbindo Place, Delhi, in the year 2000 in her balance sheet and paid income tax over that. Therefore, it is apparent that acquisition of this asset had been duly reflected in the relevant ITR of A2. Since, A2 had legitimate sources of income, as discussed above in the preceding para(s) from investments, loans, capital gains, share profits etc., which were also duly reflected in her ITRs Ex.PW54/D1 and D2 (colly.) assessed by Revenue Authorities from time to time, therefore she had necessary funds available with her and financial capacity to acquire the assets including the asset in this case. Hence, the only inference which can be drawn in these circumstances is that the said asset / property i.e. property no.5/12, Roop Nagar, Delhi, belongs to A2 and not to A1. Therefore, it cannot be said that A 1 was the benami owner of the said property through A2.
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Property No.106/107, Aurbindo Place, Hauz Khas, New Delhi
194. It is mentioned in Para no.26 of the chargesheet that the above properties were purchased for Rs.32 Lakhs by A2 from M/s Byford Leasing Company, which value was also highly undervalued. It is also stated that this amount was adjusted by the said company against loan taken by the company from State Bank of Saurashtra, Connaught Place branch for Rs. 1 Crore for which the property was mortgaged to the bank and the title deeds were still with the bank, as the total amount is still to be repaid by the Byford Leasing Company. Investigations also revealed that the bank in question also approached the DRT for the recovery of the said amount and DRT had ordered for auctioning of the said property. Therefore, it is stated that the said amount was only an investment made by A2. Now, since the said property has been shown as asset no.2 in the asset column of A1, whereas the said property is in the name of A2. It has to be found out whether A2 was the real owner of the same or not i.e. to say that A2 was the benamidar or A1 was the actual owner of the property i.e. to say that the money for the purchase of said asset was provided by A1.
195. During the course of arguments, it was not RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 disputed by Ld. Counsel for A1 and A2 that the said amount of Rs.32 Lakhs was paid by A2 to M/s Byford Leasing company. In any case, the said payment has been proved by PW76 Sh.C.M.Tandon, Sr.Manager, UCO bank, who deposed that at the relevant time he was posted as Assistant Manager in Kamla Nagar Branch and he has proved four cheques Ex.PW76/1 (colly.) dated 01.07.99, 05.07.99, 06.07.99 and also 06.07.99 by virtue of which payment of Rs.32 Lakhs was made to M/s Byford Leasing company and he has also proved the corresponding deposits / payinslips pertaining to the said cheques as Ex.PW76/2 (colly.) and the corresponding debit vouchers as Ex.PW76/3 to 76/5 and also the statement of account of A2 Smt.Maya which she was having at their bank branch which is Ex.PW76/6. The testimony of aforesaid witness has gone unchallenged. From the aforesaid documents, it has been duly established that the payment of Rs.32 Lakhs was made to M/s Byford Leasing Company by A2.
196. Now, it has to be found out, whether the said payment was made by A2 from her own genuine sources or was made on her behalf by A1. In this regard, PW54 Sh.Dinesh Garg, Chartered Accountant of Smt.Maya (A2) has proved her income tax returns alongwith balance sheets as Ex.PW54/D1 and D2 (colly.) and in his cross examination on behalf of Ld.counsel for A1 and A2, he has stated that he had seen Ex.PW54/A (colly.) which RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 contains the balance sheet for the financial year 19992000 at page no.42 and 43, which shows sale of house property No.E 4/10, Model Town, Delhi and purchase of another property i.e. flat no.107 and 106, Aurbindo Plance, Hauz Khas, Delhi. Perusal of the income tax returns of A2 which have been collectively exhibited as Ex.PW54/D1 and D2 (colly.), shows that the said amount of Rs.32 Lakhs has been duly accounted in the balance sheet annexed with the ITR for assessment year 20002001 showing that the said asset was purchased for a sum of Rs.32 Lakhs and it is not the case of the prosecution that the said assessment was reopened by the Income Tax Authorities under the provisions of Income tax Act. Therefore, it appears that the acquisition of the said asset had also been reflected in the ITR of the said accused for the assessment year 20002001 corresponding to the previous assessment year 19992000.
197. Further, the main IO of this case PW93 S.Balasubramany in his cross examination dated 27.11.2015 at page no.6 & 7 has admitted that A2 was the owner of the above property, but since the property in Hauz Khas had been mortgaged by Byford Leasing company to State Bank of Saurashtra and the process of recovery was in progress and so, it was only an investment in the property and he further admitted that A2 had paid sale consideration through cheques and she was showing her RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 income in the ITR and balance sheet before the Income Tax Authorities. It was correct that Smt.Maya's income was assessed by income tax authorities and thereafter, she had paid income tax for the year 19841985 as per record. Further, in his cross examination dated 09.12.2015 at page no.3,he had stated that it was correct that A2 had shown her income and assets possessed by her i.e. 5/12, Roop Nagar and flat no.106,107, Aurbindo Place, Hauz Khas, Delhi in year 2000 in her balance sheet and paid income tax over that.
198. From the testimony of the IO, it is apparent that he has admitted that sale consideration was paid by A2 from her own bank account and she was also showing her details of income in the ITR/balance sheet with regard to the particular assessment year and she had also shown the said assets in the ITR of the relevant year and had paid income tax over that. PW93 has nowhere deposed that during investigations, they were able to find out that the money for acquisition of the said asset was provided by A1 or that it was the benami property of A1 held in the name of A2, as no such evidence has been brought on record. In the absence of same, in view of judgment of Krishnanand (supra) prosecution has failed to prove that the same was the asset of A2. Rather, it has been proved from the above discussions that same was the asset of A2 acquired from her own funds which was duly RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 reflected in her ITR of the relevant year and duly accepted by the Income tax authorities.
Property No.E4/10, Model Town, Delhi (shown under the income head of A1)
199. With regard to the said property, it is the case of prosecution that the said property was purchased in the name of A 2 by A1, as they have given the profit of sale of the said property amounting to Rs.4,26,600/ under the Income head of A1. Therefore, it has to be found out, whether the said property belonged to A1 i.e. to say that A2 was only the benamidar of the said property and the real owner of the property was A1 i.e. to say that the funds for purchasing the said property was provided by A1, as A2 had no means to purchase the same.
200. In this regard, prosecution has examined PW13 Sh.Rajeev Verma from whom the CBI had seized the documents pertaining to the sale of the said property vide seizure memo Ex.PW13/1 (D191). The sale deed pertaining to the said property is Mark P9/A1 to A3. PW13 has stated that the said property was sold through him vide above documents to one Satnam Singh, his wife and his daughter. In his cross examination by Ld.counsel for A1 and A2, he stated that it was correct that A2 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 was the ostensible owner of the above property i.e. on record she was the owner. It was correct that the property had been sold to Satnam Singh, his wife and daughter for sale consideration of Rs.9,45,000/, which amount was given to A2.
201. The prosecution has also examined PW9 Sh.Satnam Singh, one of the purchaser of the said property. He has deposed that he had purchased the said property bearing No.E4/10, Model Town from A2 which he has purchased for a sum of Rs.9.45 Lakhs in the name of himself, his wife and his daughter by way of three separate sale deeds for Rs.3,15,000/ each and he has proved the photocopies of the sale deeds as Mark P9/A, B and C and he has also deposed that the sale transaction had taken through property dealer Rajeev Verma, who has been examined as PW13, as mentioned above.
202. PW94 Ms.Shobha Dutta, one of the IO of this case has also deposed in her examination in chief that she issued notice u/S 160 Cr.P.C to the Sub RegistrarI, Kashmere Gate, Delhi requesting him to provide copy of sale deed pertaining to the above property, which was received pursuant to notice Ex.PW94/L and the certified copy of the sale deed is Ex.PW52/2.
203. Further, in this regard prosecution had examined PW54 Sh. Dinesh Garg, who has proved the ITRs of A 2 as Ex.PW54/D1 and D2 (colly.) and in his cross examination, he RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 has stated that A2 had taken a loan of Rs.3.5 Lakhs from Ramo Devi, Jagdish Kumar and Raj Kumar and also sale of her jewellery amounting to Rs.46,648.10P at the time of negotiation of deal of house property No.E4/10, Model Town, Delhi. After seeing the balance sheet for the assessment year19992000 Ex.PW54/A (colly.) at page no.42 and 43, he stated that the said sale is reflected in the balance sheet for the said year.
204. Perusal of Ex.PW13/1 by virtue of which the entire bunch of documents pertaining to the sale of property No.E 4/10, Model Town, Delhi seized from the property dealer shows that the aforesaid property had been purchased by A2 vide sale deed dated 16.01.1987 for a consideration of Rs.4,80,000/. As discussed above, from the testimony of PW54, the source of purchasing the said property was from the sale of jewellery and loans from her relatives. The said loans and the sale of jewellery had been duly reflected in the ITR of A2 Ex.PW54/D1 and D2 (colly.), most specifically with regard to the ITR for assessment year 19871988 in which the aforesaid house property has been shown under the asset head and the sale of jewellery and loans have been shown in the liabilities column and as discussed above from the testimony of PW54, the liquidation of the said asset has also been duly reflected in the balance sheet of 19992000 corresponding to the assessment year 20002001. It has nowhere RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 come in the testimony of PW93 or PW94, the IOs of this case that the money for the purchase of said asset was provided by A1. Therefore, there is no evidence on the record to reach to this inference that the said property was benami property of A1 held in the name of A2, as A2 had legitimate source(s) of income / means to purchase the said asset, which were duly reflected in the ITR for the relevant years as discussed above, as A2 had been filing her ITRs since assessment year 19841985 duly assessed by Revenue Authorities. Therefore, she had also the means to purchase the asset from the said legitimate income.
205. It is hard to imagine that A2 would have envisaged almost 13 years prior to the raid in the house of A1 that she would be required to show the legitimate source of her income to the Prosecuting Agency and therefore, she should fudge her income tax records and other document in advance, so as to get benefit later on. As discussed above, in the judgment of Krishnanand Reddy (supra) and Mohanlal Soni (supra), it is held that the income tax returns are unassailable documents and the prosecution has failed to prove that the funds for the purchase of the said property was provided by A1 i.e. to say that A1 was the real owner and A2 was only the benamidar of the said property, the prosecution has to lead evidence of positive character to prove the same however difficult it may be. In view of the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 judgment of Krishnanand Agnihotri (supra), which the prosecution has miserably failed to do so. Therefore, the said profit of Rs.4,26,600/ cannot go into the income head of A1, rather the same will go into the income head of A2, as her income from the sale of the aforesaid property as long term capital gain. Therefore, the benefit of the income of Rs.4,26,600/ given by the prosecution under the income head of A1 cannot be given to him. Therefore, it has to be taken out from the said column.
206. Now in view of the aforesaid discussion held at length, once A2 has been able to show that she had legitimate and genuine sources of income and the assets mentioned above were purchased by her from her own legitimate sources of income, which were duly reflected in her ITRs and which were also duly assessed by Revenue Authorities from time to time.
207. Given this scenario, whether assets of spouse i.e. A2 or of any family member(s), who are independent tax assessee(s) having independent source(s) of income, can be clubbed with the public servant (in this case A1) or not, the law in this regard has been settled in catena of judgments which are being reproduced herein as under: (1) In AIR 1993 Supreme Court 313 titled M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, it was held as under: RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
6. An analysis of Section 5(1) (e) of the Act, 1947 which corresponds to S.13(1)(e) of the new Act of 1988 shows that (it) is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law.
14. We are unable to appreciate that reasoning and hold that the prosecution has not satisfactorily discharged the expected burden of proof in disproving the claim of the appellant. Therefore, on the face of these unassailable documents i.e. the wealthtax and incometax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240.00 from the disproportionate assets of Rupees 2,37,842/.
19. Needless to say that this Court on a series of decisions have laid down the guidelines in finding out the benami nature of a transaction. Though it is not necessary to cite all those decisions, it will suffice to refer to the rule laid down by Bhagwanti, J. as he then was in Krishnanand Agnihotri V. State of M.P., AIR 1977 SC 796: (1977) 1 SCC 816. In that case, it was contended that the amounts lying in fixed deposit in the name of one Shanti Devi was an asset belonging to the appellant and that Shanti Devi was a benamidar of the appellant. The learned Judge speaking for the Bench has disposed of that contention holding thus : (para 26 of AIR) :
RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 " It is well settled that the burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
(2) In (2000) 6 Supreme Court Cases 338 titled State of M.P Vs. Mohanlal Soni, it was held as under: A complaint under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 for the check period 25.09.1982 to 27.03.1993 was filed against the respondent public servant stating that he had acquired the property in excess of the known sources of his income. While submitting the chargesheet several important documents, which were collected during the course of investigation, were withheld. Most of the documents related to the income tax returns or income tax assessment orders. All these documents RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 pertained to the period prior to 26.03.1993. Some of them even related to the year 1988. At the time of framing charges the respondent made an application seeking production of these documents in court. According to the respondent the said documents supported him.
If those documents were considered even prima facie there was no scope to frame charges against him. But the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under Section 173(5) CrPC were required to be considered. Hence the respondent filed criminal revision which was allowed by the High Court directing that the documents collected during investigation be produced and may be taken into consideration by the court below while framing the charge. Thereafter the trial court framed charges under Section 13(1)(e) read with Section 13(2) of the Act. Aggrieved by the order framing charges, the respondent filed a criminal revision. The High Court accepted the case of the respondent, set aside the order of the trial court framing charges and discharged the respondent. Dismissing the SLP by the State, the Supreme Court.
I. In VII (2000) SLT 43 titled State of Andhra Pradesh Vs J.Satyanarayana passed by Hon'ble Supreme Court of India, it was held as under: We fail to understand how the incometax RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 return, Ex.P17, filed by the wife on 2nd of January, 1986 could be labelled as an after thought when it had been filed much prior to even the rgistration of the case against the respondent by the ACB. Not only was that return be filed but the assessment had also been completed. The receipt of various loans which had been shown by the wife in the return, thus, stood accepted by the Income Tax Authorities. The evidence led by the prosecution itself by filing of incometax return of the wife coupled with the evidence of defence witnesses clearly goes to establish that the house in Anand Nagar Colony was an asset belonging to the wife of the respondent and not to the respondent himself. The High Court, therefore, rightly arrived at the conclusion that the said house could not be treated as an asset of the respondent by correct appreciation of evidence and proper application of law to the facts of the case. We are satisfied that the finding recorded by the High Court to the effect that the house in Anand Nagar Colony was an asset of the wife of the respondent and not of the respondent is correct and proper and suffers from no infirmity at all. Once we arrive at that finding, the conclusion becomes irresistible that an order of acquittal of the respondent recorded by the High Court is well merited. It suffers from no illegality, let alone perversity. We, consequently, do not find any reason to interfere with the well merited order of acquittal. This appeal, therefore, fails and is RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 dismissed.
II. In 2005 X AD (S.C.) 368 titled D.S.P Chennai Vs K.Inbasagaran passed by Madras High Court, it was held as under:
16. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Incometax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 showing in the Incometax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Incometax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife.
III. It is also held by Hon'ble High Court of Andhra Pradesh in case titled as "State rep.by the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Dy.Supdt. Of Police Vigilance and Anti Corruption Vs K.Ponmudi formerly MLA, formerly Minister for Transport Govt. of Tamil Nadu and Ors. 20062 LW(Crl.)758 (supra) as under:
18. The assets which admittedly, do not belong to Accused no. 1 and owned by individuals having independent source of income which are assessed under the Income Tax Act, were added as the assets of Accused1. Such a procedure adopted by the prosecution is not only unsustainable but also illegal. An independent and unbiased scruitny of the entire documents furnished alongwith the final report would not make out any ground for framing of charge as against any of the accused persons. The methodology adopted by the prosecution to establish the disproportionate assets with reference to the known source of income is absolutely erroneous. The clubbing of the properties of other accused is absolutely erroneous. The accused cannot be asked to explain the source of income of others with reference to the properties standing in their names and which belong to them over which the accused has no claim or control. The accused 3, RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 4 and 5 are not the owners of the properties owned by Siga Educational Trust. The trust is the absolute owner of the properties and the trustees can never be called as absolute owners of the properties. The theory of Benami is totally alien to the concept of trust and it is not legally sustainable to array the accused 3 to 5 as holders of the properties or that they are the benamies of the accused. The benami transaction has to be proved by the prosecution by producing legally permissible materials of a bonafide character which would directly prove the fact of benami and there is a total lack of materials on this account and hence the theory of benami has not been established even remotely by any evidence. On a prima facie evidence it is evident that the other accused are possessed of sufficient funds for acquiring their properties and that A1 has nothing to do with those properties and that he cannot be called upon to explain the source of income of the acquisition made by other persons.
20. From the detailed analysis of the orders passed by the learned Chief Judicial Magistrate, Villupram, it is clear that prosecution has deliberately omitted to show certain amounts as income got by way of loan by the individual accused, but, at the same RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 time, taken into consideration the payments made to such creditors as expenditure. This has been made done purposely to boost the expenses and to enhance the value of disproportionately of the known source of income.
21. Learned Chief Judicial Magistrate has gone into every aspect of the matter viz., considered the documents meticulously and rightly came to the conclusion that the prosecution has failed to assessed the total income of the individual accused in a fair manner. All the properties acquired by A2 and A3 in their individual capacity acquired out of their own income have been shown in the Income Tax Returns, which fact the prosecution also knows and also available in the records of the prosecution. The prosecution has no justification or reason to disregard those income tax returns to disallow such income while filing the final report. The documents now available on record also would clearly disprove the claim of benami transaction.
22. On a reading of the discussion in the discharge orders, passed by the learned Chief Judicial Magistrate, Villupuram, it is clear that the prosecution instead of establishing the link between the assets acquired by the accused an the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 individual income earned by A1, have clubbed the income of A2, A3 and Siga Educational Trust which income are assessed to the income tax even prior to the filing of the final report and there is no acceptable evidence to club all these incomes to be considered as income of A1 (emphasis supplied by me) IV. In 1994 Cri.L.J.12 titled Ananda Bezbaruah Vs Union of India, Gauhati High Court has held as under:
14. If the prosecution fails to establish that the property or any benami property included in the assets of the accused, then the question of 'satisactorily account for' total assets by the accused does not arise at all. In this case in hand prosecution failed to establish on the materials collected by it that the land and building in the name of the wife of the petitioner was a benami plroperty and in that event the valuation of the land and property standing in the name of Mrs. Era Bezbaruah is to be excluded from the total asssets of the accused petitioner as materials on record clearly established that land and the building were acquired by Mrs. Bezbaruah from the source of her income as explained in document 3, i.e., the Income tax Return, and the statement of the P.Ws. 7,9 and
12. In my view exclusion and nonconsideration of the document 3 collected by prosecution, at the Ss.
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227228 stage, i.e. stage of framing charge vitiated the evaluation of the materials and documents on record to find out a prima facie case against the accused petitioner. The learned Public Prosecutor, C.B.I. relied upon the following decisions of the Apex Court:
V. In Criminal Appeal No.5 of 1995, D/d. 26.4.2001 titled K.Goverdhan Versus State of A.P, Hon'ble Andhra Pradesh High Court, has held as under:
14. Thus, in this case, the learned Special Judge seems to have relied on only two circumstances for holding that the assets in question are held by the ostensible owners benami for the accused officer. Firstly, the alleged absence of any known source of income on the part of those ostensible owners and secondly issuing of cheques by the accused officer on various occasions in favour of D.W.5, who is his soninlaw. It is pertinent to mention here that even assuming that the ostensible owners in question do not have any known sources of income this in itself cannot be a conclusive circumstance for holding that the property held by them was benami on behalf of accused officer.
22. There is another aspect of the matter which deserves to be mentioned. Mere fact that the ostensible owner had no source of income in itself would not lead to any inference that the property in question was purchased with the income of a particular person. The absence of any source RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 of income to the ostensible owner would merely indicate that the property might have been acquired with the income flowing from some one else. As to who that some one else is a matter of evidence and proof. That circumstance cannot lead to an inference that the property in question was acquired with the income from the accused. As pointed out by the learned Counsel for the appellant one of the sons of Narsingamma who has been examined as P.W.12 was himself a Government employee. No material has been placed before the Court to show that he might not have been interested in having the property acquired benami in the name of his mother.
Thus, as stated above, it is a matter of evidence and not a matter of mere inference though the evidence may not be direct and may consist of circumstantial evidence. In this case, the Investigating officer P.W.43, has candidly admitted that there is no material to show that the investments for the purchase of properties alleged to be benami were in any way traceable to the income of the accused. No circumstantial evidence of a definitive character has been placed on record to lead to an inference that it was the income of the accused which financed purchase of alleged benami properties.
Further, it has been held in review petition(civil) No. 272 of 2007 titled as Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. as under:
23. While the submissions on behalf of all the review petitioners were centered around the said two propositions, a specific issue was raised by Mr. Mukul Rohtagi as to whether the investigation and/or inquiry could RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 also be extended to the assets of Smt. Dimple Yadav, wife of Sh. Akhilesh Yadav, since she had neither held any post under the Government nor was she involved in the activities of her husband or fatherinlaw, Sh. Mulayam Singh Yadav. The acquisition of wealth by her was attributed to her agricultural income and not to any source of income through her husband and her father in law.
32. The review petitions are disposed of with the following direction:
(i) The CBI shall drop the inquiry into the assets of the respondent no. 4, Smt. Dimple Yadav, wife of Sh. Akhilesh Yadav.
209. The ratio of law which emerges from the aforesaid judgment is that, if the spouse or any other family member of public servant is possessed of sufficient funds for acquiring of assets and the public servant has got nothing to do with those properties then he cannot be called upon to explain the source of income of acquisition made by others and in case, the assets are owned by individual having independent source of income which are assessed under income tax Act, which are even then added into the assets of the public servant, then such a procedure adopted by the prosecution is grossly illegal and erroneous. Therefore, the clubbing of properties of other accused in these circumstances has been held to be totally erroneous, as the accused cannot be asked to explain source(s) of income of RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 others with reference to the properties standing in their names and which belonged to them for which the accused has no claim or control.
210. Hon'ble Supreme Court in the case of Akhilesh Yadav (supra), even did not allow the investigation(s) into the assets of Ms.Dimple Yadav, as she was having separate agricultural income and her acquisition of wealth was not attributed to any source of income through her husband or fatherinlaw i.e. there was no prima facie evidence that the money for her assets was provided by them.
211. In the present case, from the above discussions it is apparent that A2 was an independent income tax assessee since 19841985, she had been regularly filing her income tax returns since then, which have also been assessed by the Revenue Authorities from time to time.
Further, she had number of independent legitimate source(s) of income which have all been specifically explained to and assessed by the Revenue Authorities. As held in judgments of Krishnanand Agnihotri and Mohanlal Soni (supra), such income tax returns are unassailable documents. Moreover, the same could not have been filed by A2 as far back in year 1984 1985 in anticipation that there will be a DA case against her husband i.e. A1 in far future. Nobody can be attributed with such RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 kind of clairvoyance. Therefore, since A2 had independent sources of income or legitimate income, therefore she can be said to have the means to generate her own assets from her own legitimate source(s) of income.
212. Regarding the contention of Ld.PP for CBI that, if such plea is allowed then anybody can amass property in the name of known persons, pay income tax on their behest and then be out of the mischief of law. In this regard, he has relied upon judgment of State of Tamil Nadu by Inspector of Police (Vigilance) and Anti Corruption (2014) CCR 226 (SC 01) (supra). The said contention of Ld.PP for CBI appears to be attractive, but the same is without any substance for the following reasons generally, an assessee under the Income tax Act, 1961 is taxed in respect of his or her own income, but sometimes in some exceptional circumstances, this basic principle is deviated and the assessee may be taxed in respect of the income which legally belongs to someone else. Earlier, the tax payers made an attempt to reduce their tax liabilities by transferring their assets in favour of their family members or by arranging their sources of income in such a way that tax instance falls on others, whereas benefits of income is derived by them. So as to counter act such practices of tax avoidance, necessary provisions have been incorporated in Sections 60 to 64 of Income tax Act, 1961.
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213. The inclusion of other's income in the income of assessee is called the clubbing of income and the income which is so clubbed is called deemed income. Therefore, this contention of the Ld.PP for CBI that anybody can pay income tax on behalf of others and amass the property in name of known persons without explaining the source(s) of income, is bereft of substance, as in such a case, the Revenue Authorities are not powerless. They have the power to club the income of such a person, who has no source of income by clubbing the same into the income of other person who has provided the funds for the same. For example, any remuneration received by the spouse from a concern in which individual has substance interest is taxable in the hands of individual. Similarly, income from any asset transferred to a spouse will be continued to be taxable in the hands of the former. As also the income from any asset transferred to for the benefit of spouse is taxable in the hands of transferor. These are some of the eventualities where the income of other person can be clubbed, though the income legally belonged to someone else. Further, the Income tax Act is not merely a fiscal statute. The Revenue Authorities have the power in case of default to launch prosecution in critical cases for tax compliance. There are various provisions incorporated in the Income tax Act, 1961 for the said purpose, in which such prosecution can be launched. The Income tax RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 authorities can go for prosecution for concealment of income or furnishing of incomplete source of income u/S 271(1)(c) of the IT Act and the prosecution can also be lodged on failure to give evidence or produce books of accounts and documents with the requirements of summons u/S 131 of IT Act and the prosecution can be launched for such like eventualities u/S 272(a)(1)(c) of IT Act.
214. Therefore, in view of the above discussion, it is not that one person can merely get away from the Revenue Authorities by paying the income tax of a particular person and then amass wealth in the name of said person. The Revenue Authorities have ample powers to check such evasion and wrong furnishing of particulars by going for appropriate prosecution. Therefore, the argument of Ld.PP for CBI has no force.
215. The prosecution in the present case has also miserably failed to prove that the money for the generation of said assets of A2 had been provided by A1 or that A2 was benamidar or that A1 was the real owner of the said asset, hence clubbing is not permissible as per the settled law, rather same is grossly illegal, against all the established principles of law. Consequently, these assets which are in the name of A2 and which have been proved to have been acquired by her from her own legitimate source(s) of income, as discussed above, have to be seggregated RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 or decoupled from those of A1. Now, therefore only the independent income / assets and expenditure and savings of A1 have to be determined separately from those of A2 for determining the disproportionate assets in this case.
216. It is the admitted case of prosecution as well as of accused persons that the check period in the above case is from 06.07.1979 to 20.09.2000. The income head of the A1 as mentioned in Para no.11 of the chargesheet is being discussed hereinafter sequentially under various heads, as per chargesheet for convenience.
1. Income from salary of Ashok Kumar (A1) for the check period - Rs.10,31,771.90 (figure rounded off to Rs.10,31,772)
217. During the course of argument, Ld.counsel for A1 and A2 admitted the said figure of Rs.10,31,772/ as the income of A1 from salary during the check period. Even otherwise, the prosecution has examined number of witnesses on record namely PW2 Sh.Rampath Singh Verma, PW8 Sh.R.S.Khatri, PW28 Sh.O.P.Saroha, PW29 Sh.S.P.Rastogi, PW30 Sh.R.K.Bhatnagar, PW32 Sh.Vineet Kumar, PW33 Sh.G.R.Maurya, PW40 Sh.Dyal Singh, PW50 Sh.Om Prakash, RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 PW53 Sh.Harinder Nath, PW61 Sh.Shiv Charan, PW62 Sh.Sushil Kumar Sharma, PW65 Sh.Balwinder Singh, PW68 Sh.Subhash Chand Thakkar, PW69 Sh.D.D.Ranjan, PW88 Md.Quamar Toheed, to prove the salary receipts of the above accused, which he received while working in various department of MCD.
The only contention of Ld.counsel for A1 and A2 is that it has been mentioned by prosecution in para no.5 of the chargesheet that A1 had also worked in Ministry of Defence from April 1973 to September 1975 and in the Ministry of Human Resource Development from March 1976 to June 1979 and the net salary received by him for this period worked out to Rs.33,468.69 (figure rounded off to Rs.33,469/) and after deducting 1/3rd of the net income for household expenditures, he could have saved a maximum of Rs.22,312/, which could be his probable asset before the check period, but it is stated that even if it was taken into consideration, it cannot make any substantial difference in the disproportionate asset amassed by A1. Therefore,the benefit of the same was not extended to him under the income head. PW93 in his cross examination was specifically asked this question that for the left over period, the said amount of Rs.22,312/ was not considered, to which he stated that the said benefit was not extended to the accused because the DA itself was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 huge and it wouldnot have made any difference. From the testimony of PW93 in his cross examination and the averments made in para no.5 of the chargesheet itself, as per the admissions of prosecution, the said amount of Rs.22,312/ has to be added into the income from salary of A1 under the present head. Therefore,the total income from salary of the accused during the check period and also from service tenure prior to the said would be Rs.10,31,772/ + Rs.22312/ = Rs.10,54,084/.
2. Bank interest received on the accounts of Ms.Maya (A2), Sanjana and Abhishek - Rs.54,685/
218. In para no.12 of the chargesheet, break up of the said bank accounts had been given.
(a) UCO Bank, Kamla Nagar The interest income received by Abhishek Kumar from savings bank account no.26696 held in UCO bank, Kamla Nagar branch amounting to Rs.10,571/ and the balance in the said bank account on 29.09.2000 was Rs.17,404.1/ (figure rounded off to Rs.17,404/).
The relevant statement of accounts of the said UCO bank has been proved by PW14 Sh.R.K.Nagpal, who has proved the relevant statement of accounts as Mark P14/A and P RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 14/B. Perusal of the said statement of accounts would reveal that the said account was opened in April, 1998 by depositing cash of Rs.5100/ and the interest earned by the son of A1 and A2 i.e. Abhishek has been calculated as Rs.10,571/, the benefit of which has also been accorded to A1 under his income head. Perusal of the record reveals that certain ITRs of said Abhishek has been proved by PW54 as Ex.PW54/D1 and D2 (colly.) and assessable income in the income tax return for the assessment year 1999 2000 has been shown to be Rs.945330/ on which income tax of Rs.2,57,599/ has also been shown. The said income tax return is for the previous year 01.04.1998 to 31.03.1999 and said Abhishek had also filed ITR for 01.04.1999 to 31.03.2000 corresponding to assessment year 20002001 in which he has also shown substantial income. Same is the position with regard to ITR for the assessment year 20012002, the balance sheet of the said Abhishek for the assessment year 19992000 shows that he had shown substantial income from shares and interest as per Ex.PW54/D1 and D2 (colly.), the same was duly assessed by income tax authorities. Therefore, in view of the settled law, as held in the judgment of Krishnanand Reddy (supra) and Mohanlal Soni (supra), since income tax return are unassailable documents and it has not been proved by the prosecution that the cash of Rs.5100/, which was deposited in the said bank account RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 of UCO Bank while opening the account in the month of April 1998 was provided by A1 and it appears from the ITRs of Abhishek that he was having his own source of income. Hence, he could deposit the said amount in the said bank account. Therefore, the amount which was lying in his bank account on 29.09.2000 cannot be considered as an asset of A1. It can only be considered as an asset of Abhishek, who was major as his date of birth was stated to be 23.08.1978, which was not disputed by the prosecution during the course of argument. Since the said asset belonged to Abhishek, therefore the interest generated or earned thereon would also go to him. Therefore the interest component of Rs.10,571/ cannot be extended to A1.
(b) UCO Bank, Kamla Nagar The interest income received by Smt.Maya (A
2) from savings bank account no.26697 held in UCO bank, Kamla Nagar branch amounting to Rs.37,539/ and the balance in the said bank account on 29.09.2000 was Rs.281,147.94/ (figure rounded off to Rs.281,148/).
The said account has been proved as Mark P 60/A. The aforesaid account also seems to have been opened with cash of Rs. 5100/ on 02.04.1998. The interest component of Rs.37,539/ stated to have been earned by A2 as per statements of account Mark P60/A cannot go in favour of A1 that is to say RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 that the benefit of the same cannot be extended to A1 as already discussed at length, since A2 had her independent legitimate source of income. Therefore, she had means and the money available with her to deposit the money in the said bank account and the prosecution has failed to prove that the money lying in the said account was provided by A1, which the prosecution was bound to prove as per the judgment of Krishnanand Agnihotri (supra), therefore the benefit of Rs.37,539/ cannot be extended to A1 and also the final amount standing in the said amount on 29.09.2000 for Rs.2,81,148/ cannot be added into the asset of A 1, as the said asset belonged to A2 and it follows as a corollary to the same the the interest generated on the same would also go to A2.
(c) UCO Bank, Kamla Nagar The interest income received by Miss Sanjana Rai from savings bank account no.26969 held in UCO bank, Kamla Nagar branch amounting to Rs.6,429/ and the balance in the said bank account on 29.09.2000 was Rs.12,809.96/ (figure rounded off to Rs.12,810/).
With regard to the said statement of account, PW 14 Sh.R.K.Nagpal has proved the same as Ex.PW14/2. The perusal of said statement of account also shows that the same was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 also opened with the cash of Rs.3500/ on 09.01.1999 and the interest earned during the said period of Rs.6429 has been credited to the benefit of A1, as also the balance standing in the said account as on 29.09.2000 of Rs.12,810/, has been added as an asset of A1.
The date of birth of Ms.Sanjana Rai was stated to be 30.04.1979 during the course of arguments which was not disputed by the prosecution, which is even otherwise mentioned in her ITR. Perusal of the ITR proved by PW54 as Ex.PW54/D1 and D2 (colly.) would show that said Sanjana Rai had also been filing ITR for assessment year 19992000, assessment year 20002001 and also for the assessment year 20012002 and the perusal of the balance sheet for the assessment year 19992000 proves that she had substantial income from shares as well as interest income and the said ITRs have been duly proved by PW54, who was the Chartered Accountant of said Sanjana Rai as well as that of Mrs.Maya (A2) and of Abhishek (son of A1 and A2) and as already discussed in the preceding paras, the said ITR are unassailable documents in view of the judgment of Krishnanand Reddy (supra) and Mohan Lal Soni (supra). Therefore, it appears that the said Sanjana Rai was having sufficient means to deposit the money in her above savings bank account. Since it has not been proved by the prosecution that the money, which was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 deposited in the said account was provided by A1, which it was bound to in view of the judgment of Krishnanand Agnihotri (supra), therefore the balance in the said account as on 29.09.2000 of Rs.12,810/ would be the asset belonging to said Sanjana Rai and the interest earned on the same i.e. Rs.6,429/ would also logically go to her and therefore, the benefit of the same cannot be provided to A1, as has been provided in the chargesheet.
(d) Central Bank of India, Pahar Ganj Savings Bank Account no.644 in Central Bank of India, Pahar Ganj branch in the name of Ashok Kumar (A1) in which the balance of Rs.1000/ has been shown. The balance of Rs.1,000/ in the said account has been proved by PW78 Sh.Ashok Kumar, Assistant Manager in Pahar Ganj Branch of Central Bank of India vide the letter of said bank Ex.PW78/1. The said document only shows that there was a balance of Rs.1,000/ in the said account as on 29.09.2000. Since, no interest income has been shown on the said money lying in the said account, the said Rs.1,000/ would go into the asset head of A1. This particular item has also been mentioned in the asset head no.6 of A1 in the chargesheet.
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(e) Canara Bank, Kamla Nagar
Savings Bank Account no.18720 in Canara Bank, Kamla Nagar of Smt.Maya (A2) in which on 29.09.2000 there was a balance of Rs.40,113/ and the interest income was Rs.133/. In this regard, PW79 Sh.Sushil Kumar Sharma has proved the relevant statements of account as Ex.PW79/2. Since as already discussed above, A2 had independent means of income that is to say that she had independent legitimate source of income and she had also been assessed to income tax since year 1984 1985 as per the ITRs proved by PW54 as ex.PW54/D1 and D2 (colly.) and vide above discussions held at length, she had other independent sources of income. Since she had her own independent income, therefore she had means to deposit the said amount in said account by herself and prosecution has failed to prove that the money for the same has been provided by A1, as per judgment of Krishnanand Agnihotri (supra) and the said amount of Rs.40,113/ as on 29.09.2000 was her asset, therefore the interest generated thereon i.e. Rs.133/ would also be her income and the benefit of same cannot go to A1.
(f) Indian Bank, Hauz Khas Savings Bank Account no.100055 in Indian Bank, Hauz Khas in the name of Mrs.Maya (A2) in which on 29.09.2000 there was a balance of Rs.1,013/ and the interest income was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Rs.13/.
The said document has not been proved during the testimony of any of the witnesses. Even if it was so, as already discussed above, A2 was having her own legitimate sources of income. Therefore, she could have acquired / generated income from her own sources, therefore the benefit of same cannot go to A1.
In view of the above discussions, the entire interest component of Rs.54,685/ shown in item no.2 on the record to the bank interest income, cannot be extended to A1. Therefore, this amount of Rs.54,685/ has to be deleted from the income head of A1.
3. PPF interest Rs.1,147/
219. In this regard, the prosecution has proved various PPF accounts of A2 Mrs. Maya, which were all seized vide seizure memo Ex.PW45/1 and the PPF account of A2 Mrs.Maya, that of Abhishek Kumar (son of A1 and A2), Ms.Sanjana Rai (daughter of A1 and A2) and Aman Rai (minor) under the guardianship of A2 have been collectively proved as Ex.PW45/A (1to 4). The perusal of the PPF account bearing no.184 of Mrs. Maya in Syndicate Bank shows that the same was opened on RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 05.06.1988 by depositing Rs.5000/ and the interest which she had earned on the said deposit of Rs.500/ and Rs.647/ totalling to Rs.1147/ have been credited to A2, therefore there is no evidence that said money was deposited by A1 or was given by A 1 to A2. As already discussed above in the preceding paras, A2 had independent sources of income and was income tax assessee from the assessment year 19841985, therefore she had the financial means and capacity to deposit the said amount. Therefore, the said amount of interest which has been earned on the deposit of Rs.5000/ cannot be given to A1, but would rather go to A2.
Regarding the PPF account no.290 of Abhishek Kumar and PPF account no.291 of Sanjana Rai. Since the said account had been opened on 29.03.2000 and the interest had only accrued in the year 2001, which is beyond check period. The same has not been discussed with regard to the income aspect, as the same is beyond check period and same is the position with regard to the PPF account no.292 of Aman Rai (under the guardianship of A2), as the interest accrued in the said PPF account is also beyond the check period.
From the aforesaid discussions, the amount of Rs.1147/cannot be extended to A1 and same would go to A2, Sanjana Rai and Abhishek Kumar. The same is accordingly RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 deleted from the income head of A1.
4. Profit on sale of property no.E4/10, Model Town, Delhi.
Rs.4,26,600/
220. In this regard, the profit of Rs.4,26,600/ has been extended to A1 under the income head. As already discussed in the para no.199 above, the said property was acquired by A2 out of her own funds, as she had been filing income tax returns since the assessment year 19841985 and she had the financial capacity to buy the said property from the loans and other sources, as already discussed, is not being discussed again for the sake of brevity. Consequently on the liquidation of the above asset during the check period, the income / profit generated thereon can only be enjoyed by A2 and not by A1. Since it has not been proved by prosecution that the money for generation of said asset was provided by A1, as a consequence, the profit/capital gain earned on the sale of said property would also go to A2 and not to A1. Accordingly, the said amount of Rs.4,26,600/ will be deleted from the income head of A1 and would go to the income of A2.
5. Loan taken for purchase of car - Rs.52,800/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
221. In this regard, the prosecution has examined PW73 Sh.Pushker Raj from the Advance Section MCD Head Quarters. He has proved the information regarding advancement of cash loan to A1 of Rs.52,800/ and the recoveries made against the said loan from 1989 till the date of information i.e. 11.10.02 as Ex.PW73/A, Ex.PW73/1, Ex.PW73/2 and Ex.PW73/3. From the said document(s), it is clear that a loan of Rs.52,800/ was extended to A1 and was given to A1 by his Department MCD for purchasing car during the check period in the year 1989 and the said loan was only repaid after the check period. The said inward flow of income into the account of A1 would be his income and therefore, the same has been rightly shown under the income head of A1. Therefore, the said amount of Rs.52,800/ has been rightly taken under the income head of A1.
The details of Assets of A1 as per the Asset Head Para no.28 of the chargesheet
1. Property no.5/12, Roop Nagar, Delhi purchased on 17.4.2000 Rs.2,34,66,100/ AND
2. Property no.106,107, Aurbindo Place, Hauz Khas, New RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Delhi Rs.32,00,000/
222. As already discussed at great length while discussing the arguments with regard to the acquisition of this property i.e. property no.5/12, Roop Nagar, Delhi in most specifically para no. 178, wherein it has been held that the said asset belonged to wife of A1 i.e. A2 and the prosecution has failed to prove that the money for the acquisition of said asset had been provided by A1, in view of the judgment of Krishnanand Agnihotri (supra) and that A2 had been an income tax assessee since the assessment year 19841985 and she has been regularly filing her income tax returns from time to time, which has been duly assessed by the Revenue Authorities and as per the settled law of Krishnanand Reddy and Mohan Lal Soni (supra), wherein it has been held that the said ITRs are unassailable documents, which were also scrutinized by the IT authorities, the said asset has been held to be acquired by A2 out of her own funds and means, therefore from the foregoing discussions, the amount of Rs.2,34,66,100/ cannot be clubbed under the asset column of A1.
223. Further, with regard to the detailed discussions held in para no.194 in respect of property no.106,107, Aurbindo Place, Hauz Khas, New Delhi, in which it has also been held that RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the same has been acquired by A2, which has been duly reflected in her ITR, which has been duly assessed by the Revenue Authorities from time to time and it was found that the money for the acquisition of the said asset was not provided by A1, as the prosecution has failed to prove the same. The prosecution has also failed to prove that the same was the benami property of A1 held in the name of A2, therefore the said asset being acquired by A2 out of her own funds and means cannot be tagged or clubbed with the assets of A1. Since A2 had independent legitimate sources of income. Therefore, she could have acquired assets out of the same.
3. Plot no.175, Pocket17, Block4, Sector8, Rohini, Delhi purchased in 1982 Rs.88,471/
224. With regard to this, the prosecution has examined PW70 Smt.Usha Bansal, witness from DDA. She has proved various documents pertaining to the allotment of above plot to A1 vide allotment letter dated 07.09.1982. The allotment letter is Ex.PW70/1. She has also proved the challan document(s) pertaining to the deposit of money for the allotment and other charges as Ex.PW70/2, Ex.PW70/3 and Ex.PW70/4. She has also proved the Perpetual Lease Deed dated 03.03.2000 executed RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 between DDA and Ashok Kumar (A1) and Smt.Maya (A2) wife of A1 as Ex.PW70/5 (colly.) The prosecution has taken a sum of Rs.88471/ as the asset of A1.
Prosecution has also examined PW13 Sh.Rajeev Verma and PW24 Sh.Sanjiv Verma. PW24 has stated that the above plot had been purchased by him from A1 for consideration of Rs.2,50,000/. He had made the payment vide cheque. The said cheque is Ex.PW24/2 (D259) which bears his signatures at point MarkX. In his cross examination, he admitted that the said deal was executed through his brother Rajiv Verma, who was property dealer. PW24 stated that he had handed over the property documents pertaining to the said plot to the CBI, which were seized vide memo Ex.PW24/1. Perusal of the said documents show that A1 was the allottee of said property and A1 and A2 had executed the General Power of attorney, Special Power of Attorney, Receipt, Will and Agreement to Sell with regard to said property on 10.04.2000. The General Power of Attorney is duly registered with the concerned SubRegistrar, as also the Will. The receipt with regard to the above transaction shows that an amount of Rs.2,50,000/ was received by A1 vide cheque no.266103 dated 10.04.2000 of PNB, FBlock, Model TownII, Delhi. The very execution of the aforesaid documents i.e. General RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Power of Attorney, Special Power of Attorney, Will, Receipt etc. alongwith the fact that it was mentioned in the Agreement to Sell that the possession of the plot had also been handed over to the purchaser on 10.04.2000, shows that A1 was left with no right, title or interest in the said property after said date and it is not that the said documents were unregistered. Therefore, there could be manipulation in the same. The General Power of Attorney was registered with the concerned subRegistrar on 10.04.2000 as also the Will and Special Power of Attorney and the cheque (D259) Ex.PW24/2 has also been proved to be in the handwriting of the purchaser, which also bears the date of 10.04.2000. It may be that the said cheque was presented on 03.10.2000 and was credited in the account of A1 after the check period. But since, the said amount had been received by A1 during the check period by way of cheque and the property in question had been sold / liquidated during the check period i.e. on 10.04.2000 by execution of formal documents as stated above, which were also duly registered with the Registrar.
Once A1 had executed these documents, he was left with no right, title and interest in the said property / plot and merely because he has deposited the said cheque later on, after the check period does not make any difference. For example if A 1 had received the said consideration by way of cash and he had RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 kept the same in his house and had deposited the same into his account after the check period, then it cannot be said that since the money was deposited by him after the check period, therefore the consideration was also received by him after the check period. By same analogy, the cheque being a legal tender can be said to have been duly received by him on 10.04.2000. It may be that he had deposited the same into his account on 03.10.2000 after the check period, but since the asset had been liquidated during the check period and the consideration amount has also been received by A 1 during the check period, therefore the profit / long term capital gain earned by A1 by the sale of above property, which was liquidated during the check period would go to A1. Therefore, the said amount of Rs.1,61,529/ can be taken as the income of A1 and the same would go into the income head of A1 and amount of Rs.88,471/ taken under the asset head under this item has to be deleted from the asset of A1.
4. Household articles as per the inventory prepared on 21.09.2000 in respect of D1, MCD Flat, Bunglow Road, New Delhi Rs.3,09,850/
225. Regarding this, PW71 Sh.Pawan Kumar, Inspector, CBI, ACB, New Delhi, has deposed that he was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 entrusted with the FIR of this case and he was also the team leader of the team which raided the house of A1. The relevant documents were seized and the observation memo regarding the articles/goods lying in the house of A1 was prepared and the cost of the articles/goods were mentioned in the observation memo in consultation with A1. The said observation memo is Ex.PW10/A (D274) which bears his signatures at point Y on each page and signatures of other persons also and that of A1 at point Z. He also stated that the seizure memo (D277) Ex.PW10/B was also prepared at the house of A1.
PW71 in his cross examination admitted that as per the search memo, A1 was present at the time of preparation and his no family member was present and he did not verify who had purchased the articles as per the observation memo. He does not know if wife, son and daughter of A1 were earning members and were filing ITRs. He also stated that he was not aware of any circular dated 28.11.2001 Mark P71/A issued by DIG, CBI stream lining the procedure for assessing the disproportionate assets. During the course of arguments, Ld.counsel for A1 and A2 did not dispute the said observation memo Ex.PW10/A. However, he stated that since the said house was in joint possession, of which A1 and A2 were members and A2 and his son and daughter were also income tax payees and were having RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 their own income, therefore some of the articles must have been purchased by them. Therefore, all the articles lying in the house of A1 cannot be attributed to A1. He has also argued that as per the circular of CBI Ex.PW93/D1, the non verifiable expenditure is taken as 1/3rd of the gross salary which includes kitchen, household, clothing etc. Therefore, once the same has already been taken under the expenditure head, the same cannot be taken again under the asset head.
I have examined the said plea. The said plea is without any substance. Though, 1/3rd non verifiable expenditure has been taken under the expenditure head i.e. based on the presumption that at least 1/3rd of the net salary earned by any public servant must be deemed to have been spent by him taking into account the fact of inflation and cost of living and the fact that this is the bare minimum on which one can survive. However, though A1 has claimed joint possession of the house from where the articles as mentioned in Ex.PW10/A were seized alongwith his wife A2, son and daughter, and this has also been proved as discussed in preceding paras that his wife (A2) had been income tax assessee since assessment year 19841985 and his son and daughter were also income tax assessee and were paying income tax independently and were assessed as such, threfore it is possible that some of the articles may be belonging to other family RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 members of A1 due to joint possession of said house alongwith A 1, yet the prosecution could not have the knowledge of this fact as to which article found in the house of A1 actually belonged to him and which article is belonging to A2 or any other family member or was purchased by them.
Therefore, the onus was upon A1 to prove this fact, as to what actually belonged to him or was purchased by him out of his own funds or what was purchased from the earning of his family members so as to segregate the same. In the absence of such kind of evidence lead by A1, the said amount mentioned as per the seizure memo Ex.PW10/A is taken as correct. However, it is pointed out by Ld.counsel for A1 and A2 that there was mistake in calculating the said amount of Rs.3,09,850/, on recalculation, the said assertion is found to be correct. Accordingly, the actual amount of Rs.2,99,350/ can be taken into the asset head of A1 with regard to this item no.4.
5. Investments in LIC, SCS, UTI, PPF and ICICI bonds Rs.2,63,773/
226. There are various items in this head. First of all the investments made by A1, A2 and other family members of A RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 1 and A2 in LIC policies is being taken up first. In this regard, prosecution has examined PW39 Sh.K.D.Bhatt. He has deposed that he was posted as Assistant in Branch No.111, LIC, New Delhi and on the directions of Branch Manager he had handed over status report in respect of some LIC policies to CBI officer. After seeing letter dated 22.09.2001, which is part of D266 Ex.PW39/1 he stated that the said letter bears signatures of Branch Manager Sh.M.R.Sharma at point Mark X. The said letter bears the status report and premium history of policies which were handed over to the CBI officer and all the status reports attached to Ex.PW39/1 are part of it and bears his signatures at points Mark X on each page. He further deposed that the computer print outs had been taken out by the concerned dealing clerk of the office. He deposed that he had compared the print outs with the data in the computer before signing the same and the premium paid in respect of the policies upto 21.09.2000 are mentioned in the print outs which amount to Rs.65,126/. In his cross examination on behalf of A1 and A2, he admitted that he had not brought the original polices in the Court and he also admitted that no certificate u/S 65B of Evidence Act was attached with the computer print outs. Ld.counsel for A1 and A2 stated that all these LIC policies are computer print outs and no certificate u/S 65B of Evidence Act have been appended RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 with these LIC polices. Therefore, same are not admissible in evidence in view of settled law of Hon'ble Apex Court. The said contention of Ld.counsel for A1 and A2, though correct is not applicable to the peculiar facts and circumstances of the present case, as the very purpose of appending a certificate u/S 65B of Evidence Act with regard to the secondary computer print outs is to secure the authenticity of the document, that is to say that the person taking out the print out authenticates the documents stating that the same was correctly downloaded by him on the computer and it reflected the information contained in the computer truly and correctly. In the present case, PW39 has deposed in his examination in chief itself that though the computer print outs had been taken out by the concerned dealing clerk, but he had compared the print outs with the data in the computer before signing the same. In view of the above deposition made by PW39 in his examination in chief, wherein he has stated that he had himself compared the data in the computer before signing the same, therefore in these circumstances, in my respectful view there was sufficient compliance of Section 65B of the Evidence Act. Now, coming to the first policy i.e. with regard to Sanjana Rai. The date of commencement of said policy bearing no.112720862 is 28.03.2000 with annual premium of Rs.9607/. It RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 is contended by the prosecution that the said Sanjana Rai had no means to pay the said premium and the said premium must have been paid either by A1 or A2. On the other hand Ld. Counsel for A1 and A2 refuted the same. I have gone through the record. The ITRs of said Sanjana Rai and that of A2 and Abhishek have been collectively proved as Ex.PW54/D1 and D2 (colly.). Perusal of the said ITR shows that Sanjana Rai had been filing ITRs for the assessment year 19992000, as also for assessment year 2000 2001, which seems to have been duly assessed by the Revenue Authorities. As already discussed in the preceding paras and the fact that her date of birth in those ITRs was shown as 30.04.1979, which means that she was 21 years of age at the time of commencement of this LIC policy. Therefore, she had sufficient financial capacity to pay the premium of Rs.9607/. In any way, it was for the prosecution to prove otherwise that A1 had provided money for purchasing the said LIC policy and premium paid thereon. Even if it is presumed that she had no financial capacity, even then it cannot be presumed that it was A1 who had provided the money. It raises a suspicion that somebody else may have provided money to Sanjana Rai and who that person was, had to be proved by the prosecution in view of the judgment of Krishnanand Agnihotri (supra). Accordingly, the said amount cannot be included into the asset of A1.
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Regarding the another LIC policy bearing No.112722140 purchased by Abhishek Kumar, the date of commencement of said policy was 01.03.2000 for premium of Rs.10354/. As per prosecution, money for the same was also provided by A1. As already discussed above, the ITRs of said Abhishek Kumar has also been proved as Ex.PW54/D1 and D2 (colly.) and said ITR shows that Abhishek had been filing ITRs for assessment year 19992000 as also for assessment year 2000 2001 and his date of birth has been mentioned in those ITRs as 23.08.1978, which means that he was 22 years old at the time of commencement of said LIC policy and in those ITRs which must have been assessed by the Revenue Authorities, however no contrary record has been brought on record. He had sufficient income from shares and other investment. Therefore, he had the financial capacity to purchase the said LIC policy and pay the premium of Rs.10,354. In any case, no contrary evidence has been lead by the prosecution that A1 has provided the money which it was incumbent upon them to prove in view of the judgment of Krishnanand Agnihotri (supra). Accordingly, the said amount cannot be included into the asset of A1.
Another policy in the name of Abhishek bearing No.112722066, the date of commencement was 01.03.2000 for which premium was Rs.17512/. As already discussed above, the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 said Abhishek Kumar was income tax payee and he has been filing ITR for assessment year 19992000 as also for assessment year 20002001 and he has substantial income as shown in the ITRs which was duly assessed by the IT Authorities. Therefore, he had financial capacity to buy the said LIC policy and pay the premium of Rs.17512. In any case, no contrary evidence has been lead by the prosecution that A1 has provided the money which it was incumbent upon them to prove in view of the judgment of Krishnanand Agnihotri (supra). Accordingly, by the same logic, the said amount cannot be included in the asset of A1. Regarding the policy bearing no.112722076 in the name of minor Aman Rai (under the guardianship of Smt.Maya (A2)), the date of commencement was 28.03.2000 and the premium paid was Rs.6391/. As already discussed above, the said A2 had been filing her ITRs since the assessment year 1984 1985 vide ITRs Ex.PW54/D1 and D2 (colly.) which was all assessed by Revenue Authorities and she has substantial means of income and therefore she has financial capacity to buy the said policy and pay the premium on behalf of her minor son. In any case, it was incumbent upon the prosecution to prove that the money for the purchase of said LIC policy was provided by A1 in view of the judgment of Krishnanand Agnihotri (supra). Therefore, the said amount of Rs.6391/ cannot be included into RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the asset head of A1.
Regarding the policy bearing no.112722392, the date of commencement was 01.03.2000 in the joint name of A1 and A2, the premium paid was Rs.10,631/. Though, it is not mentioned in the evidence or on the record as to how much of the said premium was contributed by A1 and A2. Since A2 was also separate income tax assessee and having independent financial capacity to purchase the LIC policy and to pay the premium thereon with regard to her part. It may be that the entire money may have been paid by A2 or A1, but since A2 was a separate income tax assessee since assessment year 19841985, therefore it can be safely presumed that both of them must have contributed 50% of the premium amount. Therefore, the 50% of the said premium amount can be proportioned or attributed to A1 and A2. Therefore, Rs.10,631/2= Rs.5,315.50 can be taken as contributed by A1 which can be included in the asset head of A1 and remaining 50% would be the asset of A2 because the person who makes the payment owns it and would be the owner of the said asset. However, this amount of Rs.5,315.50 would also be the expenditure of A1 which he spent for buying this asset. Regarding the policy no.112722525 in the name of A1 and A2, the date of commencement was 01.03.2000 and premium amount was Rs.10,631/. The same logic and explanation RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 would apply and 50% of the said amount i.e. Rs.10,631/2 = Rs.5,315.50 can be taken as the asset of A1 and corresponding expenditure of A1.
Therefore, under this head, only an amount of Rs.10631/ can be taken as the asset head of A1 with regard to LIC policies under this head. At the same time this amount shall also be his expenditure under the expenditure head.
ULIP
227. With regard to this ULIP policies, the prosecution has examined PW35 Bharat Bhushan Sharma, who has deposed that at the relevant time he was working as Legal Manager UTI and he had furnished the information to CBI vide D270 Ex.PW35/1 and the said information has been furnished as per the record of the UTI. As per the said document Ex.PW35/1, Smt.Maya (A2) was having a ULIP policy bearing no.9840031022617 and she had paid three installments of Rs.7500/ each per year as investment, amounting to Rs.22500/ till the check period. This fact was brought to the notice of this witness during his cross examination by Ld.Public Prosecutor. Since as already discussed that A2 was having sufficient financial means to deposit the said installment as the investment, as she had been an income tax assessee since the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 assessment year 19841985 as per ITRs Ex.PW54/D1 and D2 (colly.) and the prosecution has failed to prove that the money deposited as installment towards said ULIP policy had been provided by A1. Therefore, the said amount of Rs.22,500/ cannot be added into the asset head of A1 because the person who makes the payment having the financial capacity to do so, would be the owner of the said asset.
(b) ULIP bearing no. 200040011094333 in the name of Sanjana Rai.
As per the document Ex.PW35/1, two installments of Rs.7500/ each was paid amounting to Rs.15000/. During the cross examination of this witness by Ld.Public Prosecutor, he was confronted with his previous statement Ex.PW35/A. It appears that it is the case of prosecution itself that an installment of Rs.7500/ was paid in March 2001, which is beyond check period. The same cannot be taken into account as it is beyond check period. However with regard to deposit of Rs.7500/ in the ULIP in March 2000, as already discussed above, the said Sanjana Rai had also been filing ITRs for the assessment years 19992000 and 2000 2001 as per Ex.PW54/D1 and D2 (colly.). Therefore, she had financial capacity to deposit the said amount in the said ULIP policy and the prosecution had to prove that the money for the same was provided by A1 or A2, which it failed to do so.
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Therefore, the amount of Rs.7500/ cannot be added into asset head of A1, as the other amount of Rs.7500/ is beyond the check period which otherwise also cannot be added. Regarding the other ULIP policy bearing No.200040011094321 in the name of Abhishek Kumar, whereby he paid two installments of Rs.7500/ each amounting to Rs.15000/. Same is the position, as the said witness has also stated in his cross examination by Ld.Public Prosecutor that payment of two installments of Rs.7500/ each was made in March 2000 and another in March 2001. The installment of Rs.7500/ made in March 2001 is beyond the check period. He was confronted with his earlier statement Ex.PW35/A and with regard to the payment of Rs.7500/, as already discussed above, he was income tax assessee and has also been filing ITRs for assessment years 19992000 and 20002001 and he had substantial share and income from other sources. Therefore, he had the financial capacity to deposit the said amount in the said ULIP policy and the prosecution has failed to prove that the money for the same was provided by A1 or A2 in view of judgment of Krishnanand Agnihotri (supra). Therefore, the entire amount of Rs.7500/ under the ULIP head cannot be taken as the asset of A1.
ICICI safety bonds
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228. With regard to this, the prosecution has examined PW41 Sh.Gautam Mahapatra, who has deposed that at the relevant time he was working as Manager, ICICI Capital, Arunanchal Building, Barakhamba Road, New Delhi. After seeing (D267), he stated that he had handed over the same to the CBI officer. Though he was declared hostile by the prosecution on certain aspects, but he stated that the letter dated 28.08.01 alongwith the photocopies of ICICI safety bonds were handed over to CBI, which bears the signatures of Sh.Shettigar, then Company Secretary of ICICI Infotech. He has proved the said letter Ex.PW41/1 bearing the signatures of Company Secretary Sh.S.R.Shettigar. Nothing has come out in his cross examination. The said letter Ex.PW41/1 shows that the bond no.7578279 was in the name of A2 and the date of payment was 27.03.2000 amounting to Rs.25,000/. As already discussed at length in the preceding paras that A2 had been income tax assessee since the assessment year 19841985 vide ITRs Ex.PW54/D1 and D2 (colly.), duly assessed by the Revenue Authorities from time to time. She had sufficient income from shares, long term capital gain by selling the property, therefore she had financial capacity to deposit the said amount of Rs.25,000/ and the prosecution has failed to prove that the money for the purchase of said bonds was provided by A1, therefore the said amount of Rs.25,000/ cannot RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 be included under the asset head of A1.
Similarly, with regard to the bond bearing No.7578316 in the name of Sanjana Rai, date of payment is 27.03.2000 amounting to Rs.45,000/ and another bond bearing no.7578278 in the name of Abhishek Kumar, date of payment is 27.03.2000 amounting to Rs.25,000/ . As already discussed above, both of them were major and were income tax assessee and were filing their ITRs as per Ex.PW54/D1 and D2 (colly.) and both of them had shares and income from investment, therefore they had the financial capacity to purchase the above respective bonds and even otherwise no contrary evidence has been lead by the prosecution which was incumbent upon them in view of judgment Krishnanand Agnihotri (supra) that the money for the same was provided by A1. Therefore, the same cannot be added under the asset head of A1 as per the settled law. Therefore, the entire amount of Rs.95,000/ cannot be taken as the asset head of A1.
PPF account of A2 and other family members of A1 and A2
229. With regard to these PPF accounts, prosecution has examined PW45 Sh.Deepak Kakkar, posted as Clerk with Syndicate Bank, Sadar Bazar Branch. He stated that he had RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 handed over some documents to the CBI from the bank record, more specifically the documents which are part of D102 and the same were seized vide memo Ex.PW45/1 which bears his signatures at point MarkX and the four sheets which he had handed over to the CBI are collectively Mark P45/A (1 to 4), which are the photocopies of statements of PPF accounts.
(a) PPF account no.184 in the name of Smt.Maya (A2) which was having balance of Rs.16147/ as on March 2000 within the check period.
As already discussed above, Smt.Maya (A2) is an income tax assessee since the assessment year 19841985, which ITRs had been duly assessed by the Revenue Authorities from time to time and said ITRs are Ex.PW54/D1 and D2 (colly.). Therefore, she had sufficient financial capacity having income from share profits as well as long term capital gain to deposit the amount in the said PPF account No.184 with the Syndicate Bank. In any case, the onus was upon the prosecution to lead evidence of definite character that the money for the said PPF account was provided by A1, which it has failed to do so and it would be only the asset of the person who had deposited the same, which is A2.
(b) PPF account of Abhishek Kumar bearing no.290 in the same bank, date of commencement 29.03.2000.During the check period i.e. 29.03.2000 there was RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 an amount of Rs.10,000/ in the said account. As discussed above, the said Abhishek is also income tax assessee and is also filing the ITRs for the assessment years 19992000 and 20002001 which was proved as Ex.PW54/D1 and D2 (colly.) and he had income from shares and other investments. Therefore, he had financial capacity to deposit the amount in the said PPF account. Even otherwise, prosecution has failed to lead any evidence on record that the money for the same was provided by A1, therefore the same cannot be added under the asset head of A1.
(c) similarly, the PPF account no.291 of Sanjana Rai, the date of commencement is 29.03.2000 i.e. within the check period there was an amount of Rs.8,000/ in the said account.
As already discussed in the preceding paras, said Sanjana Rai had also been filing ITRs for the assessment years 19992000 and 20002001, proved as Ex.PW54/D1 and D2 (colly.). She had also income from shares as well as interest income, accordingly she had also the financial capacity to deposit the amount in the said PPF account and even otherwise no contrary evidence has been lead by the prosecution which was incumbent upon them in view of judgment Krishnanand Agnihotri (supra) that the money for the same was provided by A1.
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Therefore, the said amount of Rs.8,000/ cannot be taken as an asset of A1.
(d) lastly with regard to PPF account no.292 in the name of minor Aman Rai (under the guardianship of Maya (A2)), date of commencement is 29.03.2000 i.e. within the check period wherein the amount of Rs.2000/ was lying in the said account.
As already discussed above, A2 had independent sources of income and was income tax assessee right from the assessment year 19841985, therefore she had financial means and capacity to deposit the said amount. Therefore, the said amount cannot be taken as the asset of A1. Consequently, in view of the above discussions, the entire PPF account deposited in the said account, as stated above amounting to Rs.36,147/ cannot be taken as asset of A1 as per the settled law.
NSCs
230. With regard to these NSCs, the prosecution has examined PW47 Sh.Chander Bhan who was posted as Public Relation Officer, GPO, Delhi. He after seeing the document (D
265) which is a letter dated 25.08.01 stated that the said letter Ex.PW47/1 bears the signatures of Sh.O.P.Sharma, the then RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Dy.Chief Post Master, Delhi at point Y and also bears his signatures at point Mark X. He was also declared hostile by Ld.Public Prosecutor on certain aspect. He was also confronted with his previous statement Mark P47/A. Perusal of the said letter Ex.PW47/1 which is a genuine document produced by a public servant shows that two NSCs were purchased by A2 and A2 had made the payment of Rs.15,000/ as per the said letter for the purchase of NSCs on 30.07.98 and 08.06.98. As already discussed above, A2 had sufficient means to purchase the said NSCs on the said dates i.e. on 30.07.98 and 08.06.98 and she has been income tax assessee since assessment year 19841985 and vide Ex.PW54/D1 and D2 (colly.), she had been filing ITRs showing her income from shares and long term capital gain from the sale of property. Therefore, she had financial capacity to purchase the said NSCs on respective dates as mentioned above and the prosecution has miserably failed to prove that the money for purchasing the said asset was provided by A1, therefore the same cannot be taken as the asset of A1.
From the entire above discussions, under the head investments in LIC policies, NSCs, ULIP and ICICI bonds, only an amount of Rs.10,631/ can be taken as the asset of A1.
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6. Bank Balances in various accounts Rs.3,53,508/
231. With regard to this item, as already discussed while discussing the item no.2 under the income head, since the bank balances held in the name of Abhishek, Mrs.Maya (A2) and Sanjana Rai as shown in para no.12 of the chargesheet, have been held to be the asset belonging to those persons and not of A 1 and since the said asset(s) belonged to those persons, therefore the income derived from those asset is also held to be theirs and only an amount of Rs.1,000/ was found to be lying in the saving bank account no.644 of A1 with Central Bank of India, Pahar Ganj vide Ex.PW78/1. Only the said amount of Rs.1,000/ can be taken as asset of A1 under this item head.
7. Cash recovered during search Rs.778/
232. During the course of arguments, the Ld.counsel for A1 and A2 did not dispute the same. Even otherwise, the same has already been proved vide document (D274) Ex.PW10/A and there is no dispute regarding the same that the said amount was seized from the house search during the check period. Therefore, amount of Rs.778/ can be taken as the asset of A1.
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8. Cost of second hand car 118 NE Rs.55,000/
233. With regard to this item, prosecution has examined PW49 Mr.Ascharaj Kumar Lal. He has deposed that he was in possession of a car bearing No.DDD1967 which was registered in the name of his wife Smt.Kamlesh Kumari and the car had remained with them till 1989, when it was sold to Ashok Kumar (A
1) for Rs.55,000/. The prosecution has also examined PW1 Sh.Gyan Chand who has produced the relevant file pertaining to the said car which was registered with the Transport Authority, Janak Puri i.e. Vehicle no.118 NE Premier bearing registration no.DDD1967. The relevant file is Ex.PW1/B. Though it appears from the perusal of the said file (D293) that the said car continued to be in the name of the seller i.e. wife of PW49 and it appears that the same was not got transferred by A1, but the fact that it was purchased by A1 from PW49 and his wife, remains unrebutted and it is also not the contention of A1 that the said car was disposed off or liquidated during the check period, therefore the said amount of Rs.55,000/ under this item has been rightly taken as the asset of A1.
9. Investments in NSC by A1 Rs.15,000/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
234. Regarding this, the prosecution has examined PW 66 Sh.Ashok Kumar Sharma, who was posted as Postal Assistant in GPO, Kashmere Gate. He after seeing (D256) which is attested photocopy of application for purchase of NSC, stated that the said form Ex.PW66/1 bears his attestation at point MarkA and the same is in respect of purchase of three NSCs of Rs.5,000/ each in the name of Ashok Kumar (A1) with nominee as Maya (wife)(A2). It is also stated that the amount of Rs.28,515/ mentioned on last page of the application form is the paid maturity amount which includes the initial payment of Rs.15,000/ and interest of Rs.13,515/. In his cross examination by Ld.counsel for A1 and A2, he stated that it was correct that the date when the maturity amount was paid is not clear in Ex.PW66/1 and only 5.10 can be read, year is not clear. Ld.counsel for A1 and A2 has argued that the said NSCs, as per the common knowledge were issued for a period of 5 years and the same were issued on 06.07.88 and even if the same were issued for 10 years, which was not the rule, then the date of the liquidation would be in the year 1998 and said amount of Rs.15,000/ which was invested by A1 in the NSC should be taken as his income. The said argument of Ld.counsel for A1 and A2 appears to be having merit, as from the document Ex.PW66/1 it could not be discerned what was the date of maturity of the said RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 NSC policy purchased by A1, but it is common knowledge that the NSCs are issued for a term of 5 years each. Therefore, even if the same were purchased for 10 years period in one lumpsum, the same would have matured in the year 1998. Since the date of the liquidation of the asset is not clear, so the prosecution cannot take advantage of the same, but the benefit of the same should go to the accused as per settled law. Therefore, it appears from the aforesaid document Ex.PW66/1 that the said NSC was liquidated during the check period. Consequently, the entire profit arising out from the liquidation of the said NSC i.e. the interest component of Rs.13,515/ would go into the income head of A1. Since as per settled principle of law, the said asset seems to be purchased and liquidated during the check period, the same could not be considered as the asset on the last date of the check period and only the interest of Rs.13,515/ would go into income head of A1.
Details of Expenditure of Ashok Kumar:
1. Educational expenses towards five children of (A1) Ashok Kumar Rs.1,43,614/
235. Regarding this, prosecution has examined PW 7 Sh.Savin Chacko, who was working as an Accountant in RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 St.Xavier's School. He after seeing the letter dated 15.06.01 (D
246) Ex.PW7/A stated that it bears the signatures of the then Principal at point Mark X and X1 and also his signatures at pont MarkY. The attached details of fees paid by Aman Rai and Naveen Priyadarsini/Abhishek Kumar are part of said Ex.PW7/A. The perusal of Ex.PW7/A shows that it contains a comprehensive fees and another charges deposited on behalf of said Naveen Priyadarsini/Abhishek Kumar, who was studying in St.Xavier's Sr.Secondary School, Delhi from the academic year 1987 1988 till the academic year 19961997 amounting to Rs.44,161/. Similarly, PW42 another witness in this regard is Mr. Maroof Ahmad, who has been examined on behalf of Jamia University. He after seeing the document (d247) stated that the same was letter dated 04.04.2001 Ex.PW42/1 bearing his signatures at point Mark X and certain documents were provided to him from the Legal Cell of the University, which he had handed over to CBI vide this letter. List of documents in this regard is Ex.PW42/2, which bears his signatures at point Mark X and the documents handed over are attached with the said list and bears signatures of Assistant Registrar Sh.Mohd.Imran, whose signatures he has identified. The said documents are collectively Mark P42/A (1 to 4). Perusal of the said documents Mark P42/A would show that an amount of Rs.9040/ was spent on the education of RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the said Abhishek Kumar @ Naveen Priyadarsini, who was studying in Jamia Milia University in B.Tech course. Now, coming back to the testimony of PW7 Sh.Savin Chacko, as stated above, he has proved the total expenditure/fees paid with regard to another son of A1 namely Aman Rai from the year 1997 till 20002001 and total fees/charges paid with regard to the said child are Rs.48,990/. Since the check period is till 20.09.2000, therefore the total expenditure towards fees and other charges incurred on behalf of said Aman Rai for the year 20002001 till September can be taken as half of the total amount of Rs.15,300/ and subtracting the said amount of Rs.7650/, the total figure comes to Rs.41,990/ which will be the educational expenditure incurred for the child Aman Rai. Another witness with regard to the educational expenses is PW67 Sh.P.C.Malhotra, who has proved the relevant record pertaining to the Queen Mary's School, Tis Hazari. He has proved a letter (D245) Ex.PW67/1 bearing the signatures of the then Principal Mrs. Neelam Kapur, whereby the relevant information was provided to the CBI.
Perusal of the same shows that the total expenditure incurred on Sanjana Rai @ Meenakshi Priyadarshani, D/o A1 and A2 is Rs.5400/ + Rs.1980/ = Rs.7380/ and that of another child Monica Priyadarshani, D/o A1 and A2 is Rs.6300/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 + Rs.1980/ = Rs.8280/ and that of another child Mahima Priyadarshani, D/o A1 and A2 is Rs.10500/ + Rs.1836 = Rs.12236/.
Now, adverting to the college expenses of Sanjana Rai @ Meenakshi Priyadarshani and Monica Priyadarshani. In this regard, prosecution has examined PW6 Jyoti Prakash, who has deposed that he was working in Miranda House College since 1990 and after seeing the letter dated 09.04.2001 (D248) Ex.PW6/A he stated that it bears signatures of then Acting Principal Ms.U.Rustagi and alongwith the said letter, the statement of college dues charged from Ms.Sanjana Rai and Ms.Monika Rai, both daughters of Ashok Kumar (A1) as well as photocopies of fee receipts had been sent to CBI. All these are contained in and are part of D248. In his cross examination, he has admitted that it was correct that as per records, payment of Rs.2712/ in respect of Ms.Monika Rai had been made on 05.10.01, which is beyond check period.
Perusal of the said document shows that an amount of Rs.6597/ was spent by Ms.Sanjana Rai towards her B.A (Hons.) English course. There is one more witness PW12 with regard to the B.Ed degree of Sanjana Rai namely Sh.Dinesh Kumar, who was a witness from Maharshi Valmiki College of Education. He has proved the relevant documents regarding the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 B.Ed degree course of Ms.Sanjana Rai vide document (D244) Ex.PW12/A (1 to 5) which bears signatures of Ms.Veena Sabarwal, Acting Principal at points Mark X. Perusal of the said document reveals that an amount of Rs.2000/ was paid towards the B.Ed degree of Ms.Sanjana Rai vide receipt dated 17.07.2000 and the remaining charges of Rs.30/ and Rs.365/ have been paid by her beyond the check period. Therefore, only an amount of Rs.2000/ can be taken as the expenditure of Sanjana Rai. Now, grand total of all the educational expenses of all the children of A1 and A2 comes to Rs.1,36,614/. Judicial notice can be taken on this fact that the educational fees of the children would be borne by who else, but by the father of the said children, who has the primary duty to give them education. In any case, no evidence has been lead by A1 to show to the contrary that the fees/educational expenses of his children was borne by somebody else. Therefore, the said amount of Rs.1,36,614/ can be taken as the expenditure of A1.
2. Electricity and water bills paid in respect of 1E, MCD Flat, Bungalow road, Delhi Rs.56,589/
236. In this regard, the prosecution has relied upon PW 36 Sh.Surender Khurana to prove the said water and electricity details. However, the same cannot be separately considered as RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the expenditure of A1 in view of the circular dated 28.11.01 Ex.PW93/D1, wherein as per the item no.2(d) it has been stated as under: " Electricity and water charges are not to be computed separately when unverifiable expenditure is computed as above"
and the unverifiable expenditure has been computed as per clause 2(a) of circular Ex.PW93/D1 in which it is stated as under: " unverifiable expenses such as on kitchen, household, clothing etc. should be taken as 1/3rd of the gross salary as a last resort after attempting to quantify the expenses broadly under each of these heads by verification".
Since the prosecution has already taken unverifiable expenditure @ 33% of the net salary of A1 as per item no.11 of the expenditure head. Therefore, as per their own circular Ex.PW93/D1, the electricity and water charges cannot be computed separately, as the same have been computed under the 1/3rd of the expenditure head which has already been taken at item no.11 of the expenditure head. In fact, PW93 main IO of this case S.Balasubramany in his cross examination has admitted that it was correct that as per circular Ex.PW93/D1, the electricity and water charges are also included under the head of unverifiable expenses. In view of the said categorical admission made by the IO in his cross examination that electricity and water charges are also included under the head of unverifiable expenses, which had RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 already been taken separately under item no.11 of expenditure head, the same cannot be taken under this item. Therefore, the entire amount of Rs.56,589/ has to be deleted from the expenditure of A1.
3. Telephone bills in respect of telephone no.3970397 and 3971800 Rs.1,01,762/
237. In this regard, prosecution has examined two witnesses PW22 Sh.K.P.Singh and PW25 Sh.P.S.Jangpangi. PW22 Sh.K.P.Singh deposed that in June 2001 he was working as DE(FRS), Tis Hazari Telephone Exchange and after seeing the letter (D242) he stated that the same contains carbon copy of letter dated 18.06.2001. The said letter is Ex.PW22/1 and bears his signatures at point MarkX. He after seeing the documents D242 and D243 stated that the said documents were handed over to CBI vide letter Ex.PW22/1. In his cross examination by Ld.counsel for A1 and A2, he stated that it was correct that as per letter dated 15.06.01, which is part of D 242, telephone number 2910397 was opened in the name of Executive Engineer (ElectricI) MCD and then shifted to residence of Ashok Kumar (A1) at 1D, MCD flats, Bungalow Road, Delhi. After seeing AnnexureA, he stated that he cannot say, if total RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 payment in respect of telephone bills of the said number was Rs.42,173/. He also stated that he cannot say as to how much payment was made in respect of telephone bills in respect of telephone umber 3971800 and he has not brought any original record from MTNL in respect of total payments made regarding telephone bills of the abovesaid two telephone numbers. Prosecution has also examined PW25 S.P.S.Jangpangi, who has deposed that he was working as DE (FRS), Tis Hazari, Telephone Exchange. After seeing D243 which is a carbon copy of letter dated 14.06.01, he proved the same as Ex.PW25/1 (inadvertently the exhibit mark was not put on the said document). He stated that vide said letter Ex.PW25/1, history of phone numbers 3910397 and 3971800 had been forwarded to CBI officers and the respective histories prepared as per office record are Ex.PW25/1A and Ex.PW25/1B, which bears his signatures at point MarkX (inadvertently the exhibit mark was not put on the said document). He was declared hostile by Ld.PP for CBI on certain aspects and during his cross examination he stated that it was correct that telephone no.3971800 was earlier 2521800 and even then it stood in the name of Ashok Kumar (A1) and on perusal of the history Ex.PW25/1A and 1B he stated that he cannot say anything about total bill payment made in respect of the two telephones. He also stated that he had not stated to CBI officer RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 that after going through the SRC print out in respect of telephone No.3910397 , the total bill paid from 01.10.1998 to 01.08.2000 amounts to Rs.42,173/ or that as per brief history statement of telephone no.3971800 which was AnnexureB, Rs.1000/ was paid on 25.07.1986 for new telephone connection and that the bill issued and paid by the subscriber for the said telephone for the period 25.03.1989 to 30.09.2000 was Rs.59,589/. He was also cross examined by Ld.counsel for A1 and A2 and during his cross examination he stated that it was correct that there are two types of telephone connections i.e. private and official. Though, the above witnesses had not produced the complete details and the bill history of the above telephone numbers, but since the said documents which had been proved by them in their testimonies are the official documents, produced from official record, therefore the genuineness of the said documents cannot be doubted. In any case, they had no axe to grind against A1, since the documents had been produced from the official record, therefore their authenticity cannot be doubted. It appears from their testimonies that the telephone bearing No.3910397 earlier bearing no.2910397 appears to be the official telephone installed at the residence of A1, since it was opened on 19.11.84 in the name of Executive( Engineer ElectricI), MCD and then shifted to the house of A1 on 07.06.86, therefore the charges RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 of said telephone amounting to Rs.42,173/ must have been reimbursed by the employers of A1 and the same cannot be considered as his personal expenditure. But the other telephone number bearing no. 3971800 appears to have been booked by A1 on 25.07.1986 by depositing Rs.1000/ vide demand draft and the same appears to be his personal telephone number. Therefore, the expenses of Rs.59,589/ incurred by him with regard to said telephone connection during the check period should be taken as personal expenditure of A1. Accordingly, out of total amount of Rs.1,01,762/, only an amount of Rs.59,589/ can be taken as the expenditure of A1 under this head and the remaining amount has to be deleted.
4. Commission paid to property dealer for 4/10, Model Town Rs.5,000/
238. In this regard, prosecution has examined PW 13 Sh.Rajeev Verma. He has deposed that A1 had come to his office alongwith his wife for selling the property E4/10, Model Town and also one other plot in Rohini. The property in Model Town had been sold through him vide the documents Mark P9/A 1, A2 and A3 to Sh.Satnam Singh, his wife and his daughter.
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The Rohini plot was sold through him to his brother. In his cross examination by Ld.counsel for A1 and A2 he stated that A2 was the ostensible owner of property E4/10, Model Town. He stated that it was correct that the property had been sold to Satnam Singh, his wife and his daughter for total consideration of Rs.9,45,000/ which amount was given to A2. He also admitted that it was correct that the plot purchased by his brother Sanjeev was property No.175, Pocket17, BlockF, Sector8, Rohini and after negotiations, sale price of the plot in Rohini was reduced from Rs.2,60,000/ to Rs.2,50,000/. He also admitted that it was correct that no brokerage was charged by him in respect of property No.E4/10, Model Town as well as the plot in Rohini as the same was adjusted during negotiation of sale price of the Rohini plot. However, he was reexamined by Ld.PP for CBI after permission of the Court. In his reexamination he stated that it was correct that he had received brokerage of Rs.5000/ for sale of E 4/10, Model Town from A1 and he had not received any brokerage from Satnam Singh. He stated that Rs.5000/ received by him as brokerage from A1 was adjusted in the negotiated value of the Rohini plot.
In view of the above testimony of PW13 as a whole, it is apparent that the said amount of Rs.5000/ was adjusted in the negotiated value of the Rohini plot and no separate RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 commission was paid to PW13 by A1 for the sale of house No.E 4/10, Model Town. Therefore, the said amount of Rs.5000/ cannot be considered as the expenditure of A1 under this item head and has to be deleted.
5. Stamp duty in respect of 5/12, Roop Nagar, Delhi Rs.3,20,000/
239. In this regard, the prosecution has examined PW 20 Sh.Atul Kumar, who was posted as Sub Registrar District North, Kashmere Gate during the relevant time. He has proved the sale deed (D198) pertaining to the above property as Ex.PW16/1. Perusal of the said sale deed reveals that an amount of Rs.3,20,000/ was paid as stamp duty by A2. The prosecution has not proved that the said stamp duty had been paid by A1 by leading any evidence that the money for the payment of stamp duty was provided by A1 in view of judgment of Krishnanand Agnihotri (supra). In any case, as already discussed at great length during the discussions with regard to the asset head no.1 pertaining to property No.5/12, Roop Nagar, Delhi. Since A2 had been an income tax assessee and had been filing ITRs since the assessment year 19841985 which are collectively exhibited as Ex.PW54/D1 and D2 (colly.) showing that she had substantial sources of income from loans, sale of shares, capital gains, therefore she had the means to purchase the assets out of the said RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 income and the prosecution has miserably failed to prove that the money for the purchase of the abovesaid property was provided by A1. Since A2 was a separate income tax assessee and had been filing ITRs since the assessment year 19841985, therefore she had the means to buy the assets from her income. As already discussed above, the said income/asset/expenditure of A2 cannot be clubbed with that of A1. As a consequence, this amount of Rs.3,20,000/ was the expenditure which was incurred by A2 for paying the stamp duty for the registration of the sale deed Ex.PW16/1 out of her own means. Therefore, the said amount of Rs.3,20,000/ cannot be clubbed as the expenditure of A1 nor can be considered as the expenditure of A1, as it is only the expenditure of A2 and A2 would be liable for her own income/expenditure which has been duly explained by her in her income tax returns and duly assessed from time to time by the Revenue Authorities. Therefore, this amount of Rs.3,20,000/ has to be deleted from the expenditure head of A1.
6. Regularization charges for E4/10, Model Town Rs.50,000/
240. With regard to this item, prosecution has examined PW57 Sh.S.P.Ahluwalia, who has deposed that in the year 2001 he was posted as Office Incharge in Building Department, Civil RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 Line Zone, MCD, Delhi. After seeing D196, which is a letter dated 12.12.2001 Ex.PW57/1 he stated that the same bears signatures of then Ex.Engineer at point Mark X and he has also seen the photocopy of some entries of register being maintained in the office which are Mark P57/A. In his cross examination by Ld.counsel for A1 and A2 he stated that he has not brought any original record. He stated that it was correct that he does not have any personal knowledge about contents of Ex.PW57/1.
The said document proved by the said witness only shows that an amount of Rs.50,000/ was deposited with regard to the regularization of property bearing No.E4/10, Model Town in the name of A2 on 30.06.99. The basic document which could be the treasury / payment document vide which the said payment of Rs.50,000/ was deposited towards the regularization of the said house i.e. vide G8 No.472003 dated 30.06.99, has not been produced. In the absence of the same, prosecution has not been able to show that the payment of Rs.50,000/ was made by A1, which was incumbent upon the prosecution to prove in view of the judgment of Krishnanand Agnihotri (supra). The said amount of Rs.50,000/ cannot be considered as expenditure of A1 unles and until it was proved by the prosecution that the said amount of Rs.50,000/ towards the regularization charges of said house bearing No.E4/10, Model Town was provided by A1. The said fact RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 could have been crystal clear, if prosecution had produced the relevant G8 receipt No.472003 dated 30.06.99 which would have shown as to who was the person who had deposited the amount of Rs.50,000/. In the absence of the same, no presumption can be raised against A1 that the said payment was made by A1 or the money was provided by A1. In the absence of any positive evidence in this regard, Rs.50,000/ cannot be considered as expenditure of A1. The same has to be deleted from the expenditure head of A1 with regard to this item no.6.
7. Property tax paid in respect of 5/12, Roop Nagar, Delhi, E 4/10, Model Town and 106,107, Hauz Khas, Delhi Rs.2,73,910/
241. In this regard, prosecution has examined PW23 Sh.Dharam Singh, PW38 Sh.Gurbaksh Singh, PW46 Sh.Narender and PW56 Sh.S.K.Chugh to prove that the total payment of Rs.2,73,910 was paid by A2 as property tax in respect of the above properties.
With regard to the property 5/12, Roop Nagar, Delhi, prosecution has examined PW38 Sh.Gurbaksh Singh, who was posted in House Tax Department, Civil Line Zone, MCD, Delhi during the relevant period. After seeing the record D264 which is a letter dated 10.10.01, he has proved the same as Ex.PW38/1 RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 bearing signatures of Sh.S.C.Yadav, the then Assistant Assessor & Collector at point Mark X and after seeing the photocopies of five documents which are part of D261 collectively Mark P38/A, he stated that the same also bears the signatures of said Sh.S.C.Yadav and the same were prepared by him from the original records in MCD office. In his cross examination by Ld.counsel for A1 and A2, he after seeing the photocopy of receipt no.359072 dated 20.04.2000 stated that the receipt mentions the name of Sh.Anant Ram Manocha having made payment of Rs.17,107/ towards house tax in cash. Perusal of the said receipt shows that the property tax has been paid in respect of H.no.5/12, Roop Nagar, Delhi by one Anant Ram Manocha. Therefore, the prosecution has failed to prove that the money for the same was provided either by A1 or was deposited by A2. In any case, if it had been deposited by A 2, it would not have made any difference, as A2 had independent source of income as discussed in preceding paras, therefore she had the financial capacity to deposit the said amount. Therefore, the said amount of Rs.17,107/ cannot be considered as expenditure of A1.
With regard to house tax in respect of property bearing No.E4/10, Model Town, Delhi, the prosecution has examined PW23 Sh.Dharam Singh, who was posted as UDC in RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 House Tax Department, Civil Line Zone at the relevant time. He has proved the document D262 which is the statement in respect of property tax dues for property no.E4/10, Model Town, Delhi for the period 16.01.1987 to 09.03.2000 as Ex.PW23/1. The said statement bears his signatures at point Mark X and that of Sh.Virender Singh, then Assistant Assessor & Collector at point MarkY. He has deposed that an amount of Rs.3,219/ was paid in respect of the aforesaid property during the said period. Nothing has come out in the cross examination of this witness, which could show that the record proved by him was incorrect. As per the said statement Ex.PW23/1, an amount of Rs.210/ was deposited towards the house tax during the year 20002001, which would be beyond the check period. Therefore, the said amount of Rs.210/ has to be deducted from the amount of Rs.3,219/ which will be Rs.3009/. However, admittedly the said property was in the name of A2, who had purchased the said property from her own funds. Therefore, the house tax for the same must have been paid by her only, as no contrary evidence has been produced by the prosecution that the said amount of Rs.3009/ was either deposited by A1 or A1 had provided the money for the deposit of said house tax. In the absence of said proof, the amount of Rs.3009/ cannot be considered as the expenditure of A1 and same has to be deleted from expenditure head of A1.
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Now, adverting to another property bearing No.106,107, Aurbindo Place, Hauz Khas, Delhi, the prosecution has examined PW56 Sh.S.K.Chugh, who was posted as Assistant Assessor & Collector with MCD during the relevant period. He after seeing document (D263), has proved one letter dated 12.10.2001 as Ex.PW56/1 vide which he had forwarded some documents to the CBI. The details / statement pertaining to the details of arrears, payments made and dues of property tax in respect of above property . He also after seeing the document (D
257) already Ex.PW46/1 stated that the same bears his signatures and the document Mark P56/A is a photocopy and was prepared by then Dealing Clerk and also bears his signatures. Similarly, after seeing document (D261) he stated that the same also bears his signatures and details as required are contained in four sheets which are Ex.PW56/2 (14) which is prepared by the Dealing Clerk, whose handwriting and signatures he identified. In his cross examination by Ld.counsel for A1 and A2 he stated that he cannot say if the property no.106,107, Aurbindo Place, New Delhi stood in the name of Byford Leasing or as to who was the owner thereof. He also stated that from the records, he cannot say as to who had made payments of property tax. In his further cross examination he stated that it was correct that during the course of his examination by CBI officer he had stated after going through RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 the records that MCD had received total amount of Rs.2,53,584/ as property tax on 31.10.1999 as per main challan register dated 20.10.99 to 02.11.99 S.No.270 and GS Forms790050 and 790051. He further stated that he had no knowledge in this regard, he cannot say if the cheques of Rs.2,53,584/ were then dishonoured. In his further cross examination he admitted that it was correct that he has stated to the CBI officer that after receiving the said payment, MCD had received payment towards both the properties 106 and 107 on 31.03.2001 @ Rs.1,26,792/ per property i.e. Rs.2,53,584/ vide cheques but both cheques were subsequently dishonoured.
Perusal of the record i.e. G8 forms bearing No.790050 and 790051 reveals that an amount of Rs.1,26,792/ was deposited by way of cheques and the receipt was issued in the name of Managing Director, Byford Leasing Ltd. , which cheques were lateron dishonoured as per the record produced before the Court. Since the prosecution has failed to prove that the said payment was made by A2 from the money provided by A1 or that in fact A1 had deposited the said money on behalf of A2 in view of judgment Krishnanand Agnihotri (supra), therefore the said amount of Rs.2,53,584/ cannot be taken as expenditure of A1. From the overall discussions made above, the entire amount of Rs.2,73,910/ towards the property tax payments RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 in respect of above houses cannot be considered as the expenditure of A1. Therefore, this entire amount has to be deleted from the expenditure head of A1 qua this item.
8. Income tax paid by Smt.Maya, Sanjana and Abhishek for the assessment years 199899 and 19992000 Rs.8,61,375/
242. In this regard, prosecution as already discussed above has proved the ITRs filed by A2, Sanjana and Abhishek which are all collectively Ex.PW54/D1 and D2 (colly.). As already discussed at length above, A2 as well as Abhishek and Sanjana were having their own independent income from investments and from sale of shares, which were also duly accepted by the income tax authorities, therefore they had the financial means to pay their own income tax to the Revenue Authorities and PW54 Sh.Dinesh Garg had also proved during his examinationinchief the income tax file (D303/1) of Smt.Maya which contained the income tax return of Smt.Maya for financial year 19971998, 19981999 and 19992000 which is Ex.PW54/A (colly.) and the entire ITRs of Ms.Maya has been proved as Ex.PW54/D1 and D2(colly.). Similarly, he has also proved the file D299/1 which contains the personal Book of Accounts of Ms.Sanjana for preparing personal balance sheet for financial year 19981999 and 19992000 and the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 file is Ex.PW54/B (colly.). Similarly, he also stated after seeing the file no.D300/1 that the same contains the personal book of accounts of Abhishek for preparing personal balance sheet for financial year 19981999, 19992000 and 20002001and the file is Ex.PW54/F (colly.).
Perusal of the said files shows that there was substantial entries in the bank accounts of the above persons, which was duly reflected in the ITRs showing the profit as well as loss and details of the transactions. Therefore, in these circumstances it cannot be said that A2, Sanjana and Abhishek had no financial capacity to deposit the said amount of income tax which they had with the Revenue Authorities. In any case, it was incumbent upon the prosecution in view of the judgment of Krishnanand Agnihotri (supra) that the money which was paid as income tax by above persons was provided by A1, which was incumbent upon the prosecution to prove. In the absence of the same, this entire amount of Rs.8,61,375/ cannot be considered as the expenditure of A1 and has to be deleted from the expenditure head of A1 qua this item.
9. Charges paid to jeweller for getting evaluation report in 1986 Rs.300/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
243. With regard to this item, the prosecution has examined PW27 Sh.Mahesh Chand, who was doing gold jewellery business during the relevant time. He stated that since 1986 he was doing the said business at Chandni Chowk and used to sell new jewellery and also used to purchase old jewellery articles. He had brought the purchase voucher book containing voucher no.236 dated 29.12.86, copy of which is ex.PW27/A, as per which jewellery had been sold by and payment was made to Mrs.Maya (A2), w/o Ashok Kumar (A1). He stated that as he do not now remember, he cannot say to whom the cheque for payment had been handed over. In his cross examination he stated that the cheque No.050661 (Central Bank of India) had been issued in the name of Smt.Maya.
The testimony of said witness does not prove anything, rather it only proves that Smt.Maya (A2) had sold her jewellery on 29.12.86 for Rs.46648/ which was also duly reflected in her ITR for the assessment year 19861987 and the said jewellery has been duly reflected in her balance sheet, but the prosecution has failed to prove that any amount was given to jeweller PW27 or any other for valuation of old jewellery sold by her in the year 1986 amounting to Rs.300/, nor any evidence has been lead that any such amount was given to any jeweller on behalf of A2 by A1 for evaluation of old jewellery. In the absence RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 of the same, the said amount of Rs.300/ cannot be taken as the expenditure of A1 under this item.
10. LIC premium paid by A1 Rs.10,357/
244. With regard to this item, no evidence has been lead by prosecution. Though the prosecution has relied upon D26 to prove that an amount of Rs.10,357/ was paid by A1 towards the LIC premium. The said D26 has not been proved. No evidence has come to prove the same. In the absence of the same, said amount has not been proved to have been spent by A 1 for paying the LIC premium. Therefore, this amount of Rs.10,357/ cannot be taken as expenditure of A1.
11. Nonverifiable expenditure @ 33% of the net salary of A1 Rs.6,91,287/
245. There is no dispute regarding the said component in view of the circular of the prosecution Ex.PW93/D1, but it was argued by Ld. Defence counsel for A1 and A2 that there was some arithmetic error in calculating this amount. The said RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 argument appears to be correct, as the 1/3rd of the net salary of A 1, which has been shown at page no.4 of the chargesheet under income head at item no.1 as Rs.10,31,771.90P (figure rounded off to Rs.10,31,772/) if divided by 1/3, it would come to Rs.3,43,924/ and not Rs.6,91,287/. Therefore, the said non verifiable expenditure @ 33% of the net salary of A1 would be Rs.3,43,924/, which could be taken as expenditure of A1 under this item.
Therefore, the total expenditure of A1 from all the above heads would be the total of all the items mentioned above except those items which have been deleted from the item head of A1.
246. The balance sheet of Income / Asset / Expenditure of A1, after segregation / declubbing from A2 and his family members, works out as under: TABLE(A) I. AMOUNT(s) / APPORTIONED / DELETED FROM THE INCOME HEAD OF (A1) ASHOK KUMAR
a) Income from salary of Ashok Kumar As per discussion during the check period on this item Rs.10,54,084/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
b) Bank interest received on the accounts Amount of of Smt. Maya, Sanjana and Abhishek Rs.54,685/ DELETED vide discussion on this item.
c) PPF interest Amount of
Rs.1147/
DELETED
vide discussion on
this item.
d) Profit on sale of property E4/10, Amount of
Model Town, Delhi Rs.4,26,600/
DELETED vide
discussion on this
item.
e) Loan taken for purchase of car Rs.52,800/
as per discussion
on this item.
________________
TOTAL INCOME OF A1
Rs.11,06,884/
________________
TABLE(B)
I. AMOUNT(s) / APPORTIONED / DELETED FROM THE ASSET HEAD OF (A1) ASHOK KUMAR RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
a) Property No. 5/12, Roop Nagar, Delhi DELETED vide purchased on 17.04.2000 discussion on this item.
b) Property No. 106,107, Aurbindo place, DELETED
vide
Hauz Khas, New Delhi discussion
on this item.
c) Plot No. 175, Pocket 17, Block 4, Rs.88471/
to be Sector 8, Rohini Delhi purchased DELETED
under in 1982 this item,
rather an amount of
Rs.1,61,529/ will
go into the
income head of
A1 as per
discussion on
this item.
d) Household articles as per the An amount
of
inventory prepared on 21.09.2000
Rs.2,99,350/ has
in respect of D1, MCD Flat, to be taken
as
Bungalow Road, New Delhi asset
under this
item.
e) Investments in LIC, SCS, UTI, PPF Only an
RC No.52(A)/2000
CBI Vs Ashok Kumar & Ors. 232 of 232
100
amount
and ICICI Bonds of
Rs.10,631/ can be
taken as assets of
A1 under this
item as per
discussion.
The said amount of
Rs.10,631/ shall
also be
expenditure of A1
under expenditure
head.
f) Bank Balances in various accounts Only an
amount of
(as explained in table) Rs.1,000/
to be taken as
asset of A1
under this
item, as per
discussion on this
item.
g) Cash recovered during search An amount
of Rs.778/
has to be taken as
asset of A1
under this
item.
h) Cost of second hand car 118 NE An amount
of Rs.55,000/
has to be taken as
RC No.52(A)/2000
CBI Vs Ashok Kumar & Ors. 232 of 232
100
asset of A1
under this
item.
i) Investments in NSC by Ashok Kumar Amount of
Rs.15,000/ to be
deleted under this
item as per
discussion. Rather,
an amount of
Rs.13,515/shall go
into the income
head of A1.
________________
TOTAL ASSET(s) OF A1
Rs.3,66,759/
________________
TABLE(C)
I. AMOUNT(s) / APPORTIONED / DELETED FROM THE EXPENDITURE HEAD OF (A1) ASHOK KUMAR
a) Educational expenses towards five amount of children of accused Ashok Kumar Rs.1,36,614/can be taken as the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 expenditure of A1 under this item.
b) Electricity and water bills paid Amount of
in respect of 1E, MCD Flat, Rs.56,589/
Bungalow Road, Delhi DELETED
vide discussion
on this item.
c) Telephone bills in respect of Only an
amount of
telephone No. 3970397 and 3971800 Rs.59,589/
to be taken as
expenditure under
this item as per
discussion.
d) Commission paid to property dealer Amount of
for 4/10, Model TownRs.5,000/
DELETED.
e) Stamp duty in respect of 5/12, Roop An amount
of
Nagar, Delhi
Rs.3,20,000/
DELETED.
f) Regularization charges for E4/10, An amount
of
Model Town Rs.50,000/
to be DELETED.
g) Property tax paid in respect of 5/12, Amount of
RC No.52(A)/2000
CBI Vs Ashok Kumar & Ors. 232 of 232
100
Roop Nagar, Delhi, E4/10,
Rs.2,73,910/ to be
Model Town and 106, 107, DELETED.
Hauz Khas, Delhi.
h) Income Tax paid by Smt. Maya, Amount of
Sanjana and Abhishek for the
Rs.8,61,375/ to be
assessment years 199899 DELETED.
and 19992000
i) Charges paid to jeweller for getting Amount of
Rs.300/
evaluation report in 1986 to be
DELETED.
j) LIC premium paid by Sh. Ashok Kumar Amount of
Rs.10,357/ to be
DELETED.
k) Nonverfiable expenditure @33% Only an
amount of
of the net salary of Ashok Kumar
Rs.3,43,924/ to be
taken as
expenditure of A1.
________________
TOTAL EXPENDITURE OF A1 Rs.
5,40,127/
________________
RC No.52(A)/2000
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TABLE (D)
TO BE ADDED INTO THE INCOME / EXPENDITURE HEAD OF A1 VIDE DETAILED DISCUSSION WITH RESPECT TO HIS ASSET HEAD _____________________________________________________________________ INCOME EXPENDITURE _____________________________________________________
a) An amount of Rs.1,61,529/ a) An amount of as per discussion on item Rs.10,631/ as per no.3 of Asset head. discussion on item no.5 of Asset head.
b) An amount of Rs.13,515/ as
per discussion on item no.9
of Asset head.
_____________________________________________________ TOTAL Rs. 1,75,044/ TOTAL Rs.
10,631/ _____________________________________________________ TOTAL INCOME OF A1 AS PER TABLES A AND D TOTAL INCOME OF A1 = TABLE(A) + TABLE(D) = Rs.11,06,884/ + Rs.
RC No.52(A)/2000
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1,75,044/
= Rs.12,81,928/
TOTAL EXPENDITURE OF A1 AS PER TABLES C AND D TOTAL EXPENDITURE OF A1 = TABLE(C) + TABLE(D) = Rs.5,40,127/ + Rs.
10,631/ = Rs.5,50,758/
247. Therefore, the final balance sheet of the income, expenditure and assets of the A1, emerging after final analysis goes as under: FINAL COMPUTATION OF DISPROPORTIONATE ASSETS (In Rs.)
1. Net Assets of A1 after above discussion = 3,66,759/
2. Net Income in view of above discussion = 12,81,928/
3. Net expenditure of A1 in view of above discussion = 5,50,758/
4. Likely savings = Income - Expenditure = Rs.12,81,928/ Rs. 5,50,758/ = Rs.7,31,170/ RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
5. Disproportion = Assets Likely Savings = Rs.3,66,759/ Rs.7,31,170/ = Rs.3,64,411/ (negative) Therefore, there is no question of disproportionate assets of A1, as his net income from all source is much more than his assets. Rather there is a negative disproportion of Rs.3,64,411/ vizaviz his assets.
248. The other accused persons i.e. (A2) Smt.Maya Devi, (A3) Ajay Gupta and (A4) Subhash Gupta had been arraigned as accused in the present case in view of the judgment of Hon'ble Apex Court in P.Nallammal etc. Vs State rep. By Inspector of Police AIR 1999 SC 2556. As already discussed above in the preceding paras, the loan transaction of Rs.33 Lakhs and Rs.10 Lakhs extended by A3 and A4 have been held to be bonafide transaction(s), and with regard to A2, her assets cannot be clubbed with those of A1, as she had independent legitimate source(s) of income, consequently there cannot be any question of abetment i.e. of instigation or aiding A1 in amassing the disproportionate assets, as prosecution has miserably failed to prove that A1 had amassed disproportionate assets. Therefore, since prosecution has failed to prove substantive offence(s) under Section 13(1)(e) r/w Sec.13(2) of PC Act, as a corollary the RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100 question of abetment does not arise.
249. Generally evidence in any case or trial is weighed on the basis of probative force accorded to particular item of evidence, or finally to the entire mass of the evidence on the scale(s) of probability from 0 to 1. Zero denoting point of total disbelief, whereas 1 is the point of total certainty, as there is no other way to quantify the different items of evidence for reaching the conclusion. In the present case, the entire prosecution and defence evidence is based on mathematical calculation(s), which are certain based on exact equation(s) and figure(s). Therefore there is no question of quantifying the particular item of evidence or entire mass of prosecution or defence evidence on such scale(s), since mathematical precision/exactitude clearly proves or disproves the case one way or another. The mathematical equation employed to calculate the income vizaviz assets of the accused to find out his disproportionate assets, if any, clearly returns a huge negative() figure of disproportion in favour of accused (A1), which clearly disproves the case of prosecution.
250. Therefore, prosecution has failed to make out a case against Ashok Kumar (A1) for the offence(s) u/S 13(1)(e) r/w Sec.13(2) of PC Act, 1988, and against Maya Devi ( A2), Ajay Gupta (A3) and Subhash Gupta (A4) u/S 109 IPC r/w Sec.13(1) RC No.52(A)/2000 CBI Vs Ashok Kumar & Ors. 232 of 232 100
(e) r/w Sec.13(2) of PC Act, 1988. All the accused persons stand acquitted of the said charge(s). The bail bonds of all the accused persons already furnished under Section 437A Cr.P.C shall remain in force for a period of 6 months from today.
File be consigned to record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 15.11.2016 Special Judge,
CBI03 (PC Act)
Delhi/15.11.2016
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CBI Vs Ashok Kumar & Ors. 232 of 232