Delhi District Court
C.B.I. vs . 1. Sita Ram Arya on 12 April, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No.38/11
Unique Case ID No. 02401R0006211999
C.B.I. Vs. 1. SITA RAM ARYA
S/o Late Sh. Jagannath Ram
R/o Flat No. 167, Pocket B,
SFS DDA Flats, Mount Kailash,
East of Kailash, New Delhi - 65.
RC No. : 1/86/CBI/ACUVI/ND
u/Ss : 5(2) r/w 5(1) (e) of PC Act, 1947
Date of Institution : 23.03.1988
Received by transfer on : 12.10.2011
Arguments Concluded on : 07.04.2012
Date of Decision : 12.04.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. HR Dhamija, Ld. Counsel for accused Sita Ram Arya.
CBI Vs. SR Arya CC No. 38/11 Page 1 of 119
JUDGMENT
CHARGESHEET 1.0 CBI filed the chargesheet on 22/3/88 against Sita Ram Arya u/Ss 5(2) r/w 5(1)(e) of PC Act, 1947, a public servant alleging that while working as a Development Officer (Chemical) in Directorate General of Technical Development, Udyog Bhawan, New Delhi, acquired assets either in his own name or benami worth Rs. 2,52,920/ during the check period 1/1/81 to 23/1/86. The assets so acquired were found disproportionate to his known sources of income and accused could not give any satisfactory explanation of the same. On 21/12/96, CBI filed an application u/S 173 (8) Cr.P.C stating therein that during the course of arguments on charge, further investigations were made to ascertain the claim of income of Rs.50,123.55p by the accused and the investigating agency, after giving due benefit of doubt to the accused, has made computations for arriving at the correct amount of the disproportionate assets. The details of the assets in possession on 1/1/81, movable and immovable assets found in possession on 23/1/86, income during check period i.e., from 1/1/81 to 23/1/86 and the expenditure during check period 1/1/81 to 23/1/86 were filed by the CBI. For the purpose of clarity and convenience, it would be beneficial to reproduce the statements filed by the CBI in this regard:
CBI Vs. SR Arya CC No. 38/11 Page 2 of 119
ASSETS AT THE BEGINNING OF THE CHECK PERIOD Statement No. 1 S.No Description of the assets Actual Amount Amount actually after amendment before amendment as shown in as shown in chargesheet dtd chargesheet dtd.
21/12/96 (in Rs.) 22/3/88 (in Rs.)
1. Balance in Banks:
(i) S.B. A/c No. S1744 of 3,091.14
Sita Ram Arya with
Allahabad Bank, Parliament
Street, New Delhi. 6,860.32
(ii) S.B. A/c No. 15484 of SR 2,769.18
Arya with SBI, Nirman
Bhawan, New Delhi.
Total 5,860.32
2. Value of house hold effects 22,015.00 22,080.00
3. LIC Premium paid. 6,670.00 6,670.00
4. Amount paid to DDA for 1,200.00 1,200.00
registration of a flat in the
name of his wife Smt.
Chandra Arya.
5. Amount paid for registration 2,610.00 (+) 2,610.00
of one MIG Flat in Noida upto 7,500.00
31.12.80. 10,110.00
TOTAL ASSETS AS ON 45,855.32 38,420.32
1.1.1981
...............
CBI Vs. SR Arya CC No. 38/11 Page 3 of 119
Statement No.2
IMMOVABLE AND MOVABLE ASSETS FOUND IN POSSESSION AS ON 23.1.86 S. Description of the assets Actual Amount Amount actually No after amendment before amendment as as shown in shown in chargesheet chargesheet dtd dtd. 22/3/88 (in Rs.) 21/12/96 (in Rs.) MIG flat bearing No. 167 in I Pocket -B, SFS East of Kailash 1,80,532 1,80,532 New Delhi allotted to S.R. Arya by the DDA in 1981 II Flat no. C-633 in Sector -
XIX, Noida for Rs. 46,200/-
towards which Rs. 29,434/- 39,544.20 29,434.00 was paid during check period (in the name of S.R. Arya) III LIG Flat NO. 184-A, VI-VI, Rohini in the name of Smt. Chandra Arya for Rs. 48000/-
8,848.00 7,648.00
against which a sum of RS.
7648/- was paid during check
period.
_________
MOVABLE ASSETS.
BANK BALANCE
IV Allahabad Bank Parliament
Street, New Delhi in the name
12,784.96 12,784.96
of Sh. S.R. Arya and his wife
bearing A/C No. S-1744
V Allahabad Bank, Noida Branch
in the name of Smt. Chandra
10,909.90 10,909.90
Arya and Smt. Dulara Devi
(mother) bearing A/C No. 694
CBI Vs. SR Arya CC No. 38/11 Page 4 of 119
VI Punjab National Bank, Nehru
Place Branch, New Delhi in
the name of Sh. S.R. Arya and 500.00 500.00
his wife bearing SB A/c No.
5973
VII Canara Bank, Parliament
Street, New Delhi in the name
5,484.70 5,484.70
of Sh. S.R. Arya and his wife
bearing A/C no. 15529
VIII State Bank of India, Nirman
Bhawan Branch, New Delhi in
940.81 891.46
the name of Sh S.R. Arya SB
A/c no. 15484
IX Fixed Deposits in the name of 35,000.00
S.R. Arya & Chandra Arya 5,000.00 40,000.00
40,000.00
X National Saving Certificates. 5,800.00 5,800.00
XI Gold Ornaments including
76,813.00 76,981.12
cash of Rs. 1,512/-
XII Furniture & carpets etc. 13,350.00 3,100.00
XIII Maruti Car 86,900.00 86,900.00
XIV Radio, TV etc. 13,000.00 13,000.00
XV Electrical Gadgets 20,450.00 +
309.26 16,884.26
20,759.26
XVI Watches, Pen, Paintings 1,210.00 1,100.00
XVII Other assets including deposits 23,965.00+
20,382.00
for two telephones 2,020.00
(2 telephones)
25, 985.00
Total assets at the end of
check period i.e. as on 5,43,361.83 5,12,332.40
23.1.1986
_________________
CBI Vs. SR Arya CC No. 38/11 Page 5 of 119
Statement No. 3
TOTAL INCOME DURING THE CHECK PERIOD FROM 1.1.81 TO 23.1.86.
S. Description of the assests Actual Amount Amount actually
No after amendment as before amendment
shown in as shown in
chargesheet dtd chargesheet dtd.
21/12/96 (in Rs.) 22/3/88 (in Rs.)
Total income by way of
salary and allowances of the
I accused during the check,
period after all recoveries 77,775.40 75,614.30
calculated on the basis of the
salary statement furnished by
the department.
Rental income of flat No.
II C-633 in Noida @ Rs. 800/-
3,200.00 3,200.00
p.m. From Oct. 1985 to
January 1986.
GP Fund Advance taken by
III Sh. S.R. Arya from his 52,052.00 52,052.00
department on different dates.
IV House building advance of
63,000.00 63,000.00
Rs. 63000/-
V Loan Taken from Mother in
27,000.00 27,000.00
law Smt. Kalawati Devi
VI Loan taken from brother in
10,000.00 10,000.00
law Sh. U.K. Chaudhary
Loan taken from Technical Nil. 15,000.00
Development Thrift Society / (In the chargesheet a
VII Coop. Society DGTD and sum of Rs. 15,000/-
Technical Development Hire has been shown
Purchase Society. under this head,
which should not
have been shown as
the same had been
repaid within the
check period and as
CBI Vs. SR Arya CC No. 38/11 Page 6 of 119
such no income on
this count during the
check period )
VIII Sale of ornaments to M/s
Tribhuvan Das Bhimji Zaveri, 25,390.00
Janpath, New Delhi.at two 18,984.00 44,374.00
occasion for Rs. 25390/- and 44,374.00
for Rs. 18984/-
Loan from mother Smt. Dulara
IX Devi taken on 28.2.1985
60,000.00 60,000.00
towards purchase of Maruti
car by the accused.
X Premium on sale of two
3,402.00 3,402.00
scooters.
XI Interest from Deposits with
3,608.00 1,862.00
DDA / Hudco.
XII Deposits refunded by DDA /
3,500.00 3,500.00
HUDCO.
XIII Deposit refunded by m/s
13,584.00 13,250.00
Supreme Motors with interest.
XIV Interest accrued on SB account 3,800.17 Not shown in
during check period. (as claimed by charge-sheet
accused in written
arguments on
defence filed in the
Hon'ble Court)
XV Refund from UP Housing 4,059.00
Board. (as claimed by
accused in written Not shown in
arguments on charge-sheet
defence filed in the
Hon'ble Court)
XVI Income from accounts with
post offices in the name of
S.R.Arya and his family
members, as claimed by
accused S.R. Arya in written
arguments submitted by him in
the court of Spl. Judge, Delhi:
CBI Vs. SR Arya CC No. 38/11 Page 7 of 119
i) SB A/c 5872896 in the
name of Chandra Arya wife of
accused, with R.K. Puram
Sector -3 post office New
Delhi.
ii) SB A/c No. 6002031 in 20,451.60
the name of Monu, Youngest
son of the accused with
Nirman Bhawan post office
New Delhi.
12,433.80
iii) SB A/c No. 5537410 in
the name of Tony, son of the
accused with Udyog Bhawan
Post office, New Delhi.
12,493.75
iv) SB a/c no. 660427 in the
Not shown in
name of accused S.R. Arya
charge-sheet
with Udyog Bhawan, Post
office, New Delhi.
633.75
v) SB A/c No. 309514 in the
name of accused S.R. Arya
with Udyog Bhawan Post
Office, New Delhi
3465.00
vi) SB A/c No. 660429 in the (Actual withdrawal name of Smt. Chandra Arya, during check period) wife of the accused with Udyog Bhawan, Post office New Delhi. 638.30 50,116.20 Total Income during check 4,19,470.70 3,72,254.30 period ____________ CBI Vs. SR Arya CC No. 38/11 Page 8 of 119 Statement No. 4 TOTAL EXPENDITURE DURING THE CHECK PERIOD FROM 1.1.81 TO 23.1.86 S. Description of the assets Actual Amount after Amount actually No amendment as shown before amendment in chargesheet dtd as shown in 21/12/96 (in Rs.) chargesheet dtd.
22/3/88 (in Rs.) I House Rent @ Rs. 287/-
p.m. from January 81 to July 2,009.00 2,009.00
81.
II Water & Electricity Charges
i. Water Charges. 1,791.00
3,932.21
ii. Electricity Charges. 2,141.21
3,932.21
III Expenditure on Children
12,000.00 12,000.00
education.
IV Maintenance of Vehicle 6,666.00 6,666.00
Insurance Premium
V LIC premium paid 4,600.00
Premium paid to Peerless 7,750.00 14,275.00
General Fin. & Investment 1,925.00
Co. Ltd. 14,275.00
VI Medical expenses 300.00 300.00
VII Locker Rent of locker No.
602 of S.R. Arya + Chandra
50.00 500.00
Arya with PNB Nehru
Place, New Delhi.
Cost of addition to the
VIII ancestral House in village
40,000.00 40,000.00
Sarauni, Purab Patti, PS
Kerakat.
Cost of addition to flat no.
IX 167, SFS Pkt. B, East of 36,500.00 35,580.00
Kailash, New Delhi
X Other Household expenses 36,000.00 @ Rs.
36,000.00
including kitchen expenses. 600.00 p.m
CBI Vs. SR Arya CC No. 38/11 Page 9 of 119
Expenses for purchase of
495.00 Not shown in
XI 1. Exhaust Fan
3,190.00 charge-sheet
2. Geyser & Bath Tub
Interest paid to cooperative
Not shown in
XII Thrift & Credit Society Ltd, 572.00
charge-sheet
Udyog Bhawan New Delhi.
Repayments made to
XIII cooperative Thrift & Credit Not shown in
3,000.00
Society Ltd. New Delhi charge-sheet
during check period.
Payment made to U.K.
Chaudhary, brother in law
XIV vide draft for Rs. 5000/- got Not shown in
5,000.00
made from Union Bank of charge-sheet
India, Noida by S.R. Arya
on 12.6.1982
Total Expenditure during
1,63,990.06 1,51,262.21
check period
___________
Statement No.5
CALCULATION OF DISPROPORTIONATE ASSETS AFTER TAKING INTO ACCOUNT THE CORRECTIONS IN THE CHARGE SHEET. A. Total Income during the check perod i.e Rs. 4,19,470.77 during 1.1.81 to 23.1.86 B. Expenditure during the check period i.e. Rs. 1,63,990.06 during 1.1.81 to 21.1.86 C Likely Savings during the check period Rs. 2,55,480.71 i.e. during 1.1.81 to 23.1.86 (A-B) D Assets at the end of check period i.e. as Rs. 5,43,361.83 on 23.1.86 E Assets in the begnning of check period Rs. 45,855.32 i.e. as on 1.1.1981.
F Assets acquired during Check period i.e. Rs. 4,97,506.51 1.1.81 to 23.1.86 (D-E) G Disproportionate Assets (F-C) Rs. 2,42,025.80 CBI Vs. SR Arya CC No. 38/11 Page 10 of 119 The amended chargesheet was taken on record and being the prima facie case u/S 5(2) r/w 5(1)(e) PC Act, 1947, charges were ordered to be framed vide detailed order dtd. 5/9/97.
CHARGE 2.0 The charges were framed on 30/9/97 to which the accused pleaded not guilty and claimed trial. The charges were framed u/S 13(2) r/w 13(1) (e) of PC Act, 1988. It is pertinent to mention here that the case RC 1/86 was registered on 22/1/86 and the check period is from 1/1/81 to 23/1/86. The PC Act, 1988 had come into effect from 9/9/1988 (12/9/1988 Gazette Publication). Therefore, in order to remove this technical error, fresh charges were framed u/Ss 5(2) r/w 5(1) of PC Act, 1947 on 21/9/06. 3.0 It is pertinent to mention here that accused had sought discharge on account of invalid sanction. Initially, his application was dismissed vide detailed order dtd. 10/5/06. However, pursuant to the order of the Hon'ble High Court, the application was again considered on merits and Hon'ble Ms. Justice Pratibha Rani, the then Ld. Special Judge vide detailed order dt. 6/5/05 rejected the contention of the accused against the sanction. It was inter alia held as under: "In the present case, I find that the sanction granted for prosecution of accused SR Arya accorded by competent authority i.e., President of India after due CBI Vs. SR Arya CC No. 38/11 Page 11 of 119 application of mind and it does not suffer from any kind of infirmity and it is legal and valid, hence the application dtd. 2.3.98 moved by the accused is hereby dismissed."
The accused again challenged this order before Hon'ble High Court vide Crl. Misc. Main No. 5727 of 2005. This petition was disposed of by Hon'ble High Court vide order dtd. 27/7/05. The perusal of the above said order indicates that Ld. Counsel for the accused after arguing the matter for sometime sought permission to withdraw the petition with liberty to raise all the points before the Trial Court at the final hearing. This prayer of the petitioner was allowed and the petition was dismissed as withdrawn. PROSECUTION WITNESSES 4.0 Prosecution examined 45 witnesses in support of its case. 4.1 PW1 Ms. Gayatri Ramchandran proved the sanction for prosecution granted against the accused as Ex.PW1/A. 4.2 PW2 Sh. Ashok Kumar Sharma proved the seizure of document regarding purchase of FDR for Rs.35,000/ favouring accused SR Arya and his wife Chandra Arya, payable to either or survivor for 36 months from State Bank of India, Noida vide seizure memo Ex.PW2/A. The photocopy of the FDR/Spl. Term Deposit receipt dtd. 24/8/85 in the name of CBI Vs. SR Arya CC No. 38/11 Page 12 of 119 SR Arya and Mrs Chandra Arya was proved as Ex.PW2/B. The photocopy of STDR deposit receipt has been proved as Ex.PW2/C. 4.3 PW3 Sh. RK Dhir, Sr. Manager, PNB proved the letter dtd. 24/7/03 as Ex.PW3/A. This witness was in respect of locker No. 602 alloted by PNB Nehru Place Branch on 12/8/85 in the name of SR Arya and his wife Chandra Arya. The witness also proved the letter dtd. 29/7/87 as Ex.PW3/B. Vide this letter it was proved that a sum of Rs.100/ was paid as locker rent in two installments of Rs.50/ each. It is worth to mention here that second instalment of Rs.50/ was paid on 29/8/86 i.e., after the check period. The account opening form has been proved as Ex.PW3/C. The cash deposit receipt of Rs.5,000/ dtd. 10/8/85 has been proved as Ex.PW3/D. The photocopy of account opening form for the FDR of Rs.5,000/ was proved as Ex.PW3/E. The photocopy of FDR has also been proved by the witness as Ex.PW3/F. 4.4 PW4 Sh. Karanjit Singh was a witness in respect of the sale of scooter. However, the testimony of this witness cannot be read being incomplete.
4.5 PW5 Sh. Virender Pal Singh had bought a two wheeler scooter bearing No. DBJ33120 in Oct., 1985 from Smt. Chandra Arya for CBI Vs. SR Arya CC No. 38/11 Page 13 of 119 Rs.12,600/ on premium. CBI has shown as an income of Rs. 3,402/ on the premium on sale of two scooters.
4.6 PW6 Sh. Pancham Ram Prajapati was working as Lekhpal at Tehsil Kirakat, Distt. Jonpur. The witness stated that Sh. Dayaram Arya had submitted an application dtd. 15/2/86 Ex.PW6/A for issuing the income certificate of Smt. Dulara Devi. On this application, Sh. Pancham had made an endorsement at point A stating therein that the monthly income of Smt. Dulara Devi is Rs. 2,000/ per month. However, the witness stated that he had issued the certificate under pressure of Dayaram and 23 other persons, who had threatened him and forcibly got him written about the income of Dulara Devi. Sh. Pancham stated that he had no document with him as the village was under consolidation at that time. Sh.Pancham stated to have made a complaint to Tehsildar on 11/4/86. The photocopy of this complaint is Ex.PW6/B. In the cross examination, witness admitted that application Ex.PW6/A was endorsed to Kanoongo by Tehsildar for comments. It is pertinent to mention here that the endorsement was made by the witness on the application regarding monthly income of Smt. Dulara Devi on 15/2/86. The witness admitted that his office was at a distance of 100ft from the office of Tehsildar and Naib Tehsildar and there used to be regular communication amongst them. Sh. Pancham denied the suggestion that he had made the complaint dtd. 11/4/86 under pressure of CBI. During the cross CBI Vs. SR Arya CC No. 38/11 Page 14 of 119 examination, the witness stated that he had issued income certificate Ex.PW6/DA also under pressure.
4.7 PW7 Sh. Ram Lakhan @ Lekhraj did not support the case of the prosecution and was declared hostile. Sh. Ram Lakhan stated that he was earning about Rs. 40,000/ per annum during the period 198586. Sh. Ram Lakhan knew Smt. Dulara Devi being of the same village. The witness stated that one CBI officer had interrogated him in the year 1986 to whom he (witness) had stated that annual agriculture income of Smt. Dulara Devi was about Rs. 60,000 - 70,000/ per annum. During cross examination by CBI, the witness denied the suggestion that Smt. Dulara Devi was having an annual agriculture income of Rs. 10,000 - 12,000/ per annum. He also denied to have told CBI that accused got constructed 34 rooms on his first floor of his house in his village somewhere in 1985. The witness also stated that Smt. Dulara Devi had her own tubewell for irrigation purpose. In the cross examination on behalf of accused, the witness stated that Sh. Jagannath Ram, father of the accused was Headmaster of Junior High School and he died during service. The witness also stated that Smt. Dulara Devi was getting monthly pension in the sum of Rs.15001600 per annum. Sh. Ram Lakhan stated that apart from teaching, Sh. Jagannath was doing his own agricultural work and money lending business. Sh. Jagannath had constructed his house in the year 1965 consisting of 6 rooms on ground floor and 6 rooms on the first floor. He stated that no new construction was done CBI Vs. SR Arya CC No. 38/11 Page 15 of 119 in the said house. The witness stated that Sh Jagannath was having 89 bighas of agricultural land and that land was still in possession of Smt. Dulara Devi. It also came in the testimony of this witness that Smt. Dulara Devi was having gardens of Guava trees, mango trees, bamboo trees and there was seasom trees also. The witness stated that the income of Smt. Dulara Devi from these gardens must be around Rs.60,000 - 70,000/ per annum. Sh. Ram Lakhan stated that whenever Smt. Dulara Devi would visit Delhi, she brings from her house dalhan, tilhan, wheat, rice, etc., for the use of sons and grandsons. Smt. Dulara Devi was stated to be not financially dependent on any of her sons. The property was stated to be still undivided. The witness also stated that Sh. Dayaram Arya was doing tuition work before he joined as teacher.
4.8 PW8 Sh. Gagan Bihari, Section Supervisor, MTNL proved the carbon copy of registration demand note dtd. 10/11/81 as Ex.PW8/A and receipt / acknowledgment slip dtd. 10/11/81 issued in favour of Smt. Chandra Arya as Ex.PW8/B. However, Smt. Chandra Arya had deposited Rs. 1,000/ for installation of telephone connections. She had lateron moved an application dtd. 15/7/85 Ex.PW8/C for change of address for installation of telephone. The witness also proved the demand note dtd. 20/4/85 as Ex.PW8/D whereby sum of Rs.1,000/ was deposited by Sh. SR Arya in favour of GM Telephones, New Delhi.
CBI Vs. SR Arya CC No. 38/11 Page 16 of 119 4.9 PW9 Sh. CD Peula placed on record the moving or immovable property return filed by accused SR Arya and proved the same as Ex.PW9/W. The witness proved the immovable property return of the year 1977, 1978, 1979 as Ex.PW9/A to Ex.PW9/C. He stated that the accused had declared that he did not have any immovable property till that time in his name.
On 5/2/80, accused informed the office vide letter Ex.PW9/D regarding deposit of Rs.3,500/ and Rs. 2,613/ towards registration fees, with DDA and Noida, respectively. Accused further informed vide letter dtd. 23/3/81 Ex.PW9/E regarding deposit of Rs.7,500/ with Noida as allotment money for allotment of the flat. In the property return of the year 1980, Ex.PW9/F, accused disclosed to have deposited Rs.10,100/ and Rs.7,500/ for allotment of the flat. Vide communication Ex.PW9/G the accused informed to have taken possession of Flat No. C633, Sector 19, Noida. The immovable property return for the year 1981 was proved as Ex.PW9/H. The accused also informed allotment of flat under category II, by DDA vide letter Ex.PW9/J. The accused informed regarding sale of jewellery worth Rs. 25,390/ Ex.PW9/K. The department vide letter dtd. 29/10/82 Ex.PW9/L asked for the details regarding acquisition of the property. The accused submitted reply dtd. 13/11/82 Ex.PW9/M. The accused informed regarding second installment of deposit money, deposited with DDA amounting to Rs. 31,650/ vide letter dtd. 23/4/80 Ex.PW9/N. The immovable property return for the year 1982 has been proved as Ex.PW9/O. The accused informed CBI Vs. SR Arya CC No. 38/11 Page 17 of 119 regarding deposit of Rs.10,000/ for purchase of a Maruti Car vide letter dtd. 25/6/83 Ex.PW9/P. The intimation regarding purchase of Maruti Car was intimated vide letter Ex.PW9/S. The intimation regarding deposit of Rs.40,750/ on 16/9/83 and deposit of Rs.32,600/ on 10/2/84 were informed by the accused to the department vide letter dtd. 12/10/83 and 28/2/84 and the same has been proved as Ex.PW9/Q and Ex.PW9/R. Sh. KC Ganjwal sent a memorandum dtd. 7/8/85 calling the information from accused raising of loan and payment thereof. The witness stated that there is no information submitted by the accused regarding purchase of two wheeler scooter and sale thereof nor regarding FDR dtd. 24/8/85. In the cross examination, the witness admitted that as per conduct rules, transaction of upto Rs.2000/ was not required to be given. He also admitted that Rule 18 of Conduct Rules Ex.PW9/DA were applicable at that time also. The witness has also admitted that document Ex.PW9/DB and DC were sent by their office and in compliance thereof, the accused sent proforma Ex.PW9/DD.
4.10 PW10 Lalita Prasad examined by the prosecution spoke more for the accused than the accused. He was declared hostile on being stated that the financial position of Late Sh. Jagannath was very sound. The witness also stated that he had agricultural income of upto Rs.40,00045,000/ from 67 bighas of land. The land in his village is very fertile and all sorts of crops were produced therein. During cross examination by CBI, the witness stated CBI Vs. SR Arya CC No. 38/11 Page 18 of 119 that the agricultural land of the accused is about 10 bighas. He also stated that the ancestral house in the village was got repaired by the mother and younger brother of SR Arya. During the cross examination on behalf of the defence, the witness stated that Late Sh. Jagannath was doing work of money lender apart from being teacher and agriculturist. He stated that in the year 2000, Smt. Dulara Devi was getting pension around Rs.12001300 p.m. It also came in the testimony of this witness that Sh. Jagannath was having orchards consisting of 1516 mango trees, about 80 guava trees, 1012 mahauva trees, 1215 seasam trees and around 3000 bamboo trees. The witness stated that the only income of Jagannath from agriculture and fruits was about Rs.65,000/ per annum. He also stated that Dayaram was also imparting tuitions prior to his joining as a teacher and was earning about Rs. 1500 to Rs.1600/ p.m. The witness also went on to state that Smt. Dulara Devi used to take dalhan, tilhan, wheat, onion, garlic, ghee etc for her sons during her visit to Delhi. The witness also stated that property is still undivided. Smt. Dulara Devi is not dependent on her sons. 4.11. PW11 Sh. Hari Ram UCO Bank, SC Branch proved the seizure memo dtd. 26/8/86 as Ex.PW11/A vide which the cash receipt voucher dtd. 22/11/84 for an amount of Rs.31,550/ for making the pay order in favour of DDA has been proved. The deposit cash receipt voucher Ex.PW11/B bears the signature of Smt. Chandra Arya. CBI Vs. SR Arya CC No. 38/11 Page 19 of 119 4.12. PW12 Sh. Surinder Mohan Sharma proved the seizure memo of cash receipt voucher dtd. 5/12/84. As per cash receipt voucher Ex.PW12/B, Smt. Chandra Arya deposited a sum of Rs.32,500/ for preparation of demand draft of Rs.32,532.50p in favour of DDA. 4.13. PW13 Sh. RC Kalra had joined the CBI team on 23/1/86 during search of Flat No.167, Pocket B, DDA (SFS), East of Kailash, New Delhi i.e., the residence of accused SR Arya. The search cum observation memo has been proved as Ex.PW13/A. On the same day, the search of locker No. 602, at Punjab National Bank was also conducted. The search memo of the locker has been proved as Ex.PW13/B. On 24/1/86, the witness had also accompanied the CBI team to Allahabad bank, Parliament street, New Delhi. Accused collected some pass book from the Allahabad Bank and handed over the same to CBI which was seized vide memo Ex.PW13/C. During the cross examination, the witness also admitted that a general power of attorney executed by Smt. Dulara Devi in favour of Smt. Chandra Arya and SR Arya (Ex.PW13/DA), radio / television licence No. 3951 in the name of Sh. UK Chaudhary (Ex.PW13/DB), purchase memo No.5540 dtd 8/3/85 in respect of sale of jewellery by Smt. Dulara Devi (Ex.PW13/DC), purchase memo dtd. 8/3/85 in respect of jewellery sold by Smt. Dulara Devi (Ex.PW13/DD), cash memo dtd. 21/5/83 in the name of Smt. Dulara Devi (Ex.PW13/DE), the cash memo dtd. 16/1/85 (Ex.PW13/DF), cash memo dtd. CBI Vs. SR Arya CC No. 38/11 Page 20 of 119 17/1/85 (Ex.PW13/DG), cash memo dtd. 16/1/85 (Ex.PW13/DH) and cash memo dtd. 2/8/84 (Ex.PW13/DJ) were also recovered during the search. The witness also admitted that an invoice of Panasonic National VCR (Ex.PW13/DK) was also recovered. It is pertinent to mention here that regarding this VCR, proceedings were conducted by the customs authorities and vide detailed order dtd. 11/12/87, it was held that this VCR was a case of genuine gift from a grandfather to the grand daughter and the possession was treated as bonafide. Ex.PW13/DL is an admitted document of deposit of an amount with Noida authorities. The witness also admitted that rent agreement executed by accused SR Arya in favour of Deep Chand Tiwari in respect of C633, Sector 19, Noida, Ghaziabad was also recovered during the search. The production memo in respect of the document executed by SR Arya in respect of the two wheeler scooters sold by him was proved by him as Ex.PW13/DP. It is pertinent to mention here that this aspect has already been covered by PW5 Virender Pal Singh. The witness stated in the cross examination that jeweler was called in the CBI office and there the jewellery was weighed. It is pertinent to mention here that on search cum observation memo, the signature of the accused were appearing only at the last page. The witness also stated that the value mentioned in the memo was ascertained by the CBI officials from accused SR ARya. The witness admitted that he had gone to CBI office number of times to join the search. CBI Vs. SR Arya CC No. 38/11 Page 21 of 119 4.14 PW14 Sh. JL Patadia, an Accountant with M/s Tribhuvan Das Bhimji Zaveri proved the cheque issued to Smt. Chandra Arya against the jewellery sold to Tribhuvan Das Bhimji Zaveri on 16/2/82. the photocopy of the purchase memo has been proved as Ex.PW14/B. In the cross examination, the witness also proved the purchase memo in respect of the jewellery sold by Smt. Dulara Devi to Tribhuvan Das Bhimji Zaveri as Ex.PW13/DC and DD. He also proved the cash memo of the jewellery sold to Smt. Dulara Devi as Ex.PW13/DE to DJ. The witness also proved the memos Ex.PW14/DA1 to Ex.PW14/DA4 vide which the jewelery were sold by Smt. Chandra Arya and SR Arya.
4.15 PW15 Sh. Dayanand Sharma is a witness in respect of the plot No. F90/24, Okhla Industrial Area, Phase I, auctioned in favour of Smt. Dulara Devi. It is pertinent to mention here that CBI has not shown the plot No. 90/24 in the list of immovable properties acquired / possessed by the accused.
4.16 PW16 Sh. Het Ram, Supervisor, Post Office proved the photocopy of NSC of Rs.1800/ issued to accused SR Arya on 19/12/85 under registration No. 72132. The photocopy of the same are Ex.PW16/A1 to A5. The photocopy identification slip in respect of this has been proved as Ex.PW16/B. CBI Vs. SR Arya CC No. 38/11 Page 22 of 119 4.17 PW17 Sh. Devender Khetrapal proved the receipt / application for issuance of customer's license as Ex.PW17/A in the name of Sh. UK Chaudhary C633, Sec. 19, Noida, Ghaziabad distt. PW17 Devender stated on oath that Weston Citron Colour TV was sold to Sh. UK Chaudhary for Rs.11,780/ vide cash memo 17204.
4.18 PW18 Sh. Madan Mohan Ahluwalia, an Accountant with M/s Supreme Motors Ltd., proved that Chandra Arya w/o SR Arya had deposited a sum of Rs.6,000/ by way of demand draft on 4/12/80 towards advance against booking of one Tata truck. Smt. Chandra Arya also deposited another draft dtd. 12/12/80 of Rs.6,000/ towards booking of one Tata bus chasis. Smt. Chandra Arya was refunded the sum of Rs. 6,780/ on 16/1/82 and was further refunded a sum of Rs.6,000/ on 16/7/82. During this period Smt. Chandra Arya had also earned an interest of Rs.1350/. The original receipts of the money deposited by Smt. Chandra Arya on 6/12/80 and 12/12/80 has been proved as Ex.PW18/C1 and C2.
4.19 PW19 Sh. Ramesh Mehta, Partner M/s Alpha Radios situated at 241, Palika Bazar Connaught Place, New Delhi proved the cash memo dtd/ 5/6/85 for a sum of Rs. 1,870/ regarding the sale of stereo radio cassette recorder. The cash memo has been proved as Ex.PW19/A. The witness also CBI Vs. SR Arya CC No. 38/11 Page 23 of 119 identified the writing of the sales girl Ms. Neena Chopra. It was admitted by the witness in the cross examination that the bill was initially issued in the name of Dayaram Arya and later on Smt. Chandra Arya has been written after cutting off Dayaram Arya. The witness was not able to tell that who had made the payment against this bill.
4.20 PW20 Sh. BN Dixit proved the copy of statement of account of Ram Nandan Ram of SB A/c No. 15302 for the period 16/9/83 to 30/9/86 as Ex.PW20/A. 4.21 PW21 Sh. Hari Kishan Rastogi proved the certificate given by Assistant Engineer (Electrical) Distribution Division, Noida regarding the detail of electricity charges for the period Dec.1984 to August 1986 in respect of H. No. C633, Sec.19, Noida, Distt. Ghaziabad as Ex.PW21/B. this certificate was issued vide memo Ex.PW21/A. 4.22 PW22 Sh. Hrishi Kant Mamgain an Administrative Officer with M/s Peerless General Finance and Investment Company Ltd., proved the Welfare Endowment Certificate under Social welfare scheme in favour of SR ARya as Ex.PW22/A. The date of commencement was 27/2/82 and the endowment sum was Rs.25000/. The premium was Rs.484.38p quarterly and the date of maturity was 27/2/92. The witness also proved another CBI Vs. SR Arya CC No. 38/11 Page 24 of 119 welfare endowment certificate in the name of accused SR Arya and his son Ravi Shankar Arya for the sum of Rs. 5,000/. This policy commenced on 28/3/81 with a yearly premium of Rs.385/. The date of maturity of this policy was also 28/3/91.
4.23 PW23 Shy. Sudhan Chandra Chandola, Joint Director, Panchayati Raj, UP deposed regarding some transaction by Sh. Ram Nandan Ram with Sh. Jagannath Ram or his family and proved his letter Ex.PW23/A. 4.24 PW24 Sh. Rajiv Kaushik proved the cash memo (D21) allegedly recovered during the search of the accused on sale of exhaust fan on 20/7/85 for a sum of Rs. 495/ as Ex.PW24/A. It is pertinent to mention here that there was no name on the bill.
4.25 PW25 Sh. E. Madhavan Nair also proved the purchase memo regarding jewellery sold by Smt. Dulara Devi as Ex.PW13/DC and Ex.PW13/DD and also proved the cash memo regarding the jewellery sold to Smt. Dulara Devi as Ex.PW13/DE to DJ.
4.26 PW26 Sh. Deep Chand Tiwari had taken on rent H. No. C633, Sec.19, Noida from the accused vide rent agreement Ex.PW13/DO. CBI Vs. SR Arya CC No. 38/11 Page 25 of 119 4.27 PW27 Sh. DP Gupta, Assistant Engineer, PWD is a material witness regarding item No. VIII 'cost of addition to the ancestral house at Village Sarauni, Purab Patti, Distt. Jaunpur, UP' and item No. IX 'cost of addition to the house of accused at 167, DDA Flats, East of Kailash'. Sh. DP Gupta was on deputation with CBI and submitted valuation report in respect of H. No.167, DDA Flats, East of Kailash and proved the same as Ex.PW27/B. The valuation report in respect of the house at village Sarauni, Purab Patti, Distt. Jaunpur, UP is Ex.PW27/C. The detailed report has been proved as Ex.PW27/E. In the cross examination, Sh. DP Gupta admitted that he did not meet the Pradhan / Mukhiya / Sarpanch of the village nor did he meet any Revenue Officer. He also did not get the house identified by any independent witness. The house was identified by the IO only. The witness did not ask any person in the village or persons present on the spot as to when the house on the first floor was constructed. The report was given on the basis of price index for the city of Varanasi as per norms set by DGW, CPWD. However, the manual was not produced before the Court. The witness admitted in the cross examination that he did not enquire from any of the neighbour of the accused or any mason as to when the first floor was constructed. He relied upon the information of the IO that the construction was raised in 198586. It is pertinent to mention here that the witness himself has mentioned in the report that if more accurate valuation is required, the case may be referred to local unit of CPWD. The witness admitted that he CBI Vs. SR Arya CC No. 38/11 Page 26 of 119 had not referred to site plan in his report. It is pertinent to mention here that the witness has only given the approximate cost based upon Delhi Plinth Area and upon cost index of Varanasi instead of particular village. The witness was also not able to recall that what was the rate in 1985 for the building material i.e., cement, bricks, steel as well as labour and mason. The witness stated that he has mentioned the total construction cost on the basis of construction per square meter on the first floor. The witness admitted that the book regarding cost index of plinth area rates of Delhi and Varanasi has not been filed alongwith the report. It was admitted by the witness during cross examination that he was not given the bills of purchase of building material, cost of labour, mason etc., regarding the house of accused in Village Saroni by the IO. He stated that if all the bills of the house were made available to him, the evaluation would have been more accurate. In respect of addition in East of Kailash flat, the witness stated that he was informed by the IO about the addition of one room and cupboard in the house of the accused. He was not shown any document by the IO nor any bill of purchase of any material by the accused were produced. The witness made the calculation on the basis of plinth area of the additions made by the accused in his house. The witness stated that there was addition of only one room and cupboards. The type of the existing construction was also not mentioned in the report. It is pertinent to mention here that though the witness prepared the site plan of the additions made by the accused in his house but he did not annex with the report nor was the same available with CBI Vs. SR Arya CC No. 38/11 Page 27 of 119 the witness. The witness admittedly did not give the description of the flooring in the report nor was he able to recall the footings in the house. In a specific question, witness was not able to recall if the accused had informed him at the spot at the time of inspection that only two temporary walls on the terrace of the ground floor or that two other walls were already existing on the flat of the accused with the help of TIROM with stone slabs. The witness was also not able to tell that how he arrived at the figure on 312 which is taken as a cost index. The detailed sheet prepared by the witness was not filed alongwith the report. It is worth mentioning that the witness admitted in the cross examination that he had mentioned the value of additions at Rs.36,500/ as quiet approximate. The witness denied the suggestion that the cost of addition was not more than Rs. 5,0006000/ nor was he able to tell that what would have been the cost of construction of two walls already existing on the terrace with Tiron and stone slabs. 4.28 PW28 Sh. OP Vashisht another independent witness who had joined the CBI at the time of searches conducted at the place of accused on 23/1/86. He stated that two cash memos (D160 and D162) Ex.PW28/A & B were recovered. The locker No. 602, was also operated in the presence of Sh. OP Vashisht. He stated that five blank sheets - one bearing signature of Kalawati Devi and 04 bearing thumb impressions of Smt. Dulara Devi were recovered. The locker was also found containing one small box containing jewellery consisting of 7 gold ornaments as mentioned in observation memo CBI Vs. SR Arya CC No. 38/11 Page 28 of 119 Ex.PW8/C were recovered. The blank sheets Ex.PW28/D1 to D5 were seized. The observation memo regarding jewellery recovered from the locker Ex.PW28/C was proved. It is pertinent to mention here that in the observation memo it was mentioned that all the ornaments were of 22ct gold and the value was assessed according to present market rate dtd. 23/1/86. As per the observation memo, the total jewellery was 370.950 gms and the total value was Rs.75,301. It is also worth mentioning here that in the locker, passbook of A/c No. 694, SB A/c No. 5973, FDR of Rs.35,000/ dtd. 24/8/85, multi benefit FDR of Rs.5,000/ dtd. 10/8/85 and four NSC's of Rs. 1,000/ each issued on 3/1/85 in the name of SR Arya were recovered. It is also pertinent to mention here that as per search list Ex.PW13/B, the jewellery was weighed in the bank itself. In the cross examination, PW28 OP Vashisht stated that he cannot say that who had written the observation memo Ex.PW13/A. He stated that it might have been prepared by DSP Sundriyal and while he (witness) was sitting in the room, these papers were prepared and placed before him for signature. The witness stated that he did not count the rooms in the premises of the accused nor was he able to say which articles were lying in which room. The witness was also not able to recall that how the value of articles were assessed by the CBI officers. Sh. OP Vashisht stated that weighing of jewellery was done in his presence at the shop of Mehra Sons Jewellers. He was not able to tell whether the jewellery was old or new one. It is pertinent to mention here that the witness stated voluntarily that he had met with an accident two months ago and since CBI Vs. SR Arya CC No. 38/11 Page 29 of 119 then he is having faded memory of this case. During further cross examination, the witness was not able to recall most of the things. 4.29 PW29 Sh. S.M. Sundaram proved the entries dtd. 21/9/84, 26/9/84, 29/10/84, 19/11/84, 15/5/85 and 25/7/85 in the joint SB A/c No. 1552 of SR Arya and Chandra Arya. The certified copy of statement of account has been proved as Ex.PW29/B. The payin slips of these accounts have also been placed on record as Ex.PW29/C1 to C7. 4.30 PW30 Sh. CL Jain, Honorary Secretary of Thrift and Credit Society, Udyog Bhawan proved his letter dtd. 14/10/86 as Ex.PW30/A . Vide this letter, the information with regard to loan and payment by the accused was furnished. The loan account of the accused Ex.PW30/B and Ex.PW30/C have also been proved. As per Ex.PW30/B a loan of Rs.5,000/ was advanced on July6 1980and a loan of Rs.5,000/ was advanced in Nov., 1981. In respect of the earlier loan, the repayment had been made upto April 1981 and in respect of the loan in Nov., 1981, the repayment had been made upto July 1983. The accused had deposited the share money of Rs.5,000/ at the time of membership. The witness also admitted that the society used to give dividend accrued on the share money as cash and interest as cash somewhere around Diwali and also used to give gifts in the form of utensils at the time of Diwarli. However, the witness was not able to tell that the CBI Vs. SR Arya CC No. 38/11 Page 30 of 119 accused was given gift worh Rs. 5,000/ during the years from 198085. 4.31 PW31 Sh. RK Kapur, proved the statement of account of SB A/c No. 694 in the name of Smt. Chandra Arya and Dulara Devi as Ex.PW31/B. 4.32 PW32 Sh. AP Verma produced salary detail of SR Arya from 22/12/76 to January 1986 and the same was proved as Ex.PW32/A. In the cross examination, the witness stated that he had given information as per record. I have perused the chart Ex.PW32/A and as per the chart, the segregation of the salary of the accused is as follows:
Salary Details Year Basic DP CCA HRA ADA I.R. Total Jan.81 to 1,920 486 110.40 276 640.40 19.90 3,352.80 Feb.81 Mar.81 to 11,400 2,916 684 1,710 5,496 - 22,305 Feb.82 March.82 12,960 4,257 900 2,160.30 6,808.50 - 27,126.70 to Feb.83 March.83 13,750 4,440 900 1,924.20 7,700 630 29,344.20 to Feb.84 March.84 14,350 4,440 900 1,924.20 10,350 840 32,804.20 to Feb.85 March.85 13,700 4,070 825 1,763.85 10,950 2,140 33,448.85 to Jan.86 Total 68,080 20,609 4,319.40 9,758.55 41,944.90 3,629.90 1,48,381.75 CBI Vs. SR Arya CC No. 38/11 Page 31 of 119 Deductions from Salary Year Income CGHS CGEGIS GPF GPF House Building Tax Advance Adv.
Jan.81 to - 8 10 900 - Feb.81 Mar.81 to - 48 210 3,309 3336 Feb.82 March.82 - 4 960 3,866.25 3336 to Feb.83 March.83 557 0 960 4,800 8460 to Feb.84 March.84 628 0 960 8,250 8460 to Feb.85 March.85 769 0 880 6,550 8415 to Jan.86 Total 1,954 60 3,980 27,675.25 32,007 5,070 4.33 PW33 Sh. Vinod Kumar Jain proved the cash memo of Rs.
3,550/ dtd. 15/10/85 as Ex.PW33/A issued to Umakant Chaudhary in token of sale of one Crown Cassette Delux Black & White TV. 4.34 PW34 Sh. Deepak Gupta proved a cash memo of Rs. 3,190/ dtd. 8/7/85 in the name of SR Arya. This cash memo is in receipt of one Geyser and another item which is not legible. The witness was not able to say that the name of SR Arya has been written at the later stage. 4.35 PW35 Sh. SP Chadha, proved the letter Ex.PW35/A dtd.
28/4/86. As per the letter Ex.PW35/A, Sh. SR Arya had brought a life insurance policy which commenced on 18/12/73. LIC had received a total CBI Vs. SR Arya CC No. 38/11 Page 32 of 119 sum of Rs. 11,270/ towards 49 quarterly premium due from Dec., 1973 to Dec. 1985 @ Rs. 230/ each.
4.36 PW36 Sh. Hansraj Pathak was examined by the prosecution only to prove specimen handwriting taken by the prosecution of Dayaram Arya on the sheets Ex.PW36/A1 to A8. However, during cross examination by the defence, the witness deposed regarding agriculture income of the mother of the accused. He also stated regarding the land holdings and the orchards and the ancestral house of the accused. PW36 Sh.Hansraj Pathak stated that he had attended the marriage of SR Arya in the year 1974. The witness stated that father in law of accused was Daroga. Various gold jewellery and furniture were given by father in law of the accused to his daughter in the marriage. The witness went on to state that accused was also gifted one gold chain or 23 gold ring besides Rs.20,000/ in cash. The witness was reexamined by the prosecution wherein he had stated that he had not seen any revenue record.
4.37 PW37 Sh. Chander Prakash Khatri proved the seizure memo Ex.P18 (admitted document) whereby a demand draft dtd. 12/6/82 of Rs. 5,000/ was issued in favour of Sh. UK Chaudhary. Another document i.e., debit voucher of Rs.10,000/ dtd. 2/6/85 and another application dtd. 2/6/83 CBI Vs. SR Arya CC No. 38/11 Page 33 of 119 by Smt. Kalawati for bank draft of Rs.10,000/ issued in favour of Sh. SR Arya were also seized.
4.38 PW38 Sh. Prithviraj Singh proved the Khasra Khatoni of Village Sarauni, Purab Patti, Pargna and Tehsil Kerakat, Distt. Jaunpur as Ex.PW38/PY. In the cross examination, the witness stated that he has nothing to do personally and officially in the preparation of this khasra khatoni. The witness admitted in the cross examination by the defence that the bamboo clamps were being claimed by Smt. Dulara Devi and Smt. Gomti Devi but Plot No. 1213 was found to be in possession of Gomti Devi. 4.39 PW39 Sh. Hari Mohan Agarwal proved the letter dtd. 7/1/87 as Ex.PW39/A. Vide this letter it was proved that a sum of Rs.1155/ was charged for the H. No. C633, Sec.19, Noida from SR Arya. 4.40 PW40 Sh. Shiv Charan proved the copy of National Saving Certificate of Rs.1000/ dtd. 30/1/85 as Ex.PW40/A to D. The photocopy of identification slips has been proved as Ex.PW40/E & F. 4.41 PW41 Sh. Rajender Kumar Mahajan proved letter dtd. 28.4.86 as Ex.PW41/A and a voucher dtd. 12/6/82 for issue of a DD in CBI Vs. SR Arya CC No. 38/11 Page 34 of 119 favour of Sh. UK Chaudhary as Ex.PW41/B. This aspect has already been dealth with in respect of item No. 14 of the expenditure. 4.42 PW42 Sh. Moti Singh proved the letter Ex.PW42/A and the statement of account of joint SB account in the name of SR Arya and Smt. Chandra Arya No. S1744 at Allahabad Bank, Parliament Street, New Delhi1. The account was opened in Oct., 1979. As on 23/1/86, the balance in this account was Rs.12,784.96. The cross examination was done on the point that this was a joint account with a condition of being operated by either of the survivor and the money belongs to Smt. Chandra Arya. The witness was not able to produce the account opening form and specimen signature card being not traceable.
4.43 PW43 Sh. DS Rawat, Assistant Accountant, Cambridge School proved the communication dtd. 31/1/96 in respect of fee paid by Master Ravi Shankar Arya and Master Sidharth Shankar Arya during the check period. The witness duly proved the entries in the cash book regarding payment made to Cambridge School in favour of Master Ravi Shankar Arya and Sidharth Shankar Arya. CBI has shown Rs. 12,000/ as expenditure towards children education during the check period. The defence is that this fee was paid by the mother of the accused.
CBI Vs. SR Arya CC No. 38/11 Page 35 of 119 4.44 Sh. PB Sundriyal appeared as PW44 and formally proved the investigation conducted by him. RC No. 1/86 lodged on 22/1/86 has been proved as Ex.PW44/A. Sh. PB Sundriyal conducted the house search of the accused and also bank locker No. 602 at Nehru Place was searched. Search list Ex.PW13/A and observation memo Ex.PW28/C was prepared. The search list of locker has been proved as Ex.PW13/B. The pay order of Union Bank of India dtd. 12/6/86 in favour of Sh. UK Chaudhary Ex.PW44/B was seized by seizure memo Ex.P18. Sh. PB Sundriyal proved the income certificate of Smt. Dulara Devi duly issued by Revenue Authorities showing income of Smt. Dulara Devi as Rs. 24,000/ per annum as Ex.PW44/D. The revenue record of the land in the name of the Late Sh. Jagannath Ram Ex.PW44/F was seized vide memo Ex.PW44/E. Sh. PB Sundriyal also wrote a letter to Consolidation Officer Ex.PW44/G regarding the land holding of Sh. Jagannath Ram and his wife Smt. Dulara Devi. Ex.PW44/K, Ex.PW44/K1 and Ex.PW44/K2 are the documents regarding the booking of vehicle with Maruti Udyog Ltd. by Smt. Dulara Devi. Ex.PW44/L is the debit voucher dtd. 20/3/85 for Rs. 46,359/. This amount was transferred to A/c No. 694/. It is pertinent to mention here that the last balance in this account has been shown as an asset of the accused. The inspection report regarding verification of the fruit plants / trees claimed by Smt. Dulara Devi was conducted. However, it is strange that only the photocopy has been placed and same has not been proved. Only the seizure memo that too of some other document has been proved as Ex.PW44/M. CBI Vs. SR Arya CC No. 38/11 Page 36 of 119 CBI has pleaded that Smt. Chandra Arya had booked a Bajaj scooter and earned a premium out of it and this income has been shown as Rs. 3,402/ in item No. 10 of total income during the check period. The booking form has been proved as Ex.PW44/N1. The receipt of payment dtd. 17/2/85 has been proved as Ex.PW44/N2. The intimation regarding allotment of scooter has been proved as Ex.PW44/N3. The invoice regarding the same has been proved as Ex.PW44/N4. The signature attested form is Ex.PW44/N5. Accused had taken loan from Credit and Thrift Society Technical and Industrial Development Higher Purchase Cooperative Society Ltd. Vide communication Ex.PW44/P, Honorary Secretary of the society informed that the loan of Rs.10,000/ was advanced to Sh. SR Arya in the month of Sept., 1985 and the same was returned in October 1985. The application for loan as Ex.P1 and copy of indemnity bond as Ex.P2.
Accused SR Arya had a gas connection from Noida Gas Agency. The consumer card is Ex.P5 and the same was seized vide seizure memo Ex.PW44/P3 alongwith index Ex.P4. Ex.PW44/P6 is the seizure memo regarding seizure of the document relating to purchase of Crown TV by Sh. UK Chaudhary. The cash memo dtd. 14/5/85 regarding service of vehicle No. DBA 2536 has been proved as Ex.PW44/P7.
Ex.PW44/P8, Ex.PW44/P9 and Ex.PW44/P10 are the document regarding gas connection at Delhi. Ex.PW44/P11 is the LIC policy in the name of Smt. Dulara Devi purchased in the year 1973. Ex.PW44/P12 is the document regarding payment to DESU dtd. 10/7/85 in the sum of Rs. 775/. CBI Vs. SR Arya CC No. 38/11 Page 37 of 119 This intimation has been shown as electricity charges in the expenditure during the check period. Ex.PW44/P13, Ex.PW44/P14 and Ex.PW44/P15 are the documents regarding the vehicle booked by Smt. Dulara Devi with Ganga Automobiles. Sh. PB Sundriyal stated that on completion of investigation, he found accused in position of disproportionate assets to the tune of Rs.2,52,920/. In the cross examination, the defence put the search list Ex.PW44/D2 regarding search conducted at the ancestral house on 8/11/86. As per search list, nothing incriminating was found and nothing was taken into possession.
IO also admitted to have received letter Ex.PW44/D3 written by Smt. Gomti Devi to SP CBI. In this letter Smt. Gomati Devi has specifically stated that on 17/12/86, CBI officials had approached her and recorded her statement regarding bamboos on plot No. 1213. Smt. Gomti Devi stated in this communication that she was not aware that what statement was recorded by CBI officials and by this communication, she wanted to reconfirm that the bamboos on plot No. 1213 belonged to Smt. Dulara Devi. IO admitted to have received the photocopy of ration card of accused. It is pertinent to mention here that in the said ration card, name of Smt. Dulara Devi duly appears. IO admitted that in pursuance to the notice issued by him to Smt. Dulara Devi u/S 160 Cr.PC, Smt. Dulara Devi had sent a detailed written communication dtd. 3/10/86 Ex.PW44/D6. IO also admitted to have received letter Ex.PW44/D9 from Dayaram on 9/4/06. In this letter Sh. Dayaram had specifically stated that they have a joint family and in the entire family there CBI Vs. SR Arya CC No. 38/11 Page 38 of 119 was only one locker No. 602 at Punjab National Bank. Sh. Dayaram stated that he had kept the jewellery of his wife in the said locker. IO stated to have sent reply which is Ex.PW44/D10 showing that the matter is under investigation. Sh. Rajaram also wrote a letter Ex.PW44/D11 duly received on 7/4/86 wherein he also stated that he had also kept the jewellery of his wife in the locker. The reply to this letter was also sent by IO on 20/6/86 which is Ex.PW44/D12. Smt. Dulara Devi had also sent a letter Ex.PW44/D3 received on 9/4/86. She also stated that she had kept her jewellery and other documents in the bank locker. This was also duly replied by the IO. IO sent a letter to Tehsildar, Kerakat Tehsil, Distt. Jaunpur, UP on 23/4/86 Ex.PW44/D30 and a reminder Ex.PW44/D31 seeking information.
In the cross examination, IO admitted that he did not take any action against Sh. Pancham for allegedly issuing a false certificate. IO stated that Smt. Dulara Devi had 15 bighas of land. The attention of the IO was specifically drawn during cross examination, regarding difference of value regarding Singer machine and Godrej Fridge in his own documents. It is pertinent to mention here that IO admitted to have received Ex.P44. Ex.P44 is the communication sent on behalf of Tehsildar. In the said communication, the annual income of Smt. Dulara Devi has been shown as Rs. 33,397.60p.
During the cross examination, IO admitted that besides oral evidence he does not have any other evidence to establish that accused spent Rs.40,000/ for making addition to his ancestral house. IO was not able to CBI Vs. SR Arya CC No. 38/11 Page 39 of 119 recall further that why he did not refer the report of PW27 to CTE in CVC. IO denied the suggestion that the kitchen expenses were Rs. 6,000/ during the said period as most of the eatables used to be supplied by the ancestral house.
IO was not able to recall that how he had taken the figure of Rs. 6,666/ for maintenance of vehicle. In respect of medical charges, IO was not able to explain that how he has calculated Rs. 300/ as medical expenses. It was an admitted fact that accused was member of CGHS. IO admitted that there is not document to prove the expenditure of Rs. 300/ on medical.
IO admitted that there was no new construction on the first floor of the ancestral house and there was addition and alterations. IO admitted that he did not refer the matter to CTE in CVC despite the advice of PW27. IO admitted that he did not give benefit of 18% margin to the accused for getting the construction himself. IO denied the suggestion that he intentionally did not take into account the items of income including the alleged loan of Rs. 53,632/ disclosed by the accused during investigation and mentioned in the property return file.
Interestingly, IO stated during his cross examination that the mother of accused was not having any independent income.
In respect of the jewellery found in the locker, IO was not able to recall if he was informed by members of family of the accused including mother, brother and sister in law of accused that the ornaments were kept by them in the locker of accused from security point of view. IO also did not CBI Vs. SR Arya CC No. 38/11 Page 40 of 119 investigate about the jewellery of other family members nor was he able to recall whether other members of the family of the accused were having any locker in the bank.
IO denied the suggestion that he was informed by the accused that he had spent Rs. 4,450/ for the furniture and rest was received by him as a gift at the time of his marriage. IO was cross examined at length regarding the valuation of jewellery, furniture, electrical gadgets and most of the time, IO was evasive and failed to give specific reply. IO was also cross examined at length regarding the date of acquisition mentioned in the observation memo. During cross examination, the contradictions in the price of the documents were specifically pointed out to the IO. IO admitted during the cross examination that he does not have any supporting evidence to show that the cost of electrical gadgets is Rs. 16,884.26 or the cost price of household goods was Rs.18,382/. IO denied the suggestion that accused disclosed the cost price of electrical gadgets as Rs.7,000/ and cost of household goods was Rs. 1,165/. IO was also cross examined on the point of sanction. IO denied the suggestion that accused had taken the loan of Rs. 5,000/ in first week of June 1982 from Sh. UK Chaudhary and the same was repaid by bank demand draft dtd. 12/6/82.
4.45 PW45 Sh. Anil Kumar was assigned the investigation for some clarification. He conducted the further investigation and filed an application dtd. 21/12/96 alongwith additional documents and list of CBI Vs. SR Arya CC No. 38/11 Page 41 of 119 additional witnesses. The statement of assets and expenditure and computation of disproportionate assets were also revised after taking into account the correction in the chargesheet. During the cross examination, IO specifically stated that further sanction for prosecution of the accused was not required as the sanction had already been granted and there was only some minor corrections in the figure of the chargesheet. PW45 Anil Kumar admitted that he did not examine the property return (D114) Ex.PW9/DD, Ex.P37 furnished by accused to his office. Sh. Anil Kumar admitted that he did not carry out detailed investigation regarding statement of income, assets and liabilities furnished by the accused to his department. The case was assigned to him while it was at the stage of arguments on charge and the accused had claimed some further income. It is pertinent to mention here that IO admitted that he had added cost of geyser and bath tub in the expenditure incurred by the accused during the check period. IO admitted that he had not conducted any investigation in respect of the exhaust fan, geyser and bathtub. IO has also admitted that he had shown Rs. 572.85 towards interest paid to cooperative society and Rs. 3,000/ of repayment made to Cooperative thrift and credit society and Rs. 5,000/ payment made to UK Chaudhary, brother in law of the accused under the heading of expenditure. These items were not shown in the earlier chargesheet. He stated that he included these amounts as these amounts were inadvertently left in the earlier chargesheet. PW45 Anil Kumar had also revised the figure of 29,434/ to 39,544.20 on account of Flat No. C633, Sector 19, Noida and CBI Vs. SR Arya CC No. 38/11 Page 42 of 119 also revised Rs. 7,648/ to Rs. 8,848/ towards LIG Flat No. 184A, Sector 6, Rohini in the name of Smt. Chandra Arya. Sh. Anil Kumar stated that he had corrected the same as there was some calculation errors.
IO also admitted that he has shown figure of Rs. 13,350/ towards furniture and carpet only instead of Rs.3,100/ shown by earlier IO. HE also admitted that he had never visited the house of accused. PW45 Anil Kumar admitted that he had shown Rs. 20,759/ in place of Rs. 16,884.26 on account of electrical gadgets and enhanced the sum of Rs. 1100/ to Rs. 1200/ on account of cost of watch, pen and paintings as well as enhanced Rs. 25,985/ in place of Rs. 20,382/ on account of other assets. PW45 admitted that he had never visited the house of the accused nor did he conduct any investigation /physical verification of the articles. PW45 denied the suggestion that he malafidely enhanced the value of total assets from Rs. 5,12,332.40 to Rs.5,43,361.83 without any basis. PW45 also denied the suggestion that he enhanced the expenditure from Rs. 1,51,262.21 to Rs. 1,63,990.06p and did not taken into account the income of Rs. 54,032/ earned by the accused during the check period.
STATEMENT OF ACCUSED 5.0 In his statement u/S 313 Cr.PC, accused SR Arya denied all the allegations and submitted that he has been implicated falsely. The statement was made in consonance with the defence taken by the accused during the cross examination. Accused stated that he was not intentionally CBI Vs. SR Arya CC No. 38/11 Page 43 of 119 given the benefit of the loan taken by him from his relatives. In respect of the cash receipt voucher dtd. 22.11.84 for an amount of Rs.31550/ accused stated that the same was got prepared by his mother Smt. Dulara Devi with her own money for depositing with DDA for purchase of Industrial Plot in her name in Okhla New Delhi in Bid / Auction done by DDA and similar was the answer in respect of the cash receipt voucher dtd. 5/12/84 for Rs. 32,500/. The accused stated that the observation memo was prepared wrongly by IO. The value, year of purchase and mode of acquisition etc. of such articles were given by him to his Deptt. vide D114/Ex.PW9/DD/Ex.P37.
In respect of the booking made by Smt Chandra Arya with M/s Supreme Motors, accused stated that the same were done by his wife out of her own income. The accused stated that the radio cassette recorder for Rs. 1,870/ was gifted by his brother Dayaram to his wife Chandra Arya. The accused vehemently challenged the evaluation report Ex.PW27/C and PW27/D. In respect of the jewellery found in locker No. 602, accused stated that out of 370gms only 6 gms belonged to his wife and all other jewellery about 365 gms belonged to all other members of HUF. The accused stated that he has been taking this stand since beginning.
In respect of the deposit made in account No. 15529, the accused stated that all the transactions were legal. CBI intentionally did not produce the withdrawal slips / cheques with ulterior motives. Accused stated CBI Vs. SR Arya CC No. 38/11 Page 44 of 119 that his complete salary has not been shown. Sh. SR Arya stated that IO was biased against him and he deliberately took arbitrarily much higher amounts of his expenditure and assets items during check period without any supporting evidence. Accused has stated that he had satisfactorily explained to IO with supporting evidence.
DEFENCE WITNESSES 5.1 Accused also examined 06 defence witnesses.
5.2 DW1 Sh. BP Singh proved the valuation report in respect of the addition / alteration at Flat No. 167, East of Kailash. He stated that as per his valuation report the total expenditure of Rs. 8,227/. 5.3 DW2 Sh. OS Yadav produced the SB A/c of Smt. Chandra Arya for the period 23/3/71 to 11/9/81 and proved the relevant extract of the same as Ex.DW2/A. 5.4 DW3 Sh. Rajaram Arya, brother of the accused deposed on oath that he gave a loan of Rs. 2000/ in April 1983, another loan of Rs. 2,500/ in September 1983 and thereafter, a loan of Rs. 1084/ in February 1984 and lastly a sum of Rs. 1632/ in August 1985. DW3 stated that he gave a total loan of Rs.7,132/ to the accused without interest.
DW3 Rajaram also stated that he gave Rs. 10,000/ to his mother Smt. Dulara Devi in the year 1985 for raising construction. The CBI Vs. SR Arya CC No. 38/11 Page 45 of 119 witness stated that they all had been living in a joint family since beginning and even at present they are living as a joint family. Sh. Rajaram, stated that Sh. SR Arya being the eldest brother, jewellery and cash used to be in his custody. The witness stated that jewellery of his wife 151 gms. was also kept in the locker of Sh. SR Arya at Punjab National Bank, Nehru Place, New Delhi. The witness specifically stated that he did not have any locker in the bank nor his brother Daya Ram Arya had any locker. The witness stated that that his brother SR Arya had furnished a statement of movable property (Investment & Cost) belonging to the other members of the family but either in the name of SR Arya himself or his wife Smt. Chandra Arya Ex.DW3/A. The accused had also submitted a certificate Ex.DW3/B. duly signed by him (witness) dated 29.03.86 regarding loan of Rs.7,132/ in his office. The witness stated that this loan had been repaid by SR Arya in the year 1995. In the cross examination, the witness admitted that no document was executed at the time of advancing of loan.
5.5 DW4 Sh. Uma Kant Chaudhary, brother in law of the accused deposed that he joined Union Bank of India in December 1977 as Clerk cum Cashier. The father of Sh. Uma Kant Chaudhary i.e., father in law of accused retired in the year 1982 from Varanasi as Police Inspector and he had around 7 bigha of land in his own name. The land was very fertile and the family had agriculture income. Sh. Uma Kant Chaudhary stated that they had mango orchard in around 3 bigha of land and fishery pond of around 3 bigha CBI Vs. SR Arya CC No. 38/11 Page 46 of 119 in the village. The witness stated that his sister Chandra Arya was married to accused SR Arya in the year 1974. At the time of marriage, his father Sh. CR Chaudhary and other relatives gave several gifts to accused Sitaram Arya and his wife Chandra Arya. The witness tendered the list running into 11 pages. He also stated that his father had given cash of Rs.20,000/ in "Tilak Ceremony" before marriage to the accused and at the time of marriage, jewellery items costing around Rs.60,000/ were given to Smt. Chandra Arya. The witness stated that after marriage, they kept on giving jewellery items and other gifts to SR Arya and Chandra Arya.
Sh. UK Chaudhary stated that on 23/1/86, at the time of raid, he was present as he had come to watch the Republic Day parade. He told the CBI officials that the household items including furniture had been given by his father and other relatives to SR Arya and to his wife Chandra Arya at the time of marriage in the year 1974, but, CBI officials did not take note of it and noted the exaggerated value of the articles lying in the house. The witness stated that he had bought a colour TV of Weston Company for repair. Sh. UK Chaudhary stated that in June 1982, he had advanced a loan of Rs.5,000/ to SR Arya which was refunded by him through demand draft dtd 12/6/82. In the cross examination, the witness admitted that he has not brought any document regarding agricultural income. 5.6 DW5 Sh. Dayaram Arya, another brother of the accused stated that he is presently working as Principal in a school in Distt. Jaunpur, UP, CBI Vs. SR Arya CC No. 38/11 Page 47 of 119 after starting his career as Primary Teacher in year 1985. Sh. Dayaram stated that they had agricultural land of 15 bighas. Besides this, one Smt. Gomati Devi had mortgaged land around 10 biswa with his father in the year 1975 and the mortgage was redeemed only in the year 2010. Therefore, they had agricultural income from this mortgaged land also. Sh. Dayaram stated that his father was a JBT Teacher and he remained in service till March 1982. He died on 30.03.82 that is on the last day of his service and his mother Smt. Dulara Devi is receiving the family pension. Sh. Dayaram stated that they have a joint family and he looks after the land and farming in the village. The witness stated that in the year 1979 he had advanced a loan of Rs.1500/ to his brother SR Arya and further advanced a loan of Rs.4,000/ to his brother Sh. SR Arya for a locker in PNB Nehru Place. The witness also stated that he had helped his mother in the year 1985 and paid a sum of Rs. 20,000/ for raising construction on industrial plot at Okhla. He further stated that he used to have crop of wheat, rice, mustard oil and pulses in the farming at village and they used to bring it to Delhi and give it to SR Arya and Raja Ram Arya for their family consumption and household use. Sh. Dayaram Arya stated that in the locker, two earrings of his wife and a gold chain, bangles and earrings of his mother were kept. Sh. Raja Ram had also kept a "Chandra Haar" for safety purposes in the locker. However, CBI took away the entire articles. He specifically stated that in the entire family, only Sh. SR Arya and Smt. Chandra Arya had one locker in which everything was used to be kept. The witness also proved the income certificate CBI Vs. SR Arya CC No. 38/11 Page 48 of 119 Ex.PW44/D and specifically stated that the complaint lodged by Sh. Prajapati is false and frivolous. In respect of the construction of the house, the witness stated that the house was constructed by his father in the year 196465 and the repair and maintenance were carried out by him and his mother Smt. Dulara Devi out of their own resources. The witness stated that he had gifted a radio set to his bhabi Smt. Chandra Arya. He stated that his mother Smt. Dulara Devi is presently 82 years of age and has multiple ailments and is totally bedridden. In the cross examination, the witness stated that he had given written information to CBI regarding loan given to his brother SR Arya.
5.7 Smt. Chandra Arya appeared as DW6. She stated that at the time of marriage, her parents and relatives had given gifts as mentioned in the list Ex.PW9/DD, which was submitted by the accused in his office. Even after the marriage, her parents and relatives kept on giving gifts and cash to her and her husband on various occasions. Her motherinlaw and fatherin law also used to give gifts and cloths to her and her children from time to time. Smt. Chandra Arya stated that her father was Sub Inspector in UP police and had a agricultural land. She stated that she worked with National Television Training Centre, Munirka as counter girl at a monthly salary of Rs. 450/pm from the year 1976 to 1980. She proved the the salary certificate dated 27.09.79 issued by Sh. GR Gupta, Proprietor / Director as Ex.DW6/A. The witness stated that her employer Sh. GR Gupta has since CBI Vs. SR Arya CC No. 38/11 Page 49 of 119 died. Smt Chandra Arya stated that she used to keep this money in Post office and part of the same at home. In the year 1980, she had booked a telephone connection in her own name out of her own income and had also booked Bus and Truck chassis in her own name. The witness stated that money belonged to her being the Stridhan. She had also booked a DDA LIG flat and deposited a sum of Rs.7,848/ out of her own income. Smt. Chandra Arya stated that she had bought a two wheeler scooter in the year 1980 out of her own income and lateron sold the same. Smt. Chandra Arya stated that he mother in law had accumulated some money out of agricultural income and she offered her husband to invest that money in some immovable property. Pursuant to that, an industrial plot was purchased in Okhla and for the construction of this house, a sum of Rs. 35,000/ was given by the members of the family. However, since the construction could not be carried out, this money was converted into FDR in her name and in the name of her husband. Similarly, another FDR of Rs. 5,000/ was made in their name. The witness stated that Rs.4,000/ was contributed by her brotherinlaw Daya Ram Arya and Rs. 1,000/ was contributed by her out of her stridhan. The witness stated that CBI officials made inventory on their own without taking any consultation. In respect of jewellery found in the locker, the witness stated that only one of the ring belonged to her. She stated that she had already sold the jewellery to make payment of SFS Flat at Mt. Kailash. The witness stated that after the marriage, her mother in law used to live with her only and she used to go to the village only at the time of agricultural work. CBI Vs. SR Arya CC No. 38/11 Page 50 of 119 Her mother in law used to pay the rent of the house and the entire educational expenses of the children. In respect of addition to the house at Mt. Kailash, the witness stated that there was a total expenditure of around Rs.6,000/. In the cross examination, the witness denied the suggestion that Dulara Devi had no income.
5.8 DW7 Sh. Jagdish Aneja, Sales Executive with Mehrasons Jewellers and had a long experience in the valuation of jewellery, stated that as compared to 1986, the gold price in the year 197274 was quiet less. ARGUMENTS 6.0 Sh. DK Singh, Ld. PP for CBI has argued at length that prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld.PP submitted that the present case was initiated on the basis of source information and the check period was fixed from 1/1/81 to 23/1/86. The prosecution examined 45 witnesses. In the initial stage, accused had challenged the sanction vide his application dtd. 2/3/98 which was dismissed by a detailed order by Hon'ble Ms. Justice Pratibha Rani, the then Ld. Special Judge. In the present case, the amended chargesheet was filed on 21/12/96 which was duly taken on record. Ld. PP submitted that the main challenge of the accused in respect of the sanction is that the correct amount was not presented before the sanctioning authority and IO has taken the check period only for five years whereas check period should have been CBI Vs. SR Arya CC No. 38/11 Page 51 of 119 taken for entire service. Ld. PP submitted that there is no averment as to miscarriage of justice and there is nothing on record that accused had been prejudiced. In respect of the check period, the Ld. PP submitted that it is for the IO to determine the check period. Ld. PP submitted that normally an employee develops a tendency of acquisition after sometime. In the present case, the assets at the beginning of check period has not been challenged by the accused. In respect of the Colour TV, Ld. PP submitted that the defence taken by the accused is totally improbable. During search, the accused was found in possession of electrical gadgets and it does not appeal to the reason that he did not have Colour TV. Therefore, the Colour TV found in his possession actually belonged to him. In respect of the expenditure incurred on the ancestral house and East of Kailash flat, Ld. PP submitted that same has duly been proved on record by the prosecution. Ld. PP submitted that household expenses has been determined on the basis of law already settled by the Apex Court. He further submitted that it does not appeal to the reason that the house rent or the household expenditure were borne by the grandmother. Ld. PP submitted that IO PB Sundriyal and Anil Kumar have duly proved the entire case of the prosecution. Ld. PP submitted that explanation given by the accused does not pass the test of satisfactory explanation and is liable to be rejected. In support of his contention, Ld.PP has cited P.Nallammal Vs. State, (1999) 6 SCC 559, BC Chaturvedi Vs. CBI Vs. SR Arya CC No. 38/11 Page 52 of 119 Union of India, AIR 1996 SC 484 and Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363.
6.1 Sh. HR Dhamija, Ld. Counsel for the accused has submitted that the investigation, has not been conducted fairly. IO had a bias since the beginning against the accused. Ld. Counsel submitted that the income has not been computed correctly by the IO. Accused had an income of Rs. 5,07,572/ in place of Rs.4,19,470.77 as shown in the chargesheet. Sh.HR Dhamija submitted that the IO did not take into account the loan given by DW3 Sh. Rajaram in the sum of Rs. 7,132/nor did he take into account loan of Rs.1500/ from his friend. IO also did not take into account the gifts of Rs.5,000/ given by Thrift society as stated by PW30 and the total salary which comes out as Rs.1,47,245/ has not been taken into account. Ld. Counsel submitted that it is settled proposition that gross salary is to be taken and not net pay.
Ld. Counsel submitted that as far as item No. I 'MIG Flat Bearing No. 167 in Pocket B, SFS, East of Kailash, New Delhi allotted to Sh. SR Arya by the DDA in 1981' & item No. II 'Flat No. C633 in Sector XIX, Noida' shown in the movable and immovable assets are concerned, that is not disputed. However, in respect of item No. III ' LIG Flat No. 184A, VIVI Rohini in the name of Smt. Chandra Arya', shown in statement No.1, Ld. Counsel submits that this was paid by Smt. Chandra Arya wife of the accused out of her own funds. Ld. Counsel submits that Smt. Chandra Arya CBI Vs. SR Arya CC No. 38/11 Page 53 of 119 had duly appeared as prosecution witness. Ld. Counsel has placed reliance upon salary certificate of Smt. Chandra Arya Ex.DW6/A. In respect of item No. IV 'Allahabad Bank, Parliament Street, in the name of Sh. SR Arya and his wife bearing A/c No. S1744', shown in movable and immovable assets, Sh. HR Dhamija, Ld. Counsel has submitted that this money actually belonged to Smt. Chandra Arya and name of the accused was only added to meet out any emergency.
In respect of item No. V 'Allahabad Bank, Noida branch, in the name of Smt. Chandra Arya and Smt. Dulara Devi bearing A/c No. 694', Ld. Counsel has submitted that this money belonged to Smt. Dulara Devi, mother of the accused. Smt. Dulara Devi had deposited this money after selling her gold jewellery and this fact has duly been proved vide document Ex.PW31/B. the cheques received by Smt. Dulara Devi on sale of jewellery was deposited in this account.
In respect of item No. VI 'Punjab National Bank, Nehru Place Branch, New Delhi in the name of Sh. SR Arya and his wife bearing SB A/c No. 5973', Ld. Counsel has submitted that the prosecution has not led any evidence to prove this asset. Hence, the same cannot be added in the income of the accused.
In respect of item No.VII 'Canara Bank, Parliament Street Branch, New Delhi in the name of SR Arya and his wife bearing A/c No. 15529' and item No. VIII 'State Bank of India, Nirman Bhawan Branch, CBI Vs. SR Arya CC No. 38/11 Page 54 of 119 New Delhi in the name of SR Arya, SB A/c No. 15484', the accused has not raised any dispute.
In respect of item No.IX 'Fixed Deposits in the name of SR Arya & Chandra Arya', shown as asset by the prosecution, the defence has raised a serious challenge. It has been argued that DW5 Dayaram Arya had stated on oath that he had given Rs.20,000/. Similarly, DW3 Rajaram Arya stated that he had given Rs.10,000/ and Smt. Chandra Arya stated that she gave Rs.5,000/ to Smt. Dulara Devi for construction of plot at Okhla. However, since the construction could not be raised, this amount was converted into FDR in the name of Sitaram Arya and Chandra Arya.
In respect of FDR of Rs.5,000/ also, the defence has taken a plea that Rs.4,000/ was given by DW5 Dayaram and DW7 Chandra Arya had contributed Rs.1,000/ out of her own funds. Ld. Counsel submitted that in the old Act, explanation was not required and even any information was not given, it may amount to violation of conduct rules but may not amount to corruption.
In respect of item No.X 'National Saving Certificates', the same has not been disputed. Ld. Counsel has submitted that the NSC bonds were purchased only for tax saving.
The item shown at No. XI 'Gold ornaments including cash of Rs.1,512/', as 76,813/ has also faced serious challenge on behalf of the accused. Ld. Counsel submitted that during search only cash of Rs.1512/ was recovered. Ld. Counsel has submitted that Smt. Chandra Arya had CBI Vs. SR Arya CC No. 38/11 Page 55 of 119 already sold her jewellery to raise funds for buying the flat. The jewellery found in the locker belonged to the HUF. The jewellery was of the brothers and their wives and mothers. In the search at ancestral home, no jewellery was found, similarly, at East of Kailash, no jewellery was found. Ld. Counsel submitted that Dayaram, Rajaram have specifically stated on oath that jewelery belonged to them. Ld. Counsel has submitted that jewellery has wrongly been assessed at the prevailing rate on 23/1/86 which was totally improbable.
Ld. Counsel has also filed the detailed written arguments. It is stated that except one ring of 5.950 gms, the entire other jewellery belonged to Smt. Dulara Devi or wives of Dayaram Arya and Rajaram Arya. The ring of Chandra Arya was also her stridhan. In the written argument, it has been submitted that 154.150gms belonged to Smt. Dulara Devi. 151gms belonged to DW3 Rajaram and 59.850 gms belonged to DW5 Dayaram.
In respect of item shown at No. XII 'Furniture & Carpets etc.', Ld. Counsel submitted that there is no evidence worth of name on the record to prove that the accused was found in possession of furnitures and carpets in the sum of Rs. 3,100/ in the earlier chargesheet which was lateron enhanced to Rs. 13,350/ without any investigation at all as admitted by PW45 Anil Kumar.
In respect of item No.XIII, 'Maruti Car', no dispute has been raised. It is submitted that the Maruti Car was purchased after making due intimation to the department.
CBI Vs. SR Arya CC No. 38/11 Page 56 of 119
In respect of item No. XIV 'Radio , TV etc.', Ld. Counsel has submitted that the price of Colour TV has wrongly been added to the accused. The TV belonged to Sh. UK Chaudhary and there is no evidence that the TV belonged to the accused.
In respect of item No. XV 'Electrical Gadgets', Ld. Counsel has submitted that there is no evidence worth of name to prove this plea. The onus was on the prosecution to prove that accused was found in possession of the electrical gadgets with him and some was later on enhanced without any basis. Ld. Counsel has submitted that prosecution has miserably failed to prove this also.
In respect of item No. XVI 'watches, pen and painting', Ld. Counsel has submitted that no evidence has been led in this regard. The amount was arbitrarily put and this amount can be added as an asset.
Ld. Counsel has submitted that in item No. XVII 'other assets', the prosecution has added this amount arbitrarily without any basis. Most of the items found in house were received by the accused in his marriage. There is no worth of evidence on record to prove the same.
In respect of statement No. 3 of total income during the check period, Ld. Counsel has raised serious objection as to the income shown by CBI during the check period. Ld. Counsel submits that accused income from salary during the check period was Rs.1,46,245/. The prosecution has wrongly shown income as Rs.77,775.40. The rental income of the flat in the sum of Rs.3200/ has not been disputed by the defence. GP Fund advance CBI Vs. SR Arya CC No. 38/11 Page 57 of 119 taken in advance in the sum of Rs. 52,052/ has also not been disputed. The house building advance in the sum of Rs.63,000/ shown as an income has also not been disputed by the accused.
Similarly, item No. V & VI as 'loan taken from Kalawati and UK Chaudhary' have also not been disputed by the defence.
In respect of item No. VII as 'loan taken from Technical Development Thrift Society / Cooperative Society DGTD and Technical Development Hire Purchase Society Ltd.', Ld. Counsel has submitted that CBI has wrongly not given the benefit and at last, the sum of Rs.5,000/ should have been shown as an income since the accused had taken Rs. 10,000/ from Hire Purchase Society for purchase of scooter which was returned. Similarly, accused had taken a loan of Rs.10,000/ from DGTD Cooperative Thrift Society out of which only Rs.5,000/ was returned and therefore, this Rs.5,000/ should have been shown as an income. Ld. Counsel has submitted that apart from this an income of Rs.7,132/ as loan taken from Rajaram Arya should have been added as an income of the accused. Similarly, another loan of Rs.1,500/ taken from a friend should also have been added in the income of the accused. Ld. Counsel has submitted that CBI should have added Rs.5,000/ as gift received from Thrift Society as appeared in the testimony of PW30.
In respect of other income shown from Column No. VIII to XVI, the same have not been disputed by the accused. CBI Vs. SR Arya CC No. 38/11 Page 58 of 119
In respect of the expenditure on house rent @ Rs. 285/ per month from January 1980 to July 1981, Sh. HR Dhamija, Ld. Counsel has submitted that the same was paid by Smt. Dulara Devi out of her own funds and therefore, this amount cannot be added in the expenditure of the accused.
In respect of water and electricity charges, the defence has not raised any dispute.
In respect of expenditure on children education, the defence has pleaded that these expenses were borne by Smt. Dulara Devi out of love and affection.
In respect of maintenance of vehicle, the defence has stated that the prosecution has not led any evidence to show that accused had spent Rs. 6,666/ and therefore, this amount cannot be added as expenditure. The defence only admitted to have spent Rs.1,000/ on the maintenance of vehicle.
The defence has also raised a dispute and has stated that only Rs.5,469.38 was spent on insurance premium paid to LIC and Pearless Investment Finance & Co., Ltd.
In respect of medical expenses, Ld. Counsel submitted that the prosecution has not led any evidence to prove the same. Hence, the same cannot be taken in the expenditure.
In respect of locker rent, the defence has not raised any dispute. CBI Vs. SR Arya CC No. 38/11 Page 59 of 119 Item No. VIII & IX regarding 'cost of addition to the ancestral house and cost of addition to Flat No. 167, SFS, Pocket B, East of Kailash', serious objection has been raised. Ld. Counsel has challenged the valuation report and has submitted that the same is not liable to be accepted at all. Ld. Counsel submitted that the ancestral house was got repaired by Smt. Dulara Devi and Dayaram Arya out of their own funds. In respect of cost of addition at East of Kailash house, Ld. Counsel submitted that only Rs.6,000/ were spent and the evidence of PW27 in this regard is quiet shaky and is not reliable.
In respect of other household and kitchen expenses, Ld. Counsel has submitted that the accused had spent only Rs.6,000/ on kitchen expenses as mostly all the materials like wheat, ghee, pulses etc used to come from the village of the accused. Ld. Counsel has relied upon the testimony of PW7 Ram Lakhan, PW10 Lalita Prasad, PW36 Hansraj Pathak, DW5 Dayaram Arya. The prosecution has not explained any basis for reaching to the figure of Rs.36,000/. Ld. Counsel has also submitted that in addition to Rs.36,000/, CBI has added separately on account of electricity, rent, education etc. It has been submitted that accused had spent only Rs. 6,000/ on account of kitchen expenses.
In respect to expenses incurred on exhaust fan and geyser, Ld.counsel has submitted that these have already been included in the electrical gadget and therefore, cannot be admitted. CBI Vs. SR Arya CC No. 38/11 Page 60 of 119
Interest paid to Cooperative and Thrift Society in the sum of Rs. 572.85 has not been disputed by the accused. Similarly, payment made to Cooperative, Thrift and Credit Society during check period has not been disputed by the accused. However, the accused has disputed the sum of Rs. 5,000/ as an expenditure on account of payment made to SH. UK Chaudhary during the check period and has submitted that this amount may not be added in expenditure.
In support of his contention, Ld. Counsel has relied upon State of Maharashtra Vs. Pollonji Darabshaw Daruwala, AIR 1988 SC 88, Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796, Ashok Tshering Bhutia Vs. State of Sikkim, 2011(2) RCR (Crl.) 99 and Jagan M. Seshadri Vs. State of Tamil Nadu, AIR 2002 SC 2399. 7.0 I have heard the submissions of Sh. DK Singh, Ld. PP for CBI and Sh. HR Dhamija, Ld. Counsel for the accused and have gone through the record carefully.
LAW POINT:
(i) Nature & Extent of Burdern of Proof: 8.0 The basic law remains to be that the prosecution cannot
derive any strength or support from the weakness of the defence case. The prosecution has to stand with its own leg, and if it fails to prove the case beyond reasonable doubt, the entire edifice of the prosecution would CBI Vs. SR Arya CC No. 38/11 Page 61 of 119 crumble down. The nature and extent of burden of proof u/s 5(1)(e) of PC Act, came up for discussion before the Apex Court in State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar" AIR 1981 SC 1186 wherein it was held that:
"That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5 (1) (e) of the Act. The expression ' burden of proof' has two distinct meanings (1) the legal burden, i.e. the burden of establishing the guilt, and (2) the evidential burden, i. e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by Jaw upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities.
The ingredients of the offence of criminal misconduct under S. 5 (2) read with S. 5 (1) (e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under S. 5 (1) (e); namely, (1) it must establish that the accused is a public servant, (2) the nature, and extent of the pecuniary resources or property CBI Vs. SR Arya CC No. 38/11 Page 62 of 119 which were found in his possession, (3) it must be proved as to what were his known sources of income i. e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S. 5 (1) (e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5 (1) (e) cannot be higher than the test laid by the Court in AIR 1966 SC 1762 i. e. to establish his case by a preponderance of probability. That test was laid down by the Court following the dictum of Viscount Sankey, L. C. in Woolmington v. Director of Public Prosecutions, (1935) AC 462. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in AIR 1960 SC 7, the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income, i. e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of S. 106 of the Evidence Act, 1872. Section 106 reads :
CBI Vs. SR Arya CC No. 38/11 Page 63 of 119
Section 106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In this connection, the phrase the burden of proof is clearly used in the secondary sense, namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability."
(ii) Explanation of accused:
In regard to the explanation given by the accused, the Apex Court in Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170 inter alia held while dealing with a case of Prevention of Corruption Act that:
"......Another question which arises is that what are the standards to be employed in order to judge the truth or falsily of the version given by the defence. Should the accused prove its case with the same amount of rigour and certainity, as the prosecution is required, to prove and criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case?"
".....The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to CBI Vs. SR Arya CC No. 38/11 Page 64 of 119 prove a criminal charge. Infact, from the cardinal principles, it is sufficient if the accused is able to prove its case by the standard of preponderance of probabilities as envisaged by Sec. 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him , there is doubt on the prosecution case and therefore, the prosecution cannot said to have been established the charge beyond reasonable doubt. In other words, the move of proving by standard of benefit of doubt is not applicable to the accused where he is called upon to prove its case or to prove the exceptions of the Indian Penal Code. It is sufficient to the defence to give a version probable with the prosecution version for that would be sufficient to throw suspicion on the prosecution case and rejection by the Court.
Reference can also be made to Harbhajan Singh Vs. State of Punjab, AIR 1966 SC 97."
It has repeatedly been held that basically the original onus never shifts and the prosecution has at all stages of case required to prove the case beyond reasonable doubt.
In State of UP Vs. Ram Sarup, 1974 SC 1570, it was inter alia held that:
"Furthermore the Courts below have failed to consider that once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false. In a criminal trial, it is not only obligatory on the CBI Vs. SR Arya CC No. 38/11 Page 65 of 119 accused to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution".
(iii) Check period:
In State of Maharashtra Vs. Porabjee Pollanji Daruwala, AIR 1988 SC 88, it was inter alia held that:
"It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth and characterise and isolate that period for special scrutiny. It is for the public servant to satisfactorily account for the apparently disproportionate nature of his possession. Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, by the standard of criminal evidence, that the public servant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also CBI Vs. SR Arya CC No. 38/11 Page 66 of 119 disprove the existence of the possible sources of income of the public servant"
(iv) First name in Bank Account / FDR:
In State of Maharashtra Vs. Pollanji Darabshaw Daruwala, AIR 1988 SC 88 it was inter alia held that :
"Equally erroneous is the view of the High Court on the proposition noticed at point (b). The assumption that in all joint deposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous. The matter is principally guided by the terms of the agreement, inter se, between the joint depositors. If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed."
It has been repeatedly held by the Superior Courts that a liberal view must be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for Sec. 5(1)(e)of the Act. As per Oxford Advance Learner's Dictionary, the meaning of 'disproportionate' is " too large or too small when compared with something else". Thus, inorder to hold a person guilty for disproportionate assets, the difference should be too large or too small. CBI Vs. SR Arya CC No. 38/11 Page 67 of 119
(v) Benami Property:
In Krishnanand Agnihotri Vs. State of MP., AIR 1977 SC 796, 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 Apex Court rejected the contention and inter alia held as under:
"It is well settled that the burden of showing that a particular transaction is benami and the apparent 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 unofter, 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." Reference can also be made to "M. Krishna Reddy v. State Deputy Supdt. of Police, Hyderabad, 1993 CRI. L. J. 308 CBI Vs. SR Arya CC No. 38/11 Page 68 of 119
(vi) Period of Offence relating to prior to 1988 Act:
In Jagan M. Sesadri Vs. State of Tamil Nadu, AIR 2002 SC 2399, it was inter alia held that when the offence was committed it was 1947 Act, which was in operation . At the time when FIR was lodged, it was 1947 Act in operation. Reliance on Sec. 30(2) of the 1988 Act to hold the offence for which appellant should have been charged was one which fell under Sec. 13 of the 1988 Act is wholly misplaced. In the present case also, the check period was of 1981 to 86 and the FIR was also lodged in 1986. The Amended Act came into existence in the year 1988. In Sesadhiri's case it was held that Sec.13 both in the matter of punishment as also by the addition of the explanation to Sec. 13(1)(e) is materially different from Sec.5 of the 1947 Act.
FINDINGS:
SANCTION:
9.0 Ld. Counsel has challenged the sanction for prosecution granted against the accused. It has been submitted that sanction has not been granted in accordance with law. Sanction has been challenged on two grounds:
firstly, that the sanction was not granted by the competent authority, and secondly, that the sanctioning authority who had granted sanction order Ex.PW1/A did not apply its independent mind for grant of sanction. It is pertinent to mention here that the sanction was challenged at the initial stage CBI Vs. SR Arya CC No. 38/11 Page 69 of 119 by the defence and the application of the accused for the discharge on account of invalid sanction was dismissed by Hon'ble Ms. Justice Pratibha Rani, the then Ld. Special Judge vide detailed and reasoned order dtd. 6/5/05. Against this order, an appeal was filed before the Hon'ble High Court which was also dismissed as withdrawn vide order dtd. 27/7/05.
In Basdeo Agarwal V. Emperor, AIR 1945 FC 16, it was inter alia held that sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. It is a settled preposition that the grant of sanction is not an idle formality or an acrimonious exercise. It is a solemn and sacrosanct act. The sanction lifts the bar for prosecution. Infact the sanction is a protection to Government servant against frivolous prosecution. The sanctioning order must ex facie disclose that the sanctioning authority has considered the evidence and other material placed before it.
It is a settled proposition that grant of sanction is a solemn act. However, at the same time, the basic test is whether it had caused any prejudice, miscarriage of justice or failure of justice. It is pertinent to mention here that all the points now raised by the accused were raised earlier also and same were rejected by my Ld. Predecessor. I do not see any fresh ground and no reason to deviate from the earlier order. Hence, the plea of the accused regarding sanction is dismissed.
CBI Vs. SR Arya CC No. 38/11 Page 70 of 119 STATEMENT NO. 1:
9.1 The accused has not disputed the assets in possession at the beginning of the check period i.e. as on 1/1/1981 and therefore, the same is taken as it is for the purpose of computation.
STATEMENT NO. 2
(A) MOVABLE / IMMOVABLE PROPERTY DURING THE CHECK PERIOD.
9.2 ITEM NO. I 'MIG FLAT NO. 167, POCKET B, EAST OF KAILASH' AND ITEM NO. II 'FLAT NO. C633, SECTOR 19, NOIDA':
The defence has not raised any objection to this. 9.3 ITEM NO. III ' LIG FLAT NO. 184A, IV TO VI, ROHINI IN THE NAME OF CHANDRA ARYA':
The accused has taken a plea that the payment made on account of LIG Flat No. 184A, IV to VI, Rohini cannot be added to his assets as this payment was made by his wife Smt. Chandra Arya out of her own independent income. It has further been contended that since there was no use of resources of the accused, it was not obligatory upon him to inform the department. The CBI has opposed the same saying that Smt. Chandra Arya CBI Vs. SR Arya CC No. 38/11 Page 71 of 119 did not have any independent income and therefore, this asset is to be added in the assets of the accused.
As far as independent income of Smt. Chandra Arya is considered, I consider that on the face of it, this plea is not reliable. The evidence regarding employment of Smt. Chandra Arya is too week to accept. I consider that this has rightly been added in the assets. 9.4 ITEM NO. IV - ALLAHABAD BANK, PARLIAMENT STREET, NEW DELHI IN THE NAME OF SH. SR ARYA AND HIS WIFE BEARING A/C NO. 1744:
CBI has shown the balance in account No. 1744, a joint SB account of SR Arya and his wife Chandra Arya at Allahabad Bank, Parliament Street, in the assets of the accused. The defence has taken the plea that this was an account maintained by Chandra Arya and all the deposits were made in the said account by Smt. Chandra Arya and therefore, this amount cannot be added in the assets of the accused. The defence has mainly relied upon the entry of Rs. 18,984/ on 19/2/82. It has been pleaded that cheque of Rs.18,984/ was deposited by Smt. Chandra Arya having been received by her on account of sale of her jewellery. It is pertinent to mention here that the money received on account of sale of jewellery has duly been shown in the income of the accused. The plea of the defence is that Smt. Chandra Arya was self employed and the money deposited in the said account from time to time belonged to her. However, I consider that the plea CBI Vs. SR Arya CC No. 38/11 Page 72 of 119 taken by the defence that Smt. Chandra Arya was gainfully employed, has not been able to inspire the confidence of the Court. I have gone through the statement of account Ex.PW42/B. There are regular deposits of heavy amount. During the course of around 05 years, there are deposits of around Rs. 1 lakh and withdrawal of Rs.87,000/. Even if we accept the arguments of the defence that Smt. Chandra Arya was gainfully employed, she had worked from 1976 to 1980 at a monthly salary of Rs.450/ per month. Thus, she had maximum income of Rs. 27,000/. Thus, this plea of the defence is totally untenable. Thus, it is held that the sum of Rs. 12,784.96 has rightly been shown in the assets of the accused.
9.5 ITEM NO.V ALLAHABAD BANK, NOIDA BRANCH IN THE NAME OF CHANDRA ARYA AND DULARA DEVI (MOTHER) BEARING A/C NO. 694:
CBI has added a sum of Rs. 10,909.90 in the movable and immovable assets of the accused as on 23/1/86 on account of balance in the joint account of Smt. Chandra Arya and Smt. Dulara Devi bearing No. 694. The plea of the defence is that this amount cannot be added to the income of the accused as Smt. Dulara Devi had made deposits in this account. Perusal of Ex.PW31/B indicates that the two cheques of Rs.36,303/ and Rs.30,167/ were deposited on 20/3/85 and 22/3/85. In the cross examination, the witness had admitted that these cheques were Ex.P31 and P33. If we see the bills Ex.PW13/DC and PW13/DD vide which Smt. Dulara Devi had sold the CBI Vs. SR Arya CC No. 38/11 Page 73 of 119 jewellery to Tribhuvan Das jewellers. The jewellery was sold for a sum of Rs.30,174 and Rs.36, 339/ and the payments were received by cheque. In the cross examination, PW31 RK Kapoor had admitted that Rs. 30/ and Rs. 7/ have been deducted by the bank as bank commission from the cheques as the same being outstation cheque. It is pertinent to mention here that Tribhuvan Das Jewellers had issued a cheque from Delhi and SB A/c No. 694 was in Allahabad Bank, Ghaziabad. If we peruse the slip Ex.P31 and Ex.P33, it would be clear that the cheques of Rs. 30,174/ and Rs. 36,339/ were deposited on 16/3/85 and 13/3/85 respectively, at Allahabad Bank.
Thus, the amount standing in A/c No. 694 cannot be added to the income of the accused.
9.6 ITEM NO. VI - PUNJAB NATIONAL BANK, NEHRU PLACE BRANCH IN THE NAME OF SR ARYA AND HIS WIFE BEARING SB A/c NO. 5973:
CBI has shown a sum of Rs. 500/ as an asset. However, no evidence has been led in this regard. The accused has also denied the same. In absence of any evidence, this amount cannot be added to the assets. 9.7 ITEM NO. VII - CANARA BANK, PARLIAMENT STREET, NEW DELHI IN THE NAME OF SH. SR ARYA AND HIS WIFE BEARING A/C NO. 15529:
CBI has shown a sum of Rs.5,484.70 as balance as on 23/1/86 in Canara Bank, Parliament Street Branch, New Delhi in the joint name of CBI Vs. SR Arya CC No. 38/11 Page 74 of 119 SR Arya and his wife. CBI has proved that in this account there was cash deposits of various dates i.e., 21/9/84, 26/9/84, 29/10/84, 19/12/84, 22/4/85, 15/5/85 and 25/7/85. The accused has not raised any dispute regarding this account and the balance of Rs.5,484.70 has been admitted by the accused. 9.8 ITEM NO. VIII - STATE BANK OF INDIA, NIRMAN BHAWAN BRANCH, IN THE NAME OF SH. SR ARYA, SB A/c NO. 15484:
Regarding SB A/c No. 15484 having balance of Rs. 940.81, the same has not been disputed by the defence.
9.9 FDR DTD. 24/8/85 FOR RS. 35,000/ (ITEM NO. IX):
In regard to the FDR dtd. 24/8/85 of Rs.35,000/ in the name of accused SR Arya and Mrs. Chandra Arya, the contention of the defence is that this FDR was bought after taking a loan of Rs. 30,000/ from younger brother Sh. Dayaram Arya DW5, DW3 Rajaram Arya and Rs.5,000/ from his wife Chandra Arya, DW6. The defence has stated that the above said money was given by members of the family to Smt. Dulara Devi for starting construction work on plot No. 90/25, Okhla owned by Smt. Dulara Devi. However, the construction work could not be started and therefore, it was decided to keep the money in the name of SR Arya being the eldest male member of HUF and his wife Chandra Arya with the object that the money may not remain idle and some interest can be earned on it. This fact was CBI Vs. SR Arya CC No. 38/11 Page 75 of 119 duly intimated by the accused to the department vide St. 5(A) at S. No. 1 of 6 property statements (D114) Ex.PW9/DD and Ex.P37. The accused has contended that this fact has also been verified by the defence witnesses DW3 Rajaram Arya, DW5 Dayaram Arya and DW7 Chandra Arya.
The contention of the prosecution is that the story placed by the accused is without any basis and this FDR was purchased by accused jointly with his wife out of the ill gotten money.
Sh. Rajaram Arya DW3 in his statement on oath deposed that he started his career as Postal Clerk in the Post Office RK Puram. Subsequently, after attaining higher education, he joined the Education Department of Delhi Govt as TGT on 8/11/79 in the pay scale of Rs. 440750. Sh. Raja Ram Arya stated that he is presently in the pay scale of Rs.15,60039100/. The witness in respect of the present transaction stated that in the year 1985, he gave Rs.10,000/ to his mother Smt. Dulara Devi as a help to raise the construction on her plot at Okhla Phase I. The witness stated that since at that time, no construction could be carried out and therefore, to utilize the idle money, it was decided that the same be kept in FDR in the name of SR Arya and Chandra Arya. The witness stated that they all had been living in a joint family and the entire jewellery and cash used to be in the custody of SR Arya being the eldest brother.
Similarly, DW5 Dayaram Arya, another brother of the accused, stated that he started his career as Primary Teacher in the year 1985 and prior to this he had done Basic Teacher Certificate course in the year CBI Vs. SR Arya CC No. 38/11 Page 76 of 119 198384 and 198485 and during this period, he used to receive stipend of Rs. 500/ per month. Sh. Dayaram stated that he used to take private tuitions in the tune of Rs.500700 p.m, during the period 198485. In respect of the present transaction, witness stated that he had a joint account in the Post Office alongwith his mother at Village Sarauni, Purab Patt, Tehsil Kerakat and in the year 1985, he withdrew the sum of Rs. 20,000/ from this account in various installments for giving it to his mother for the purpose of construction at industrial plot at Okhla. The statement of account of saving bank account running into two pages has been proved as Ex.P28. This witness also stated that since the money was lying idle on account of construction not being carried out, it was decided to keep the same in FDR in the name of SR Arya and his wife Chandra Arya.
Smt. Chandra Arya, wife of accused appeared as DW7 and made a statement on oath that she was married to SR Arya on 14/6/74. At the time of marriage, her parents and relatives had given her gifts and even thereafter, she had been receiving gifts from her parents and relatives. Smt Chandra Arya stated that her mother in law, father in law also used to give gifts to her and her children from time to time. In respect of the present transaction, the witness stated that she had contributed Rs.5,000/ out of the stridhan for the purpose of construction of the said plot, however, since the construction did not take place, it was decided to invest the money in FDR in her name and in the name of SR Arya.
CBI Vs. SR Arya CC No. 38/11 Page 77 of 119
The defence witnesses have not been able to place any proof regarding the help extended by them to Smt. Dulara Devi. They have made a bald statement that they had paid this money. It is pertinent to mention here that Rajaram Arya DW3 who was a govt. servant, admitted in his cross examination that he did not inform his department regarding this transaction. The plea of DW5 Dayaram Arya is that he had paid a sum of Rs.20,000/ after withdrawing the same from SB A/c No. 268458 at Post Office jointly held by himself and his mother Smt. Dulara Devi. I have seen document (D82) Ex.P28 (admitted document). Perusal of this document indicate that from 15/6/85 to 17/10/85 there is withdrawal of around Rs.48,000/ from his account on different dates. I consider that merely because, some amount has been withdrawn from the joint account of Smt. Dulara Devi and Dayaram, would not mean that this FDR has been purchased out of that money. It is a cardinal principle that onus always remains upon the prosecution to prove a fact, however, in the special provisions like Sec.5(1)(e), the temporary onus is shifted upon the accused to satisfactorily explain the possession of assets. The onus upon the accused may not be as rigour as on the prosecution, but the accused is required to create the dent in the story of the prosecution by leading the plausible evidence and then this evidence has to be appreciated on the preponderance of the probabilities. Once, accused has led this evidence, then it would be for the prosecution / CBI to prove that the explanation given by the accused is false or CBI may show that the explanation is totally improbable and unplausible. It looks very improbable CBI Vs. SR Arya CC No. 38/11 Page 78 of 119 that the money which has been given by brothers as help to the mother would result into the FDR in the name of accused and his wife. The explanation to be believed has to be satisfactory, plausible and probable. It is also worthwhile to mention here that PW9 in his statement has specifically stated that the accused did not furnish any information on record. FDR of Rs. 35,000/ has rightly been added in the assets of the accused. FDR NO. 234/85 DTD. 10/8/95 FOR Rs. 5,000/:
Prosecution has added FDR No. 234/85 dtd. 10/8/85 for Rs. 5,000/ in favour of SR Arya and Chandra Arya in the assets. However, the plea of the defence is that out of Rs.5,000/, Smt. Dulara Devi had contributed a sum of Rs.4,000/ , after withdrawing the same from joint SB Post Office account and Rs.1,000/ was contributed by his wife Smt. Chandra Arya. The defence has also contended that this fact had also stated by them to CBI in their statement (D114). Smt. Chandra Arya also in her statement on oath stated that she had added a sum of Rs.1,000/ out of her stridhan. Her mother in law had sent Rs.4,000/ from village through her brother in law Dayaram ARya and after adding both of these amounts, the FDR in the sum of Rs.5,000/ was made and a locker was sanctioned in their name. The defence has consistently taken the plea that this locker was meant for the joint family and the articles / jewellery lying therein also belonged to the members of the joint family. The plea of the defence is that the locker was got allotted in the name of accused and his wife and it was meant to be CBI Vs. SR Arya CC No. 38/11 Page 79 of 119 used for the entire family. I consider that this plea of the accused is liable to be rejected being not satisfactory and plausible. The FDR is in the name of accused SR Arya and his wife. It does not appeal to the reason that anybody else would give money for investing in FDR. Hence, this amount has rightly been added in the assets.
9.10 ITEM NO. 10 OF THE ASSETS - NATIONAL SAVING CERTIFICATE:
CBI has shown a sum of Rs. 5,800/ in the assets at item No. 10 on account of National Saving Certificate. The NSC of Rs.4,000/ were found in the locker and NSC of Rs.1800/ were found during the search of the house.
9.11 ITEM NO. XI - JEWELLERY / GOLD ORNAMENTS:
The fate of this case prominently depends on the issue that whether the jewellery recovered from the locker of the accused belongs to the accused only or it belongs to the other members of the family of the accused. If we believe the CBI, the entire jewellery belongs to the accused only as the same was recovered from the locker being maintained by SR Arya and his wife Chandra Arya. However, defence has been taking a consistent plea since beginning that this jewellery belong to other members of the family i.e., mother Smt. Dulara Devi and to the wives of Dayaram and CBI Vs. SR Arya CC No. 38/11 Page 80 of 119 Rajaram. It is pertinent to mention here that this plea has not been taken by the accused for the first time in the Court. He has been taken this plea since beginning. Therefore, this plea cannot be taken as an after thought. It is also worth to mention here that this jewellery has never been produced before the Court. Even the prosecution did not take photographs of this jewellery, for the purpose of ascertaining that whether it is newly acquired jewellery or old jewellery. It was for the prosecution to prove this fact. It was a material evidence which has been withheld by the prosecution. It has consistently appeared in the evidence that father of Sh. SR Arya, Sh. Jagannath Ram was also man of means. This family had an agricultural land as well as orchards. The witnesses have also stated that Sh. Jagannath Ram was also a money lender. In such a family, there is normally a tendency of keeping the gold and gold is generally kept by the eldest female member of the family. Here in the present case, Smt. Dulara Devi was alive. It is worth to note here that Smt. Dulara Devi, even as per ration card had been residing with the accused. The record would also reveal that even during the check period there have been transaction of sale and purchase of gold by Smt. Dulara Devi. Smt. Chandra Arya had also sold some jewellery for the purpose of raising funds for buying the East of Kailash house. This transaction of selling and buying of gold jewelery would indicate that Smt. Dulara Devi had jewellery with her. Normally, in North India, the ancestral jewellery is kept by the eldest female member and it goes to the other hand only after her demise. I consider that this family which had a rural background and where CBI Vs. SR Arya CC No. 38/11 Page 81 of 119 the witnesses had consistently been saying that the property is still undivided, there can be possibility of this jewellery did not belong to the accused only and belonged to the other members of the family i.e. Smt. Dulara Devi or wife of Dayaram and Rajaram It may also be mentioned here that during search of the house of the accused, no jewellery was found. It can also be taken into account that only Rs. 1,512/ in cash was recovered from his house. I consider that it is not improbable and there is a sense of satisfactory explanation in the plea of the accused that this jewellery belongs to the other members of the family of the accused. A total of 370.950 gms of jewellery was recovered. DW3 Rajaram has specifically stated that 151 gms belonged to him. DW5 Dayaram stated that 59gms belonged to him and it has been stated by the defence witnesses that 154 gms belonged to Smt. Dulara Devi. Smt. Chandra Arya stated that she had only a ring which was her stridhan. It is pertinent to mention here that as per production memo Ex.PW13/B, the jewellery was weighed on the spot itself. However, Sh. RC Kalra in the cross examination had stated that the weight was taken in the CBI office itself. He also stated during the cross examination that there was no expert valuer when search memo Ex.PW13/A was prepared. It is worth to mention that the jewellery has not been produced before the Court. The court does not know that whether the jewllery was old or new one It is also not clear that on what basis the jewellery has been valued on the basis of rates on 23/1/86. In the observation memo Ex.PW28/C, the year of the acquisition of the jewellery has not been mentioned at all.
CBI Vs. SR Arya CC No. 38/11 Page 82 of 119
The court while appreciating the evidence has to take a pragmatic approach. The court cannot loose sight of the fact that accused belonged to a village in UP. His brothers were teacher and he as only member in the family, who was holding a Class I position in the Central Govt. The case belongs to the period of 198085. During those days, only the nationalized banks were providing the banking services. It was very difficult to get the locker in the bank. Only few lucky could get the locker in the bank. Therefore, it would not be totally improbable on the part of the accused to say that the locker was taken for the use of the entire family. It is also worth to mention here that the accused was living in East of Kailash area, which is close to Nehru Place. Thus, there was convenience to operate the locker. I consider that the accused has satisfactorily explained about this and the amount on account of jewellery cannot be added in the assets of the accused. Therefore, I consider that this plea of the accused can be accepted. 9.12 ITEM NO. XII, FURNITURE & CARPETS:
CBI has shown a sum of Rs. 13,350/ in the subsequent chargesheet dtd. 21/12/96. Initially, the same was shown as Rs. 3,100/. However, no evidence has been led in this regard. There is no explanation for the enhancement of the amount. It is pertinent to mention here that the second IO who had filed the subsequent chargesheet had not even visited the house of the accused. I consider that in the circumstances, at the best, Rs. 3,100/ can be added as assets.
CBI Vs. SR Arya CC No. 38/11 Page 83 of 119 9.13 ITEM NO. XIII, MARUTI CAR:
Regarding item No. XIII, the same has not been disputed by the accused.
9.14 ITEM NO.XIV OF ASSETS COLOUR TV & BLACK & WHITE TV:
CBI has claimed that the Weston Colour TV found during the raid in the premises of the accused belong to the accused. The CBI case is that the accused was holding this television benami in the name of Sh. UK Chaudhary. CBI is basing its claim upon the fact that this Colour TV was found at the residence of the accused during the raid. It is pertinent to mention here that Sh. UK Chaudhary has specifically stated in his examination that the Colour TV belonged to him and he had brought the same to Delhi for repair. It is also worth mentioning here that Sh. Uk Chaudhary was a bank employee and it has also come on record that he had agriculture income besides salary. CBI has not led any positive evidence to the effect that this property was purchased / owned by accused. CBI is harping on the point that this TV was found in possession of the accused at the time of raid. Sh. UK Chaudhary admittedly, had not informed his authorities about the purchase of Colour TV as indicated in letter Ex.PW44/A1.
CBI also examined PW33 to prove that Sh. UK Chaudhary had brought another TV in Oct., 1985.
CBI Vs. SR Arya CC No. 38/11 Page 84 of 119
The Court is required to take a practical view while appreciating the evidence. In the present case, if we peruse the search cum observation memo conducted at the time of raid at the premises of the accused, we would find that he had also the electronic gadgets. The accused was also found in possession of VCR and VCD's of many Hindi and English movies. It would not appeal to the reason that accused would have VCR and VCD's, but did not have Colour TV. I consider that this plea of the accused that the Colour TV belonged to his brother in law Sh. UK Chaudhary and he had brought the Colour TV for repair to Delhi, is totally improbable and liable to be rejected.
9.15 ITEM NO. 15 OF THE ASSETS - ELECTRICAL GADGETS:
The prosecution has added the stereo in the assets under the head 'Electrical Gadgets belonging to the accused'. The defence has taken the plea during the course of arguments that Sh. Dayaram Arya had gifted this stereo to his sister in law i.e. Smt. Chandra Arya. Sh. Dayaram Arya and Smt. Chandra Arya have also stated so during their statement on oath. It is not disputed that this stereo was found during the search at the residence of the accused as indicated in the search cum observation memo Ex.PW13/A. The same is reflected at S. No.101 of the search cum observation memo. I consider that since it has been found in possession of the accused and the CBI Vs. SR Arya CC No. 38/11 Page 85 of 119 cash memo also bears the name of Smt. Chandra Arya, it has been rightly added in the assets of the accused.
CBI had initially shown a sum of Rs.16,884.26 as an assets at the end of the check period on account of 'Electrical Gadgets' which was lateron revised to Rs.20,759.26. There is not even an iota of evidence / proof for this upward revision. However, in the observation memo it has clearly been mentioned that electrical gadgets were found in the house of accused. The accused has merely and simply denied it. I consider that taking a reasonable view, a sum of Rs.16,884.26 can be added as an asset on account of 'Electrical Gadgets'.
9.16 ITEM NO. XVI - WATCHES, PEN & PAINTINGS:
CBI has shown a sum of Rs. 1,210/ in the subsequent chargesheet dtd. 21/12/96. Initially, the same was shown as Rs. 1,100/. However, no evidence has been led in this regard. There is no explanation for the enhancement of the amount. It is pertinent to mention here that the second IO who had filed the subsequent chargesheet had not even visited the house of the accused. I consider that in the circumstances, at the best, Rs. 280/ can be added as assets.
9.17 ITEM NO. XVII - OTHER ASSETS AT THE END OF CHECK PERIOD:
CBI has added Rs.2,020/ as deposit for two telephones in the assets. This fact has been proved by way of testimony of PW8 Gagan Bihari. CBI Vs. SR Arya CC No. 38/11 Page 86 of 119 The document Ex.PW8/A to Ex.PW8/D have duly been proved on the record. In the cross examination, it was admitted by the witness that no other expenditure was incurred by SR Arya and Smt. Chandra Arya except Rs. 1,000/ each. However, during the course of arguments, the accused took the plea that only deposit of Rs.1,000/ vide demand note Ex.PW8/D can be added to his assets and deposit of another Rs.1,010/ may not be added in his assets as the same was deposited by his wife Smt. Chandra Arya. However, Smt. Chandra Arya did not state anything about this in her statement. Therefore, in absence of cross examination of PW8 and in absence of any explanation on behalf of Smt. Chandra Arya, the amount of Rs.2,020/ has rightly been added to the assets of the accused at the end of the check period. 9.18 ITEM NO. XVIII - GPF AND ITEM NO. XIX - CGEGIS:
As per salary chart on page 32 of the judgment during the check period, a total amount of Rs. 27,675.25 was deducted on account of GPF and Rs.3,980/ on account of CGEGIS. The employee gets the GPF or CGEGIS at the retirement. So these contributions accumulate and become an asset of the accused.
CBI Vs. SR Arya CC No. 38/11 Page 87 of 119 STATEMENT NO. 3
(B) INCOME DURING THE CHECK PERIOD: 9.19 SALARY (ITEM NO. I):
The CBI has shown Rs. 77,775.40p as income from salary for the period 1/1/81 to 23/1/86. The defence has pleaded that the income of the accused is Rs. 1,47,245/. I have gone through the sheets produced by the prosecution proved as Ex.PW32/A. Perusal of this indicates that the gross salary during the check period was Rs. 1,48,381.75. I consider that the CBI has not taken the salary income of the accused correctly. It does not answer to the basic accounting method. I consider that for computing the income earned during the check period, the total income of the accused minus income tax paid has to be taken into account. However, GPF earned during the period shall go into the assets and payment made on GPF advance and HBA shall go into the expenditure. Similarly, contribution made to the CGHS shall go to the expenditure side and payment made to CGHS and GPF shall be added in the assets as this amount keeps on accumulating and the employee gets the same at the time of retirement. 9.20 ITEM NO.II - RENTAL INCOME OF FLAT NO. C633 IN NOIDA @ Rs. 800/ PM FROM OCT. 1985 TO JAN., 1986:
CBI has shown rental income of Flat No. C633, Sec.19, Noida at the rate of Rs.800/ pm from Oct.1985 to Jan., 1986. The witness PW26 CBI Vs. SR Arya CC No. 38/11 Page 88 of 119 Deep Chand Tiwari has duly admitted the same and therefore, this income has rightly been shown in the income. Accused has also not raised any dispute regarding this.
9.21 ITEM NO. III - GP FUND ADVANCE :
CBI has shown an income of Rs. 52,052/ by way of GP Fund Advance. This fact has not been disputed by the accused. 9.22 ITEM NO. IV - HOUSE BUILDING ADVANCE:
CBI has shown an income of Rs. 63,000/ by way of House Building Advance. This fact has also not been disputed by the accused. 9.23 ITEM NO. V LOAN TAKEN FROM MOTHER IN LAW SMT. KALAWATI DEVI:
Accused has not disputed the amount of Rs. 27,000/ received by him as loan taken from mother in law Smt. Kalawati Devi. 9.24 ITEM NO. VI - LOAN TAKEN FROM BROTHER IN LAW UK CHAUDHARY:
Accused has also not disputed the income of Rs. 10,000/ received by him by way of loan from his brother in law Sh. UK Chaudhary. CBI Vs. SR Arya CC No. 38/11 Page 89 of 119 9.25 ITEM NO. VIII : LOAN TAKEN FROM TECHNICAL DEVELOPMENT THRIFT SOCIETY / COOP. SOCIETY DGTD AND TECHNICAL DEVELOPMENT HIRE PURCHASE SOCIETY:
CBI had initially shown an income of Rs. 15,000/ as loan taken from Technical Development Thrift Society. However, in the amended chargesheet dtd. 21/12/96 this amount was shown as NIL on the ground that the same had been repaid within the check period and as such no income on this count can be added during the check period. I consider that CBI is totally justified in this, because as per Ex.PW30/B & C, the loan was taken and repaid during the check period . Hence, no addition on account of income can be done on this account.
9.26 ITEM NO. VIII - SALE OF ORNAMENTS TO M/S TRIBHUVAN DAS BHIMJI ZAVERI, NEW DELHI:
The defence has not raised any objection to the income incurred from the sale of jewellery to the tune of Rs. 44,374/. 9.27 ITEM NO. IX - LOAN FROM MOTHER SMT. DULARA DEVI The income incurred by availing loan from mother Smt. Dulara Devi in the sum of Rs. 60,000/ has not been disputed by the defence. CBI Vs. SR Arya CC No. 38/11 Page 90 of 119 9.28 ITEM NO. X - PREMIUM ON SALE OF TWO SCOOTERS:
The defence has not disputed the income earned from premium received on sale of two scooters to the tune of Rs. 3,402/. 9.29 ITEM NO. XI - INTEREST FROM DEPOSITS WITH DDA / HUDCO:
The defence has not raised any objection to the income earned as interest from deposits with DDA / HUDCO in the sum of Rs. 3,608/. 9.30 ITEM NO. XII - DEPOSITS REFUNDED BY DDA / HUDCO:
The defence has not raised any objection to the income of Rs. 3,500/ refunded by DDA / HUDCO.
9.31 ITEM NO. XIII OF INCOME DEPOSIT REFUNDED BY M/S SUPREME MOTORS WITH INTEREST:
The CBI has shown a sum of Rs.13,584/ as income in the statement showing income earned by the accused during the check period. During the course of arguments, Ld. Defence counsel has taken a plea that this amount cannot be added to the income of the accused as this amount was deposited by Smt. Chandra Arya out of her own income and savings. However, there is no cross examination to this effect of PW18. Even that CBI Vs. SR Arya CC No. 38/11 Page 91 of 119 may be so, the plea of the accused that Smt Chandra Arya was earning independently does not seem to be reliable and plausible. Smt. Chandra Arya during her defence has stated that she was working as a counter girl with National Television Training Centre, Munirka from 1976 to 1980 and had a monthly salary of Rs.450/ per month. The salary certificate dtd. 27/9/79 issued by Sh. GR Gupta, Proprietor / Director was proved as Ex.DW6/A. Smt. Chandra Arya has stated that Sh. GR Gupta has since died. I consider that this plea of the accused is not believable. Besides, the said salary certificate, which itself does not inspire confidence of the Court, no other document has been placed on record by the accused. I consider that the accused has failed to explain the same satisfactorily. Therefore, this income has rightly been added in the income of the accused during the check period. 9.32 ITEM NO. XIV - INTEREST ACCRUED ON SB ACCOUNT:
The defence has not disputed the income received on account of interest accrued on SB account to the tune of Rs. 3,800.17. 9.33 ITEM NO. XV - REFUND FROM UP HOUSING BOARD:
The defence has not disputed the refund from UP Housing Board in the sum of Rs. 4,059/.
CBI Vs. SR Arya CC No. 38/11 Page 92 of 119 9.34 ITEM NO. XVI - INCOME FROM ACCOUNTS WITH POST OFFICES IN THE NAME OF SR ARYA:
The defence has not raised any objection to the income received from accounts with Post Offices to the tune of Rs.50,116.20. 9.35 ITEM NO. XVII - LOAN FROM BROTHER RAJARAM:
Accused had taken a plea that he had taken Rs. 7,132/ from his brother Rajaram Arya. Sh. Rajaram Arya has also made a specific statement on oath in this regard. Hence, I consider that the same can be added in the income of the accused.
9.36 ITEM NO. XVIII - GIFT RECEIVED FROM THRIFT SOCIETY:
The defence has taken plea that the gift worth Rs.5,000/ be added in the income. However, I consider that there is no cogent and credible evidence in this regard. Hence, the same is rejected. STATEMENT NO. 4
(C) TOTAL EXPENDITURE DURING THE CHECK
PERIOD FROM 1.1.81 TO 23.1.86
9.37 ITEM NO. I HOUSE RENT @ Rs. 287/ P.M. FROM
JAN. 1981 TO JULY 1981:
CBI has shown Rs. 2,009/ as house rent. Accused has raised a plea that this amount has been paid by mother Smt. Dulara Devi. This plea CBI Vs. SR Arya CC No. 38/11 Page 93 of 119 on the face of it seems to be improbable and unplausible. It would not appeal to the reason that the house rent of a gainfully employed person would have been paid by his old mother.
9.38 ITEM NO. II ELECTRICITYCHARGES:
CBI has shown Rs. 2141.21 as electricity charges. However, it has examined only PW21 in respect of the electricity bill pertaining to H. No. C633, Sector 19, Noida, for the period December 1984 to 13/8/86. It is pertinent to mention here that the check period is only till 23/1/86, therefore, the entries of 31/3/86 and 13/8/86 totaling to Rs.404.90 has been excluded. Thus, only Rs.1,052.50 can be taken as an expenditure on account of electricity on account of C633, Sector 19, Noida. Accused had also been bearing expenses on account of electricity charges of East of Kailash house. Regarding this, documents have also been found during raid. I consider that amount of Rs.2,141.21 has rightly been shown as expenditure on account of electricity charges.
WATER CHARGES:
CBI has added a sum of Rs.1071/ as water charges on account of expenditure. However, even as per Ex.PW39/A, the total charges was Rs. 1155/ and that to upto 30/6/86. I consider that only a sum of Rs. 1100/ can be added as water charges.
CBI Vs. SR Arya CC No. 38/11 Page 94 of 119 9.39 ITEM NO. III - CHILDREN EDUCATION:
CBI has shown an expenditure of Rs.12,000/ on children education during the check period. In this regard, PW43 has duly proved the communication from the school indicating the fee and other charges paid by Master Ravi Shankar Arya and Master Sidharth Shankar Arya. The plea of the defence is that this expenditure was borne by Smt. Dulara Devi, i.e., the mother of the accused. However, it is totally improbable and unreliable that school fee and other charges would have been paid by the grandmother. Thus, I consider that this amount has rightly been shown as expenditure. 9.40 ITEM NO. IV - MAINTENANCE OF VEHICLE:
CBI has shown an expenditure of Rs. 6,666/ on account of expenditure on maintenance of vehicle. However, in order to prove this only a bill dtd. 14/5/85 Ex.PW44/P7 has been proved. Except this, there is no other evidence on record to prove this expenditure. I consider that in absence of any other document on record, the expenditure of Rs.6,666/ cannot be accepted and at the best, an expenditure of Rs.1000/ can be added in expenditure of the accused.
9.41 ITEM NO. V - INSURANCE PREMIUM PAID TO PEERLESS GENERAL FIN. & INVESTMENT CO. LTD.:
CBI has shown a sum of Rs.7,750/ and Rs.1,925/ as expenditure during the check period on account of premium. If we peruse CBI Vs. SR Arya CC No. 38/11 Page 95 of 119 the testimony of PW22 only, the premium paid upto 23/1/86 from the date of commencement has to be taken into account. I have calculated the premium paid only upto 23/1/86 and found that the same has rightly been shown in the expenditure.
INSURANCE PREMIUM LIC:
CBI has shown a sum of Rs.4,600/ to have been paid on LIC premium. During cross examination of PW35 Sh. SP Chadha it came that premium from 1/1/81 to 28/12/85 came to Rs. 4600/. Thus this amount has been rightly shown in the expenditure of the accused during the check period.
9.42 ITEM NO. VI - MEDICAL EXPENSES:
The accused was a CGHS beneficiary. He had been making contribution to it. CBI has not led any evidence regarding expenditure of Rs. 300/ as medical expenses. I consider that in absence of any evidence, the same cannot be accepted.
9.43 ITEM NO. VII - LOCKER RENT OF LOCKER 602 OF SR ARYA AND CHANDRA ARYA IN PNB:
Defence has not disputed the expenditure of Rs. 50/ incurred on the locker rent on account of locker No. 602 in the name of SR Arya and his wife Smt. Chandra Arya, in PNB, Nehru Place Branch, New Delhi. CBI Vs. SR Arya CC No. 38/11 Page 96 of 119 9.44 ITEM NO. VIII & IX COST OF ADDITION TO THE ANCESTRAL HOUSE IN VILL. SARAUNI, PURAB PATTI, PS KERAKAT & COST OF ADDITION TO FLAT NO. 167, SFS, PKT.B, EAST OF KAILASH, NEW DELHI:
CBI has added Rs.40,000/ as expenditure during the check period 1/1/81 to 23/1/86 to the cost of addition to the ancestral house in Vill. Sarauni, Purab Patti, PS Kerakat and Rs. 36,000/ as cost of addition to Flat No. 167, SFS, East of Kailash, New Delhi. In order to prove its case, the prosecution has relied upon report Ex.PW27/B dtd. 2/6/86 in respect of cost of addition to Flat No. 167, SFS and Ex.PW27/C dtd. 3/12/86 in respect of cost of addition.
(a) Finding in respect of cost of addition to the ancestral house in Vill. Sarauni, Purab Patti, PS Kerakat:
PW7 Sh. Ram Lakhan @ Lekhraj, a prosecution witness in his testimony deposed that the old hosue of Sh. Jagannath Ram was constructed near about in the year 1965 comprising of 6 rooms in the ground floor and 6 rooms in the first floor and no new construction was done by him. Similarly, PW10 Lalita Prasad another prosecution witness stated that the entire construction is of the year 196566 and the house was got repaired by the mother and younger brother of accused SR Arya. PW36 Sh. Hansraj Pathak, another prosecution witness during the cross examination stated that Sh. Jagannath Ram had a pucca house having 6 rooms on the ground floor and 6 rooms on the first floor and the same was constructed in the year 1964. The CBI Vs. SR Arya CC No. 38/11 Page 97 of 119 witness stated that he had seen Dayaram Arya get his house repaired in the year 1985 as the construction was very old and the house was in dilapidated condition. PW36 had also proved letter Ex.PW36/D1 (D155) written by Sh. Dayaram Arya. In this letter Sh. Dayaram Arya had written about construction / repair work in the house. DW5 Dayaram specifically stated on oath that his father had constructed the double storey house consisting of 6 rooms on each floor in the year 196465. Sh. Dayaram stated that the maintenance of the house was carried out by him or his mother Smt. Dulara Devi, out of their own resources and SR Arya did not spend any money on the repair of the said house. CBI did not cross examine this witness in respect of this averment. If we peruse the report Ex.PW27/C, we would find that the IO only sought the evaluation of the first floor. During inspection, it was found that the first floor was provided with only door frames, neither electricity installation, nor sanitary installation and even water supply was not available on the first floor. The flooring had also not been done and plastering of external face was also not available. Pw27 had given the cost of construction of the first floor approximately Rs.40,000/. If we peruse the cross examination of PW27, he had admitted in the cross examination that he did not make any local enquiry. There is no basis for reaching at the figure of Rs. 40,000/. I have only found a computation Ex.PW27/C. However, on what basis this computation has been done is not reflected in the report. I consider that the report Ex.PW27/C in respect of cost of construction of the ancestral house at Village Sarauni, Tehsil Kerakat, Purab Patti UP cannot be CBI Vs. SR Arya CC No. 38/11 Page 98 of 119 accepted. Hence, Rs.40,000/ added as expenditure and item No. 8 is liable to be disallowed.
(b) Finding in respect of cost of addition at Flat No. 167, SFS, Pocket B, East of Kailash:
CBI has added a sum of Rs. 36,500/ as cost of addition to Flat No. 167, SFS, Pocket B, East of Kailash. CBI has relied upon the report Ex.PW27/B. Perusal of the report indicates that some addition / alteration i.e. one additional room and cupboard etc were provided by the accused and based on the above assumptions, the cost of addition / alteration works out to Rs.36,500/. It is admitted by the witness that no siteplan or the basis of the arriving at the figure of 312 has not been mentioned in the report. The defence has examined DW1 Sh. BP Singh. Sh. BP Singh is a qualified Bachelor of Engineering in Civil from Delhi College of Engineering, Kashmere Gate, Delhi. He stated that after taking dimension of the additional room and on the basis of dimension and documents supplied by the accused, he prepared the valuation report. He proved the report as Ex.DW1/A. As per the evaluation report of DW1, the total cost of addition was Rs.8,227/. The witness stated that he computed the cost on the basis of plinth area rate of CPWD as well as item rate and the details of the same has been mentioned in report Ex.DW1/A. The relevant extract of CPWD of cost of dices of Delhi since 1980 has been proved as Ex.DW1/D. The defence has vehemently argued that the cost of addition as given by the CBI is highly exaggerated. The report Ex.PW27/B is totally unreliable and in the valuation CBI Vs. SR Arya CC No. 38/11 Page 99 of 119 even the dimension have not been mentioned. Nor the witness was able to tell the kind of construction carried out by the accused. On perusal of the record, I have found that in the DDA file the siteplan Ex.PW27/D1 is in place. However, unfortunately, in this siteplan also, dimensions have not been mentioned. However, it is clear from the file that the room was constructed over the terrace of ground floor and balcony was constructed on the rear courtyard by increasing the coverage and entry. In the written arguments, the accused has stated that maximum addition of the construction was Rs. 5,0006,000/. It is cardinal principle that prosecution is duty bound to prove the case beyond reasonable doubt. It was for the prosecution / CBI to prove that the accused had incurred the expenditure of Rs.36,500/ as an addition in the Flat No.167, SFS, Pocket B, East of Kailash, New Delhi. However, I consider that CBI has miserably failed to prove the same. During the arguments, the defence has given a vague figure of Rs. 5,0006,000/. In absence of any other cogent and credible material, I consider that figure given by the expert DW1 Sh. BP Singh, as Rs. 8,227 can be added as expenditure as cost of addition to Flat No. 167, SFS, Pocket B, East of Kailash can be taken into account.
9.45 ITEM NO. X : OTHER HOUSEHOLD EXPENSES INCLUDING KITCHEN EXPENSES:
CBI has added Rs. 36000/ on account of other household expenses including kitchen expenses. The defence has put a serious CBI Vs. SR Arya CC No. 38/11 Page 100 of 119 challenge to it. It has been submitted that accused belongs to a agriculturist family and most of the wheat, pulses, ghee etc comes from the village. Mother of the accused also used to live with accused only. She was an old lady with no liability and therefore, used to contribute towards kitchen expenses of the accused. Accused has pleaded that only Rs.6,000/ may be taken as other household expenses including kitchen expenses. Ld. PP has taken a plea that it is a settled norm that 1/3rd of the income is to be taken as the other household expenses including kitchen expenses. In day to day living, there are number of expenses in the household which cannot be verified. There cannot be any record of such expenses. These are unverifiable expenses and it is very difficult to assess the same. These expenses would be indicative of lifestyle being led by a particular family, which would depend upon the standard of life being maintained by a particular family. There is a huge difference of lifestyle between the persons belonging to rural background and persons belonging to urban cities. The persons from rural background have the tendency to lead a simple life. It has also to be borne in mind that the plea of accused has to be tested on the basis of condition of life from 198085. Now situation is totally different. But during those days, people still had not fallen into much consumerism and there was a general habit of leading a simple life. The people from rural background also often receive support from their parents. It is also a common practice from the persons belonging to rural background that pulses, wheat , rice etc comes from the village. I consider that all these CBI Vs. SR Arya CC No. 38/11 Page 101 of 119 factors have to be taken into consideration. The amount suggested by the defence as Rs. 6,000/ to have been spent on household expenses is on a lower side. But I consider that taking into account the testimony of PW7 Ram Lakhan, PW10 Lalita Prasad, DW3 Rajaram, DW5 Dayaram and DW6 Chandra Arya, a sum of Rs. 25,000/ may be taken as other household expenses other than kitchen expenses.
9.46 ITEM NO. XI - EXPENSES FOR PURCHASE OF EXHAUST FAN:
CBI has shown an expenditure of Rs.495/ on the part of the accused during the check period for purchase of exhaust fan. If we peruse the search cum observation memo, an exhaust fan of the year 1974 has been shown to have been installed in the kitchen and the value of the same has been shown as Rs. 125/ at item No. 77. However, I do not find mention of any other exhaust fan found during the search of the accused. There is no mention of name on the bill, therefore, this amount cannot be added in the expenditure made by the accused during the check period. Similarly, there is no cogent and credible evidence regarding expenditure of Rs.3,190/ on account of purchase of Geyser and bath tub. It is pertinent to mention here that a sum of Rs.16,884.26 has been added as an asset on account of 'Electrical Gadgets'.
CBI Vs. SR Arya CC No. 38/11 Page 102 of 119 9.47 ITEM NO. XII - INTEREST PAID TO COOPERATIVE THRIFT & CREDIT SOCIETY LTD., UDYOG BHAWAN, NEW DELHI:
The defence has not raised any objection towards the expenditure of Rs. 572.85 incurred on the interest paid to Cooperative Thrift & Credit Society Ltd., Udyog Bhawan, New Delhi. 9.48 ITEM NO. XIII - REPAYMENTS MADE TO CO OPERATIVE THRIFT & CREDIT SOCIETY LTD., NEW DELHI:
The defence has also not raised any objection towards the expenditure of Rs. 3,000/ incurred on the repayment made to Cooperative Thrift & Credit Society Ltd., Udyog Bhawan, New Delhi. 9.49 ITEM NO. XIV - PAYMENT MADE TO SH UK CHAUDHARY, BROTHER IN LAW VIDE DRAFT FOR RS. 5000/ GOT MADE FROM UNION BANK OF INDIA, NOIDA BY SR ARYA ON 12/6/1982:
CBI has shown a sum of Rs.5,000/ as expenditure on account of payment made to Sh. UK Chaudhary, brother in law vide draft of Rs. 5,000/ of Union Bank of India on 12/6/82. During the cross examination, the defence has disputed this expenditure. It has been stated that the accused had taken Rs.5,000/ in first week of June 1982 from UK Chaudhary, who is his i.e., accused's brother in law and since the same was not utilized, it was returned back to UK Chaudhary. This fact has been confirmed by Sh. UK CBI Vs. SR Arya CC No. 38/11 Page 103 of 119 Chaudhary, when he appeared as DW4. The accused also emphasised that this amount of Rs.5,000/ was not indicated in the earlier chargesheet. I have perused the testimony of DW4 UK Chaudhary. He has stated that in June 1982, SR Arya had come to Varanasi and asked for a loan of Rs.5,000/ from him i.e., UK Chaudhary on which he advanced a loan of Rs.5,000/ to SR Arya. The accused refunded back the loan vide demand draft Ex.PW44/B dtd. 12/6/82. There is no substantial cross examination in this regard by CBI. I consider that in absence of any cogent evidence, this amount of Rs.5,000/ cannot be added in the expenditure of the accused. There is no plausible reason to disbelieve the specific averment of DW4 UK Chaudhary in this regard. Hence, this item is liable to be deducted. 9.50 ITEM NO. XV - CONTRIBUTION TO CGHS:
As per salary chart on page No. 32, a sum of Rs.60/ has been deducted towards CGHS. I consider that this expenditure is to be added. 9.51 ITEM NO. XVI - REPAYMENT MADE TO HOUSING BUILDING ALLOWANCE AND GPF:
The defence has not disputed the expenditure on Housing Building Allowance and GPF in the sum of Rs.37,077/. 9.52 INCOME OF SMT. DULARA DEVI:
Sh. Ram Lakhan, PW7 had appeared as prosecution witness. However, instead of proving the case of the prosecution, the witness seems CBI Vs. SR Arya CC No. 38/11 Page 104 of 119 to have proved the case of the defence. The witness specifically stated that Sh. Jagannath, father of the accused had left behind 89 bighas of land and gardens of mango trees, mahua trees, bamboo trees, guava trees and seasam trees etc. The witness stated that Smt. Dulara Devi must be having annual income of Rs.60,000 - 70,000/from these gardens. It is pertinent to mention here that it was stated that Smt. Dulara Devi was also getting pension after the demise of her husband. The witness also proved that Smt. Dulara Devi had been helping her sons and grand sons with the contribution in kitchen expenses. It is worth mentioning that as far as agricultural income is concerned, even the case of the prosecution is that Smt. Dulara Devi was having agricultural income. As per certificate Ex.PW6/A itself, the annual income of Smt. Dulara Devi was around Rs.24,000/ per annum. In contradiction, in another certificate proved by the prosecution itself Ex.P44 (D173) dtd. 6/6/86, the annual income of Smt. Dulara Devi from agriculture and fruit trees was Rs.33,390/. This document has duly been forwarded by Tehsildar, Tehsil Keramat, Dist. Jaunpur, UP and seems to have been received by the CBI in June 1986. For obvious reason, the CBI did not examine any witness regarding this. Apparently, the CBI is breathing hot and cold in the same breath. At one point of time, CBI tried to demolish the certificate given on Ex.PW6/A as per which the only income of Smt. Dulara Devi was Rs.24,000/ per annum. However, at the same time, filed another document alongwith chargesheet Ex.P44 which reveals the income of Smt. Dulara Devi as Rs.33,390/ per annum. During appreciation of evidence, in CBI Vs. SR Arya CC No. 38/11 Page 105 of 119 such like cases, the Court is required to take broad and liberal view. The Court may not entrap itself into the accounting of pie's. Broadly, it has to be seen that whether the explanation given by the accused stands to the test of "satisfactory explanation". The defence in the present case has consistently been taking the plea that Smt. Dulara Devi had sufficient agricultural income and she had been contributing a lot to her eldest son Sh. SR Arya. Thus, there is not reason to reject the testimony of PW7 Ram Lakhan simply because he has been declared hostile by the prosecution. It is a settled proposition that the testimony of a hostile witness cannot be rejected outrightly. The duty of the Court is to separate the grain from the chaff and to churn out the truth from the entire mass of evidence. The testimony of PW7 clearly indicates that Smt. Dulara Devi had sufficient income from agriculture and orchards. If we peruse the testimony of PW10 Lalita Prasad also, it is clear that Smt. Dulara Devi had considerable income from agriculture of orchards. Besides this, she was also getting pension after the death of her husband. As discussed above, the testimony of PW10 cannot be rejected outrightly only because he has been declared hostile.
9.53 INCOME CERTIFICATE OF SMT. DULARA DEVI:
CBI has challenged the income certificate issued by PW6 Sh. Pancham Ram. The plea of the CBI is that this certificate had been got issued by the accused under pressure from the witness. In this regard, if we CBI Vs. SR Arya CC No. 38/11 Page 106 of 119 go through the testimony of PW6 Pancham, it seems that the plea of the CBI is liable to be rejected. I have perused the application Ex.PW6/A, wherein a request has been moved for issuing a monthly income certificate of Smt. Dulara Devi. The application has duly been forwarded by Tehsildar to the junior officer. On the face of it, it seems that the application has duly been processed. It is also worth mentioning that the alleged complaint was moved by Sh. Pancham on 11/4/86 i.e., after more than two months of the issuance of the income certificate. It has also come in the cross examination that the office of Tehsildar was constituted at a distance of 100ft from the office of PW6 Sh. Pancham. It is quiet strange that the witness who was working as Revenue Officer at Tehsil had issued the income certificate under pressure and choose to make the complaint after two months. Rather, it seems that the subsequent complaint has been manufactured for some specific purpose. In this regard, the testimony of PW6 Sh. Pancham is not reliable and liable to be rejected. It is, however, pertinent to note that revenue officers had also issued another certificate for which the income of Smt. Dulara Devi has been shown to be around Rs.33,390/ as per document Ex.P44.
10.0 Now, for the purpose of appreciation, the final conclusion regarding the statement 1 to 4 are as follows:
CBI Vs. SR Arya CC No. 38/11 Page 107 of 119 Statement No. 1
S. Description of the assets Actual Amount Amount Plea of after actually No accused amendment as before shown in amendment chargesheet dtd as shown in 21/12/96 (in Rs.) chargesheet dtd. 22/3/88 (in Rs.)
1. Balance in Banks: Not
(i) S.B. A/c No. S1744 of Sita 3,091.14 disputed Ram Arya with Allahabad Bank, Parliament Street, New Delhi.
6,860.32
(ii) S.B. A/c No. 15484 of SR 2,769.18 Arya with SBI, Nirman Bhawan, New Delhi.
Total 5,860.32
2. Value of house hold effects 22,015.00 21,080.00 Not
disputed
3. LIC Premium paid. 6,670.00 6,670.00 Not
disputed
4. Amount paid to DDA for 1,200.00 1,200.00 Not
registration of a flat in the name disputed
of his wife Smt. Chandra Arya.
5. Amount paid for registration of 2,610.00 (+) 2,610.00 Not
one MIG Flat in Noida upto 7,500.00 disputed
31.12.80 10,110.00
CBI Vs. SR Arya CC No. 38/11 Page 108 of 119
The Statement No. 1 has not been disputed by the accused at all. Therefore, the amount mentioned therein are taken on record for computing the DA.
Statement No. 2 ASSETS : IMMOVABLE AND MOVABLE AT THE END OF THE CHECK PERIOD i.e., 23.01.1986 S. Description of Actual Amount Plea of Finding of No the assets Amount after actually before accused the Court amendment amendment as as shown in shown in chargesheet chargesheet dtd. 22/3/88 (in dtd 21/12/96 Rs.) (in Rs.) MIG flat bearing 1,80,532 1,80,532 Not disputed 1,80,532.00 I No. 167 in Pocket -
B, SFS East of Kailash New Delhi allotted to S.R. Arya by the DDA in 1981 Flat no. C-633 in Sector - XIX, II Noida for Rs.
46200/- towards 39,544.00 29,434.00 Not disputed 39,544.00 which Rs. 29434/-
was paid during check period (in the name of S.R. Arya) LIG Flat NO. 184- A, VI-VI, Rohini in III the name of Smt. 8,848.00 Chandra Arya for (Plea of Rs. 48000/- against 8,848.00 7,648.00 Disputed accused which a sum of RS.
rejected) 7648/- was paid during check period.
CBI Vs. SR Arya CC No. 38/11 Page 109 of 119 MOVABLE ASSETS.
BANK BALANCE
Allahabad Bank 12,784.96 12,784.96 Denied 12,784.96
IV Parliament Street, (Plea of the
New Delhi in the accused
name of Sh. S.R. rejected)
Arya and his wife
bearing A/C No.
S-1744
Allahabad Bank, 10,909.90 10,909.90 Denied. Plea of the
V Noida Branch in the Belong to accused
name of Chandra Smt. Dulara accepted
Arya and Dulara Devi
Devi (mother)
bearing A/C No. 694
Punjab National 500.00 500.00 Denied Not proved
VI Bank, Nehru Place
Branch, New Delhi
in the name of Sh.
S.R. Arya and his
wife bearing SB A/c
No. 5973
Canara Bank, 5,484.70 5,484.70 Not disputed 5484.70
VII Parliament Street,
New Delhi in the
name of Sh. S.R.
Arya and his wife
bearing A/C no.
15529
State Bank of India, 940.81 891.46 Not disputed 940.81
VIII Nirman Bhawan
Branch, New Delhi
in the name of Sh
S.R. Arya SB A/c no.
15484
IX Fixed Deposits in the 40,000.00 40,000.00 Disputed Defence plea
name of S.R. Arya & accepted
Chandra Arya 40,000.00
X National Saving 5,800.00 5,800.00 Not disputed 5800.00
Certificate.
XI Gold Ornaments 76,813.00 76,981.12 Disputed 1,512/- (plea
including cash of Rs. of accused
1512/- regarding
CBI Vs. SR Arya CC No. 38/11 Page 110 of 119
jewellery
accepted)
XII Furniture & carpets 13,350.00 3,100.00 Disputed 31,00.00
etc.
XIII Maruti Car 86,900.00 86,900.00 Not disputed 86900.00
XIV Radio, TV etc. 13,000.00 13,000.00 Disputed 13,000.00
XV Electrical Gadgets 20,759.26 16,884.26 Disputed 16,884.26
XVI Water, Pen, Paintings 1,210.00 1,100.00 Disputed 280.00
(Admitted
Rs.280/-)
XVII Other assets 25, 985.00 20,382.00 Disputed 20382.00
(Admitted
Rs. 1165/-)
XVIII GPF Nil Nil Nil 27675.00
XIX CGEGIS Nil Nil Nil 3980.00
Statement No. 3
TOTAL INCOME DURING THE CHECK PERIOD FROM 1.1.81 TO 23.1.86 S. No Description of Actual Amount actually Plea of held the assets Amount before accused after amendment as amendment shown in chargesheet dtd.
as shwon in 22/3/88 (in Rs.) chargesheet dtd 21/12/96 (in Rs.) Total income by way of salary and I allowances of the accused during the 1,46,387.75 check, period after (1,48,341.75 -
all recoveries 77,775.40 75,614.30 1,47,245.00 1954.00 calculated on the (Income Tax) basis of the salary statement furnished by the department.
II Rental income of 3,200.00 Not 3200.00
flat No. C-633 in 3,200.00 disputed
CBI Vs. SR Arya CC No. 38/11 Page 111 of 119
Noida @ Rs. 800/-
p.m. From Oct.
1985 to January
1986.
GP Fund Advance
III taken by Sh. S.R.
Not
Arya from his 52,052.00 52052.00
52,052.00 disputed
department on
different dates.
IV House building Not
63,000.00 63,000.00 63,000.00
advance of Rs. disputed
V Loan Taken from 27,000.00 27,000.00
Not
Mother in law Smt. 27,000.00
disputed
Kalawati Devi
VI Loan taken from
Not
brother in law Sh. 10,000.00 10,000.00 10,000.00
disputed
U.K. Chaudhary
Loan taken from
Technical
VII Development
Thrift Society /
Coop. Society Nil. 15,000.00 Disputed Plea rejected
DGTD and
Technical
Development Hire
Purchase Society.
VIII Sale of ornaments
to M/s Tribhuvan
Das Bhimji Zaveri,
Janpath, New Not
44,374.00 44,374.00 44,374.00
Delhi.at two disputed
occasion for Rs.
25390/- and for
Rs. 18984/-
Loan from mother
IX Smt. Dulara Devi
taken on 28.2.1985 Not
60,000.00 60,000.00 60,000.00
towards purchase disputed
of Maruti car by
the accused.
X Premium on sale Not
3,402.00 3,402.00 3,402.00
of two scooters. disputed
XI Interest from 3,608.00 1,862.00 Not 3,608.00
CBI Vs. SR Arya CC No. 38/11 Page 112 of 119
Deposits with
disputed
DDA / Hudco.
XII Deposits refunded
Not
by DDA / 3,500.00 3,500.00 3,500.00
disputed
HUDCO.
XIII Deposit refunded
by M/s Supreme
Not
Motors with 13,584.00 13,250.00 13,584.00
disputed
interest.
XIV Interest accrued on
SB account during 3,800.17 Not shown in Not
3,800.17
check period. charge-sheet disputed
XV Refund from UP
4,059.00 Not shown in Not
Housing Hoard. 4,059.00
charge-sheet disputed
CBI Vs. SR Arya CC No. 38/11 Page 113 of 119
Income from
accounts with post
XVI offices in the name
of S.R.Arya and
his family
members, as
claimed by
accused S.R. Arya
in written
arguments
submitted by him
in the court of Spl.
Judge, Delhi.
i) SB A/c
5872896 in the
name of Chandra
Arya wife of
accused, with R.K. 20,451.60
Puram Sector -3
post office New
Delhi.
ii) SB A/c No.
6002031 in the
name of Monu,
Youngest son of
the accused with 12,433.80
Nirman Bhawan
post office New
Delhi.
iii) SB A/c No. Not shown in Not
5537410 in the 50,116.20
charge-sheet disputed
name of Tony, son
of the accused with
Udyog Bhawan 12,493.75
Post office, New
Delhi.
iv) SB a/c no.
660427 in the
name of accused
S.R. Arya with
Udyog Bhawan, 633.75
Post office, New
Delhi.
v) SB A/c No.
309514 in the
name of accused
CBI Vs. SR Arya CC No. 38/11 Page 114 of 119
XVII Loan from brother
Rajaram Arya
Nil Nil 7,132.00 7,132.00
Loan taken from Nil Nil 1,500.00 Rejected as
friend no name of
friend
XVIII Gift received from Rejected
Thrift Society Nil Nil 5,000/-
Statement No. 4
TOTAL EXPENDITURE DURING THE CHECK PERIOD FROM 1.1.81 TO 23.1.86 S. No Description of Actual Amount actually Plea of Findings on the assets Amount before accused the basis of after amendment as evidence amendment shown in chargesheet dtd.
as shown in 22/3/88 (in Rs.) chargesheet dtd 21/12/96 (in Rs.) I House Rent @ Rs. Nil 2009.00 287/- p.m. From (Paid by Plea of 2,009.00 2,009.00 January 81 to July Dulara accused
81. Devi) rejected Water & 3,932.21 3,932.21 Not II Electricity 3932.21 disputed Charges III Expenditure on Nil 12000.00 Children (Paid by Plea of 12,000.00 12,000.00 education. Dulara accused Devi) rejected IV Maintenance of 6,666.00 6,666.00 1000.00 1000.00 Vehicle Insurance 14,275.00 14,275.00 5469.38 14275.00 V Premium LIC premium paid to peerless General Fin. & Investment CBI Vs. SR Arya CC No. 38/11 Page 115 of 119 co. Ltd.
VI Medical expenses 300.00 300.00 Disputed Nil
VII Locker Rent of
locker No. 602 of
S.R. Arya + Not
50.00 50.00 50.00
Chandra Arya disputed
with PNB Nehru
Place, New Delhi.
Cost of addition to
VIII the ancestral
House in village 40,000.00 40,000.00 Disputed Nil
Sarauni, Purab
Patti, PS Kerakat.
Cost of addition to
IX flat no. 167, SFS
Pkt. B, East of 36,500.00 35,580.00 8227.00 8227.00
Kailash, New
Delhi
X Other Household
expenses including 36,000.00 36,000.00 6000.00 25000.00
kitchen expenses.
Expenses for
XI purchase of
495.00 Not shown in
1. Exhaust Fan Disputed Nil
3,190.00 charge-sheet
2. Geyser & Bath
Tub
Interest paid to
XII cooperative Thrift
& Credit Society Not shown in Not
572.85 572.85
Ltd, Udyog charge-sheet disputed
Bhawan New
Delhi.
Repayments
XII made to
cooperative Thrift
Not shown in Not
& Credit Society 3,000.00 3000.00
charge-sheet disputed
Ltd. New Delhi
during check
period.
Payment made to 5,000.00 Not shown in Disputed Nil
U.K. Chaudhary, charge-sheet
XIV brother in law vide
draft for Rs.
CBI Vs. SR Arya CC No. 38/11 Page 116 of 119
5000/- got made
from Union Bank
of India, Noida by
S.R. Arya on
12.6.1982
XV Contribution
Nil Nil Nil 60.00
CGHS
XVI Repayment made
Nil Nil Nil 37,077.00
HBA, GPF
Statement No.5
CALCULATION OF DISPROPORTIONATE ASSETS :
A. Total Income during the check perod i.e Rs. 4,95,215.17
during 1.1.81 to 23.1.86
B. Expenditure during the check period i.e. Rs. 1,07,203.06
during 1.1.81 to 21.1.86
C Likely Savings during the check period Rs. 3,88,012.11
i.e. during 1.1.81 to 23.1.86 (A-B)
D Assets at the end of check period i.e. as Rs. 4,67,647.73
on 23.1.86
E Assets in the begnning of check period Rs. 45,855.32
i.e. as on 1.1.1981.
F Assets acquired during Check period i.e. Rs. 4,21,792.41
1.1.81 to 23.1.86 (D-E)
G Disproportionate Assets (F-C) Rs. 33,780.30
CBI Vs. SR Arya CC No. 38/11 Page 117 of 119
10.1 In Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796
it was held that the margin of 10% of the total income of the appellant be allowed while computing the disproportionate assets. Similarly, in Ashok Tshering Bhutia Vs. State of Sikkim, 2011(2) RCR Crl. 99, it was inter alia held that the unexplained income remains to be Rs.2.71 lakhs against the total income during the check period of around Rs.30.43 lakhs. The Apex Court relying upon State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88, held that it cannot be said that there is no disproportion or even a sizable disproportion. It was further held that if the said amount is spread over the check period, there is a marginal sum which any government employee can save every year.
In the present case also, on the basis of computation made herein above, the total income comes out to be Rs.4,95,215.17p and the unexplained assets comes out to be Rs. 33,780.30p. Therefore, taking into account the various judgments wherein it has been held that a liberal approach has to be taken and if the DA comes to 10%, the benefit can be given to the accused. The total assets has been computed to be Rs. 4,67,647.73. The DA comes much less than 10% of the assets. I consider that in these circumstances, accused is entitled to be acquitted. Hence, accused Sita Ram Arya is acquitted of the charge u/s 5(2) r/w 5(1) (e) of the PC Act, 1947 in RC No. 1/86.
CBI Vs. SR Arya CC No. 38/11 Page 118 of 119
Accused is on bail. Surety is discharged. Bail bond / surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgment.
10.2 In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.25,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months. 11.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma)
on 12/04/2012 Spl. Judge (PC Act) : CBI
Saket Courts : New Delhi
CBI Vs. SR Arya CC No. 38/11 Page 119 of 119