Delhi District Court
Cc 107/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Ors. 1 on 17 August, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 107/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No.02401R0046712009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Narender Kumar
S/o Shri Ved Prakash
R/o G-57, Mohan Garden, New Delhi.
3. Sandeep Mittal
D/o Shri C.P. Mittal
R/o D-15, Fateh Nagar, New Delhi.
4. Suman Mittal
W/o Sh. Sandeep Mittal
R/o D-15, Fateh Nagar, New Delhi.
5. Baldev Singh (since deceased)
S/o Sh. Charan Singh
R/o D-15, Fateh Nagar, New Delhi.
6. Jasbir Singh
S/o Sh. Lal Singh
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 1
R/o F-4-A, Mukhram Garden, New Delhi.
7. Harbans Kaur
W/o Sh. Pratap Singh
R/o D-15, Fateh Nagar, New Delhi.
8. Manjeet Kaur
D/o Shri Sohan Singh
R/o D-15, Fateh Nagar, New Delhi.
(proceedings against her have been deferred/kept in abeyance as
per order dated 17.03.2012).
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 17.08.2013
Date of Judgement : 17.08.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Sh. Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW16 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW16/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 2 Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW17/A bearing RC 1/2007 was accordingly registered and investigated by PW17 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution.
Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
2. In brief the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW16/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 3
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Dehi
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 4 abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW17 Insp. N. Mahato and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution is that property no. D-15, Fateh Nagar measuring about 200 sq. yards with some constructed area was initially owned by Sohan Singh son of Tara Singh and the property was bequeathed vide Will in favour of his daughter Smt. Balbir Kaur. The investigating agency without elaborating on the chain vide which the property was passed by Smt. Balbir Kaur to subsequent purchasers has submitted in the charge sheet that in the year 1998, accused Narender Kumar came to possess the basement and ground floor in the aforesaid property after the same was purchased from Shri Raghubir Singh Jain vide Sale Deed and continued to hold his property as owner till 30.07.2003. Accused Manjeet Kaur was owner of flat at the first floor in front side of the property as on 31.08.1999 till 10.01.2005. Further accused Sandeep Mittal and Suman Mittal were owners of a flat on the first floor on back side of the property as on 30.10.2001. Accused Baldev Singh (since expired) was owner of a flat on the second floor in front side as on 13.07.2000 whereas accused Jasbir Singh was the owner of a flat on the back side from 23.03.1999 onwards. Accused Harbans Kaur is CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 5 stated to be the owner of a flat on 3rd floor on the back side as on 07.09.1999.
It is further the case of prosecution that the entire construction of the building from basement to third floor was unauthorised and had been constructed without obtaining any sanctioned building plan from MCD, West Zone, Rajouri Garden. Further, the property was booked on 30.07.2002 for unauthorised construction of basement, ground floor, first floor, second floor and third floor vide FIR No. B/UC/WZ/02/351 dated 30.07.2002 (Ex.PW2/A) by Shri U.C. Saxena, JE. Thereafter, a show-cause notice dated 01.08.2002 u/s 344 of DMC Act (Ex.PW2/C) was issued to the owner/builder. Since no reply was received in response to aforesaid notice dated 01.08.2002, notice u/s 343 of DMC Act dated 07.08.2002 was issued under the orders of Shri D. P. Gupta, then AE(B), MCD, Rajouri Garden to the owner/builder of the property directing them to take action for demolition of the property within 6 days as the property had been constructed against the building bye-laws. In view of the fact that no response was further received to the said notices, a proposal dated 14.08.2002 was put up by Shri U.C. Saxena, JE for issuing the demolition order which was approved by the AE(B) on 14.08.2002 (Ex.PW2/F).
It is next the case of prosecution that Ajay Kumar Shrotriya in conspiracy with co-accused, recorded a false entry dated 09.01.2003 in the unauthorised construction file (i.e. on the back of the demolition order dated 14.08.2002) mentioning therein "demolished/punctured the walls of toilet at third floor partly". The said entry is alleged to be fabricated since no corresponding entry relating to demolition of the property was made by Ajay Kumar Shrotriya in the demolition register and the demolition was not shown in the monthly statement of CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 6 demolition for the month of January, 2002. Even demolition charges were not raised from the owners of the property in respect of alleged demolition action. It is also alleged that as per the programme fixed by MCD, the demolition within the jurisdiction of PS Tilak Nagar was fixed on 09.01.2003 while the aforesaid property came under the jurisdiction of PS Hari Nagar.
Prosecution further relied upon the fact that property was inspected by a team of officers from CPWD during investigation and vide report dated 30.01.2008, the unauthorized construction existing at site was pointed out.
It may be appropriate to observe at this stage that though accused Manjeet Kuar had also been impleaded as an accused in the charge-sheet but during course of proceedings, it was noticed at the stage of service of summons that accused Manjeet Kaur who is alleged to be the owner of one of the flats was never joined during investigation by the investigating agency at any point of time. It was further reported at aforesaid stage that accused Manjeet Kaur was reported to have shifted to USA and her present particulars were not traceable and available with the investigating agency. In the facts and circumstances, it was fairly requested on behalf of prosecution that proceedings against Manjeet Kaur be kept in abeyance and shall be further taken up as and when the prosecution is able to trace the particulars of accused Manjeet Kaur. In the aforesaid facts and circumstances, proceedings against Manjeet Kaur have been kept in abeyance, as requested by prosecution.
4. Charge was framed against accused Ajay Kumar Shrotriya, CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 7 Narender Kumar, Sandeep Mittal, Smt. Suman Mittal, Jasbir Singh and Smt. Harbans Kaur u/s 120(B) r/w Sec 417/465/468/217 IPC r/w Sec 13(2) alongwith Sec 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences u/s 417/465/468/217 IPC and u/s Sec 13(2) r/w Sec 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined seventeen witnesses, namely:
i. Shri Lal Chand ii. Shri Moti Lal iii. Shri Ashok Kumar iv. Shri Vijay Kumar Kadyan v. Shri B.D. Bansal vi. Shri Kamaljeet Singh vii. Shri Umesh Chand Saxena viii. Shri D.P. Gupta ix. Shri Sanjiv Kapoor x. Shri Jagmohan Swarup xi. Shri Ravinder Rawal xii. Shri Hardayal Singh xiii. Smt. Darshan Kaur xiv. Shri R.S. Rana xv. Smt. Iqbal Kaur xvi. SI Arvind Kumar xvii. Insp. N. Mahato
(a) PW16 SI Arvind Kumar conducted the preliminary enquiry prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 8 in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined by him along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya, JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. He further stated that accused Ajay Kumar Shrotriya being a public servant abused his official position to cause undue pecuniary advantage for himself or other private persons and accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC. Further, in this respect, a letter dated 23.01.2007 (Ex.PW16/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri.
(b) PW3 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE and proved the sanction order Ex.PW3/A.
(c) PW5 Shri B.D. Bansal, SE, CPWD, PW9 Shri Sanjiv Kapoor, Senior Architect, CPWD and PW10 Shri Jagmohan Swaroop, SE, CPWD proved the report Mark PW5/A (Ex.PW9/A1) in respect of inspection of property bearing no. D-15, Fateh Nagar, New Delhi. They deposed that the plan along with the report reflect CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 9 the permissible construction as per building bye-laws of 1983 and actual coverage at site.
(d) PW7 Shri Umesh Chand Saxena, JE, DDA Eastern Division-
IV deposed that he remained posted as JE in MCD West Zone on deputation from DDA from 02.05.2002 till 31.12.2002. Further, FIR No. B/UC/WZ/02/351 dated 30.07.2002 (Ex.PW2/A) was lodged by him in respect of property no. D-15, Fateh Nagar regarding unauthorized construction, which was put up before the concerned AE Shri D. P. Gupta on the same date on which he had ordered "issue notices" at point C. On the basis of FIR (Ex.PW2/A), a show-cause notice u/s 344 of DMC Act dated 01.08.2002 was ordered to be issued by the then AE Shri D.P. Gupta whose signatures are at point A and his counter signatures are at point B. He further stated that an endorsement was made by him on the back of the notice at point A to the effect "I went to site to serve the notice but O/B refused to receive the notice. If agreed, notice pasted at site" and same also bears his signature, which was put up before AE Shri D.P. Gupta for further necessary action. Further endorsement was made by him at point D on the notice regarding pasting of the notice at site in the presence of witnesses under his signature alongwith signatures of two witnesses. He further proved endorsement under his signature on the back of the notice u/s 343 DMC Act dated 07.08.2002 (Ex.PW2/E) at point A seeking permission to paste the same and also bearing the signatures of the then AE Shri D. P. Gupta at point C on Ex.PW2/E. He further stated that endorsement was made at point B on notice (Ex.PW2/E) regarding pasting of the notice at site in presence of the witnesses under his signature alongwith the signatures of two witnesses.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 10 He further proved demolition order dated 14.08.2002 (Ex.PW1/F) bearing his signatures at point A which was approved by the then AE Shri D.P. Gupta at point B. He further stated that an endorsement was made on the back side of Ex. PW-2/F to the effect "demolished/punctured the walls of toilet and third floor partly" dated 09.01.03 under signatures of Ajay Shrotriya at point C and the file had been marked to AE (B). He further clarified that he remained posted in West Zone till 14.08.2002.
(e) PW8 Shri D.P. Gupta deposed that being AE(B) in West Zone from November, 2001 till September, 2002, he was looking after the work of unauthorized construction and demolition as reported by the concerned JE of the area. Further, as per procedure, file for demolition was to be taken by the concerned JE from OI (B) as per the programme fixed by the XEN and OI(B) in advance as per monthly schedule and thereafter, after carrying such demolition the file was used to be put up before him for its confirmation and the same was to be marked to concerned OI(B).
He further stated that FIR No. B/UC/WZ/02/351 dated 30.07.2002 (Ex.PW2/A) pertains to property no.D-15 Fateh Nagar and bears the signatures of the then JE Mr. Saxena at point B alongwith his signature at point C with an endorsement "issue notices".
Further, on the basis of this FIR, a show cause notice u/s 344 of DMC Act dated 01.08.2002 was ordered to be issued by him which also bears the signatures of Sh. U.C. Saxena at point B. He further proved endorsement on the back of the notice by Sh. U.C. Saxena seeking permission to paste the notice at site along with endorsement at point D by U.C. Saxena to the effect "notice pasted at site in CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 11 presence of witnesses".
He further stated that notice u/s 343 of DMC Act dated 07.08.2002 Ex.PW2/E bears his signature at point A along with initials of Sh. U.C. Saxena, JE. Further, an endorsement was made on the back of the notice at point B in hand of Sh. U.C. Saxena seeking permission to paste the same at site. He further proved endorsement regarding pasting of notice dated 07.08.12 at site to the effect "notice pasted at site in presence of witnesses".
He also proved demolition order dated 14.08.2002 (Ex.PW1/F) bearing the signatures of Sh. U.C. Saxena at point A and his signatures at point B. He further stated that the file was marked to OI(B) after his countersignatures on demolition order (Ex.PW2/F) on 14.08.2002. He further stated that an endorsement was made on the back side of demolition order Ex.PW-2/F to the effect "demolished/punctured the walls of toilet and third floor partly" dated 09.01.03 by concerned JE whose signatures he could not identify and thereafter, the file was marked to AE but there is no further movement reflected on 09.01.2003 on the file.
(f) PW4 Shri Vijay Kumar Kadyan, Executive Engineer in MCD deposed that during the period from May, 2003 to May, 2005, he was posted as Executive Engineer in MCD, West Zone, Rajouri Garden, New Delhi. His duties as Executive Engineer were supervisory in nature which included closing of missalbandh registers pertaining to registration of FIR of unauthorized construction, sending reports to higher authorities regarding working of the building department, demolition programmes to be undertaken as well as which were executed. Further he used to forward the reports to higher CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 12 authorities as put before him by OIB which pertained to the details of demolitions, sealing of properties and action taken u/s 345 (A) of DMC Act etc. which were carried during the particular month.
He further identified his signatures on Action Taken Report Ex.PW2/I (D18) & Missalbandh registers Ex.PW2/B from the period May 2003 onwards till May 2005. Further, he identified signatures of Moti Lal, the then OIB on FIR No. B/UC/WZ/02/351 dated 30.07.2002 (D-3) Ex.PW2/A and the relevant entry made in Missalbandh register Ex.PW-2/B in respect of property no.15 Fateh Nagar. He further stated that in 2003, office Incharge Building (Sh. Moti Lal) used to put his signatures before putting the relevant record before him. Further, he identified his initials at point B on the pages of Action Taken Report (Ex. PW-2/I).
He further stated that the demolition register Ex.PW2/G is maintained by OI(B) and the JE concerned makes the entries regarding the demolition carried as per record. Further, as per practice prevailing in the office, after the demolition action is taken and the file is placed before the AE, the same is marked to OI(B).
(g) PW2 Shri Moti Lal, the then Officer In-charge (Building) MCD, deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh registers and also used to make entries regarding unauthorized construction in missalbandh registers. Further, during the aforesaid assignment he had made various entries in missalbandh registers regarding unauthorized construction maintained in his office.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 13 Further, FIR No. B/UC/WZ/02/351 dated 30.07.02 (D-3) regarding property no. D-15, Fateh Nagar (Ex.PW2/A) was lodged by Shri U.C. Saxena, the then JE under his signatures at point B. He identified his initials at point A and an endorsement "issue notice" at point C made by Shri D.P.Gupta, AE(B). He further stated that he had entered particulars of aforesaid FIR in missalbandh register (Ex. PW-2/B) at Sr. No. 351 in his hand and the said entry is at point A on this register.
He further stated that the file was handed over to Shri U.C. Saxena who issued show cause notice (Ex.PW2/C) against the FIR on 01.08.02 and further proved endorsement made by Shri U.C. Saxena on the back of notice Ex.PW2/C with reference to service of notice to the effect "I went to site to serve the notice but he refused to receive the same and if permitted the same may be pasted at site". He further stated that the same also bears the signatures of the then AE Shri. D.P. Gupta for approval. He further proved endorsement at the back of notice Ex.PW2/C to the effect that notice was pasted at site in the presence of two witnesses, which also bears the signatures of Shri U.C. Saxena at point B. He further stated that order for issue of second show cause notice under section 343(1) dated 07.08.02 (Ex.PW2/D) was procured under the signatures of Shri U.C. Saxena at point A duly countersigned by Shri D. P. Gupta, AE(B). Further, on the basis of same, another notice under section 343 (1) of DMC Act dated 07.08.02 (Ex.PW2/E) was issued under the signatures of Shri D.P. Gupta, AE(B). He further proved endorsement dated 07.08.02 on the back of notice dated 07.08.02 (Ex.PW2/D), under the signatures of Shri U. C. Saxena at point A duly countersigned by Shri D. P. Gupta, AE(B) regarding CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 14 permission sought to paste the notice at site as the same was refused to be accepted. He also proved endorsement thereafter made at point B on Ex.PW2/D to the effect of pasting of the notice at site in the presence of witnesses under the signatures of Shri U.C. Saxena at point B. He further stated that both the entries regarding issuance of show cause notices are also reflected in missalband register in his handwriting at entry no. 351.
He further proved demolition order dated 14.08.02 (Ex.PW2/F) issued under the signatures of Shri D.P. Gupta at point B on the proposal being put up by Shri U.C. Saxena. He further stated that endorsement dated 09.01.03 was made at point C on Ex.PW2/F to the effect "punctured the walls of toilet at third floor partly" under the signatures of Ajay Kumar Shrotriya and as per noting, the same was marked to AE(B) but there are no further comments on it.
He further stated that demolition register (Ex.PW2/G) was maintained by him during his tenure in the office. Further, the same was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard in the register. He further stated that the entries regarding demolition of property with reference to file number B/UC/WZ/02/351 dated 30.07.02 are not available in the demolition register though the endorsement has been made in the unauthorized construction file on the backside of demolition order dated 14.08.02. He also stated that as per entry dated 09.01.03 in the demolition register, the programme was fixed for PS Tilak Nagar area and demolition programme was to be carried under assistance of Shri U.C. Saxena/A. K. Shrotriya.
He further stated that as per rule the unauthorized construction file pertaining to property in question should be handed over to him on CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 15 the same day for arrangement of police force for demolition but the file was neither taken by Ajay Kumar Shrotriya nor the same was handed over to him by Ajay Shrotriya on 09.01.03. Further, as per movement register (Ex.PW2/H-Colly), file pertaining to other properties were handed over to Shri A. K. Shrotriya, JE on 09.01.03. and the said files pertain to property nos. 7/39 Tilak Nagar, WZ-26 Mukherjee Park and 132, Chand Nagar and the entries are at point A in the movement register against entry dated 09.01.03. He also deposed that no file pertaining to property no. D-15, Fateh Nagar was taken by Ajay Kumar Shrotriya from him for taking any action with respect to unauthorized construction on 09.01.03.
He further stated that the programme for demolition used to be chalked out by the concerned XEN and the same was communicated to the concerned JEs / Asstt. Engineer. Further, OI(B) used to prepare letter in regard to levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. He further stated that he had never sent any letter to the owner/occupier of property No. D-15, Fateh Nagar for demand of demolition charges. Further, request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area.
He further stated that Action Taken Report against the unauthorized construction used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official purposes. He further stated that Action Taken Report (Ex.PW2/I colly) bears his signatures at point B on page No. 1, 4,5 6, 7 along with the signatures of the then EE, Sh. Kadyan at point A. CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 16 He also stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register which was maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him. Further, there was no reference in the Action Taken Report for the month of January, 2003 (Ex.PW2/J) with respect to demolition action in respect of property No. D-15, Fateh Nagar. Further, there was no entry of any type of demolition in the missalbandh register against the property in question at Sr. No. 351 at point A and the entries were only with respect to registration of FIR and issuance of Show Cause Notice / demolition order.
He further stated that the duty to return the file was of the JE/AE who took over the possession of the file and normally the file used to be returned on the same day after the action had been taken. Further, the file was to be again taken by JE in case the action was to be again/ subsequently taken.
He further stated that police requisition file is maintained in their office. Further, as per letter dated 23.12.02 (Ex.PW2/K), DCP West Zone was requested for issuing necessary directions for arrangement of police force to the specific police stations for the assistance of MCD and carrying out demolition in respective areas. He further stated that as per letter (Ex.PW2/K) which bears signatures of Shri B.P. Singh at point A, there was request to DCP for arrangement of police force in the area of Tilak Nagar for carrying out demolition in the said area on 09.01.03.
(h) PW1 Shri Lal Chand posted as Driver in MCD, West Zone (Building Department) deposed that he used to ferry the officials and CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 17 the police force as and when directed by the officials & also used to maintain log book (Ex.PW1/A). Further, in case the truck was requisitioned by a particular officer, the same was also reflected and the log book was also countersigned by the officer concerned in the relevant column. He further stated that the log book was maintained by him for vehicle no. DDL 4607 driven by him and the entries on various dates on which he was deputed in the vehicle are in his handwriting.
He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 09.01.03.
He further stated that entry dated 09.01.03 is in his hand and he had taken the vehicle on the requisition of the then JE Ajay Kumar Shrotriya who visited Police Station Tilak Nagar to take police force and, thereafter, the truck returned back after taking action and the police force was also dropped back at PS Tilak Nagar. He also stated that the entry at page no.145 is in his handwriting and bears his signatures at point A and initials of Shri Ajay Kumar Shrotriya at point B.
(i) PW14 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW14/B) comprising of seven pages alongwith detailed reasons.
He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW14/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 18 conclusion which was expressed in the form of a report (Ex.PW14/B) comprising of seven pages alongwith detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD at point A who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A on Ex.PW14/B.
(j) PW6 Shri Kamaljeet Singh, PW11 Shri Ravinder Rawal, PW12 Shri Hardayal Singh, PW13 Smt. Darshan Kaur and PW15 Smt. Iqbal Kaur are occupants or purchasers of different portions in the premises.
PW6 Shri Kamaljeet Singh deposed that he was residing on the backside portion of third floor of D-15, Fateh Nagar for the last 12 years with his family and accused Harbans Kaur is his mother who purchased the said property in the year 2000 from one Manjeet Kaur who executed Agreement to Sell and Will (Mark PW6/A1 & A2
-colly) in favour of his mother. He further stated that neither any notice was received from MCD regarding unauthorized construction in the property nor any demolition action was taken by MCD in this property after his mother purchased the same.
(k) PW11 Shri Ravinder Rawal deposed that he alongwith his wife Neeru Rawal had purchased second floor of D-15, Fateh Nagar, Delhi in the year 2008 from Baldev Singh vide two sale deeds dated 01.05.2008 Mark PW11/A and B and is residing there since the date of purchase. Further, he had neither received any notice from MCD regarding unauthorized construction, nor any demolition action had CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 19 been carried in the property since the date of purchase.
(l) PW12 Shri Hardayal Singh, deposed that he had purchased first floor of property no. D-15, Fateh Nagar in 2005 from Smt. Manjeet Kaur vide sale deed dated 25.01.2005 Mark PW12/A registered on 15.02.2005 and was staying there since the date of purchase. Further, neither any demolition action had been carried in the property after the date of purchase nor he had received any notice from MCD in this regard.
(m) PW13 Darshan Kaur, deposed that her husband had purchased third floor (front side of flat) in property no. D-15, Fateh Nagar, New Delhi in the year 2004 from her sister, Manjeet Kaur. However, she was residing in the same since 2000. She further deposed that after the death of her husband in the year 2005, the said property was transferred in her name vide sale deed dated 22.08.2005 Mark PW13/A which was executed by Manjeet Kaur. She also deposed that neither any demolition had been carried in the aforesaid property nor any notice has been received from MCD regarding unauthorized construction. Also the building had not been sealed at any point of time by MCD since her stay in the aforesaid building.
(n) PW15 Smt. Iqbal Kaur deposed that earlier she was residing in D-15 Fateh Nagar, front side second floor flat which was purchased by her late husband Sh. Baldev Singh in 2000. Further they resided in the aforesaid flat i.e. D-15 upto 2008. Further, during her stay in the aforesaid flat, she had neither received any demolition notice from MCD nor any demolition action was carried by MCD. Also, the CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 20 aforesaid flat was further sold by her husband during his life time.
(o) PW17 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A. K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW17/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW16/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi. Further, the matter pertained to 15 properties as mentioned in the complaint of SI Arvind Kumar (Ex.PW16/A), which bears signature of SI Arvind Kumar at point A on last page and signatures of the then SP Shri A.K. Ohri on each page. He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Shri Ajay Shrotriya. He further stated that he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like missalband register (Ex.PW2/B), demolition register (Ex.PW2/G), log book (Ex.PW1/A), attendance register (Ex.PW17/C) and demolition register pertaining to PS Hari Nagar (Ex.PW17/B).
He further stated that notices to the concerned witnesses/ officials were issued by him and he also recorded the statement of CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 21 witnesses which were relevant to the case. He further stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents. He further stated that the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW14/A). He further stated that the report (Ex.PW14/B) was thereafter obtained. Further, the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW9/A1) from the concerned department.
He further stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/ 344 DMC Act and demolition order along with other relevant documents. He further stated that the demolition register maintained in MCD along with missalband register, log book of the driver deputed for carrying the staff was also seized in original and the copies of the same have been filed with the respective charge sheets. He further stated that he had also collected the action taken report maintained in respect of demolition carried in the concerned properties and statement of OI(B) along with EE was also recorded. He further stated that the statements of other concerned officials and witnesses were also recorded including Jagmohan Swarup. He further stated that he had also joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard.
He further stated that as per investigation, owners of flat in said property along with Ajay Kumar Shrotriya conspired for purpose of fabrication of records and unauthorized construction to give undue advantage to each other. He further stated that the relevant CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 22 documents pertaining to the properties to be demolished on the respective dates were also seized vide various seizure memos Ex.PW17/C1 to C7. Further, the chargesheet Ex.PW17/D was filed after investigation.
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He further took a categorical stand that Shri Gautam Chand, AE was present at site at the time of demolition action and had left after the partial demolition action was taken. Further, when he reached the office, AE was not available and as such the endorsement on the file by the AE was missing. The file was claimed to have been further returned back to the OI(B) on the same date. He further stated that since the demolition register might not have been available at relevant time, the entry may have been inadvertently missed to be made in the demolition register. He also took a stand that for minor demolitions no charges were made. He further submitted written statement u/s 313(5) Cr.P.C. and also examined DW1 Shri Pradeep Kumar Mittal present [OI(B)] and DW2 Shri Gautam Chand, the then AE in defence.
DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD Delhi produced the record in respect of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 01.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW1/X collectively). The same consisting of four CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 23 pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001 and bears his signatures at point A, signatures of Shri A.K. Meena, EE at point C and Shri R.K. Ailawadi, Superintending Engineer at point B on each page.
He also produced a chart indicating the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03 bearing his signatures at point A alongwith Shri A.K. Meena, EE(B) at point B and Shri R.K. Ailwaadi, SE at point C. He further deposed that the chart has been prepared on the basis of Area Distribution Register and office records.
The posting of respective Junior Engineer in the concerned wards in which the property booked by MCD were located was also provided by way of chart (Ex.DW1/X1) for the period 03.05.02 to 30.09.03.
DW2 Shri Gautam Chand examined on behalf of accused Ajay Kumar Shrotriya deposed that for partial demolition action wherein time involved for demolition action was less than one hour no demolition charges were charged by the department. Further, the demolition action could be taken even without taking of unauthorized construction file at site. He further deposed that there was no corresponding entry in the demolition register with respect to action taken at D15 Fateh Nagar on 09.01.03. During cross-examination, he further admitted that he was the concerned AE when the demolition action was taken by Ajay Shrotriya in respect of D15 Fateh Nagar. He further claimed that he had accompanied Ajay Shrotriya in the CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 24 demolition action taken in respect of other properties like D16 Fateh Nagar but did not remember all the property numbers.
All the other accused (other than Ajay Kumar Shrotriya) in their statements u/s 313 Cr.P.C also denied the case of prosecution and claimed that they have been falsely implicated. Accused Sandeep Mittal and Suman Mittal who are husband and wife and purchasers of back portion on first floor of property in question claimed that they were not aware that the flat in question was unauthorized and had purchased the same after taking loan from Citi Bank. They also stated that the house tax was being paid to the MCD and never received any notice from any authority at any point of time.
Similarly, accused Jasbir Singh in his statement u/s 313 Cr.P.C stated that he was neither the owner of premises in question nor residing in the aforesaid premises.
Accused Narender Kumar in his statement u/s 313 Cr.P.C claimed that he had purchased some portion of the property in the year 2000 and sold the same in the year 2003 and had never resided in the said property. He further stated that property was already constructed when the same was purchased by him.
Similarly accused Harbans Kaur who is the purchaser of Third Floor back portion of the premises in question in her statement u/s 313 Cr.P.C. denied the case of prosecution and stated that she was not aware that the flat in question was unauthorized. She also submitted that neither any show cause notice was received by her nor any demolition proceedings had taken in her flat and also claimed that she was regularly paying house tax to MCD. She further examined herself in defence as DW3 and proved the House Tax receipts CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 25 deposited by her for the year 2004-05 till 2012-2013 as collectively Ex.DW3/A1 to A8.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW3/A had been passed by PW3 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 26 minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11, 114/11 & 117/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the chargesheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 27
f) It was also contended that it could not be inferred that the proceedings were not conducted by Ajay Kumar Shrotriya as per noting dated 09.01.03 and partial demolition action was not carried out, merely because the file was not reflected by the OI(B) in the 'file movement register'. Reliance was also placed on the cross-examination of PW2 Shri Moti Lal who admitted having missed the making of entries several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 09.01.03 without police force and taken action in this property i.e. D15 Fateh Nagar as well as D16 Fateh Nagar in the presence of the AE Shri Gautam Chand (examined as DW2) in present case.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 09.01.03 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished in the intervening period of about five years.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 28
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 19 for a short duration from 07.10.02 to 20.01.03 and the investigating agency had made him as a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri Mohd Ahmad, Krishan Kumar, R.P.S. Nain, S.K. Anand and D.P.S. Hooda (JEs) who were posted before or after him in the same ward and failed to take any action were given clean chit along with all the AEs who were equally responsible to take action but failed to do so. It was further urged that Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him ignoring even the act of the JEs / AEs / EE duirng whose tenure the building had come up but the same had neither been booked nor any action for demolition was taken.
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 09.01.03 the action was taken by him without police force after the scheduled demolition action had been taken in Tilak Nagar area. It was submitted that merely because the demolition had been taken by him in the area of Tilak Nagar with the help of police force as reflected in entry dated 09.01.03 in the demolition register, it could not be assumed that he had no powers to independently proceed in the area in his jurisdiction in Hari Nagar Ward in the CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 29 property which is situated behind PS Tilak Nagar for taking the action as per law.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 09.01.03 merely because a corresponding entry was not subsequently made in the demolition register though the same was duly reflected in UC file on the back of demolition order.
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that none of the JEs/ AEs/ EE had been booked during whose tenure the unauthorized construction had come up and the same was only subsequently booked by way of FIR on 30.07.02 by Shri U.C. Saxena, JE. It is also submitted that the fact that the construction had come up much prior to than the date of booking of FIR on 30.07.02 is corroborated from the fact that various portions / flats in the property had already been sold prior to registration of FIR by MCD.
Counsels for other accused i.e. Harbans Kaur, Suman Mittal and Sandeep Mittal, Narender Kumar and Jasbir Singh CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 30 submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular, since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused were known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the accused Harbans Kaur, Suman Mittal and Sandeep Mittal, Manjit Kaur, Narender Kumar and Jasbir Singh had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. Even, the partial demolition action claimed to have been carried in the property in question on 09.01.03 was disputed alongwith service of notices u/s 343/344 DMC Act, 1957. Counsel for accused also submitted that there was no evidence on record to show that they were the builders of the property and had purchased the same as bonafide purchaser after the construction in the premises had been raised.
Counsel for accused Jasbir Singh also contended that the accused was neither the owner nor the resident in the premises and had merely acted as an Attorney at instance of Captain Inderpal Singh who had not been investigated by the CBI. It is urged that the title of the property if any prior to sale of different portions of the property vested in Captain Inderpal Singh and he could not have been made a scapegoat for disputed demolition action which is claimed to have been taken by MCD somewhere on 09.01.03 after the various portions of the property already stood sold.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 31 On the other hand, ld. PP for CBI vehemently contended that the entry dated 09.01.03 in the UC file was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 09.01.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record.
Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri R.S. Singhal, Advocate for accused Harbans Kaur, Shri SP. Sharma, Advocate for accused Suman Mittal and Sandeep Mittal, Shri S.S. Dhaiya, Advocate for accused Narender Kumar, Shri H.S. Dhawan, Advocate for accused Jasbir Singh, ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 09.01.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 32 Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 33 crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 34
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 35 form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 36 period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 37 It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11 & 109/11, 117/11 and 114/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No. 92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawl of six other similar cases against Ajay Kumar Sharotriya & others under Section 321 Cr.P.C. (except the present cases CC No 107/11 and 108/11 and with 2 other cases) which are pending consideration before this Court.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
It may also be observed that the property number D15 involved in CC No.107/11 and D16 involved in CC No.108/11 are adjacent and date of issuance of notices u/s 343 / 344 DMC Act dated 01.08.02 and 07.08.02 along with demolition orders issued in CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 38 both the cases on 14.08.02 is the same. Even FIR in both the cases was registered by MCD for booking of unauthorized construction on the same date 30.07.02. The alleged demolition action taken by Ajay Kumar Shrotriya in both the cases is also of same date i.e. 09.01.03. As such both the cases have been taken up together for disposal.
Evidence has been led on record in defence whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
Ward No. Name of JE's Tenure of JE's in said Ward
Sh. U.C. Saxena 02.07.02 to 14.08.02
Mohd. Ahmed 14.08.02 to 07.10.02
19-20 Sh. Ajay Kumar Shrotriya 07.10.02 to 20.01.03
Sh. Krishan Kumar 20.01.03 to 30.04.03
Sh. R.P.S. Nain 30.04.03 to 18.06.03
Sh. S.K. Anand 18.06.03 to 08.08.03
Sh. D.B.S. Hooda 08.08.03 onwards
The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted in concerned ward wherein property is located only for a short period from 07.10.02 to 20.01.03. The property in question was booked for unauthorized construction on 30.07.02 by U.C. Saxena, JE. It is reflected on the FIR itself that it was booked by MCD on complaint and on completion of building. The building is also reflected to be old and occupied in the particulars and unauthorized construction is detailed as under:
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 39 "Unauthorized construction of basement, ground floor three shops, three room set;
First floor, second floor and third floor - three room set"
It is pertinent to note that during the entire process of construction, the building was never booked for unauthorized construction and the role of the Junior Engineer, AE and EE posted at aforesaid time has been completely ignored by the investigating agency. Even the period during which the construction had come up has not been reflected in the investigation. Part of building already stood constructed even in the year 2000 as reflected from the statement of witnesses/accused who had purchased the different portions of the property. The conspiracy to carry the unauthorized construction must have been in existence between the original owner/builder of the property and the concerned JE/AE posted at aforesaid time. However, the investigating agency does not appear to have taken the aforesaid aspect into consideration.
12. It may be observed that notices u/s 344 (1) DMC Act, 1957 dated 01.08.02 (Ex.PW2/C) as well as 343 DMC Act dated 07.08.02 (Ex.PW2/D), were issued by Shri U.C. Saxena, JE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Shri U.C. Saxena, JE after obtaining the approval from Shri D.P. Gupta, the then AE. However, it is surprising that even the name of the owner/builder is not reflected in the aforesaid notices and some portions of the building appear to be already sold to different persons much prior to issuance of aforesaid CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 40 notices. Accused Ajay Kumar Shrotriya does not appear to have any role till the aforesaid stage of service of notices including the passing of demolition order (Ex.PW2/F) which was proposed by Shri U.C. Saxena, JE and approved by Shri D.P. Gupta, AE on 14.08.02.
The investigating agency has only disputed the entry dated 09.01.03 made by Ajay Kumar Shrotriya, JE during his tenure in the ward from 07.10.02 to 20.01.03 on the demolition order whereby partial demolition action was stated to have been carried by him and the endorsement was made to the following effect "demolished/punctured the walls of toilet at TF partly". The file has been thereafter shown to be marked to AE(B) but thereafter does not bear any further endorsement. Also, no corresponding entry appears to have been made on 09.01.03 in the demolition register. The said entry is alleged by prosecution to be concocted without actually carrying the demolition.
Before adverting to aforesaid entry made by Ajay Kumar Shrotriya, it is pertinent to note that no action was taken by Mohd. Ahmed, JE who was posted prior to Ajay Kumar Shrotriya from 14.08.02 to 07.10.02 but his role along with AE concerned has been overlooked by the investigating agency though they failed to take any action for demolition of unauthorized construction. Further, even though the file never stood closed by the aforesaid noting dated 09.01.03 made by Ajay Kumar Shrotriya whereby partial demolition action was taken but the role of the JE/AEs posted after his transfer on 20.01.03 has been also completely overlooked by the investigating agency.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 41 The entire blame and investigation only centres around entry dated 09.01.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that if the unauthorized construction had commenced prior to posting of Ajay Kumar Shrotriya and further demolition action was not taken after his transfer, the conspiracy obviously would also have been with the JE/AE/EE posted during said tenure rather being only confined with Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but it is suffice to point out that there is no evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused who are the purchasers of the different portions of the property and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 09.01.03. The root of the prosecution case as such appears to be on a slippery ground.
13. It is further pertinent to observe that by mere part demolition action dated 09.01.03 the file never stood closed. PW8 Shri D.P. Gupta, the then AE(B), MCD West Zone also stated in his cross- examination dated 19.04.12 (page 4) that till the time the demolition action is taken or the unauthorized construction is compounded/regularized, the file is not closed.
Also, PW4 Shri Vijay Kumar Kadyan, the then EE(B) also corroborated the above fact in his cross-examination dated 17.04.12 (page 7) that there has to be specific order for closing the file by AE CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 42 concerned and the file is not closed till the complete action is taken against unauthorized construction or the unauthorized construction is regularized. He further stated that JE is not the officer authorized to close the file and the same is closed by AE.
Further, PW7 Shri Umesh Chand Saxena, the then JE(B) stated in his cross-examination dated 19.04.12 (page 4) that till the time unauthorized construction file is closed, the action for demolition can be again taken.
It may be noticed that Ajay Kumar Shrotriya had been transferred from the ward within a period of about 11 days of making of entry dated 09.01.03. Merely because the file has not been further taken up on being marked to AE(B) does not automatically lead to an inference that the proceedings had been forged.
It may be further noticed that the prosecuting agency did not bother to examine the concerned AE Shri Gautam Chand who was posted on 09.01.03 in the concerned ward. Prosecution has only examined Shri D.P. Gupta (PW8) the then AE who was posted as per his deposition in West Zone, MCD from 2001 till September, 2002 and had approved the issuance of notices u/s 343/343 DMC Act and the demolition order (Ex.PW2/F). However, he was not posted in the ward on 09.01.03 when the entry of partial demolition action was made by Ajay Kumar Shrotriya and the said fact was confirmed by him in his cross-examination. No explanation has been forthcoming by the investigating agency as to why the AE posted at the relevant time i.e. Shri Gautam Chand was not examined or cited as a witness CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 43 since he was the relevant witness to confirm the demolition action if taken by Ajay Kumar Shrotriya and was also equally responsible for demolition action in the premises in question.
However, Shri Gautam Chand, the then AE has been examined by accused in defence as DW2. He stated in his examination-in-chief that demolition action could be taken in respect of unauthorized construction in any property even without the unauthorized construction file and also clarified during cross-examination that he had accompanied Ajay Kumar Shrotriya during demolition of D16 Fateh Nagar in which the demolition action was also taken by Ajay Kumar Shrotriya on 09.01.03 under similar circumstances. He also stated that no complaint is to his notice that demolition action had not been carried by Ajay Kumar Shrotriya and also denied that the demolition action had not been taken.
14. The prosecution has next contended that since the demolition action carried on 09.01.03 in D-15, Fateh Nagar (involved in CC No. 107/11) and D-16, Fateh Nagar (involved in CC No.108/11) is not reflected in the demolition register, the entry in unauthorized construction file is fabricated. It is also submitted by prosecution that the visit at D-15 & D-16 Fateh Nagar is not corroborated by the log book.
A bare perusal of entry dated 09.01.03 made in the demolition register reflects that on 09.01.03 the schedule was fixed for demolition at Tilak Nagar by Ajay Kumar Shrotriya, JE and Shri U.C. Saxena, JE. The fact that demolition was carried in Tilak Nagar with the aid of CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 44 police force is not disputed.
However, Ajay Kumar Shrotriya has taken a categorical stand that he did not visit D-15 & D-16, Fateh Nagar with aid of police force and the action was taken after the demolition action had been completed in the area of P.S. Tilak Nagar. The stand taken by him that he visited D-15 & D-16, Fateh Nagar without police force along with the AE has been supported by Shri Gautam Chand, AE who has been examined in defence as DW2 in this case. The testimony of the witness is categorical to the effect that he visited the property no. D16 with JE and that the action could have been taken by the JE even without the police force and the same cannot be discarded. If any such entry was forged, then obviously the concerned AE Shri Gautam Chand should also have been charged by the investigating agency.
It may also be noticed that PW2 Shri Jai Bhagwan, the then Baildar, MCD West Zone examined in CC No.108/11 also categorically stated in his cross-examination dated 03.04.12 (page 2 para 1) by accused Ashok Kumar Gupta and U.S. Gupta that demolition had been partly carried out in property no. D-16, Fateh Nagar in his presence.
In view of corroboration of demolition action by the AE on 09.01.03, it cannot be conclusively held that the entry dated 09.01.03 had been forged by Ajay Kumar Shrotriya merely because a corresponding entry was not made in the demolition register or the file was not taken at site.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 45 It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted, it has come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so for the reason that the conspiracy with co-accused (i.e. occupants/owners of the different portions in the property) has not been proved beyond reasonable doubt.
15. It may also be appropriate to notice that in CC No.108/11 pertaining to D-16 Fateh Nagar in which the part demolition action was also taken by accused by 09.01.03 and similar noting was recorded in the UC file, the prosecution had examined Shri Jai Bhagwan, Baildar alongwith owners of the flats in the aforesaid CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 46 premises, namely Mamta Chandna and Paramjeet Kaur as PW2, 13 &
14. PW2 Shri Jai Bhagwan, the then Baildar, MCD West Zone in aforesaid case categorically stated in his cross-examination dated 03.04.12 (page 2 para 1) by accused Ashok Kumar Gupta and U.S. Gupta that demolition had been partly carried out in property no. D-16, Fateh Nagar in his presence. Similarly, PW13 Smt. Mamta Chandna who was the purchaser of a flat in the property in question (i.e. D16) vide sale deed dated 16.07.02 deposed in her cross- examination by ld. PP for CBI that a portion of the wall had been demolished in the aforesaid property on the second floor by MCD officials in January, 2003. She further clarified that the demolition action was firstly taken in D-15, Fateh Nagar and thereafter, in D-16 Fateh Nagar. The testimony of aforesaid witness cannot be ignored even though she was declared hostile and cross-examined on behalf of prosecution in said case.
Similarly, PW14 Smt. Paramjeet Kaur who was also purchaser of flat on second floor in the at the aforesaid property at the relevant time stated in her cross-examination on behalf of accused Ashok Kumar Gutpa and U.S. Gupta that MCD officials had demolished a portion of wall in the property but she did not recollect the date.
The statement of both PW13 Smt. Mamta Chandna and PW14 Smt. Paramjeet Kaur corroborates the defence version that the demolition action had been taken by Ajay Kumar Shrotriya on 09.01.03.
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 47
16. It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE without entry in the movement register since he did not visit the site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
17. It may also be noticed that a mere non entry of the file in the CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 48 movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that during cross-examination of PW2 Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge- sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW2 Moti Lal in his cross-examination dated 19.04.12 page no.6 in the present case (i.e. CC No.107/11) to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 49 It is also pertinent to note that during cross-examination of PW2 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW2 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW2 Moti Lal dated 19.04.2012 on page no.2 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No.C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 4 of the cross- examination dated 19.04.2012 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 50 may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 09.01.03 is forged and the demolition action had not been carried by the JE.
18. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has also been raised in other cases decided by this Court. In CC No. 114/11, Shri Brij Pal Singh, EE was examined by the prosecution and in the aforesaid case, he stated that in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:
CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 51 "The demolition charges are to be claimed by the OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW17 Insp. N. Mahato (IO) in the present case (i.e.CC No.107/11) in his cross-examination dated 18.09.12 page 28 that "the demolition charges in respect of action taken by MCD are required to be collected by AE and not by the JE."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 20.01.03 the further action in this regard, if any, could be only taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 09.01.03 carrying partial demolition action had been forged.
19. Ld. PP for CBI has next relied upon report prepared by CPWD CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 52 on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 20.01.03.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be inferred that partial demolition action dated 09.01.03 is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 09.01.03. Accused Ajay Kumar Shrotriya could not have taken any further action after his transfer from the ward on 20.01.03 and the responsibility lay on the succeeding officials since the file never stood closed.
It may also be noticed that the report (Ex.PW9/A1) prepared by CPWD reflecting the existing construction in 2007/08 does not specify the period during which the construction may have been carried out in the different portions of the property. The exact extent/area of unauthorized construction carried at the time of booking of FIR by MCD and the construction existing earlier has not been specified in the FIR. In the aforesaid context, PW17 Inspector N. Mahato in his cross-examination stated that he did not try to ascertain if the property may have been renovated/repaired after the part demolition. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 09.01.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 53 construction was raised in the property cannot be doubted.
20. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 09.01.03 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW17 Inspector N. Mahato during his cross- examination dated 18.09.12 stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW17 admitted in his cross-examination dated 18.09.12 on page 19 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 09.01.03 had been falsely introduced which itself has not been proved beyond reasonable doubt.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 54 making entry dated 09.01.03 the property of the owner/ builder could not have been saved from further demolition action. The action for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 20.01.03.
The prosecution has also placed reliance upon statements of PW6 Shri Kamaljeet Singh, PW11 Shri Ravinder Rawal, PW12 Shri Hardayal Singh, PW13 Smt. Darshan Kaur and PW15 Smt. Iqbal Kaur to contend that the demolition action had not been carried out by the accused Ajay Kumar Shrotriya as per entry dated 09.01.03.
The statement of aforesaid witnesses may be briefly adverted to in order to assess if the inference can be drawn in the light of their testimony that the entry dated 09.01.03 had been forged by Ajay Kumar Shrotriya. This also needs to be appreciated in the background that the conspiracy has not been proved beyond reasonable doubt.
PW11 Shri Ravinder Rawal deposed that he alongwith his wife Neeru Rawal had purchased second floor of D-15, Fateh Nagar, Delhi in the year 2008 from Baldev Singh vide two sale deeds dated 01.05.2008 Mark PW11/A and B and is residing there since the date of purchase. Further, he had neither received any notice from MCD regarding unauthorized construction, nor any demolition action had been carried in the property since the date of purchase.
The testimony of this witness is of little relevance since he CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 55 came in to possession of property in 2008 after purchasing the same from Baldev Singh (since deceased). He could not have deposed to further the case of prosecution with reference to the events in the year 2003. It is pertinent to note that the witness was residing on the second floor while the part demolition action was carried by Ajay Kumar Shrotriya on the third floor.
Similarly, PW12 Shri Hardayal Singh, deposed that he had purchased first floor of property no. D-15, Fateh Nagar in 2005 from Smt. Manjeet Kaur vide sale deed dated 25.01.2005 Mark PW12/A registered on 15.02.2005 and was staying there since the date of purchase. Further, neither any demolition action had been carried in the property after the date of purchase nor he had received any notice from MCD in this regard.
The testimony of this witness is also of little relevance since he came in to possession of property in 2005 after purchasing the same from Manjeet Kaur. He could not have deposed to further the case of prosecution with reference to the events in the year 2003.
The stand taken by witnesses PW6 Kanwaljeet Singh (s/o accused Harbans Kaur, PW13 Darshan Kaur and PW15 Smt. Iqbal Kaur who were occupants of different portions of property that no notice was received from MCD regarding unauthorized construction is contrary to prosecution case since even as per the admitted case of prosecution and testimony of witnesses examined from MCD the notices u/s 343/344 DMC Act, 1957 were duly issued and executed prior to the posting of Ajay Kumar Shrotriya in the said ward. The CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 56 testimony of aforesaid witnesses as such is not trustworthy. It also cannot be ruled out that the witnesses may have taken a stand denying the partial demolition action since the repairs after partial demolition action could not have been carried without permission from MCD and would have rendered them liable for prosecution. It may also be noticed that PW15 Smt. Iqbal Kaur was residing on the second floor while the part demolition action was taken on the third floor of the premises. It also cannot be ignored that the demolition action carried in D15 and D16 has been duly supported by the prosecution witnesses examined in CC No.108/11 as already discussed in preceding paragraphs.
In the facts and circumstances and overall evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish beyond reasonable doubt if the entry dated 09.01.03 had been concocted by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
21. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 57 the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored.
22. For the foregoing reasons, the prosecution has failed to bring home the charge against all the accused beyond reasonable doubt. All the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 17th August, 2013 Central District, THC, Delhi. CC 107/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Ors. 58