Delhi District Court
Rc No.6(A)/05, Cc No.101/11 -Cbi vs . Gainda Lal & Anr. 1 on 10 December, 2012
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 101/2011
RC No. : 6(A)/05
PS : CBI/ACB/ND
Unique ID No. 02401R1315962007
CBI
Versus
1. Gainda Lal
s/o Shri D.N. Saraswat
r/o U-57, Shakarpur,
Shahdara, Delhi.
2. Anish Yadav
s/o late Sh. M.S. Yadav
r/o H-97, Krishna Kunj Colony,
Laxmi Nagar, Delhi.
Date of FIR : 01.02.2005
Date of Institution : 20.12.2007
Arguments concluded on : 29.11.2012
Date of Judgment : 10.12.2012
JUDGEMENT
1. In brief, FIR (RC) was registered on source information against accused S/Shri D.R. Tamta, the then Deputy Commissioner, MCD; M.U. Sarvar, the then Assistant Commissioner; H.R. Gurnani, the then Administrative Officer; S.V. Pillai, the then Assistant Chief Account Officer; Anil Chauhan, LDC/billing clerk (all of MCD Shahdara Zone) RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 1 and others for offences u/s 120B r/w 409, 467 & 471 IPC r/w section 13(2) r/w 13(1)(d) of P.C. Act 1988 alleging therein that during the period 2002-2004 the above said accused entered into criminal conspiracy among themselves and with other unknown persons to cheat MCD by siphoning off/misappropriating the funds assigned for the old-age, widows pension/stipend by fraudulent processing, recommending and preparing and disbursing false payment. In furtherance of the criminal conspiracy, the said accused are also alleged to have abused their official position and cheated MCD by fraudulently making payments of old age pension and other stipends to ineligible/unauthorisedly/fictitious persons, thereby causing wrongful loss to MCD.
2. As per charge sheet, Gainda Lal while posted as Sanitary Inspector (SI) and Anish Yadav as Assistant Sanitary Inspector (ASI) in ward-79, MCD, DEMS(CSE) Department, Shahdara-south zone during the period 2002-2004 had shown disbursed the old age pension/stipend to the following dead/fictitious persons flouting the procedure and causing wrongful loss to MCD:-
Sl Name of Beneficiary Details of Violations Period of N Acquaintance Rolls & o. Total Amount Disbursed 1 Puttan Lal s/o Dane Ram Died on 6-9-04 but pension Apr-sept-03(1200);
was shown disbursed Oct-mar-05(1800)
Rs.3000/-
2 Jannat w/o Chand Khan Did not received pension Apr-sept-03(1200);
but shown disbursed Oct-mar-05(1800)
Rs.3000/-
3 Jannat w/o A.Majid Did not received pension Apr-sept-03(1200);
but shown disbursed Oct-mar-05(1800)
Rs.3000/-
4 Ramswrup Gupta s/o Died on 3-7-04 but pension Apr-sept-03(1200);
Munshi Lal was shown disbursed Oct-mar-05(1800)
Rs.3000/-
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 2
It is further the case of prosecution that Smt.Jannat w/o Chand Khan & Smt Jannat w/o A.Majid on their examination during investigation denied having received the old age pension respectively.
3. It is also the case of prosecution that in all the said instances, pension/stipend were paid unauthorisedly under orders of the A.O. Late Shri H.R. Gurnani, without obtaining approval/recommendation of the A.C./D.C. and as such, he had misused his official position. It is further alleged that H.R. Gurnani got pensions/stipend disbursed to unauthorised persons and as such committed the offence u/s 13(2) r/w 13(1)(d) of P.C. Act, 1988. However, since accused Lt. H.R. Gurnani died on 20.11.2006 his name has been mentioned in column number 12 of the chargesheet.
4. It may also be appropriate to notice at this stage that after investigation, complicity was not found on the part of Shri D.R. Tamta, Dy. Commissioner and Shri M.U. Sarvar, Assistant Commissioner in the processing, sanction and disbursement of the old age pension/stipend. Also, no complicity was found on the part of Shri S.V. Pillai the then Assistant Chief Accountant as he was only required to accord financial sanction.
Further, though a single FIR/RC was registered on source information by CBI, five separate chargesheets were finally filed on investigation against the SI/ASI posted in respective wards wherein the disbursement was found to be doubtful.
Accused Pritam Singh and Sunder Lal were posted as SI (Sanitary Inspector) in ward no.68 at the relevant time (I.e CC 124/11).
Accused Gainda Lal and Anis Yadav were posted as SI RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 3 (Sanitary Inspector) and ASI (Assistant Sanitary Inspector) respectively in ward no.79 at the relevant time (I.e CC 101/11).
Accused Ashok Kumar Gulati and Dharmender Kumar Sharma were posted as SI (Sanitary Inspector) and ASI (Assistant Sanitary Inspector) respectively in ward no.78 at the relevant time (I.e CC 102/11).
Accused Bharat Singh was posted as SI (Sanitary Inspector) in ward no.71 at the relevant time (I.e CC 123/11).
Accused Anil Kumar Chauhan was posted as LDC in ward LOQ at the relevant time (I.e CC 122/11).
5. Charge was framed against the accused u/s 409, 420, 468, 471 and Section 13(2) r/w 13(1)(c) & 13(1)(d) of Prevention of Corruption Act, 1988. Accused were further charged u/s 120B r/w Section 409, 420, 468, 471 IPC and Section 13(1)(c) & 13(1)(d) of Prevention of Corruption Act, 1988.
6. In order to appreciate the case of prosecution, the procedure for disbursement of old age pension as followed in the department and elicited during investigation may be briefly noticed. Prosecution also examined PW1 Manoj Kumar Dhyani, PW2 Shri Jang Bahadur, PW5 Mukesh Kumar and PW10 I.P. Verma to elicit the procedure on record.
As per case of prosecution, the rules for implementation of distribution/grant of old age pension were formed in the year 1964 vide corporation resolution no. 317 dated 06.08.1964 under the subject - payment of stipend. Under the rules framed vide the above resolution; the corporation at its discretion may pay the old age RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 4 stipend to persons of the age of 65 and above who do not have any support or any source of income. The beneficiary should be residing at Delhi for the minimum period of 5 years continuously on the date of submission of application, in the form prescribed by the Commissioner and each applicant is required to enclose certificates as proof of his/her age and having no source of income/support. Further, the commissioner shall get the application scrutinized and checked by an officer not below the rank of Asstt. Commissioner and pass orders. The payment of the stipend shall be received by the person concerned at the place fixed by the Commissioner. It is also the case of prosecution that the payment of stipend shall cease on the death of the stipend holder and any arrears thereof shall not be claimed by any of the heirs. Further, vide MCD resolution no. 385 dated 16.08.1971, few categories of persons i.e. blinds, widows, insane, crippled and widowers have been made eligible for such stipend without any restriction of their age limit.
It is further the case of prosecution that certain instructions got modified over time through practice and during the relevant period 2002-2004, the procedure being followed for grant of pension stipend was that the applicant submitted an application to his ward councilor who forwarded it to the Zonal Office concerned with his recommendation. At the Zonal office, the Administrative Officer (A.O.) marked it to the Sanitary Inspector (SI) concerned of the ward for verification. During verification, SI/ASI was required to verify the name, photo, address, age and financial status of the applicant. Thereafter, the SI/ASI submitted their report with recommendation back to the A.O. In practice, the SIs took assistance of their ASIs in the task of verification. The A.O was required to scrutinize the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 5 application and documents enclosed therewith, as also recommendation of the SIs. AO then, forward the same with his recommendation to the Assistant Commissioner (A.C). The A.C. then put up his recommendations to the Deputy Commissioner (D.C.) who is the final authority to grant/refuse the pension/stipend. Once a case is sanctioned, it is required to be entered in the Master List maintained in the Zonal Office by A.O. Based on the total number of cases, A.O. was required to withdraw the gross amount of pension/stipend every six months through cheque from the Treasury. The Assistant Chief Accountant (ACA)/Deputy Chief Accountant (DCA) gave financial sanction to the proposal of A.O. Once the cheque was received by A.O., he issued cheque to the SI/ASI concerned for each of the wards in the zone. The cheque along with the Acquaintance roll (A Roll) containing names of pension/stipend holders was handed over to SI/ASI. The Sis/ASIs encashed the cheque and made payment of pension/stipend in cash to the persons after obtaining their signatures/thumb impressions on the A-Roll. Further SIs/ASIs made an entry in a diary kept by the recipients, of the amount paid. The SIs paid the pension/stipend every six months at their office with the assistance of their ASIs. Thereafter, the SIs returned the completed A-Rolls to the office of A.O. Giving a certificate of amount disbursed and returning the balance, if any. The balance amount, if any, got deposited back in the treasury of MCD.
It is also the case of prosecution that the General Branch of the zone prepares the acquaintance rolls for the payment after receiving account payee cheque and in consonance with the already sanctioned pension forms lying with them. Further, the Accounts Office has no role to cross check the signature in the paid acquaintance rolls. The RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 6 Accounts Office was only required to accord financial sanction.
7. To prove its case, prosecution examined the following witnesses:
i. Shri Manoj Kumar Dhyani ii. Shri Jang Bahadur iii. Shri Naresh Kumar iv. Shri Abhimanyu Kumar v. Shri Mukesh Kumar vi. Shri Anil Kumar vii. Smt. Ram Pyari viii. Smt. Veena Devi ix. Shri B.K. Gupta x. Shri I.P. Verma xi. Jannat w/o Chand Khan xii. Jannat w/o Abdul Majid xiii. Shri A.K. Jain xiv. Inspector Amit Vikram Bhardwaj (a) PW1 Shri Manoj Kumar Dhyani who was posted as Assistant
Chief Accountant (ACA) Shahdara South Zone MCD during 2006 deposed as to the procedure followed for making the payment of old age pension bills.
He deposed that for making the payment of old age pension bills a bill is prepared and preferred by the DDO (AO/AC) after ensuring the genuineness of the claim. Thereafter, the bill is received in the accounts branch with diary and dispatch clerk and scrutiny is made by concerned dealing assistant/clerk. Further, the account clerk checks the bill and its calculation and puts his signatures on the pay order maintained in ECR (Establishment Check Register) and same is RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 7 thereafter forwarded to the Accountant for further scrutiny and after scrutiny by the Accountant, it is put up to the ACA (Assistant Chief Accountant). Further, bill and the pay order is cross tallied and necessary papers regarding payment, namely, the total number of persons, sanction of DC and previous month disbursement acknowledgment and budget slip are checked and the same is signed by ACA.
After passing the bill, the same is placed before the cheque signing authority which after satisfying himself signs the cheque. Further, if the bill amount is above Rs.1.50 lakhs, the consolidated amount of voucher is released by the Deputy Chief Accountant and if the amount is below Rs.1.50 lakhs then the consolidated amount of the voucher is released by ACA to the DDO concerned. Thereafter the payment is made by the DDO concerned. He further clarified that the old age pension was distributed on quarterly basis and the account for the Zone is maintained by the ACA office. He also stated that the duty of ACA is to receive and pay the money and to maintain the vouchers. Also, the duty to maintain, scrutinize and sign the cash book, ECR and account book is of Accounts Clerk/Accountant/Cheque Writer and ACA. He further stated that the duty to remit the money received from Head Quarter in shape of cheques at the zone to the bank is of ACA and the responsibility of the physical handling, custody, verification etc. of the cash is of DC/AO.
He further proved letter dated 21.08.06 (D8/1) bearing his signatures (Ex.PW1/A) and vide the aforesaid letter, he had handed over list of old age pension vouchers alongwith record. The list enclosed with Ex.PW1/A bearing his signatures was proved as Ex.PW1/B. He further clarified that no master list of the old age RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 8 pensioners was provided to the Accounts Branch and only sanction in terms of maximum number of pensioners per ward was issued and the concerned department was claiming the amount of pension by mentioning the number of pensioners on the pay bill form.
(b) PW2 Shri Jang Bahadur worked as Sanitary Superintendent in Shahdara South Zone, MCD, CSE since 06.06.06 though he was posted as Chief Sanitary Inspector and his regular order of Sanitary Superintendent came on 18.08.06. He deposed that since August 2003 he was working as SI in Ward No. 76 of Shahdara South Zone and after promotion as CSI, he looked after the Wards 75, 76, 73 and 77 of South Zone. Further in the year 2005, he was looking after additional charge of Ward No. 78, 79, 81 & 80 and the remaining wards were looked after by CSI Satpal. He also stated that there were 16 wards in total i.e. ward no. 67 to 82 and as per policy of Delhi Government, the old age pension was being distributed through MCD to the persons of the age of 65 years and above who did not have support or any source of income. The categories in the old age pension scheme included blind, widow/widower/handicapped.
He further explained the procedure for the grant and subsequent distribution of old age pension and stated that the applicant had to submit an application in prescribed proforma at the office of Councilor of the respective ward and the applicant used to sign or put his thumb impression. Thereafter the Councilor used to verify, stamp and forward it to the zonal office and the application was received in the office of Assistant Commissioner through dak. Further, the photo of applicant affixed on the application and documents were used to be attested by the Councilor. After receiving applications, the AO further RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 9 sent the application to the Sanitary Inspectors of the respective wards for verification of the contents of the form and recommendation and after verification and recommendation, SI/ASI sent the same to AO alongwith their report. The AO after scrutinizing the applications for grant of pension and doing administrative formalities put the same to AC with his recommendation or rejection. Further the AC also either recommended or rejected the same and put up the same before DC. The AO had to scrutinize the attached documents like age proof, residence proof and death certificate in case of widow and the job to physically verify the applicant was that of the area supervisor which included Sanitary Guide and Assistant Sanitary Inspector. He further explained that as per the procedure, the application after being put up before Dy. Commissioner gets marked to Administrative Officer and thereafter Administrative Officer sends them to the concerned dealing clerks according to the wards. The LDC concerned prepares bills and sends them to accounts department for preparation of cheques. Further, a list of beneficiaries is prepared ward wise and the same is prepared by LDC. Further, the cheques were either signed by AC or AO. After cheques were signed the same were sent to SI/ASI of their respective wards and on the basis of list the cheques were handed over to the individuals. Further, the receiving of the cheques in lieu of receipt of cheques, a register was maintained by the SI/ASI. He further stated that the beneficiary carries a small pocket diary bearing a photograph and in that small pocket diary, staff mentioned the period of old age pension and the amount disbursed. After disbursement, the SI/ASI used to give certificate of distribution under his signature giving total amount received, total disbursed and remaining alongwith the total number of beneficiaries. Further, remaining amount was RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 10 deposited back in the Zonal office. He further clarified that during distribution of old age pension, if there is any reported case of death, the cheque is returned back to the concerned LDC and the name of beneficiary is deleted from the list. He also stated that the old age pension was distributed on quarterly basis or sometimes half yearly in a year and during the period 2002-04, in Ward No.79 Anish Yadav was posted as ASI and Gainda Lal as SI in relation to the disbursement of old age pension. He further deposed that the old pensioners used to maintain a small diary and whenever the pension is disbursed, the concerned supervisor/concerned official handed over the pension either in cash or by cheque and made entry in the said diary brought by the old pensioners.
He further stated that as per acquaintance roll of ward no. 79, Gainda Lal was working as Sanitary Inspector (SI) and Anish Yadav as ASI at the relevant period.
He further stated that acquaintance roll for the period April 2003 to September 2003, October 2004 to March 2005 (Ex.PW11/A & Ex.PW11/B respectively) were dealt by SI Gainda Lal and ASI Anis Yadav as they were incharge of ward no., 79 and identified signatures of Shri Gainda Lal at point A on Ex.PW11/A. He further stated that each acquaintance roll shows the payment made to respective pensioners by mentioning "P" against their names if the payment has been released to them or otherwise the word "expired" is mentioned against their names if the payment is not made in case of death of the respective pensioner and at the end of acquaintance roll for April 2003 to September 2003 the details about total disbursement and receipt of total payment and balance thereof which remained undisbursed is specifically mentioned in the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 11 shape of certificate under the signatures of Gainda Lal.
He further clarified that as per practice prevailing in the department, the official who had received the cash for distribution of old age pension give the certificates on receiving the cheque, they sign on the payment register which is maintained in General Branch by LDC but did not recollect who was LDC in general branch in 2002-05. Further, as per practice if cash was withdrawn by any ASI of the ward then in those cases generally SI concerned used to sign those acquaintance rolls. Also, as per payment register (Ex.PW5/O), payments were used to be collected by SI/ASI and he was to put his signatures in payment register maintained in the office.
Further he proved the following entries:
•That as per entry for the period April 2003 to September 2003 payment of Rs.5,77,500/- was taken by Gainda Lal against his signatures at point Y. •That as per entry for the period October 2004 to March 2005 payment of Rs. 3,76,200/- was withdrawn for distribution and same has been certified at the end of certificate by ASI ward 79 at point A. He further deposed that cheque used to be issued in the name of specific ward and payment was used to be distributed by SI/ASI of the concerned ward. Further, no assistance was used to be provided to concerned SI/ASI for the distribution of pension amount.
He further stated that as per application for pension of Puttan Lal (Ex.PW6/A), concerned ASI and SI of ward no. 79 have verified the contents of the application alongwith recommendation for pension at point C. Further, same recommendations had been made by concerned ASI and SI of ward no. 79 at point D for pension of Smt. Jannat (Ex.PW2/A) and concerned ASI and SI had verified the contents of the application alongwith recommendation for pension at RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 12 point D. He further deposed that same recommendations had been made by concerned ASI and SI of ward no. 79 at point E for pension of Shri Ram Swaroop Gupta (Ex.PW4/D) and concerned ASI and SI had verified the contents of the application alongwith recommendation for pension at point E.
(c) PW3 Shri Naresh Kumar the then Additional Commissioner (Engg.) & DEMS in MCD proved the sanction orders ( Ex.PW3/A and Ex.PW3/B respectively) whereby sanction was accorded u/s 19 of PC Act being the competent authority to grant the same.
(d) PW4 Shri Abhimanyu Kumar (Government Examiner of Questioned Documents) proved the reports (Ex.PW4/A) with respect to the documents forwarded for examination by CBI vide letter No.RC/DAI/6/05/DLI/No./1793 & 5394 dated 13.02.07 and 18.04.07 respectively. He also stated that the documents of this case were also independently examined by Shri I.K. Arora, Dy. GEQD (since deceased) who also reached on the same conclusion. He further proved the detailed reasons in support of his opinion (running into 15 pages Ex.PW4/B). The said opinion pertains to all the CCs registered in respect of RC No.6(A)/05.
(e) PW5 Shri Mukesh Kumar deposed that he joined MCD in the year 1989 as LDC and he was posted in the office of Executive Engineer, Works Division, Shahdara North, MCD since June, 2004.
Further, earlier to this, he was posted as LDC at Directorate (Personnel) MCD, Town Hall from July 2000 to February 2001 and thereafter, he was posted at CSE, Shahdara South Zone in the office RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 13 of Sanitation Superintendent, CSE as LDC General Branch till March, 2003. As LDC he worked in Shahdara South Zone from 1995 till May/June 2000 where duties as LDC in General Branch included pension work preparing bills; acquaintance roll; maintaining, preparing and updating list of beneficiaries of old age pension; to scrutinize the application forms of pensioners; to put up the application forms after scrutinizing the same to Administrative Officer for his acceptance or rejection; to further put up the same applications for approval/grant of pension before Administrative Officer and Asstt. Commissioner.
He further stated that on receipt of the application for grant of old age pension, the application was scrutinized by considering whether the same has been forwarded by area councilor; whether the photographs on the application is attested by the Councilor or not; in case of widow whether the death certificate of her husband is attached or not; whether the applicant has attained the age of 65 years or above; proof of residence and verification report and whether the verification report of Asstt. Sanitary Inspector/Sanitary Inspector of CSE department is attached with the application form or not. Further, after scrutinizing the application forms, the forms are sent to administrative officer for his administrative approval/sanction and after the approval/sanction of the AO/AC, the names of the applicants are enrolled in the master list of the concerned wards. At the time of the pension either a photocopy from the master list is prepared or another list from the master list for handing over to the concerned ward incharge for disbursement is prepared. The master list and the acquaintance rolls are prepared by LDC incharge of old age pension general branch and when he was posted in general branch, he used to prepare them.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 14 He further stated that after his transfer, he handed over his charge to LDC Shri Anil Kumar Chauhan through the charge list. Also, he handed over the photocopy of the charge list (Mark PW5/1) during his recording of statement during investigation. Further, he proved his signatures at point A and of Shri Anil Kumar Chauhan at point B on Mark PW5/1. He further stated that in the cases where ASI and SI had written "expired" or "change of address" against the name of beneficiaries in the acquaintance roll, the same is updated in the master list. Further, once the word 'expired' is written in the master list, in no circumstances the name of the beneficiary on the subsequent stage should appear in the acquaintance roll and in such cases the payment of the same should be deposited in the treasury as unpaid.
He also deposed that on every acquaintance roll, the ASI/SI gave a certificate at the end of the roll certifying that the pension has been distributed before him under acknowledgment i.e. signatures/thumb impression of the beneficiaries on the revenue stamp pasted on the acquaintance roll and in case the amount is not paid to the beneficiary the same should be deposited in the treasury as unpaid. He further stated that as per master list (D13) (Mark PW5/2), word 'expired' is not written against any beneficiary. After seeing the acquaintance roll of ward no. 79 (D9) for the period 2002 to 2004 he could not say when the payment should have been disbursed as he was not posted during the relevant period. He further proved the photocopy of attested copy of Corporation Resolution number 317 dated 06.08.64, urgent business number 196 with regard to the payment of stipend from Director CSD (Ex.PW5/A); office order/circular 547/TCO/DA-III dated 07.10.1971 (Ex.PW5/B);
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 15 cyclostyled order dated 30.08.66 (Ex.PW5/C) and the guidelines for old age pension issued from Central Office, MCD (Ex.PW5/D) pertaining to the procedure and eligibility and guidelines for grant of old age pensions; Master list for ward no. 79 as Ex.PW5/E running into 25 sheets (colly). The payment register showing payment received from Municipal Treasury by Sanitary Insp./ Asstt. Sanitary Insp., distribution of pension, number of pensioners and balance deposited by respective SI/ASI along with their respective signatures for all wards including LOQ category of Shahdara South Zone, having written pages from page No. 1 to 24 was proved as Ex. PW-5/Q (colly) and the copy of the same as Ex. PW-5/F (colly). He further identified the signatures of SI Pritam Singh and Sunder Singh of Ward 68, SI Bhart Singh of Ward 78, SI Ashok Gulati and ASI Dharmender Kumar Sharma of Ward No. 78, SI Gainda Lal and ASI Anish Yadav of Ward No. 79 and Anil Kumar Chauhan, the then LDC on the aforesaid payment register Ex. PW-5/F (colly).
He further stated that at the time of handing over the charge, he handed over the original charge list. Further, he identified the signatures of Anil Kumar at point A and his signatures at point B on the first page of the list (Ex. PW-5/G). He also stated that approved names of additional beneficiary under the old age pension scheme must have been added in the list mentioned in Ex. PW-5/G provided by him to Anil Kumar Chauhan at the time of handing over charges and the list afresh (Ex. PW-5/E colly) should not be prepared by the concerned LDC Sh. Anil Kumar Chauhan. He also identified the list of pensioners pertaining to ward no. 68 (D14) Ex.PW5/E in the handwriting of Anil Kumar Chauhan from serial no. 1 to 132.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 16
(f) PW10 Shri I.P. Verma deposed that he joined MCD on 13.07.06 and remained till 27.08.2007. Further, he was handling the portfolio of General Branch and old age pension cases which were processed through the branch. He further proved the policy of Delhi Govt. dated 06.08.64 (D5/1) (Ex.PW5/A) and circulars dated 07.10.71 (D6/1) & D7/2 (Ex.PW5/B & D respectively).
He further stated that as per procedure, the applicant used to fill printed prescribed application form at the Councilors' office in their respective wards and same were to be recommended by respective Councilors after verifying the contents at his own level and it used to come through routine dak in AO office. Thereafter the forms were forwarded to SI/ASI of the respective areas for scrutiny and verification of the contents and information of the form provided by the respective applicant and after physical verification of SI and ASI and judging their entitlement for pension ASI forward their reports to concerned SI for getting old age pension. The administrative approval for the same was required from Deputy Commissioner. The cases for administrative approval were used to be routed through AO and AC where they properly looked at the enclosed proof of applicant's eligibility and would recommend the case for grant of old age pension. The AO and AC were acting only as forwarding authorities to the competent authority and there was no procedure of disbursement of old age pension to the persons who were not fulfilling the basic criteria for the entitlement of pension and in case of reported death of the beneficiaries, the records were upgraded and from there onward his pension used to be stopped and his name used to be deleted from acquaintance roll and master list.
He further stated that although the councilors used to RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 17 recommend the cases for old age pension under the scheme but same were not blindly accepted by the MCD. The concerned ASI/SI were deputed for physical verification and on their report and after proper scrutiny of the documents provided by the applicant, the pension used to be disbursed after procuring final approval of the competent authority. After the final approval of old age pension by the competent authority the name of the said beneficiaries used to be entered in the master list of the respective ward and these lists were prepared by the concerned LDC/UDC in General Branch. From time to time, addition and deletion of beneficiaries were used to be done by the concerned LDC in the master list and the bill was used to be signed by AO which was used to be prepared by dealing LDC of the General Branch on the basis of the master list. Further, the bill was to be passed by Accounts Officer and then the same was forwarded to AC/DC and thereafter the final approval was used to be sent to Licensing Inspector of respective wards for preparing the cheque. The Asstt. Commissioner was competent to finally sign the cheques and the same was handed over to Licensing Inspector who further handed over to concerned SI for further disbursement. Thereafter the payments were disbursed to the beneficiaries by respective SIs and ASIs against their signatures or their thumb impression on the acquaintance roll.
He further stated that the disbursement used to take about 2 months and thereafter, certificate of distribution used to be submitted before AC with details of payments regarding receipt and disbursement and copy of acquaintance roll showing the names of beneficiaries and the payment received by them. In case of non- payment of amount to the beneficiaries on account of their death or RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 18 non-availability, the same used to be deposited back in Zonal treasury. The entry of death was used to be specifically mentioned in the acquaintance roll by mentioning "died/expired" and those names were used to be deleted from master list which used to be maintained by LDC/UDC of concerned General Branch.
He further stated that after the allocation of budget, the old age pension was used to be distributed on quarterly and half yearly on consolidated basis. Further, at the time of his joining, Anil Kumar Chauhan was LDC in General Branch. He also stated that the forms for verification were used to be taken by Area Councilors who used to send it after filling the same and verifying the contents sent it back to AO office and the AO office used to send those forms to respective SI or ASI for physical verification and thereafter, the forms were sent back to Licensing Inspector/UDC/LDC.
(g) PW6 Shri Anil Kumar deposed that his father Shri Puttan Lal died on 06.09.2004 due to throat cancer and was 65 years at the time of his death. He further proved the application for old age pension (Ex.PW6/A) bearing signatures of his father at point A and his stapled photographs at point B1, B2 and B3 (D10/1) and affidavit (Ex.PW6/B). He further stated that his father used to get old age pension before his death and after death of his father, no member of his family collected pension in the name of his father. He further denied the signatures of his father at Q355 against serial No.223 (Ex.PW6/C). He also clarified that he did not know how many times his father had received old age pension before his death.
This witness was cross examined by Ld. PP for CBI as he resiled from his statement U/s 161 Cr.P.C. On cross-examination the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 19 witness reiterated that he had not informed the IO that his father had not received pension before death. Further on cross-examination on behalf of accused the witness deposed that his father used to receive the pension at residence of Municipal Councilor and the pensioners used to be identified by the Councilors.
(h) PW7 Smt. Ram Pyari deposed that she was residing at 134, Majboor Nagar, IP Extension, Delhi for the last 10-12 years prior to the date of her deposition. Further, Shri Puttan Lal was her husband who died 6-7 years ago but she did not remember the date, month or year of his death. She further stated that she did not know whether her husband used to get any old age pension and that after his death, nobody from her family went to collect his pension.
She further stated that as per acquaintance roll for the period April 2003 to September 2003 (starting from D9/1 to D9/8) and October 2004 to March 2005 (starting from D9/9 to D9/18) on the internal page D9/12, her name appears against the entry at serial no. 221 (Ex.PW7/A) but the signatures encircled in red marked as Q354 were not made by her as she used to put thumb impression on documents.
This witness was also cross examined by Ld. PP for CBI as she resiled from her statement U/s 161 Cr.P.C. On cross-examination the witness reiterated that she had not informed the IO that her husband had not received pension before death. Further on cross-examination on behalf of accused the witness deposed that her husband used to receive the pension at residence of Municipal Councilor and the pensioners used to be identified by the Councilors.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 20
(i) PW8 Smt. Veena Devi deposed that her father-in-law Shri Puttan Lal was receiving old age pension and died on 06.09.2004 at age of 64 years due to throat cancer. She further stated that neither she nor any of her relative had received pension after the death of her father in law. Further, she did not know who had received old age pension in name of her father in law. She further denied having made any statement to CBI officials and as such was cross examined on behalf of Ld. PP for CBI. During cross-examination by Ld. PP she denied having made any statement to the IO to the fact that her father- in-law was not receiving the old age pension before his death and was confronted with her statement recorded U/s 161 Cr.P.C.
(j) PW9 Shri B.K. Gupta deposed that his father Shri Ram Swaroop Gupta expired on 03.07.2004 at Parikshit Garh, Distt. Meerut, U.P. at the age of approximately 84 years. Further his father had been residing with him at 71, Defence Enclave and was in receipt of old age pension. He further identified the application for old age pension alongwith photograph (Ex.PW4/D) bearing his signatures. He also deposed that his father knew Hindi and Urdu. He further identified the signatures of his father on the original pension receipt on record for the period October 2004 to 2005 (D-09/09) at serial no. 214 (Ex.PW9/A). He also stated that his father used to sign in Hindi or Urdu and did not sign in English and as such, the signatures against entry no. 214 were denied to have been made by his father in October, 2004 as he had already expired in July, 2004. He further stated that neither his father nor any family member had received pension against the said entry. He also identified the signatures of his father at serial no. 214 on list of pensioners for the period April, 2003 RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 21 to September, 2003 (Ex.PW9/B).
(k) PW11 Smt. Jannat w/o Chand Khan deposed that her husband Chand Khan had expired about 15 years prior to her date of deposition. Further, she had been residing at Jhuggi No. 302, Mazbur Nagar, JJ Camp, Delhi since the death of her husband. She further stated that she had been receiving pension for the last 8-9 years. The witness was cross-examined by Ld. PP for CBI as she resiled from her statement U/s 161 Cr.P.C. Even on cross-examination by Ld. PP the witness denied recording of her evidence by CBI. She further stated that she had never resided at Hhuggi No.87 or 275 and also denied the fact that she had not received the pension from MCD. She even denied the handing over any diary to maintain the record of disbursement of pension.
(l) PW12 Smt. Jannat w/o Abdul Majeed deposed that her husband expired in 1990 and she had been residing at jhuggi no. 196, Mazbur Nagar, JJ Camp, IP Extn, Patparganj, Delhi before 1990. She further stated that she could sigh in Hindi and had been maintaining diary for receiving pension for the last five years. However, prior to that she was not maintaining diary or passbook. She also stated that earlier she used to put thumb impression and, thereafter started putting her signatures. She denied that her statement was recorded by CBI. The witness was cross-examined by Ld. PP for CBI on the ground that the witness was resiling from her statement U/s 161 Cr.P.C.
On cross-examination by Ld. PP she could not comment if thumb impression on entry no. 215 at point A on the acquaintance roll RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 22 of April 2003 to September 2003 (Ex.PW11/A) pertains to her. She also denied the suggestion that she was not receiving the pension. However, she further stated that she writes Jannu Khatoon while putting her sign but at entry no. 215 on acquaintance roll of October 2004 to March 2005 bears the word Jann.
(m) PW13 Shri A.K. Jain deposed that he had retired as Chief Sanitary Inspector from Shahdara South Zone in 2010. Further, he had remained Chief Sanitary Inspector from March 2006 till the date of his retirement. During his said tenure he was looking after around 8 wards and each ward has one Sanitary Inspector. Further, the old age pension used to be disbursed by the concerned SI/ASI of the particular ward. He further stated that Ward 79 comes under Shahdara Zone but the same was under his supervision for only 2-3 months. Further during the relevant period Surinder Jain, Pratap Singh and Gainda Lal remained as SI of ward no.79. However, he could not say who had done the verification on the application of Puttan Lal (Ex.PW6/A), Jannat (Ex.PW2/A) and Ram Swaroop Gupta (Ex.PW4/B). The witness was cross-examined by Ld. PP for CBI as he resiled from his statement U/s 161 Cr.P.C. On cross-examination he denied having made statement before CBI officer that verification on application of Puttan Lal, Jannat, Ram Swaroop Gupta was done by SI and Aneesh Yadav ASI. He also stated that as per forms of Puttan Lal, Jannat and Ram Swaroop, the report by SI and ASI belongs to ward 79 and signatures as SI 79 appears to be starting from alphabet 'G' and signatures of ASI 79 appears to be starting from alphabet 'A'.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 23
(n) PW14 Inspector Amit Vikram Bhardwaj deposed as to conduct of investigation and stated that during the period 2005, he was posted in CBI ACB New Delhi. Further, the FIR of the instant case (Ex.PW14/A) was lodged under the signatures of N.M. Singh, SP CBI, ACB New Delhi on the basis of source information against various officials of MCD Shahdara South Zone wherein it was alleged that the old age pension of MCD was wrongfully shown distributed and thus the amount was misappropriated by the accused. He further stated as to the collection of documents vide various seizure memos and obtaining of opinion of GEQD with respect to the documents forwarded for examination. He also stated that sanction was obtained in the respective cases from the competent authority.
8. In their statement u/s 313 Cr.P.C., accused denied the case of the prosecution. Accused further examined in defence DW1 Shri Naresh Pal, Assistant Commissioner Shahdara Zone, DW2 Shri S.D.Sharma Assistant Commissioner Central Zone, DW3 Shri Hari Singh Assistant Commissioner SDMC and DW4 Shri R.B. Tomar, Assistant Commissioner, DEMS North Delhi Municipal Corporation to prove that the sanction had not been granted in accordance with law by the competent authority u/s 19 of the Prevention of Corruption Act, 1988.
DW1 Shri Naresh Pal deposed that since 1984 till date, Assistant Sanitary Inspector and Sanitary Inspector fall in classification of category C as per recruitment rules of MCD and the appointment and removal authority of category C employees is Commissioner MCD. He further proved the service book in respect of RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 24 accused Gainda Lal as Ex.DW1/A. He further stated that Gainda Lal was appointed as Assistant Sanitary Inspector on 17.11.1987 and promoted as Sanitary Inspector on 22.11.1996. The attested copy of recruitment regulations for the post of Assistant Sanitary Inspector and Sanitary Inspector were proved as Ex.DW1/B & Ex.DW1/C. DW2 Shri S.D.Sharma produced the service book of accused Anish Yadav. During cross-examination of DW2 Ld. PP also got exhibited order dated 14.07.1992 Ex.DW2/DA, application for appointment under signatures of Anish Yadav Ex.DW2/DB and offer letter dated 03.06.1992 Ex.DW2/DC.
DW3 Shri Hari Singh proved the minutes of the meeting of selection board held from 25.07.1991 to 12.08.1991 (Ex.DW3/A) for selection of candidates for the post of Assistant Sanitary Inspector, wherein name of Anish Yadav was included as one of the candidates. The appointment letter dated 14.07.1992 in pursuance thereof was proved Ex.DW3/B. DW4 Shri R.B. Tomar, Assistant Commissioner, DEMS stated that the recruitment regulations for the post of Assistant Sanitary Inspector were notified vide notification no. 961/83/LSG by Delhi Administration and amendment to same was proposed as per letter dated 27.09.2012 (Ex.DW4/A) but the amendment is yet to be notified.
9. Ld. Counsel for accused assailed the case of prosecution on the following grounds:
(i) That the sanction u/s 19 of Prevention of Corruption Act, 1988 RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 25 had been granted mechanically without application of mind by the competent authority on the basis of draft forwarded by CBI and most of the paragraphs had been copied verbatim in all the sanction orders relating to the five chargesheets preferred by CBI.
(ii) That the sanction u/s 19 of Prevention of Corruption Act. 1988 had been granted by Additional Commissioner, MCD Shri Naresh Kumar instead of the Commissioner MCD who was the competent authority for appointment and removal under the DMC Act, 1957 r/w Recruitment Regulations.
(iii)That the SI/ASI were in no manner responsible for the preparation of the acquaintance rolls which were prepared on the basis of master list by another section of MCD. Further, the amount sanctioned for disbursement was sanctioned by the accounts department as per the list forwarded by the concerned section and accused had no role for inclusion/deletion of names of the pensioners in the list for the relevant period which was maintained by the concerned section.
(iv)That the pension was disbursed as per the names reflected in the acquaintance roll. The disbursement was at times made on the identification of the Councilors and the old age pension was even disbursed in the camps/offices organised by the Councilors. The accused could not be held solely responsible for identification, if any, made at the time of disbursement since no separate identification cards were issued by MCD.
(v)That the prosecution had failed to seize and produce the pocket RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 26 diaries maintained by the pensioners in which the pension amount disbursed to the respective pensioners was reflected and could be the best evidence to show if the pension had not been received by the concerned beneficiary.
(vi)That mere oral evidence of the witnesses could not be accepted as gospel truth in the absence of production of pension booklets maintained by the concerned beneficiaries which were in their possession.
(vii)That the prosecution had failed to obtain the specimen signatures/thumb impression of the beneficiaries and even failed to get the thumb impressions/signatures appearing on the receipts to be compared with the admitted signatures/thumb impressions of the beneficiaries on the application forms which were filled for the grant of pension to conclude that the same were fake. Even the identity of the persons who had allegedly forged the signatures or thumb impressions as per case of prosecution could not be identified and the same did not match with the handwriting of accused.
(viii) That the prosecution failed to prove the signatures regarding withdrawal of amount by the accused from the payment register as competent witness was not examined by the prosecution who was acquainted with the writing of the accused and as the concerned witness had never worked with the accused or received documents from the accused in official course of business.
(ix)That the initials on the respective disbursements could not be RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 27 concluded to be of the accused as the same was not supported by any opinion of handwriting expert. It was also submitted that merely on the basis of certificate appended at the end of the acquaintance rolls regarding disbursement the accused could not be held liable for cheating or misappropriation or misconduct since the accused were helped in the process of disbursement by the other officials posted in the department as Sanitary Guides and it was not possible for them to be physically present in case of each disbursement.
(x)That the prosecution had relied upon testimony of witnesses to prove the initials/writing of accused who had never worked with the accused and were not acquainted with their writing.
(xi) That the prosecution failed to examine all the relevant witnesses and the witnesses examined did not support the case of the prosecution. It was also contended that the investigating agency did not act fairly since the instances were referred in random in the chargesheet without factual examination of record and even the cases in which the disbursement was clearly made to the concerned recipients, the allegation had been wrongly made to bolster the case of the prosecution.
(xii) That the name of accused SI/ASI never figured in the initial FIR which was registered on the basis of source information naming the then Deputy Commissioner, AC, ACA and Administrative Officer as the accused who had allegedly entered into conspiracy but they were ultimately given a clean chit except Shri H.R. Gurnani, Administrative Officer who has since expired and his name was kept in column no.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 28
12.
(xiii) It was also pointed out that in the case of CBI vs. Bharat Singh CC No.123/11, the investigating agency has even not fairly placed the opinion of handwriting expert though it was admitted by the prosecution/IO that the documents were forwarded for examination by CFSL.
(xiv) It is also contended that in CC No.102/11 Ashok Kumar Gulati & Anr., Smt. Dipika Khullar, the then MCD Councilor for the period 2002 to 2007 and from 2007 to 2012 had been examined who admitted the disbursement of the pension to the beneficiaries at a public place wherein the pension was distributed by the officials of MCD. As such, the case of the prosecution that the pension was exclusively disbursed in the office of MCD is disputed.
(xv) Counsel for accused also relied upon following authorities:
•2009 (6) SCC 77, S.V.L. Murthy vs. State, represented by CBI, Hyderabad •2007 (4) JCC 2843, Inder Mohan Goswami & Anr. vs. State of Uttranchal & Ors.
•2009 (8) SCC 617, State of Madhya Pradesh vs. Sheetla Sahai & Ors. •2005 (12) SCC 631, K.R. Purushothaman vs. State of Kerala •2003 (9) SCC 700, R. Balakrishna Pillai vs. State of Kerala •2012 II AD (DELHI) 188, G.S. Mathararoo vs. CBI •1993 CRI. L.J. 2051, N.P. Lotlikar vs. CBI and Anr. •2000 (10), SCC 43, Ram Krishan Prajapati vs. State of U.P. •1979 (4) SCC 172, Mohd. Iqbal Ahmed vs. State of Andhra Pradesh •VIII (2007) SLT 667, State of Karnataka vs. Ameer Jan •2002 (2) Crimes 198, Udai Narain vs. State of U.P. RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 29 •1998 CRI. L. J. 2175, Abdul Khalil vs. State of M.P. •2009 (6) SCC 587, A. Subair vs. State of Kerala •1996 CRI. L. J. 3638, CBI/ SPE Hyderabad vs. P. Muthuraman • AIR 1980 SCC 531, Murarilal vs. State of M.P. • 2004 (13) ILD 215 (SC), L. Chandraiah vs. State of A.P. • AIR 2010 Supreme Court 1162, Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors.
On the other hand, ld. PP for CBI vehemently opposed the contentions raised on behalf of accused at bar. It was contended that the accused were solely responsible for disbursement of pension and in case the same had been wrongly shown to be disbursed, the only inference which could be drawn is that the accused had misappropriated the amount and cheated MCD. It was also contended that the sanction had been granted in accordance with law by the competent authority i.e. the Additional Commissioner, MCD. Reliance was also placed upon AIR 1988 SC 2190 P.V. Narsimha Rao vs. State.
10. It may be observed that arguments in all the five chargesheets have been taken up together. Except for the concerned beneficiaries, the witnesses from MCD are common and have been examined to elicit the procedure of disbursement as well as to prove the relevant entries relied in the respective chargesheets. The common witnesses in the chargesheets are namely Manoj Kumar Dhyani, Jang Bahadur, Mukesh Kumar, I.P. Verma, Jagdev Singh. Apart from above, Shri Naresh Kumar, Additional Commissioner who had granted sanction u/s 19 of PC Act, 1988 being the competent authority is common in the chargesheets besides the IO (Inspector Amit Vikram Bhardwaj) RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 30 who had investigated the case. The counsels in all the five chargesheets have also taken analogous stand and assailed the case of prosecution on common grounds.
11.SANCTION ACCORDED U/S 19 OF PC ACT, 1988 The counsel for the accused in all the chargesheets have vehemently contended that sanction u/s 19 of PC Act was mechanically accorded without application of mind by the competent authority rendering the sanction as invalid. It was also urged with vehemence that the sanction had been granted by Shri Naresh Kumar, the then Additional Commissioner MCD who was not the competent authority for according the sanction and only the Commissioner MCD could have accorded the same in respect of the accused who are category B and C employees.
I have given considered thought to the contentions raised. The law relating to the sanction is strict in its requirements that is to say there has to be a valid Sanction for commencement of the trial. Where the Sanction has been accorded by a person who was not competent to accord the said Sanction, the same is not considered to be a valid Sanction. Further, wherein a sanction has been accorded without application of mind, the same is also not considered to be a valid sanction. Criteria laid down for grant of sanction has to fall within the four corners of the Sanction and any deviation in this regard would result in initiating the trial without a valid sanction.
It may also be observed that the validity of sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority. Further, wherein the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 31 sanction order itself is a speaking order in such cases it is not necessary to prove by leading evidence that sanctioning authority has applied its mind. Reliance may be placed upon C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 and Superintendent of Police (CBI) Vs. Deepak Chaudhary 1995 SCC (Crl.) 1095.
In the present case, a bare perusal of the sanction order reflects that the material placed before the sanctioning authority was duly considered and no infirmities have come on record during cross- examination to hold that the sanction order granted in respect of accused was invalid or without application of mind. The sanction order cannot be considered to be invalid merely because the same does not bear the date. Even the same cannot be considered to be mechanical merely because some of the paragraphs are common in the respective chargesheets. There is no dispute as to the proposition of law laid down in the authorities relied upon by counsel for accused but each case is to be decided on factual circumstances and infirmities, if any, appearing in the sanction order.
12.The accused have further vehemently challenged that PW3 Shri Naresh Kumar, Additional Commissioner was incompetent to accord the sanction u/s 19 of PC Act, 1988 and the same was required to be accorded by Commissioner, MCD. Reliance for aforesaid purpose has also been placed upon G.S. Matharaoo Vs. CBI 2012 II AD (DELHI) 188. The aforesaid contention has been pressed by the counsels in all the respective cases and similar submissions have been made and as such the reference is required to be made to all RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 32 the five chargesheets in which arguments have been taken up together.
On the other hand, ld. PP for CBI has vehemently opposed the contentions and submits that in the absence of the appointment letters having been produced on behalf of accused showing that the appointment was made by Commissioner MCD, it cannot be presumed that the Commissioner was the appointing authority. It is also urged that the concerned witness Shri Naresh Kumar, Additional Commissioner, MCD who had accorded the sanction was not cross examined on behalf of accused challenging his powers to accord the sanction u/s 19 of PC Act, 1988. It is also contended that so far as the appointment letters and minutes of meeting qua selection of accused Anis Yadav are concerned, the same do not lead to the conclusion that Commissioner MCD had appointed the accused.
Ld. PP also submits that in another corruption case no. 30/04 CBI vs. Lalit Gupta (Assistant Sanitary Inspector MCD) & Anr. RC 38(A)/01/CBI/ACB/New Delhi decided on 23.10.2010 by the Court of Shri V.K. Maheshwari, Special Judge, Tis Hazari, Delhi a similar issue regarding the grant of sanction by Commissioner MCD was raised. It is submitted that therein the accused was appointed as ASI by Deputy Commissioner (Health) by delegated powers to him by the Commissioner MCD and since then Commissioner MCD u/s 491 DMC Act vide order dated 13.07.2001 had delegated his powers to Deputy Commissioner, the sanction had also been accorded by the Deputy Commissioner. In the aforesaid factual position, the contentions raised on behalf of accused challenging that the sanction had not been granted by the competent authority was dismissed. Further, it was also referred in the aforesaid judgement that earlier a similar plea RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 33 had been raised by the accused during course of trial which was rejected by the trial court and the said order was further stated to have been affirmed by Supreme Court by dismissal of Special Leave Petition. However, the certified copy of the same has not been placed before this Court and a photocopy of judgement passed by the trial court in CC No.30/04 was referred during the course of arguments.
So far as G.S. Matharaoo's case (supra) is concerned, the grant of sanction by the Commissioner, MCD u/s 19 of the Pct Act, 1988 for the prosecution of the accused/petitioner who was Group A employee was held to be invalid and it was observed that the "Corporation" is the competent authority to grant the sanction. However, in present case, accused are group B & C employees.
The relevant provisions in the DMC Act, 1957 may be briefly noted to ascertain the competent authority to accord sanction u/s 19 of PC Act, 1988 in respect of accused involved in present case. Section 59 of DMC Act provides for functions of Commissioner and Section 59(d) of DMC Act lays down that subject to any regulations that may be made in this behalf, the Commissioner will be the disciplinary authority in relation to all Municipal officers and other Municipal employees. Section 95 of the DMC Act, 1957 further provides that an employee can be removed by such authority as may be prescribed by the regulations. Also, Section 89 further provides that the Standing Committee or its delegatee is the appointing authority of Municipal employees under Group B & C below the Municipal Secretary or the Municipal Chief Auditor. Regulation 7 framed in exercise of powers under 480 of DMC Act i.e. DMC Service (Control and Appeal) RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 34 Regulations, 1959 lays down that the authority competent to impose all penalties for Group A posts is the "Corporation" and only minor penalties against Group A employees can be imposed by Deputy Commissioner. Further, the competent authority in respect of employees under category B & C post is Commissioner MCD and the appellate authority is the Standing Committee. However, the schedule to regulation 7 further specifies the authority competent to impose all the penalties including major penalty as Deputy Commissioner in case where the appointment was made to the category B & C post by the Deputy Commissioner while the minor penalties could be imposed by any Municipal officer or employee to whom power to impose penalty is delegated u/s 491 of the Act.
In the aforesaid legal background, the evidence on the point of sanction led on record in the respective cases and the factual position may be briefly discussed.
(a) In case of CBI vs. Sunder Lal (CC No.124/11), PW3 Naresh Kumar, then Additional Commissioner (Engg.) & DEMS had deposed that he was the authority competent to remove the accused Sunder Lal and Pritam Singh both working as Sanitary Inspectors in the office of MCD. However, the witness was not cross-examined to the extent that he was not the competent authority to remove Sunder Lal and Pritam Singh. So far as CC No.124/11 is concerned, no evidence in defence was led further challenging/disputing the appointing authority of the accused.
(b) In CC No.123/11, CBI vs. Bharat Singh, similarly, the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 35 deposition of PW3 Shri Naresh Kumar is to the extent that he was the authority competent to remove Bharat Singh then working as Sanitary Inspector and further proved the sanction order Ex.PW3/A in respect of Bharat Singh. Even in this case the witness was not cross- examined to the effect that he was not the competent authority to accord the sanction u/s 19 of the PC Act, 1988 and was not competent to remove accused Bharat Singh. However, in this case, in defence evidence the accused examined DW1 Naresh Pal who had proved the recruitment regulations Ex.DW1/C and the service book of accused as Ex.DW1/A. The cross-examination of DW1 reflects that he stated that Commissioner MCD is the appointing authority since generally the Head of Department is the appointing authority but was not aware of any notification, rules in this regard. However, the appointment letters in respect of the accused to point out the appointing authority was not filed or proved on record.
(c) In CC No.122/11, CBI vs. Anil Kumar Chauhan, similarly, the deposition of PW3 Shri Naresh Kumar is to the extent that he was the authority competent to remove Anil Kumar Chauhan then working as LDC in MCD and further proved the sanction order Ex.PW3/A in respect of Anil Kumar Chauhan. Even in this case the witness was not cross-examined to the effect that he was not the competent authority to accord the sanction u/s 19 of the PC Act, 1988 and was not competent to remove the accused Anil Kumar Chauhan. In this case also, no evidence in defence was led further challenging/disputing the appointing authority of the accused.
(d) In CC No.102/11 CBI vs. Ashok Kumar Gulati etc., similarly, RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 36 the deposition of PW3 Shri Naresh Kumar is to the extent that he was the authority competent to remove Ashok Kumar Gulati then working as Sanitary Inspector and Dharmender Kumar Sharma working as Assistant Sanitary Inspector and further proved the sanction orders Ex.PW3/A & Ex.PW3/B. Even in this case the witness was not cross-examined to the effect that he was not the competent authority to accord the sanction u/s 19 of the PC Act, 1988 and was not competent to remove the accused Ashok Kumar Gulati and Dharmender Kumar Sharma. However, in this case, in defence evidence the accused examined DW2 Naresh Pal who had proved the recruitment regulations Ex.DW2/C & Ex.DW2/D in respect of Assistant Sanitary Inspector and Sanitary Inspector and the service book of accused Dharmender Kumar Sharma and Ashok Kumar Gulati as Ex.DW2/A and Ex.DW2/B. The cross-examination of DW2 reflects that he stated that Commissioner MCD is the appointing authority since generally the Head of Department is the appointing authority but was not aware of any notification, rules in this regard. The appointment letters in respect of the accused to point out the appointing authority were not filed or proved on record.
(e) In CC No.101/11 CBI vs. Gainda Lal etc., similarly, the deposition of PW3 Shri Naresh Kumar is to the extent that he was the authority competent to remove Gainda Lal then working as Sanitary Inspector and Anis Yadav working as Assistant Sanitary Inspector and further proved the sanction orders Ex.PW3/A & Ex.PW3/B. Even in this case the witness was not cross-examined to the effect that he was not the competent authority to accord the sanction u/s 19 of the PC Act, 1988 and was not competent to remove the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 37 accused Gainda Lal and Anis Yadav. However, in this case, in defence evidence the accused examined DW1 Naresh Pal who had proved the recruitment regulations in respect of Assistant Sanitary Inspector and Sanitary Inspector as Ex.DW1/B & Ex.DW1/C and the service book of accused Gainda Lal Ex.DW1/A. The cross- examination of DW1 reflects that he stated that Commissioner MCD is the appointing authority since generally the Head of Department is the appointing authority but was not aware of any notification, rules in this regard. DW2 Shri S.D. Sharma was also examined on behalf of accused Anis Yadav who produced the service book of the accused and stated that he was appointed as Assistant Sanitary Inspector. During cross-examination the ld. PP for CBI got proved the offer letter dated 03.06.1992 (Ex.DW2/DC) contained in service book of the accused. Another witness DW3 Hari Singh was examined on behalf of the accused Anis Yadav who proved the minutes of the meeting of selection board for selection of candidates for post of Assistant Sanitary Inspector wherein name of Anis Yadav was mentioned as one of the selected candidates. The copy of the relevant notesheets including minutes of the meeting were proved as Ex.DW3/A alongwith appointment letter dated 14.07.1992 as Ex.DW3/B. In all the respective chargesheets it may be noticed Shri Naresh Kumar who had accorded sanction u/s 19 of PC Act, 1988 has not been cross-examined by the accused challenging his powers to accord the sanction being the competent authority to remove the accused. At the same time, the appointment letters in respect of the accused have not been produced except in case of Anis Yadav. It is only in his case that on the basis of appointment letter/minutes of the selection committee, it is contended that the Additional Commissioner RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 38 MCD (Shri Naresh Kumar) was not competent to accord the sanction as he was not the appointing authority. The minutes of the meeting of the selection board held from 25.7.91 to 12.8.91 for selection of candidates for the post of Assistant Sanitary Inspector (Ex.PW3/A) reflects that the board was constituted by the then Addl. Commissioner, Health and the select list/penal was placed for the approval of the Addl. Commissioner Health. It is only for the purpose of seeking relaxation in age limit in respect of some candidates that the proposal was placed for approval from then Commissioner, MCD. Further, the appointment letter Ex.PW2/DA in respect of Anis Yadav only reflects that the same was issued on the basis of selection list under the signatures of Assistant Commissioner. In no manner it can be inferred from evidence on record that the appointment of Anis Yadav was made by Commissioner, MCD. It may also be observed that though Commissioner MCD may be the appointing authority, the powers in this regard may be delegated by him to the subordinate officers. Where an employee has been appointed under the delegated powers by an officer below the level of Commissioner MCD the removal of the official by an officer of the rank who had been delegated the powers may not be invalid. The premise proceeds on proviso to Section 95 of Delhi Municipal Corporation Act which provides that the power to remove can be exercised by an authority authorised in this behalf by regulations subject to the limitation that such authority should not be an authority subordinate to that by which the particular employee was appointed.
In the facts and circumstances, I am of the considered view that there is no merit in the contention raised on behalf of accused in the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 39 present case that the sanction had not been accorded by the competent authority.
13. A brief reference to scope of Section 13 PC Act, 1988 and Section 120B IPC may also be noticed since the accused have been charged for Section 120B IPC in CC o.124/11 (Sunder Lal & Pritam Singh), CC No.102/11 (Ashok Kumar Gulati & Dharmender Kumar Sharma) and CC No.101/11 (Gainda Lal & Anis Yadav).
(a) Section 13 of the Prevention of Corruption Act, 1988 provides for criminal misconduct by public servant. The offence of criminal misconduct by a public servant can be said to have been committed in terms of Section 13(1)(d) (ii&iii) if the public servant abuses his position and obtains for himself or any other person any valuable thing or pecuniary advantage; or while holding office as public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. Sub-Section 2 of Section 13 of the Act provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
(b) 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, in as much 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 RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 40 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 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 RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 41 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."
14. Before proceeding to appreciate evidence on merits against the accused, it is pertinent to notice that though the investigating agency has raised fingers on role of late Shri H.R. Gurnani, the then Administrative Officer and placed him in column no. 12 on account of his death but have miserably failed to point out any evidence of conspiracy with the accused who have ultimately been chargesheeted on record. As per prosecution, Shri H.R. Gurnani failed to obtain approval/recommendation of the AC/DC and as such misused his official position. However, in the absence of any mensrea, a mere administrative lapse cannot lead to an inference that the accused had misconducted himself since no evidence has been led to show that he was in conspiracy with other accused or had unduly benefited himself. It is also pertinent to note that the old age pension was to be RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 42 disbursed as per the names appearing on record in the master list and acquaintance roll prepared on the basis of the same. In case there was any lapse in obtaining the administrative approval from AC or DC for sanctioning of any bill, then the amount should not have been sanctioned by the Accounts Branch itself for want of any such approval on record. However, the same was duly sanctioned by Accounts Branch and Assistant Chief Accountant Shri S.V. Pillai has been given a clean chit by investigating agency as it did not find any evidence to substantiate conspiracy. The lapse to aforesaid extent may not be sufficient to impute criminal conduct to Shri H.R. Gurnani though the senior officers appear to be lax in administrative supervision for maintenance of master list and acquaintance rolls. Even otherwise if for any particular period the file had not been placed, the competent authority i.e. the AC or DC could have called for the same for according any approval, if specifically required for the purpose of sanction of amount to be disbursed to the pensioners since the pension was required to be disbursed in time bound schedule. The prosecution itself has ruled out any angle of conspiracy at the level of AC, DC or ACA though FIR was registered on source information against said officers and subsequently have been given a clean chit. In the facts and circumstances, it is difficult to infer that the Administrative Officer was liable for penal consequences as imputed by investigating agency merely on account of an administrative lapse in obtaining the approval since the conspiracy with other accused has not been proved on record.
15. It may be observed that prosecution in order to prove its case is required to establish the death of the recipient of the old age pension RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 43 in case the pension has been disbursed after his death and the fact that the death had been notified on record of MCD. It also needs to be ruled out that the pension was not received on behalf of beneficiary by any of his representative/family member during the relevant period suppressing the information as to his death. The prosecution is further required to prove that the accused were responsible for disbursement of pension and had made the relevant entries for disbursement in the acquaintance roll. It needs to be also established that the pension had been received for disbursement by the accused and were solely responsible for disbursement of the same. Prosecution is also required to prove beyond reasonable doubt that the accused had intentionally shown the pension to be disbursed to the recipient with the knowledge that the old age pension had in fact not been received by the recipient.
16. At the outset the practice of disbursement of pension in the office has been vehemently disputed by accused in all the chargesheets and it is contended that the accused were assisted by other officials during the course of disbursement and as such the responsibility of accused could not be exclusively fixed. It is further contended on behalf of accused that Smt. Dipika Khullar, the then MCD Councilor for the period 2002 to 2007 and from 2007 to 2012 who had been examined in defence in CC No.102/11 admitted the disbursement of the pension to the beneficiaries at public places wherein the pension was distributed by the officials of MCD. As such, the case of the prosecution that the pension was exclusively disbursed in the office of MCD is vehemently disputed.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 44 Perusal of statement of DW1 Smt. Dipika Khullar in CC No. 102/11 reveals that she specifically deposed as to the disbursement of the pension to the beneficiaries at a public place wherein the pension was distributed by the officials of MCD.
The said practice has been denied by the prosecution but testimony of DW1 Smt. Dipika Khullar who happened to be the Councilor of one of the wards cannot be ignored and appears to be fully trustworthy and reliable. She categorically deposed that the beneficiaries of the pension were normally intimated through the Residents Welfare Association of the locality and the pension was distributed by the officials of MCD to the beneficiaries who used to collect at any public place. Further, the beneficiaries who were unable to collect the pension on the said date, used to collect the same from MCD office. She also explained during cross-examination that for the purpose of convenience of beneficiaries (old ladies etc.) the pension was distributed in the area and she used to be present during the process of disbursement both as a social obligations as well as since she was the Councilor of the area.
The testimony to aforesaid extent contradicts the case of the prosecution that the old age pension was strictly distributed in the office while there appears to be a practice of distributing the old age pension in the area at instance of local Councilor for the convenience of the beneficiaries. Identification of the beneficiaries in course of such camps by the other persons associated with the Councilor cannot be ruled out though the duty of disbursement was of the MCD officials. In such instances of distribution in public places for which no official record appears to be maintained, it may be difficult to hold the accused solely responsible RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 45 when the pension was disbursed in good faith on identification with assistance of other persons and at times in the presence of the Councilor. It may also be observed that in case of disbursement of pension in any such camps, the concerned SI/ASI is bound to be assisted by some other MCD officials and it may not be safe to hold the accused exclusively responsible for disbursement.
In the aforesaid context, the testimony of Jang Bahadur also appears to be relevant. This witness has been examined in all the five cases by the prosecution on the point of procedure as well as for proving the withdrawal of amount for disbursement as per register Ex.PW5/O with reference to different acquaintance rolls. This witness in CC No.123/11 (CBI vs. Bharat Singh) categorically admitted during cross-examination that the Councilor used to be some times present in the office of SI during disbursement of pension. The same also reflects that the Councilor of the area for purpose of convenience of the beneficiaries even in case of disbursement in office was also at times present during the process of disbursement. The act of disbursement to a recipient with assistance of other officials wherein the persons are present in large numbers at the instance of Councilor or other persons in good faith would lack the element of mensrea and it may not be safe to convict the accused as there would be a strong shadow of doubt. PW2 Jung Bahadur in his cross-examination in the aforesaid case i.e. CC No.123/11 (CBI vs. Bharat Singh) also admitted that after receiving the money from the office, SI used to depute the ASI to disburse the pension to the pensioners and in case of an inspection SI used to give the amount to ASI and left for round in the area. In the aforesaid circumstances also, it may be difficult to fix the sole responsibility on the SI if he was assisted by the ASI or other RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 46 officials for disbursement.
PW2 Jung Bahadur during his cross-examination in CC No. 102/11 (CBI vs. Ashok Kumar Gulati & Anr.) also admitted that there was no document or identification or I-card of the pensioners by which the authority disbursing the pension could identify as to whom the pension is being disbursed. The diaries maintained by beneficiaries have not been seized and produced by prosecution.
PW2 during his cross-examination in CC No.101/11 (CBI vs. Gainda Lal & Anr.), also admitted that pension amount used to be distributed by the concerned Supervisor and he was provided with the assistance of other staff members i.e. SI, ASI and Sanitary Guides.
Even PW6 Anil Kumar and PW7 Ram Pyari in this case (CC No. 101/11) admitted the practice of receiving pension at residence of Councilor.
The facts and circumstances on record clearly reflect that the pension was being disbursed in the office as well as in the area of the concerned ward for which the MCD officials were also being assisted by other officials. The aforesaid fact gains considerable significance since the prosecution has not been able to prove the initials of the official concerned who had disbursed the pension against specific disputed entries.
The aforesaid circumstances strike to root of prosecution version and it may be difficult to hold beyond reasonable doubt that accused were exclusively responsible for disbursement of pension.
17. The counsel for accused have further vehemently contended RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 47 that the entries alleged to have been made by the accused qua the disbursement of the old age pension amount have not been proved by the officials who may have been acquainted with the writing of the accused or may have worked during the relevant period with the accused. In the aforesaid context, it is submitted that merely because a document is exhibited without any objection from the counsel for accused, the same does not estop or preclude from questioning the admissibility thereof at later stage. Reliance is also placed upon AIR 2010 Supreme Court 1162 Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors.
I am of considered view that the document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. The burden lies on the prosecution to ensure that the document is proved on record in accordance with law by an official who is acquainted with the writing of the accused or who has received the documents signed by the accused in official course of the business or has seen the accused writing or signing the document in order to identify the writing/initials.
It is pointed out on behalf of accused that even the initials of accused have not been proved on record in accordance with law. Ld .counsel for accused has also pointed out that testimony of PW2 Shri Jang Bahadur who has been examined by the prosecution to prove the relevant acquaintance rolls for the period 2002-2005 with reference to ward no. 79 in the present case categorically deposed during cross examination that he dealt with said ward after July, 2006 and was not even aware of as to how many SIs/ASIs were posted in ward no. 79 from 2002 to 2005 though he was examined to prove the relevant entries. It is also pointed out that even in the statement of the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 48 witness recorded u/s 161 Cr.P.C. it had been known during investigation that Ashok Gulati, Sukhman Chand Jain and Gainda Mal Jain were Sanitary Inspector from 2002 to 2004 while Jitender Kumar, Harinder Kumar, B.S. Bhatti and Anish Yadav were ASIs in ward no. 79 and the witness was duly confronted to the aforesaid aspect with his statement u/s 161 Cr.P.C. Mark PW2/DA wherein it is so recorded. Also, the statement to aforesaid extent is also admitted by the IO PW14. It may also be observed that PW2 during cross examination further clarified that he did not have any personal knowledge as to who used to disburse the pension for ward no. 79 from 2002 to 2005 and stated that payment used to be released in the name of the ward and it was not released to any particular person. He further deposed that any ASI or SI of concerned ward could be sent to collect the money to be distributed to the pensioners and he could not say as to who was posted for distribution of old age pension for the period 2002 to 2005 or who was the incharge during the said period since he was not posted in the said ward during aforesaid period. He further clarified during cross examination that the pension amount used to be distributed by the concerned supervisor and he was provided with the assistance of other staff members i.e. SI, ASI and sanitary guide.
In view of the aforesaid statement of PW2 the writing on the acquaintance roll has not been conclusively proved by the prosecution. It remains inconclusive as to which of the officer/official actually disbursed the pension. Even the signatures on the payment register as to which of the officer had obtained the amount for purpose of disbursement remains doubtful as the same has not been proved by the concerned official and PW2 had never been posted in ward no. 79 from 2002 to 2005 and had never worked with Gainda Lal as RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 49 deposed in his cross examination.
The facts and circumstances clearly point out that the best evidence to hold the accused as the author of the said entries has not been led on record. In view of above, the writing on the acquaintance roll in respect of entries relied by prosecution has not been conclusively proved to be that of accused. It also remains inconclusive as to which of the officer/official actually disbursed the pension amount even though SI/ASI may have been assigned the duty of disbursement.
Even the signatures on the payment register as to which of the officer had obtained the amount for purpose of disbursement have not been proved in accordance with law by the concerned official who had handed over the amount or was aware and competent to identify the handwriting of accused. The witness examined to prove the relevant entries had never worked with the concerned SI/ASI and was not competent to identify and prove the handwriting of accused. Further, the official who handed over the amount to the concerned SI/ASI for disbursement was not examined. PW5 Mukesh Kumar who was posted during 1995-2000 prior to Anil Kumar Chauhan clarified during cross examination that he had never seen Gainda Lal and Anis Yadav working in the office and could not identify their handwriting. The initials on the payment register qua the receipt of amount were also not forwarded by the investigating agency to confirm as to the official who had received pension for disbursement.
In the facts and circumstances it may also be observed that mere annexing of the certificate at the end of the acquaintance roll by the SI or ASI is not sufficient to fix their liability since they appear to be assisted by other officials in the process of RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 50 disbursement. This is apart from the fact that initials at the end of some of the certificates could not be opined by the handwriting expert.
Further, in absence of any conclusive evidence as to conspiracy having been proved on record, it may be difficult to hold the accused guilty.
18. It is pertinent to mention that a common ground has been taken up in all the cases on behalf of accused that the best evidence which could have shown the receipt of pension by the beneficiaries for relevant period has not been produced by the investigating agency by way of seizure of pension diaries which are stated to have been maintained by the concerned beneficiary. The production of same could have clearly reflected the period of pension and also ruled out any possibility of receipt of pension by any family member in case of death of beneficiary.
I am of the considered view that there is considerable merit in the submissions made on behalf of accused to aforesaid extent as no reasonable explanation has come forward for non seizure of most of original diaries maintained by beneficiaries which would have been the best evidence to show the period for which the amount had not been received by any beneficiary or wrongly claimed by any of the relatives in case of the death of the beneficiary. The material corroboration to support the allegation of wrongful disbursement as such is lacking in all the chargesheets.
19. It may also be noticed that the accused did not have any role in RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 51 preparation of the acquaintance roll which was prepared by the general branch and the pension amount was sanctioned by the accounts branch and there are no allegations of conspiracy of accused with the official from General Branch or Accounts Department who had prepared the rolls or sanctioned the amount to be disbursed. Further, there is no conclusive evidence to show if any information in writing had been delivered or received by the section regarding the death of deceased beneficiary. In case any such information would have been delivered on record, the name of the beneficiary should not have figured in the acquaintance roll for subsequent months which is maintained by different official. For the foregoing reasons, the knowledge of death of beneficiary cannot be imputed to accused.
20. In the aforesaid background, the instances of wrongful disbursement of pension relied by prosecution may be further discussed. The case of the prosecution is that the beneficiary Puttan Lal had expired on 06.09.04 but the pension was shown to be disbursed for the period April 03 to September 03 and October 04 to March 05 thereafter despite his death. The counsel for accused has outrightly pointed out that so far as the receipt of pension for the period April 03 to September 03 is concerned, the same has been wrongly alleged by the prosecution in the chargesheeet since the beneficiary expired on 06.09.04 while the pension relates to the record much before the death of deceased for April 03 to September 03. Further there is no evidence to the effect if the pension was not received by the beneficiary for the said period and the pension diary maintained by beneficiary had not been produced on record.
So far as the disbursement of pension as per acquaintance roll RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 52 for October 04 to March 05 is concerned, the prosecution relies upon statement of PW6 Anil Kumar (son of deceased), PW7 Smt. Ram Pyari (wife of deceased) and PW8 Smt. Veena Devi (daughter in law of deceased). In the aforesaid context, PW8 Smt. Veena Devi in her examination in chief deposed that her father in law expired on 06.09.04 and after his death she or any of her relatives did not receive the old age pension. However, she further stated that her statement was neither recorded by CBI nor any enquiry was made from her. In view of above, the witness was cross examined by ld PP for CBI. During cross examination the witness denied the suggestion given by the prosecution to the effect that she had made a statement before the IO that her father in law did not use to get the pension from MCD.
At this stage it may be observed that the investigating agency developed the case that deceased was not receiving pension before and after his death but the non receipt of pension prior to his death has not been supported. The receipt of the pension prior to his death is even admitted by PW6 Anil Kumar (son of deceased) who was also cross examined by prosecution. So far as PW7 Ram Pyari (wife of deceased) is concerned she was not even aware whether her husband used to get old age pension. This witness was also cross examined by ld. PP for CBI and denied having stated during examination as to non receipt of pension by her husband prior to his death. It may be noticed that both PW6 & 7 admitted in cross examination that the pension used to be received at the residence of Municipal Councilor and the pensioners were identified by the Councilor. It may also be observed that the entry no. 223 for the aforesaid period could not be proved to have been made by the accused since no opinion as to the initials on disbursement at Q355 RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 53 alongwith the amount of Rs.1,800/- could be given by the handwriting expert.
It may also be noticed that no evidence as to intimation of death of deceased in record of MCD has been led on record to assume that the accused were aware of death of deceased and have intentionally shown the pension as disbursed. The non receipt of pension by any representative or relative of beneficiary suppressing the death could have been ruled out by production of original pension diaries which have not been produced by investigating agency.
b. Ram Swaroop Gupta As per case of prosecution, Ram Swaroop Gupta expired on 03.07.04 and the pension has been stated to be wrongly disbursed for the period April 03 to September 03 and October 04 to March 05. Prosecution has further relied upon testimony of Shri B.K. Gupta son of late Shri Ram Swaroop Gupta.
So far as receipt of pension for the period April 03 to September 03 is concerned, PW9 Shri B.K. Gupta admitted the receipt of pension by his father for the aforesaid period and also identified his signatures on the acquaintance roll. The case of the prosecution regarding non receipt of pension for April 03 to September 03 as such has no merits.
So far as receipt of pension for the period October 04 to March 05 is concerned, the disbursement of pension to the accused has not been conclusively proved on record since no opinion could be obtained on the initials of the official who had disbursed the pension at Q360 or on the amount of Rs.1,800/- written on the receipt at Q340. Further even the signatures of the recipient could not be confirmed. Even no certificate has been proved on record regarding the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 54 disbursement for the aforesaid period.
Since evidence on record suggests that the accused were not solely responsible for disbursement of pension but other officials were also disbursing the pension as reflected from testimony of PW2 Jang Bahadur and PW14 Inspector Amit Vikram Bhardwaj, it may be difficult to nail the accused on the basis of evidence on record.
c. Jannat w/o Chand Khan As per case of prosecution, Jannat w/o Chand Khan did not receive the pension for the period April 03 to September 03 and October 04 to March 05. However, PW11 Jannat w/o Chand Khan did not support the case of the prosecution as she stated that she had been getting pension for the last 8-9 years prior to the date of deposition. The witness as such was cross examined by ld. PP for CBI. However, even during cross examination she denied the case of prosecution. She further stated that the jhuggi number reflected as 275 at the entry no. 224 in the acquaintance roll for the period October 04 to March 05 was incorrect as she has been staying in jhuggi no. 302 right from the beginning. Ld. Counsel for accused also points out that even opinion with respect to the thumb impression of the recipient was also not obtained by the prosecution in this case for the period April 03 to September 03 and October 04 to March 05.
d. Jannat w/o A. Majid As per case of prosecution, Jannat w/o Abdul Majid did not receive the pension for the period April 03 to September 03 and October 04 to March 05.
However, PW12 Jannat w/o Abdul Majid did not support the RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 55 case of the prosecution as she stated that she had been getting pension for the last 5 years from Manju Gupta and prior to aforesaid period the pension was received from Ramesh Pandey. She further stated that she had been maintaining a diary for the last five years but prior to aforesaid period, no diary or passbook was maintained. This witness was also cross examined by ld. PP for CBI as she denied that pension was not received by her. During cross examination by ld. PP, she stated that she could not comment on the thumb impression at entry no. 215 in the acquaintance roll for the period April 03 to September 03. On cross-examination on behalf of accused, she further stated that the thumb impression appears to be made by her. As such, the non receipt of the pension was denied by her for aforesaid period.
However, with reference to signatures at entry no. 215 on acquaintance roll for the period October 04 to March 05 she stated that she writes her name as Jannu Khatun while putting her signatures whereas the concerned entry only bears the words "Jann". With reference to said acquaintance roll for the period October 04 to March 05, it is pointed out by the counsel for accused that witness does not specify as to the non receipt of the pension but only disputes signatures. Counsel for accused also points out that though the witness deposed that she signs as Jannu Khatun and since the word Khatun is missing on the signatures at serial no. 215, the same have been denied though the words "Janna" signed on the statement recorded in the Court also appears to be similar to the signatures appearing on serial no. 215. It is also pointed out by the counsel for accused that the prosecution has failed to conclusively prove that the signatures were not made by the witness since they were not sent for RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 56 comparison with the specimen signatures of Jannat.
Counsel for accused has also pointed out that the signatures on certificate for the period April 03 to September 03 could not be confirmed, while no certificate on the acquaintance roll for period October 04 to March 05 has been placed on record.
I find considerable merits in the submissions made by the counsel for accused and of considered view that since the signatures were not sent for comparison with specimen signatures of Jannat, it may be difficult to conclude beyond reasonable doubt that the signatures were forged. Even with respect to aforesaid entry, there is no evidence if the disbursement had been made under the signatures of accused.
21. Counsel for accused has also contended that no mensrea could have existed at the relevant time at point of disbursement of pension even if it is assumed for sake of arguments that accused were responsible for disbursement of pension since they were assisted by other ASIs/Sanitary Guides and Sanitary Inspectors in the process of disbursement.
The fundamental principle of criminal jurisprudence that element of mensrea and intention must accompany the culpable act or conduct of accused and needs to be proved beyond doubt. The accused must have the mental state or degree of fault at relevant time. Reference in this regard may also be made to (2009) 6 Supreme Court Cases 77 S.V.L. Murthy vs. State. It needs to be noticed that the element of conspiracy in disbursement initially alleged at the time of registration of FIR on basis of source information did not get substantiated against Shri D.R. Tamta, the then Deputy RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 57 Commissioner, MCD; M.U. Sarvar, the then Assistant Commissioner;
S.V. Pillai, the then Assistant Chief Account Officer and as such the said accused were never chargesheeted. Even the present accused admittedly had no role in the preparation and maintenance of acquaintance rolls and had simply disbursed the pension as per the names appearing in the list. It is difficult to comprehend that the accused acted in conspiracy for purpose of disbursement since the acquaintance roll mentioning the name of the beneficiaries was prepared by different officials and the sanction on basis of same was made by Accounts Department. Even the fact that any intimation had been received on record in the department regarding factum of death of beneficiary if expired has not been proved in the relevant cases wherein beneficiary is stated to have expired. The evidence led on record already points out various infirmities as the diaries maintained by the respective beneficiaries were not even seized during investigation. The accused also appear to be assisted by other officials during the process of disbursement and cannot be held to be exclusively liable for disbursement. It has already been observed that it has not been proved beyond reasonable doubt that the accused had misappropriated the amount as the thumb impression/signatures on the receipt of the recipient were never forwarded for comparison with those of the admitted RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 58 signatures/thumb impression of the beneficiary AND the same never matched with those of the accused.
The circumstances on record do not lead to conclusive inference that the act of disbursement was accompanied with necessary mensrea or that the conspiracy had been hatched by the accused for purpose of disbursement. The prosecution as such has failed to bring home the charge against the accused beyond reasonable doubt.
22. Before concluding, it is pertinent to observe that the facts of the case in the respective chargesheets point out to shoddy investigation. The investigating agency is obliged to be diligent and fair in their approach and investigation. The default and omission in seizing the original pocket diaries maintained by the respective beneficiaries for disbursement of pension was necessary to fairly bring out the case against the respective accused. Even the form filled for seeking the pension by the concerned beneficiary Munni Devi in the case of CBI vs. Bharat Singh (CC No.123/11) was not placed on record. Also the opinion of the handwriting expert in the aforesaid case of Bharat Singh was not placed on record by the prosecution though the documents were stated to have been forwarded for examination. The investigation as such suffers from various infirmities pointed in different chargesheets and also some instances have been incorporated of wrongful disbursement though the same were not supported by material evidence. The case may be partly of faulty investigation simplicitor apart from the fact that the clinching evidence RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 59 beyond reasonable doubt has not been brought on record to hold the accused guilty.
23. However, the investigation reflects gross negligence and apathy of the persons responsible for disbursement of pension to the beneficiaries. Old people are doors to the past and windows to the future but the life becomes miserable when they are deprived even of the benefit of 'old age pension'. As such, adequate safeguards need to be placed by MCD for proper implementation of the scheme and to ensure that the old age pension reaches the beneficiaries in time. It needs to be ensured that in case the practice of disbursement of old age pension by cash is still in operation, the same may be replaced by issuing of cheques to the beneficiaries. It also needs to be ensured that an yearly physical verification of the beneficiary is made by the department or life certificate is procured from the beneficiary, to ensure that in case of death of beneficiary, the same is duly reflected on record and the the pension amount by way of cheques is not wrongly credited. An online record of the names of the the beneficiaries alongwith the indication for the period for which the old age pension is disbursed by MCD shall bring further transparency into the system and ensure that the beneficiaries shall be aware of the amount of pension disbursed for the particular period without repeatedly visiting the office of MCD. A copy of this judgement be accordingly be forwarded to the Director, MCD who is stated to be the Administrative Coordinator for all the three Municipal Corporations after trifurcation, for compliance in all the zones of MCD and with directions to file the compliance report within three months.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 60
24. For the foregoing reasons, the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. Accordingly accused Gainda Lal and Anis Yadav are acquitted of the charge u/s 120B r/w Section 409, 420, 468, 471 IPC, Section 13(1)(c) & 13(1)(d) of Prevention of Corruption Act, 1988 AND u/s 409, 420, 468, 471 IPC and Section 13(2) r/w Section 13(1)(c) & 13(1)(d) of Prevention of Corruption Act, 1988.
Announced in the (Anoop Kumar Mendiratta)
open Court on Special Judge (PC Act)
10th December, 2012 CBI-08, Central District,
Tis Hazari Courts, Delhi.
RC No.6(A)/05, CC No.101/11 -CBI vs. Gainda Lal & Anr. 61