Delhi District Court
Cb I vs . Sukh Ram S/O Late Sh. Bhav Dev, R/O , on 25 February, 2009
1
IN THE COURT OF V .K .MAHESHWARI
SPECIALJUDGE: TIS HAZARI: DELHI
Corruption Case No.44/97
CB I Vs. Sukh Ram S/o Late Sh. Bhav Dev, r/o ,
12, Safdarjung Lane, new Delhi.
(Formerly Minister of State
Communication), Govt. of India,
Presently Member of Parliament (Lok
Sabha)
Date of Institution 9.6.1997
R.C No. 4 (A)/96/CBI/ACU-IV/N. Delhi
Under Section U/s 13( 2) r/w 13 (1) (e) of P C Act
of 1988.
Arguments
concluded on 17.2.2009
Date of order 20.2.2009
JUDGMENT:
Brief facts as per the case of prosecution are that a case vide RC No. 4 (A)/96/CBI/ACU-IV/N. Delhi was registered on 27.8.96 against Shri Sukh Ram, Formerly Minister of State Communication), Govt. of India, the then Member of Parliament (Lok Sabha) on the written complaint of Sh .B S Jakhar, Dy. S P, CBI, ACU-IV, New Delhi alleging that Sh. Sukh Ram in his capacity as public servant during the period from 20.6.91 to 1/150 2 16.8.96 by corrupt or illegal means or by otherwise abusing his official position as a public servant amassed huge assets including one palatial house at D-42 Kaushambi, Ghaziabad, luxuriously built farm house in his orchard at Surath. Besides this, he was also alleged to have been in possession of cash of Rs. 3,61,80,364/-, jewellery items worth Rs.10,29,404/-, bank balances in various banks of Rs.4,92,739/- and household articles amounting to Rs.10,30,000/- such as imported electronic gadgets like Star Typewriter, FAX Machine, Video Camera (Panasonic), Sony Colour TV, VCR, Microwave oven and fully Automatic Washing Machine etc. The known sources of income of Sh. Sukh Ram and Smt. Ram Devi for the period from 1992 onwards were allegedly not worth more than Rs.30.78 lacs. The sources of income prior to that period would have been even lesser. He was thus alleged to be in possession of assets disproportionate to his known sources of income.
2 Sh. Sukh Ram was elected Member of Parliament for the first time in 1985 and subsequently became Minister in the Centre Govt. Sh Sukh Ram lost his Lok Sabha Election in Dec.1989 but was again elected Member of Parliament on 20.6.91. On 2.7.92 he became Minister of State for Planning and Programme Implementation and held this position till 18.1.93. He became Minister of State for Communications and remained as such till 16.5.96 as the Congress Government was defeated in the 2/150 3 elections. He was again elected as Member of Parliament on 16.5.96 3 Sh. Sukh Ram and his wife Smt. Ram Devi were having joint properties i.e. orchard at Surath, house at Samkhetar (Mandi) and joint bank accounts in their names. Sh. Sukh Ram has started construction of farm house in the orchard in Mid 1991 and constructed palatial building D-42, Kaushambi from early 1993 till early 1996. From Jan. 1993 onwards Sh. Sukh Ram was holding portfolio of Minister of State for Communications, the Ministry which was taking care of the vast expansion of Telecommunication in India. Keeping in view the acquisitive tendency of the accused and his continued position as public servant, the check period in the case has been taken from 20.6.91 to 16.8.96.
4 Sh. Sukh Ram was having movable assets worth Rs.26,13,010/- at the beginning of check period. He was also having immovable assets at the beginning of check period. Details of immovable and movable assets at the beginning of check period are as follows:
Immovable Assets 1 Orchard measuring 35 bighas, 8 biswa and 19 biswansi in the name of Sh. Sukh Ram and Smt. Ram Devi acquired by them during 1961 to 1969.3/150 4
2 Residential house at Samkhetar, Mandi in the name of Sh.
Sukh Ram and Smt. Ram Devi constructed on a plot of land measuring 359.34 sq. metres around 1981 -82. 3 Ancestral land measuring 3 bighas in native place Kotli Distt. Mandi in the name of Sukh Ram.
4 Orchard measuring 10 bighas at Kullu Math, Akhara Bazaar, Kullu, in the name of Smt. Ram Devi given to her by her mother around 1972.
Movable Asset Rs.
1 Amount deposited for D42, Kaushambi Plot 2,58,755.00 2 Loan given to Anil Sharma by Ram Devi 4,37,500.00 3 Loan given to Anil Sharma by Sukh Ram 1,92,000.00 4 House hold items 2,80,900.00 5 Jewellery 5,72,373.00 6 Deposited in Nav Sansad Vihar Society 80,004.00 7 Bank Balance 6,41,478.00
8. Three FDRS of Rs. 50,000/- each in PNB Shimla 1,50,000.00 TOTAL 26,13,010.00 5 The total income of Sh. Sukh Ram and Smt. Ram Devi from different known source i.e. income from salary, income from interest on loans, agriculture income from orchard accrued to them during the check period i.e. from 20.6.91 to 16.8.96 comes to 4/150 5 Rs.84,98,180/-. The details of total income are as under:
Rs.
1 Salary as a Member of Parliament 65,105.00
from 20.6.91 to June 1992
2 Salary as MOS (P) 7/92 to 18.1.93 62,655.00
3 Salary as MOS ( C) from 18.1.93
to16.5.96 3,28,975.00
4 Income of Sh. Sukh Ram from Orchard 9,94,373.00
5 Income of Sh. Sukh Ram from interest
(from Anil Sharma) 1,84,436.00
6 Income of Smt. Ram Devi from
Sh. Anil Sharma 4,46,897.00
7 Income of Smt. Ram Devi from
Orchard 18,88,900.00
8 Loan for construction of D-42
Kaushambi 27,37,500.00
9 Income from Libel Suit 3,45,933.00
5/150
6
10 Interest income from 3 FDRs
(PNB) 40,800.00
11 Income from FDRs of Shivali
1993-94 and 1994-95 40,800.00
12 TA DA as MP from 7/91 to
8/92 56,071.00
13 TA DA as MOS ( P) from 7/92 to
12/92 5,335.00
14 TADA as MOS ( C) from 10/93 to
6/93 3,08,859.00
15 TA DA as MP from 5/96 to 8/96 32,341.00
TOTAL 84,98,180.00
6 Sh. Sukh Ram and Smt. Ram Devi have incurred
expenditure to the tune of Rs. 46,87,960/- approximately thereby resulting in the likely saving of Rs.38,10,220/-. The expenditure incurred by Sh. Sukh Ram and Smt. Ram Devi during the check period are detailed below:6/150 7
1 Electricity Charges, Kaushambi 38,520.00 2 Water charges of Orchard 11,19.00 3 Electricity charges, Orchard 11,68.00 4 Electricity charges, Samkhetar Mandi 27,361.00 5 Water charges, Samkhetar Mandi 1749.00 6 Mamla Payment Orchard, Surat Mandi 215.00 7 Payment to servant Orchard, Surat Mandi 1,24,390.00 8 LPG (Sukh Ram) for daily residence 6,498.0 9 LPG Sh. Anoop Sharma for daily residents 6,865.00 10 Air Journey to USA in 8/96 by Sh. Sukh Ram and Smt. Ram Devi 1,28,870,00 11 Payment to Sh. N Goel Architect 30,000.00 12 Service Connection of D-42, Kaushambi 10,000.00 13 Electric Wiring Charges for D-42, Kaushambi 15,000.00 14 To gardener, D-42, Kaushambi 9,000.00 15 Repayment of Loan 4,90,098.00 16 L T Payments 3,12,595.00 17 Agriculture Expenses 2,30,117.00 18 To Bhav Dev Trust 14,00,000.00 19 Transfer from SB a/c of Sh. Sukh Ram to Trust 1,00,000.00 20 To duffdun Education Trust 10,00,000.00 21 Payment to Driver (Sh. Shamsher Singh) 19,200.00 22 Kavia's marriage Reception 1,50,000.00 23 Marriage of Kavita 1,00,000.00 7/150 8 24 Anup's Marriage 1,00,000.00 25 IFB, Washing Machine 17.995.00 26 Rent of Locker No. N-6 Syndicate Bank 1,200.00 27 Household Expenses 3,66,000.00 TOTAL 46,87,960.00 7 Against the aforesaid likely savings of Rs.
38,10,220/- approximately, Shri Sukh Ram has acquired assets during check period to the tune of Rs. 5,74,77,355/- which are substantially disproportionate to his known sources of income. These assets include the farm house constructed in the orchard valued at Rs.41,30,000/- and a bungalow No D-42, Kaushambi valued for Rs.29,45,416/- and the investment made towards renovation of Samkhetar House worth Rs. 5,69,000.00 during the check period. The cost of these two houses and the amount of investment for the renovation of the house are based on the valuation done by the Executive Engineer, Technical Division, CBI.
8 Accused Sukh Ram was found in possession of hard cash amounting to Rs. 3,61,80,364/- which was recovered from his residential premises at 12 Safdarjung Lane, New Delhi and at Samkhetar Mandi (HP).
9 During the searches conducted in connection with 8/150 9 another case RC-3(A)96-ACU-IV on 16/17.8.96 it transpired that Sh. Sukh Ram had also given a loan of Rs.1,05,00,000/- to one Shri Chander Kant Khemka (C K Khemka) in March/April, 1995 who has surrendered this amount to CBI during investigation.
10 Besides this, several bank accounts of Sh.Sukh Ram and Smt. Ram Devi maintained in different banks in Delhi, Shimla and Mandi were having cash balances worth Rs.19,13,562.00 at the end of check period. The details of these immovable and movable assets including cash balances at the end of check period are as under:
1 Purchase of orchard land by Smt. Ram Devi 65,000.00 2 Farm House in Surath Orchard 41,30,000.00 3 Renovation of Samkhetar House 5,69,000.00 4 Value of D-42 Kaushambi 29,45,416.00 5 deposited with Nav Sansad Vihar Society 7,35,000.00 6 S.B A/c No.6906 in OBC 49,751.00 7 FDR in OBC, SJ Enclave, N.Delhi 3,50,000.00 8 S.B A/c No. 107735, SBI, main building 42,023.00 9 S.B A/c No. 1873 Canara Bank, Mandi 2,94,953.00 10 S.B A/c No. 25495 Canara Bank, Parliament Street 7,620.00 11 S.B A/c No. 11495, Syndicate Bank, New Delhi 2,58,736.00 12 S.B A/c No. 1402, Canara Bank, Mandi 11,35,797.00 9/150 10 13 S.B A/c No. 4053, H P Coop. Bank Shimla 50,929.00 14 S.B A/c No.27008, PNB Shimla 73,753.00 15 Matured Value of three FDRs (PNB) 4,95,933.00 16 FDR in SBI Main, New Delhi 20,000.00 17 Cash and Jewellary in Locker No.6, 4,00,000.00 18 Syndicate Bank Locker (Cash & Jewellery) 4,50,000.00 19 Cash from 12 Safdarjung Lane 2,45,28,844.00 20 Cash from Mandi (House of Sukh Ram) 1,13,51,520.00 21 Money surrendered by Sh. C K Khemka 1,05,00,000.00 22 Household items 64,090.00 23 Electronic items at D-42, Kaushambi 6,23,300.00 24 Antenna 4,400.00 25 Household items 3,14,800.00 26 Outstanding Loan of Sh.Sukh Ram with Anil 1,92,000.00 27 Outstanding Loan of Smt. Ram Devi with Anil 4,37,500.00 TOTAL 6,00,90,365.00
11 All the immovable assets available at the beginning of check period also continued with Sh. Sukh Ram at the end of check period. From the aforesaid facts the final position has emerged as under:
A Assets at the beginning of check period 26,13,010.00 B Assets at the end of Check period 6,00,90,365.00 Assets acquired during the check period (B-A) 5,74,77,355.00 10/150 11 C Income During Check period 84,98,180.00 D Expenditure during check period 46,87,960.00 Likely saving during the check period (C-D) 38,10,220.00 Disproportionate Assets:
5.74.77,355 (-) 38,10,220 = 5,36,67,135.00
12 Thus, taking into account the total income of Sh. Sukh Ram and Smt. Ram Devi, Shri Sukh Ram has been in possession of assets disproportionate to his known sources of income to the tune of Rs.5,36,67,135/- at the end of check period. He could not offer any satisfactory explanation inspite of granting sufficient opportunities.
13 Sh.Sukh Ram ceased to be a Minister of Union Govt. w.e.f. 16.5.96, although he continued to be a member of Parliament (Lok Sabha), 14 Copies required U/S 207 Cr P C supplied to accused. My Ld. Predecessor after hearing both the parties on 10.7.2001 has framed a charge against accused for the offence punishable U/s 13 (2) r/w 13 (1) (e) of P C Act, 1988. Accused pleaded not guilty to the charge and claimed trial, hence, this trial.
11/150 1215 Prosecution, in order to prove its case, has produced following witnesses:
16 PW 1 Sh. P Kailasham, Executive Engineer, PW2 Janardan Agnihotri, Head Clerk, GDA, Ghaziabad, PW3 Sunil Dutt, Joint Commissioner, Income Tax, PW4 Sh. Vinod Kumar Sinha, Section Officer ( Pay Bill), PW5 Sh. Pardeep kumar Gupta, Assistant Regional Manager, OBC, 4/65 WEA, Karol Bagh, New Delhi, PW6 S C Khurana, PW7 J N Behl, Official Incharge, SBI, Parliament House, New Delhi, PW8 Manoj Kumar M. Naik, PW9 Sh. T Bhattacharya,Asstt. Enforcement Officer, PW10 Pardeep Bhaskar, Senior Manager, OBC, Vasant Kunj, New Delhi, PW11 Anand Gupta, PW12 Y P Sharma, Chief Manager, Canara Bank, PW13 Reeta Jailkhani, Committee Officer, Lok Sabha, Secretariat, New Delhi, PW14 Puneet Sharma, PW15 Vinod Kumar Nayyar, PW16 Sh. Rajendra Mahajan, PW17 Sh. Hari Simrat Singh Dua, PW18 Durga Singh Thakur, PW19 Sh. S Z Khan, PW20 Sh. Basant Ram, PW21 A N Sharma, PW22 Sh. Munshi Ram, PW23 Sh. Harish Mohan, PW24 Sh. Shamsher Singh, PW25 Munshi Ram, PW26 Sh. Vasudev, PW27 Shobha Ram Kanoonago, PW28 Inderbhan Tomar, PW29 Sh. P V Narshima Rao, PW30 Sh. Dinesh Gupta, PW31 Raj Kishan Gaur, PW32 Sh. Ram Saran Mehra, PW33 Pratap Chand Sharma, PW34 Sh. Devender Kapur, PW35 12/150 13 Somesh Chander, PW36 Manish Duggal, PW37 Besar Singh, PW38 Sadhu Ram, PW39 R S Malik, PW40 Sh. P K Kedia, PW41 Bimi Devi, PW42 Ram Bahadur, PW43 R D Sharma, PW44 Pravin Kumar, PW45 K K Goel, PW46 Sh. Amitabj Shukla, PW47 Sh. lekh Ram Sharma, PW 48 P N Khanna, PW49 R K Khurana, PW50 Sh. Anil Kumar, PW51 Urguyandorje, PW52 Niranjan Lal Goel, PW53 Chottey Lal, PW54 A V Ramarao, PW55 V Sridhar, PW56 Sh. Rishi Prakash, PW57 Smt. Bimla, PW58 Sh. Mahesh Chander Arora, PW59 Sunil Mukhija, PW60 B S Jakhar, PW61 Shashank Mishra, PW62 Sh. KP S Dhaka and PW63 Mr. H S Sandhu, 17 PW1 Sh. P Kailasham Executive Engineer BSNL has proved his report Ex PW-1/A in respect of property No. D42 Kaushambi, annexure Ex PW1/A-1, and another report Ex PW1 /B in respect of Apple Orchard at Mandi and annexures Ex PW1/B-1, another report in respect of building at Sumkhetar, Mandi, HP Ex PW1/C and annexure Ex PW1/C-1 all bearing his signatures at points A. 18 PW2 Janardan Agnihotri Head Clerk, GDA, Ghaziabad has proved allotment letter Ex PW2/A and details of payment given in statement Ex PW2/B. 19 PW3 Sh. Sunil Dutt Joint Commissioner Income Tax 13/150 14 Range IV, Amritsar has proved letter Ex PW3/A, proceedings Ex PW3/B and an inventory of currency notes ExPW3/C, letter Ex PW3/D and receipt ExPW3/E. 20 PW4 Vinod Kumar Sinha has prepared and given detail of pay and allowances drawn by accused Sukh Ram vide Ex PW4/A to Ex.PW4/D and he submitted the statement to CBI vide letter Ex PW4/E. 21 PW5 Pardeep Kumar Gupta, Assistant Regional Manager, Oriental Bank of Commerce, Karol Bagh has proved specimen signature card of accused Sukh Ram Ex PW5/A, attested copy of statement of account Ex PW5/B and Ex PW5/C, account opening form ExPW5/D and statement of account Ex PW5/E, account opening form ExPW5/F, statement of account Ex PW5/G, attested copy of computerised statement of account Ex PW5/H and Credit transfer voucher ExPW5/I. 22 PW6 S C Khurana has proved statement of accused Ex. PW6/A, 23 PW7 J N Behl has proved statement of account in respect of account No. 10775 in SBI, Parliament house New Delhi Ex PW7/A and ExPW7/B. 14/150 15 24 PW8 Manoj Kumar M. Naik has proved sanction order Ex PW8/A, acceptance letter Ex PW8/B, carbon copy of second sanction ExPW8/C and acceptance letter Ex PW8/D. 25 PW9 T Bhattacharya Asstt. Enforcement Officer,Govt. of India, Calcutta has proved Observation Memo Ex PW9/A, seizure memo Ex PW9/B, Panchnama Ex PW9/C, and seizure memo of three keys of lockers Ex PW9/D. 26 PW10 Pardeep Bhaskar, Senior Manager, Oriental Bank of Commerce, Vasant Kunj has proved TPO ExPW10A.
27 PW11 Sh. Anand Gupta has proved vouchers Ex PW11/A and Ex PW11/B. 28 PW12 Sh. Y P Sharma has proved the statement of accused of account No. 25495, Canara Bank, Parliament Street, Ex PW12/A. 29 PW13 Mr. Reeta Jailkhani, Committee Officer Lok Sabha has proved the details of salary and allowances Ex PW13/A, details of TS and DA Ex PW13/B, salary and allowances for another period Ex PW13/C, details of TA/A for another period ExPW13/D which were sent by him to CBI under the cover of letter Ex PW13/E. 15/150 16 30 PW14 Puneet Sharma, Manager, Kiran Gas service has proved letter Ex PW14/A mentioned details in respect of connection in the name of Anup Sharma.
31 PW15 Vinod Kumar Nayyar,Section Officer, Planning Commission, Govt. of India, New Delhi has proved letter Ex PW15/A regarding pay & allowances paid to Mr. Sukh Ram, as Minister of State for Planning for the period 2.7.92 to January, 1993 and the details are mentioned in three sheets Ex PW15/A1 to A3.
32 PW16 Sh. Rajendra Mahajan has proved copy of bill Ex PW16/A. 33 PW17 Hari Simrat Singh Dua has proved the statement Ex PW17/A given by him to CBI.
34 PW18 Sh. Durga Singh Thakur has proved letter Ex PW18/A. 35 PW19 Sh. S Z Khan, has proved details of amount paid by Sukh Ram towards electricity charges Ex PW19/A. 36 PW20 Sh. Basant Ram has proved certified copy of 16/150 17 the Intkal Ex PW20/A. 37 PW21 Sh. A N Sharma has proved details of electricity charges paid by Ram Devi Ex PW21/A. 38 PW22 Sh. Munshi Ram has proved the copy of Jamabandi Ex PW22/A in respect of an Orchard in Surat and Jamabandi Ex PW22/B in respect of the portion of land in the name of Smt. Ram Devi, wife of Sh. Sukh Ram.
39 PW23 Sh. Harish Mohan has proved cash memo No. 31525 Ex PW23/A. 40 PW 24 is Sh. Shamsher Singh, PW25 is Munshi Ram PW26 is Sh. Vasudev, PW 27 is Shobha Ram Kanoongo , PW28 is Sh. Inderbhan Tomar and PW29 is Sh. P V Narsimha Rao. 41 PW30 Sh. Dinesh Gupta has proved letter Ex PW30/A and documents Ex P-9 and Ex PW30/B 42 PW31is Raj Kishan Gaur and PW32 is Ram Saran Mehra 43 PW33 Pratap Chand Sharma has proved his letter Ex PW33/A and chart Ex PW33/B. 17/150 18 44 PW34Sh. Devender Kapur has proved letter Ex PW34/A, file for the financial year 1992-93 Ex PW34/C. copy of return acknowledged by income tax deptt. Ex PW34/C1, copy of return Ex PW34/C2, statement of income Ex PW34/C3, file for the financial year 1993-94 Ex PW34/D. copy of return acknowledged by income tax deptt. Ex PW34/D1, copy of return Ex PW34/D2, statement of income Ex PW34/D3, file for the financial year 1994-95 Ex PW34/E. copy of return acknowledged by income tax deptt. Ex PW34/E1, copy of return Ex PW34/E2, statement of income Ex PW34/E3, file for the financial year 1994- 95 Ex PW34/F. copy of return acknowledged by income tax deptt. Ex PW34/F1, copy of return Ex PW34/F2, statement of income Ex PW34/F3, file for the financial year 1991-92 Ex PW34/G. copy of return acknowledged by income tax deptt. Ex PW34/G1, copy of return Ex PW34/G2, statement of income Ex PW34/G3, file Ex PW34/H. copy of return acknowledged by income tax deptt. Ex PW34/H1, copy of return Ex PW34/H2, statement of income Ex PW34/H3, file Ex PW34/I. copy of return acknowledged by income tax deptt. Ex PW34/I-1, copy of return Ex PW34/I-2, statement of income Ex PW34/I-3, file Ex PW34/J. copy of return acknowledged by income tax deptt. Ex PW34/J-1, copy of return Ex PW34/J-2, statement of income Ex PW34/J-3, file Ex PW34/K. copy of return acknowledged by income tax deptt. Ex PW34/K-1, copy of return Ex PW34/K-2, statement of income Ex PW34/K-3 and his letter ExPW34/L. 18/150 19 45 PW35 is Somesh Chander, PW36 is Manish Duggal, PW37 is Besar Singh and PW38 is Sadhu Ram 46 PW39 Sh. R S Malik has proved letter ex PW39/A and details of cheques vide Annexure II Ex PW39/A1.
47 PW40 is Sh. P K Kedia, PW41 is Smt. Bimi Devi, PW42 is Sh. Ram Bahadur, PW43 is R D Sharma and PW44 is Pravin Kumar.
48 PW45 K K Goel has proved Seizure memo Ex PW45/A, seizure list Ex PW45/B and Observation Memo Ex PW 45/C. 49 PW46 Sh. Amitabj Shukla, Addl. Commissioner, Income Tax has proved document ExPW46/A, , statement Ex PW46/B and Ex PW46/C and also various other documents already proved by PW9 and PW40.
50 PW47 is Lekh Ram Sharma.
51 PW48 P N Sharma has proved seizure memo Ex.
PW48/A and valuation report Ex PW46/B. 52 PW49 Sh. R K Khurana has proved Observation 19/150 20 Memo Ex PW49/A and search list ExPW49/B. 53 PW50 is Sh. Anil Kumar.
54 PW51 Urgyandorjee has proved letter Ex PW51/A and certified copies of statement Ex P14, P15 and Ex PW51/B. 55 PW52 is Niranjan Lal Goel, PW53 is Chhotey Lal and PW54 is A V Ramarao.
56 PW55 V Sridhar has proved seizure memo Ex PW55/A, cheque Ex PW55/B, Pay in counter foils Ex PW55/C. 57 PW56 Rishi Prakash Addl. S P CBI has proved FIR Ex PW56/A, complaint Ex PW56B, production memo Ex PW56/C, Receipt Ex PW56/D, production memo Ex PW56/E, receipt Ex PW56/F, pay in slip Ex PW56/F-1, documents Ex PW56/G,Ex PW56/H, ExPW56/I, Ex PW56/J, Ex PW56/K, Ex PW56/L, and Ex PW56/M seizure memo ExPW56/N, documents Ex PW56/O, Pass book Ex PW 56/P and various other documents already proved by other witnesses.
58 PW57 is Smt. Bimla, PW58 is Mahesh Chander, PW59 is Sunil Mukhija, PW60 is B S Jakhar, PW 61 is Sh. Shashank Mishra, PW62 is Sh. K P S Dhaka and PW63 is H S 20/150 21 Sandhu.
59 Statement of the accused U/s 313 Cr PC was recorded wherein he has denied all the allegations made against him and evidence produced by the prosecution against them.
60 He has stated that he has been a victim of conspiracies by some state leader in Congress Party under the misapprehension that he was potential danger to their positions in the State. The Ist conspiracy was started when an article under heading "Scandle Gods Indian Telecom" in a widely circulated magazine namely "Communication International" was published and its copies were managed to be circulated to the editors of important dailies in Bombay and Delhi. On the basis of that article front page news in all most, all the newspapers was published accusing him of corruption. He was abroad at that time to attend international conference in Kyota in Japan.
On arrival from foreign tour he filed Libel Suit in the Court of "Queen Bench London" against the defendants since defendant could not substantiate the allegations, the Queen Bench London awarded him compensation amounting to 50,000/- pounds which is equal to Rs. 27,37,500/- which was transferred to account no. 6906 (D46) and seized by the CBI during the raid. The compensation amount awarded to him has been shown in charge sheet as item No.9 of movable assets as income from Libel Suit.
21/150 22Conversion of pound 50,000 and its being credited in his account is proved by document D-46 page4 and also clarified by PW5 Sh. Pardeep Kumar Gupta in his statement dt. 5.2.02.
After the decision of the Libel Suit filed in Queen Bench, London, UK and on publication of "An Apology to Sh. Sukh Ram" at front page in the said communication International, he served notice to all the editors, publishers and correspondent for publishing a false corruption story against him, the then MOS ( C) in Communication International, he demanded compensation to the tune of Rs. One crore failing of which criminal case was told to be filed against them. Some editors and publishers express regret and explained that they could not contact him for his version as he was out of country at that time Having failed to malign him in the first attempt, the second attempt was made when the then opposition parties headed by BJP made serious charge of corruption for showing favour to a company known as HFCL whose head quarter has been in Solan Distt. Himachal Pradesh. All the opposition parties did not allow parliament to function for 13 days which was unparallel in the history of parliament upto that time. Their one of the demand was that unless Pt. Sukh Ram, the then MOS (Congress) was removed from the council of Ministers they would not allow Parliament to function. When the then Prime Minister, Sh. P V Narsimha Rao did not concede to their demand they filed writ petition in Supreme Court opposing the private sector to enter in the field of 22/150 23 communication and one of their complaints was that he (The then MOSC) showed favor to HFCL. The Hon'ble Supreme Court rejected their petition of showing favour to HFCL and held that Govt. implemented the policy and did not show any favour to any company.
Third attempt was made when M.Ps wrote to the then PM Sh. Narsimha Rao alleging huge corruption in the Ministry of Communication and demanded enquiry by Parliamentary Committee in corruption cases. According to his information CBI did not investigate the complaint against him as they did not find any substance in the allegations. However, after the fall of congress Govt. in the election of 1996 immediately CBI swung into action on the instigation of Devgoda Govt. due to political reason.
Sh. B P Morya, the then General Secretary, Incharge of Himachal Pradesh arranged his meeting with Sh. Sita Ram Kesari, the then Treasurer of AICC probably in the last week of July, 1996 and secured his consent for setting up election office in a part of his official residence at 12 Safdarjung Lane, in Delhi and at his house at Mandi for election to be held for UP and J & K Assemblies respectively in September/October, 1996. When he left in Aug.1996, in connection with his heart ailment, search order of his houses was obtained by the CBI at the behest of the Central Govt. in August, 1996 and carried out searches in his absence as there was nobody at his Delhi Officials residence 23/150 24 except his daughter who was temporarily staying over there in two rooms with her husband Col. S K Sharma, who could not get his official accommodation on his transfer to Delhi.
His house at Mandi in Himachal Pradesh was under
repair/renovation with the contractor, his son Sh. Anil Sharma who was then MOS in Himachal Government was staying with his family in his official residence at Shimla. There was Election Office in last two rooms at the first floor being run by the Congress Party, at his residence at Mandi.
The main apprehension of Sh. Sita Ram Kesri was that managing election from AICC would not be advisable on account of strained relation with/between Central Government headed by Sh. Dev Gauda and Sh. P V Narshima Rao the then Congress Party president which fact has been admitted by Sh. L R Sharma, PW47 in his statement. The election of UP and J & K were to be held in September/October, 1996. Having regard to the difficulty of the party, he gave his consent to Sh. Sita Ram Kesri, since no family member was residing at Mandi and in official residence at Delhi.
Sh. Sita Ram Kesri, the then treasurer, Congress Party, sent some election funds and election material to his official residence at Delhi and Mandi House in Himachal Pradesh and when these funds was recovered by CBI during raid conducted at his aforesaid residence at Delhi and his house at Mandi, HP his opponents within the party in HP and in the Centre got suitable opportunity 24/150 25 for maligning him in the media both print and electronic and the press which was annoyed with him on his legal notices sent to them as mentioned above and they started compagning against him and since he was out of India, one sided version continued to be published within the country to make it a media trial in connivance with his political opponents. During his police custody he was subjected to all sort of physical and mental torture by CBI at the instance of the then High UPs in the Government to compel him to make a statement that the alleged recovery belonged to Sh. Narsima Rao, the then President of the party and not to the congress Party. He was taken to office of Mr. Sandhu SP where the then Director, CBI happened to be present and he was asked by them that he should made a statement to CBI to the above extent. So much so CBI foisted a false case against his son Anil Sharma to put pressure upon him to make the above statement that case, was lateron found to be false/baseless and CBI got the cancellation of the same.
Some leaders of the Congress Party in HP who were apprehensive of his becoming danger to their positions managed to write a letter to Special Judge, CBI in which they emphasised CBI was showing favour to him whereas position was otherwise. This was a clear proof of conspiracy by some leaders in Himachal.
CBI gave highly exaggerated estimated cost of his properties in Himachal and outside Himachal Pradesh in Media for instance Hotel May Fair at Mandi in H P shown in his name 25/150 26 and its cost was shown to be Rs. 50 lacs, that Hotel actually belongs to his son Anil Sharma and later on CBI Engineer gave its cost to Rs, 20/- lacs. Similarly his house at Kaushambi was estimated to the value of one crores at that time which was false even to their Engineers Report. On knowing about the alleged recovery of money from his residence at Delhi and his house at Mandi he immediately issued a statement to the Press in London that the alleged recoveries belongs to Congress Party, that report was published in UK Press.
He is a Pawn in Power Politics. He made it clear to the Investigating Authorities that the alleged recovered amount did not belong to him. It was specifically told to Mr. H S Sandhu, Incharge of the case that a part of his premises at his official residence at Delhi and his house at Mandi was in possession of Congress Party to run the election office for the election to be held in UP and J K and the alleged recoveries if any, were of the Congress Party but the prosecuting agencies instead of making investigation on these lines tried to conceal this fact and concocted stories of its own. Even the then General Secretary of AICC Sh. B P Morya who was incharge of Himachal Pradesh also made a particular statement to the electronic Media to this effect.
It is in knowledge of every body in this country that Dev Gowada Govt. came to power on the outside support of Congress Party in the Parliament but Mr. Dev Gowada, the then Prime Minister wanted Congress Party to share power in the Central 26/150 27 Govt. for which Sh. P V Narshima Rao did not agree and relation between Mr. Dev Gowada , the then Prime Minister, Sh. P V Narshima Rao, the then Congress President (AICC) became strained. Mr. Dev Gowada wanted to discredit Sh. P V Narshima Rao and keeping in view this fact a case was instituted against him in which he was acquitted later on. This paved the way for Mr. Sita Ram Kesri, the then treasurer to step into the shoes of Mr.P V Narshima Rao as a Congress President in which he succeeded and he assumed the charge of Presidentship of Congress Party on 23.9.1996 with a view to please him, Mr. Dev Gowada used the offices of CBI for putting pressure on him while he was in the detention of CBI that the recovered money did not belong to Sita Ram Kesri but it belongs to Sh. Narshima Rao. He did not scumb to the pressure of CBI, he was mentally and physically tortured even a false case was instituted against his son Anil Sharma who was MOS in H M Govt. This case was later on withdrawn by the CBI as the allegation against him proved to be false during investigation.
The assets of his family members including his married daughters were added in his assets by CBI regarding which the income Tax Tribunal has now given final findings, order of which have been filed on the record with the application for release of such assets and on the basis of the same this court has passed order dt. 18.5.07. It is a false case.
27/150 2861 In his defence accused has examined DW1 HC Pawan Kumar who has proved photo copy of letter Ex DW1/A, photo copy of draft sanction order Ex DW1/B and photocopy of the noting Ex DW1/C. 62 DW2 Constable Narinder Kumar, Asst. Malkahan CBI, ACB, Delhi has stated that at page no. 36 of the seizure property register, no case property has been deposited on 19.8.02 or 20.8.02 in respect of the present case.
63 DW3 Vinod Kumar has proved D D Ex DW3/1.
64 DW-4 is Shailash Ranjan.
65 DW5 Jaswant has proved Press Releases Ex DW5/A and letter Ex DW5/B. 66 DW6 Sh. P C Gupta has proved his report ex DW6/A about house no. D42, Kaushambi, Ghaziabad, Circular Ex DW6/B, his report Ex DW6/C about renovation of house situated in Mohalla Shamkhetra, Mandi and his report Ex DW6/D about Farm House at Saurath.
67 DW7 Kamlesh Thakur has proved attested true copies of documents Ex DW7/A. 28/150 29 68 DW8 is Deepak Chaurasia 69 DW9 Madhav Prasad Sharma has proved sanction of five trees to Smt. Ram Devi Ex DW9/A and permit book Ex DW9/B. 70 DW10 Shiv Kumar Mishra has proved card Ex DW10/A, DW11 is Ritu Sharma, DW12 is Chander Sharma, DW13 is Tirath Ram Shrama and DW14 is Neearj Kansal.
71 DW15 A K Dhar has proved the report Ex DW15/A. 72 DW16 Anil Sharma has proved certified copy of No objection Certificate and order of Special Judge,Shimla dt. 30.6.99 Ex DW16/A and Ex. DW16/B. 73 Ld. Defence Counsel Sh. S P Minocha argued that prosecution has to prove its case beyond reasonable doubts while accused has to prove his defence by mere preponderance of probabilities. He has further argued that accused is entitle for benefits of all the doubts. Wherever two views are possible in a criminal case view favourable to accused should be taken.
74 Ld. Defence Counsel Sh. S P Minocha argued that accused Sukh Ram on 16.8.96 when the raid was conducted on his 29/150 30 residence, was a public servant being Member of Parliament. On 9.6.97 when the charge sheet in this case has been filed against him, was also a public servant being Member of Parliament, however prosecution has filed this charge sheet against accused without obtaining sanction or permission from the speaker of Lok Sabha as directed by Hon'ble Supreme Court in P V Narsimha Rao Vs. State, 1998 (2) CCC 71, hence his prosecution in this case is bad, therefore, accused may be acquitted on this ground alone. In this regard, he has also placed reliance on P V Narsimha Rao Vs. State, 1998 (2) CCC 108.
75 It is argued that according to proviso of Section 17 of P C Act, 1988, a case U/s 13 (1) (e) of P C Act, shall not be investigated without the order of a Police Officer not below the rank of Superintendent of Police, however in this case, Dy. S P Sh. B S Jakhar who had conducted raid on 16.8.96, started investigation, which is clear from his statement recorded as PW60 in this case, wherein he has stated as follows:
"Searches were conducted in connection with the ivnestigation of case FIR No.3 A/96/ACU/IV at different places after obtaining search warrant from court of Sessions Judge and during the searches lot of assets were observed which on verification were found to be disproportionate to the known sources of income of Sh. Sukh Ram."30/150 31
76 Ld. Defence Counsel referring Section 2 (h) of Cr P C wherein investigation has been defined, argued that collecting of evidence amounts to investigating the case, thus, verifying of the information amounts to collection of evidence which Mr. Jakhar had started without any order of S P, hence the investigation conducted in this case is bad and the evidence collected thereto cannot be read in evidence. The entire investigation was conducted in contravention of Section 17 of P C Act, hence the same is bad, therefore, charge sheet filed against accused on the basis of such evidence is also bad, hence accused may be acquitted.
77 Ld. Senior Counsel Sh. K T S Tulsi filed written submissions and also addressed his oral arguments. He has argued that examination in chief of P V Narsimha Rao, statements of Sh. Sita Ram Kesari and Mr. C K Khemka recorded U/s 161 Cr PC are neither relevant nor admissible u/s 33 of Evidence Act as accused had no right or opportunity to cross examine them. In this regard he has placed reliance on Shashi Jena Vs. Khadal Swain, (2004) 4 SCC 236 and V M Mathew Vs. V S Sharma, (1995) 6 SCC 122.
78 Ld. Senior Counsel argued that essential ingredient of offence punishable U/s 13 (1) (e) of PC Act is possession of property or resources which a public servant cannot satisfactorily 31/150 32 account for. Word possession has been held to mean possession of resources of which public servant must have "knowledge" to bring in the mental element of "conscious possession" as well as "custody and control" over the property and resources. It is argued that in this case accused Sukh Ram and his wife were out of India on 16.8.96 when the searches were conducted at their premises, prosecution has utterly failed to prove that the cash recovered from their premises was in their conscious possession. Ld. Senior Counsel in support of his arguments has placed reliance on Sanjay Dutt V. State, (1994) 5 SCC 410, Avtar Singh Vs. State of Punjab (2002) 7 SCC 419, Gurmail Singh V. State of Punjab (2002) 3 SCC 748 and Gunwantlal V. State of MP, AIR 1972 SC1756 and DSP Chennai Vs. K Inbasgaran , AIR 2006 SC
552. 79 It is argued that even if there is some ambiguity in the meaning of word possession in relation to Section 13 (1) (e) of P C Act, 1988 this court must adopt that construction which is more lenient and lean towards the construction which exempts the accused from penalty. In this regard Ld. Senior Counsel has placed reliance on following authorities:
Bijaya Kumar Aggarwala Vs. State of Orissa, (1966) 5 SCC 1 (Para 17-18), Sanjay Dutt. Vs. State (1994) 5 SCC 410, constitutional Bench (Para 16), Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 (Para 8) 32/150 33 and Tola Ram Relu Mal Vs. State of Bombay, AIR 1954 SC 496 (Para 9).
80 Ld. Senior Counsel further argued that "conscious Possession" is an essential ingredient of the offence, and burden of proving it beyond reasonable doubt, is on the prosecution. In this regard he has placed reliance on following authorities:
G M Tank Vs. State of Gujrat, (2005) 5 SCC 446 (para 30), HP Administration Vs. Om Prakash, (1972) 1 SCC 249 (para 4 &
7), T Subramanium Vs. State of TN, (2006) 1 SCC 401 (Para 12-
15, 17), Punjab Rao (2002) 10 SCC 371 ( para 3), State of TN V. Krishnan (2002) 9 SCC 521 (para 5 & 6), Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808 (Para 25 & 28).
81 Ld. Senior Counsel argued that if two views are possible, view favourable to accused should be adopted.
82 Sh. T B Bhattacharya, PW9, who has joined as an independent witness at the time of raid and recovery, does not deny if the CBI was told by Smt. Ritu Sharma, DW-11, that some portion of the house was being used by the Congress Party for election purposes.
83 Sh. Munshi Ram, PW25 specifically admitted that Smt. Ritu Sharma, told the CBI officials in his presence that the 33/150 34 keys of the small store and puja Room attached with the guest room was with Mr. Mishra. Yet Mr. Mishra was not called and the locks of store and puja room were broken, from where the currency was recovered.
84 It is argued that Mr. L R Sharma, PW47, has deposed as under:
"Mr. Maurya, General Secretary AICC introduced him to Sh. Sita Ram Kesari, Congress President.
He had discussions with Mr. Maurya with regard to elections in UP and J & K. Dewe Gowda had strained relations with Mr. Narsimha Rao.
Suggested to Mr. Maurya that residence of Mr. Sukh Ram at Delhi and Mandi can be utilized as election offices as Mr. /Sukh Ram and wife were going abroad.
Mr. T R Sharma, Sh. S K Mishra were appointed in charge of Mandi and Delhi offices respectively.
In August 1996, he brought election material in gunny bags and suitcases from residence of Sh. Sita Ram Kesari to 12, Safdarjung Lane, New Delhi.
Handed over the material to Mr. S K Mishra.
Mr. Maurya asked Chander Sharma to go to Mandi and handover the material to Mr. T R Sharma."34/150 35
85 The statement of Mr. L R Sharma, with respect to his conversation with Mr. B P Maurya is also admissible in view of the fact that Mr. Maurya expired and therefore could not be produced as a witness. Secondary evidence of a witness who cannot be produced is relevant under the Evidence Act.
86 In this regard Ld. Senior Counsel Sh. K T S Tulsi has relied upon Sudhakar Vs. State of Maharashtra, (2000) 6, SCC 671 (Para 5) 87 PW-33 Mr. Pratap Chand Sharma, himself admitted that at the time of raid at Mandi house of the accused, 2-3 persons were sitting, one of them was Mr. T R Sharma - who told that he had been sent by Mr. Sita Ram Kesari for election work.
88 PW42 Ram Bahadur, stated that Mr. T R Sharma had a party office in the house of the top floor. Out of the two rooms one was used as office and one for keeping goods.
89 PW45 K K Goyal, an independent witness to the raid, stated that 6-7 person were sitting in the compound. He cannot deny that they informed CBI that they were to take election material to J & K. They were asked by CBI to leave, on the first floor last two rooms were locked; attendant informed keys of rooms were with Mr. T R Sharma 35/150 36 90 PW20 Basant Ram, a Patwari of Mandi, who has appeared as a prosecution witness to prove the land ownership of the accused and his wife, has admitted in his cross examination that he knew Tirath Ram Sharma, General Secretary of Congress. He had met Mr. Tirath Ram Sharma at that house. He however told him that he was there in connection with the election.
91 Cash of Rs.2,45,28,844/- recovered from Delhi residence and Rs.1,16,51,520/- recovered from Mandi residence, were from the camp offices of Congress Party set up with regard to impending elections in UP & J & K from locked rooms and locked suit cases cannot be said to have recovered from the "possession" of accused and is liable to be excluded while computing the assets of accused.
92 Prosecution has failed to prove that a cash of Rs.1,05,00,000/-, was given to C K Khemka as loan by Sukh Ram. It is argued that if this amount of Rs.4,66,80.364/- excluded, remaining assets cannot be said to be disproportionate, hence accused is liable to be acquitted.
MOVABLE AND IMMOVABLE ASSETS HELD BY ACCUSED AND HIS WIFE AT THE BEGINNING OF CHECK PERIOD 36/150 37 93 Prosecution vide document Ex PW22/A and PW22/B (D-10) and from the statement of PW 22 Munshi Ram has proved that Orchard measuring 35 bigha, 8 biswas and 19 biswansi was acquire in the name of Sukh Ram and Smt. Ram Devi during the period 1961 to 1969 as shown at serial No.1 of immovable assets held by accused prior to the beginning of check period in the charge sheet.
94 Prosecution vide document Ex PW20/A and PW20/B (D-8) and PW 20 Basant Ram has proved that residential house at Samkhetra Mandi constructed on a plot measuring 359.34 sq. metre in the name of Sukh Ram and Smt. Ram Devi around the year 1981-82 as shown at serial No.2 of immovable assets held by accused prior to the beginning of check period in the charge sheet.
95 Prosecution has not produced any evidence to prove the ancestral land measuring 3 bighas owned by Sh. Sukh Ram in his native village Kotli, Distt. Mandi and Orchard measuring 10 bighas at village Kullumath, Akhara Bazaar, Kullu in the name of Smt. Ram Devi given to her by her mother around the year 1972 as shown at serial No.3 and 4 of immovable assets held by accused and his wife prior to the beginning of check period in the charge sheet, however, as it is admitted by the prosecution in the 37/150 38 charge sheet that accused and his wife were owning these properties prior to the check period hence this court is of opinion that accused is entitle for this benefit.
96 Prosecution vide Ex PW2/A and Ex PW2/B (D-25) and from the statement of PW2 Janardan Agnihotri has proved that accused Sukh Ram had deposited an amount of Rs.2,58,755/- for plot No. D42 Kaushambi as shown at serial No.1 of movable assets held by accused prior to the check period in the charge sheet.
97 Prosecution vide Ex PW34/G (D-34) and PW34 Devender Kapoor has proved that Smt. Ram Devi wife of accused Sukh Ram had given a loan of Rs. 4,37,500/- to her son Sh. Anil Sharma as shown at serial No.2 of movable assets held by accused prior to the check period in the charge sheet.
98 Prosecution vide Ex PW34/G (D-34) and from the statement of PW34 Devender Kapoor has proved that accused Sukh Ram had given a loan of Rs. 1,92,000/- to his son Sh. Anil Sharma as shown at serial No.3 of movable assets held by accused prior to the check period in the charge sheet.
99 Prosecution vide Ex PW9/A, PW45/C, Ex PW49/A (D-13, D18 and D-23) and from the statement of PW 9 T 38/150 39 Bhattacharya. PW45 K K Goel and PW49 R K Khurana has proved that accused Sukh Ram was having house hold items valuing about Rs.2,80,900/- as shown at serial No.4 of movable assets held by accused prior to the check period in the charge sheet.
100 Prosecution vide Ex PW9/E, (D-15) and . and from the statement of PW 9 T Bhattacharya and PW 32 Ram Saran Mehra has proved that accused Sukh Ram was having jewellery valuing about Rs.5,72,373/- as shown at serial No.5 of movable assets held by accused prior to the check period in the charge sheet.
101 Prosecution vide Ex PW17/A (D-26) and from the statement of PW17 Hari Simrath Singh Dua has proved that accused Sukh Ram had deposited an amount of Rs. 80,004/- with Nav Sansad Vihar Society as shown at serial No.6 of movable assets held by accused prior to the check period in the charge sheet.
102 Prosecution vide Ex PW7/A, ExPW7/B, Ex PW6/A and Ex P-9, P-14, P-15 (admitted) ( D-41, 43, 49 and 52), and from the statement of PW7 Sh. J N Behal and PW6 Sh. S C Khurana has proved that accused Sukh Ram had a bank balance of Rs.6,41,478/- as shown at serial No.7 of movable assets held 39/150 40 by accused prior to the check period in the charge sheet.
103 Prosecution vide Ex P10, P11 and P13 (admitted) ( D-50) has proved that accused Sukh Ram was having three FDRs of Rs. 50,000/- each, total amounting to Rs. 1,50,000/- in PNB, Shimla as shown at serial No.8 of movable assets held by accused prior to the check period in the charge sheet.
104 It is argued by Ld. Sr. Counsel Sh. Tulsi that calculation of assets by the prosecution at the beginning of check period is at variance with the income tax returns of accused Sukh Ram Ex PW34/DA and his wife Smt. Ram Devi Ex PW34/DB. It is argued that balance sheet w.e.f. 1.4.91 to 31.3.92 of Mrs. Ram Devi w/o Sukh Ram indicates opening balance of Rs.31,46,604/- on 1.4.91 i.e. just before the check period, as this amount is as per the document of prosecution itself hence the same ought to have taken in account while calculating her assets at the beginning of check period since her individual assets has also been clubbed to that of accused Sukh Ram. Similarly, balance sheet of accused Sukh Ram for the period w.e.f. 1.4.91 to 31.3.92 shows opening balance of Rs7,45,662/-, however this amount has not been taken in consideration while calculating the assets held by accused at the end of pre check period.
40/150 41105 I have carefully considered this argument of Ld. Sr. Counsel, first of all, documents Ex PW34/DA and Ex PW34/DB are not the documents of prosecution. These are the Block Period Returns filed by accused Sukh Ram and his wife Smt. Ram Devi which is clear from the following portion of the statement of PW34.:
" I have no knowledge if any block period returns of Sh. Sukh Ram and Smt. Ram Devi were filed through my office. I have seen the block period returns of Shri Sukh Ram, summoned from the Income tax Department. Copy of the same is Ex PW34/DA. I can identify the signatures of Shri Sukh Ram on the original return which is mark 'A' on the copy.
I have also seen block period return of Smt. Ram Devi, (the original return brought from the Income Tax, Deptt.). I can identify signature of Smt. Ram Devi on the original return at point A. Copy of the return is Ex PW34/DB. (Original income tax returns brought by Shri Ram Kumar, Tech. Assistant, Ward No.31 (1), Income Tax Department, New Delhi. (Originals seen & returned)."
106 Accused and his wife have filed their Block Returns for the period w.e.f 1986 to 1996 after the raid was conducted and this case was registered, therefore, these documents are not reliable.
41/150 42107 Prosecution has proved income tax return of Smt. Ram Devi w/o Sukh Ram for the financial year 1991-92, assessment year 1992-93 Ex PW34/G-1, file Ex PW34/G (D-34 VI). Alongwith this income tax return no balance sheet showing any opening balance has been filed. Prosecution has proved income tax return of Smt. Ram Devi w/o Sukh Ram for the financial year 1992-93, assessment year 1993-94 Ex PW34/H-1, file Ex PW34/H (D-34 VII). Alongwith this income tax return no balance sheet showing any opening balance has been filed.
108 Prosecution has proved income tax return of Smt. Ram Devi w/o Sukh Ram for the financial year 1993-94, assessment year 1994-95 Ex PW34/I-1, file Ex PW34/I (D-34 VIII). Alongwith this income tax return balance sheet has been filed showing opening balance of Rs. 20,52,288/-, gross balance amount has been shown as Rs. 26,31,408/- and after showing a withdrawal of Rs.2,85,147/-, net closing balance has been as Rs.23,46,261/- . Nothing has been shown in this balance sheet as to how the figure of opening balance of Rs. 20,52,288/- has been arrived at. According to accused opening balance as per Ex PW 34/DB as on 31.3.92 was Rs. 31,46,604/-, how can it be possible when according to the balance sheet filed alongwith income tax return Ex.PW34/I-I, opening balance was Rs.20,52,288/- on 31.3.94, thus, this argument appears to be 42/150 43 vague and unreliable.
109 Prosecution has proved income tax return of Smt. Ram Devi w/o Sukh Ram for the financial year 1994-95, assessment year 1995-96 Ex PW34/J-1, file Ex PW34/J (D-34 IX). Alongwith this income tax return balance sheet has been filed showing opening balance of Rs. 23,46,261/-, an addition of Rs. 4,67,992/- has been shown in the financial year ended upto 31.3.95 and after showing a withdrawal of Rs. 1,77,548/- net closing balance of Rs. 26,35,655/- has been shown as on 31.3.95.
110 Prosecution has proved income tax return of Smt. Ram Devi w/o Sukh Ram for the financial year 1995-96, assessment year 1996-97 Ex PW34/K-1, file Ex PW34/K (D-34 X). Alongwith this income tax return balance sheet has been filed showing opening balance of Rs. 26,36,655/-, an addition of Rs. 5,95,190/- has been shown in the financial year ended upto 31.3.96 and after showing a withdrawal of Rs. 1,23,493/- net closing balance of Rs.3,108,352/- has been shown as on 31.3.96. In all these three balance sheets an amount of Rs. 1,89,937/- has been shown invested on the construction of farm house which is stated to be under construction. No amount has been shown to be spent on the renovation work on the house situated in Mohalla Shamkhetra, Mandi. Thus, from the above discussion it is clear that various figures shown in the income tax returns of Smt. 43/150 44 Ram Devi are conflicting, hence no reliance can be placed on the same to hold that her opening balance was Rs.31,46,604/- at the beginning of check period.
111 Prosecution has proved income tax return of accused Sukh Ram for the financial year 1990-91, assessment year 1991- 92 Ex PW34/B-2, file Ex PW34/B (D-34 I). Alongwith this income tax return no balance sheet showing any opening balance has been filed.
112 Prosecution has proved income tax return of accused Sukh Ram for the financial year 1992-93, assessment year 1993- 94 Ex PW34/C-1, file Ex PW34/C (D-34 II). Alongwith this income tax return no balance sheet showing any opening balance has been filed.
113 Prosecution has proved income tax return of accused Sukh Ram for the financial year 1993-94, assessment year 1994- 95 Ex PW34/D-1, file Ex PW34/D (D-34-III). Alongwith this income tax return no balance sheet showing any opening balance has been filed.
114 Prosecution has proved income tax return of Accused Sukh Ram for the financial year 1994-95, assessment year 1995- 96 Ex PW34/E-1, file Ex PW34/E (D-34 IV). Alongwith this 44/150 45 income tax return balance sheet has been filed showing opening balance of Rs. 8,30,931/-. it is not disclosed as to how this figure has been arrived at. An amount of Rs.10,22,021/- has been shown as loan received from Canfin Home Ltd. and a loan of Rs. 2,68,303/- has been shown received from Smt. Ram Devi. A total capital of Rs.21,21,255/- has been shown as on 31.3.95, out of which an amount of Rs.11,12,488/- has been shown to be spent on construction of house No. D-42, Kaushambi and an amount of Rs. 4,10,000/- has been shown deposited with New Sansad Co- operative Society. A net closing balance of Rs.8,30,931/- has been shown as on 31.3.95. Nothing has been shown in this balance sheet as to how the figure of opening balance of Rs. 8.30.931/- has been arrived at. According to accused opening balance as per Ex PW 34/DA as on 31.3.92 was Rs.7,45,662.88, how can it be relied upon, when no capital amount has been shown in income tax return for the financial years w.e.f. 1990- 91 to 1992-93, thus, this argument appears to be vague and unreliable.
115 Prosecution has proved income tax return of Accused Sukh Ram for the financial year 1995-96, assessment year of which is 1996-97 Ex PW34/F2, file Ex PW34/F (D-34 V). Alongwith this income tax return balance sheet has been filed showing opening balance of Rs. 8,30,931/-. A total capital account of Rs.40,64,632/- has been shown as on 31.3.96 out of 45/150 46 which an amount of Rs.6,43,877/- has been shown as withdrawal. A net closing balance of Rs34,20,750/-- has been shown as on 31.3.96.
116 I have gone through these balance sheets, all the benefits as per these balance sheets have already been given to accused by the prosecuting agency but under different heads. Check period in our case is w.e.f. 20.6.91 to 16.8.96, thus accused is entitled for the benefits upto 19.6.91 under the head of pre- check period.
117 Thus, prosecution has proved that accused and his wife Smt. Ram Devi were having total movable and immovable assets valuing Rs.26,13,010/- prior to the check period, with them.
DETAILS OF TOTAL INCOME OF ACCUSED SUKH RM AND HIS WIFE RAM DEVI FROM THEIR KNOWN SOURCES OF INCOME DURING CHECK PERIOD 118 Prosecution vide Ex PW13/A (D-36) and from the statement of PW13 Reeta Jalkhani has proved that accused had received a salary with effect from 20.6.91 to June, 1992 as Member of Parliament of Rs. 65,150/- as shown at serial No.1 of 46/150 47 the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr PC. (Q15) 119 Prosecution vide Ex PW15/A (D-38) and from the statement of PW15Vinod Kumar Nayyar has proved that accused Sukh Ram had received a salary with effect from July, 1992 to 18.1.93 as Minister of State for Planning of Rs. 62,655/- as shown at serial No.2 of the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC. (Q16) 120 Prosecution vide Ex PW4/A to Ex PW4/E (D-39)and from the statement of PW4 Vinod Kumar Sinha has proved that accused Sukh Ram had received a salary with effect from 18.1.93 to 16.5.96 as Minister of State for Communication of Rs.3,28,975/- as shown at serial No.3 of the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC. (Q14) 121 Prosecution vide Ex.PW 34/A to Ex PW34/L (D-34) and from the statement of PW 34 D N Kapoor has proved that accused Sukh Ram had an income of Rs. 9,94,373/- from his Orchard as shown at serial No.4 of the details of income of accused during the check period in the charge sheet. Accused has 47/150 48 admitted it correct as matter of record in his statement recorded U/s 313 Cr. PC. (Q 66 to Q71) 122 Prosecution vide Ex.PW 34/A to Ex PW34/L (D-34) and from the statement of PW 34 D N Kapoor has proved that accused Sukh Ram had an income of Rs. 1,84,436/-on account of interest earned from his son Anil Sharma as shown at serial No.5 of the details of income of accused during the check period in the charge sheet. Accused has admitted it correct as matter of record in his statement recorded U/s 313 Cr. PC. (Q66 to 71) 123 Prosecution vide Ex.PW 34/A to Ex PW34/L (D-34) and from the statement of PW 34 D N Kapoor has proved that Smt. Ram Devi w/o accused Sukh Ram had an income of Rs. 4,46,897/- from her son Anil Sharma as shown at serial No.6 of the details of income of accused during the check period in the charge sheet. Accused has admitted it correct as matter of record in his statement recorded U/s 313 Cr. PC. (Q 65, Q72 to 76) 124 Prosecution vide Ex.PW 34/A to Ex PW34/L (D-34) and from the statement of PW 34 D N Kapoor has proved that Smt. Ram Devi w/o accused Sukh Ram had an income of Rs. 18, 88,900/- from her Orchard as shown at serial No.7 of the details of income of accused during the check period in the charge sheet. Accused has admitted it correct as matter of record in his 48/150 49 statement recorded U/s 313 Cr. PC. (Q 65, Q72 to 76) 125 Prosecution vide Ex.PW8/A to Ex PW8/D (D-27) and from the statement of PW 8 Manoj Kumar has proved that accused Sukh Ram had taken a total loan of Rs. 10 lakh (Rs. Five lakh each) for construction of house No. D-42 Kaushambi from Canfin Home Ltd. sponsored by Canara Bank as shown at serial No.8 of the details of income of accused during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC. (Q 26,27 and Q28) 126 Prosecution vide Ex. PW 5/C and Ex PW10/A ( D
63)and from the statement of PW5 Pardeep Kumar Gupta and PW10 Pardeep Bhaskar has proved that accused Sukh Ram had a balance of Rs. 27,37,500/- which amount he had received as compensation in a libel suit filed by him before Queen Bench, London and which was transferred in his bank account in India as shown at serial No.9 of the details of income of accused during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC. (Q19) 127 Prosecution vide Ex. P 10 to P13 (D-50) (admitted) has proved that accused Sukh Ram had an income of interest of Rs.3,45,933/- from Three FDRs in PNB as shown at serial No.10 of the details of income of accused during the check period in the 49/150 50 charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC.
128 Prosecution vide Ex P W34A to L, (D-34) and from the statement of PW34 D N Kapoor has proved that accused Sukh Ram had an income of interest of Rs. 40,800/- from FDRs of Shivalik during the period w.e.f. 1993 to 1995 as shown at serial No.11 of the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC.(Q 65, Q72 to 76) 129 Prosecution vide Ex. P W13/A, (D-36) and from the statement of PW13 Reeta Jalkhani has proved that accused Sukh Ram had an income of Rs. 56,071/- on account of TA and DA as Member of Parliament w.e.f. July, 1991 to August, 1992 as shown at serial No.12 of the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC. (Q15) 130 Prosecution vide Ex. P W15/A, (D-38) and from the statement of PW15 Sh. V K Nayyar has proved that accused Sukh Ram had an income of Rs. 5,335/- on account of TA and DA as Minister of State (Planning) w.e.f. July, 1992 to December , 1992 as shown at serial No.13 of the details of income of accused during the check period in the charge sheet. Accused has not 50/150 51 denied it in his statement recorded U/s 313 Cr. PC. (Q16) 131 Prosecution vide Ex. PW39/A and Ex PW39/A-1 (D-
40) and from the statement of PW39 Sh. R S Malik has proved that accused Sukh Ram had an income of Rs.3,08,859/- on account of TA and DA as Minister of State (Communication) w.e.f. October, 1993 to June, 1996 as shown at serial No.14 of the details of income of accused during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC. (/Q 80) 132 Prosecution vide Ex. P W13/A, (D-36) and from the statement of PW13 Reeta Jalkhani has proved that accused Sukh Ram had an income of Rs. 32,341/- on account of TA and DA as Member of Parliament w.e.f. May, 1996 to August, 1996 as shown at serial No.15 of the details of income of accused during the check period in the charge sheet. Accused has not denied it in his statement recorded U/s 313 Cr. PC. (Q15) 133 Thus, prosecution has proved that accused and his wife had a total income of Rs. 84,98,180/- during the check period from 20.6.91 to 16.8.96.
134 Ld. Senior Counsel Sh. Tulsi referring the statement of PW7 argued that accused had received 4200 pounds, (equal to 51/150 52 Rs. 2,09,748/-) from his son in law, credit of which has not been given by the prosecution, hence this amount may be added in the income of accused. It is correct that accused in his statement U/s 313 Cr PC has claimed that one of his son in law is a practising Doctor in U K who had sent 4200 pounds to him. I have gone through the statement of PW7 who has stated as follows in this regard:
" It is correct that the credit of Rs.2,09,748/- as reflected on 10.7.95 in Ex PW7/A is on account of conversion of 4200 pounds sterling received by the accounts holder as remittance."
135 In view of the statement of PW7 this court is of opinion that accused is entitle for the benefit of this amount. This amount should be added in the income of accused. Thus, the total income of accused and his wife during the check period comes to Rs.87,07,928/-.
DETAILS OF TOTAL EXPENDITURE INCURED BY ACCUSED SUKH RAM AND HIS WIFE RAM DEVI DURING CHECK PERIOD 136 Prosecution vide Ex PW19/A (D-57) and from the statement of PW 19 S Z Khan has proved that accused had paid an amount of Rs.38,520/- as electricity charges of house no.42 Kaushambi as shown at serial No.1 of the details of expenditure 52/150 53 made during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC.(Q46) 137 Prosecution vide Ex PW18/A (D-55) and from the statement of PW 18 Durga Singh Thakur has proved that accused had paid an amount of Rs.1,119/- as water charges of Orchard, in Saurath from June, 1991 to December, 1996 as shown at serial No.2 of the details of expenditure made during the check period in the charge sheet. Accused in his statement recorded U/s 313 Cr. PC (Q.45) has stated that this water connection is in the name of Anil Sharma who might had paid this amount. Accused has not produced any receipt or document showing that water connection was in the name of Anil Sharma who is his son, however, PW18 has specifically deposed that Orchard was of accused Sukh Ram and he had deposited this amount, hence there is no reason to disbelieve this witness, therefore, this court is of opinion that this amount was spent by accused Sukh Ram.
138 Prosecution vide Ex PW21/A (D-56) and from the statement of PW 21Sh. A N Sharma has proved that accused had paid an amount of Rs.1,168/- towards electricity charges of house at Village Saurath for the electric connection installed in the name of Smt. Ram Devi w/o Sukh Ram from June, 1991 to 53/150 54 August, 1996 as shown at serial No.3 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has deposed in his statement U/s 313 Cr PC that this amount might have been deposited by his wife (Q No.48) as the connection is in her name.
139 Prosecution vide Ex PW33/A and Ex PW33/B (D-
58) and from the statement of PW 33 Sh. P C Sharma has proved that accused had paid an amount of Rs.27,361/- towards electricity charges of his house at Mandi from June, 1990 to December, 1996 as shown at serial No.4 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has not denied this fact in his statement recorded U/s 313 Cr PC . (Q64) 140 Prosecution vide Ex P-16 (D-54), which has been admitted as correct by the accused in admission and denial, has proved that accused had paid an amount of Rs.1749/- on account of water charges for his house at Samkhetar Mandi as shown at serial No.5 of the details of expenditure made during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC.(Q1) 141 Prosecution vide Ex PW22/A (D-53)and from the 54/150 55 statement of PW 22 Munshi Ram has proved that accused had paid an amount of Rs.215/- as Mamla Payment Orchard, Saurath Mandi as shown at serial No.6 of the details of expenditure made during the check period in the charge sheet. Accused has admitted it correct as matter of record in his statement recorded U/s 313 Cr. PC.(Q 49) 142 Prosecution from the statement of PW 41 Smt. Bini Devi, PW42 Ram Bhadur, PW57 Bimla and PW38 Sadhu Ram has proved that accused had paid an amount of Rs1,24,390/- to the servants serving at his Orchard, Saurath Mandi as shown at serial No.7 of the details of expenditure made during the check period in the charge sheet. Accused has admitted it as correct in his statement recorded U/s 313 Cr. PC.(Q79, 82, 83 & 100) 143 Prosecution vide Ex PW14/A (D-62) and from the statement of PW 14 Sh. Puneet Sharma has proved that accused had paid an amount of Rs.6498/- towards LPG charges for his residence at Delhi for the period from 22.7.94 to 16.8.96 as shown at serial No.8 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has denied this fact in his statement recorded U/s 313 Cr PC . (Q41) I have gone through the statement of PW14 Sh. Puneet Sharma and relevant documents from which it is clear that LPG connection vide consumer No. 17099 was in the name of accused Sukh Ram 55/150 56 himself. Gas cylinders were supplied at his official residence bearing No. 12 Safdarjung Lane, New Delhi, hence this court is of opinion that prosecution has proved that he had spent Rs.6468/- for purchasing gas cylinders for his domestic use.
144 Prosecution has produced Ex PW14/A (D-62) and PW 14 Sh. Puneet Sharma to prove that accused had paid an amount of Rs.6,865/- towards LPG charges in the name of his son Sh. Anoop Sharma for the period from 22.7.94 to 16.8.96 as shown at serial No.9 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has denied this fact in his statement recorded U/s 313 Cr PC . (Q41) I have gone through the statement of PW14 Sh. Puneet Sharma and relevant documents from which it is clear that LPG connection vide consumer No. 20321 was in the name of Anoop Sharma s/o Sh. Sukh Ram. PW14 has stated that he cannot tell who had made the payment, in these circumstances this court is of opinion that the amount of Rs. 6865/- can not be added in the expenditure made by accused Sukh Ram during the check period.
145 Prosecution vide Ex PW16/A (D-61) and from the statement of PW 16 Sh. Rajinder Mahajan has proved that accused had paid an amount of Rs1,28,870/- towards charges of Air Journey to USA in the month of August 1996 for himself and for his wife as shown at serial No.10 of the details of expenditure 56/150 57 made during the check period in the charge sheet. Accused Sukh Ram in his statement recorded U/s 313 Cr PC (Q43) has stated that he received 4200 pounds from his son in law Sh. S L Vashisht who has been a practicising doctor in London. Out of this amount he purchased tickets for himself and his wife. PW16 Sh. Rajinder Mahajan specifically deposed that a payment of Rs.1,28,870/- was received against bill Ex PW16/A from Sukh Ram vide a cheque. thus this court is of opinion that prosecution has proved that this expenditure was made by accused Sukh Ram.
146 Prosecution from the statement of PW52 Sh. Niranjan Lal Goel has proved that accused had paid an amount of Rs30,000/-to Sh. Niranjan Lal Goel for supervising the construction work at D 42 Kaushambi, Ghaziabad w.e.f. 1991 to 1994 as shown at serial No.11 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC.(Q88) .
147 Prosecution from the statement of PW26 Sh. Vasudev has proved that accused Sukh Ram had paid an amount of Rs10,000/-to PW26 Sh. Vaudev for doing the job of plumber at his residence D 42 Kaushambi, Ghaziabad as shown at serial No.12 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct 57/150 58 in his statement recorded U/s 313 Cr PC.(Q53) .
148 Prosecution from the statement of PW28 Sh. Inder Bhan Tomar has proved that accused Sukh Ram had paid an amount of Rs15,000/- to PW28 Sh. Inder Bhan Tomar in the year 1994 for doing electricity work in premises D 42 Kaushambi, Ghaziabad as shown at serial No.13 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct in his statement recorded U/s 313 Cr PC.(Q54) .
149 Prosecution from the statement of PW 53 Chottey Lal has proved that accused Sukh Ram had paid an amount of Rs9,000/- to Sh. PW53 Sh. Chottey Lal who was working as gardener at the residence of accused at house No. D 42 Kaushambi, Ghaziabad from 29.1.96 to August, 1996 as shown at serial No.14 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct in his statement recorded U/s 313 Cr PC.(Q89) .
150 Prosecution from the statement of PW8 Manoj Kumar Nayyar has proved that accused Sukh Ram had repaid an amount of Rs4,93,864/- upto July, 1996 to Canfin Homes Ltd. against the loan of Rs. 10 lakh taken by him as shown at serial No.15 of the details of expenditure made during the check period in the charge 58/150 59 sheet. Accused Sukh Ram has admitted it as correct in his statement recorded U/s 313 Cr PC.(Q28) .
151 Prosecution from the statement of PW34 Sh. Devender Kapoor (D34) has proved that accused Sukh Ram had paid total amount of Rs3,12,595/- towards Income tax during the check period as shown at serial No.16 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC.(Q66 to Q 71) .
152 Prosecution from the statement of PW34 Sh. Devender Kapoor (D-34) has proved that accused Sukh Ram had spent a total amount of Rs2,30,117/- as agricultural expenses during the check period as shown at serial No.17 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC.(Q66 to 71) 153 Prosecution vide Ex PW5/H (D-45) and from the statement of PW 5 Sh. P K Gupta has proved that accused had paid an amount of Rs.14 lakh to Bhav Dev Trust during the check period as shown at serial No.18 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement 59/150 60 recorded U/s 313 Cr PC (Q22).
154 Prosecution vide Ex PW5/G (D-45) and from the statement of PW 5 Sh. P K Gupta has proved that accused had paid an amount of Rs. one lakh to Bhav Dev Trust between 17.7.95 to 12.9.95 as shown at serial No.19 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC (Q22).
155 Prosecution vide Ex PW5/D and Ex PW5/E (D-44) and from the statement of PW 5 Sh. P K Gupta has proved that accused had paid an amount of Rs.10 lakh (Rs. Five lakh each) to Duyffdun Education Trust, Chairman of which was Smt. Ram Devi w/o accused between 29.2.96 to 15.6.96 as shown at serial No.20 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC (Q21).
156 Prosecution from the statement of PW 24 Sh. Shamsher Singh has proved that accused Sukh Ram had paid a total amount of Rs19,200/- to his driver PW24 Shamsher Singh towards his salary from June, 1991 to June, 1992 as shown at serial No.21 of the details of expenditure made during the check 60/150 61 period in the charge sheet. Accused Sukh Ram has admitted it as correct being matter of record in his statement recorded U/s 313 Cr PC.(Q52) .
157 Prosecution from the statement of PW 25 Sh. Munshi Ram s/o Durga Ram has proved that accused Sukh Ram had spent an amount of Rs1,50,000/- on the reception of marriage of his daughter Kavita in the year 1992 as shown at serial No.22 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram in his supplementary statement recorded U/s 313 Cr PC has stated that exactly he cannot state whether the expenditure was less than Rs.1,50,000/-, however, cash and gifts were received in the reception which was also utilised as a part of expenditure. Some amount of the expenditure was also made from the earnings of his wife who had an independent income from her agricultural land. (Q2 of supplementary statement). It is clear that accused has not specifically denied the fact of expenditure of Rs. 1,50,000/- on the reception of his daughter. He has claimed that some expenditure was made from the cash and gifts received in the reception and some expenditure was made by his wife. It is clear from the above discussion that income of wife of accused has also been taken in consideration and all benefits because of her income has already been granted to accused. Accused has not disclosed as to how much amount was spent by him and how much amount was spent 61/150 62 by his wife and how much amount was spent from the cash/gifts received in the reception. Accused even has not produced his wife in the witness box as defence witness to explain as to how much amount was spend by her. Accused has not produced any statement of account in this regard. In these circumstances this court is of opinion that the prosecution has proved that accused had spent an amount of Rs.1,50,000/- on the reception of her daughter in the year 1992.
158 Prosecution from the statement of PW 31 Sh. Raj Kishan Gaur has proved that accused Sukh Ram had spent an amount of Rs1,00,000/- on the of marriage of his daughter Kavita in the year 1992 as shown at serial No.23 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram in his supplementary statement recorded U/s 313 Cr PC has stated that jewelery was managed from the old ornaments of his wife. His wife has also incurred some expenses from her income. Some gifts were also given by relatives. . (Q5 of supplementary statement). It is clear that accused has not specifically denied the fact of expenditure on account of dowry articles of Rs. 1,00,000/- given to her daughter in her marriage. He has claimed that jewelery was manage from the old ornaments of his wife and some expenditure was made from the income of his wife and some gifts were given by the relatives. It is clear from the above discussion that income of wife of accused 62/150 63 has also been taken in consideration and all benefits because of her income has already been granted to accused. Accused has not disclosed as to how much amount was spent by him and how much amount was spent by his wife and how much amount was spent from the cash/gifts received in the marriage. Accused even has not produced his wife in the witness box as defence witness to state that jewelery was managed from her old ornaments and to explain as to how much amount was spent by her from her personal income Word old is a vague term. It can be one month old or one year old or ten years old and so on. Accused has not stated any specific time when, how and from whom the jewelery was acquired. Jewelery has also not been claimed as the stridhan of the wife of accused. Accused even has not claimed that jewelery was acquired prior to the check period. It is also clear that benefit of pre check period earnings/wealth etc. has already been given to accused. Accused has not produced any statement of account in this regard. In these circumstances this court is of opinion that the prosecution has proved that accused had spent an amount of Rs.1,00,000/- on the marriage of her daughter on account of dowry articles in the year 1992.
159 Prosecution from the statement of PW 25 Sh. Munshi Ram s/o Durga Ram has proved that accused Sukh Ram had spent an amount of Rs. 1,00,000/- on the marriage of his son Anoop Sharma in the year 1994 as shown at serial No.24 of the details of 63/150 64 expenditure made during the check period in the charge sheet. Accused Sukh Ram in his supplementary statement recorded U/s 313 Cr PC has stated that the reception was held at his residence in which some expenses were incurred by his wife from her income and some cash in the form of sagan was also received from invitees which was also utilised. (Q3 of supplementary statement). It is clear that accused has not specifically denied the fact of expenditure of Rs. 1,00,000/- on the reception of his son Anoop. He has claimed that some expenditure was made from the cash received in the reception and some expenditure was made by his wife. It is clear from the above discussion that income of wife of accused has also been taken in consideration and all benefits because of her income has already been granted to accused. Accused has not disclosed as to how much amount was spend by him and how much amount was spend by his wife and how much amount was spend from the cash received in the reception. Accused has not even disclosed as to how much amount in cash was received as sagan in reception. Accused even has not produced his wife in the witness box as defence witness to explain as to how much amount was spend by her. Accused has not produced any statement of account in this regard. In these circumstances this court is of opinion that the prosecution has proved that accused had spent an amount of Rs.1,00,000/- on the reception of his son in the year 1994.
64/150 65160 Prosecution vide Ex PW11/A and Ex P11/B (D-59) and from the statement of PW 11 Sh. Anand Gupta has proved that accused had purchased IFB Washing Machine in sum of Rs.17,995/- in his name from M/s Appliances India between 4.9.93 to 9.9.93 as shown at serial No.25 of the details of expenditure made during the check period in the charge sheet. Accused Sukh Ram has denied it in his statement recorded U/s 313 Cr PC (Q38). Accused Sukh Ram has deposed that his son Anil Sharma might have purchased it. PW11 Sh. Anand Gupta has deposed after seeing voucher Ex PW11/A and Ex PW11/B that sale was made to Mr. Sukh Ram, 12 Safdarjung Lane, New Delhi, in a total consideration of Rs. 17,995/-. In these circumstances this court is of opinion that prosecution has proved that accused Sukh Ram had spent this amount for purchasing a washing machine.(Q38) 161 Prosecution vide Ex P-17 (admitted during admission and denial) (D-42) has proved that accused had paid Rs. 1200/- on account of rent of locker No.6 Syndicate bank, R K Puram as shown at serial No.26 of the details of expenditure made during the check period in the charge sheet.
162 According to prosecution accused had spent Rs.3,66,000/- on household expenses as shown at serial No.27 of the details of expenditure made during the check period in the 65/150 66 charge sheet. Prosecution has taken check period w.e.f. 20.6.91 to 16.8.96. which comes to more than 61 months. Thus, the household expenses assessed by the prosecution comes to Rs.6,000/- per month. After considering the status of accused who was a Member of Parliament and remained Minister of State in the Central Govt. of India, this amount appears to be quite reasonable. Our Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab, AIR 1964 SC 464 has held that upto 1/3rd of salaried income of a person can be assessed as living expenses. Even this fact has not been disputed during the course of arguments by both the Ld. Defence Counsels on behalf of accused. Thus, this court is of opinion that prosecution has proved that accused had spent Rs.3,66,000/- as living expenses during the check period.
163 Though, Prosecution has claimed that accused Sukh Ram and his wife Smt. Ram Devi had spent a total amount of Rs.46,87,960/- during the check period but prosecution could prove their expenditure of Rs.46,81,095/- (4687960-6865) DETAILS OF MOVABLE AND IMMOVABLE ASSETS HELD BY ACCUSED SUKH RM AND HIS WIFE RAM DEVI AT THE END OF CHECK PERIOD.
164 Prosecution vide Ex PW 22/B (Jamabandi) and from the statement of PW22 Munshi Ram has proved that Smt. Ram 66/150 67 Devi wife of accused Sukh Ram had purchased Orchard in Saurath from one Phulla Devi of 8 bighas and 17 biswas in consideration of Rs.65,000/- as shown at serial No.1 of the details of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that this question (Q50) is vague and stated that as far as he remember this purchase had taken place in the last quarter of 1990 or 1991, thus, it is clear that accused had not denied it. PW 22 Munshi Ram s/o Moti Ram in his examination in chief has specifically deposed that this land was purchased after 31.3.91 and before 17.12.96. Accused in his statement U/s 313 Cr PC has stated that this land was purchased either in the last quarter of 1990 or 1991, thus coupled with the statement of PW22 it is proved that this land was purchased during the check period.
165 Prosecution vide Ex PW 1/B and Ex PW1/B1 (D-33) and from the statement of PW1 P Kalisham has proved that accused Sukh Ram had spent Rs. 41,29,730/- on the construction of Farm House in Saurath Orchard during the check period as shown at serial No.2 of the details of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that this building does not belong to him but to his wife. He was not aware of any inspection carried out by PW1. Reports Ex 67/150 68 PW1/B and Ex PW1/B1 given by PW1 are wrong. (Q7).
166 Prosecution vide Ex PW 1/C and Ex PW1/C1 (D-33) and from the statement of PW1 P Kalisham has proved that accused Sukh Ram had spent an amount of Rs.5,69,000/- on renovation of building at Shamketar, Mandi, HP during the check period as shown at serial No.3 of the details of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that cost of renovation of building as calculated by PW1 is wrong. PW1 P Kalisham has not carried out inspection in his presence. Exact cost of renovation is known to Sh. Dalip Kumar, Manager of Hotel Mayfair who has been cited as witness by the prosecution but with the malafide intention prosecution has not examined him. (Q8) 167 Prosecution has produced its valuer Sh. P Kalisham as PW1 who was a Civil Engineer (BE) and was working as Executive Engineer in Post & Telegraph Department who has stated that in the second week of December, 1996 he had inspected building at Apple Orchard at Mandi. This building evaluated as type V specification as per CPWD, though it is of higher specification as per his knowledge. There was one servant quarter in this complex which evaluated as Type IV. He had evaluated the cost of this building as Rs. 41,29,730/-. He has 68/150 69 proved his Report Ex PW1/B and annexures attached to this report Ex PW1/B-1.
168 PW1 has stated that in the second week of December, 1996 he had inspected building at Shamkhetra, HP which was an old building. He had evaluated the cost of renovated portion of this building only. He had seen the site plan which was approved in the name of Smt. Ram Devi w/o Sh. Sukh Ram. He has proved his Report Ex PW1/C and annexures attached to this report Ex PW1/C-1. This witness has evaluated the cost of renovation as Rs.5,69,000/-.
169 Accused has also produced his valuer Sh. P C Gupta as DW6 in his defence evidence who is a retired Chief Engineer from PWD, Himachal Pradesh. He has stated that he is approved valuer of Chief Commissioner, Income Tax Department, Panchkula. He has deposed that from 17th July to 19th July, 2004 he had evaluated Orchard house at Surath. He has specifically stated that this property belongs to Smt. Ram Devi w/o Sh. Sukh Ram. This house was constructed on hilly terrain. He has stated that he has given specifications of the construction in his report Ex PW6/D. He has worked out cost of this building as Rs.10,17,432/- against the estimated cost given by the XEN, CBI. In his examination in chief he has stated that he does not dispute the measurement taken by XEN, CBI in respect of this building. He 69/150 70 has further stated that local stone and wood was used . A tree would cost Rs. 5 or 10 according to the class of tree. There could be 50/60 slippers in one tree. He has stated that CBI has applied rates of DSR whereas the construction was raised in a village in Distt. Mandi. Himachal Pradesh PWD has its own scheduled rates. He has applied the scheduled rates of Himachal Pradesh, PWD for calculating the cost of construction. He has also stated that he had gone through the Valuation Report of the valuer of CBI and compared the cost given by him and estimated by CBI.
170 DW-6 has deposed that on 20.7.04 he had inspected residential property at Mandi in the name of Smt. Ram Devi w/o Sh. Sukh Ram in Mohalla Shamketra Mandi which was renovated in the year 1995-96 with few additions and alterations. He has proved his Valuation report Ex DW6/A. He has worked out cost of renovation as Rs. 2,92,867/-. In his examination in chief he has stated that he does not dispute the measurement taken by XEN, CBI, however, he has stated that XEN of CBI has assessed the rate of marble as Rs.1550/- psqm but he has worked out the same as Rs. 650/- psqm. Similarly, he has stated that rate of glazed tile has been assessed as Rs.509 psqm by the XEN of CBI whereas he has assessed the same at the rate of Rs. 350/- psqm. He has also stated that rate of cupboard has been assessed as Rs.4500/- psqm by the XEN of CBI whereas he has taken the rate as Rs.1250/- psqm. He has also stated that he had gone through the Valuation 70/150 71 Report of the valuer of CBI and compared the cost given by him and estimated by CBI. In his examination in chief he has not disputed the measurement taken by the Executive Engineer of CBI in respect of this building.
171 It is argued by Ld. Senior Counsel Sh. K T S Tulsi for accused that valuer of CBI has applied Delhi Schedule Rates while the building was constructed in a village of Himachal Pradesh, hence his calculations can never be correct. It is argued that according to DW-6 local stones and wood were used in the construction of building which has reduced the cost of construction. It is also argued that valuer of CBI is not an approved valuer, hence his report may not be relied upon. He has adopted plinth area method for calculating the value which is a wrong method.
172 PW1 has been cross examined at length on behalf of accused. Relevant portion of his cross examination in this regard is as under:
"Q: What do you mean by D.SR which appears in your report?
Ans: Delhi Schedule of Rates, which are prescribed by C P W D. Q Is it correct that each State has its own Schedule of rates? Which are more or less equivalent to CPWD?
Ans: It is correct, each state has its own schedule of rates, but 71/150 72 they are more or less equivalent to CPWD rates."
173 From the above quoted cross examination it is clear that Scheduled Rates are almost equal everywhere. It also appeals to the common sense for example, rate of a bag of cement, iron or other construction material like glazed tiles etc. will be the same in Delhi or in Himachal Pradesh, rather it can be more in Himachal Pradesh because of additional transport charges. Rates may be less in Delhi as wholesale market is situated in Delhi, however, certainly unskilled labour is cheaper in villages but the skilled labour cost more in villages because such people are not available in villages and have to go there from big cities/towns. PW1 in his cross examination has specifically stated that local stones and local wood was not used in the construction. Relevant portion of his cross examination in this regard is as under:
"It is incorrect that the local stones were used in the construction as the stones of the size used in the construction could not be available locally"
"----It is incorrect that wooden work of the building was done with local wood. For windows and doors teak wood was used. For wooden lining and false sealing country wood plank were used. ......."
174 DW-6 has not given any reason regarding his claim of use of local stone and wood in the construction while PW1, as 72/150 73 discussed above, has given reason to show that local stone and wood was not used in the construction.
175 It is correct that PW-1 is not an approved valuer however, he is an independent person being a Govt. employee having sufficient experience. While DW-6 is a private valuer. There is natural tendency of private expert to support the view of person who had called him. Hon'ble High Court of Himachal Pradesh in Raj Mohd. Vs. State of Himachal Pradesh, 1005 Cr.L J page 810 in this regard has held as follows:
" Evidence Act (1 of 1872) S. 45 -Expert opinion - Conflicting views of two experts - Reliability - Murder case - Letters written by accused prior to commission of offence showing the motive - Government examiner clearly pointing out that letters were in hand-writing of accused - However expert produced by accused stating that said letters were not written by accused - There is natural tendency of expert to support view of person who had called him - Evidence of government examiner more reliable."
176 Hon'ble High Court of Patna in Abhyanand Mishra Vs. State of Bihar, AIR 1959 Patna 323 with regard to evidence of an expert engaged by a party observed as follows:
"The opinion of an expert engaged by a party suffers from the defect that it is given by a remunerated witness. He knows 73/150 74 before hand why he has been called and what the party calling him wishes to be proved. It is not improbable that he has an unconscious bias in favour of the party. These circumstances to great extent detract from the weight to be attached to such witness's opinion."
In para No.7 of this authority it is further observed as follows:
" The opinion of Mr. Beunet suffers from the defect that it was given by a remunerated witness. He knows beforehand why he had been called and what the party calling him wishes to be proved. The witness stated that 10 days before he came to court he was approached by the appellant about this case. The appellant told him that he repudiated the two signatures on X and Y. The witness was also given a copy of the evidence of the Government Handwriting expert before he was examined in court. He further admitted that he had been paid his fees in two instalments before he came to depose. It is not improbable that he had an unconscious bias in favour of the appellant. These circumstances to a great extent detract from the weight to be attached in the witness's opinion."
177 It is correct that PW1 has used Plinth Area Method for calculating the cost of the building. I have gone through his report. His report is based on the measurement of Plinth Area. Thereafter, he has calculated the value. DW-6 has not disputed the 74/150 75 measurements taken by PW1, however he has taken rates of all the items on lower side with a view to reduce the cost of construction to favour the accused. DW-6 has considered mild steel for his estimation whereas Tor steel is used in the Building. The quantity of steel taken per cubic metre has also been taken by DW-6 on much lower side than the actual.
178 DW-6 has admitted in his cross examination that he had taken cash memo etc. from the party but he has not filed the same alongwith his report hence adverse inference can be drawn against him that cash memos/bills were not corroborating his report. He has also admitted in his cross examination that he had not collected documentary evidence with regard to market price of the items. In this regard, relevant portion of his cross examination is as under:
" I had taken the documents i.e. cash memo etc. from the party with regard to expenditure made by the accused for constructing the property. It is correct that I had not attached those documents alongwith my report and I had not file the same in the court. It is wrong to suggest that I had intentionally not annexed those documents with my report as they were not supporting my report. It is wrong to suggest that I was handed over by the party the site plans of the buildings, valuation report and the statements of the valuer 75/150 76 recorded in court. Vol. I have been provided with valuation report of CBI Engineer only."
179 DW-6 with regard to building constructed at Saurath and Mandi, in his report, has stated that the construction was made under self supervision. Relevant portion of his cross examination in this regard is as under:
"I have mentioned in my report that the property at Saurath and Mandi were constructed under self supervision as was disclosed by the accused."
180 Cost of construction under self supervision is less, however, it is well proved that construction was not carried out at Saurath and Mandi under self supervision which is clear from the statement of PW47.
181 PW47 Sh. L R Sharma has stated that he was asked by Mr. Sukh Ram to supervise the construction work at Mandi house at D42 Kaushambi, Ghaziabad. He has stated that Mr. Sukh Ram appointed Mr. N N Goel to supervise the work as an Architect. All the bills were received by him and the same were also checked by N N Goel Associates and thereafter cross checked by his staff. He has also deposed that he had received Rs.39,90,000/- from Smt. Ram Devi and Sh. Sukh Ram between 76/150 77 the period April, 1993 to 1995. He had spent this money for renovation of Houses at Mandi and Hotel Mayfair and for Kaushambi House. Relevant portion of his examination in chief in this regard is as under:
"----All the bills regarding the said purposes were received by me and the same were got checked by N N Goel Associates and subsequent cross checked by my staff, particularly Shri "C Gilotra, Ex-XEN of CPWD."
182 No statement of accused has been produced. This witness has stated that Rs.39,90,000/- received by him from Smt. Ram Devi and Sh. Sukh Ram spent by him on renovation of houses at Mandi and Hotel Mayfair and for Kaushambi House which includes purchase of TV sets and kitchen ware etc. for Hotel Mayfair, thus, according to this witness he had spent the amount received from Smt. Ram Devi and Sukh Ram on construction work and for purchasing kitchenware and TV Sets for Hotel Mayfair. According to the Valuation Report of DW6 total cost of construction of all the three buildings comes to Rs.33,60,039/- while according to the admission of PW 47 he had received Rs.39,90,000/- from Smt. Ram Devi and Sukh Ram, thus the defence evidence itself contradicts report given by this witness.
183 Accused in his statement recorded U/s 313 Cr PC has 77/150 78 stated that the exact cost was known to Dalip Kumar, Manger of Hotel Mayfair. (Q no.8). Hotel Mayfair belongs to the son of Mr. Sukh Ram. Even Mr. Sukh Ram has not produced this witness in his defence evidence to prove the exact cost of construction of renovation. No documents, bills/receipts have been produced on the file.
184 Smt. Ram Devi w/o accused is an income tax payee, in her income tax return for the financial year 1993-94, assessment year 1994-95 Ex PW34/I-3 (D-34-VIII) file of which is Ex PW- 34/I, in the balance sheet upto 31.3.94 has disclosed that an amount of Rs.1,89,937/- invested on the construction of Farm House which is under construction. Similarly, Smt. Ram Devi in her income tax return for the financial year 1994-95, assessment year 1995-96 Ex PW34/J -3(D-34-IX) file of which is Ex PW- 34/J, in the balance sheet upto 31.3.95 has disclosed that an amount of Rs.1,89,937/- invested on the construction of Farm House which is under construction. Similarly, Smt. Ram Devi in her income tax return for the financial year 1995-96, assessment year 1996-97 Ex PW34/K -3(D-34-X) file of which is Ex PW- 34/K, in the balance sheet upto 31.3.96 has disclosed that an amount of Rs.1,89,937/- invested on the construction of Farm House which is under construction. DW 6 has assessed the value of this building as Rs. 10,17,432/-, thus, again contradicted by the documents of accused himself.
78/150 79185 In view of above discussion this court is of opinion that Valuation of construction given by by DW6 is not reliable and the valuation of construction given by PW1 in his report is reliable, therefore, this court is of opinion that prosecution has proved that accused had spent an amount of Rs.41,29,730/- on the construction of building in Apple Orchard. Similarly, Valuation of renovation given by by DW6 is not reliable and the valuation of renovation given by PW1 in his report is reliable, therefore, this court is of opinion that prosecution has proved that accused had spent an amount of Rs. 5,69,000/-- on the renovation of this building.
186 Prosecution has proved Ex PW 1/A and Ex PW1/A-1 (D-32) and produced PW1 P Kalisham to prove that accused Sukh Ram had spent an amount of Rs.29,45,416/- on the construction of building on plot No.D-42 Kaushambi, Ghaziabad during the check period as shown at serial No.4 of the details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that PW1 has adopted a wrong method of calculation. Method of plinth area basis can be adopted for the building yet to be constructed. Building in question had already been constructed. Value of building could have been determined by detailed calculation on 79/150 80 the basis of number of door, number of windows, stone used etc. Since the method adopted by PW1 is wrong, hence he has given a wrong valuation of the building. (Q5) 187 PW-1has stated that on 16.10.96 he visited house No. D42 Kaushambi alongwith Dy. SP Rishi Prakash where from the side of accused Sukh Ram one Engineer of M/s Goel & Associates was also present who was looking after the construction of that building. PW1 has evaluated this building as type V as per schedule of CPWD though the building was higher specification than that of type V as stated by him. He has proved his Evaluation Report Ex PW1/A and annexures to this report Ex PW1/A-1. This witness has evaluated the value of this building as Rs. 29,45,416/-
188 DW-6 has deposed that he had visited D-42 Kaushambi, Ghaziabad for the purpose of valuation of property. He has proved his Valuation report Ex DW6/A. He has worked out cost of construction of this building as Rs. 20,49,740/-. He has also stated that he had gone through the Valuation Report of the valuer of CBI and compared the cost given by him and estimated by CBI. He has stated that CBI has adopted Plinth Area Method to arrive the cost of construction of the building which is not fair in this case. Plinth Area Method should not be used to work out the cost of construction of constructed building. In his 80/150 81 examination in chief he has not disputed the measurement taken by the Executive Engineer of CBI in respect of this building. In his cross examination he has stated that he has no idea whether the building was got constructed under the supervision of Architect. In his cross examination question has been put to him whether he dispute the measurement in respect of the property at Kaushambi. Relevant portion of his cross examination in this regard is as under:
"Q Do you dispute the measurement in respect of property at Kaushambi?
Ans: The demenour of the witness is noted who is not answering the question despite the fact that the question has been repeated several times. The question is again repeated. Ans: The measurement consists of length, width and height. I am not disputing the length and width. The height of the building has not been mentioned by the CBI Valuer in his report.
It is correct that in my examination in chief on page three I have stated that the measurements taken by the Executive Engineer CBI in respect of D42 Kaushambi are not being disputed by me.
I had inspected property D 42 Kaushambi on 14th and 15th of May, 2007. A request was made to me to inspect the property sometime in July, 2004 but I could not find the time to 81/150 82 inspect the property earlier. The Valuation Report in respect of D 42 Kaushambi was prepared by me on 15.7.07".
189 This witness has admitted in his cross examination that he had taken cash memo etc. from the party but he has not filed the same alongwith his report hence adverse inference can be drawn against him that cash memos/bills were not corroborating his report. He has also admitted in his cross examination that this assignment was given to him in the year 2004, however, he has inspected the building in 2007. He has also admitted in his cross examination that he had not collected documentary evidence with regard to market price of the items. He has also admitted that he had not taken the assistance of Architect/Engineer who had supervised the construction. In this regard, relevant portion of his cross examination is as under:
"I had not collected any documentary proof/evidence with regard to market rate of items. It is correct that assignment with regard to assessing the value of three properties pertaining to my report was assigned to me in the year 2004. I had assessed the value of two properties in the year 2004 and had assessed the value of third property in the year 2007. Delay is because I could not find time to assess the value of third property. First I prepared the rough notes for my report thereafter final report was prepared. It is correct that I have not filed the rough notes in the court alongwith my report. I had not taken assistance of any 82/150 83 Engineer/Architect etc. who had supervised the construction of properties. It is wrong to suggest that I had intentionally omitted to take the services of the Engineer/Architect in arriving at the valuation of the above said properties. I had taken the documents i.e. cash memo etc. from the party with regard to expenditure made by the accused for constructing the property. It is correct that I had not attached those documents alongwith my report and I had not file the same in the court. It is wrong to suggest that I had intentionally not annexed those documents with my report as they were not supporting my report. It is wrong to suggest that I was handed over by the party the site plans of the buildings, valuation report and the statements of the valuer recorded in court. Vol. I have been provided with valuation report of CBI Engineer only."
190 PW47 Sh. L R Sharma has stated that he was asked by Mr. Sukh Ram to supervise the construction work at Mandi house at D42 Kaushambi, Ghaziabad. He has stated that Mr. Sukh Ram appointed Mr. N N Goel to supervise the work as an Architect. All the bills were received by him and the same were also checked by N N Goel Associates and thereafter cross checked by his staff. He has also deposed that he had received Rs.39,90,000/- from Smt. Ram Devi and Sh. Sukh Ram between 83/150 84 the period April, 1993 to 1995. He had spent this money for renovation of Mandi House and Hotel Mayfair and for Kaushambi House. Relevant portion of his examination in chief in this regard is as under:
"----All the bills regarding the said purposes were received by me and the same were got checked by N N Goel Associates and subsequent cross checked by my staff, particularly Shri "C Gilotra, Ex-XEN of CPWD."
191 In his cross examination this witness has stated that he cannot admit or deny if he had spent Rs.23 lac in construction of house at Kaushambi because he was not maintaining any separate account. Accused in his statement recorded U/s 313 Cr PC has stated that an amount about Rs. 23 lac was spent for the construction of Kaushambi House. (Q no.85), DW-6 in his report has worked out the cost of construction of building as Rs.20,49,740/-, thus, it is clear that accused himself contradicts the cost of construction given by DW-6. Besides, PW26 Sh. Vasudev has stated that he had worked as plumber at the residence of Sh. Sukh Ram at D42, Kaushambi Ghaziabad in the year 1993 for which he had been paid Rs. 10,000/- as labour charges, material was provided by the owner. PW28 Sh. Inder Bhan Tomar has stated that in the year 1994 he had done electricity work in premises D 42, Kaushambi Ghaziabad. He was paid Rs. 15,000/- for labour charges, total contract was given for Rs.25,000/- but he 84/150 85 did not complete the work hence he was paid Rs. 15,000/-. PW 52 Sh. Niranjan Lal Goel has stated that construction work of D- 42 Kaushambi, Ghaziabad was completed under his supervision. He has stated that M/s B N Construction was the contractor for carrying out construction work. Mr. Banwari Lal was the contractor for fixing marble floors and Mr. Paras Ram had done POP on walls and floors. He has stated that he had supervised the work from 1991 to 1994 and charged Rs. 30,000/- as his professional fees. He has also deposed that he has yet to receive another sum of Rs. 30,000/- from Sh. Sukh Ram which has not yet been paid to him. In his cross examination this witness has stated that initial estimate for complete construction was about Rs. 10 lac, on better specifications provided by the accused estimate was increased by another 2.5 lac, so according to this witness total cost of construction of this building was about Rs.12,50,000/-.
192 Accused Sukh Ram is an income tax payee, in his income tax return for the financial year 1994-95, assessment year 1995-96 Ex PW34/E (D-34-IV) file of which is Ex PW-34/E, in the balance sheet upto 31.3.95 has disclosed that an amount of Rs.11,12,4287/- invested on the construction of House No. D-42 Kaushambi, Ghaziabad which is under construction. Similarly, Accused Sukh Ram in his income tax return for the financial year 1995-96, assessment year 1996-97 Ex PW34/F (D-34-X) file of which is Ex PW-34/F, in the balance sheet upto 31.3.96 has 85/150 86 disclosed that an amount of Rs.3,67,731/- was more invested on the construction of House No. D-42 Kaushambi, Ghaziabad which is under construction. Thus, the total amount spent on the construction of this building comes to Rs. 14,80,159/-. DW 6 has assessed the value of this building as Rs. 20,49,740/-, thus, again contradicted by the documents of accused himself.
193 In view of above discussion this court is of opinion that Valuation Report given by DW6 with regard to this building is not reliable and the valuation of this building given by PW1 in his report is reliable, therefore, this court is of opinion that prosecution has proved that accused had spent an amount of Rs. 29,45,416/- on the construction of this building.
194 Prosecution vide Ex PW 17/A (D-26) and from the statement of PW17 Hari Simrath Singh Dua has proved that accused Sukh Ram had paid an amount of Rs. 7,35,000/- upto 18.8.96, in instalments, for the flat booked by him in Nav Sansad Vihar Cooperative Group Housing Society as shown at serial No.5 of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has admitted it to be correct being matter of record. (Q44).
195 Prosecution vide Ex PW 5/C (D-46) and from the 86/150 87 statement of PW5 Sh. P K Gupta has proved that accused Sukh Ram had deposited an amount of Rs. 49,751/- in OBC S J Enclave w.e.f. 9.1.96 to 12.8.96 as shown at serial No.6 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has not denied it by stating that it is a matter of record. (Q20).
196 Prosecution vide Ex PW 5/I (D-46) and from the statement of PW5 Sh. P K Gupta has proved that accused Sukh Ram had deposited an amount of Rs.3,50,000/- in FDR in OBC Safdarjung Enclave as shown at serial No.7 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has not denied it by stating that it is a matter of record. (Q23).
197 Prosecution vide Ex PW 7/A and Ex PW7/B (D-41) and from the statement of PW7 Sh. J N Behal has proved that accused Sukh Ram had deposited an amount of Rs 42,023/- in Saving Bank Account, SBI, Parliament House, New Delhi. w.e.f. August, 1991 till 6.8.91as shown at serial No7 (note: serial no.7 has been repeated twice in the charge sheet, hence, in order to avoid confusion same serial no. is being given here) of details of immovable and movable assets held by accused at the end of 87/150 88 check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has not denied it by stating that it is a matter of record. (Q25).
198 Prosecution vide Ex P-14 (D-52) (admitted) has proved that accused Sukh Ram had deposited an amount of Rs2,94,953/- in Saving Bank account No. 1873 Canara Bank, Mandi during the check period as shown at serial No.8 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet.
199 Prosecution vide Ex PW 12/A (D-47) and from the statement of PW12 Sh. Y P Sharma has proved that accused Sukh Ram had deposited an amount of Rs.7,620/- in saving bank account no. 25495 Canara Bank, Parliament Street, New Delhi from July, 1993 to 16.8.96 which is in the joint name of Sukh Ram and Smt. Ram Devi as shown at serial No.9 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has not denied it by stating that it is a matter of record. (Q39).
200 Prosecution vide Ex PW 6/A (D-43) and from the statement of PW6 Sh. S C Khurana has proved that there was a credit balance of Rs.2,58,736/- in saving bank account no. 11495 88/150 89 Syndicate Bank, New Delhi as on 1.8.98 in the name Smt. Ram Devi W/O Sukh Ram as shown at serial No.10 of the details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has not denied it by stating that it is a matter of record. (Q24).
201 Prosecution vide Ex P-15 (D-52) (admitted) has proved that accused Sukh Ram had deposited an amount of Rs11,35,797/- in Saving Bank account No. 1402 Canara Bank, Mandi during the check period as shown at serial No.11 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet.
202 Prosecution vide Ex P-9 (D-49 (admitted) has proved that accused Sukh Ram had deposited an amount of Rs.50,929/- in Saving Bank account No. 4053 in H P Cooperative Bank Shimla during the check period as shown at serial No.12 of details of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet.
203 Prosecution vide Ex P-11 (D-50 (admitted) has proved that accused Sukh Ram had deposited an amount of Rs73,753/- in Saving Bank account No. 27,008/- P NB Shimla during the check period as shown at serial No.13 of details of 89/150 90 immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet.
204 Prosecution vide Ex P-10 to P-13 (D-50 (admitted) has proved that accused Sukh Ram was having three FDRs total value Rs. 4,95,933/- of PNB as shown at serial No.14 of immovable and movable assets held by accused at the end of check period as mentioned in the charge sheet.
205 According to prosecution accused was having one FDR of Rs. 20,000/- in SBI , Main Branch, New Delhi as shown at serial No.15 of details of immovable and movable assets at the end of check period as mentioned in the charge sheet, however prosecution has not produced any evidence to prove it, even my Ld. Predecessor has not put any question in this regard to accused in his statement recorded U/s 313 Cr PC. In these circumstances this court is of opinion that prosecution failed to prove that accused was having this FDR at the end of check period.
206 Prosecution has proved Ex PW48/A (D 24 (I) and produced PW48 Sh. P N Khanna and PW46 Sh. Amitabh Shukla to prove that cash of Rs. 4,00,000/- was recovered from Locker No.6 in the name of Ram Devi w/o Accused Sukh Ram, Syndicate bank, RK Puram New Delhi as shown at serial No.16 of immovable and movable assets at the end of check period as 90/150 91 mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that he has no knowledge (Q86). Accused has produced certified copy of the order of Income Tax Appellate Tribunal, New Delhi (Bench B) of April, 2003 titled Mrs. Aruna Vashisht Vs. ACIT, Co. Circle 2 , ITA No. 260/DEL/1997. It is argued that Ld, Income Tax Appellate Tribunal has held that this amount of Rs.4 lac belongs to Mrs. Aruna Vashisht, hence, it cannot be included in his assets. In para No.12 of this order it is held as follows;
"No doubt that the locker was in the name of Smt. Ram Devi, the mother of the assessee but from the day one, the stand has been taken by the assessee as well as the mother of the assessee that the locker No. N-6 obtained from Syndicate Bank belongs to the assessee. Therefore, it cannot be said that this contention of the assessee and the mother of the assessee was an after thought. Therefore, in view of these facts and circumstances and in view of the judicial pronouncements indicated above, we hold that the amount of Rs. 4 lakhs found in locker opened in the name of the mother of the assessee was belonging to the assessee. Likewise, the amount of Rs.23,000/- deposited in the bank account was also belonging to the assessee. The amount of gift of Rs. 1,12,000/- was also belonging to the assessee as the same was out of the amount of Rs.8,03,545/- received by the assessee over a period of 11 years as stated above. The remaining amount of Rs. 2,68,542/- as held by the AO that no 91/150 92 amount was available with the assessee, is also not correct because the same was available out of the amount of Rs.8,03,545/-. Accordingly, the addition made by the AO on protective basis and on substantive basis totaling to Rs.8,03,545/- is hereby deleted."
207 In view of the above finding given by Ld. Income Tax Appellate tribunal that the amount of Rs.4 lakhs found in the locker in the name of Smt. Ram Devi mother of appellant Aruna Vashisht belongs to Smt. Aruna Vashisht, this amount cannot be included in the assets of accused.
208 Prosecution vide Ex PW 48/B (D-24(ii) ) and from the statement of PW48 Sh. P N Khanna and PW46 Sh. Amitabh Shukla has proved that jewelery valuing Rs. 4,50,000/- was recovered from Locker No.6 in the name of Ram Devi w/o Accused Sukh Ram, Syndicate Bank, RK Puram New Delhi ( No serial number has been mentioned against this entry in the list of immovable and movable assets at the end of check period as mentioned in the charge sheet in order to avoid confusion I am also not giving any separate No. to this entry ) Accused in his statement recorded U/s 313 Cr PC has stated that he has no knowledge and further stated that valuation report has not been correctly prepared. Thus it is clear that accused has not denied it specifically (Q86). Ld. Senior Counsel Sh. K T S Tulsi argued that this jewelery has been valued at Rs.4,50,000/- on the basis of 92/150 93 its current value. Prosecution has neither established when the jewelery was purchased nor cared for determining the age of jewelery, thus, it cannot be held that it was acquired during the check period. According to prosecution this jewelery was found in the locker of Smt. Ram Devi w/o accused Sukh Ram and it was acquired by accused during the check period. According to accused it is an old jewelery, accused has not produced any evidence in this regard. Our Hon'ble Supreme Court in State of Madhya Pradesh Vs. Avadh Kishore, AIR 204, S C page 518 has held as follows:
" Prevention of Corruption Act (49 of 1988), S.13 (1) (e) - Acquisition of disproportionate Assets by public servant - Expression 'known source of income' in S. 13 (1) (e) - Does not mean sources known to accused - Burden is cast on accused not only to offer plausible explanation as to acquisition of large wealth
- But also to satisfy Court that explanation is worthy of acceptance - Term 'income' - Meaning of."
209 It must be in the special knowledge of accused or his wife when this jewelery was acquired. Neither accused nor his wife appeared in the witness box to depose that it was her old jewelery or it was her stridhan. Even no suggestion has been given to PW 46 or 48 that it was old jewelery purchased prior to the check period. In these circumstances this court is of opinion that prosecution has proved that this jewelery belongs to Smt. 93/150 94 Ram Devi.
210 Prosecution vide Ex PW 9/C (D-14) and from the statement of PW9 Sh. T Bhattacharya, PW44 Parveen Kumar PW46 Amitabh Shukla and PW 60 B S Jakhar have proved that Rs.2,45,28,844/- were recovered in cash from house No.12 Safdarjung Lane New Delhi as shown at serial No.17 of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that only cash available in small steel almirah in my bed room belong to my wife . An amount about Rs.3,44,950/- recovered from the room of my daughter belong to her. Rest of the amount did not belong to him . Alleged recovery was made from the Guest Room and attached store room which was in the possession of Congress Party and wherein its election office was being run, possession of which was given to Sh Shiv Kumar Mishra at the instance of Sh Sita Ram Kesari then AICC Cashier and Sh B P Maurya the then General Secretary of Congress party (Q31).
211 Prosecution vide Ex PW 45/A and PW3/B (D-19) and from the statement of PW45 K K Goyal and PW 3 Sunil Dutt have proved that Rs.1,13,51,520/- were recovered in cash from house of Sukh Ram at Mandi as shown at serial No.18 of immovable and movable assets at the end of check period as mentioned in the 94/150 95 charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that only cash available in his house at Mandi was about Rs.30,000/- which was recovered from the room of his son Anil Sharma . Rest of the money alleged to have been recovered does not belong to him. It was the election fund of the Congress party send by Sh Sita Ram Kesari the then Cashier of AICC to election office being run by Sh Tirath Ram Sharma in two rooms at first floor. (Q60).
212 Recovery of the above said two amounts from house No. 12 Safdarjung Lane, New Delhi and from the house of Sukh Ram at Mandi has not been disputed on behalf of accused, however, it is claimed that Sh. B P Maurya, the then General Secretary of Congress and Sh. Sita Ram Kesari, the then Treasurer of AICC had secured the consent of accused for setting up camp election office at 12 Safdarjung Lane, New Delhi and in the house of accused at Mandi in Himachal Pradesh for the assembly election to be held in UP and J & K in September/October, 1996. Camp Election Office was established in Guest Room and side room/pooja room attached with the guest room having attached latrine and bath room at 12 Safdarjung Lane and two rooms on the first floor in the house at Mandi, all the above said amount was recovered from the camp election office of Congress, thus the amount belonged to the Congress Party. Ld. Senior Counsel, in this regard, has referred the statements of PW 20, PW-33, PW-42, 95/150 96 PW-45 and PW-47 and argued that from the cross examination of these prosecution witnesses it is proved that Congress Party was maintaining Camp Election Office in both the premises.
213 I have carefully gone through the statements of these witnesses. PW20 in his cross examination has stated that he knew Tirath Ram Sharma. He does not know when the house of Sukh Ram was raided. He had gone to the house of Sukh Ram in the end of July or first week of August, 1996. He had met Tirath Ram Sharma in the house of Sukh Ram at Mandi. This witness has specifically deposed as follows;
"I do not know if he was functioning Election Office from the said house."
214 This witness has not deposed as to why he had gone to the house of Sukh Ram at Mandi in the end of July or first week of August, 1996. This witness was the then Patwari. He has been produced by the prosecution to prove the revenue record. He has not disclosed above said facts in his statement recorded U/s 161 Cr PC.
215 PW33 Sh. Partap Chand Sharma, SDO, Electricity, Himachal Pradesh has been produced by the prosecution to prove the electricity charges paid by Sh. Sukh Ram. In his cross examination, he has stated that in July, 1996 Sh. Anil Sharma S/o 96/150 97 Sh. Sukh Ram Sharma was a Minister in Himachal Pradesh. He made a complaint about excessive billing and asked him to check the wiring, hence he alongwith wireman Bhagat Ram went to check the wiring. In his cross examination he has deposed as follows:
"The next room was the drawing room which was open and renovation was going on there. I checked the wiring of the drawing room. The next room was open and 2/3 persons were sitting there. One of them was Tirath Ram Sharma who was known to me. I checked the writing of that room. I had a talk with Tirath Ram Sharma. He told me that he had been sent there by Shri Sita Ram Kesari for election work. There was another room after that which I did not see."
216 This witness was SDO of electricity department. If there was excess billing job of electricity department was to check the meter so as to find out the fault for excess billing but not to check the wiring of the house of consumer, whosoever he may be. This witness has deposed that he had gone to the house of accused in July, 1996 and claimed that Tirath Ram Sharma met him there who told him all the above quoted facts, however, Tirath Ram Sharma has been produced in the witness box by accused as DW
-13. In his examination in chief he has specifically deposed that he had taken over the possession of two rooms either on Second August or third August, 1996. Relevant portion of his 97/150 98 examination in chief is as under:
" Possession was handed over to me either on seecond August, or third August, 1996".
217 Thus, the claim of PW 33 that he had met Tirath Ram Sharma in July, 1996 who told him that he had been sent by Sita Ram Kesari for election work, proves to be false. This witness has not stated a word in his statement recorded U/s 161 Cr PC, in this regard.
218 Prosecution has produced PW42 Ram Bahadhur who was working in the house of accused Sukh Ram w.e.f. 1992 to 1996 as chowkidar to prove the expenditures made by accused during the check period on him. In his cross examination he has stated that in July, 1996 accused Sukh Ram and his son were not present in their house in Mandi. In August, 1996 Tirath Ram Sharma was maintaining Congress Party Office at the top floor of the house in Mandi where he was working as chowkidar. In the month of August, late in the night 2/3 persons had come. He was woken up to take their luggage inside. He had taken 7/8 attachies from the car of one person Mr. Sharma. In his cross examination on behalf of prosecution this witness has admitted that he had not disclosed these facts as deposed by him in his cross examination to the CBI, in his statement recorded U/s 161 Cr PC.
98/150 99219 PW45 Sh. K K Goel, in his cross examination has stated as follows:
" When the CBI team reached at the house of Sh. Sukhram, we found 6/7 persons sitting at the compound of the house. The CBI Officials enquired from those persons about their identities and the reason of their presence over there. I do not know which of the CBI official made enquiries from them. I do not know as to what was the distance between us and the CBI officials. We could not hear the talk between the CBI officials and the persons present in the compound. I cannot either admit or deny the suggestions that on query by the CBI officials those persons informed that they were there to take election material for elections to be held in Jammu and thereafter they were asked to leave the place by the CBI officials, on which they left."
220 From the above quoted statement of this witness it is clear that he could not hear the talks between CBI officials and the persons present in the compound.
221 Much reliance has been placed by Ld. Senior counsel on the statement of PW-47 Lekh Ram Sharma during the course of argument. It is argued that from the statement of this witness it is proved that Congress Party was maintaining Camp Offices at the premises of accused and election material was supplied at 12 Safdarjung Lane in presence of this witness. Ld Senior counsel 99/150 100 has argued that statement of L.R Sharma with respect to his conversation with Mr B P Maurya is admissible in view of the fact that Mr Maurya expired in the year 2000 and therefore could not be produced as witness. It is argued that secondary evidence of a witness who cannot be produced is relevant under the evidence Act . Ld Defence counsel in this regard has placed reliance on Sudhakar v. State of Maharashtra(2000) 6 SCC 671 ( para No 3.4 of written submission filed on behalf of accused ) I have carefully gone through the statement of this witness. In his examination in chief he has stated that he knew accused Sukh Ram since 1985 as he belonged to Mandi Constituency. He was asked by Sukh Ram to supervise construction work. Relevant portion of his examination in chief in this regard is as under:
" I know Shri Sukh Ram, present in court since 1985. Family member since as I belong to Mandi constituency where from Mr Sukh Ram elected from that constituency in 1985. I had no business dealing with him. I was told by Mr Sukh Ram to supervise the construction work at Mandi and Kaushambi, D-42 Ghaziabad. Again said I was asked to supervise the renovation work at Mandi, as well as Mayfair Hotel."......................................
222 He has also stated that he used to received money from 12 Safdarjung Lane and had received Rs.39,90,000/- from Smt Ram Devi and Sukh Ram at the relevant time which shows that he was close confident of accused.
100/150 101223 In his cross examination he has stated as follows:
" In the year 1993 I was desirous and anxious to contest the election of Vidhan Sabha in Himachal Pradesh. I knew Shri B P Maurya, Genl Secretary of AICC. I had a close relation with him. I also conducted a rally for him. Mr Maurya had introduced me to Shri Sita Ram Keshri. Shri Maurya had discussion with me about election to be held in UP and J&K about regarding election material. At that time Mr H D Devgora was the Prime Minister of India. It is correct that the relations between Devgora the then PM and Mr Narsimha Rao, Ex P,M had become stained as Congress party had not joined the Govt. I had suggested to Mr Maurya that the residence of Mr Sukh Ram at 12 Safdarjung Lane New Delhi and that of at Mandi , be utilized for election purposes to be held in two States, since Pt Sukh Ram was going abroad.
I know Shri Tirath Ram Sharma and Shiv Kumar Mishra of the Congress party. It is correct that Shri Tirath Ram Sharma was appointed for Mandi residence and Sh Shiv Kumar for Safdarjung Lane house. I do now know for what purpose Mr Sukh Ram had gone abroad. However, he had gone abroad, in the first week of August 1996. I used to visit both the residence premises in the absence of Mr Sukh Ram. In August, 1996 in second week, I was called by Mr B P Maurya at the office of AICC at Akbar Road, I went there . Mr Maurya met me. One Mr Chander Sharma also 101/150 102 met me. From there, we went to Mr Sita Ram Keshri. I remained in the car. Mr Chander Sharma and Mr Maurya went inside. After half an hour, they came back, along with election material and then we went to 12 Safdarjung lane. The election material was in some gunny bags and suitcases. Mr BP Maurya asked me to go to Mandi. I refuged. He then asked Mr Chander Sharma to go to Mandi and hand over the election material to Tirath Ram Sharma in Mandi. We met Mr Mishra on reaching Safdarjung Lane. I had not talked with Mr Mishra . The election material, which was brought from the house of Sita Ram Keshari, was handed over to Mr Mishra."
224 This witness has specifically deposed that he remained in the car while Chander Sharma and Maurya had gone inside . They had brought election material which was in some gunny bags and suitcases. It is in the defence evidence that 25 to 26 boxes were alleged to be delivered at Delhi along with gunny bags and 12 boxes / attachies and one gunny bag had been alleged to be delivered at Mandi. Even according to recovery memos of the cash seized at Delhi and Mandi it is clear that an amount of Rs 2,06,49,630/- was recovered from 23 suitcases from the Pooja Room at 12 Safdarjung Lane and Rs.1,13,51,520/- contained in 12/13 suitcases recovered from house at Mandi. Even PW 42 Ram Bahadur who was working as Chowkidar in the house of accused at Mandi has stated that he had taken out 7/8 attachies / 102/150 103 briefcases from the car to the house . PW 42 has also stated that 2/3 person had come. Man may tell lie but not the circumstances, It is beyond imagination that this much luggage can be carried in a car.
225 PW47 has not stated even a single word, about the facts which he has stated in his cross examination , in his statement recorded U/S 161 Cr PC . An attempt has also been made to explain it in the cross examination which is clear from the following portion of his cross examination:
" I was interrogated by the CBI. I was not asked by the CBI about the election material. Therefore I had told these facts to CBI. CBI seized my car . It was released to me after six years. It is wrong to suggest that I am deposing falsely. Some of the bags were sent to Mandi."
226 From the statement of this witness it is clear that he was a close confident of accused and was ready to help the accused to any extent and actually supported the accused by admitting his entire defence in cross examination which he has not disclosed even in his statement recorded U/S 161 Cr P C. 227 In view of above discussion this Court is of opinion that statements of PW20, PW33, PW 42, PW45 and PW47 cannot be relied upon to prove that Congress party was maintaining 103/150 104 Election camp office at the premises of accused in Delhi and Mandi.
228 Ld Senior Counsel argued that in a criminal case accused has to prove his defence by mere preponderance of probability. He has referred the statement of DW 10 Shiv Kumar Mishra , DW.13 Tirath Ram Sharma. DW 11 Ritu Sharma DW 16 Anil Sharma and argued that these DWs have also proved that Congress party was maintaining its election camp office at the premises of accused in Delhi and Mandi.
229 DW10 Shiv Kumar Mishra has stated that he was working as Additional P S of Mr B P Maurya and usually remain present in Press conference of Mr Maurya. Sh Sita Ram Kesari had assigned the duty of conducting election and setting up of election office to Mr Maurya. Accused was also present at the time of deliberations. Camp office was set up in the last week of July and August 1996. He had been designated incharge of that office. He had been provided one guest room with attached latrine bathroom and attached room thereto. On 8/9 August B P Maurya , Chander Sharma and L R Sharma had brought some funds for election in 22/23 brief cases/attachies and handed over to him. He had kept the briefcases in one almirah in guest room and two Almirahs in side room and on the floor of side room. Fund was to send UP with the permission of Mr. Kesari and Maurya.
104/150 105Almirahas in the side room were in possession of Pandit Sukh Ram. Keys of almirahas of the side room were in possession of the daughter of Pt. Sukh Ram. Keys of almirah of guest room was with him. On 16.8.96 CBI had conducted raid and seized the cash. He had informed Mr. Maurya and Mr. Kesari, in this regard. Mr. Maurya had suggested that when it was party fund they should accept it but Mr. Kesari had told that it was not possible. Mr. Maurya had a press conference in which he was also present wherein Mr. Maurya had stated that it was party fund before the Journalists and persons from TV channels. In his cross examination he has stated that he was working as additional PS to Mr. Maurya w.e.f. January, 1996 to December, 1997 who was the then General Secretary of AICC. He had denied the suggestion that Mr. Maurya was removed from the post of General Secretary immediately, however voluntarily stated that he was removed after sometime and not immediately.
230 In this regard, DW 5 Jaswant Singh, Clerk AICC has stated as follows:
"Sh. B P Maurya was appointed as General Secretary of AICC on 4.10.95 and he continued as such till 20.1.96."
231 DW-10 in his cross examination has stated that he has not narrated the incident in writing to Prime Minister of India, President of India, Home Minister of India, Director CBI or any 105/150 106 other competent authority. He has voluntarily stated that he had orally stated to P V Narsimha Rao. He has denied the suggestion that Mr. Narsimha Rao, B P Maurya and Sita Ram Kesari, in their statements, denied the claim of Sukh Ram that it was Congress Party money.
232 This witness was shown the CD of Press Conference organised by Sita Ram Kesari and B P Maurya. With regard to CD this witness has stated as follows in his cross examination:
" It is correct that as per recording in CD Sh. Sita Ram Kesari has said that he (Sukh Ram ) wants to throw the blame of his own vices on the head of the party, it is a shameful act on the part of Sukh Ram. Vol. However, this interview was not conducted in my presence.
It is correct that as per recording in CD Sh. V P Maurya has said "Ho Sakta Ye Rupiya Kisi Ki Dharohar rakha ho". "Ho Sakta Hai Ye Party Ka Rupiya Ho". "Ho Sakta Hai Ye Brastachar ka Rupiya Ho". "Kuchh abhi tho kaha nahi ja sakta na" "Ye.. Ho sakta hai ki party fund me aaya ho, aur vo bimari ke liy chale gaye, aur vo adjustment nahi ho paya".
Volunteer in this press conference Maurya has stated that it was the party fund money. It is correct that these lines are not mentioned in this CD, Volunteer it is incomplete and edited CD. I am having no CD with me in which Mr. Maurya had stated so. I am not having copy of any statement prepared by the secretary of 106/150 107 Mr. Maurya in which it has written so, Volunteer this press conference was organised all of sudden when Pt. SukhRam was suspended from Congress. It is incorrect to suggest that in order to help Pt. Sukh Ram I have stated that V P Maurya has made statement that this money belongs to party."
233 PW13 Tirath Ram Sharma has deposed that election camp office was established in the house of Pt. Sukh Ram at Mandi. He had been appointed Incharge of the election camp office. Anil Kumar s/o Pt. Sukh Ram had given him the possession of two side rooms to establish camp office for election on 2nd August or 3rd August, 1996. He had received telephonic call from Mr. Maurya and Sita Ram to remain present in the office as they were sending some election material and funds. One Mr. Chander Sharma had brought material and fund on 9.8.96 at about 11.30 mid night. Chander Sharma had told him that those briefcases contained amount of Rs.1,25,00,000/-. On16.8.96 he came to know that CBI had raided the house of Sukh Ram. He had told CBI personnels that he was holding camp office but he was not allowed to enter. He had telephoned to Delhi and informed about the raid. In his cross examination this witness has stated that he could not produce any documentary evidence with regard to his appointment as General Secretary of Congress Party, Distt. Mandi, Himachal or documentary proof with regard to asking him by Sh. Sita Ram Kesari and Mr. B P Maurya to set up 107/150 108 election office. He cannot produce any documentary proof with regard to writing letters to Congress Party President, General Secretary, PM and President of India.
234 This witness has stated that he has received a fund of Rs. 1,25,00,000/- while there is recovery of only Rs. 1,13,51,520/- from the house of accused at Mandi. No explanation has been given by this witness as to where the remaining money had gone. This witness has also been shown CD having interview of Sh. Sita Ram Kesri and Mr. B P Maurya. After seeing and hearing the CD he has stated in his cross examination as follows:
"I have heard the voice of Mr. Kesari and Mr. Maurya and also identify them in the CD.
Q That in the CD Ex PW3/1A which is played to you now that Sh. Sukh Ram wants to throw blame of his own voices on the head of the party. It is shameful act on the part of Sukh Ram. Ans: It is correct that Mr. Kesari had said these words. Vol. But he has not said that it was not party fund.
It is correct that Mr. B P Maurya in the said CD has said "Ho Sakta Hai Ye Rupiya Kisi Ki Dharohar rakha ho". "Ho Sakta Ha Yeh Party ka Rupiya ho". Ho sakta hai ye bharashtachar ka rupiya ho", "Kuch Abhi to kaha nahi ja sakta na", "Ye Ho Sakta Hai ki party fund mein aya ho aur vo bimari ke liye chale gaye", Aur vo adjustment nahi ho paya".108/150 109
It is incorrect to suggest that I had made a false statement that money was brought by Chander Sharma and handed over to me or that there was no party office opened at the house of Pt. SukhRam at Mandi. It is incorrect to suggest that I was not deputed by Sh. Sita Ram and Mr. Maurya to look after the election camp office at Mandi.
Q Sh. Kesari and Mr. B P Maurya had not said that the money recovered from the premises of Pt. Sukh Ram was sent by them for election purposes or otherwise. (objected to as the witness cannot confronted or asked with reference what is stated in the CD attributed to Sh. Kesari and Sh. Maurya and same being the contents of CD itself)."
Ld. SPP argued that CD has already been played to this witness which is produced in defence evidence hence witness is being confronted with the same. (Objection over ruled. Request allowed).
Ans: It has not been denied by both these persons that it was not the party fund.
Q Both, Sh. Kesari and Maurya had not said that it was a party fund.?
Ans: They have stated that it may party money or it may be some entrustment money.
It is incorrect to suggest that I have made statement in order to help Pt. Sukh Ram at his instance."
109/150 110235 It is argued on behalf of accused that CD produced in this Court is an edited one, hence no reliance can be placed on it. Accused himself summoned this CD through DW-3 K V L Narain Rao. In this regard, following portion of his statement is as under:
"Our TV Channel takes interview of various persons in relation of the news. We have got broadcast quality camera system. Reporter and camera person go to the spot where the news is there. The recorder comes back to the studio and then it is telecast. The story which go on air, we maintain a record. I am aware that an interview was taken of late Sh. B P Maurya, the then General Secretary, AICC in relation to the news about alleged recovery of cash etc. from the premises of Pt. Sukh Ram. Vol, that I being Chief Executive shall not be aware of the details of interview. The interview was recorded and preserved initially on a video tape and then we go on transferring interviews/news on DVD to preserve the same. The said DVD has been brought to me today in the court. It contains the story about the news item including the interview of Sh.B P Maurya. It does not containany news item.
Q Please tell if it is unedited recording of the interview of Sh. B P Maurya as aforesaid?
Ans: This is edited story which went on air and the DVD brought by me contains the complete story which went on air.
Every story is edited before it goes on air and similarly, in this case also there might have been the editing of the story before 110/150 111 it went to air. I cannot say if the original video tape is available or not."
236 He has further deposed as follows, in his examination in chief:
"The original video tape (at that time) was the unedited record of the interview. Vol. That is the story footage from that interview is taken. The DVD is Ex D-3/1."
237 In this regard, statement of DW8 Sh. Deepak Chaurasia is also relevant which is as follows;
"I had taken the interview of Sh. B P Maurya, the then General Secretary of AICC in connection with the searches at the house of Pt. Sukh Ram, the then Communication Minister, Govt. of India. A tape was recorded as per guidelines issued by the Ministry of Information and Broadcasting, the CD are destroyed after three months until and unless any designated court or enquiry agency requests the broadcaster to preserve the same."
238 Thus, from the above discussion, it is clear that accused himself has summoned the CD in his defence evidence. It is well settled legal preposition that a party who produces a particular evidence is bound by the same. Our Hon'ble High Court in M/s Rudnap Export-Import V. Eastern Associates Co. and others, AIR 1984 DELHI 20 has held as follows:
111/150 112"Evidence Act (1 of 1872) S.61 - Document filed by a party
- It can be looked into at the instance of opposite party - No proof thereof is necessary."
Similar view has been expressed by our Hon'ble High Court in K K Dhawan Vs. Dr. Promila Sunali, 1997 Rajdhani Law Reporter 608 which is as follows:
"If a person's document or letter is on record but is not exhibited then this may be read in evidence against him."
239 Thus, in my view, now the objection raised on behalf of accused that the tape is edited one is meritless. In view of above discussion this court is of opinion that evidence of both these witnesses is insufficient and unreliable to prove that they were maintaining Camp Election Office of Congress Party in the premises of accused at 12 Safdarjung Lane, Delhi and in his native house at Mandi.
240 Chander Sharma has been produced as DW12. His examination in chief was recorded on 27.3.2008 and his cross examination was deferred. Thereafter this witness has not appeared in the witness box. Prosecution has not received opportunity to cross examine this witness. Finally Ld. Defence counsel has given up this witness.
241 DW11 Mrs. Ritu Sharma, daughter of accused Sukh 112/150 113 Ram has stated that on 4.8.96 her father and mother had gone to USA. Before going to USA her father had handed over one room, one store and attached toilet to Shiv Kumar Mishra. She has not named the pooja room given to Shiv Kumar Mishra. She has further stated that on 16.8.96 CBI personnels raided the premises. They had allowed her to call Munshi Ram who was the PS of her father. They had enquired about the keys of the locked rooms. Guest Room which was with Mr. Mishra was also locked. She told them that keys were with Mr. Mishra and she can call him but they did not allowed her to call Mr. Mishra as she had already called Mr. Munshi Ram. She has further deposed in her examination in chief as follows:
"The store was inside the guest room and toilet was attached. Store room was also locked. They broke open the lock, after calling the person for breaking the lock, firstly, that of guest room. Lock of steel almirah which was in the guest room was also broke open. They had taken out two briefcases from that Almirah. They had asked for keys of briefcases from me but I had told them that I was not having any keys of briefcases. I was having only knowledge with regard to the keys of guest room which was with Mr. Mishra but I was not aware about keys of other articles. Lock of attached store room was also got broke open. Briefcases were also present in that store Keys of two cupboards in that store room was with my mother which was 113/150 114 known to me. They had also broke open those two cupboards. In those cupboards some jewelery of my mother was there alongwith her clothes etc. and household articles. They broke open briefcases etc. and found cash. They had collected all these in drawing room. I was scared. Many persons were there. About 3-4PM I T officials had also reached there. I T (income tax) persons had also questioned me. I told them the same thing which I had disclosed to CBI Personnels. "
242 In her cross examination she has stated as follows:
"I and Munshi Ram were together present when the guest room, store room was searched. Munshi Ram was with them throughout. He used to come to me to enquire about my help off and on. He was asked to count the money. Signature of mine and Munshi Ram were taken on all the papers with regard to search. Signatures of mine are at point B on all the pages and that of Munshi Ram at point A on Ex PW9/B on all the pages."......
......" It is correct that they had also given copies of these documents to us after completion of the proceedings."
........."I did not report to anybody till date in this regard. The statement made by me voluntarily in this court today. I have stated in this court only today. Guest Room was totally furnished."......
114/150 115............." the articles mentioned from item No.1 to 22 were recovered from Pooja Ram/store room. Pooja Room/store room is different than other rooms.".....
....." I had given my statement to income tax Authority on oath correctly whichever they had asked from me.".....
243 I have carefully perused observation memo Ex PW9/A dt. 16.8.96 of house No. 12 Safdarjung Lane, New Delhi. An amount of Rs.2,06,49,630/- was recovered from Pooja Room. Contained in 23 suitcases. An amount of Rs. 26,70,000/- as shown at serial No.14 (VIII) and an amount of Rs. 1,64,764/- as shown at serial No.14 (IX) and an amount of Rs.5,39,500/- as shown at serial No.14 (X) was recovered from guest room contained in three briefcases. A cash of Rs.1,60,000/- as shown at serial No.30 (VIII) was recovered from the bed room of Sukh Ram. A cash of Rs. 3,44,950/- was recovered from the bed room of Mrs. Ritu Sharma as shown at serial No.20 at page 10 of the Observation Memo.
244 The articles recovered from Pooja room are as follows:
1 One Steel Almira containing three suit length , miscellaneous cosmetics, six sarees, 24 silver coins, one torch, poloride camera , Sony walkman , Portable colour TV Citizen.115/150 116
2 One pistal PA 63 Registration No is BH-3598 alongwith 29 bore containing 384 bullets.
3 10 bottles of scotch of foreign make one bottle of wine 4 One steel almirah containing seven coats and pants and towels toilattaries .
5 Sony compact disc player.
6 One attachee case containing gift items 7 One suitcase containing woolen and sarees. 8 One suitcase containing six shawls and two pullovers. 9 One eminent suit case containing gift items. 10 One Rexin suitcase containing two pullovers. 11 One Hallmark suit case containing .
12 One suitcase containing six sarees, four suits and chunnies. 13 Aristocrat suit case containing ladies suits and shawls. 14 Large suitcase containing woolen .
15 Skybag suit case containing woolen and shirts. 16 VIP suit case containing four suit length and Kashmere Blankets.
17 One large suitcase containing woolens towels and bed sheets.
18 One Magnum suitcase containing woolen cloths. 19 One large suitcase containing miscellaneous woolen clothes.
20 One big travel suitcase containing woolens 21 Various items, old jewelery for which a separate inventory 116/150 117 cum valuation report has got made from Govt approved. 22 23 suitcases big and small, One containing a total cash of Rs.2,06,49,630.00
245 I have perused the various articles recovered from the guest room as shown in Observation Memo Ex PW9/A which also shows that it was full of domestic articles. Mrs. Ritu Sharma, DW10 has fully corroborated this fact by stating in her cross examination that guest room was fully furnished. None of the article available in the guest room shows that it was being used as election office. List of the articles found in the pooja room also shows that it contained all the domestic articles. A pistol as shown at serial No.2 alongwith 384 bullets has been found in pooja room. 10 bottles of scotch of foreign make and one bottle of wine has also been found in the pooja room as shown at serial No.3. Had the pooja room was being used as election camp office these articles should not be there.
246 I have also carefully perused inventory/observation memo Ex PW45/C (D-18). With regard to search of residential premises of Sukh Ram at Shamkhetra Mandi, Himachal Pradesh and Seizure cum Search List Ex PW45/A (D-19) vide which a total amount of Rs.1,16,51,520/- was recovered contained in 12 boxes. From the perusal of both these memos it is clear that no 117/150 118 election material was found in the premises.
247 It is a case of disproportionate asset U/s 13 (1) (e) of PC Act, 1988. A Full Bench of Our Hon'ble Supreme Court in C S D Swami Vs. State has held as follows with regard to burden of proof in such cases:
"Section 5 (3) does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances- a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him."
It is further held in this authority by our Hon'ble Supreme Court as follows:
" The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "
satisfactorily", and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his larger wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
" The expression "known source of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It cannot be contended that "known source of income" means source known to the accused. The 118/150 119 prosecution cannot in the very nature of things be expected to known the affairs of an accused person. Those will be matters "
specially within the knowledge" of the accused."
248 Our Hon'ble Supreme Court in M Krishna Reddy Vs State (1992) 4 Supreme Court Cases 45 has held as follows:
" It is not the mere acquisition of property that constitutes an offence under S. 5(1) (e) but it is the failure of satisfactorily account for such possession that makes the possession objectionable as offending the law. To substantiate a charge under Section 5(1) (e) of the Act, the prosecution must prove the following ingredients, namely (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i e known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)
(e) is complete, unless the accused is able to account for such resources or property . In other words, only after the prosecution has proved the required ingredients the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused."119/150 120
249 Our Hon'ble Supreme Court in State of MP Vs Avadh Kishore AIR 2004 SC page 517 has held as follows:
" Prevention of Corruption Act (49 of 1988), S.13(1)
(e) - Acquisition of disproportionate assets by public servant-
Expression ' known source of income' in S. 13(1) (e) - Does not mean sources known to accused- Burden is cast on accused not only to offer plausible explanation as to acquisition of large wealth
- But also to satisfy Court that explanation is worthy of acceptance - Term income- Meaning of ."
" The Legislature has advisedly used the expression 'satisfactorily account.' The emphasis must be on the word ' satisfactorily' and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his larger wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
250 Ld. SPP relying upon the statement of PW29 Sh. P V Narsimha Rao argued that he has demolished the entire defence of accused by stating that no amount from party fund was ever transferred to any other place. Ld. Senior Counsel Sh. Tulsi argued that statement of this witness cannot be relied upon as opportunity to cross examine this witness has not been granted to accused.
120/150 121251 Statement of PW29 P V Narsima Rao was recorded on 6.11.2004 by the then Ld CMM Mrs Reena Singh Nag who was appointed commission to record his statement. Relevant portion of his statement is as under :
" Nobody is suppose to tell me about the transfer of Congress party fund to any other person. It is solely for the Treasurer to have control over the same. No Cabinet Minister ever told me after the fall of Congress Government regarding the shift of congress party funds to any other congress leader's house. Q After the fall of the congress Government did anybody included Sita Ram Kesari told you having kept / transfer the party fund to any other leader.
A Sh Keshari did not inform me nor anybody else informed me about the transfer of the party fund volunteered congress party fund is kept in bank normally and if for any reason the same is withdrawn and required to be taken over to some other place the control over it remains with the Treasurer. XXXXXXXXXXXXX ( by accused ) The accused has requested to defer the cross . Request declined for the reason that Mr Rao himself visibly unwell and for the reason stated in the order sheet .
Nil Opp. Given
RO&AC Sd/
121/150
122
CMM/ Delhi
252 Relevant portion of the order sheet dt. 6.11.2004 of
Ld. CMM who had executed this commission is as under:
"An application has been moved before the undersigned requesting for fixing some other date as Sh. P D Sharma, Ld. Defence Counsel is unwell as his blood sugar level has gone up resulting in high blood pressure because of which he is unable to attend the proceedings of the aforesaid case and has been advised complete rest which application has been moved by the accused himself. It may be mentioned that yesterday in the after lunch Session one application was moved by Ld. Defence Counsel Sh. D S Patial for giving some other date on the same ground as taken today. Notice was given through Sh. D S Patial but the same could not be served on the CBI so proceedings were ordered to be held today. Now the witness Sh. P V Narsimha Rao is present before me. He appears to be inaffirm and sick also and is aged about 84 years and it would not be in the interest of justice to defer the examination of the witness since Ld. Defence Counsel is free to move application U/s 311 Cr PC as per law if he so desires before Ld. Special Judge. It was in the knowledge of Ld. Defence Counsel that he would not be in a position to appear before the Commission for examination of the witness so he could have deputed some other counsel or accused could also have engaged/brought some other counsel. Moreover, it has not been 122/150 123 mentioned in the application for adjournment as to when Ld. Defence Counsel would be in a position to make himself available for cross examination of the witness. Sh. Rao has been brought before the undersigned by his aid as he seems to be unable to walk comfortably on his own. In these circumstances let the examination of the witness be proceeded with.
Sd/-
ADJ cum CMM Delhi.6.11.04.
253 From above order sheet it is clear that Mr. Rao was inaffirm and seriously ill. Every effort was made on behalf of accused to delay the recording of his statement. No cross examination of Mr. Rao was conducted on behalf of accused inspite of opportunity granted to him.
254 Afterword an application u/s 311 Cr PC was moved on behalf of accused for granting opportunity to cross examine Mr. Rao which was allowed by my Ld. Predecessor Sh. Dinesh Dayal and Ld. CMM was again appointed commission to record the cross examination of Mr. Rao. On 19.11.04 Ld. CMM fixed 27.11.04 for recording the cross examination of Mr. Rao. On 27.11.04 Ld. CMM had gone to the residence of Mr. Rao for recording his cross examination but his PA Sh. Chetan Sharma had informed that Mr. Rao was admitted in AIIMS, hence matter 123/150 124 was adjourned for 10.12.04. On 10.12.04 again Ld. CMM had gone to the residence of Mr. Rao but it was again informed by his PA Sh. Chetan Sharma that he was admitted in AIIMS hence the matter was fixed for 5.2.05 for recording of the cross examination of Mr. Rao. Unfortunately, Mr. Rao expired on 26.12.04, hence his cross examination could not be conducted.
255 In these circumstances, whether his statement can be relied upon or not has now become a legal question. Hon'ble High Court of Patna in Sri Kishun Jhunjhunwala Vs. Emperor, AIR (33) 1946 Patna 384 has held as follows:
"Evidence Act (1872) Sec. 33 - Applicability - witness dying before cross examination - Degree of weight to be attached to his evidence depends on circumstances.
It is further held that where a witness dies after examination in chief and before cross examination his evidence is admissible but the degree of weight to be attached to it depends on the circumstances of the case"
256 In this regard Hon'ble High Court of Allahabad in Ahmed Ali Vs. Jyoti Pershad, AIR 1944 page 188 has held as follows:
"Evidence Act S. 33 - Witness dying before cross examination that his evidence does not become inadmissible."124/150 125
257 In this regard, Hon'ble High Court of Calcutta in Devar Park Building Pvt. Ltd. Vs. Smt. Madhuri Jalan, AIR 2002 Calcutta, 281 has held as follows:
"Evidence Act (1 of 1872) Ss. 133. 33 - Evidence of person with unfinished cross examination - Admissibility - Evidence of defendant recorded on commission - cross-examination only partly held - death of defendant in meantime - His evidence would not be inadmissible - There is no provision under law that if witness is not cross-examined either in full or part his evidence would be absolutely rendered inadmissible - How much weight shall be attached should be decided considering other facts and circumstances surrounding it - Provision of S.33 would not be applicable in such case."
258 In this regard, our Hon'ble Supreme Court in Mulak Raj Sikka Vs. Delhi Administration, AIR 1974 SC page 1723 has held as follows:
" Where in a Sessions trial the witness whose deposition recorded by the committing Magistrate was sought to be brought on record, could not be found in spite of all reasonable steps taken, including the one taken by High Court during the hearing of appeal, and further although the accused had a right to cross examine that witness in the committing Court, his counsel had preferred not to cross-examine at that stage and had reversed it for the Sessions Court, both the conditions of Section 33 were 125/150 126 satisfied and the evidence of such witness recorded in committing Court was admissible in Sessions trial."
259 In view of above discussed law it is clear that the statement of late Sh. P V Narsimha Rao is admissible in evidence in this case, however, it is to be considered as to how much weight is to be attached to his statement.
260 Late Sh. P V Narsimha Rao was not at all enemical to accused. Rather, it is the case of accused that CBI wants to implicate Sh. P V Narsimha Rao for which it was forcing him to make a statement stating that this money belongs to Mr. Rao but as he has not obliged the CBI by making such false statement hence CBI has implicated him in this false case. In these circumstances why Mr. Rao will depose against accused falsely. Even otherwise, at the relevant time, when he had made this statement he was on the death bed, when every hope of this world is gone and every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. In these circumstances there is no reason to disbelieve his statement. This Court is of opinion that statement of Mr. Rao is reliable and can be used against accused.
261 Mr. B P Maurya and Sh. Sita Ram Kesari have expired during the pendency of this case. Mr. Sita Ram Kesari has 126/150 127 been cited as a witness in this case. His statement U/s 161 Cr PC has also been recorded. I fully agree with the contention of Ld. Senior Counsel that the statement of late Sh. Sita Ram Kesari U/s 161 Cr PC cannot be relied upon as he has not appeared in the witness box. Similarly, the statement of Mrs. Ritu Sharma recorded U/s 131 I T Act cannot be relied upon against accused in these proceedings as no chance has been given to accused to cross examine her.
262 PW46 has stated, in his examination in chief, as follows:
" During the interrogation, Mr. Sukh Ram told that money recovered belonged to Congress Party. But when I interrogated Sh. Sita Ram Kesari and Ahmed Patel they denied this fact and told that the money does not belong to Congress Party. "
263 Similarly, PW 63 Sh. H S Sandhu has stated, in his cross examination, in this regard, as follows:
"As far as I recollect Mr. Sukh Ram has mentioned that a part of his residential address at Delhi and Mandi were being used as office of Congress Party for the purpose of election to be held at UP and J K. Vol. That I investigated this part of the statement and that is why I interrogated late Sh. Sita Ram Kesari and late Sh. P V Narsimha Rao and both of them 127/150 128 categorically denied the same. (Objected to by the Ld. Defence Counsel on the ground that the statement is hit by Section 162 Cr. PC). It is correct that Pt. Sukh Ram had disclosed that cash recovered belonged to Congress Party election fund. (Vol. I have already answered this part was investigated and late Sh. Sita Ram Kesari and late Sh. P V Narsimha Rao were examined in this regard). I do not now recollect if Sh. B P Maury, the then General Secretary of the Congress Party had also made a statement about the cash recovered at the house of Pt. Sukh Ram. I do not remember if myself or any CBI officer working under me ever examined B P Maury."
264 These questions have been asked in cross examination of this witness and when the answers suitable to accused not received from this witness an objection of Section 162 Cr. PC had been taken, as recorded by my Ld. Predecessor. Ld. Senior Counsel Sh. Tulsi, with regard to conversation of PW 47 with Sh. B P Maurya, has argued that it is admissible, as discussed above, in this judgment. This Court is of opinion that on the same reasoning statement of PW 46 and PW63 with regard to their conversation with late Sh. Sita Ram Kesari and P V Narsimha Rao is also admissible in evidence against accused.
128/150 129265 It is argued that CBI was vindictive against the accused and harassing him to obtain a statement from him against Sh. P V Narsimha Rao. CBI has also falsely implicated his son Anil Sharma in a criminal case vide R C No. 6 of 1996 which later on got canceled by CBI. Accused has produced Anil Sharma in his defence evidence as DW-6 who has stated as follows, in this regard:
"SP had told me to inform my father to state that money was got kept by Mr. Narsimha Rao. I tried to talk my father who was abroad and informed him what Mr. Sandhu had told me. My father had told me that he will tell the facts about him after coming back from abroad. He had stated that he will not made any such statement as desired by CBI. I had met again with Mr. Sandhu with the message of my father. Mr. Sandhu had told me that if we will not state so then case will also be registered against me. Thereafter, case was also registered against me vide R C No. 6 of 1996. I had to secure anticipatory bail from High Court. Thereafter, in order to pressure me CBI had challenged that order of my bail in Hon'ble Supreme Court. CBI had got canceled my bail from Supreme Court on technical ground. CBI had not arrested me thereafter. The case against me was investigated by CBI and after three months they had tot that case canceled. Certified copy of the No Objection Certificate for cancellation of FIR dt. 23.4.99 and order of the Special Judge, 129/150 130 Shimla dt. 30.6.99 in this regard I am placing on the file."
266 In his cross examination he has stated as follows:
" I had not gone through the report filed U/s 173 Cr PC by the CBI in the Court of Special Judge, Shimla for cancellation of the case. It is correct that my case was canceled as it did not fall in the category of disproportionate assets as the assets were within 10.4% of my total income according to the case of prosecution."
267 The very fact that CBI after investigating the case reached to the conclusion that no case of DA made out against Anil Sharma as his assets fall within 10.4% of his total income proves that CBI was not vindictive against accused or his family members, had it not been so why the CBI in its investigation reached to the conclusion that no DA case made out against Anil Sharma. In these circumstances this court is of opinion that CBI has not falsely implicated family members of accused.
268 Last but not the least, the defence taken by accused even does not appeal to common sense as to why the Congress Party would establish a camp office at the residence of accused Sukh Ram in Delhi and Mandi for elections to be held in J & K and UP, when Congress party has its regular office in Delhi and the then Treasurer of Congress Party, Sh. Sita Ram Kesari was 130/150 131 also having his residence in Delhi, in such circumstances there was no need for holding a separate camp office for election at the residence of accused Sukh Ram. Similarly, when the elections were to be held in J & K and UP what was the need of establishing election camp office at Mandi at the residence of accused Sukh Ram. Had there been any need of establishing camp office for the elections to be held in UP and J & K camp office would have been established in UP and J & K but not in Himachal Pradesh.
279 From the above discussion, this court is of opinion that prosecution has proved its case with regard to recovery of cash of Rs. 2,45,28,844/- from the official residence 12 Safdarjung Lane of accused Sukh Ram in Delhi and cash of Rs.1,13,51,520/- from the house of accused Sukh Ram at Mandi, Himachal Pradesh which belongs to him, there is no merit in the defence taken by accused.
270 It is argued by Ld. Senior Counsel Sh. Tulsi that prosecution has failed to prove the conscious possession of the money recovered from the premises of accused Sukh Ram. Possession is a polymorphous term which may have different meaning in different contexts. It is impossible to work out a completely logical and precise definition of it (possession) so as to uniformly applicable to all situations in the context of all statutes.
131/150 132271 In view of above discussion prosecution has well proved that this amount was recovered from the premises of accused Sukh Ram. It is well settled legal preposition that once the possession is established, burden lies on a person who claims that it was not in his conscious possession to prove it because it was within his special knowledge as to how it came in his possession. Hon'ble Supreme Court in Megh Singh Vs. State of Punjab, AIR 2003 SC 3184 with regard to conscious possession has held as follows:
" The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. S. 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of S.54 where also presumption is available to be drawn from possession of illicit articles."
272 In Gopal Dass Udho Dass Vs. Union of India, AIR 2004 SC 3830 our Hon'ble Supreme Court, in this regard, in para No.19 it is held as follows:
" Since possession was an offence, knowledge in possession of the unauthorised article was an essential ingredient of the said 132/150 133 offence. Where a statute forbids an act doing of that act itself supplies mens rea. In such a case, the prosecution need only to prove commission of the prohibited act and it for the person concerned to bring himself within the statutory defence, which in the present case was provided for in the proviso to S. 71 (1). However, in view of S. 98-B, the accused had to prove beyond reasonable doubt that he had no knowledge in the possession of the unauthorised article. "
273 In this regard, our Hon'ble Supreme Court in P K Arjunan Vs. State of Kerala, AIR 2007 SC 2331 has held as follows:
"Kerala Abkari Act (1 of 1077) S.55, S. 64 - Possession of forbidden articles - Burden to prove that possession was conscious - Not on prosecution - Burden lies on accused in view of presumption under S. 64."
274 Prosecution has proved Ex PW56/C to Ex PW56/F and Ex PW55/A and B and Ex.PW56/P (D-28, D-29, D30 and D
-65)and produced PW56, Rishi Prakash, PW58 Mahesh Chandra Arora, PW59 Sunil Makhija and PW61 Shashant Mishra to prove that Sh. C K Khemka had given three pay orders of Rs.35 lac each on 23.11.96, 11.12.96 and total amounting to Rs.1,05,00,000/- to PW56 Rishi Prakash on three different dates in presence of PW58 Mahesh Chandra, PW59 Sunil Makhija and PW61 Shashant 133/150 134 Mishra and stated that this amount was given to him as loan by accused Sukh Ram as shown at serial No.19 of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that he has no knowledge. (Q90,91and 92). Ld. Special PP argued that all these three pay orders have been recovered vide recovery memos. In the recovery memos it is clearly mentioned that Sh. C K Khemka had told to Rishi Prakash in presence of witnesses Mahesh Chandra, Sunil Makhija and Shashank Mishra that this amount was given to him as loan by accused Sukh Ram, therefore, this money belongs to Sh. Sukh Ram. Ld. SPP argued that prosecution has cited Sh. C K Khemka as a witness in the list of witnesses, however, he has been won over by accused, hence he has not appeared in the witness box on behalf of prosecution. It is further argued by Ld. SPP that it is clear from the fact that accused has cited him as defence witness in his list of defence witnesses. It is argued on behalf of prosecution that in these circumstances prosecution has proved that this amount of Rs.1,05,00,000/- belongs to accused Sukh Ram which he had given as loan to Sh. C K Khemka.
275 Prosecution has neither produced Sh.C K Khemka in the witness box to prove that Sukh Ram had given this amount of Rs.1,05,00,000/- to him as loan nor any other witness in presence of whom this amount was given to Sh. C K Khemka as loan by 134/150 135 accused Sukh Ram. Prosecution has produced PW Mahesh Chandra, Sunil Makhija and Shashank Mishra before whom C K Khemka handed over three pay orders to PW Rishi Prakash who had seized the same vide memos mentioned above. It is correct that it is mentioned in memos that C K Khemka had stated before the witnesses that this amount was given to him as loan by accused Sukh Ram. Besides this, prosecution has not produced any evidence to prove the fact that this amount belongs to accused Sukh Ram who had given it as loan to Sh. C K Khemka.
276 In my view from the evidence produced by the prosecution in this regard has only proved that C K Khemka had handed over these three pay orders of Rs.35 lac each total amounting to Rs.1,05,00,000/- to Dy. S P. Prosecution has neither produced C K Khemka in the witness box nor any other substantive evidence to prove that this amount belongs to accused Sukh Ram who had given it as loan to Sh. C K Khemka. The evidence produced by prosecution can only raise a suspicion that this amount belongs to accused Sukh Ram who had given it as loan to Sh. C K Khemka. A suspicion, however strong, it may be, cannot take the place of evidence. In these circumstances this court is of opinion that in this regard accused is entitle for benefit of doubt, hence this amount cannot be added in the assets of accused.
135/150 136277 Prosecution vide Ex PW 9/A, Ex PW45/C and PW 49/A ( D-13) from the statement of PW9 T Bhattacharya, PW45 K K Goyal and PW 49 R K Khurana has proved that household articles valuing Rs.64,090/- (which includes the cost of Eureka Forbes Vacuum Cleaner, Two LPG Cylinders and two colour TV Sets found at 12 Safdarjung Lane) were found in the house of Sukh Ram as shown at serial No.20 of immovable and movable assets at the end of check period as mentioned in the charge sheet. This entry has not been disputed by the Ld. Counsel Sh. Tulsi in his oral argument and written submission. Thus, there is no reason to disbelieve this fact, hence this court is of opinion that prosecution has proved that accused was having household items worth Rs.64,090/- at the end of check period.
278 Prosecution has proved Ex PW 49/A and Ex PW49/B, (D23 (I, & II) and produced PW35 Sh. Somesh Chander and PW 49 R K Khurana to prove that electronic items valuing Rs.6,23,300/- were found in house No. D-42, Kaushambi of accused Sukh Ram as shown at serial No.21 of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused in his statement recorded U/s 313 Cr PC has stated that in the parliamentary election in 1989 he hired a house at Panchsheel Park for which his wife had purchased and acquired certain domestic articles. On allotment of official residence all these articles were shifted to his official residence 12 136/150 137 Safdarjung Lane and on completion of his house at Kaushambi some of these articles were shifted there. He has also stated that valuation mentioned in the report is incorrect. (Q78 and Q62). Ld. Senior Counsel Sh. K T S Tulsi argued that PW35 has stated that he had not physically inspected the articles, no purchase memo of articles were shown to him. Articles were valued according to new items. Valuation was given according to the catalogue of price. From the statement of accused it is clear that he has not disputed purchasing of these articles, however accused has not produced any bills or documents with regard to purchasing of these articles. Accused has clearly admitted that his wife had purchased these articles meaning thereby she had purchased the new articles at the relevant time, therefore, PW35 has rightly assessed the price of new articles according to the catalogue. It was in the special knowledge of accused or his wife when these articles were purchased by them. They must have obtained bills/cash memos of purchasing of these articles but they have not produced the same. In view of the law laid down by our Hon'ble Supreme Court in state of M P Vs. Avadh Kishore, AIR 2004 SC page 517 as quoted above burden is cast on the accused not only to offer a plausible explanation as to acquisition but also to satisfy Court that his explanation is worthy of acceptance, however, accused has not produced any evidence in this regard, therefore, this court is of opinion that prosecution has proved that accused had acquired electronic items worth Rs. 6,23,300/- which were observed in his 137/150 138 house No.D42, Kaushambi vide Observation Memo Ex PW49/A and Ex PW49/B. 279 According to prosecution accused had purchased an Antena of Rs.4400/- as shown at serial No.22 of details of immovable and movable assets at the end of check period as mentioned in the charge sheet, however prosecution has not produced any evidence to prove it, even my Ld. Predecessor has not put any question in this regard to accused in his statement recorded U/s 313 Cr PC. In these circumstances this court is of opinion that prosecution failed to prove that accused was having this FDR at the end of check period.
280 Prosecution has proved Ex PW 9/A, Ex PW45/C and PW 49/A ( D-13, D-18 and D-23) and produced PW9 T Bhattacharya, PW45 K K Goyal and PW 49 R K Khurana to prove that household articles valuing Rs.3,14,800/- were found/observed at the official residence of accused Sukh Ram as shown at serial No. 23 of immovable and movable assets at the end of check period as mentioned in the charge sheet. Ld. Senior Counsel Sh. K T S Tulsi argued that prosecution has neither given any breakup nor detail in this regard. Valuation Report has not been proved. Prosecution has failed to appreciate that accused was a Cabinet Minister and a Member of Parliament who was provided fully furnished accommodation including furniture, Air 138/150 139 Conditioner, Refrigerator etc., hence this amount should not have been added in the assets of accused. I have gone through the relevant memos. In the memos against the articles which were provided by the office, it is clearly mentioned as official, thus, there is no merit in the arguments that investigating agency has taken the value of articles provided to him officially at his residence.
281 Prosecution vide Ex P-W34/A to L (D-34) and from the statement of PW 34 D N Kapoor has proved that an amount of Rs.1,92,000/- of accused Sukh Ram was outstanding as loan towards Anil Kumar as shown at serial No.24 of immovable and movable assets at the end of check period as mentioned in the charge sheet. Accused has admitted it as correct being matter of record, in his statement recorded U/s 313 Cr. PC.(Q66to Q 76).
282 Prosecution vide Ex P-W34/A to L (D-34) and from the statement of PW 34 D N Kapoor has proved that an amount of Rs.4,37,500/- of Smt. Ram Devi w/o accused Sukh Ram was outstanding as loan towards Anil Kumar as shown at serial No.25 of immovable and movable assets at the end of check period as mentioned in the charge sheet.. Accused has admitted it as correct being matter of record, in his statement recorded U/s 313 Cr. PC.(Q66 to Q 76).
139/150 140283 Though the prosecution has claimed that accused Sukh Ram and his wife Ram Devi had found in possession of total movable and immovable assets valuing Rs. 6,00,90,365/- at the end of check period but prosecution could prove the total assets of accused and his wife at the end of check period of Rs.4,91,65,965/-, 284 I have carefully gone through the statement of PW 60 Sh. B S Jakhar. In his cross examination he has specifically stated that he did not call any person for enquiry regarding recoveries effected on 16.8.96 upto 27.8.96. Searches were conducted while investigating the case vide RC No. 3 (A)/96. Relevant portion of his cross examination in this regard is as under:
------" I did not call any person for the purpose of any enquiry regarding the recovery upto 27.8.96."..... ...."The search of the locker was done by me after registration of the present case. I was not given any written authorisation by the SP to search the locker. Vol. That the locker was searched by me in case RC no. 3(a)/96 for which I had authorisation. It is wrong to suggest that I had no written authorisation of the SP to investigate the case RC No. 3A/96. RC No.3A/06 did not relate to the disproportionate assets. I did not issue any notice to the accused to explain the recovery in RC 3A/96. Same is my reply 140/150 141 for Smt. Rama Devi and Anil Kumar Sharma."
285 Not even a suggestion has been given to Mr. Jakhar that he had investigated the case registered vide RC 4A/96. PW 56 Rishi Prakash, the then Dy. SP had partly investigated this case of disproportionate assets registered against accused vide RC No.4A/96. This witness has been cross examined at length on behalf of accused. Not even a single suggestion has been given to this witness also that B S Jakhar had investigated this case registered against accused Sukh Ram. Similarly, PW 63 H S Sandhu has also partly investigated this case and filed charge sheet in this court. He has also been cross examined at length on behalf of accused. Not even a single suggestion has been given to this witness also that Mr. B S Jakhar had investigated this case registered against accused vide RC 4A/96.
286 Search of premises of accused No.12 Safdarjung Lane was conducted by Sh. B S Jakhar in RC No. 3A/96. Search of locker No. 6 at Syndicate Bank, R K Puram was also conducted in that RC. RC of this case was registered on 27.8.96. RC No.4A/96 was registered on the complaint of Dy. S P Sh. B S Jakhar on 27.8.96. In view of above discussion it is clear that there is no evidence on the record to show that Mr. B S Jakhar had investigated this case of disproportionate assets registered against accused vide RC No. 4A/96. Merely on the basis of averments 141/150 142 made in his statement or complaint by Sh. B S Jakhar "on verification were found to be disproportionate" it cannot be held that Mr. Jakhar had investigated this case of disproportionate assets against accused. In view of above discussion this court is of opinion that there is no merit in the argument that this case has been investigated in contravention of Section 17 of PC Act, 1988 by Sh. B S Jakhar.
287 I have carefully gone through the authority P V Narsimha Rao Vs. State 1998 (2) CC Cases (SC) 71 relied upon by Ld. Defence Counsel Sh. S P Manocha, Hon'ble Supreme Court in this authority has concluded as follows:
(1)A Member of Parliament does not enjoy immunity under Article 105 (2) or under Article 105 (3) of the Constitution from being prosecuted before a crim9inal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof.
(2) A Member of Parliament is a public servant under Section 2 © of the Prevention of Corruption Act, 1988. (3) Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19 (1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the 142/150 143 offences mentioned in Section 19 (1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law the prosecuting agency before filing a charge-sheet in respect of an offence punishable U/s 7, 10, 11, 13 and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be."
288 It is correct that accused was a public servant being Member of Parliament at the time when the charge sheet has been filed in this court against him. Above quoted authority is dt. 17.4.1998 while charge sheet has been filed in our case in this court on 9.6.97. Even in the above quoted authority Hon'ble Supreme Court has observed that since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19 (1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19 (1) in the absence of sanction, charge sheet has been filed in this court on 9.6.97, thereafter my Ld. Predecessor has taken cognizance of offences against accused on 14.7.97, thus the cognizance taken by my Ld. Predecessor is not bad, even according to the authority 143/150 144 cited by Ld. Defence counsel. Prior to the view expressed by Hon'ble Supreme Court in P V Narsimha Rao Vs. State, 1998 (2) CCC 71, Hon'ble High Court of Orissa on 5.5.93 in Habibulla Khan Vs. State of Orissa 1993 Cr. L J 3604 has held that MLA is such a public servant for whose prosecution under the PC Act no previous sanction is required. It is observed as follows in this regard in para No.26 of this authority:
" We, therefore, conclude by stating that though we are satisfied that an MLA would come within the fold of the definition of "public servant", as given in Section 2( c) of the Act, he is not the type of "public servant" for whose prosecution under the Act, previous sanction as required by Section 19 is necessary. We quite realise the anomaly of our conclusion, because though Section 19 of the Act makes no distinction between one public servant and another for the purpose of previous sanction, we have made so. But this is a result which we could not have truly and legally avoided. According to us, it is a fit case where the Parliament should make its mind known unambiguously and unequivocally."
289 This view has been confirmed by our Hon'ble Supreme Court in Habibulla Khan Vs. State of Orissa, AIR 1995 SC 1123 wherein it is held as follows:
"Prevention of Corruption Act (2 of 1947) Ss. 13, 19 - Sanction for prosecution - Accused persons prosecuted for 144/150 145 criminal misconduct allegedly committed during their tenure as Ministers and not in their capacity as MLAs - Provisions of S. 19 not applicable - Sanction not necessary.
Prevention of Corruption Act (2 of 1947) Ss. 13, 19 - Sanction for prosecution - Accused persons alleged to have committed criminal misconduct during their tenure as Ministers - Prosecution after they ceased to be Ministers - Sanction not necessary."
290 Thus, till the view expressed by our Hon'ble Supreme Court on 17.4.98 in P V Narsimha Rao's case the ratio of law with regard to prosecution of MLA or MP was that no sanction/permission was required for their prosecution. In our case charge sheet has been filed on 9.6.97 i.e. prior to the view expressed in P V Narsimha Rao's case. It is well settled legal preposition that all the criminal laws are prospective in nature unless the same are specifically made applicable retrospectively. In the P V Narsimha Rao's case relied upon on behalf of accused it is mentioned that till the provision is made by Parliament in this regard by suitable amendment in the law the prosecuting agency before filing a charge sheet in respect of an offence punishable U/s 7, 10,11,13 and 15 of the P C Act, 1988 against a Member of Parliament in a criminal court shall obtain the permission from the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be. From the above language it is clear that it is 145/150 146 prospective in nature. Hon'ble Supreme Court in this authority has not directed that prosecuting agency will also obtain permission of the Speaker of Lok Sabha /Chairman of the Rajya Sabha for the prosecution of Member of Parliaments already pending in the courts.
291 Prevention of Corruption Act is a Social legislation enacted with a view to curb illegal activities of public servants, hence it should be liberally construed so as to advance its objects. In this regard Our Hon'ble Supreme Court in Ram Singh Vs State of MP (2000) 5 Supreme Court Cases-88 has held as follows:
" Prevention of Corruption Act, 1988- Nature and interpretation of -Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused--
Interpretation of Statutes--Particular statutes or provisions-- Penal statute - Social Legislation-- Interpretation of."
292 I have gone through all the authorities cited by Ld. Defence Counsels on behalf of accused, there is no dispute with the preposition of law laid down in all these authorities, however, every case has its own facts and circumstances, ratio of law laid 146/150 147 down in authorities according to the facts and circumstances of that particular case, hence may not be applicable in all the cases as it is. Our Hon'ble Supreme Court in Ambica Quarry Works etc Vs State of Gujarat AIR 1987 Supreme Court 1073 in this regard has held as follows:
" The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
293 Similar view has been expressed by our Hon'ble Supreme Court in Kalyan Chander Sarkar Vs Rajesh Ranjan AIR 2005 SC-921 in para No.42 which is as follows:
"While deciding the cases on facts, more so in criminal cases the Court should bear in mind that each case must vest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case. It is also a well established principal that while considering the ratio laid down in one case, the Court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be exposition of the whole of the law but are governed and qualified by the peculiar facts of the case in 147/150 148 which such expression are found . A case is only an authority for what it actually decides and not what logically follows from it."
294 Our Hon'ble Supreme Court in Bhavnagar University Vs Palitana Sugar Mills Pvt Ltd., 2002 X AD ( SC) 589 = 2003 (
2) SC 111 cautions that - " a little difference in facts of additional facts may make a lot of difference in the presidential value of a decision. In Bharat Petrolem Corporation Ltd Vs N R Vairamani, AIR 2004 SC 778, Their Lordship observed that - " Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statue and that too taken out of their context. These observation must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes". This is also the opinion of the Court in Punjab National Bank Vs R L Vaid, 2004 IX AD( SC) 333= (2004) 7 SCC 698. In State of Gujarat Vs Akhil Gujarat Pravasi, 2004 V AD ( SC) 533 = ARI 2004 SCC 3894, the Hon'ble Supreme Court has observed that " any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used". In Zee Tele Films Vs Union of India, 2005 II AD ( SC) 457, the Apex Court has unequivocally declared that " a decision is not an authority for the proposition which did not fall for its consideration ."
148/150 149295 In view of above discussion this Court is of opinion that ratio of law laid down in P V Narsimha Rao's Case on 17.4.98 is not applicable to our case, charge sheet of which was filed on 9.6.97 and cognizance of offences was taken on 14.7.97 against the accused.
296 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubts as follows:
i) That total movable and immovable assets of accused Sukh Ram and his wife at the beginning of check period were of Rs. 26,13,010/-.
ii) That total movable and immovable assets of accused Sukh Ram and his wife at the end of check period were of Rs. 4,91,65,965/-.
iii) That accused Sukh Ram and his wife acquired movable and immovable assets during the check period of Rs. 4,65,52.955/-
( I - II)
iv) That total income of accused Sukh Ram
and his wife during the check period
from known sources was of Rs.87,07,928/-
v That accused Sukh Ram made a
total expenditure during the check
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150
period of Rs. 46,81,095/-
vi That total savings of accused Sukh Ram
and his wife during the check period was
of Rs. 40,26,833/-.
(IV-V)
vii That accused Sukh Ram was found in
possession of total movable and
immovable assets disproportionate
to his known sources of
earning which he could not
satisfactorily account for
even in this court of value of Rs. 4,25,26,122./-.
297 As the accused has been found in possession of
disproportionate assets worth Rs. 4,25,26,122/- to his known
sources of earnings which he could not satisfactorily account for even in this court, therefore, this court convicts accused Sukh Ram for the offence punishable U/s 13 (2) r/w Sec. 13 (1) (e) of Prevention of Corruption Act, 1988.
Announced in open court ( V K MAHESHWARI)
on this 20th day of February,2009 SPECIAL JUDGE; DELHI
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