Delhi District Court
Cbi vs . D. L. Arora, on 20 March, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 27/2011
RC No. 7 (A)/96/CBI/ACB/ND
u/s 13 (1) (e) r/w 13(2) PC Act
CBI Vs. D. L. Arora,
Son of Sh. Ram Chander Arora,
Resident of 1970, Sector-16,
Faridabad, Haryana.
Date of Institution : 19.03.2009
Date of framing of charge : 01.04.2010
Date on which case was received on
Transfer by this Court : 10.10.2011
Date of conclusion of arguments : 05.03.2013
Date of Judgment : 20.03.2013
JUDGMENT
PROSECUTION VERSION 1.0 Accused Sh. D. L. Arora was posted as Superintendent, Custom at Air Cargo, I. G. I. Airport, New Delhi in 1996.
1.1 Investigation in one other case i.e. RC No.89(A)/95-DLI u/s 120 B IPC r/w Sec. 13 (1) (a) and 13 (1) (d) of Prevention of Corruption Act, 1988 was already going on. In relation thereto, 15 public servants including accused were arrested. His residence was also searched on 17.10.95 in connection with said investigation which brought to light several documents showing his possession over various movable/immovable properties.
1.2 Since prima facie, a case u/s 13 (1) (e) Prevention of Corruption CBI Vs D. L. Arora CC no. 27/2011 1 of 62
Act 1988 also stood revealed against accused, a regular separate case was, therefore, registered on the basis of written complaint dated 31.01.96 of inspector Rajesh Kumar of CBI. It was numbered as RC-7(A)/96-DLI.
1.3 Present matter relates to such RC No.7 (A)/96-DLI.
1.4 Comprehensive investigation was carried out.
1.5 Check period was taken as 06.06.1977 till 17.10.1995. Raison d'être behind such selection was very simple. On 06.06.1977, accused had joined service in Custom/Central Excise and on 17.10.2005, his house had been searched in connection with the previous investigation.
1.6 Since accused had allegedly mixed up his income, expenditure and investment in his name and also in the name of his wife Urmil Arora, his father Ram Chander Arora, investigating agency thought it prudent to take into stock their income, expenditure and acquisition of assets as well.
1.7 After assessing expenditure, income and the acquisition of assets of accused, his wife and his father, it was established that accused was having disproportionate assets to the tune of Rs.30,57,793.58. Accused was accordingly charge-sheeted with the prayer that be summoned and tried for committing offences u/s 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act 1988.
COGNIZANCE AND CHARGES
2.0 On the basis of such charge sheet, cognizance was taken vide
CBI Vs D. L. Arora CC no. 27/2011 2 of 62
order dated 09.03.1999. Admission/denial of documents also took place and arguments on charge were heard.
2.1 Vide order dated 19.01.2004 passed by Sh. Dinesh Dayal, the then Ld. Special Judge, Delhi, accused was discharged. Ground of discharge was, manifestly, elementary. CBI failed to take into account the assets which the accused and his such family members were possessing on the date of commencement of the check period. It was observed by the court that father of the accused had been in service for 25 years before the start of check period and it would be unimaginable that he would have no assets at the start of the check period. It was also commented that accused must have also received some articles and money at the time of his marriage as he got married just before the check period and even the wife of the accused might have also received some money/jewellery at the time of her marriage and such aspects were not considered by CBI at all. It was in that context that accused had been discharged. Simultaneously, CBI was given liberty to reinvestigate the matter and to submit a fresh charge sheet, if so required.
2.2 CBI took exception to such order and filed a Criminal Revision in the Hon'ble High Court of Delhi which came to be registered as Revision Petition No. 9/2004. Vide order dated 21.07.2005, said revision petition was dismissed while holding that CBI was at liberty to investigate as per the directions of trial court.
2.3 Matter was accordingly re-investigated. CBI, again, came to the same conclusion. Again, the total assets, total expenditure and total income of accused and his said family members was considered, albeit, as per the new charge sheet, extent of such disproportionate assets was Rs.23,10,216/. CBI also felt that since it had earlier obtained sanction for prosecution while CBI Vs D. L. Arora CC no. 27/2011 3 of 62 filing previous charge sheet, there was no requirement of obtaining any fresh sanction.
2.4 New charge sheet was filed on 19.03.2009.
2.5 Cognizance was taken on 01.04.2009. Accused was ordered to be summoned. Admission/denial of documents was re-conducted and arguments were heard at length.
2.6 Vide detailed order dated 11.03.2010 passed by Sh. V. K. Maheshwari, Ld. Special Judge, accused was directed to be charged for offences u/s 13 (1) (e) r/w Sec. 13 (2) of PC Act.
2.7 Charge was accordingly framed on 01.04.2010 to which accused pleaded not guilty and claimed trial.
2.8 It will also be significant to mention here that while considering the charge, Ld. Special Judge, painstakingly, took note of some of the aspects in favour of accused and extended requisite benefit to him and charge was framed for holding disproportionate assets to the tune of Rs. 20,69,268/-
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and has examined 35 witnesses. Witnesses can be classified as under:-
(1) Witnesses from Department of Customs and Excise PW1 Sh. B. K. Chakravarty PW2 Sh. K. B. Bhatt CBI Vs D. L. Arora CC no. 27/2011 4 of 62 PW9 Sh. K. L. Sehgal (2) Witnesses to prove ITRs PW3 Sh. Chaturbhuj Sharma.
PW4 Sh. Manoj Kumar (3) Witnesses to prove educational expenses PW5 Sh. P. D. Munjal PW7 Mrs. Neelima Jain (4) Witnesses regarding H.No. 1164, Sector 17, Faridabad PW8 Sh. Shyam Lal PW14 Sh. Bir Singh PW20 Sh. Vijay Shankar Gupta PW21 Sh. Ishwar Singh PW22 Sh. Ved Pal Dhaiya PW28 Sh. Suresh Chand Gupta (5) Witnesses regarding H.No. 1970, Sector 16, Faridabad PW15 Sh. Ramesh Kumar PW16 Sh. Jawahar Singh PW25 Sh. Rakesh Bisht.
PW30 Sh. Nanak Chand Aggarwal (6) Witnesses in connection with Madipur Propery PW23 Sh. Purushottam Lal Chawla PW24 Sh. Anil Kumar PW31 Sh. Krishan Kumar Gupta (7) Relatives/ Private witnesses PW11 Sh. Prem Kumar PW17 Sh. Manohar Lal PW19 Sh. Surjit Singh CBI Vs D. L. Arora CC no. 27/2011 5 of 62 (8) Purchase of Units PW12 Sh. Tarun Kumar Aggarwal PW13 Sh. Debashis Senapati (9) Investigating Officers and other witness related to investigation and sanction PW18 Sh. AGL Kaul (Public witness of search) PW26 Sh. Inspector Sapna Duggal (part I.O.) PW27 Sh. Inspector Yashvir Singh (Main I.O.) PW29 Ms. Vijay Zutshi (Sanctioning Authority) PW33 Inspector Rajesh Kumar ( Complainant/ I.O. of previous case) PW34 Sh. Rajiv Sharma (Property Valuer from PWD) PW35 Sh. Ved Mitter (Handwriting Expert) (10) Other Witnesses PW6 Sh. Puran Chand (Sale of property by accused in Punjab) PW10 Sh. Prabhu Dayal (OBC, Nehru Place) PW32 Sh. Anupam Yadav ( BSNL) STATEMENT OF ACCUSED AND DEFENCE WITNESSES 4.0 Statement of accused u/s 313 Cr. PC was recorded in which he pleaded innocence. He also, albeit, admitted several facts and documents.
4.1 He raised grouse that the case had not been investigated by the book and the entire assets of his father, at the beginning of the check period, were not considered by CBI. According to him, no case of disproportionate assets was actually made out against him and CBI had deliberately left out vital income part. He also claimed that the CBI had valued two houses and one shop on a highly exaggerated scale and the investigation was conducted with malafide intention. He also asserted that he had been charge sheeted CBI Vs D. L. Arora CC no. 27/2011 6 of 62 without obtaining any fresh sanction for his prosecution from the competent authority and desired to lead evidence in defence.
4.2 In his defence, accused examined 11 witnesses in all.
4.3 DW1 Sh. Daulat Ram Satija, DW2 Sh. Sudhir Kataria and DW4 Sh. Vinod Ahuja happen to be the relatives of accused.
4.4 DW3 Sh. Bhim Singh Chawla has been examined in order to prove rental income accruing to father of accused. He also happens to be a relative of accused.
4.5 DW5 Madan Lal Chaudhary and DW6 Manohar Lal Chawla have been examined to prove rental income from House no.1970, Sector 16, Faridabad.
4.6 DW7 Sh. S. P. Khaneja, DW9 Sh. Yugjit Singh, DW10 Sh. Subhash Chander Sood and DW11 Sh. Sanjay Kumar have been examined in order to show that the valuation by CBI was inflated and overstated.
4.7 DW8 Sh. S. C. Dhawan has been examined with respect to running of business by M/s Kajal Printers at shop no.28, Market No.3, NIT, Faridabad.
CONTENTIONS RAISED AT THE BAR 5.0 I have heard Ld. SPP and Ld. defence counsel and carefully perused the entire material available on record.
5.1 Ld. SPP has contended that prosecution has been able to prove CBI Vs D. L. Arora CC no. 27/2011 7 of 62
its case to the hilt. He has claimed that residential premises of accused was searched by CBI team on 17.10.95 in connection with one another investigation and the documents surfaced during such investigation unmistakably indicated that accused was possessing assets disproportionate to his known sources of income and therefore, a separate case was registered against him. It has also been argued that since for expenditure and assets, there was found to be a common pool comprising of accused, his wife and his father, CBI, rightly and correctly, reckoned the income of both such other two members also and thereafter only, it was fathomed that accused was having disproportionate assets worth more than Rs.23,00,000/-. Sh. Singh has also contended that in terms of previous directions, while calculating such disproportionate assets, investigating agency also kept in mind the assets which were already available to the accused and his family members at the start of the check period. He has averred that accused has admitted more than 100 documents and therefore, most of the heads stand proved automatically.
5.2 Sh. Ohri, Ld. defence counsel has, on the other hand, refuted all the aforesaid contentions. According to him, investigation is motivated and unfounded. According to him, since the premises of the accused was searched in one previous matter, the investigating agency, in order to give some self-invented impetus to that previous case, registered a false case of disproportionate assets whereas fact remains that accused was not in possession of any disproportionate assets and rather his income was found to be surplus. According to him, despite there being clear cut directions, investigating agency again faltered and did not attempt to collect all the vital details with respect to the assets which the accused and his family members possessed at the beginning of the check period. It has also been professed that accused got married in January, 1977 and received various articles and CBI Vs D. L. Arora CC no. 27/2011 8 of 62 cash as gift in his marriage and various articles were also brought by his newly wedded wife but all these articles and cash were never considered by the investigating agency. It has also been fervently brought to the fore that the present new charge sheet has been filed without obtaining fresh sanction from the competent authority and therefore, also the entire prosecution is liable to crash. There is also a contention to the effect that the investigation is not as per the CBI manual.
5.3 It will be also worthwhile to mention here that a chart incorporating details of income, expenditure and assets of accused and his family members was prepared by the defence and was placed on record which summarizes all the defence contentions as well. Copy of such chart was also provided to the prosecutor.
5.4 Ld. Prosecutor has, in rebuttal, re-asserted that a clear case of disproportionate assets was made out against the accused. As regards not obtaining fresh sanction from the competent authority, Sh. Singh has contended that offence remains the same and the accused remains the same and moreover there was only a direction of re-investigation and therefore, the previous sanction continues to hold ground and there was no requirement of obtaining any fresh sanction.
EVALUATION OF EVIDENCE 6.0 Following charts have been prepared taking stock of averments appearing in the charge sheet, benefit given to the accused while framing charges and in view of the defence contentions. I must also hasten to add that accused admitted various documents after framing of charges. These admitted documents are from A1 to A 120. These charts should prove handy CBI Vs D. L. Arora CC no. 27/2011 9 of 62 as things admitted are not required to be dealt with comprehensively.
INCOME
Name (As per new (As per order Remarks, (As per
charge sheet) on charge) if any defence)
In Rs. In Rs. In Rs.
D. L. Arora 5,74,942 5,79,952 Benefit of Rs.5000 5,79,952
given as per Para 10
of order on charge
Urmil Arora 9,02,967 10,49,542 Benefit of Rs. 13,52,045
1,46,574 given as
per Para 15 of order
on charge
Ram Chand 6,26,356 6,26,356 6,26,356
Additional - - 6,70,621
income of Ram
Chand
Additional - - 45,000
income of
accused
Total 20,74,265* 22,55,850 32,73,974
(* Calculation error in challan as such total otherwise comes to Rs. 21,04,265/-) EXPENDITURE Name (As per new (As per order Remarks, if any (As per charge sheet) on charge) defence) In Rs. In Rs. In Rs.
D. L. Arora 2,65,775 2,50,934 Benefit of Rs.14,891 97,967
given as per para 11
of order on charge
Urmil Arora 1,50,856 1,50,856 1,50,856
Ram Chand 1,54,027 1,20,795 Benefit of Rs.33,232 1,16,677
given as per para 22
of order on charge
Total 5,70,658 5,22,585 3,65,500
CBI Vs D. L. Arora CC no. 27/2011 10 of 62
MOVEABLE ASSETS
Name (As per new charge (As per order on Remarks, if any (As per
sheet) charge) defence)
In Rs. In Rs. In Rs.
D. L. Arora 5,63,641 5,62,141 Benefit of Rs. 4,51,525
1500 given as
per para 12 of
order on charge
Urmil Arora 3,26,726 3,26,726 3,26,726
Ram Chand 3,45,272 3,45,272 3,25,272
Total 12,35,639 12,34,139 11,03,523
IMMOVABLE ASSETS
Name (As per new charge (As per order on Remarks, if (As per defence)
sheet) charge) any In Rs.
In Rs. In Rs.
Urmil Arora 19,71,714 19,71,714 - 7,42,869
Ram Chand 6,06,470 6,04,470 - 3,07,730
D.L. Arora - - 1,81,000
Total 25,78,184 25,78,184 12,31,599
DISPROPORTIONATE ASSETS
(As per new charge sheet) (As per order on charge) (As per defence)
In Rs. In Rs. In Rs.
23,10,216 20,69,268 No DA at all.
6.1 Let me now evaluate each head in the backdrop of evidence ap-
pearing on record.
CBI Vs D. L. Arora CC no. 27/2011 11 of 62
INCOME OF ACCUSED AND HIS FAMILY MEMBERS
(A) INCOME OF ACCUSED D. L. ARORA
7.0 As per new charge sheet, income of accused D. L. Arora has
been shown Rs.5,74,942/-. During the course of arguments on charge, additional benefit of Rs.5000/- was given to accused D. L. Arora in terms of Para 10 of order on charge.
7.1 Such income of accused has not been disputed though according to Sh. Ohri, learned defence counsel, some other earnings and income, have been left out. Such, allegedly left out income of D. L. Arora, would be dealt with separately.
7.2 Fact, however, remains that the income of accused as Rs. 5,79,942 has not been disputed by the defence in any manner whatsoever. His salary for the period in question and his tenure and posting has not been challenged.
7.3 I have also seen the evidence of witnesses of Department of accused who have graced the witness box and have proved the relevant details.
7.4 Thus the aforesaid head of income of accused stands proved and it is held that accused had income of Rs.5,79,942 during the check period.
CBI Vs D. L. Arora CC no. 27/2011 12 of 62
(B) ADDITIONAL INCOME OF ACCUSED D. L. ARORA.
7.5 Sh. Ohri has contended that accused had additional income
accrual of Rs.45,000/- which has not been reckoned and calculated.
7.6 Let me appraise the same.
7.7 Firstly, according to defence, accused had additional income of Rs.40,000/-.
7.8 In this regard, reliance has been placed upon testimony of PW17 Manohar Lal. He happens to be relative of accused who did not support the prosecution case. In his cross examination, he admitted that he had given Rs.40,000/- in cash to accused in October 1995. Sh. Ohri has pressed that since prosecution witness has himself admitted such amount in his cross examination, it has to be necessarily inferred and held and accused had such additional income. It has also been contended that this prosecution witness also claimed during the investigation that he had given a sum of Rs.20,000/- to Smt. Urmil Arora during the check period and such fact was believed by the prosecution as such amount of Rs.20,000/- is found reflected in the income of Ms. Urmil Arora. Sh. Ohri is referring to the entry where it is shown that she had taken loans from different persons though names of such lenders have not been specified.
7.9 On the contrary, Sh. Singh has argued that such amount does not stand proved merely by one line deposition of the witness. According to him, this witness, being close relative of accused, is dancing to the tunes of defence and his version is not liable to be believed at all.
CBI Vs D. L. Arora CC no. 27/2011 13 of 62 7.10 Fact remain that there is no documentary proof with respect to
such loan. Moreover, PW17 Manohar Lal has himself admitted in his cross examination that such amount was not reflected by him in his ITR. According to this witness such amount was shown in Sales Tax Returns but fact remains that no such STR has been placed before the court and it has also not been explained as to why loan amount was depicted in STR instead of ITR. Accused has also not bothered to reflect such loan in his ITR either.
7.11 Secondly, Sh. Ohri wants to consider Rs.4,500 as additional income.
712 On this score, he has relied upon testimony of DW2 Sudhir Kataria. DW2 Sudhir Kataria happens to be relative of accused who deposed that he had given Rs.4,500 in cash to accused in October 1995 for purchase of OTG of Sun Flame. According to defence, such amount was given in cash and when personal search of accused was carried out, a total sum of Rs. 8000/- was recovered which included the aforesaid sum of Rs.4500.
7.13 Sh. Singh SPP has, however, countered the aforesaid contention by claiming that said search had taken place at the airport and it would be hardly believable that, while in office in Delhi, accused would be carrying such amount of Rs.4,500 which was, allegedly, to be utilized for purchasing OTG from Faridabad. He contends that being relative of accused he is trying to help the accused to come out of the instant mess. I find force in submission of Sh. Singh. To me also, it does not seem feasible at all.
7.14 Thus both the aforesaid heads of additional income do not stand proved.
CBI Vs D. L. Arora CC no. 27/2011 14 of 62
(C) INCOME OF URMIL ARORA
7.15 Chart related to income of Ms. Urmil Arora as per charge sheet
reads as under:-
Sl. Details of Income Amount (In Rs.) as
No. per charge sheet
1 Income as shown in her ITR 1980 to 29,244
1986
1986 20,170
1987 11,263
1988 26,856
1989 27,220
1990 64,548
1991 33,131
1992 53,980
1993 60,672
1994 1,21,682
31.03.94 to 31.03.95 1,01,594
31.03.95 to 31.10.95 1,49,107
Total 6,99,468
2 LIC Loan 1,25,000
3 Loan from different persons 25,000
-do- 50,000
-do- 20,000
-do- 60,000
-do- 19,500
Total 16,98,435
7.16 It seems that due to some inadvertence or oversight, income
as reflected in ITR was first added up and such total was recalculated along with the already totaled heads and, therefore, in the chart incorporated in challan, the income is shown as Rs.16,98,435/-. There is apparently double entry of Rs.6,99,468/-. However, this anomaly stands removed as in the final CBI Vs D. L. Arora CC no. 27/2011 15 of 62 analysis, in the charge sheet, the total income of Ms. Urmil Arora has been shown as Rs.9,02,967/-. As per the charge sheet, there are following three major heads of her income:-
Sl. No. Particulars of income Income in Rs.
1 Income reflected in ITR 6,03,467.30
2 Loan from LIC in 1993 1,25,000
3 Income by way of loan from different persons during 1,74,500
1992-93.
Total 9,02,967
7.17 Needless to re-emphasize that while arguments on charges
were heard, Ld. Special Judge extended further benefit of Rs.1,46,574/- and, therefore, her total income was held, at the time of charge, as Rs.10,49,542.
7.18 Such benefit was given to her relying on defence contention that such amount was the capital account of M/s Kajal Printers, opening assets of which were mentioned in the ITR even on 01.04.1987, and which was well before the date of search and, therefore, such entry was not under any sort of suspicion.
7.19 Be that as it may, since the benefit in this regard has already been granted, let me not delve into aforesaid aspect anymore and, therefore, the income as per ITRs is found to be Rs.7,50,041/- (Rs.6,03,467 + 1,46,574). Defence, however, does not agree. In terms of the order on charge and the defence contentions, the comparative chart would read as under:-
Sl. No. Particulars As per charge As per defence (In Rs.) (In Rs.) 1 Income as per ITRs 7,50,041 9,24,656 2 LIC loan 1,25,000 1,25,000 CBI Vs D. L. Arora CC no. 27/2011 16 of 62 3 Private loan 1,74,500 1,74,500 4 Additional income Nil 1,62,178 Total 10,49,541 13,86,334 7.20 There is no dispute that wife of accused was running a business under the name and style of M/s Kajal Printers. Prosecution also does not have any qualm on this score. It is also important to mention here that accused had himself given due intimation to his department in this regard.
Such intimation is contained in D168. Though this document has not been formally proved by the prosecution yet fact remains that since defence wants this document to be read, it can always be relied upon. It happens to be a letter dated 25.6.84 written by Assistant Collector (Administration), Customs, Delhi Airport whereby accused was informed that his letter dated 5.6.1984 regarding starting of business of printing press by his wife had been received and was being treated as due intimation to the department. Various other documents contained in D168 also reflect that accused kept on informing his employer about various financial transactions from time to time. Accused kept on sending intimation under CCS (Conduct) Rules and did not attempt to hide anything from his employer regarding such transactions. To that extent, I would appreciate the conduct of accused.
7.21 ITRs of Urmil Arora are important and these are found contained in D37, D38, D39 and D130 which are admitted as A12, A13, A14 and A85. In fact, these are though labeled as ITRs yet these reflect Statements of Affairs of Assets and Liabilities of Ms. Urmil Arora as on 31.3.90, 31.3.92, 31.3.93 and 31.3.96. In such statements, there are extensive references of income by way of sale of shares, dividend etc. Construction expenses with respect to house no.1164, Sector-17, Faridabad are also found mentioned.
CBI Vs D. L. Arora CC no. 27/2011 17 of 62 7.22 I have also seen the testimony of PW3 Sh. Chaturbhuj Sharma
and PW4 Sh. Manoj Kumar. PW3 Sh. Chaturbhuj Sharma was posted as inspector, Investigating Wing, Faridabad and he had been handed over documents related to Statement of Affairs of Assets and Liabilities of Ms. Urmil Arora to CBI. Seizure memo in this regard has been proved as Ex.PW3/A (D-7). Balance sheets of ITRs of Ms. Urmil Arora for the financial year ending 31.3.91, 31.3.93, 31.3.94 and 31.3.95 were seized. These happen to be authenticated and acknowledged official record. These are contained in D7A.
7.23 In view of the ITRs, Statements of Assets and Balance sheets pertaining to M/s Kajal Printers or M/s Kajal Agencies whether proved, unproved or admitted, the income of Urmil Arora, being proprietor thereof, would be as under:-
Income Head Year Year Year Year Year Year Year Ending Ending Ending Ending Ending Ending Ending March March March March March March March 1990 1991 1992 1993 1994 1995 1996 Rental 36000 60000 79250 Business 21000 37000 18000 22000 7000 Dividend/Interest 521 2133 2768 7306 6303 9799 SB Account interest 1530 2259 1125 3555 1008 709 2694 Sale of shares 6785 2900 6103 50141 24069 Gift from family members 30000 10000 10000 22000 45000 35000 30000 Chit Fund Income 4633 NSC Income 8375 2030 15225 LIC Survival Benefit 10000 Additional Income 22000 Additional Interest 1200 1050 Misc Income on FDR 15944 Maturity Sale of Gold Jewellery 59,238* Total 69890 17710 57355 85181 167455 148081 128743 (* Such amount not considered here and would be dealt with separately) CBI Vs D. L. Arora CC no. 27/2011 18 of 62 7.24 Additionally, as per some unproved documents contained in folder RC 89A/95/NR.74-II-VII/95/SL-30 containing pages no. 949-1101, following income can be deciphered for previous period:
1 For 1985 = Rs. 29,244/-
2 For 1986 = Rs. 11,493/-
3 For 1987 = Rs. 19,030/-
7.25 Thus the total income reflected in ITRs would be Rs.6,05,439.
Since check period ends in Oct 1995, I cannot count entire income for the period ending 31.03.1996. Let me at least half such income. It comes to Rs. 64,372/-. If same is also added, the total would come as Rs. 6,69,811/-.
7.26 I would certainly say that prosecution proceeded on the basis that the income as reflected in ITRs was genuine. It never harboured any doubt with respect to the income as shown in ITRs. I cannot lose sight of the fact that there is substantial income by way of recurrent gifts from close relatives which was likely to give rise to a doubt. However, the court is handicapped since the essence of the case cannot be changed during the last lag. Fact remains that prosecution should have made sincere efforts before choosing to rely upon blindly upon the details mentioned in such ITRs. It is virtually beyond my domain, at this juncture, to raise eye brows with respect to the aforesaid details. I have no alternative except to accept the same as true and correct.
7.27 Since during the course of arguments on charge, court has already extended further benefit of Rs.1,46,574/-, I offer the same to the accused.
CBI Vs D. L. Arora CC no. 27/2011 19 of 62 7.28 As would be apparent, court does not have the benefit of seeing
ITR of any period prior to 1985. This is despite the fact that when investigation was carried out, the investigating agency was able to decipher her income for period 1980 to 1986 as well from ITRs.
7.29 As regards loan taken by Urmil Arora from LIC in 1993 is concerned, there is no dispute at all. Relevant documents are contained in D10. Application moved by Urmil Arora seeking loan is admitted document. It is already exhibited as A3 and she was granted loan and the loan amount of Rs.1,25,000/- was disbursed to her on 5.1.1993. Two letters of LIC i. e. Ex.A15 (D44) and Ex.A16 (D45) also clearly confirm the fact of repayment of loan with interest. I would also say that repayment of the loan has also been assessed at the time of evaluating the expenditure of Urmil Arora.
7.30 Taking of loan from private persons to the tune of Rs.1,74,500/- is not disputed. However, according to Sh. Ohri, one Mr. A. S. Tanwar had also given a loan of Rs.18,000/- to Urmil Arora which is duly reflected in ITR of 1989-90 but such amount has not been considered by the CBI. I have seen the Statements of Affairs of Assets and Liabilities of Urmil Arora of relevant period which is contained in document A12 (D37). It is admitted document and there is mention of name of Sh. A. S. Tanwar therein and sum of Rs.18,000/- has also been mentioned and , therefore, I reckon that amount of Rs.18,000/- as part of income.
7.31 As regards rental income of Rs.96,000/- (36,000+60,000), such aspect of rental income has also been corroborated by PW19 Sh. Surjit Singh and DW1 Sh. Daulat Ram Satija. I need not go any deeper in this regard as I have already taken such income into consideration.
CBI Vs D. L. Arora CC no. 27/2011 20 of 62 7.32 As regards sale of gold jewellery, as per CBI itself, wife of
accused had sold jewellery in check period.
7.33 CBI also, during investigation, examined one Sh. Gurditta Mal, jeweller who admitted buying gold ornaments weighing 164.150 gms @ Rs. 4250/- per tola and paid her Rs. 69,763/-. Profit by such sale has been shown in ITR also. Relevant voucher of Bill book of Jeweller has been proved as EX A2( D-9). Payment was received between 01.10.1995 and 12.10.1995 which is within check period. Thus the total income of Urmil Arora would be as under:-
Sl. No. Particulars of income Amount in Rs.
1 Income as per ITRs (including income from business, rent,
interest and gift) 8,16,385
(Rs.6,69,811+ 1,46,574)
2 LIC loan 1,25,000
3 Private loan Rs.1,74,500 + 18,000= 1,92,500
4 Sale of Gold Jewellery 69,763
Total 12,03,648
(D) INCOME OF RAM CHANDER ARORA
Sl. Details of Income Amount (In Rs.) Defence version
No. as per charge
sheet
1 Total salary dated 01.05.77 to Sept. 1986 75,493 admitted
comes to Rs. 75,493/-.
2 Retirement benefit as per previous charge 65,363 admitted
sheet.
3 Pension benefit as per previous charge 70,206 admitted
sheet.
4 Rental income as per previous charge sheet. 58,400 1,64,600
5 Sale of plot at Punjab as per previous charge 75,000 admitted
sheet.
6 Income from shares as per previous charge 56,398 86,079
sheet.
CBI Vs D. L. Arora CC no. 27/2011 21 of 62
7 Income from the shop at Meerut as per 37,100 4,62,000
previous charge sheet.
8 Amount received on maturity from M/s 34,071 admitted
Pearless Insurance Co. in Aug. 1994
(amount taken during further investigation) 9 Sold gold jewellery to M/s Gopalsons 25,454 admitted Jewellers, Meerut dt. 11.10.83 (amount taken during further investigation).
10 Interest/dividend from M/s L&T upto 7/95 2,552 admitted 11 Interest received per month & on maturity 50,000 admitted from M/s UTI, New Delhi against MIS-89 scheme.
12 Interest/dividend received from different 6,274 admitted companies.
13 Interest received on SB A/c NO. 12247 of 8,836 admitted PNB, FBD.
14 Interest received on SB A/c No. 17410 of 3,982 admitted Central Bank of India, Meerut.
15 Interest received on SB A/c No. 18405 of 2,030 admitted SBI, New Delhi.
16 Interest received on SB A/c No. 8511 of 1,805 admitted Union Bank, FBD.
17 Interest received on SB A/c No. 3800 of SBI, 8,392 admitted Meerut.
18 Advance received on account of sale of 15,000 admitted Madipur Flat.
Total 5,96,356 7.34 Sh. Ram Chander Arora happens to be the father of accused. I
have already noticed above that initially when the charge-sheet was filed, the accused was discharged as it was also, inter-alia, observed by the court that father of the accused was in service for 25 years before the start of check period and it was not imaginable that he would not be having any asset. I would, however, lament that no sincere efforts were made to pinpoint assets available to him at the start of check period.
7.35 According to CBI, income of Ram Chander Arora is Rs. 6,26,356/- which includes Rs.5,96,356 as per above chart and Rs. 30,000/-. There are 18 heads in the relevant chart and the defence has disagreement CBI Vs D. L. Arora CC no. 27/2011 22 of 62 with regard to only 3 heads i. e. head no.4, 6 and 7.
7.36 Head no.4 is of rental income and has been picked up as it is from the previous charge sheet wherein the rental income has been shown as Rs.58,400/- and the basis of such calculation is as under:-
Sl. No. Rate of rent (in Rs.) & period Amount in Rs. 1 Rs. 300 per month for 1987-88 (24 months) 7,200 (300 x 24) 2 Rs. 400 per month for 1989 to 93 (60 months) 24,000 (400 x 60) 3 Rs. 600 per month for 1994 (12 months) 7,200 (600 x 12) 4 Rs.2000 per month for 1995 (10 months) 20,000 (2000 x 10) Total 58,400 7.37 There is no dispute that house no.1970/16, Faridabad happens to be in the name of father of accused who had rental income therefrom.
However, according to Sh. Ohri, said house was on rent even in 1984, 1985 and 1986. He has also claimed that rate of rent has been grossly underplayed by the investigating agency and even when the house was rented out in 1984, the rate of rent was Rs.500/- per month and it kept on increasing year by year and in 1995 it was admittedly at the rate of Rs.2000/- per month.
7.38 Sh. Ohri has relied upon testimony of DW5 Sh. Madan Lal Chaudhary and DW6 Sh. Manohar Lal Chawla in this regard.
7.39 DW5 Madan Lal Chaudhary has claimed that he was living as tenant in said house from February 1989 to June 1990 and was paying rent @ Rs.750 per month and one more family was residing as tenant in the rear CBI Vs D. L. Arora CC no. 27/2011 23 of 62 portion. I have seen his cross examination wherein he admitted that he did not have any rent agreement or rent receipt. He also declared that he never used to file any ITR and did not have any proof to show that he was residing as tenant in said house.
7.40 DW6 Manohar Lal Chawla deposed that he resided as tenant from February 1985 to 1986 for 13 months and was paying rent at the rate of Rs.500 per month. He also does not possess any rent agreement or rent receipt. Fact, however, remains that he is a retired government servant and according to him, after his retirement, he took said house on rent as he had plot no.1852, Sector-16, Faridabad where he was to construct a house.
7.41 Prosecution has not examined any person who may throw light with respect to the rate of rent or the names of the tenants.
7.42 Only observation memo (D4) contains a recital to the effect that set of three rooms of house no.1970, Sector-16 was in occupation of one Sh. C. L. Ganguly who was residing there as tenant and was paying rent at the rate of Rs.2000/- per month.
7.43 Sh. Ganguly happens to be an important witness to prove the rate of rent and also the period since when he was paying such rent but he is not cited as witness at all. When IO Inspector Yashvir Singh was confronted in this regard, he, astonishingly, admitted that he had not examined any tenant regarding rate of rent. He claimed that details had been collected as per the House Tax Return. That was not the right approach because there can be an instance when rent is actually collected but not duly intimated to the House Tax Authorities or shown less. Mr. Ganguly was available right at the elbow of CBI but despite that no necessity was felt of examining him if CBI Vs D. L. Arora CC no. 27/2011 24 of 62 I.O. is to be believed. Confusion crops up because, in fact, one Ms Bobby Ganguly (Wife of C.L. Ganguly) was examined. However, since she left her last known address, CBI failed to procure her attendance in the witness box. Explanation, if any, given by father of accused would have become imperative but CBI did not choose to have his version in black and white and coined its own style of assessing rent.
7.44 Ld. SPP has stated that testimony of both the defence witnesses examined on this score is liable to be rejected as they are interested witnesses.
7.45 However, that itself cannot become a ground of rejection.
7.46 Merely because a witness has been examined by the prosecution or defence, such witness does not become interested witness for prosecution or defence as the case may be. There has to be cogent reason for rejection of testimony of such witness.
7.47 I have also seen the House-Tax Assessment record. It has been proved as Ex PW20/C. PW 20 Vijay Shankar has himself admitted that such survey is conducted after every five years. That being so, there might not be any entry of tenant who might have remained there as tenant in the intervening period and also left during such intervening period. Such record only reflects the position as existed on the actual survey-date. There is no mention of tenant in survey record of 84-85. One Mr. Nagar has been shown as tenant in 1989-90 @ Rs. 400/- pm and one tenant has been shown in the record of 1994-95 paying rent @ Rs. 600/-pm. CBI Vs D. L. Arora CC no. 27/2011 25 of 62 7.48 Thus keeping in mind the evidence brought on record by defence and keeping in mind the fact that CBI has failed to secure presence of the material witness on this score, I am forced to draw adverse inference against CBI and taking a moderate approach, the rental income would be as under:-
Sl. No. Rate of rent (in Rs.) & period Amount in Rs. 1 Rs. 500 pm for 1984,1985, 1986 ( 500X36) 18,000 1 Rs. 600 per month for 1987-88 (24 months) 14,400 (600 x 24) 2 Rs. 750 per month for 1989 to 93 (60 months) 45,000 (750 x 60) 3 Rs. 1000 per month for 1994 (12 months) 12,000 (1000 x 12) 4 Rs.2000 per month for 1995 (10 months) 20,000 (2000 x 10) Total 1,09,400 7.49 As far as Head no.6 related to income from shares is concerned, according to prosecution there was total income of Rs.56,396/-
from sale of shares. However, according to Sh. Ohri, such income was of Rs. 86,079.
7.50 Along with arguments, one chart was filed to drive home such fact. However, this does not seem to be the legal and proper manner to prove a fact. Accused should have examined his father or should have entered in the witness box himself in order to prove such fact. Mere placing a piece of paper along with written submissions would not by itself prove that there was income of Rs.86,079/- in place of income of Rs.56,398/-.
7.51 Defence does not dispute the share income of Rs.56,398/- but according to it, there was additional income of Rs.29,681/- for the year CBI Vs D. L. Arora CC no. 27/2011 26 of 62 1993-94 which has not been considered by the CBI. Oral assertion, uncorroborated and unsupported by any documentary evidence or oral evidence, is evidently deficient.
7.52 Father of accused was also having one shop in Meerut and as per prosecution, he had income of Rs.37,100/- from such shop whereas according to defence such income was Rs.4,62,000/-. There is huge gap between the two assertions.
7.53 Sh. Ohri has claimed that even when father of accused was in service, the shop was in existence and was being managed by his wife and there was decent income from such shop. According to Sh. Ohri, prosecution's own witness confirms the aforesaid income.
7.54 My attention has been drawn towards testimony of PW11 Sh. Prem Kumar who deposed that he knew accused and his father. He also claimed that father of accused, who was in Army Workshop no.510, was having house no.94, Maida Mohalla, Lal Kurti, Meerut Cantt, UP from where a shop used to be run. According to him, at the time of retirement, the father of accused was running said shop and was having income of Rs.100 or Rs. 200 per day from such shop. In his cross examination, he also admitted that such shop was in existence even prior to retirement of father of accused and mother of accused used to run such shop before the retirement of her husband. Sh. Ohri has contended that Sh. Ram Chander had opted for voluntary retirement in 1986 and as per prosecution's own witness, such shop was in existence even prior to retirement of father of accused and therefore, the investigating agency was completely unjustified in calculating his income as Rs.37,100/- for all such years.
CBI Vs D. L. Arora CC no. 27/2011 27 of 62 7.55 I had to take aid of previous charge sheet in order to assess
the basis of calculation of income and bare perusal of same indicated that the income had been derived by assuming income at the rate of Rs.350 per month for 1987 to October 1995 Rs.37100/- (Rs.350 per month X 106 months). In order to have complete lucidity, I was forced to refer to the statement of PW11Prem Kumar made u/s 161 Cr. PC wherein he claimed that the income from such shop was Rs.300-400 per month. Investigating agency, palpably, took the mean figure and assumed income as Rs.350 per month.
7.56 I have already discussed about the gist of testimony of PW11 Prem Kumar who categorically claimed that there was income of Rs.100 or 200 per day from such shop. It would rather mean that there was income of Rs.3000/- to Rs.6000/- per month. This is, naturally, not in consonance with the case set up by the prosecution.
7.57 Curiously, Prem Kumar was never confronted with his previous statement and, therefore, his version before the court is liable to be accepted as true being unchallenged and un-impeached and if I also choose to take the middle-path theory adopted by CBI, the income would become Rs.150 per day i. e. Rs.4500 per month and if it is multiplied by 106 months the income would come to Rs.4,77,000/-. Defence has, however, itself restricted such income to Rs.4,62,000/- and therefore, the income under such head is held as Rs.4,62,000/-.
CBI Vs D. L. Arora CC no. 27/2011 28 of 62
(E) ADDITIONAL INCOME OF RAM CHANDER ARORA
Sl. Details of income Amount (In Rs.) Defence Relevant witnesses
No. as per charge version & D no.
sheet
1 Rental income from Maloth of Punjab. Not mentioned 50,000 D-13/ DW3
2 Amount received from rehabilitation Not mentioned 10,690 D12 Ex.PW27/F
department
3 Amount received at the time of marriage of Not mentioned 30,000 DW1
son
4 Rental income from shop of Faridabad Not mentioned 19,200 LW62H.L. Niresh
Total 1,09,890
7.58 According to defence, said four heads of additional income have
not been considered by the investigating agency.
7.59 Let me deal these one by one.
7.60 As regards the first head, there is no dispute that father of accused owned one property in Maloth, Punjab. Such property was even sold by the father of accused in the year 1981. IO Inspector Yashvir Singh also admits the same. Sale consideration of Rs.75,000/- is also shown as income of Sh. Ram Chander Arora and accused does not dispute the sale consideration either.
7.61 D13 be referred to in this regard which reflects sale dated 2.6.1981. It is an admitted document and has been exhibited as A4.
7.62 According to Sh. Ohri, such property of Maloth, Punjab was occupied by tenant and there was payment of rent @ Rs.400/- per month in 1981-82 and father of accused had a rental income of Rs.50,000/- from such property during the relevant period. However, the relevant period has not CBI Vs D. L. Arora CC no. 27/2011 29 of 62 been specifically deciphered by the defence. Father of accused has not chosen to enter into witness box. The property was admittedly sold in 1981 but there is no complete clarity and precision as to when it was actually acquired by the father of accused. Nobody knows the name of the tenant and the rate of rent year-wise. Check period starts from 1977 and the property was sold in July 1981 and therefore, even as per the defence it remained with accused for four years and the last paid rent was Rs.400/- per month. The rent for the preceding years should, logically, be same or less. By that analogy, the rent should not have been more than Rs. Rs.19,200/-. I am really unable to fathom as to on what basis the defence has come up with the figure of Rs.50,000/-.
7.63 I have seen testimony of DW3 Sh. Bhim Sen Chawla. He is relative of accused and according to him, the rent was Rs.300 per month in 1976 which was increased to Rs.400 per month in 1979 and even in 1981-82 the rate of rent was Rs.400 per month. He has vaguely claimed that there was one more tenant on the first floor of the house and in total rent of Rs. 50,000/- to Rs.60,000/- was paid to Sh. Ram Chander. DW3 Bhim Sen Chawla has attempted to portray himself as a rent collector but I do not find much credence in his version. Moreover, there is no documentary evidence with respect to creation of tenancy or payment of rent. As already noticed above, accused or his father should have graced the witness box but they have chosen to stay away and therefore, the best evidence has been held back. Thus the aforesaid head of additional income does not stand proved in the desired manner.
7.64 As regards receiving of Rs.10,690/- from Rehabilitation Department, again, such head is liable to be discarded out-rightly. When IO entered into witness box, he was cross examined on this score also. I have CBI Vs D. L. Arora CC no. 27/2011 30 of 62 seen D12 which contains one Resettlement Card proved as Ex.PW27/F. As per letter dt. 20.1.1958 issued by Regional Settlement Commissioner, Smt. Har Devi (wife of Sh. Ram Chander) had been given compensation.
7.65 Sh. Ohri wants me to add compensation amount of Rs.10,690/- as income of Sh. Ram Chander Arora.
7.66 I am unable to do that.
7.67 Reason is twofold.
7.68 Firstly, the compensation amount was never received during the check period. Even if this document is read as it is, it would merely show that the compensation was paid way back in 1958. Secondly, the total value of compensation is mentioned as one third of Rs.10,690/- and thereafter in column no.7, the total amount of net compensation paid to the holder has been shown as Rs.2011/-. Thus as per this document, the wife of Sh. Ram Chander was given net compensation of Rs.2011/- and that too in 1958 and by no stretch of imagination, father of accused can claim benefit of Rs. 10,690/- falling within the check period.
7.69 Check period begins with 6.6.77 and it is not in dispute that accused got married in January 1977. Sh. Ohri claims that at the time of marriage of accused, there was a gift of Rs.30,000/- to the father of accused and such amount has not been taken into consideration. Again, even if I assume that father of accused had received such gift of Rs.30,000/-, it must have been received by him at the time of marriage which took place in January 1977. Check period starts from 6.6.1977 and, therefore, such amount did not come to his lap within the check period and therefore, it CBI Vs D. L. Arora CC no. 27/2011 31 of 62 cannot be counted. It would naturally be seen and assessed later as to what assets were available to accused and his family members at the start of check period.
7.70 There is no dispute that father of accused owned one shop i. e. shop No.28, N. I. T. Market No.3 in Faridabad. However, according to Sh. Ohri, such shop was given on rent and there was rental income of Rs. 19,200/- from such shop which has not been considered by the investigating agency. According to him, one Sh. H. L. Niresh was paying rent @ Rs.600 per month and he even claimed so during investigation when he was examined as witness no.62. Such H. L. Niresh did not enter into witness box as he left his last known address and prosecution failed to trace out his present address. However, in order to understand and appreciate the defence contention, I went through statement of H. L. Niresh as recorded u/s 161 Cr. PC and to my astonishment, he did claim to IO Inspector Yashvir Singh that he was tenant in said shop of Ram Chander Arora and was paying rent at the rate of Rs.600 per month for the last one year. I have seen the other heads of income of Sh. Ram Chander Arora and there is no head dealing with rental income from such shop. It seems to me that due to some oversight or inadvertence, rental income from such shop was not calculated though other rental accrual was considered. In view of non examination of Sh. H. L. Niresh and to be fair to the defence, I assume the defence contention to be correct and it is thus held that father of accused had rental income of Rs.19,200/- from such shop of Faridabad.
CBI Vs D. L. Arora CC no. 27/2011 32 of 62 EXPENDITURE OF ACCUSED AND HIS FAMILY MEMBERS (A) EXPENDITURE OF ACCUSED D. L. ARORA 8.0 According to new charge sheet, accused had made expenditure of Rs.2,65,775/- during the check period. However, he was granted benefit of Rs.14,891/- as per order on charge and thus accused had made total expenditure of Rs.2,50,934/- and it is now to be evaluated whether such spending has been duly proved by the prosecution or not.
8.1 Very few heads are under scanner.
8.2 Chart of expenditure of accused D. L. Arora, as per new charge- sheet, is as under:-
S. No. Details of Expenditure Amount in Rs.
1 Aryan Public School, Faridabad (on the education of 4,500
Hema Arora).
2 -do- 3,150
3 Book Cost 554
4 DAV School FBD. Rs. 700/- (refundable security). 700
5 APJ School FBD. Rs. 700/- (refundable security). 750
6 Modern School Faridabad (education of Kajal Arora). 2,920
7 Modern School Faridabad (education of Amit Arora). 5,500
8 Expenses on the education of Amit, Kajal and Hema 10,800
Arora.
9 Pocket Allowances of Amit, Kajal & Hema Arora. 10,800
10 Conveyance allowance of Rickshaw and Bus fare. 27,000
11 Pocket Allowance of D.L. Arora @ Rs.5 per day. 25,200
12 Household expenditure 33% of carry home salary. 1,33,581
13 Conveyance allowance of DL Arora from H. No. 1970 40,320
Faridabad to office.
Total 2,65,775
CBI Vs D. L. Arora CC no. 27/2011 33 of 62
8.3 Needless to mention that as far as head no.4 and 5 are
concerned, during the course of arguments on charge, the court has already granted total benefit of Rs.1450/- to the accused.
8.4 It is as plain as nose on the face that item no.1 to 10 of aforesaid chart pertain to educational expenses and expenses incidental to education but for some inexplicable reasons, separate heads have been created. Accused has following three children:-
Sl. No. Name Date of Birth
1 Kajal Arora 25.10.1977
2 Amit Arora 12.05.1979
3 Hema Arora 05.03.1985
8.5 Check period is from 06.06.1977 to 17.10.1995 and according to
Ld. SPP of CBI, such children of accused had studied in various schools of Faridabad i.e. Modern School, Apeejay School, DAV Public School and Aryan Public School.
8.6 My attention has been drawn towards the testimony of PW5 and PW7.
8.7 PW5 P. D. Munjal is from Apeejay School, Faridabad and has proved relevant documents pertaining to fee of Hema Arora and PW7 Ms. Neelam Jain, Principal, Modern School, Faridabad has proved details of fee and related charges with respect to Kajal Arora and Master Amit Arora.
8.8 As far as certain school documents related to Aryan Public School are concerned, these are found contained in D15 and D15 A and CBI Vs D. L. Arora CC no. 27/2011 34 of 62 these are admitted documents. Similarly, documents pertaining to DAV School are found in D16 which are again not disputed by defence and are admitted documents. If the amount, as reflected in all such proved documents and admitted documents, is calculated, it would come as under:-
Sl. Exhibit Name of Child Name of school Year Amount No. No. in Rs.
1 PW7/A Kajal Arora Modern School 1993-94 4,625 2 PW7/A Kajal Arora Modern School 1994-95 5,210 3 PW7/B Amit Arora Modern School 1995-96 6,850 4 A6 Hema Arora Aryan Public School 1994-95 8,205 5 PW5/A Hema Arora Apeejay School 1988-94 27,780 6 A7 Amit Arora DAV School 1989-90 4750 1990-91 Total 57,420 8.9 I have already noticed above that benefit of Rs.1450 (700+750) has already been granted to the accused while charges were framed and therefore, the total expenses borne by accused towards the education of his children during the check period would come to Rs.55,970/-.
8.10 There is not found to be much divergence as according to prosecution the total expenditure in this regard (from item 1 to 10) is Rs.
66,674/-. Astonishingly, it also includes pocket allowances meant for all three children during their education-tenure falling within check period. Ld. SPP wants me to believe that all such three children were getting pocket money @ Rupee 1 per day. This seems to be a self created, fictional and imaginary outflow which is bereft of any logic or corroboration.
8.11 Moreover, there is no witness who might have deposed that accused was paying such pocket allowance to all his three children @ CBI Vs D. L. Arora CC no. 27/2011 35 of 62 Rupee1 per day right from 1986 to 1995.
8.12 Surprisingly, Ms. Hema Arora born on 05.03.1985 and even she has not been spared by CBI and pocket allowance for such a tiny girl has also been taken into consideration by the prosecution. I have no hesitation in discarding such expenditure towards pocket allowance in toto.
8.13 As far as Ex.PW7/B (part of D18) is concerned, it talks about total educational expenses for 1995-96 for Amit Arora. Check period ends with 17.10.1995 and therefore, defence wants proportionate reduction in tuition fee and practical charges. This is not doable as expenditure had been made within the check period and it hardly matters whether part of such amount was meant for period beyond the check period.
8.14 Accordingly, the total expenses towards educational expenses comes to Rs.55,970/-.
8.15 As per item no.11, prosecution wants me to suppose that accused D. L. Arora had incurred Rs.25,200/- as pocket allowance. Such pocket allowance has been calculated @ Rs.5 per day.
8.16 I have heard Ld. SPP on this attention-grabbing head and, as I thought, he has not been able to substantiate said head in any manner whatsoever. No witness has deposed with respect to any such pocket allowance. Again this head seems to be weird and perplexing. So much so, even investigating officer has not bothered to elucidate said item of pocket allowance in any manner whatsoever.
8.17 Sh. Ohri, during the course of defence arguments, however, volunteered to calculate the same @ Rs.2 per day. His generosity cannot be CBI Vs D. L. Arora CC no. 27/2011 36 of 62 blindly seized. It is primary duty of prosecution to stand on its own legs. It has no business to rely on weaknesses appearing in the defence. It also cannot be permitted to dig out unwarranted mileage out of admission made by defence during the course of final arguments.
8.18 Household expenditure has been calculated by the prosecution as Rs.1,33,581. In such type of disproportionate assets matters, 1/3rd amount of the income is assumed to be spent on household expenditure. This is done in terms of case of Sajjan Singh Vs. State of Punjab AIR 1964SC 464 where it is observed that taking the most liberal view, it was not possible for any reasonable man to say that assets to the extent of Rs. 1, 20,000/- was anything but disproportionate to a net income of Rs. 1, 03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses.
8.19 Sh. Ohri has argued that CBI has calculated expenditure on the gross salary which included various allowances like uniform allowance, school advances and the expenditure should have been ascertained on the basis of net/carry home salary only. In this regard, he has also drawn my attention towards the cross examination of PW27 Inspector Yashvir Singh (IO).
8.20 However, such assertion has not been developed by the defence in the desired manner. If I am able to read the charge sheet properly, the salary of D. L. Arora has been shown as Rs.4,04,792.35 His salary for the month of June 1977 and July 1981 has been taken as Rs.1,396/- which again is not disputed by the defence. I am, at the moment, not reckoning the other heads of income. And if both the aforesaid salary heads are taken together, the total salary comes to Rs 4,06,188.35/- and the one third of such salary comes to Rs. 1,34,042/-.
CBI Vs D. L. Arora CC no. 27/2011 37 of 62 8.21 As per prosecution, expenditure under this head comes to Rs.
1,33,581/-. Since I cannot read such expenditure in excess and to the detriment of accused, I hold such household expenditure as Rs.1,33,581/-.
8.22 As regards Item no. 13, prosecution wants me to accept as true that accused had incurred expenditure of Rs.40,320/- as conveyance allowance. Sh. Jagbir Singh, Ld. SPP has contended that accused was residing in Faridabad all along whereas his office was at IGI Airport, New Delhi and he must have incurred such amount on commuting from his home to office and for return journey.
8.23 I am forced to comment and lament that such item has not been suitably explained by the prosecution. On the other hand, the corresponding remark in the charge sheet indicates that the conveyance expenses have been picked up from the school expenses of his children.
8.24 I had to, per force, take the aid of previous charge sheet where similar expenses have been shown and the calculation has been done by imagining that accused had incurred Rs.10 per day on conveyance.
8.25 Normally, when household expenditure is calculated and one third of salary is taken as expenditure, it necessarily has to include such type of petty expenses as well.
8.26 Be that as it may, again, such wild assertion has not been substantiated at all. Neither any logic has been provided nor such fact has been proved by anyone. Merely because it is so mentioned in the previous charge sheet, it cannot be held so. Though during the course of arguments, Sh. Ohri, again tried to be extra-charitable and claimed that such CBI Vs D. L. Arora CC no. 27/2011 38 of 62 expenditure be taken as Rs.14,988/- but merely because he has chosen to admit so, I am not inclined to hold so robotically. I, therefore, exclude such expenses altogether. Thus the expenditure stands proved as under:-
S. No. Details of Expenditure Amount in Rs.
1 On education and conveyance of all three children 55,970
2 Pocket Allowances of Amit, Kajal & Hema Arora. -
3 Pocket Allowance of D.L. Arora @ Rs.5 per day. -
4 Household expenditure 33% of carry home salary. 1,33,581
5 Conveyance allowance of DL Arora from H. No. 1970 -
Faridabad to office.
Total 1,89,551
(B) EXPENDITURE OF MRS. URMIL ARORA.
Sl. Details of Expenditure Amount (In Rs.) Defence version
No as per charge
. sheet
1 Loan return to D.L. Arora 50,000 admitted
2 Loan of LIC payment: Payment of 90,856 admitted
Rs. 10,000/- paid by LIC on
account of Survival benefit got
adjusted against the loan.
3 Sipani Automobile 10,000 admitted
Total 1,50,856 admitted
8.27 There is no requirement of discussing such expenditure as
defence admits all the aforesaid three heads of expenditure.
(C) EXPENDITURE OF SH. RAM CHANDER ARORA
Sl. Details of Expenditure Amount (In Defence Remarks
No. Rs.) as per version
charge
1 Household expenditure Kitchen 20,550 20,550/-
expenditure of Ram Chander (admitted)
Arora and his wife, who is
CBI Vs D. L. Arora CC no. 27/2011 39 of 62
residing at Maida Mohalla Meerut
separately.
2 Kitchen expenditure as well as 23,168 23,168 Court has
pocket allowance etc. @ 500 Rs. (Admitted) already given
Per month 12*500= 6000/- benefit of Rs.
33,232 during
charge.
3 Gift to Smt. Urmil Arora 66,000 66,000/-
(admitted)
4 House tax of H. No. 1970. 11,077 6959
Total 1,20795 1,16,677
8.28 As regards head no.2, the court has already granted the
requisite benefit to the accused.
8.29 Defence has raised contention with respect to expenditure of
house tax only. According to CBI, such expenditure is Rs.11,077/- but
according to defence such expenditure is Rs.6959.
8.30 In this regard, let me straightway refer to the testimony of PW30 Sh. Nanak Chand Aggarwal. This witness has deposed that assessee i. e. Sh. Ram Chander had paid house tax of Rs.11,077.50 for the period 1986-87 to 1997-98. Though Sh. Nanak Chand claimed that the house tax paid by the assessee was Rs.11,077.50 yet in his cross examination, he admitted that when the house tax is paid in time by the owner, the owner is granted rebate of 10%. He failed to elucidate whether the house tax deposited in the present case was actual or after rebate.
8.31 One thing is very clear.
8.32 House tax was Rs.350 in 1987-88 and 1988-89. It was enhanced to Rs.1102.50 from 1989 onwards and to Rs.1190 from 1994-95.
CBI Vs D. L. Arora CC no. 27/2011 40 of 62 8.33 However, it is only the amount of the house tax assessed. It is
further bounden duty of prosecution to show whether any rebate was availed or not and what was the actual amount deposited. One receipt, which forms part of D41, itself indicates that when the house tax was deposited for the period 1996, the house tax was Rs.1190 and assessee was given rebate of Rs.119 (rebate of 10%) and was asked to pay Rs.1071 only.
8.34 Thus if 10% rebate is granted then the actual expenditure would come to Rs.9970.
8.35 Actual receipts of deposit have not been placed. Merely because House Tax assessed was Rs.11,077/- for all these years, it cannot be robotically inferred that accused had actually deposited said amount and did not avail any sort of rebate.
8.36 Sh. Ohri has also contended that there was exemption from payment of house tax up to 1986 but no such question or suggestion was put to PW30 Nanak Chand Aggarwal and such fact has not been got proved in any manner whatsoever and, therefore, I am unable to grant any benefit in this regard to the accused.
8.37 Thus the expenditure towards house tax is held as Rs.9970/- after giving rebate of 10%.
CBI Vs D. L. Arora CC no. 27/2011 41 of 62
ASSETS OF ACCUSED D.L. ARORA
(A) MOVABLE ASSETS OF D L ARORA
Sl. Details of Assets Amount (in Rs.) Defence version
No. as per charge
sheet
1 Payment of Rs.1693/- made in 27,088 Admitted
11/95 after check period.
2 LIC Policy No.120037331 31,364 Admitted
3 Balance as on 16.10.95 was 25,657.12 Admitted
Rs.25,657.12
4 A/c No.3694 Union Bank of 819.45 Admitted
India, Faridabad
5 Balance as on 16.10.95 was 4,952.92 Admitted
Rs.4952.92
6 A/c No.10040 P&S Bank 2,402.25 Admitted
Faridabad
7 FDR No.979/95 in the name of 10,000 Admitted
Amit Arora U/G D L Arora
8 FDR No.980/95 in the name of 10,000 Admitted
Hema Arora U/G D L Arora
9 FDR No.981/95 in the name of 10,000 Admitted
Kajal Arora U/G D L Arora
10 Originally the FDR No.7979 10,000 Admitted
Union Bank of India was for
Rs.10,000 interest paid by
Bank
11 Originally the FDR No.8346 10,000 Admitted
Union Bank of India Faridabad,
was for Rs.10,000, Interest
paid by Bank
12 NSC No.07cc/929601 1,000 Admitted
13 Folio No.2054381 Reliance 2,000 Admitted
Petroleum Ltd.
14 Folio No.08973016 Reliance 1,000 Admitted
Petroleum Ltd.
15 Folio No.1251202 Indl. Finance 1,750 Admitted
Corp. India Ltd.
16 Folio No.1390283 SBI Mutual 5,000 Admitted
Fund (500 Magnum)
17 Folio No.187061 Tamil Nadu 1,200 Admitted
Petro Product
18 Folio No.321420432 Reliance 5,00 Admitted
Polypropylene
CBI Vs D. L. Arora CC no. 27/2011 42 of 62
19 Folio No.72080513 1,500 Nil ( Benefit given at the
time of charge)
20 Cash recovered from house 1,52,800 Admitted
21 Household Articles 2,10,562 1,40,500
22 Jewellery 289 gms. Gold 36,047 Nil
jewellery were found his
house (the cost of
jewellery is shown in the
ITR of Urmil Arora)
23 Personal search 8,000 3500
Total 5,63,643 4,51,525
9.0 As already noted above, at the time of consideration of charge,
court had granted benefit of Rs. 1500/- for such expenditure mentioned at Sr. no. 19. Reference be made to Para 12 of order on charge.
9.1 Out of 23 heads, defence has hard feelings with respect to three heads only.
9.2 Let me right away deal with those.
9.3 As per head no.21, when the house of accused was raided and search was conducted, accused was found in possession of assets worth Rs.2,10,562/-. In this regard, it would be important to see the observation memo (D4) which has been proved as Ex.PW18/B. PW18 Sh. A. G. L. Kaul was posted as CBI inspector and had been deputed for search of house of D. L. Arora. He had gone there with independent witnesses and such house i. e. house no.1970, Sector-16, Faridabad, Haryana was searched. According to him, the approximate date and cost of acquisition of assets were told by accused D L Arora himself. Several suggestions were put to him in order to demonstrate that the cost of some of the assets was shown exaggerated.
Undoubtedly, I am conscious of the fact that several inconsequential and CBI Vs D. L. Arora CC no. 27/2011 43 of 62
non-verifiable items like fans, tube light, wall clock, wearing clothes, petty kitchen utensils, edibles like flour, pulses and spices etc. were also not spared and CBI attempted to ascertain their worth and acquisition date. The most important constituent, however, are gold ornaments weighing 289 gms. and cash which figure under different heads. No other search official has graced the witness box.
9.4 It is not easy and possible to assess cost of some of the articles purchased long back. Garments have been shown having worth of Rs. 12,000/- and acquired in 1995 alone which does not seem to be plausible. CBI wants me to believe that all clothes were purchased in the same year. Cost of telephone instrument has been shown as Rs.2000/- whereas normally land line instrument is provided by the telephone company with connection. At least the make or model of such instrument should have been made clear to the court if at all instrument had been purchased privately. Similarly, the make of air conditioner or washing machine has not been specified. Cost of two tube lights shown as Rs.160 is excessive. 68 video cassettes are also found reflected in the inventory and the total cost of such video cassettes has been shown Rs.6800 and cost of 41 CDs is shown as Rs.6150. 45 pairs of shoes have been shown acquired in the year 1995 having worth of Rs. 14,500 which also does not seem to be probable.
9.5 Taking stock of aforesaid, I am inclined to grant benefit of Rs. 30,000/-.
9.6 In serial no. 22, there is reference of jewellery recovered from the house search of accused. Investigating agency has calculated the worth of these gold articles as Rs.36,047 but it has not been apprised as to in what manner the calculation has been done.
CBI Vs D. L. Arora CC no. 27/2011 44 of 62 9.7 Curiously, it remains a mystery as to how the weight was
assessed by CBI with such precision without calling any goldsmith or without any weighing apparatus. Mentioning weight by approximation was palpably erroneous and unwarranted.
9.8 According to Sh. Ohri, all such ornaments were of the period prior to the check period and the value has been picked up by the investigating agency as per the ITR of Urmil Arora ending on 31.3.1995. Sh. Ohri also contends that even as per the case of prosecution, Urmil Arora had sold 164.15 gms. of gold jewellery for Rs.69,763 and such aspect has not been considered by the prosecution at all. I have seen ITR of Urmil Arora (part of D7A) wherein she declared possession of gold jewellery (old) weighing 505 gms. with her as on 31.03.95. She assessed worth of such jewellery as Rs.36,047/-. CBI merrily picked up the same figure forgetting the fact that there was recovery of ornaments weighing 289 gms. Such recovery took place on 17.10.95. Proportionate benefit should have been given. If worth of 505 gms of gold was Rs.36,047/- then worth of 289 gms gold would be approximately Rs.20,000/- only. Gold rate of 1995 cannot be applied for ornaments acquired in 1977. Thus, I hold worth of such gold ornaments as Rs.20,000/-. Fact regarding sale of jewellery has already been considered in income of Urmil Arora.
9.9 As regards item no.23, Sh. Ohri has contended that out of the recovered money from personal search, a sum of Rs.4500/- had been given by DW2 Sudhir Kataria and, therefore, the affective worth of personal would be Rs.3500/- and not Rs.8000/-. However, such aspect has already been considered and there is no possibility of granting any concession to accused with respect to such head.
CBI Vs D. L. Arora CC no. 27/2011 45 of 62
(B) MOVABLE ASSETS OF MRS. URMIL ARORA
Sl. Details of Assets Amount (In Defence version
No. Rs.) as per
charge sheet/
charge
1 A/c No. 3740 Union Bank of India, 5,059.77 admitted
Faridabad.
2 A/c No. 12225 PNB, Faridabad. 17,216.46 admitted
3 A/c No. 814, Andhra Bank, 86,640 admitted
Faridabad.
4 A/c No. 13766 Central Bank of 1,328 admitted
India, Badar Pur.
5 FDR No. 7071 in the name of Kajal 5,000 admitted
Arora U/G Urmil Arora.
6 Shares of different companies. 97,834 admitted
7 Maruti Car No. HR-29- A-6500. 1,13,649 admitted
8 Scooter No. DAD-4009 ---- admitted
Total 3,26,726 admitted
9.10 There is no requirement of dealing with such expenditure as all
the heads are duly admitted by the defence.
(C) IMMOVABLE ASSETS OF MRS. URMIL ARORA
Sl. Details of Income Amount (In Defence version
No. Rs.)as per
charge sheet
1 House No. 1164, Sector-17, 76,235 Admitted
Faridabad. Purchased for
Rs. 76,235/-.
2 Construction cost taken as 18,95,479 6,66,634
per valuation in previous
charge-sheet.
Total 19,21,714
9.11 There is no dispute that house no.1164, Sector 17, Faridabad
was purchased by Smt. Urmil Arora for a sum of Rs.76,235/-. PW21 Sh.
CBI Vs D. L. Arora CC no. 27/2011 46 of 62 Ishwar Singh had been deputed by Estate Officer, HUDA, Faridabad to produce the entire file pertaining to said house to CBI during the investigation. I have seen D138 which contains several documents pertaining to said house and all such documents have been admitted by the defence as Ex. A88 collectively. Such house was initially allotted to one Sh. S. K. Sikka and thereafter it was transferred in the name of Smt. Urmil Arora. Accordingly, possession certificate and occupation certificate dt. 30.7.92 were issued in her name.
9.12 However, it is the second head which seems to be the real bone of contention.
9.13 According to CBI, after such plot was acquired by Smt. Urmil Arora, the construction was carried out and the construction cost was whopping Rs.18,95,479/-. According to defence, however, the construction cost was Rs.6,66,634/- only. Thus there is difference of more than Rs.12 lacs under this head alone which can easily be called the deciding factor. Fate of the case virtually rests over such head.
9.14 Sh. Singh has relied upon testimony of PW34 Rajiv Sharma on this score whereas Sh. Ohri has relied upon the valuation done through Income Tax Department.
9.15 Interestingly, said property has three different valuation reports.
9.16 Smt. Urmil Arora wanted to take loan from LIC and, therefore, she got said property valued. PW28 Suresh Chand Gupta, Architect carried out such inspection. His report is contained in D157 which has been proved as Ex.PW28/A and according to him the estimated cost of construction on CBI Vs D. L. Arora CC no. 27/2011 47 of 62 completion would be Rs.5,54,700/-. Such inspection report is dated 4.9.92. Abstract of cost is given in D158 which has been proved as Ex.PW28/B. 9.17 Second report is of PW34 Sh. Rajiv Sharma. He carried out inspection in October 1997 as per the direction of CBI and concluded construction cost as Rs.18,95,479/-. His report is Ex.PW27/E. Detailed item wise cost is found incorporated in Annexure B which has been proved as Ex.PW34/B. 9.18 Third report is of Income Tax Department. It has been brought on record by the defence and reference be made to the testimony of DW7, DW9, DW10 and DW11. As per said valuation report of Income Tax Department, the cost of construction was as Rs.7,01,720/-. Inspection is dated 10.11.1998 and such report has been proved as Ex.DW7/A. Perusal of testimony of DW11 Sh. Sanjay Kumar would reveal that said house was got evaluated by the Evaluation Cell of Income Tax Department situated at Rohtak, Haryana and its value was found to be Rs.7,01,720/- by the Evaluation Cell. As per the report, the construction started in the year 1989-90 and ended in 1995-96 and thus the construction was in phases and the valuation was also computed year wise.
9.19 Sh. Ohri has contended that the valuation report given by engineer of CBI is unworthy of credence. According to him, CBI did not involve any independent agency for evaluation of cost of construction. It was according to him sine qua non. Secondly, the construction cost has been assessed without any proper basis.
9.20 Let me first consider the testimony of PW34 Sh. Rajiv Sharma.
CBI Vs D. L. Arora CC no. 27/2011 48 of 62 9.21 In his opening line of deposition, he claimed that he was posted
as a Junior Engineer in the Engineer Cell, CBI Headquarters on deputation from April 1996 to March 2000. Undoubtedly such types of technical officials are hired by CBI on deputation so that their services are utilized as and when need so arises. However, still, it would have been lot better had CBI entrusted such job of valuation to a neutral agency. Some officials of PWD or CPWD could have been very easily roped in instead of asking its own official to do the job.
9.22 Proceeding further, PW34 Sh. Rajiv Sharma along with IO Inspector Yashvir Singh and two other CBI officials went to Faridabad at the relevant sites to measure the properties and evaluating the same. It would be interesting to note that CBI had gone for evaluation of all the three properties i. e. 1970/16, Faridabad, 1164/17, Faridabad and also the aforesaid shop situated at N.I.T., Faridabad.
9.23 Sh. Rajiv Sharma further claimed that all the three properties were evaluated and reports were prepared. He also claimed in the next breath that while preparing such reports, Sh. P. K. Kailashan guided him and then he prepared such reports.
9.24 I take a little pause here.
9.25 Sh. Rajiv Sharma himself happens to be an engineer and it is indeed intriguing as to why he was compelled to take assistance from this mysterious man P. K. Kailashan. Sh. P. K. Kailashan is not a witness of prosecution. Amusingly, in his cross examination, Rajiv Sharma went to the extent of deposing that such Mr. Kailashan never accompanied him to the property. Despite that, Rajiv Sharma has shown the impudence of preparing CBI Vs D. L. Arora CC no. 27/2011 49 of 62 the reports as per the guidance and inputs of Mr. Kailashan.
9.26 In such a situation, it was expected that prosecution would come with request to call this gentleman to make things clearer but no such request was received from CBI. Thus prosecution has chosen to hold back mystery man who actually authored such reports.
9.27 Sh. Rajiv Sharma is a diploma holder in Civil Engineering. According to him, he was not provided with any building plan of the properties at the time of his visits and IO had verbally apprised him about the construction year of such properties. He also claimed that he did not do any digging to measure the depth of foundation or extra foundation and assumed the extra foundation since the building was more than double storey. When asked as to how he came to know that the building was termite-proof, he claimed that he did not do anything in this regard but assumed so as standard practice. He does not know the Rules and Regulations of HUDA. In his cross examination he also claimed that his valuation was purely on approximate basis. So much so, in his reports, he also claimed that if exact evaluation was to be obtained then the case should be referred to CPWD or CVC. He also admitted that rebate of 10% was required to be given in case of self supervision of construction. He, however, claimed that he did not pass on the benefit of such rebate at the time of final evaluation of the cost of construction. He also claimed that there was no CPWD rates separately for Faridabad and he had applied the rates of CPWD meant for Delhi. He also does not know as to which portion of the property was constructed in which period?
9.28 If I compare the reports of valuation conducted by PW34 Sh. Rajiv Sharma and DW10 Sh. Subhash Chander Sood, I would also discover CBI Vs D. L. Arora CC no. 27/2011 50 of 62 that the area of basement, ground floor and first floor described in these two reports do not tally.
9.29 I have seen testimony of DW10 Sh. Subhash Chander Sood. Construction cost was assessed as Rs.7,01,720/- by him. In his cross examination, he admitted that there was a written order of evaluation of house no.1164/17, Faridabad. Various questions were put by prosecution in order to see whether Sh. Subhash Chander was having requisite technical knowledge and expertise or not but nothing surfaced which may dent his credibility or could show that his report was unjustified or incorrect or undervalued.
9.30 I have seen report Ex.DW7/A and the cost of construction has been worked out on year-wise basis and the abstract of cost is found mentioned in Annexure attached to the report. There is a brief note with respect to the history and specification of the property and cost index has also been specified.
9.31 Even if I choose to ignore the report of the Valuer whose services were taken when Ms. Urmil Arora wanted to take loan from LIC, there are still two reports before me i.e. report of CBI and report of Income Tax Department.
9.32 As per report given by Sh. Rajiv Sharma of CBI, IO apprised Sh. Sharma that the building was constructed between June 1991 to December 1993. Therefore, the cost index was taken as of September 1992 i. e. mid period. It is also not in dispute that the CPWD rates meant for Delhi were applied whereas fact remains that the property is situated in Haryana. As per the report of Income Tax Department, the construction continued from CBI Vs D. L. Arora CC no. 27/2011 51 of 62 1989-90 to 1995-96 and the cost of construction was arrived by working out year wise construction cost which seems to be the most appropriate method. Reason of escalation may be directly attributable to two factors i. e. applying cost index of Delhi and choosing static year of construction.
9.33 I cannot be oblivious of the fact that both the reports are of Government agencies. DW10 Subhash Sood retired as Assistant Engineer of CPWD and therefore, there is nothing to be doubted as regards his credibility and technical expertise. It is established principle of criminal justice delivery system that if two views are possible then one which is favourable to the accused should be adopted. In the present case, the report given by Income Tax Department cannot be ignored altogether. Rather, on the contrary, I am compelled to give weightage to such report particularly keeping in mind the fact that it had assessed the construction cost year-wise and had taken the cost index of Faridabad. Since such construction cost has been found to be Rs.7,01,720/- and since admittedly it was a case of self-supervised construction, defence is entitled to 10% rebate and therefore, the actual construction cost comes to Rs. 6,31,548. Thus the construction cost is held as aforesaid.
(D) MOVABLE ASSETS OF SH. RAM CHANDER ARORA
Sl. Details of Assets Amount (In Defence version
No. Rs.) as per
charge sheet
1 A/c No. 12247, PNB, Faridabad as per 1,04,971.69 admitted
previous charge sheet.
2 A/c No. 18405, SBI, Nehru Place, New 61,886.30 admitted
Delhi.
3 A/c No. 8511, Union Bank of India, 83,412 admitted
Faridabad.
CBI Vs D. L. Arora CC no. 27/2011 52 of 62
4 A/c No. 8800 SBI Apna Bazar, Meerut. 24,466 admitted
5 A/c No. 17410 Central Bank of India, 20,537 admitted
Meerut.
6 Share certificate (actual value of 25,000 admitted
share was Rs. 25,000/-)
7 Luna Moped UP-15-C-5395 --- admitted
8 Household assets 25,000 5,000
Total 3,45,272 3,25,272
9.34 As per aforesaid chart, defence has qualm with respect to only
one head. According to prosecution, the household assets of Sh. Ram Chander Arora were worth Rs.25,000/- whereas according to defence, worth of these assets was not beyond Rs.5000/-.
9.35 Such assets have been taken by the prosecution as per the previous charge sheet.
9.36 Annexure H of previous charge-sheet has been perused where cost has been calculated on the basis of assets like fridge, colour TV, double-bed, gas, sofa etc. 9.37 Prosecution has not bothered to explain the make and the individual cost of the fridge or of colour TV. There is no observation memo either and these seem to be the pure guess work of IO. Ideally, there should have been inventory based on physical observation but nothing of that sort is found to be there. I have seen the testimony of IO Inspector Yashvir Singh and he has skipped answers in this regard. In his cross examination, he deposed that he did not remember whether he had gone alone or with someone to Maida Mohalla, Meerut. He also claims that he does not remember whether he had prepared any observation memo or not.
CBI Vs D. L. Arora CC no. 27/2011 53 of 62 9.38 Sh. Ohri has also drawn my attention towards testimony of
PW11 Sh. Prem Kumar. He is the only witness who is in a position to make reference to such household assets. He claimed that he had seen household articles fridge, TV and Takhat. He has limited his deposition to that effect only. In his cross examination, he admitted that he must have seen that shop when he was 12 years old and he also admitted that the fridge had been provided by the cold-drink company. In view of limited material placed on record by the prosecution and non-preparation of observation memo with respect to such alleged household assets, I am unable to hold worth of such assets beyond Rs.5000/-.
(E) IMMOVABLE ASSETS OF SH. RAM CHANDER ARORA Sl. Details of Assets Amount (In Rs.)as per charge sheet No. 1 Cost of plot no. 1970 Sector-16, 14,000 Faridabad.
Construction cost based on valuer of 5,01,930 H. No. 1970.
2 Flat No. 211, Madipur, Delhi. 48,730.913 Cost of plot no. 28 NIT, Faridabad. 14,000 Construction cost based on valuer of 27,810 Plot No. 28, NIT Faridabad.
Total 6,06,470 9.39 As per the case set up by prosecution, immovable assets
available with Sh. Ram Chander were to the tune of Rs.6,06,477/-. As far as the acquisition cost of plot no.1970/16, Faridabad amounting to Rs.14,000/- is concerned, there is no dispute even from the side of defence. Similarly, there is no dispute with respect to the acquisition cost of flat no. 211, Madipur, Delhi.
CBI Vs D. L. Arora CC no. 27/2011 54 of 62 9.40 As regards the cost of plot no.28, N. I. T. , Faridabad, it was
shown as Rs.14,000/- in the charge sheet but while framing charges, benefit of Rs.2,000/- was given to defence in terms of para no.26 and 27 of order on charge and, therefore, the cost of plot no.28, N. I. T., Faridabad is held as Rs. 12,000/- instead of Rs.14,000/-.
9.41 Conflict is with respect to the construction cost of house over plot no.1970, Sector-16, Faridabad and the construction cost of shop at plot no.28, N. I. T., Faridabad.
9.42 As per CBI, the construction cost of house over plot no. 1970/16, Faridabad is Rs.5,01,930/- and in this regard reliance has been placed upon the testimony of PW34 Rajiv Sharma who has deposed that the total cost of construction was Rs.5,01,930/-. Such evaluation report is contained in Annexure A which has been separately exhibited as Ex.PW34/A. 9.43 Defence contention remains the same.
9.44 It has been claimed that valuation should have been got done by a disinterested Valuer and moreover there was no justification of having any guidance and inputs from an outsider who has not even been cited as prosecution witness. Defence has not come up with any separate valuation report of its own. Sh. Ohri has argued that the construction cost has been taken on a higher side and even as per claim of Rajiv Shama, cost was purely on approximation basis and no rebate of 10% was either given for self supervision. Accused is undoubtedly entitled to rebate of 10% and to be fair to him, I extend further relief of 10% to him as CPWD rates as applicable to Delhi were applied. After giving total rebate of 20%, the actual construction cost would come as under:
CBI Vs D. L. Arora CC no. 27/2011 55 of 62 Cost of construction as per CBI/charge sheet. Rs.5,01,930/- 20% of cost of construction. Rs.1,00,386/- Cost after 20% rebate (Rs.5,01,930-1,00,386)= Rs.4,01,544/- 9.45 Similarly, with respect to the construction cost of shop, as per
CBI, the construct cost was Rs.27,810/- and for the aforesaid reason I grant rebate of 20%. Thus the construction cost comes to Rs.22,248/-.
(F) IMMOVABLE ASSETS OF SH. D. L. ARORA 9.46 I have gone through the old charge sheet as well as the new
charge sheet. Prosecution has not come up with any material showing that accused D. L. Arora was having any immovable assets in his name. No expenditure pertaining to purchase of immovable property by Sh. D. L. Arora has either been reflected anywhere.
9.47 I would, however, fervently compliment defence which itself admitted that accused had incurred expenditure of Rs.1,81,000/- in this regard by becoming member of one society known as New Kanchanjunga Cooperative Group Housing Society Ltd. having registered office in house no.2, Village Masjid Moth, New Delhi-49 and said amount was paid by accused during the period 1984-95. It's rare and unusual to see defence that much fair. Difference of two lacs can swing the fortunes either way in such type of delicate matters.
9.48 In this regard, surprisingly, CBI itself collected relevant details from M/s New Kanchanjunga Cooperative Housing Society Ltd. Such details are contained in D73 and D74 which are admitted documents and which CBI Vs D. L. Arora CC no. 27/2011 56 of 62 clearly signify that accused had made payment of Rs.1,81,000/-. It has, however, not been apprised whether pursuant to such membership of said society, accused was actually allotted any flat though fact remains that such expenditure is liable to be added.
9.49 Therefore, sum of Rs.1,81,000/- is, instead, added in the expenditure incurred by Sh. D. L. Arora.
SANCTION 10.0 An interesting situation has arisen.
10.1 Earlier when charge sheet was filed, the court had taken cognizance on 09.03.1999. At that time, sanction for the prosecution was also attached. Such sanction has been proved as Ex.PW29/A. Ms. Vijay Jutshi, Commissioner of Customs had accorded sanction for prosecution being authority competent to remove accused from his office. She had accorded the same after fully and carefully examining the material placed before her. According to such sanction, the assets disproportionate to the income were of more than Rs.30 lacs.
10.2 She was, however, not kept in the loop regarding the subsequent development.
10.3 As already noticed above, the accused was discharged and CBI was given liberty to re-investigate the matter and to submit a fresh charge sheet, if required. Reason for discharge was non-consideration of the assets which were available to accused and his family on the date of commencement of check period.
CBI Vs D. L. Arora CC no. 27/2011 57 of 62 10.4 Matter was accordingly re-investigated. Investigating agency
again came to the conclusion that it was a case of disproportionate assets though the worth of disproportionate assets stood reduced to Rs.23,10,216. According to CBI since there was a direction to re-investigate, there was no requirement of obtaining fresh sanction. However, according to defence, that was not right and since the matter had been investigated afresh and the various aspects related to income and assets were again enquired into, all such material was required to be placed before sanctioning authority all over again and the investigating agency could not have banked upon the previous sanction.
10.5 Undoubtedly, the accused remains the same. The offence remains the same. The nature of offence remains the same. However, the accused had been discharged by the court as the CBI did not consider the assets existing at the beginning of the check period. Even if the matter had been re-investigated, it was obligatory on the part of investigating agency to have submitted all such material before the sanctioning authority all over again so that sanctioning authority could reassess the entire material in order to see whether the sanction of prosecution was, in fact, warranted or not. Investigating agency should not have blindly relied upon the previous sanction.
10.6 I would append that placement of complete material before sanctioning authority for grant of sanction is sine-qua-non. It should be perceptibly clear from sanction order that sanctioning authority had taken into consideration everything. There was no scope for assumption for CBI. It was the exclusive prerogative of sanctioning authority whether it would have taken a different view or same view had the material, so withheld, been laid before it.
CBI Vs D. L. Arora CC no. 27/2011 58 of 62 10.7 Needless to reiterate that this provision does not intend that a
public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction.
10.8 Noteworthy to mention that sec 19(3)(a) of Prevention of Corruption Act, 1988 rather stipulates that no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
10.9 I cannot be oblivious of the fact that it's not a case of there being no sanction at all. There was a valid sanction from competent Authority at earlier occasion. CBI, in its wisdom, did not opt to have fresh sanction. It should have gone for that. But in such a peculiar backdrop, it cannot be automatically inferred that there is failure of justice. Previous sanction does not become extinct altogether more so when there is aforesaid provision which prescribes that order does not stand invalidated even in the eventuality of there being no sanction at all.
10.10 Thus, defence cannot be permitted to grudge and grumble on this aspect.
CONCLUSION 11.0 It's time to wrap up and come to final conclusion. I would, however, hasten to add that though there was specific direction yet the exact worth of assets existing at the beginning of the check period were not properly calculated and reflected in the charge sheet. It is also totally CBI Vs D. L. Arora CC no. 27/2011 59 of 62 bewildering to comprehend as to why in order to prove a certificate of holding in a company, CBI cited its Chairman A.D. Ambani as its witness. Such inconsequential fact could have been got proved through any official at clerical level. Similarly, I am at bay to understand why MD of automobile company was made witness for mere proving of booking of car. I can only hope and pray that CBI does much-needed homework while preparing list of witnesses.
11.1 In view of my foregoing discussion, the income, expenditure and assets of accused and his family members would be as under:-
INCOME Name (As per new charge (As per order on (Held) sheet) charge) In Rs.
In Rs. In Rs.
D. L. Arora 5,74,942 5,79,952 5,79,942
Urmil Arora 9,02,967 10,49,542 12,03,648
Ram Chand 6,26,356 6,26,356 11,21,456
Total 21,04,265/- 22,55,850 29,05,046
EXPENDITURE
Name (As per new charge (As per order on (Held)
sheet) charge) In Rs.
In Rs. In Rs.
D. L. Arora 2,65,775 2,50,934 3,70,551
Urmil Arora 1,50,856 1,50,856 1,50,856
Ram Chand 1,54,027 1,20,795 1,19,688
Total 5,70,658 5,22,585 6,41,095
CBI Vs D. L. Arora CC no. 27/2011 60 of 62
MOVEABLE ASSETS
Name (As per new charge (As per order on charge) (Held)
sheet) In Rs. In Rs.
In Rs.
D. L. Arora 5,63,641 5,62,141 5,16.096
Urmil Arora 3,26,726 3,26,726 3,26,726
Ram Chand 3,45,272 3,45,272 3,25,272
Total 12,35,639 12,34,139 11,68.094
IMMOVABLE ASSETS
Name (As per new charge (As per order on (Held)
sheet) charge) In Rs.
In Rs. In Rs.
Urmil Arora 19,71,714 19,71,714 7,07,783
Ram Chand 6,06,470 6,04,470 4,98,523
D.L. Arora - - -
Total 25,78,184 25,78,184 12,06,306
DISPROPORTIONATE ASSETS
(As per new charge sheet) (As per order on charge) (Held)
In Rs. In Rs. In Rs.
23,10,216 20,69,268 1,10,449
11.2 In the case of KRISHNANAND AGNIHOTRI V. STATE OF M.P.,
AIR 1977 5C 796, it has been held that a margin of 10% of the income of the accused should be given for the purpose of determination of disproportionate assets held by him and applying said principle, such margin would come to Rs. 2,90,504.
CBI Vs D. L. Arora CC no. 27/2011 61 of 62 11.3 Aforesaid concluded disproportionate assets whereas is found
to be Rs. 1,10,449 which is evidently much less.
11.4 I, therefore, give benefit of doubt to accused and acquit him of charge u/s 13(1) (e) r.w. 13(2) of PC Act.
11.5 His bail bonds are cancelled and surety is discharged. He is, however, directed to furnish bonds u/s 437A Cr.P.C. in a sum of Rs. 20,000/- with one sure in like amount.
11.6 File be consigned to record Room.
Announced in the open Court On this 20th day of March 2013.
(MANOJ JAIN)
Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
CBI Vs D. L. Arora CC no. 27/2011 62 of 62