Delhi District Court
C.B.I. vs . 1. Bhim Sain Thaman on 18 July, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.28/11
Unique Case ID No. 02401R0070492001
C.B.I. Vs. 1. BHIM SAIN THAMAN
S/o Sh. Charan Ram,
R/o A1A/49A, Janakpuri,
New Delhi.
RC No. : 36(A)/98
u/Ss : 13(2) r/w 13(1) (e) of PC Act, 1988
Date of Institution : 17.07.2001
Received by transfer on : 01.10.2011
Arguments Concluded on : 07.07.2012
Date of Decision : 12.07.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Dr. LS Chaudhary, Ld. Counsel for accused Bhim Sain Thaman.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 1 of 73
JUDGMENT
CHARGESHEET 1.0 CBI has filed the charge sheet against Sh. Bhim Sain Thaman for the offence u/S 13(2) r/w 13(1)(e) of PC Act, 1988 for having been found in possession of assets worth Rs. 45,62,823.17/, which was disproportionate to his known sources of income. Sh. Bhim Sain Thaman joined the Telephone Department in 1967 as Telephone Inspector in the pay scale of Rs. 150300. He was selected as Jr. Engineer in September 1975 and was promoted to the post of Assistant Manager in the year 1989 in the pay scale of Rs. 20003500/. In 1998, Sh. Bhim Sain Thaman was posted as Directory Officer. Sh. Bhim Sain Thaman hailed from Ludhiana, Punjab and had a large family consisting of 05 sisters and 01 brother. Eldest sister Pushpawati Thaman remained unmarried and retired as a Teacher in July 1993 and settled down in Ludhiana. In the year 1998, a case RC No. 58(A)/97 was registered against Sh. VK Uppal & Ors. During the course of investigation of RC No. 58(A)/97, the name of accused Bhim Sain Thaman came under suspicion and therefore, a search was conducted on 23/07/98 at his residential premises No. A1A/49A Janakpuri. Pursuant to the search, Inspt. Asha Badola made a complaint on the basis of which present RC No. 36(A)/98DLI was lodged on 2/7/98.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 2 of 73
The check period was fixed from 01/04/1982 to 23/03/1998. During investigation it was found that Sh. Bhim Sain Thaman was married to Smt. Rajender Thaman in the year 1970. They had two daughters Anjula Thaman (1974 born), Puja Thaman (1978 born) and son Sanjeev Thaman (1973 born).
Accused Bhim Sain Thaman was found in possession of assets amounting to Rs. 10,746/ in his name and in the name of the members of his family prior to the check period. The income during the check period, the expenditure made during the check period and the assets found at the end of the check period in the name of the accused and in the name of the members of his family, have been mentioned in detail in the chargesheet which are reproduced herein as follows:
TABLE A Income of Sh. Bhim Sain and Family Members:
S.No. Name of the Income Amount (Rs.)
1 Salary of Sh. Bhim Sain 5,20,124.15
2 Income from Honorarium 21,825.00
3 GPF Advance drawn by Sh. Bhim Sain 3,21,000.00
4 Income from Salary of Sh. Sanjeev Thaman 4,38,840.00
5 Business Income of Smt. Rajinder Thaman 2,04,040.00
6 Income of Smt. Rajender Thaman from Dividends in respect of 25,981.00
shares of different companies.
7 Salary of Puja Thaman 38,000.00
8 Income from Survival Benefit in respect of LIC Policy No. 5,000.00
120011611 of Sh. Bhim Sain
9 Receipt of Shagun on account of marriage of Sh. Sanjeev Thaman 21,841.00
10 Income from Bank interest 64,802.00
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 3 of 73
11 FDR interest received by Sh. Sanjeev Thaman 9,424.00
12 FDR interest received by Smt. Rajender Thaman 38,697.00
13 Income of Sh. Sanjeev Thaman in respect of shares of different 13,425.00
companies
14 Income of Sh. Bhim Sain in respect of shares of different companies 7,612.85
15 Receipt of Advance from Mrs. Nisha Bansal 50,000.00
16 Receipt of Advance from Sh. Shiv Shankar Walia 1,75,000.00
17 Amount received by Sh. Bhim Sain on account of maturity of NSCs 40,225.00
18 Receipt of FDR interest by Sh. Bhim Sain 1,247.00
19 Receipt of Advance from Sh. IS Pasricha, CA 1,00,000.00
20 Income from sale of Property No. D-95, Vikaspuri, New Delhi 5,000.00
21 Income from Maturity of MIPs in respect of Sh. Bhim Sain 46,120.00
22 Income during check period from investments made prior to check 12,281.00
period
Total 21,60,485.00
. . . . . . . . . .
TABLE B
Expenditure of Sh. Bhim Sain Thaman & Members of his family :
S.No. Name of the Expenditure Amount (Rs.)
1 Electricity charges in respect of House Tax in respect of A1A/49A, 13,117.90
Janakpuri, New Delhi.
2 Property tax paid by Sh. Bhim Sain in respect of property No. 11,768.00
A1A/49A, Janakpuri, New Delhi.
3 Expenses on education incurred by Sh. Bhim Sain in respect of 38,400.00
Anjula Thaman and Puja Thaman
4 Expenses incurred on education, Hostel Accommodation and 55,240.95
messing of Sanjeev Thaman
5 LIC Premium paid by Sh. Bhim Sain and Sh. Sanjeev Thaman 53,045.00
6 Premium paid in respect of ULIP policies 52,000.00
7 Water charged in respect of H. No. A1A/49A, Janakpuri, New 771.00
Delhi.
8 Bill of Gurucharan Jewellers dtd. 31/3/91 6,557.00
9 Bill of Nayyar Electronics for purchase of BPL Refrigerator for Rs. 12,700.00
23,500/- and BPL TV Rs.19,800/-
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 4 of 73
10 Bill of Kapila Electronics for purchase of BPL Refrigerator for Rs. 43,300.00
23,500/- and BPL TV Rs. 19,800/-.
11 Cash receipt dtd. 15/12/97 issued by Sh. Vinod Lamba, AFM of 5,700.00
Deeshe Marketing India regarding installation of one Electri Chimney 12 Payment to Pishori Lal Jewellers 2,170.00 13 Renovation cost of H. No. A1A/49A, Janakpuri 62,761.10 14 Insurance paid towards vehicle No. DDD 7124 2,431.00 15 Marriage expenses of Anjula Thaman and Sanjeev Thaman 2,56,700.00 16 Expenses towards POL of car 34,490.00 17 Expenses on POL in respect of 2 wheelers 21,100.00 18 Payment towards freehold of property No. F-230, Vikaspuri 7,500.00 19 Property Tax in respect of H.No. F-230, Vikaspuri. 8,291.50 20 Payment made to MCD on account of H. No. F-230, Vikaspuri, 4,995.00 New Delhi.
21 Expenditure towards visit of Sh. Sanjeev Thaman to Nepal 13,200.00
22 Expenditure towards maintenance of family members 1,71,640.96
Total 8,77,878.51
TABLE - C
Assets in the name of Sh. Bhim Sain and Members of his family at the end of check period.
S.No. Name of the Asset Amount (Rs.)
1 A1A/49A, Janakpuri 1,45,000.00
2 Purchase and construction of plot No. F-230, Vikaspuri 18,80,528.00
3 Investment made on Shares, Bonds, Debentures etc. by Smt. 1,70,280.00
Rajender Thaman
4 Investment made on Shares, Bonds, Debentures etc by Sh. Sanjeev 3,10,000.00
Thaman
5 IDBI Bonds in the name of Sh. Bhim Sain and Puja Thaman 20,000.00
6 Investment in LIC Mutual Fund by Sh. Bhim Sain 20,000.00
7 Investment in Unit Trust of India in the name of Sh. Bhim Sain and 40,000.00
Puja Thaman
8 NSCs standing in the name of Sh. Bhim Sain, in the joint names of 76,000.00
Sh. Bhim Sain and Smt. Rajender Thaman and Anjula Thaman CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 5 of 73 9 Maruti Car No. DDD 7126 80,000.00 10 Yamaha Motor Cycle No. DL4SM 5501 29,000.00 11 Investment made by Sh. Bhim Sain for purchase of UTI MIP 1997 1,01,000.00 and KVPs in the joint names of self and Mrs Pushpawati Thaman 12 Cash 3,60,000.00 13 Balance in Bank Accounts 4,50,875.17 14 As per Observation Memo 95,975.00 15 Jewellery as per observation memo 2,09,165.00 16 Investment in SBI MF in the names of Sh. Bhim Sain and Smt. 40,000.00 Rajender Thaman 17 Purchase of H.No. A-3/113, Janakpuri, New Delhi 5,35,000.00 Total 45,62,823.17 CALCULATION OF DISPROPORTIONATE ASSETS A Income 21,60,485.00 B Expenditure 8,77,878.51 C Likely Savings (AB) 12,82,606.49 D Assets 45,62,823.17 E Assets at the beginning of the check period 10,746.00 F Total Assets (DE) 45,52,077.17 G Disproportionate Assets (FA) 32,69,470.68 CBI concluded that accused had disproportionate assets in the sum of Rs. 32,69,470.68p and he could not satisfactorily account for possession of the same and therefore, the chargesheet u/S 13(2) r/w 13(1)(e) of PC Act, 1988 was filed.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 6 of 73
The cognizance was taken by my Ld. Predecessor on 28/07/2001.
CHARGE 2.0 Being a prima facie case, charge u/S 13(2) r/w 13(1) (e) of PC Act, 1988 was framed, vide order dtd. 01/07/03. The charge initially framed was amended on 30.10.03, as there was an error regarding the figure of assets found in the possession of accused. Accused pleaded not guilty to the charge and claimed trial.
PROSECUTION WITNESSES 3.0 CBI examined 52 witnesses in support of its case. Prosecution witnesses regarding salary of the accused:
3.1 PW1 HS Patwal proved the salary of the accused for the period November 94, December 97. He also proved that accused took a GPA advance during this period in the sum of Rs. 3 lakhs. 3.2 PW2 Deepak Kumar Joshi proved the salary of the accused from March 1993 to Oct. 1994.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 7 of 73 3.3 PW4 Kuldeep Singh proved the salary of accused for the period January 1984 to November 1990.
Thus, apparently, the prosecution has not led any evidence on record in regard to salary of the accused from April 1982 to December 1983, December 1990 to February 1992 and as well for the period January 1987 to October 1987 and December 1987 and from January 1989 to December 1989. In total CBI did not lead any evidence regarding salary of 59 months during the check period.
Prosecution witnesses regarding bank account and interest earned by the accused:
3.4 PW6 Tirath Ram, Clerk cum Cashier proved the statement of account No. 9686 in the name of Bhim Sain Thaman. In this account, the last amount as on 23/3/98 was 1,42,437.12p. The statement of account has been proved as Ex.PW6/A1 to A4.
3.5 PW12 Vishnu Dutt Sharma, Asst. Manager, proved the statement of account No. 82111 in the name of Rajender Thaman and statement of account No. 81794 in the name of Puja Thaman. The last balance in the account No. 82111 as on 24/3/98 was 1,042/ and the total interest earned in this account was Rs. 5,563/. The last balance in the CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 8 of 73 account No. 81794 as on March 1998 was Rs.32,698.63p and the total interest earned in this account was Rs. 851/.
3.6 PW24 Sh. VK Aggarwal, Computer Operator proved the cheque Ex.PW20/B3 and B4 having been issued from account No. 44401 to the tune of Rs. 20,000/.
3.7 PW42 Sh. Kanhaiya Lal, proved copy of statement of account No. 43113 in the name of Rajinder Thaman for the period 1/3/95 to 30/6/97 as Ex.PW42/A. The witness stated that this account was closed on 18/3/96. 3.8 PW43 Sh. Vinod Abrol proved the copy of statement of account No. 44976 SF in the name of Bhim Sain Thaman for the period dtd.
14/3/92 to 31/3/95 and copy of statement of account No. 32751 SF in the name of Pushpawati for the period dtd. 14/3/92 to 13/10/93. The witness also proved the copy of statement of account No. 32751 SF in the name of Pushpawati (16/10/93 to 3/4/95) and the copy of statement of account No. 32712 SF in the name of Guran Devi and Pushpawati for the period 06/08/92 to 13/10/94 and 16/10/93 to 03/04/95.
The witness also proved the letter Ex.PW43/A and Ex.PW43/B. The statement of account No. 44976 in the name of Bhim Sain Thaman (for the period 14/3/92 to 13/5/94) has been proved as Ex.PW43/C. The CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 9 of 73 statement of account for the period 31/3/95 to 28/9/98 has been proved as Ex.PW43/C1. The witness stated that as on 23/3/98, there was a credit balance of Rs. 2,223.33p . The statement of account No. 32751 in the name of Smt. Pushpawati for the period 14/3/92 to 13/4/95 has been proved as Ex.PW43/D. The certified copy of the account for the period 4/4/95 to 30/10/98 has been proved as Ex.PW43/D1. The last balance as on 23/3/98 was Rs. 23,187.42p. The statement of account No. 32712 in the name of Smt. Guran Devi for the period 6/8/94 to 3/4/95 has been proved as Ex.PW43/E and the statement of account for the period 4/4/95 to 28/9/98 has been proved as Ex.PW43/E1. As on 23/3/98, it has a credit balance of Rs. 33,220.26p.
3.9 PW44 Sh. RS Saini deposed regarding statement of account No. 33166 in the name of Sh. Sanjeev Thaman, account No. 15665 in the name of Smt. Rajender Thaman. However, he stated that the record regarding these accounts have been destroyed being old. 3.10 PW47 Sh. Sudhir Kapoor handed over the statement of account of Sh. Sanjeev Thaman. These are Ex.P1 being admitted documents. 3.11 PW48 Sh. Ashok Kumar Srivastav proved the letter Ex.PW48/A regarding the SB A/c No. 35718 of Smt. Rajender Thaman. The statement of account has been proved as Ex.PW48/B. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 10 of 73 Witnesses regarding account and investment in Post Office and investment in Kisan Vikas Patra and National Saving Certificate:
3.12 PW7 Sh. Dushyant Yadav proved the KVPs and NSCs numbering 14 as Ex.PW7/A1 to A14. It is pertinent to mention here that same has not been disputed by the accused.
3.13 PW13 Satish Chander Gupta proved that the account No. 307466, 308753, 308754 and 308755 were opened with Janakpuri Post Office and amount of Rs. 100/ was deposited on every month. In all the accounts, a sum of Rs. 6,000/ was deposited. In A/c No. 307466, a sum of Rs. 7781/ was paid on maturity and in the remaining accounts, maturity amount of Rs. 8,003/ was paid.
3.14 PW14 Sh. Subhash Chander proved statement of account in respect of TD A/c No. 120052 in the name of Bhim Sain Thaman and in respect of accoiunt No. 2009872 in the name of Bhim Sain Thaman. 3.15 PW22 Sh. Rajender Pal proved the discharge certificate pertaining to NSC's No. 606986, 606987, 901275 and 901276 as Ex.PW22/A and Ex.PW22/B. These NSCs were in the name of Bhim Sain Thaman and Pushpa Thaman.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 11 of 73 3.16 PW29 Sh. Dalpat Singh deposed regarding investment of NSC by Sh. Sanjeev Thaman.
3.17 PW35 Sh. SS Bhatti proved the purchase of Kisan Vikas Patra by Bhim Sain Thaman and Smt. Pushpawati Thaman as Ex.PW35/A and Ex.PW35/B. 3.18 PW36 Sh. Mahender Pal Kapoor proved the Kisan Vikas Patra as Ex.PW36/A and Ex.PW36/B for Rs. 10,000/ each in the name of Pushpa Thaman and Bhim Sain Thaman issued from Ludhiana Kacheri Post Office. He also proved another KVP for Rs. 10,000/ Ex.PW36/C in the name of Bhim Sain Thaman and Pushpawati Thaman. The application for the purchase of KVP has also been proved as Ex.PW35/A and PW35/B. Witness regarding investment in UTI and IDBI:
3.19 PW16 Sh. Kapil Tyagi from UTI proved the letter Ex.PW16/A regarding the investment made by the accused and the members of his family as Ex.PW16/A. 3.20 PW45 Sh. KM Pradhan proved the investment made by Puja Thaman, Rajender Thaman and Bhim Sain Thaman in IDBI and proved the same as Ex.P8 (admitted document).
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Prosecution witness regarding jewellery:
Prosecution in the chargesheet has shown jewelery in the sum of Rs. 2,09,165/ as an asset. Besides that, it had shown a sum of Rs. 2,170/ as payment made to Pishori Lal Jewelers and bill of Gurucharan Jewelers dtd. 31/3/91 in the sum of Rs. 6,557/ towards the expenditure made by accused and other members of his family. In order to prove this fact prosecution examined PW3 Ashok Kumar Srivastava and PW9 Suraj Prakash.
3.21 PW9 Suraj Prakash though admitted the slip in the sum of Rs.
2,170/, however, he stated that this rough estimate might have been supplied to the customer on his request and against this rough estimate no payment was received. The witness stated that they sell the jewelery against pakka bill only. In the cross examination by the CBI, the witness stood his ground and stated that he never told that rough estimate was given against payment for the jewelery sold.
3.22 Similarly, PW3 Ashok Kumar Srivastava also turned hostile and stated that the rough estimate Mark A & B are merely estimates of cost of ornaments. During cross examination by the CBI, the accused denied the suggestion that these rough estimates were issued to the accused. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 13 of 73 Prosecution witness regarding electricity charges in respect of H.No. A1 A/49A, Janakpuri:
Prosecution has shown a sum of Rs. 13,117.90 as electricity charges in respect of H. No. A1A/49A, Janakpuri. 3.23 PW10 Sh. Prakash Chand proved the detail of electricity charges recovered from the consumer residing at A1A/49A, Janakpuri from 25/9/85 to 20/8/98 as Ex.PW10/B. The witness stated that a total sum of Rs.
13,624.90 was recovered on account of electricity charges. There is a slight difference in the amount shown by the CBI, however that would not make a difference, i.e. it is lesser than what the witness had stated here. Prosecution witnesses regarding property tax in respect of H. No. A1A/49A:
Prosecution has shown a sum of Rs. 11,768/ on account of property tax submitted by the accused in respect of H. No. A1A/49A. 3.24 PW18 Rakesh Kumar proved a sum of Rs. 11,768/ paid as house tax for the period 198788 to 199798.
Prosecution witnesses regarding expenses incurred by accused towards education of his daughters Ms. Anjula Thaman and Ms. Puja Thaman: CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 14 of 73
CBI has shown a sum of Rs. 38,400/ as expenditure incurred by the accused towards education in respect of his daughters Ms. Anjula Thaman and Ms. Puja Thaman.
3.25 Prosecution examined PW25 Sh. RL Pandita, the then Accountant, NIIT. The witness proved the document as Ex.PW25/A and Ex.PW25/B and deposed on oath that a total payment of Rs. 40,500/ was received by the institute in respect of fee paid by Ms. Puja Thaman.
However, the witness stated that out of this Rs. 40,500/, a sum of Rs. 9,600/ was refunded.
Prosecution witness regarding expenses incurred on the education, tuition and mess charges on Sh. Sanjeev Thaman:
CBI has shown an amount of Rs. 55,240.95 towards the educational expenses of Sh. Sanjeev Thaman. In order to prove the same, the prosecution has examined PW51 Sh. BG Nagavi. 3.26 PW51 Dr. BG Nagavi in his statement on oath stated that during the period from 1989 to 1993, he was working as the Principal of Jagat Guru Sh. Shivaratrithreeshwar, College of Pharmacy, Mysore, Karnataka. He proved that Rs. 50,423/ was paid from the year 1989 to 1991 on account of tuition fee, hostel fee and mess charges. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 15 of 73
Prosecution witnesses regarding LIC Premium paid by accused Bhim Sain Thaman and Sanjeev Thaman:
Prosecution has shown a sum of Rs. 53,045/ towards LIC premium paid by accused Bhim Sain Thaman and Sh. Sanjeev Thaman. In respect of this, prosecution has examined PW41 Sh. Gyan Prakash, the then Branch Manager, LIC, Branch No. III.
3.27 PW41 Sh. Gyan Prakash proved that regarding policy No. 111716236 favouring Sh. Sanjeev Thaman, insurance premium in the sum of Rs.50,531.30 was paid from the period 31/3/94 to 8/4/97 and proved the premium certificate as Ex.PW41/B. 3.28 PW8 Sanjay Kumar proved the income from survival benefit in respect of LIC No. 120011611 in the sum of Rs. 5,000/.
Prosecution witnesses in respect of water charges regarding H. No. A1A/49A:
CBI has shown a sum of Rs. 771/ in respect of water charges. In this respect, prosecution has examined PW17 Sh. Mahender Singh. 3.29 PW17 Sh. Mahender Singh has proved the detail of the water charges for the period 3/3/93 to 6/8/99. The water charges in respect of the period till March 1998 as per the detail is around Rs. 900/. It is pertinent to CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 16 of 73 mention here that the detail on the record is upto the period August 1998 whereas the check period is only upto March 1998.
Prosecution witness regarding purchase of electronic items:
CBI has shown a sum of Rs. 56,000/ to have been spent by the accused for purchase of fridge and TV. In respect of this, prosecution has examined PW5 Sh. Kanwaljeet Singh and PW11 Sh. Subhash Chand Khetrapal.
3.30 PW5 Sh. Kanwaljeet Singh deposed on oath that on 30/1/98 a BPL refrigerator was sold to accused Bhim Sain Thaman for Rs. 12,700/ against cash payment and proved the bill as Ex.PW5/A. 3.31 Similarly, PW11 Subhash Chand Khetrapal proved the purchase of electronic items by the accused on 14/11/96 in the sum of Rs.
43,300/.
It is pertinent to mention here that in respect of the refrigerator purchased on 30/1/98 from M/s Nayyar Electronics, the plea of the accused is that the same was given by the in laws of his son Sanjeev Thaman in the marriage and in this regard accused has also examined DW4 Sh. Sudhir Talwar. However, the accused has not raised any dispute in respect of the purchase made in November 1996 in the sum of Rs. 43,300/. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 17 of 73 Prosecution witnesses in respect of renovation cost in respect of H. No. A1A/49A:
Prosecution has shown that a sum of Rs. 62,761.10 was spent by the accused in respect of renovation of H. No. A1A/49A. In order to prove this expenditure, prosecution has examined PW37 Sh. NK Jain. 3.32 PW37 Sh. NK Jain, the then Jr. Engineer in CBI on deputation proved his valuation report in respect of H. No. F230, Vikaspuri and Flat No. A1A/49A, DDA Flat, Janakpuri as Ex.PW37/A. The witness stated that he inspected both the properties on 7/12/99 in the presence of the accused and his wife and thereafter, prepared the detailed valuation report. The witness stated that in respect of property No. A1A/49A, Janakpuri, only extra work executed by the owner of the flat was taken into consideration.
The civil work item was evaluated on the basis of Delhi Schedule of Rates issued by the CPWD by the proportionate method of increase and decrease as on the date of construction. It is pertinent to mention here that in the cross examination, the witness admitted that he has not given the break up of calculation in Ex.PW37/A and the same was stated to be available in the CBI valuation file. The CBI valuation file was not produced in the Court. The report is also silent about the measurement of the property in question. Prosecution witnesses in respect of the vehicles :
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3.33 Prosecution has examined PW30 Sh. Subhash Chander who deposed on oath that he had sold his two wheeler scooter No. DL4S E2610 to accused Bhim Sain Thaman through Star Motors for a sum of Rs.
13,500/. The application for transfer of the vehicle has been proved as Ex.PW30/B. 3.34 PW15 Sh. Amar Singh Yadav produced the file pertaining to car No. DDD 7124 in the name of Smt. Rajender Kumar Thaman. The witness also proved the registration file of Yamaha Motorcycle No. DL4SM 5501, car and scooter DL 4SE 2610 in the name of Sh. Sanjeev Thaman. It is pertinent to mention here that the accused has not disputed about the purchase of car, motorcycle and the two wheeler scooter. 3.35 The prosecution has also examined PW50 Sh. Girish Srivastav regarding the sale of moped in the name of Ms. Puja Thaman d/o Sh. Bhim Sain Thaman on 1/8/96 in the sum of Rs. 14,979. The purchase of the moped has also not been disputed by the accused.
3.36 CBI examined PW34 Sh. Mukesh Sharma to prove the sale of Yamaha motorcycle to Sh. Sanjeev Thaman for a sum of Rs. 29,000/. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 19 of 73 Prosecution witness in respect of purchase and construction of plot No. F230, Vikaspuri:
Smt. Rajender Kumar Thaman alongwith Sh. RS Goel purchased plot No. F230, Vikaspuri from PW46 Tejinder Singh Sodhi for a sum of Rs. 22,25,000/. The payment of sale consideration was made by cheque.
3.37 PW46 Sh. Tejinder Singh Sodhi stated that he had sold the land only and had not raised any construction over it. PW46 Sh. Tejinder Singh proved the perpetual land deed as Ex.PW46/A and the siteplan as Ex.PW46/B. The documents executed regarding plot No. F230, Vikaspuri in favour of Smt. Rajender Thaman and Sh. RS Goel have duly been proved by the witness.
3.38 CBI has also examined PW39 Sh. PK Goel, so as prove the purchase of property No. F230, Vikaspuri by Smt. Rajender Thaman wife of the accused in partnership. It may be recalled that the witness stated that the construction work was carried out by his brother Sh. SK Goel and accused and his wife. Sh. SK Goel died in the year 1997 and after his death, his wife stepped into his shoes. PW39 Sh. PK Goel deposed on oath that whatever amount was received on account of sale of floor of H. No. F230, Vikaspuri was received in equal share by Smt. Rajender Thaman wife of Sh.
Bhim Sain Thaman and Shashi Goel wife of Sh. SK Goel.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 20 of 73
PW39 was declared hostile by the CBI on the point that receipts Ex.PW27/B and Ex.PW27/C were antedated. The witness denied the suggestion and specifically stated that the dates mentioned in these documents are the dates on which the sales were executed. 3.39 PW27 Sh. Shiv Shankar Walia is the buyer in respect of purchase of ground floor of F230, Vikaspuri. He stated that an agreement to sell was executed between him as one party and Smt. Rajender Thaman and Shashi Goel as second party and proved the same as Ex.PW27/A. The witness stated that he paid a sum of Rs. 50,000/ vide receipt dtd. 25/1/98 Ex.PW27/B to Sh. PK Goel and further, paid a sum of Rs. 50,000/ vide receipt dtd. 29/1/98 Ex.PW27/C to Smt. Rajender Thaman and Smt. Shashi Goel. Sh. Shiv Shankar Walia also paid a sum of Rs. 3 lakhs to Smt. Rajender Thaman and Smt. Shashi Goel on 2/2/98 vide endorsement at point B on Ex.PW27/C. 3.40 PW40 Sh. RK Bansal purchased the first floor of H. No. F230, Vikaspuri. He proved the receipt Ex.PW31/A dtd. 28/2/98 vide which the sum of Rs. 1 lakh was paid as advance money. The total sum was finalised in the sum of Rs. 22,75,000/. Remaining payments were made by Sh. RK Bansal subsequent to the check period and therefore, the same are not relevant for the purpose of the present case.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 21 of 73 3.41 In respect of H. No. F230, Vikaspuri, prosecution has also examined another formal witness PW31 Sh. PS Mahajan. He also proved the receipt Ex.PW31/A regarding advance money of Rs. 1 lakh regarding first floor of F230, Vikaspuri, on 28/2/98.
3.42 CBI has shown a sum of Rs. 18,80,528/ in respect of purchase and construction of plot No. F230. In respect of the cost of construction, prosecution has examined PW37 Sh. NK Jain. PW37 Sh. NK Jain has proved his valuation report as Ex.PW37/A. Sh. NK Jain stated that the valuation report was prepared on the basis of Delhi plinth area method duly enhanced with cost index and the construction period of this property was taken from June 1997 to March 1998. The witness stated that these two dates had been taken on the basis of approval of construction plan and on the basis of letter of IO.
Prosecution witnesses regarding income tax return of Smt. Rajender Thaman and Sh. Sanjeev Thaman:
3.43 CBI examined Sh. IP Pasricha, Chartered Accountant as PW32. He produced the file of Smt. Rajender Thaman for the assessment year 199596 to 199899 and income tax return of Sh. Sanjeev Thaman for the year 199697 to 199899.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 22 of 73
CBI Witnesses:
3.44 CBI has examined Inspt. Asha Badola as PW38. Inspr. Asha Badola had put the ball into motion. While she was investigating RC No. 58(A)/97DLI, the name of Sh. Bhim Sain Thaman came under suspicion.
Inspt. Asha Badola was also entrusted with the investigation of RC No. 59(A)/97DLI and in that case also, the accused was a suspect. In these circumstances, a search was conducted at the residential premises of the accused on 23/3/98. Inspt. Asha Badola proved the observation memo as Ex.PW38/A and Ex.PW38/A1. The articles were valued in consultation with the accused and his wife and independent witnesses. Inspt. Asha Badola stated that for valuing the gold articles, the services of an employee of BK Jewellers was utilized and the year of acquisition was taken solely on the basis of information supplied by the accused and his wife. The search cum seizure memo Ex.PW38/B was prepared. The witness stated that during search cash amount of Rs. 3,60,000/ was recovered and gold ornaments weighing 107.3005 tolas was recovered. Accused was found to be in possession of car , motorcycle, scooter and one Bajaj Sunny and also found to have made investments in UTI, LIC and IDBI etc. The search cum seizure memo Ex.PW38/C was prepared. The search was conducted at the residence of Smt. Pushpawati Thaman, sister of the accused at 1412, Ram Nagar Civil Lines, Ludhiana on 25/3/98 and search cum seizure memo Ex.PW38/D was CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 23 of 73 prepared. On the basis of complaint Ex.PW38/E, the present FIR was lodged.
3.45 PW52 DSP BK Pradhan was entrusted the investigation of this case immediately after the registration of FIR. He proved the registration of FIR Ex.PW52/A. Inspt. BK Pradhan proved the seizure memo Ex.PW52/B. Dy. SP BK Pradhan formally proved the investigation conducted by him. 3.46 PW49 Inspt. AK Pandey was entrusted with the investigation of this case in June 2000 after transfer of PW52 DSP BK Pradhan. Inspt. AK Pandey had filed the chargesheet in the case after completion of investigation.
Formal witnesses:
3.47 PW19 Sh. Jagdish Khanduri deposed regarding sale of H. No. D95, Second Floor, Vikaspuri. The witness stated that when he purchased this house, the same was owned by some Arora and prior to this Smt. Rajender Thaman was the owner of the house . However, there is no other evidence regarding H. No. D95. It is pertinent to mention here that CBI has shown an income of Rs. 5,000/ from sale of property No. D95, Vikas Puri, New Delhi.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 24 of 73 3.48 PW20 Sh. Diwan Ram is also a formal witness who had merely handed over cheques Ex.PW20/B1 to B4. These cheques are related to investments made by Smt. Rajender Thaman, BS Thaman and Sanjeev Thaman.
3.49 PW21 Sh. Hoshiyar Singh proved the initial allotment of Flat No. A1A49A in the name of SH. JN Luthra in the sum of Rs. 1,25,300/. 3.50 PW23 Sh. ML Moria was also a formal witness regarding assessment of house tax in the name of Tejinder singh Sodhi and Ramnik Sodhi.
3.51 PW26 Sh. Chander is also a formal witness regarding the purchase of H. No. A2A/74, Janakpuri. The witness was examined by CBI to prove that the same was not purchased either through Bhim Sain Thaman or his wife.
Sanctioning Authority:
3.52 CBI examined PW33 Sh. J. Ramanujam to prove the sanction for prosecution as Ex.PW33/A. The witness specifically stated that he accorded sanction for prosecution against the accused after going through CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 25 of 73 the relevant documents and material placed before him and after application of mind.
4.0 It is pertinent to mention here that during the course of prosecution evidence, the accused has admitted salary statement Ex.PW1/C, statement of account pertaining to account No. 44401 of Canara Bank Ex.P1, details of payments to LIC Ex.PW8/A, statement of account of A/c No. 9686 of PNB Ex.PW6/A1 to A4, statement of account No. 44976 Ex.P2, discharge certificate for NSC Ex.PW22/A and Ex.PW22/B. Accused also admitted the payinslips pertaining to A/c No. 9686 Ex.P3 to P5, letter and detail regarding payment of electricity charges Ex.PW10/A and Ex.PW10/B, details of payment of property tax Ex.PW18/B, investment in UTI Ex.PW16/A, dividend warrants of UTI Ex.P6 and Ex.P7, cheque dtd.
18/3/98 Ex.PW20/B2, details of payment to IDBI Ex.P8, registration certificate of Maruti Car No. DDD 7124 Ex.P9, cheque dtd. 3/7/97 signed by Smt. Rajender Thaman wife of the accused Ex.P10, cheque dtd. 3/7/97 Ex.P11 signed by accused, membership certificates of UTI Ex.P12 and P13, the LIC policy Ex.P14, service book Ex.P1/D, agreement to sale executed by Smt. Rajender Thaman Ex.PW27/A, receipt dtd. 29/1/98 executed by the wife of the accused Ex.PW27/C and his personal file maintained at his department Ex.P15 and admitted the genuineness of the same.
STATEMENT OF ACCUSED CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 26 of 73 5.0 In his statement u/S 313 Cr.PC, accused Bhim Sain Thaman did not dispute regarding the bank accounts, investments made by him and post office saving accounts.
In respect of valuation of H. No. F230 , Vikaspuri and Flat No. A1A/49A, Janakpuri, accused stated that the valuation report is not correct. He further stated that DDA flat was allotted to Sh. JN Luthra and he had bought the same in the same condition and had made nominal repairs for day to day maintenance.
In respect of the education expenses of daughter Puja Thaman, accused stated that the fee was paid by his elder daughter Ms. Anjula Thaman who was employed with LIC alongwith Field Officer.
Similarly, in respect of the purchase of moped, the plea of the accused was that the moped was purchased out of the funds contributed by both the daughters.
In respect of the educational expenses of Sh. Sanjeev Thaman, the accused stated that after his son Sanjeev Thaman passed 12th, his mother and father, i.e, grandparents of Sanjeev Thaman gave Rs. 11,000/ each. The accused also stated that his sister Smt. Pushpawati Thaman who was unmarried and was epileptic patient had also given Rs. 11,000/ to Sh. Sanjeev Thaman and Sh. Sanjeev met his educational expenses out of this money.
In respect of car No. DDD 7124, the accused stated that the car was purchased for a sum of Rs. 80,000/ including insurance, after taking a CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 27 of 73 loan from the Bank of Rajasthan. In respect of Yamaha motorcycle by his son, accused stated that Sanjeev Thaman had sold an old two wheeler scooter and out of the sale proceeds, the motorcycle was bought. The accused stated that he had also taken a loan from the department for purchasing the two wheeler scooter DL 4SE 2610.
In respect of the investment made by the accused in National Saving Certificate (NSC) and Kisan Vikas Patras (KVP), the accused stated that he himself and his wife, son and daughter had bought these out of their own funds as a tax management. In respect of KVP purchased from Old Kacheri Post Office, accused stated that these KVPs were purchased by his sister out of her own funds and his name was put only for the purpose of security. Similarly, in respect of KVP Ex.PW36/A and Ex.PW36/B, the accused stated that the same was purchased by his sister out of her own funds.
The purchase of plot No. F230, Vikaspuri has also not been disputed by the accused. Accused stated that the same was purchased by his wife Rajender Thaman in equal partnership with Sh. SK Goyal.
In respect of jewelery recovered during the search, the accused stated that the jewelery belonged to his wife, his daughter in law i.e. Sanjeev's wife and his daughter Puja Thaman.
In respect of the cash recovered, the accused stated that the money recovered from his house was the sale consideration of H. No. F230, Vikaspuri.
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In respect of account No. 44976 at Punjab National Bank, Civil Lines, Ludhiana, the accused stated that the amount in this account used to be deposited by his sister. However, since he used to look after her, his sister Smt. Pushpawati Thaman had opened the account in his name.
In respect of statement of account No. 32712 in the name of Smt. Guran Devi and Smt. Pushpawati Thaman, the accused stated that Smt Guran Devi was his mother and in the above account pension received by his mother used to be deposited.
Accused stated that CBI has not taken into account the complete salary nor the overtime allowance and the conveyance allowance and the calculation made by CBI is grossly incorrect. The accused stated that he has been implicated falsely. The father of the accused was SDO and accused had 05 sisters. The accused stated that his sisters had been helping him from time to time for the purpose of marriage of his daughters.
DEFENCE WITNESSES 6.0 Accused examined 08 defence witnesses. He also entered the witness box and examined himself as DW9.
6.1 DW1 Smt. Pushpawati Thaman, elder sister of the accused deposed that she had served as JBT Teacher from the year 1960 and retired on 31.07.93. She remained unmarried and had responsibility of her mother. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 29 of 73 The witness stated that in the year 1996, her mother Smt. Guran Devi fell sick and thereafter, her brother Bhim Sain Thaman took her for treatment. Smt. Pushpawati Thaman stated that her father had divided the ancestral house and jewellery into three portions i.e., herself, accused and another brother i.e. Krishan Raj Thaman (since died). The witness stated that around 30 tola of gold and 30 tola of silver fell to her share. She stated that her father had also given her Rs. Two lacs. In the year 1996, mother of the accused and DW1 suffered paralytic attack and thereafter, accused started regularly visiting them. Smt. Pushpawati stated that since she was an epileptic patient and she used to keep entire cash and jewelery at her home only. In September 1996, accused Bhim Sain and his wife visited Pushpawati Thaman and asked for some money and Smt. Pushpawati Thaman gave them Rs. Five lacs alongwith gold and silver to accused Bhim Sain Thaman. The witness stated that her mother also gave 30 tola of gold and 60 tola of silver to the accused. Smt. Pushpawati Thaman further stated that she used to receive salary in cash and in the year 1989, she gave Rs. 11,000/ to Sanjeev Thaman out of love and affection on completion of his 12th class. Her parents i.e., grandparents of Sanjeev Thaman had also given him Rs. 11,000/ each. She stated that she had also given money by cheque to Bhim Sain hardly once or twice but she was not able to recall the same. The witness also produced the pass book. She stated that she had made investments in UTI, KVP, FDRs and NSCs in the joint name of herself and Bhim Sain Thaman. However, she stated that the entire money for CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 30 of 73 investment was paid by her. The witness stated that the amount received on maturity was deposited by her in her account as well as in the account of Bhim Sain. The witness stated that even her pension account is in the joint name with Bhim Sain Thaman. In the cross examination by the CBI, the witness stated that she had two brothers and Sh. Bhim Sain Thaman is her younger brother.
6.2 DW2 Sh. Om Prakash Tandon, brother in law of accused stated that in April 1984, Bhim Sain Thaman had taken a loan of Rs. 50,000/ from him. In the cross examination, the witness stated that he had paid Rs. 50,000/ in cash. However, he was not able to recall the date. The witness stated that he had paid this money out of the sale proceeds of his house. The witness Om Prakash was in govt. service when he sold this house. However, he was not able to recall whether he had informed about the loan of Rs. 50,000/ to the accused to his department. The witness stated that he did not inform the income tax regarding this transaction as he never used to file the return. He was also not aware that cash transaction in Rs. 50,000/ was in violation of incometax.
6.3 DW3 Sh. Jagdish Raj stated that in October 1995, he had advanced a loan of Rs. 20,000/ to Smt. Rajender Thaman. The witness had a long family relation with the accused. He also stated that in December 1995, CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 31 of 73 he gifted Rs. 20,000/ in the ring ceremony of the daughter of Smt. Rajender Thaman. The witness stated that since he had no daughter, he used to treat the daughter of the accused as his own daughter. In the cross examination, the witness stated that he was a government servant and he had paid Rs. 20,000/ out of the GPF withdrawal. The witness also produced the document showing withdrawal of Rs. 60,000/ from GPF in the month of Oct., 1995. However, he did not have any proof of the payment of Rs. 20,000/ made to accused Bhim Sain Thaman. The witness was not aware that a government servant has to inform his department before giving or accepting any loan. Interestingly, the witness was also not able to recall the name of the daughter of the accused to whom he had given Rs. 20,000/ as gift.
6.4 DW4 Sh. Sudhir Talwar is the brother in law of Sanjeev Thaman, son of the accused. He stated that his sister was married to the son of the accused on 01.02.1998. Sh. Sudhir Talwar stated that in the marriage, they had gifted a sum of Rs. 51,000/ as Shagun and about 25 Tola of gold, besides, TV, fridge, Washing machine, Sofa set, Centre Table, double bed, dining table and dressing table and some other gifts. The witness stated that they had purchased a TV and fridge from Nayyer Electronics, Pitam Pura and proved the receipt of the same as Ex. PW5/A. In the cross examination, the witness stated that the name and address of the accused was CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 32 of 73 written on Ex.PW5/A as the same was to be sent to the accused. However, he stated that the payment was made by him only.
6.5 DW5 Sh. Rajesh Kohli deposed that Ms. Anjula Thaman, D/o. Sh. B.S. Thaman had worked in his office as an Office Assistant from the year 19911998. He proved the salary certificate as Ex. DW5/DA to DW5/DG for the year 199198. In the cross examination, the witness stated that during the year 199198, he had two employees, however, he did not maintain any record.
6.6 DW6 Sh. Mahipal Singh deposed that in the year 1996, Sh. Bhim Singh Thaman had come to him alongwith his wife Smt. Rajender Thaman and asked for a loan of Rs. 4 lacs on which his father advanced a loan of Rs. 4 lacs to Smt. Rajender Thaman regarding which the pronote Ex.DW6/A was filed. In the cross examination, the witness stated that his father had money lending license but he did not produce the same nor the witness produced any record regarding the loan.
6.7 DW7 Sh. Pritam Singh also deposed on oath that in the year 1996, he had given a loan of Rs. 2.5 lacs to Smt. Rajendra Thaman. In the cross examination, the witness stated that he had not brought any document regarding this transaction as he had returned the same to the accused and accused destroyed the same.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 33 of 73 6.8 DW8 Sh. Hari Singh had also advanced a sum of Rs. 2.5 lakhs to the accused in November 1996 at an interest of 12%p.a. In the cross examination, the witness stated that he had not brought any document regarding this transaction.
6.9 Sh. Bhim Sain Thaman appeared in the witness box and examined himself as DW9 and stated on oath that he had joined Government Service in the year 1967. The accused stated that his salary from April 1982 to December 1983, January 1987 to October 1987 and of December 1987, January 1989 to December 1989, December 1990, January 1991 to February 1992 has not been taken into consideration by the CBI which is approximately Rs. 1,15,180/. Accused also stated that CBI also did not take into account the allowance for overtime as well as conveyance besides amount of honorarium paid to him during this period in cash by the department. Accused stated that his wife Smt. Rajender Thaman has been earning member since 1988 as a property dealer and in the year 1993, she started construction business. The accused further stated that his son has also been earning since the year 1983 and his daughter Anjula Thaman has also been earning since the year 1992. He stated that Ms. Puja Thaman was also earning since the year 1994. Accused stated that CBI did not take into account the six months earning of his son Sanjeev Thaman, while he was CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 34 of 73 working as Medical Representative with M/s. Dey Medical from the period 14.10.1993 onwards at a monthly income of Rs. 6,000/ per month. Accused proved the appointment letter of his son as Ex. DW9/A. Accused Bhim Sain Thaman stated that his elder sister Smt. Pushpawati Thaman had been working as a teacher with Punjab Government since the year 1961. She did not marry as she was epileptic patient. Smt. Pushpawati Thaman used to remain alone at Ludhiana and she used to give the accused cash and jewelery from time to time. Accused stated that his sister had given him Rs. 42,000/ through cheque in the year 1994 and besides this, Smt. Pushpawati Thaman gave him Rs. 2 lacs in the year 1996 and also 30 Tolas of gold in the year 1996. The witness stated that the money was invested by his sister in UTI and only for security purpose, his name was put in the same. Accused stated that he did not pay any money for the above said investment. Accused further stated that his mother suffered paralytic attack in the year 1996 and she gave him Rs. 3 lacs in cash and 30 Tolas of gold. Accused stated that his father had retired as SDO from PWD B&R from Himachal Pradesh. In the year 1989 before the death of his father, he (i.e. father) gave him (accused) Rs. 2 lacs. Accused stated that his son Sanjeev Thaman passed class 12th in the year 1989 and at that time, his father, mother and sister gave Rs. 11,000/ each to Sanjeev Thaman for his success in class 12th. Sh. Bhim Sain Thaman stated that his daughter had bought a scooty and also paid fee for NIIT, out of her own income as she had been working with Sh. Rajesh Kohli, Manager LIC. He further stated that Sanjeev Thaman had also bought CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 35 of 73 a second hand motor cycle for Rs. 29,000/ after disposing of his second hand scooter. Accused stated that his wife Smt. Rajender Thaman had bought Maruti 800 in the year 1988 after taking loan from Bank of Rajasthan. He further stated that Smt. Rajender Thaman had bought property No. F230, Vikas Puri in partnership with Sh. Surender Goel in the year 1996. The 50% sale consideration of this property was paid by his wife through demand draft, remaining sale consideration was paid by another co owner Sh. Surender Kumar Goel. The accused stated that his wife had arranged this money after raising loan in the sum of Rs. 4 lacs from one Sh. Mahipal Singh, Rs. 2,50,000/ from Sh. Hari Singh and 2,50,000/ from Sh. Pritam Singh. Remaining amount was paid by his sister Pushpawati Thaman and his mother Smt. Guran Devi. The savings of the accused were also used in buying this property. The expenses for construction in this property was borne by Sh. Surender Kumar Goel and his wife in equal share. Accused stated that in December 1998, Sh. Surender Kumar Goel expired and the building was in an incomplete position, therefore the same was sold in parts in January 1998, February 1998 and May 1998. The finishing work in this property was got done by the buyer themselves.
Accused stated that property no. A1A/49A, Janak Puri was purchased by his wife in the year 1984 for a sum of Rs. 1,45,000/ after raising loan of Rs.50,000/ from his brotherinlaw Sh. O.P. Tondon and the remaining amount was given by his mother and sister. Accused stated that property No. A1A/49A, Janak Puri was kept in the same condition as it was CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 36 of 73 bought, and only after 56 years, they got only white wash and renovation in the bathroom done. Accused stated that ground floor of F230 was sold to Mr. Walia in the year January 1998 for the sum of Rs. 4 lacs as an advance money, out of which his wife got Rs. 2 lacs. Another buyer Nisha Bansal bought First Floor and paid advance money of Rs. 1 lac in the year February 1998. He also stated that Sh. IP Pasricha gave advance money of Rs. 1 lac for A1A/49A Janak Puri, however since the deal did not materialise, the money was returned back in May 1998 through cheque. Accused stated that his wife did not pay any money to MCD for getting the property free hold nor she paid any house tax for F230, Vikas Puri at any point of time and the amount was paid by Sh. P.K. Goel.
Accused stated that his son Sanjeev Thaman was married on 01.02.1998 and he got Rs. 51,000/ in cash from his fatherinlaw and Rs. 40,000/ were received as Shagun from other relatives. Accused stated that he did not make any payment to Nayar Electronics. The jewellery was stated to be owned by Smt. Rajender Thaman, Ms. Puja Thaman and Ms. Anjula Thaman who was hospitalized on the date of search and was blessed with a child. Accused stated that he tried to give explanation to CBI but they did not take into account the same. In the cross examination, the accused admitted that he did not gave any written representation to the IO during the course of investigation nor did he give the any written representation regarding income/earning of his wife, son, both daughters and his elder sister.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 37 of 73
ARGUMENTS 7.0 Dr. LS Chaudhary, Ld. Counsel for the accused Bhim Sain Thaman has argued vehemently that the prosecution has miserably failed to prove its case against the accused. Sh. LS Chaudhary argued that Article 21 of the Constitution of India specifically mandates that life and liberty of an individual cannot be taken away without due process of law. Sh. Chaudhary, Adv. straight made an attack upon the validity and constitutionality of the Central Bureau of Investigation. He submitted that CBI is not a legal body. It has no sanctity to conduct the investigation and therefore, all the Acts and deeds of the CBI are unconstitutional. He stated that CBI came into being by virtue of a resolution No. 4/31/61T, Government of India, Ministry of Home Affairs, New Delhi on 01/04/1963 vide which the Government of India established CBI for the investigation of crimes handled by the Delhi Special Police Establishment. Ld. Counsel submitted that above said order is not a valid order. Ld. Counsel referred to Article 73 of the Constitution of India. He stated that power of Govt. of India to issue ordinance is not an unfettered power. He also pointed out that in the scheme of distribution of power under Article 246, the police falls in the State List and therefore, the Govt. of India or the Central Government has no jurisdiction to issue any ordinance regarding the police. Ld. Counsel went on to refer to the debates CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 38 of 73 in the Constitution of India as had taken place on 29/8/1949 in respect of the role of the Central Bureau of Intelligence and Investigation as it existed at that time. Ld. Counsel submitted that Delhi Special Police Establishment Act, 1946 is also unconstitutional. Ld. Counsel stated that after Constitution of India came to existence, only laws which are in accordance with the constitution remain to be good law. Ld. Counsel submitted that as per Sec. 1 of the Delhi Special Police Establishment Act, it extends to the whole of India, whereas any act which extends to the whole of India regarding police is bad law and offending to Article 372.
Ld. Counsel also assailed Section 3 of Delhi Special Police Establishment Act, 1946 and Section 150 of the Delhi Police Act, 1978. Ld. Counsel submitted that neither the Delhi Special Police Establishment Act, 1946 nor the Code of Criminal Procedure, 1973 speaks about the CBI at all.
In respect of the merits of the case, Ld. Counsel submitted that accused was not given any opportunity to explain during the course of investigation. In the absence of any opportunity accorded to the accused for offering explanation, the IO has acted in violation of the law. Ld. Counsel submitted that complete salary of the accused has not been taken into account and IO has intentionally omitted the major amount on account of the salary.
In respect of jewellery items, Ld. Counsel submits that though PW38 Inspt. Asha Badola has stated that valuation of the gold jewelery was done with the assistance of representative of BK Jewelers, however, no such CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 39 of 73 witness has been examined by the prosecution. The CBI has also not led any evidence regarding the content of gold jewelery whether it was 22ct, 24 ct or so on. Ld. Counsel submits that in absence of any such evidence, the valuation regarding the jewellery cannot be added.
In respect of expenditure made on refrigerator as proved by PW5 Sh. Kanwaljeet Singh, Ld. Counsel submitted that this item was purchased by the in laws of Sh. Sanjeev Thaman and the payment was also made by them and the bill is dtd. 30/1/98 and the marriage had taken place on 01/02/98. Ld. Counsel also stated that accused stays in Janakpuri whereas Nayyar Electronics is in Pitampura. Ld. Counsel submits that inlaws of Sanjeev Thaman are residents of Rohini and apparently, this fridge was purchased by the in laws of Sanjeev Thaman. Ld. Counsel has not raised any dispute regarding purchase of electronic items vide bill Ex.PW11/A. In respect of witnesses regarding bank accounts i.e., PW6 Sh. Tirath Ram, PW12 Sh. Vishnu Dutt, PW20 Sh. Diwan Ram, PW42 Sh. Kanhaiya Lal, PW43 Sh. Vinod Abrol, PW44 Sh. RS Saini, PW45 Sh. KN Pradhan, PW47 Sh. Sudhir Kapoor and PW48 Sh. Ashok Kumar Srivastava, Ld. Counsel has not raised any dispute. Ld. Counsel has very fairly submitted that he does not dispute the bank accounts, investments and interest earned by the accused and the members of his family. The plea of the accused is that the wife, son and daughters of the accused have made the investment out of their own funds and, therefore, same cannot be clubbed with the income/assets of the accused. Similarly, in respect of CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 40 of 73 investments/bank accounts in the joint name of accused and Pushpawati Thaman. The plea of accused is that entire money belonged to Pushpawati Thaman only and his name i.e. accused name has been added for security only, being Pushpawati single and old lady suffering from ailments.
In respect of the witnesses from transport authority, sale and purchase of motorcycle, car and scooter, Ld. Counsel has not raised any dispute. The only plea is that the car was purchased by Smt. Rajinder Thaman after taking a loan from the bank and the moped was bought by his daughters out of their own funds and motorcycle was bought by Sanjeev Thaman by selling his old scooter.
In respect of the witnesses from Post Office PW7 Sh. Dushyant Yadav, PW13 Sh. Satish Chander Gupta, PW14 Sh. Subhash Chander, PW29 Sh. Dalpat Singh, PW35 Sh. SS Bhatti, and PW36 Sh. Mahesh Pal Kapoor, Ld. Counsel has not raised any dispute.
In respect of the witnesses from LIC and UTI, PW8 Sh. Sanjay Kumar and PW16 Sh. Kapil Tyagi, Ld. Counsel has not raised any dispute.
In respect of the witnesses regarding payment of house tax, electricity and water charges, PW10 Sh. Prakash Chand, PW17 Sh. Mahender Singh, PW18 Sh. Rakesh Kumar and PW23 Sh. ML Maurya, Ld. Counsel has not raised any dispute.
In respect of the witnesses regarding educational expenses PW25 Sh. RL Pandita and PW51 Sh. BK Nagavi, Ld. Counsel submitted that CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 41 of 73 though there is no dispute about the same, however, Ld. Counsel has submitted that the same were not spent by him.
In respect of the property No. F230, Vikaspuri, Ld. Counsel submitted that the wife of the accused has been earning since 1988. She bought H. No. F230, Vikaspuri in equal shares with the Goyal's for a sum of Rs. 22 lakhs. Ld. Counsel submitted that the amount for the purchase of this house was raised by his wife Rajender Thaman and in this regard he had examined DW1 Smt. Pushpawati Thaman, DW3 Jagdish Raj, DW6 Mahipal Singh, DW7 Pritam Singh and DW8 Hari Singh. Ld. Counsel submits that though the income tax returns were filed only after 1995 but the wife of the accused had been earning since 1988. Ld. Counsel submits that all the members of his family were working. In this regard, the Ld. Counsel pointed out to the testimony of DW5 Rajesh Kohli. Ld. Counsel for the accused has assailed the valuation report. He submitted that H. No. F230, Vikaspuri was sold in the raw condition. The valuation report is grossly incorrect. Ld. Counsel further submitted that accused Bhim Sain Thaman did not spend any money on A1A/49A.
In respect of recovery of cash Rs.3,60,000/, Ld. Counsel submitted that primarily it was concerning the advance in respect of sale of H. No. F230, Vikaspuri and marriage Shagun.
In respect of sanction, Ld. Counsel submitted that there was no application of mind.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 42 of 73
In support of his contention, Ld. Counsel for the accused has relied upon Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796, Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363, NP Lotlikar Vs CBI, 1993 CrLJ 2051 and Jaswant Singh Vs. State of Punjab, 2010(2) CCC 231 (P&H).
7.1 Sh. DK Singh, Ld. PP for CBI has submitted that prosecution has successfully proved its case that on its merit of the case. In respect of the constitutionality of the CBI, Ld. PP submits that there is no force in the contention of the Ld. Counsel for the defence.
Sh. D.K. Singh, Ld. PP for CBI has submitted that Central Bureau of Investigation is constituted under the Government of India, Ministry of Home Affairs resolution no. 4/61(p) dt. 01.04.1963. Sh. D.K. Singh submits that as per CVC manual, the investigation work is done through Special Police Establishment being of the CBI which derives its police power from the Delhi Special Police Act 1946 to inquire and investigate into certain times of specific offence or class of offence pertaining to corruption and other kind of malpractices involving public servants. Sh. D.K. Singh, Ld. PP further submits that Section 3 of Delhi Special Police Establishment Act, 1946 provides that the Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Section 5 of the Delhi Special Police CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 43 of 73 Establishment Act, 1946 as amended in 1964 enabled the officers of Special Police Establishment not below the rank of Sub Inspector to exercise the power of the officer in charge of a police station. In support of his contention, Ld. PP for CBI has cited Shanti Prasad Jain Vs. State ILR (1972) I Delhi. In this case, it was argued that by virtue of Delhi Special Police Establishment Act, a special police force was constituted in Delhi only for the investigation of certain offences in the Union Territory. It did not empower them to file the charge sheet. This argument was rejected by the Hon'ble High Court of Delhi and it was inter alia held as under :
"The Officer in charge of a Police Station in the area in which the police officer for the time being acts, is deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station when he is exercising the powers conferred on him by the said act. If an officer is by statute deemed to be an officer in charge of a police station, then there can be no further question whether he is a police officer or not. To contend that he would still not be a police officer would be to completely nullify the effect of the deeming provision. Such police officer would be competent to file a charge sheet."
Ld. PP for CBI has emphasized that the Delhi Special Police Establishment enjoys the concurrent power with the respective state police. Ld. PP has also relied upon Vineet Narain & Ors. Vs. Union of India & Anr., (1998) 1 SCC 226.
8.0 I have heard Ld. PP for CBI and Ld. Counsel for the accused and have perused the record carefully.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 44 of 73 8.1 I consider that before proceedings further, the contention of Ld. Counsel for accused regarding power of CBI to investigate and filing of charge sheet need to be addressed. The CBI in the present form came into existence by virtue of notification No. 4/31/61T dt. 1st April, 1963 for the purpose of clarification, the same is reproduced as below.
"The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, blackmarketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of national Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India of crimes having allIndia or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime. As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:
(i) Investigation and Anticorruption Division (Delhi Special Police Establishment).
(ii) Technical Division,
(iii) Crime Records and statistics Division,
(iv) Research Division
(v) Legal Division & General Division
(vi) Administration Division.
The Charter of function of the abovesaid Division will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 45 of 73 and assisting in the investigation of interstate crime and other difficult criminal cases."
In Vineet Narain Vs. Union of India & Ors., (1998) 1 SCC 226, the question as of jurisdiction to confer power on CBI to investigate any offence by issuing notification u/s 3 by the Central Government came up for consideration. In this case, it was inter alia held as under :
"The Delhi Special Police Establishment Act, 1946 is an Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union Territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 6 of the Act requires consent of the State Government to exercise powers and jurisdiction under the Act by the Delhi Special Police Establishment. This is because `Police' is a State subject, being in List II, Entry 2 of the Seventh Schedule. For this reason, the learned Attorney General contended that the power and jurisdiction of the State Police in respect of an offence within its jurisdiction remains intact and is not inhibited by the Single Directive; and that the CBI alone is inhibited thereby. Section 2 of the Act deals with constitution and powers of the Special Police Establishment (SPE). This is how the CBI has been constituted. Section 3 provides for offences to be investigated by the SPE and says that the offences or class of offences to be investigated by the agency may be specified by notification in the Official Gazette by the Central Government.
The meaning of the word "superintendence" in Section 4(1) of the Delhi Special Police Act, 1946 determines the scope of the authority of the Central Government in this context."
The Delhi Special Police Establishment Act 1946 dates back to 1943 when Special Police Establishment (war department) was set up by an ordinance (22 of 1943) for the purpose of investigating offences of bribery and corruption connected with the departments of the Central Government. CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 46 of 73 Subsequently, a decision was taken to retain this police staff on permanent basis by way of legislation. However, legislation could not be brought in time and therefore to avoid break in continuity, The Delhi Special Police Establishment Act, 1946 (22 of 1946) was promulgated on 25.09.46. To replace the 1946 Ordinance with an Act of Parliament, the Delhi Special Police Establishment Act was enacted by the legislature. 8.2 The DSP Establishment Act, 1946 meant for the constitution of special police force in Delhi for the investigation of the certain offences in the Union Territories. Section 6 of the Act specifically provides that the consent of State Government is required to exercise the power and jurisdiction of any member of the Delhi Police Establishment.
Purpose behind enacting Section 6 seems to be because, "police" is a state subject being in list II , Entry 2 of the Seventh Schedule of the Constitution of India. Thus, power in jurisdiction of the state police in respect of an offence within its jurisdiction remains intact and is not inhibited by the Single Directive by the notification of the Central Government. Rather CBI is restrained from making any investigation without consent of the State Government. Section 2 of the DSP Establishment Act 1946 provides constitution and powers of the Special Police Establishment.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 47 of 73 8.3 Section 3 of the Delhi Police Special Establishment Act 1946 provides that Central Government may by notification specify the offences or classes of offences which are to be investigated by the Delhi Police Establishment. The overall control of the CBI lies with the Central Government. The notification made by the Central Government u/S. 3 has conferred and determines the jurisdiction of the CBI to investigate the offence. Pursuant to the notification, the actual investigation has to be covered by the statutory provisions under the general law to such investigations.
I consider that the arguments raised by the Ld. Counsel for the defence assailing the constitutionality of the CBI is liable to be rejected. If, we read the Delhi Special Police Establishment Act, 1946 alongwith notification of 1963, it is crystal clear that by the act of legislature, i.e. the Delhi Special Police Establishment Act, 1946 the Central Govt. may constitute a special police force and, the CBI derives its power to investigate and file the charge sheet pursuant to the resolution of 1963 issued by the Central Govt. It is also pertinent to mention here that in List I Union List, Central Bureau of Intelligence and Investigation finds place at entry No. 8 and similarly in the List - IIIConcurrent List there is entry no. 1 which confers concurrent power upon Central and State Govt. to Legislate in regard to Criminal Law. In this regard reference can also be made to Article 246 of the Constitution of India.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 48 of 73 8.4 In order to substantiate the charge for the offence u/S 13 (1)(e) of the PC Act, the prosecution is required to prove the following elements:
1. accused is a government servant;
2. nature and extent of the pecuniary resources or property which were found in his possession;
3. what were the known sources of income of the accused i.e., known to the prosecution; and,
4. the prosecution must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income.
If the prosecution succeeds in establishing the above said four ingredients, the offence u/S 13 (1)(e) of the PC Act is complete unless the accused is able to account for such resources or property. Reference can be made to State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar AIR 1981 SC 1186 and M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313.
8.5 Ld. Defence counsel has raised a plea that IO did not afford any opportunity to the accused to explain about his assets and resources during the course of investigation. I am afraid, this argument of the Ld. Defence counsel does not hold any force. The constitutional bench in the Hon'ble Supreme Court in K. Veeraswami Vs. Union of India & Ors., 1991 SC CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 49 of 73 (Crl.) 734, held that the opportunity which is to be afforded to the delinquent officer u/S 5 (1)(e) of the PC Act of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. The duty of the IO is confined to collect material to find out whether the offence alleged, appears to have been committed. The IO may seek clarification from the accused and if necessary, may cross check with him about the known sources of income and assets possessed by him. However, to say that after collection of material the IO must given an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not would be elevating the IO to the position of Enquiry Officer or a Judge.
8.6 In disproportionate assets cases, the Government servant is required to satisfactorily account for the disproportionate assets. He is not required to prove his claim with mathematical exactitude beyond all possibilities of doubt. Nobody in the daytoday life keeps account of expenditure and procure and preserve supporting bills and vouchers. Nobody expects the house expenses to be audited.
INCOME :
8.7 CBI has shown total income of the accused during check period to be in the sum of Rs. 21,60,485/. The components of the income has been detailed in Table "A" as reproduced in the earlier part of the judgment and CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 50 of 73 the same have not been repeated herein for the sake of brevity. CBI has included in the income, the income of Sanjeev Thaman as well as the business income of Ms. Rajinder Thaman in the sum of Rs. 4,38,840/ and Rs. 2,04,040/ respectively. The salary of Puja Thaman has also been included as 38,000/. It is pertinent to mention here that in the income, the advance received on part of sale of ground floor and first floor has also been shown. Similarly, the receipt of advance from PW32 IP Pasricha in the sum of Rs. 1,00,000/ against the sale of flat A1A/49A, Janak Puri, which ultimately did not materialize, has been included. As far as income of Smt. Rajinder Thaman is concerned, I consider that CBI in all fairness has included the income as shown by Smt. Rajinder Thaman in the income tax returns filed by her. The claim of the accused regarding the income earned by Smt. Rajinder Thaman from her independent sources is not believable on account of lack of evidence. It is pertinent to mention here that defence has not led any evidence regarding income of Smt. Rajinder Thaman. Merely, an arguments has been advanced which is not substantiated at all. Even Smt. Rajender Thamman did not appear in the witness box. It was for the accused to prove the income of Rajinder Thamman, being matter in his special knowledge. CBI is supposed to prove the income of the accused only from the known sources. The defence has also disputed the income from salary of Sanjeev Thaman. It has been pleaded that CBI has not shown the entire income from salary of Sanjeev Thaman. In order to prove this point, accused while appearing in the witness box as DW9, has submitted that CBI CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 51 of 73 did not take into account the six months earning of Sanjeev Thaman while he was working as Medical Representative with M/s. Day Medical Stores from the period 14.10.93 at a monthly income of Rs. 6,000/ per month. The letter of appointment Ex. PW9/A has been placed on record. However, except this, no other documents regarding receipt of salary has been produced. It is also worth to note that neither Sanjeev Thaman appeared in the witness box nor any witness from M/s. Day Medical Stores was produced. In absence of any such evidence, the plea of the defence is that six months income of Sanjeev Thaman has not been taken into account is not sustainable. In respect of the salary of Puja Thaman. I have found on record a letter dtd.
18/07/2000 of Kerala Education Society (Regd.) regarding honorarium paid to Ms. Puja Thaman from July 1997 to February 1998 at the rate of Rs. 2,000/ per month. Since prosecution has filed this document a sum of Rs. 16,000/ (2000 x 8) can be added in the income of the accused. The accused has pleaded that Ms. Anjula Thaman, daughter of accused has also been working since 1991 to 1998 and in this regard, DW5 Rajesh Kohli was examined who proved the certificate DW5/A to DW5/G. If we peruse the certificate, Anjula Thaman earned the salary from the year 1991 to 1998, as follows :
Year Earned salary (In Rs.)
1991-92 32,400/-
1992-93 42,000/-
1993-94 44,400/-
1994-95 50,400/-
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 52 of 73
1995-96 56,400/-
1996-97 56,400/-
1997-98 57,600/-
8.8 As per charge sheet, Anjula Thaman was 1974 born and she had
done 12th from MCD school and B.Com by correspondence. If we believe the salary certificate produced by the accused, Anjula Thaman was earning more than 2500/ per month in the year 1991 while she was only around 17 years of age and must be doing graduation. This is simply unbelievable that an Office Assistant with an LIC Officer would get a salary of more than Rs. 2500/ which kept on increasing every year upto around Rs. 5,000/ in the year 199798. It is also worth mentioning that DW5 did not produce any record/ account book, income tax return to show the payment of this much amount as a salary to Anjula Thaman. In the circumstances, the plea of the accused regarding income earned by Anjula thaman is not believable.
However, the CBI has apparently committed a mistake in computing the salary of the accused. The salary of the accused has been shown as Rs. 5,21,124.15. Whereas, if we see the evidence produced on record, the accused has earned a salary of Rs. 5,52,270/ only during the period November 1994 to February 1998. It is also a matter of record that CBI did not produce any evidence regarding salary of around 59 months. Even as per the evidence produced by the CBI, the accused has earned salary in the sum of Rs. 7,40,868/ during the check period without including salary CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 53 of 73 of 59 months. The accused in his statement has specifically stated that total salary of this period is approximately 1,15,180/. Thus, the salary of the accused during the check period comes out to be Rs. 8,55,048/. Besides this, the accused has also earned DA of Rs. 1318/. Thus, the total income of the accused during the check period would be Rs. 25,12,727/. EXPENDITURE :
8.9 CBI has shown the total expenditure of Rs. 8,77,841/by the accused during the check period. The components of expenditure have duly been reproduced in the Table 'B', in the earlier part of judgment and the same has not been reproduced here for the sake of brevity.
In respect of item No. 1, CBI has examined PW10 Prakash Chand in respect of electricity charges. In respect of item No. 2 in respect of H.No. A1A/49A, Janak Puri property tax, CBI has examined PW18 Rakesh Kumar. In any case, the same has not been disputed. In respect of item no.3 regarding educational expenses of Anjula Thaman and Puja Thaman, CBI has examined PW25 RL Pandita who has proved the education expenses of Puja Thaman in respect of fee deposited by her with NIIT. The defence has submitted that refund of Rs. 9600/ has not been taken into account. Even if the refunded amount is taken into account, I consider that the figure shown by CBI is reasonable and cognizable, as the same is in respect of both the daughters of accused. Regarding the educational expenses in respect of Puja Thaman and Anjula Thaman , the defence has taken a plea that grand parents CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 54 of 73 and aunty (bua) of the children have been paying money from time to time to meet the educational expenses. It is agreed that this fact cannot be disputed that elders of the family keep on giving some money to the children but it cannot be believed that entire education expenses are met by such contributions. It has also to be kept in mind that education expenses of the children are not confined to the tuition fee and other charges paid in the school. Besides this, there are lot huge expenses on books, stationary, school dress and pocket expenses. CBI has only taken the tuition fee and other charges except paid to the school have not been taken into account.
Similarly, in respect of item no.4 i.e. expenses incurred on education, hostel education and Mess expenses of Sanjeev Thaman, CBI has examined PW51 Dr. B.G. Nagavi who has proved the expenses in the sum of Rs. 50,423/ instead of Rs. 55,240.95 as claimed by the CBI. I consider that in view of the evidence, the expenses incurred on education, hostel education and Mess expenses of Sanjeev Thaman can be taken as Rs. 50,423/ instead of Rs. 55,240.95/. In respect of item no.5, and item no.6, the CBI has duly proved by way of evidence of PW41 Gyan Prakash and PW16 Kapil Tyagi. PW41 Gyan Prakash has duly proved that a premium of sum of Rs. 50531.30/ has duly been paid on account of LIC premium. Thus expenses in the sum of Rs. 50531.30/ can be taken as LIC premium. In respect of item no.7, the CBI has duly proved the same by way of testimony of PW17 Mahender Singh. In respect of item no. 8 and 12 , CBI has not produced any evidence. In respect of item no.9 regarding purchase of refrigerator in the CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 55 of 73 sum of Rs. 12,700/, I consider that the plea of the defence is plausible. The refrigerator was purchased on 30.01.98 from the area of Pitam Pura. The date coincides with the date of marriage of the son of the accused. The accused lives in Janak Puri and the refrigerator has been purchased from the place nearby the house of the parents of the girl. Therefore, I consider that this amount may not be shown in the expenditure of the accused.
In respect of item no.10, CBI has examined PW11 and has duly proved Ex.PW11/A. The accused has not raised any dispute. In respect of item no.11,14,15 to 22, CBI has not produced any evidence and therefore, the same cannot be taken into account. Another major component of the expenditure on part of the accused is renovation of house no. A1A/49A in the sum of Rs. 62,761.10/ as renovation cost. In respect of this, it is worth to note the testimony of PW37 Sh. N.K. Jain. If we peruse the testimony of PW37, he has inspected H.No. A1A/49A, Janak Puri on 07.12.99. It is not disputed that this flat was purchased by the accused in the year 1984. Sh. N.K. Jain stated that in respect of property no. A1A/49A, only extra work executed by the owner of the flat has been taken into consideration. All the civil work items were evaluated on the basis of Delhi Schedule of Rates issued by CPWD by the proportionate method of increase and decrease as on the date of construction. The valuer did not include the original cost of the flat purchased by Smt. Rajinder Thaman at a cost of Rs. 1,45,000/. In the crossexamination he has admitted that he has not given the breakup of calculation in report and stated that the same is available with CBI in CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 56 of 73 Evaluation file. It is an admitted fact that CBI has not produced the Evaluation file on record. It is not the case of the prosecution that accused has done some structural change in the flat. In his statement u/s 313 Cr.P.C., the accused specifically stated that they had made the repairs in a nominal manner for day to day maintenance and the flat was bought in the same condition as it was allotted. In his statement on oath also, the accused stated that flat No. A1A/49A was purchased by his wife in the year 1985 for a sum of Rs. 1,45,000/ and the same was kept in the same condition as it was bought and only after 56 years, they got whitewash and renovation in the bathroom.
It is a matter of common knowledge that normally a person makes daytoday maintenance in the house in which he lives and until and unless, there is some structural changes or some extraordinary decorative work, there is only daytoday maintenance. Thus, I consider that in absence of any cogent evidence, a sum of Rs. 62,761.10/ can not be included in the expenditure of the accused.
Now, we come to the expenditure made by the accused towards maintenance of the family members. CBI has shown a sum of Rs. 171640.96 towards this head. It is also pertinent to mention here that the CBI has shown a sum of Rs. 2,56,700/ towards marriage expenses of Anjula Thaman and Sanjeev Thaman. CBI has also included petrol expenses and CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 57 of 73 other miscellaneous expenses for which no evidence has been produced. I consider that the expenditure towards the maintenance of family has been shown by the CBI are on the much lower side.
8.10 It is a matter of common knowledge that in daytoday house hold running, there are lot of unverifiable expenditure. Substantial portion of the income is spent on the kitchen expenses. There are also other dayto day expenditure which includes clothing, social obligations, festivals, expenditure made on medicines, entertainment and so on. In Sajjan Singh Vs. State of Punjab , AIR 1964 SC 464, the Apex court while dealing with disproportionate assets case inter alia observed as under :
"29. The total receipts by the appellant from his known sources of income thus appear to be about Rs. 1,03,000/. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant's possession, through himself or through his son (Rs. 1,20,000/) were not disproportionate to his known sources of income. One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/ per month must have been his average expenses throughout these years taking the years of high prices and low prices together. These expenses therefore cut out a big slice of over Rs. 36,000/ from what he received. The assets of Rs. 1,20,000/ have therefore to be compared with a net income of Rs. 67,000/. They are cleanly disproportionate indeed highly disproportionate."
If we take into account the observation of Hon'ble Supreme Court, the Apex Court deducted a sum of Rs. 36,000/ on account of expenditure out of the total income of Rs. 1,03,000/, therefore, it comes to CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 58 of 73 be around 1/3rd of the total income. It may be advantageous to refer that in motor accidents cases also, while calculating the compensation, out of the income, 1/3rd is deducted on account of expenditure on one self. It seems to be plausible also that every human being or a family need to spent something for the survival. I consider that in the present case also, 1/3rd of the total income earned by the accused during check period can be taken as an expenditure towards unverifiable expenditure which may include family of the children, kitchen expenses, clothing, social obligations, entertainment and other miscellaneous expenses including petrol etc. These are the expenses for running the household. We may recall that the total income of the accused has been held to be 25,12,727/. 1/3rd of the same comes out to be Rs. 8,37,575/ Thus, if we draw Table B, it would be :
TABLE B Expenditure of Sh. Bhim Sain Thaman & Family Members:
S.No. Name of the Expenditure Amount (Rs.)
1 Electricity charges in respect of House Tax in respect of 13,117.90
A1A/49A, Janakpuri, New Delhi.
2 Property tax paid by Sh. Bhim Sain in respect of property No. 11,768.00
A1A/49A, Janakpuri, New Delhi.
3 Expenses on education incurred by Sh. Bhim Sain in respect of 38,400.00
Anjula Thaman and Puja Thaman
4 Expenses incurred on education, Hostel Accommodation and 50,423.00
messing of Sanjeev Thaman
5 LIC Premium paid by Sh. Bhim Sain and Sh. Sanjeev Thaman 50,531.30
6 Premium paid in respect of ULIP policies. 52000
Water charged in respect of H. No. A1A/49A, Janakpuri, New 771.00
7 Delhi.
8 Bill of Kapila Electronics for purchase of BPL Refrigerator for 43,300.00
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 59 of 73
Rs.23,500/- and BPL TV Rs. 19,800/-.
9 Expenditure towards maintenance of family members 8,37,575.00
Total 10,97,886.20
Thus, the total expenditure comes to around 10.50 lacs for around 14 years. This comes to around 85,000/ per annum and 7,000/ per month. This was a family of three school/college going children. The per month expenditure of Rs. 7,000/ does not seem to be on higher side. It has also kept in mind that family was maintaining car, scooter, motorcycle and moped. Each member of the family was having almost a separate vehicle. ASSETS IN THE NAME OF BHIM SAIN THAMAN AND HIS FAMILY 8.11 CBI in its charge sheet has claimed that accused was found in possession of assets worth Rs. 45,62,823.17/ at the end of the check period.
The components of the assets have been shown in Table 'C' as reproduced in the earlier part of the judgment and have not been reproduced herein for the sake of brevity.
During the course of arguments, Ld. Counsel for the accused has not disputed about the bank accounts and investments made by the accused and the members of his family. The only contention raised by the defence is that the wife, son and daughters of the accused have made the investments out of their own income/resources and, therefore, same cannot be clubbed in the assets of the accused. Similarly, it has been argued that Smt. Pushpawati Thaman has appeared as DW1 and specifically made CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 60 of 73 statement on oath that she had been in the Government service for a long time and after being retired had the income from pension as well. Smt. Pushpawati Thaman made a specific statement on oath that she being unmarried and old lady suffering from epileptic, simply joined the name of her brother i.e. accused Bhim Sain Thaman only for the purpose of security. Ld. Defence Counsel has argued that investments in the name of Pushpawati Thaman or in the joint name of Pushpawati Thaman and accused are made by Pushpawati Thaman only. I consider that as far as joint investments made in the name of the accused and Pushpawati Thaman, the same cannot be added into the assets of the accused. Smt. Pushpawati Thaman has been in the Government job for a long period from the year 1960 to July 1993. She has been single and therefore must have saved substantially out of her salary income. It is quite natural that after being growing old, she might have added the name of her brother out of love and affection, or for the sake of security in the event of unforeseen circumstances in the bank accounts and the investments made by her. However, as far as the investments made by the wife, son and daughter of the accused, the accused cannot escape from the fact that the same have to be added to his assets. It is pertinent to mention here that the CBI has added the income earned by his son Sanjeev Thaman, wife Smt. Rajinder Thaman and daughter Puja Thaman while computing the income of the accused. Since the income earned by the members of the family of the accused have been added into the income of the accused, the accused cannot make the complaint of adding their assets in CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 61 of 73 his assets accumulated by them during the check period. The accused for the reason best known to him did not lead any evidence to prove the income of Sanjeev Thaman or Smt. Rajinder Thaman. He only made a verbal plea that the CBI has not shown the complete income of Rajender Thaman and Sanjeev Thaman. It is worth to note that during the course of arguments, Ld. Counsel for the accused did not dispute the bank accounts, investments made in post office, Kisan Vikas Patras, NSCs and other investments. Income Tax returns filed by Smt. Rajinder Thaman and Sanjeev Thaman are on record. These incometax returns also corroborates the plea of the CBI regarding the assets of the accused. I consider that in view of the material on record as far as item no. 3,4,5,6,7 and 8 in Table 'C' are concerned, same have been rightly added by the CBI in the assets of the accused. Similarly, in respect of Maruti Car No. DDD7126, the accused has raised a plea that his wife Rajinder Thaman had purchased the same after taking loan from the bank, however, accused did not lead any evidence to prove this fact. It is a settled preposition that who makes a plea, is bound to prove the same. Similarly, in respect of Yamaha motor cycle No. DL4SM 5501, the accused has pleaded that Sanjeev Thaman bought this motorcycle after selling of his old two wheeler scooter, however the accused did not lead any evidence in this regard. Therefore, this plea is also liable to be rejected.
In respect of investments made by Bhim Sain Thaman for purchase of UTI MIP 1997 and Kisan Vikas Patras in the joint name of Pushpawati Thaman as shown in item 11 of Table C. I consider that the CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 62 of 73 same cannot be considered in view of the discussion made hereinabove that Pushpawati Thaman had been an earning member throughout her life.
In respect of the balance in bank account as shown in item 13 and investments in SBI Mutual Fund in the name of Bhim Sain and Smt. Rajinder Thaman , the same has duly been proved and not disputed by the accused. Therefore, the CBI has duly proved the item 13 and item 16 in Table 'C'.
CBI had added a sum of Rs, 95,975/ in respect of house hold items found during the search conducted on 23.03.98. I have gone through the observation memo. The same has duly been proved by the CBI by way of testimony of Inspr. Asha Badola. The bare perusal of observation memo Ex. PW38/A would indicate that the same was prepared in the presence of accused Bhim Sain and his son Sanjeev Thaman. On the first page, the signature of Rajinder Thaman also do appear. Merely a suggestion has been given to Inspr. Asha Badola that valuation and year of acquisition were mentioned by her at her own without consulting the accused and his wife. The perusal of observation memo doesnot indicate any unnatural thing and therefore I have no hesitation in accepting the house hold item in the sum of Rs, 95,975/.
CBI has shown the jewelery in the sum of Rs. 2,09,165/ as per observation memo. As per memo Ex. PW38/A1, 39 items of gold were recovered from the possession of the accused during the search. These gold items were duly weighed by one Raja from BK Jewelery House. The plea of CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 63 of 73 the accused is that these gold items were not acquired by him and the same belong to his wife Smt. Rajinder Thaman, his daughter Puja Thaman, who was admitted in the hospital, and his daughterinlaw i.e. wife of Sanjeev Thaman. Accused has also examined DW1 Ms. Pushpawati Thaman on oath who has repeatedly stated that accused has got gold and jewelery from his parents. DW1 Ms. Pushpawati Thaman had also given some jewelery to the accused and his wife. It is also worth to note that Sanjeev Thaman, son of the accused was married only few days back. It is a matter of common knowledge that in India, normally bride would bring lot of jewelery with her in the marriage. CBI has also not examined Raja from B.K. Jewelery House, who weighed the jewelery at the time of search, for the reason best known to them. I consider that in view of this, the CBI has not been able to prove by way of cogent and credit worthy evidence that accused had the assets in the form of jewelery in the sum of Rs. 2,09,165/ in his possession.
CBI has alleged that a sum of Rs. 3,60,000/ was recovered in cash from the possession of the accused. Inspr. Asha Badola has made a specific statement regarding this. Accused has been making contradictory plea regarding this. Primarily he states that this amount was part of the advance relating to sale of F230, Vikas Puri or the withdrawal from the GPF. It is pertinent to mention here that the advance received has duly been shown in the income. CBI has lead cogent and creditworthy evidence regarding recovery of cash from the possession of accused. I consider that CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 64 of 73 CBI has duly proved that a cash of Rs, 3,60,000/ was recovered from the possession of the accused during the search.
CBI has shown a sum of Rs. 5,35,000/ as an asset on account of purchase of H.No. A3/11, Janak Puri. However, CBI has not led even an iota of evidence regarding this. In absence of any evidence on record, the same cannot be accepted.
In respect of H.No. A1A/49A, Janak Puri, it is an admitted fact that the same was purchased by Rajinder Thaman for a sum of Rs. 1,45,000/. The plea of the accused that the same was purchased by her out of her own resources is not supported by any cogent and credit worthy plea. Thus, the sum of Rs. 1,45,000/ has rightly been added. The main contentious item in the asset is regarding purchase and construction of plot no. F230, Vikas Puri. CBI had added 18,80,528/ in this respect. However, I consider that CBI has not calculated this amount correctly. I am constrained to say that the Investigating Officer in this case had acted in a very casual manner and has not properly appreciated the things. It is an admitted fact that Smt. Rajinder Thaman was owner of half share of property no. F230, Vikas Puri. This property was admittedly purchased from PW4 Tejinder Singh Sodhi for a sum of Rs. 22,25,000/ in October 1996. It is also an admitted fact that Smt. Rajinder Thaman alongwith her partner had merely purchased the plot and the entire construction was made later on. It is not disputed that on this property, ground floor, first floor and second floor were constructed. There is an evidence on record regarding sale of CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 65 of 73 ground floor and first floor. It has come on record that at the time of the sale of this property, wooden work, bathroom fittings/sanitary work and electrification work was not done. PW27 Sh. Shiv Shankar Walia in his crossexamination has stated that when he bought the ground floor, it was only a structure in which finishing work was done by him. Similarly, PW40 RK Bansal who had bought the first floor also stated that when he bought, this property was a raw property and was not complete. It is also worth to mention here that the valuer examined by the CBI has not inspired the confidence of the court. PW37 in the crossexamination stated that in his report Ex. PW37/A, he has not given the break up of the calculation in report. The witness stated that the break up is available in CBI Evaluation file. It is an admitted fact that Evaluation file has not been produced. The witness has not produced the calculation sheet/breakup on the record of this case. I consider that in view of the inherent weaknesses in the testimony of the PW37, the same cannot be accepted in toto. However, the accused himself put a suggestion to PW37 that the total value of property no. F230, Vikas Puri was only Rs. 34,00,000/ including the land cost and construction cost. In absence of any cogent and creditworthy material on record being produced by CBI, I go by the plea of the defence that the total valuation of property no. F230, Vikas Puri was only Rs. 34,00,000/ including the land cost and cost of construction. If we take 34,00,000/ as total value, a sum of Rs. 17,00,000/ is liable to be added in the assets of the accused. Thus, the total assets comes to Rs. 35,37,730/.
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 66 of 73
TABLE A Income of Sh. Bhim Sain and Family Members :
S.No. Name of the Income Amount (Rs.)
1 Salary of Sh. Bhim Sain 8,56,366.15
2 Income from Honorarium 21,825.00
3 GPF Advance drawn by Sh. Bhim Sain 3,21,000.00
4 Income from Salary of Sh. Sanjeev Thaman 4,38,840.00
5 Business Income of Smt. Rajinder Thaman 2,04,040.00
6 Income of Smt. Rajender Thaman from Dividends in respect of 25,981.00
shares of different companies.
7 Salary of Puja Thaman 38,000.00
8 Income from Survival Benefit in respect of LIC Policy No. 5,000.00
120011611 of Sh. Bhim Sain
9 Receipt of Shagun on account of marriage of Sh. Sanjeev 21,841.00
Thaman
10 Income from Bank interest 64,802.00
11 FDR interest received by Sh. Sanjeev Thaman 9,424.00
12 FDR interest received by Smt. Rajender Thaman 38,697.00
13 Income of Sh. Sanjeev Thaman in respect of shares of different 13,425.00
companies
14 Income of Sh. Bhim Sain in respect of shares of different 7,612.85
companies
15 Receipt of Advance from Mrs. Nisha Bansal 50,000.00
16 Receipt of Advance from Sh. Shiv Shankar Walia 1,75,000.00
17 Amount received by Sh. Bhim Sain on account of maturity of 40,225.00
NSCs
18 Receipt of FDR interest by Sh. Bhim Sain 1,247.00
19 Receipt of Advance from Sh. IS Pasricha, CA 1,00,000.00
20 Income from sale of Property No. D-95, Vikaspuri, New Delhi 5,000.00
21 Income from Maturity of MIPs in respect of Sh. Bhim Sain 46,120.00
22 Income during check period from investments made prior to 12,281.00
check period
23 Income of Puja Thaman 16,000.00
Total 25,12,727.00
............
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 67 of 73
TABLEB
Expenditure of Sh. Bhim Sain Thaman & Family Members :
S.No. Name of the Expenditure Amount (Rs.)
1 Electricity charges in respect of House Tax in respect of 13,117.90
A1A/49A, Janakpuri, New Delhi.
2 Property tax paid by Sh. Bhim Sain in respect of property No. 11,768.00
A1A/49A, Janakpuri, New Delhi.
3 Expenses on education incurred by Sh. Bhim Sain in respect of 38,400.00
Anjula Thaman and Puja Thaman
4 Expenses incurred on education, Hostel Accommodation and 50,423.00
messing of Sanjeev Thaman
5 LIC Premium paid by Sh. Bhim Sain and Sh. Sanjeev Thaman 50,531.30
6 Premium paid in respect of ULIP policies. 52000
Water charged in respect of H. No. A1A/49A, Janakpuri, New 771.00
7 Delhi.
Bill of Kapila Electronics for purchase of BPL Refrigerator for 43,300.00
8 Rs.23,500/- and BPL TV Rs. 19,800/-.
9 Expenditure towards maintenance of family members 8,37,575.00
Total 10,97,886.20
..............
TABLE-C
Assets in the name of Sh. Bhim Sain and Family Members:
S.No. Name of the Asset Amount (Rs.)
1 A1A/49A, Janakpuri 1,45,000.00
2 Purchase and construction of plot No. F-230, Vikaspuri 17,00,000.00
3 Investment made on Shares, Bonds, Debentures etc. by Smt. 1,70,280.00
Rajender Thaman
4 Investment made on Shares, Bonds, Debentures etc by Sh. 3,10,000.00
Sanjeev Thaman
5 IDBI Bonds in the name of Sh. Bhim Sain and Puja Thaman 20,000.00
6 Investment in LIC Mutual Fund by Sh. Bhim Sain 20,000.00
7 Investment in Unit Trust of India in the name of Sh. Bhim Sain 40,000.00
and Puja Thaman
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 68 of 73
8 NSCs standing in the name of Sh. Bhim Sain, in the joint names 1,21,000.00
of Sh. Bhim Sain and Smt. Rajender Thaman and Anjula Thaman 9 Maruti Car No. DDD 7126 80,000.00 10 Yamaha Motor Cycle No. DL4SM 5501 29,000.00 11 Cash 3,60,000.00 12 Balance in Bank Accounts 4,50,875.17 13 As per Observation Memo 95,975.00 14 Investment in SBI MF in the names of Sh. Bhim Sain and Smt. 40,000.00 Rajender Thaman Total 35,82,130.17 TABLE-D A. Income 25,12,727.00 B. Expenditure 10,97,886.20 C. Likely Savings (AB) 14,14,840.80 D. Assets 35,82,130.17 E. Assets at the beginning of the check period 10,746.00 F. Total Assets (DE) 35,71,384.17 G. Assets Disproportionate (FC) 21,56,543.37 % of DA = 86% H. % of disproportion G/A*100 = 86% 9.0 Therefore, to my mind, the prosecution has successfully proved its case beyond any shadow of doubts against the accused for the offence u/S 13 (2) r/w 13 (1)(e) PC Act, 1988. Hence, accused Bhim Sain Thaman is held guilty for the offence u/S 13 (2) r/w 13(1)(e) of the PC Act in RC No. 36(A)/98.
Announced in Open Court (Dinesh Kumar Sharma )
on 12.07.2012 Spl. Judge (PC Act) : CBI-01
Saket Courts : New Delhi.
........................
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 69 of 73
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act) CC No.28/11 Unique Case ID No. 02401R0070492001 C.B.I. Vs. 1. BHIM SAIN THAMAN S/o Sh. Charan Ram, R/o A1A/49A, Janakpuri, New Delhi.
RC No. : 36(A)/98 u/Ss : 13(2) r/w 13(1) (e) of PC Act, 1988 Appearances: Sh. DK Singh, Ld. PP for CBI.
Dr. LS Chaudhary, Ld. Counsel for convict Bhim Sain Thaman.
Judgment delivered on : 12.07.2012 Order on Sentence : 18.07.2012 CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 70 of 73 ORDER ON SENTENCE Present: Sh. DK Singh, Ld. PP for CBI.
Convict Bhim Sain Thaman is present with Dr. LS Choudhary, Ld. Counsel for the convict.
Sh. Bhim Sain Thaman has been convicted for the offence u/S 13(1)(e) r/w 13(2) of PC Act, 1988. The Convict has been found in possession of Disproportionate Assets in the sum of Rs. 21,56,543.37. Dr. L.S. Choudhary, Ld. Counsel for the convict has prayed for a lenient view. Ld. Counsel submitted that convict has already faced the trial for around 14 years. He is an old person of around 66 years of age and his wife Smt. Rajender Thaman and sister Pushpa Thaman are old, ailing and bed ridden. Convict is the only person to look after them. After the conviction in this case, convict would also loose all his service benefits and a prayer for the lenient view has been made.
Sh. DK Singh, Ld. PP for CBI has submitted that convict is liable to a maximum punishment.
I have considered the submissions of both the sides and perused the record carefully.
Convict has been found in possession of Disproportionate Assets in the sum of Rs. 21,56,543.37. He has been indulging himself in the CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 71 of 73 corruption. It has been proved on record that convict had been parking ill gotten money in the name of his wife and children.
This country is facing several problems and corruption is one of the most serious problem. The corruption which has creeped into the public servant has created a sense of insecurity for the common man of this country. The reputation of this country is also having an adverse impact on account of corruption amongst the public servants. The superior courts from time to time have discouraged the practice of having lenient view in the cases of corruption. In the case of State of M.P. Vs. Shambhu Dayal Nagar (2006) 8 SCC 693, it was inter alia observed as under :
"It is difficult to accept the prayer that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Largescale corruption retards the nation building activities and everyone has to suffer on that count. Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post."
I consider that in corruption cases the convict should be given harsh punishment. The corruption can never be allowed to be profitable business. It is matter on record that convict has faced trial for 14 years and CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 72 of 73 he is an old person of around 66 years of age. However, I consider that these are not the circumstances which could mitigate his criminality. Therefore, taking into account entire facts and circumstances, I consider that convict be sentenced to rigorous imprisonment for a period of three years and a fine of Rs.10.00 lacs. In default of payment of fine the convict shall suffer simple imprisonment for one year. The amount recovered during search proceedings, being the ill gotten money, be also confiscated to the State in accordance with law.
A copy of the judgment alongwith order on sentence be given to the convict free of cost.
File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma)
on 18.07.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
.................
CBI Vs. Bhim Sain Thaman CC No. 28/11 Page 73 of 73