Delhi District Court
Cbi vs Dina Nath Aggarwal on 21 September, 2015
1
IN THE COURT OF SH. SANJEEV AGGARWAL: SPECIAL JUDGE
CBI03 (PC ACT): DELHI
RC No. : 1(A)/2001
PS : CBI/ACB/ND
CC No. : 14/15
Under Section: 13(2) r/w Sec.13(1)(e) of PC Act, 1988
CBI Vs Dina Nath Aggarwal
s/o Sh.Daya Ram
R/o 97A, DDA MIG Flats,
Dilshad Garden, Delhi.
Date of Institution : 19.01.2004
Arguments concluded : 11.09.2015
Judgment Delivered : 19.09.2015
J U D G M E N T :
1. In brief prosecution story is, a case was registered on the basis of a source information that Sh. D.N.Aggarwal while working as Junior Engineer in Municipal Corporation of Delhi had amassed wealth/assets disproportionate to his known sources of income in a short span of 12 years of his service, by illegal means. Sh. D.N.Aggarwal was alleged to be holding RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 1 of 134 2 Maruti Car, Scooter, Shares worth Rs. 1.5 Crores, bank accounts, PPF accounts and other investments against the tentative income of about Rs. 8 lacs without any satisfactory account for same.
2. Investigations revealed that Sh. Dinanath Aggarwal belonged to village Sikander Pur, Tehsil Roorkee, UP and was born in a middle class family. He was adopted by the brother of his grandmother, Sh Daya Ram in 1966. The families of his birth and adoption are said to be agriculturists. Sh. Aggarwal after doing Diploma in Civil Engineering and serving some private contractors, joined MCD as JE on 09.01.1986. He married Smt. Pratima Aggarwal in 1984 who was a housewife.
th His two children viz. Rajiv(17) & Aarti(15) were students of 12 th and 10 class respectively, studying in Bal Bharti Public School, Brij Vihar, Ghaziabad on the date of registration of the case.
1. Sh. D.N.Aggarwal was appointed as Junior Engineer in MCD on 09.01.1986 in the pay scale of Rs. 1400/ to 2300/ in the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 2 of 134 3 office of Ex.Engr.(Bldg) HQ, Town Hall.
2. A Case RCDAI2001A0001 DLI was registered on 08.01.2001 u/s 13(2) r/w 13(1)(e) of PC Act, 1988 on the basis of source information in CBI, ACB, New Delhi and a search of residential premises of Sh. D.N.Aggarwal was conducted on 08.01.2001 and during the said search a lot of incriminating documents showing investments in movable and immovable properties were recovered.
3. During investigations, it was revealed that Sh. D.N.Aggarwal had made most of his investments/acquired assets during the period from 09.01.1986 to 30.06.1996, which was taken as check period for calculating disproportionate assets, if any. Sh D.N.Aggarwal was found residing at house No. 97A, PktA, DDA MIG Flat, Dilshad Garden, Delhi alongwith his wife and his two children, a son and a daughter.
4. After completion of investigations, the following assets, income and expenditure came to light and the disproportionate assets were calculated accordingly.
(A) INCOME DURING THE CHECK PERIOD
1. Salary: During 09.01.86 to 30.06.96, the net take home salary RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 3 of 134 4 of Sh. D.N.Aggarwal comes to
a) Net Salary from 09.01.86 to 10.01.94 and later from 11.10.95 to 30.06.96 paid from office of Ex.Engr.(Bldg) HQ Town Hall Rs.2,76,230.85 Arrears of DA, pay fixation etc. Rs. 16,723.00 Total Rs. 2,92,953.85
b) Net Salary from 11.10.94 to 12.06.95 paid from Office of Ex.Engr(Bldg.) MCD, South Zone, Green Park. Rs. 25,128.00
c) Net Salary from 12.06.95 to 10.10.95 paid from office of Ex.Engr(Bldg.) MCD Rohini Zone. Rs. 18,101.00 Total Net Salary w.e.f 9.1.86 to 30.6.96 Rs. 3,36,182.85
2. Interest earned in Bank A/c held(upto June 96) Bank Name Accounts Name of A/c Holder Amount of Interest State Bank of 5750 Sunny/D.N.Aggarwal Rs. 1086 India Dilshad 6391 DN Aggarwal/DD Aggarwal Garden Uma Rani Rs. 958 7033 Rajkali/Kiran/D N Aggarwal Rs. 1117 7051 Pratima/Sudhir Kr. Rs. 1275 10319 Nidhi/Ratika UNG/DN Aggarwal Rs. 1211 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 4 of 134 5 Total Interest earned Rs. 5,647/
3. Interest earned on PPF Accounts(upto June 96) in SBI Dilshad Garden PPF A/C No. Name of A/c holder Date of opening A/c Interest earned 339 D.N.Aggarwal 28.10.94 Rs. 6,256/ 306 Pratima Aggarwal 06.06.94 Rs. 13,832/ Total Interest earned Rs. 20,088/
4. Reliance Industries Co.Shares upto June 1996
i) 120 Shares sold during period 1992 to 1995 Rs. 32,870/
ii) 100 Shares sold during Jan. 1996(as selling price unavailable so last selling price available on 11.11.95 @ Rs. 270/ per share taken Rs. 27,000/ Total earning Rs. 59,870/
5. Dividend on Reliance Industries share upto June 1996 Rs.91,869.56
6. Shares/Debentures of Co. Torrent Cables Ltd., sold, earned dividend and interest as follows upto June 96
(i) Folio 5296 in respect of Pratima Aggarwal shares sold Rs. 4000/ Interest earned Rs.1000/ Dividend earned Rs. 149.66 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 5 of 134 6
(ii) Folio 5298 in respect of D N Aggarwal Shares sold Rs. 2700/ Interest earned Rs. 1000/ Dividend earned Rs. 149.66 Total earnings Rs. 8999.32 Thus, the total income of Sh. D.N.Aggawal and his family members from all sources of income during the check period come to Rs. 5,22,656/Approx B. EXPENDITURE OF THE ACCUSED AND HIS FAMILY
(i) Verifiable Expenditure
1. School expenses in respect of his children Rajiv and Nidhi Aggarwal upto June 1996 Rs. 42,070/
2. Investment in UTI Raj Laxmi Bond in Dec. 1992 (encashed in year 2000) in the name of Nidhi Aggarwal D/o Sh. D.N.Aggarwal Rs. 20,000/
3. Investment in LIC policy premium in Policy No. 111672631 in respect of D N Aggarwal upto June 1996 Rs. 29,448/
4. B.Ed. Course fees for Smt. Pratima Aggarwal in year 199192 Rs. 3,300/ RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 6 of 134 7
5. Telephone Expenses upto June 96 in respect of Tel No. 2272243 opened since 12.03.94 and Tel. No. 2294215 opened since 16.03.91 in respect of D N Aggarwal and Rajkali respectively (II) Nonverifiable Expenditure Expenditure like kitchen expenses laundry expenses gas refilling, gifts travelling entertainment petrol expenses rd etc which are non verifiable taken as 1/3 of the salary of the accused i.e 3,36,183 Rs. 1,12,061/ C) Assets during the check period The following assets were acquired by Sh. D.N.Aggarwal either in his own name or in the name of his family members, during the check period:
I. Shares of Reliance Industries
(i) 5324 shares cost as per transfer deeds Rs. 12,83,195/
(ii) 3320 shares cost @ Rs. 200/ per shares
taken as minimum shares price during 1991 to June 1996(as transfer deeds untraceable/cost unavailable) Rs. 6,64,000/ RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 7 of 134 8 Total 8644 shares of RIL for Rs. 19,47,195
2. Shares/Debentures seized from house other than of Relianc Industries Company. Rs. 42,700/
3. Bajaj Chetak Scooter No. DL5SC5128 in the name of D N Aggarwal purchased on 31.08.92 Rs. 18,900/
4. PPF A/cs in State Bank of India having balance as on 30.06.1996
(i) D.N.Aggarwal No. 339 Rs. 96,256/
(ii) Pratima Aggarwal A/c no .306 Rs.1,64,832/ Total balance in PPF A/cs Rs. 2,61,088/
5. Balance in Bank Accounts Bank Branch A/c No. A/c Holders Balance SBI Dilshad 5750 Sunny/UNG DN Aggarwal 1,24,168.17/ Garden DN Aggarwal 6391 D N. Aggarwal/DD Aggarwal/ Uma Rani. Rs. 2,120.88 7033 Rajkali/Kiran/ D.N.Aggarwal Rs. 2,163.60 7051 Pratima/Sudhir Kr. Rs. 1,235.55 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 8 of 134 9 10319 Nidhi/Ratika UNG/ D.N.Aggarwal Rs. 914.96 Corporation 3258 D.N.Aggarwal Rs. 6,07,785/ Bank Dilshad Garden Total amount in Bank A/cs as on 30.06.96 Rs. 7,38,388/
6. Value of household articles as per inventory (excluding articles/assets after 30.06.1996) Rs. 1,03,250/ Total Assets during check period Rs. 31,11,521/ Assets prior to the check period i.e as on date of joining service on 9.1.86 Rs. 37,000/ Thus assets acquired during the check period by Sh. D.N.Aggarwal and his family members Rs. 30,74,521/ Computation of Disproportionate Assets
(i) Assets = Rs. 30,74,521/
(ii) Income = Rs. 5,22,656/
(iii)Expenditure = Rs. 2,17,479/
(iv)Likely Savings = Income - Expenditure = Rs. 3,05,177/
(v) Disproportion = AssetsLikely Savings = Rs. 27,69,344/ RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 9 of 134 10
(vi)Percentage of Disproportion = DA x 100 = 529.85% Income
3. Thus, Sh. D.N.Aggarwal was allegedly found in possession of disproportionate assets worth Rs. 27,69,344/ for which he could not give any satisfactory explanation.
4. It was stated that these facts establish commission of offence(s) punishable U/s 13(2) r/w 13(1)(e) of Prevention of Corruption Act 1988 (hereinafter referred to as Act) by D.N.Aggarwal
5. The sanction U/s 19 of the Act was obtained from the Sanctioning Authority MCD.
6. Vide order dated 26.02.2005, a charge U/s 13(1)(e) r/w Section 13(2) of Act was framed against the accused to which he pleaded not guilty and claimed trial.
7. Thereafter prosecution in order to prove its case has examined 22 witnesses.
8. PW1 is Sh. Praveen Chaturvedi who is the witness from M/s Kaarvy Consultants Ltd., who was the transfer agent of M/s Reliance Industries. He has deposed regarding the share transfer certificate(s) pertaining to the shares which were allegedly seized RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 10 of 134 11 from the possession of the accused. He has proved letter dated 23.12.2002 which are ExPW1/A, ExPW1/A1, ExPW1/A2 and letter dated 19.07.03 ExPW1/B, ExPW1/C, ExPW1/D and E, all relating to the valuation of 5324 shares of Reliance Industries and also pertaining to valuation of remaining 3320 shares of the Reliance Industries.
9. PW2 is Sh. Dal Chand who was working as UDC in the Office of Assistant Commissioner(Engg.) MCD, Town Hall, Delhi, whose duty was to look after the property returns of JE/AE of MCD.
10. After seeing the property return filed by the accused he stated that nothing at potion 1 and 2 was in his handwriting and signatures which is ExPW2/A. This property returns was submitted by the accused, when he applied for conveyance allowance for scooter/motorcycle. He put up the same to the Head Clerk Netra Prakash and he sent the same for approval vide his noting at portion ExPW2/B. The approval was given by then EngineerinChief vide his initials ExPW2/C. He also put up the intimation letter for signatures vide endorsement as ExPW2/D. He also stated that RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 11 of 134 12 property returns is ExPW2/E. He had made the noting ExPW2/A after ExPW2/E was filed by the accused and when this document was filed by the accused, the noting at front side portion Q2 and on the reverse side at portion Q1 was not mentioned therein. He remained in the department till 1991. During his tenure, no interpolation was made at portion Q1 and Q2.
11. PW3 is Sh. Manoj Chawla who was working as Manager, M.G.Capital Services Ltd. He has proved one letter dated 12.03.03 signed by him, addressed to SP, CBI which is ExPW3/A. Vide this letter he sent the share details of accused and his wife Pratima Aggarwal as well as family members to the CBI, the details are contained in ExPW3/A1 to A6. He further deposed that he had handed over the documents to the CBI officer vide seizure memo Ex PW3/B. The documents mentioned in the seizure memo ExPW3/B are ExPW3/B1(running into 228 sheets) which bears his attestation as well as initials. The original of the same were in the personal custody of the Director of company being valuable and disputed property. The civil court had stayed the transfer of shares till the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 12 of 134 13 disposal of the case and he also gave the copy of the said order and petitions to the CBI and same are marked as PW3/X1 and X2 respectively.
12. PW4 is Sh. Vippin Malhotra, Marketing Executive, SBI, Swasthya Vihar, New Delhi he has proved one letter ExPW4/A bearing signatures of Sh. J.K.Pathak vide which certain documents were handed over to CBI officer. He stated that the documents are ExPW4/A1, ExPW4/B1 and ExPW4/B2. ExPW4/A1 is attested by Mr. P.S.Kapur Deputy Manager, whose signatures he identified and also signatures of Sh. J.S.Pathak. He further deposed that vide letter ExPW4/C he handed over the documents to CBI officials. The said documents are ExPW4/D1 to D6. The said documents are attested by Sh. P.S.Kapur, Deputy Manager duly certified under Bankers Book of Evidence Act. The account opening forms are ExPW4/D7 to D11. The entries contained in the statement of account were true and correct as per the bank record.
13. PW5 is N.J.Handu, Head Clerk, Bal Bharti Public School, Preet Vihar, Ghaziabad, who was looking after the General Accounts RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 13 of 134 14 of said school. He has proved the details of the school fee(s) paid for master Rajiv Aggarwal and Ms. Nidhi Aggarwal, sons and daughters of accused vide ExPW5/A and ExPW5/B respectively. He stated that these statements were compiled by the accounts department. He identified the signatures of Principal at point A on ExPW5/A and PW5/B respectively. These statements were forwarded to CBI vide ExPW5/C letter dated 02.09.02.
14. PW6 is Sh. Mahesh Kumar, LDC, Building Department, MCD Rohini. He has deposed that he was working as Bill Clerk with the Building Department of MCD. Sh. D.N.Aggarwal JE Engineering was paid net salary of Rs. 18,101/ for the period 11.06.95 to 10.10.95. The certificate in this regard was ExPW6/A, which was signed by Sh. R.K.Bhattacharya, Executive Engineer(Building). He has further stated that the basis pay and all allowances payable on pay are mentioned in detail in the said certificate.
15. PW7 is Sh. Inder Kumar, UDC from the office of Deputy Commissioner, Enforcement Department, Rajpur Road, Delhi. He has deposed that he was working as UDC in State Transport RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 14 of 134 15 Authoirty, Govt. of NCT of Delhi. He had handed over to the IO of the case original registration file of scooter no. DL5SC 5128 in the name of Dina Nath Aggarwal. The registration file is ExPW7/A. Alongwith this file, a letter dated 07.11.02 was also handed over to the IO which was signed by Sh. C.J.Suri, MLO, whose signatures he identified as having worked with him, the same is ExPW7/B. The letter and the file were seized vide memo ExPW7/C. The sale certificate dated 31.08.02 on the basis of which the vehicle was registered and the insurance receipt of the said date are ExPW3/D and E respectively. The price of the scooter was Rs. 18900/. Road tax of Rs. 530/ was paid on 31.08.92 at the time of registration of the scooter. The receipt of the same is ExPW7/F.
16. PW8 is Sh. B.S.Sharma, Assistant Administrative Officer, LIC, Jeevan Prakash Building, K.G.Marg, New Delhi. He has stated that he was posted as Assistant Administrative Officer in branch unit No. 113, LIC of India. Policy No. 111672631 was issued in the name of Dina Nath Aggarwal on 28.04.92. Half yearly premium was Rs. 3272/ of this policy and he had brought one letter dated 09.09.2002, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 15 of 134 16 written by the Branch Manager to Sh. Alok Kumar, Inspector CBI. As per this letter, 7 half yearly premium was paid on the dates as mentioned in the letter. The first survival benefit of Rs. 20,000/ vides cheque no. 72780 was paid to Sh. Dina Nath Aggarwal on 26.05.97 and same would have only been paid, if all the 9 half yearly installments of the insurance had been paid by him. He also identified the signature of Sh. Sanjay Sinha, Branch Manager on the letter dated 09.09.02 ExPW8/A. He further stated that the survival benefit of Rs. 20,000/ was paid vide order ExPW8/B, which was signed by Sh. Lovleen Kumar Garg, whose signatures he identified. He also stated that one installment was paid on 27.05.96 as mentioned in the computerized detail which is ExPW8/C.
17. PW9 is Sh. S.P.Singh, who was working as Accounts Officer with MTNL Delhi. He has deposed that telephone no. 2272243 was opened in the name of Dina Nath Aggarwal. Applicant had deposited Rs. 1000/ as booking charges, Rs. 800/ as installation charges. Telephone no. 2294215 was in the name of Smt. Raj Kali was also installed at the address 97A, Pocket A, Dilshad RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 16 of 134 17 Garden, Delhi . A sum of Rs. 800/ towards booking charges and Rs. 800/ towards installation charges were paid in respect of this telephone. The record of the monthly calls in respect of above stated two phones was burnt out because of a fire and he had handed over letter ExPW9/A to the IO of the case in this regard.
18. PW10 is Sh. Lalit Kakkar, witness from M/s Trident Infotech Corporation Ltd. He has stated that letter dated 06.09.02 was issued by Mrs. Raman Deep Sachdeva, the then authorized signatory of said company. He identified her signatures having worked with her. The said letter is ExPW10/A. As per this letter, 100 shares each were allotted to Pratima Aggarwal. These shares were purchased for a sum of Rs. 1000/ each i.e Rs. 3000/.
19. PW11 is Sh. Shailender Vithal Jadhav, the witness from Mumbai who has proved the letter dated 18.11.2002, which is Ex PW11/A written by Sh.Jiten Mody then Authorised Signatory of M/s Dipali Electronics Ltd., as he had seen him writing and signing during the course of his official capacity. He has identified the signatures of his Chartered Accountant on letter ExPW11/B. He has also RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 17 of 134 18 identified the handwriting and signatures of Sh. Nilesh Mody on the share certificate bearing Nos. 415 to 419 for a sum of Rs. 5000/ in the name of Pratima Aggarwal. The shares are ExC1 to C5 and signatures of Sh. Nilesh Mody are at point A on the same. The share certificate in the name of Dina Nath Aggarwal are ExP6/1 to Ex P6/5.
20. PW12 is Sh. Vijay Arora, Manager(Accounts and Finance) of M/s Waterbase Ltd., Janpath , New Delhi. He has proved letter dated 30.09.02 signed by Sh. C.Ramakrishnan on letter Ex PW12/A. Vide this letter, the debentures were transferred to Mrs. Pratibha Aggarwal on 28.01.93 vide transfer No. 270 under Folio No. 21508. As per share transfer form ExPW12/B Sh. Arun Kumar, the original debenture holder had sold the same to Pratima Aggarwal for a sum of Rs. 1000/. The debenture certificate bearing the endorsement regarding transfer is ExPW12/C.
21. PW13 is Sh. O.P.Gogia from the Directorate of Distance Education, M.D.University Rohtak. He has proved letter dated 19.09.2002 which was bearing his signatures at point A, which is Ex RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 18 of 134 19 PW13/A. As per the said letter a sum of Rs. 3300/ was received for admitting Pratina Goyal(correct name is Pratima Goyal) D/o Sh. Ram Riksh Pal in B.Ed course.
22. PW14 is Sh. Mahesh Sikka, LDC, MCD, Town Hall, Building department, Delhi. He has deposed that he was working in Town Hall, since 28.06.2002. He was doing the diary work and misc. work as directed by Head Clerk. He has seen letter dated 10.01.2003 written by Sh. R.K.Gupta, XEN, vide which the documents were handed over to CBI by him. The said letter is ExPW14/A bearing initials of Sh. R.K.Gupta at point A. Personal Particular sheet of Dina Nath Aggarwal also bears the initials of Sh. R.K.Gupta at point A. The document is ExPW14/B. The pay particulars running into 14 sheets of various periods are of Sh. Dina Nath Aggarwal Mark PW14/C1 to C14.
23. PW15 is Sh. N.K.Aggarwal, S.S.OI, CFSL, New Delhi. He has deposed that the documents pertaining to this case were received from SP, CBI vide forwarding letter ExPW15/A. He examined the documents carefully with scientific aids, such as Video RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 19 of 134 20 Spectral Comprator, Stereo Zoom Microscope, ESDA(Electro Static Detection Apparatus), Twin Video Comparator etc. He prepared his detailed report bearing no. CFSL 2003/D/0505 dated 25.11.2003, which bears his signatures at point A and is ExPW15/B, which was forwarded to SP CBI vide forwarding letter under the signatures of Dr. S.R.Singh, whose signatures he identified at point A on Ex PW15/C. ExPW2/E is the document which was examined by him containing the questioned portions Q1 to Q4. Gist of his opinion is as under:
"Instrumental examination of the red enclosed portions marked Q1 to Q4 reveal that the ink shade of ball pen writings marked Q1, Q2 is different than the ink shade used for writing the ball pen writings marked Q3 and Q4 indicating that the questioned writings marked Q1, Q2 have been written subsequently to the already existing writings marked Q3, Q4 as revealed by the relative smaller size and squeezing of letters in the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 20 of 134 21 writings marked Q1, Q2 to accommodate them in the available space beside difference in ink in the writings marked Q1, Q2 and Q3, Q4. It has not been possible to express any opinion on rest of the questioned items on the basis of material at hand"
24. PW16 is Insp. Alok Kumar ACB, CBI. He is the IO of this case. He has deposed regarding the investigations carried out by him in this case. He has proved copy of the FIR ExPW16/A dated 08.01.2001, other documents seized by him which are ExPW11/C1 to C5, ExPW6/1 to 5, ExPW16/B1 and B2 and ExPW16/C, Ex PW12/C, ExPW16/D, ExPW16/E,ExPW16/F, ExPW16/G, Ex PW16/H, ExPW16/I1 to I5, ExPW16/J1 and J2, ExPW16/K, as also ExPW16/L and ExPW16/M.
25. PW17 is Sh. Y.D.Bankata who was posted as Additional Commissioner MCD in the year 2003. He has proved sanction order dated 10.12.2003 in respect of sanction to prosecute the accused. The said sanction order is ExPW7/A.
26. PW18 is Smt. Sarita Shrivastava, Assistant Manager, UTI RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 21 of 134 22 Mutual Fund Sector 17 from Mumbai. She has proved letter Ex PW16/O signed by Sh. Rajender Kumar the then Assistant Vice President of UTI Mutual Fund Delhi branch bearing his signatures at point A. She has identified his signatures as she had worked with him. She also stated that the letter alongwith photocopy of paid instrument was handed over to CBI on the instructions of her Senior. Vide paid instrument photocopy of which is marked ExPW18/A an amount of Rs. 66,456.73 was paid to Nidhi Aggarwal represented by Dina Nath Aggarwal. The account in which this payment was paid is mentioned on the cheque ExPW18/A.
27. PW19 is Sh. Umesh Shetty, Dy. Manager(operations), Share Pro Services India Pvt. Ltd., Mumbai. He has deposed that in September 2002 he was working as Assistant Manager in MCS limited Mumbai. He had seen the letter ExPW16/M signed by Ms. Savita Bhowmick at point A, whose signatures and handwriting he identified.
28. PW20 is Mr. Devang B. Trivedi witness from Pune. He has deposed that letter ExPW16/L1 vide which information sought RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 22 of 134 23 by CBI were sent by him to the CBI, who identified his signatures at point A on said ExPW16/L1. He stated that he had sent this information after verifying the same personally from the original record maintained in Torrent Cables Limited Ahmedabad, where he was working as Company Secretary at that time.
29. PW21 is Sh. K Venketesh Rao Chief Manager, Corporation Bank, FCS Branch, Bangalore. He has also deposed that he had handed over the documents to CBI vide letters dated 071.0.03 and 29.08.02 which are in his handwriting and bears his signatures at point A and are ExPW16/N1 and ExPW16/N2. The statement of account pertaining to account no. SB/01/3258 in the name of Dina Nath Aggarwal bears his signatures at point A and is ExPW16/N3. This statement of account is computer generated statement and certificate under Banker's Books of Evidence Act 1891 bears his signatures at point A and is ExPW21/A.
30. He further deposed that the account was opened on 26.05.96 and was closed on 06.10.96. As per statement of account there was a balance of Rs. 6,07,785/ on 30.06.96. The entry RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 23 of 134 24 pertaining to this balance was from portion X to X. He further deposed that there was an investment of Rs. 12 lacs and Rs. 10 lacs in favour of M/s Mitthu Investments vide cheque No. 769582 and 769581 which was cleared from the account on 26.06.96. The same is marked from potion Y to Y of the statement ExPW16/N3. He further deposed that during the period from 26.05.96 to 30.06.96 no interest was paid in the account. Five cheques amounting to Rs. 5,98,000/ issued by SBI, Dilshad Garden were deposited in this account on 26.06.96 vide deposit voucher ExPW21/B which bears his signatures at point A. The same was credited into the account and was reflected in ExPW16/N3.
31. PW22 is Sh. Arun Kumar Tyagi, he has deposed that on 08.01.2001 he had participated in a search organized by the CBI. He was a member of a search party. Search was conducted in Dilshad Garden Area, Delhi. Search cum seizure memo ExP3, search cum observation memo ExP4 and scooter search cum seizure memo Ex P5, all dated 08.01.2001 were prepared at the spot and they all bears his signatures.
RC No.1(A)/2001
CBI Vs Dina Nath Aggarwal 24 of 134
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32. Thereafter statement of the accused U/s 313 Cr.P.C was recorded in which all the incriminating evidence was put to him, to which he gave specific answers, in defence he stated that he has been falsely implicated in this case. He also sought opportunity to lead DE.
33. DW1 is Sh. Mukesh Kumar, Ahlmad of Civil Judge, Tis Hazari, he had brought the file bearing Misc. No. 08/2008 titled as Dina Nath Aggarwal Vs. M/s Reliance Consultancy Services & Ors which was pending in the court of Civil Judge Central04, Tis Hazari. He has proved certified copy of the contempt application Ex DW1/1 and relevant order passed passed on this application which is ExDW1/2 and the certified copy of the letter of Smt. Raj Kali dated 22.08.1996 addressed to M/s Reliance Consultancy Services Ltd is ExDW1/3. Certified copy of another letter dated 20.06.1997 issued by Sh. Banarsi Dass Gupta Proprietor of M/s Mathu Investment and finance Consultants addressed to M/s M.G.Capital Services Ltd., is ExDW1/4. He has also proved one letter dated 30.06.1997 written by Smt. Raj Kali addressed to Sh. Banarasi Dass Gupta Proprietor of RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 25 of 134 26 Ms/ Mitthu Investment which is ExDW1/5.
34. He had further brought one file of M.No. 09/2008 titled as Smt. Pratima Aggarwal Vs. M/s Reliance Consultancy Services which was also pending in the same court. He has proved certified copy of contempt application which is ExDW1/6, Certified copy of letter of Smt. Raj Kali dated 22.08.1996 addressed to Ms/ Reliance Consultancy Services Ltd as ExDW1/7. Certified copy of another letter dated 20.06.1997 issued by Sh. Banarsi Dass Gupta proprietor of M/s Mitthu Investments addressed to M/s M.G.Capitals Services Ltd., as ExDW1/8.
35. DW2 is Sh. Dinesh Sharma who was working as Head Clerk in Engineering Department. He had brought Property Return File of accused Dina Nath Aggarwal who was working as JE(Civil) in MCD since 09.01.1986.
36. DW3 is Sh. Kishore Pandey, Income Tax Inspector in Ward No. 34(1) of Income Tax Department. He has proved one letter ExDW3/1 written by Sh. Rajender Singh Pawar, Income Tax Officer, Ward No. 34(1). He has deposed that Ms. Pratima Aggarwal had RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 26 of 134 27 filed her return for the assessment year 199596 vide receipt No. 2063 as per blue book maintained in the office vide G.R No. 1543P at Srl. No. 833. It has been further mentioned in the said letter that as per the assessment year 200203 case of Ms. Pratima Aggarwal was processed U/s 143(1)(a) vide DCR No. 32/85 having receipt No. 6667. He further proved true copy of relevant page having an entry at Srl. No. 855 in the name of Smt. Pratima Aggarwal which is Ex DW3/2. As per said ExDW3/2 the total income of Smt. Pratima Aggarwal is Rs. 72,200/ for the assessment year 199596 & financial year 199495, he also brought the original Demand and Collection Register for the period 200304. At Srl. No. 832 there was an entry in respect of assess regarding assessment of her income for the assessment year 200203. As per said entry her assessable income was Rs. 1,41,250/. Photocopy of relevant page of said Demand & Collection Register is ExDW3/3.
37. DW4 is Sh. Y.D.Bankata who was also examined as PW17 on behalf of prosecution. However, he was partly examined on 08.07.2011, thereafter his examination in chief was deferred, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 27 of 134 28 Similarly DW5 Sh. Ashok Kumar Saini, who was also working in MCD, was also examined partly by accused, but on 17.09.2011 accused made a statement that he did not wanted to recall DW4 Y..D.Bankata and DW5 Sh. Ashok Kumar Saini for recording of their further examination in chief being unnecessary.
38. DW6 is Sh. Raj Kumar Sharma who was also employed in MCD as Administrative Officer. He has also brought the original property return file pertaining to the accused maintained in Engineering Department, Head Quarter MCD and has spoken about the facts as per record.
39. Thereafter vide statement of the accused recorded on 28.09.2011, he closed his defence evidence.
40. I have heard Sh.V.K.Ojha, Ld.PP for CBI as well as Ld. counsel for the accused Sh. R.A.Bhatt and gone through the record.
41. Ld. defence counsel has relied upon following judgments in support of his case: AIR 1988 SC 88 State of Maharashtra V. Pollonji Darabshaw Daruwalla, AIR 1997 SC 3400 Mansukh Lal Vithal Das RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 28 of 134 29 Chauhan V. State of Gujrat, 2009 Cr.L.J 1767 N.Ramakrishnaiah (dead) through Lrs V. State of Andhra Pradesh, (2006) 3SCC (Cri.)225 State Inspr. of Police Vishakhapatnam V. Surya Sankaran Karri, 1992 SCC (Cri.) 801 N.Krishna Reddy V. State Superintendent of Police Hyderabad, 1981 SCC (Cri.) 690 State of Maharashtra V. Wasudeo Ramachandra Kaldalwar, G.S.Matharaoo V. CBI decided by Hon'ble High Court in Crl.M.C. 2695/2010 & Crl.M.A. 13999/2010 on 25.01.2012 and another judgment MCD Represented by its Commissioner Vs Dr. Ved Prakash Kanoji & Anr. in WP(C)5544/2011, Dr.Jairaj Singh Sagar V. MCD Thru Commissioner in WP(C)4223/2012 ,both decided by Hon'ble High Court on 25.02.2013 and Krishnanand Agnihotri V. State of M.P AIR 1977 SC 796.
42. Ld. PP for CBI has also relied upon following judgments in support of his case: 1960 Cri.L.J SC131 C.S.D. Swami V. The State, 1964(1) Cri.L.J SC 310 Sajjan Singh V. State of Punjab and 2009 Cri.L.J 1767 N.Ramkrishnaiah V. State of Andhra Pradesh.
RC No.1(A)/2001
CBI Vs Dina Nath Aggarwal 29 of 134
30
43. With regard to the ingredients of Section 13(1)(e) of Act, the same have been enunciated in judgment 2009 CRI.L.J.1767 "N. Ramakrishanaiah Vs. State of A.P. The relevant paras of the said judgment are reproduced as under:
14. Section 13 of Prevention of Corruption Act, 1988 (in short the 'Act') deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of Subsection (1) of the Section is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources of property disproportionate to his known source of income. Clause (e) of Subsection (1), of Section 5 of the Old Act was in similar lines. But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The expression "known source of RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 30 of 134 31 income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the 'Evidence Act').
15. The emphasis of the phrase "known sources of income" in Section 13(1)(e) (old Section 5(1)(e)) is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 31 of 134 32 income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
16. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance.
44. To substantiate the charge U/s 13(2) r/w Section 13(1)(e) of Act, the prosecution has to prove the following ingredients:
1. The accused is a public servant.
2. What were his known sources of income i.e known to the prosecution
3. The nature and extent of the pecuniary resources of property which were found in his possession; and
4. Such resources or property fund in possession of the accused were disproportionate to his known sources of income.
RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 32 of 134 33
45. Before proceedings further, it shall be necessary to discuss the aspect relating to property return at the first instance, regarding the property return ExPW2/E, accused had written a letter dated 25.09.86 to the MCD authorities, where he was working which was an intimation regarding purchase of motor cycle and grant of scooter conveyance allowance. In the said letter he submitted that he had purchased motorcycle(second hand) bearing No. DBT 2887 from one Sh. Rajender Kumar Arora for Rs. 8000/. The same had been purchased from his personal saving, PF and S.A.S amount which was received by him from previous service, therefore the clearance to this effect may kindly be given so that he could start drawing conveyance allowance. He also attached property return alongwith the same. The said property return has been proved by PW2 witness Sh. Dal Chand. The said witness has deposed that in 1986, he was working as UDC in the office of Assistant Commissioner(Engg.) Town Hall, Delhi. His duty was to look after the work of property returns of JE/AE of MCD, RD inquiries etc.
46. After seeing the property return file of accused he stated RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 33 of 134 34 that noting at portion 1 and 2 was in his handwriting and the same bears his signatures and same was ExPW2/A and as per the said noting accused gave property return regarding movable and immovable properties mentioned therein. He further deposed that this property return was submitted by him, when he applied for conveyance allowance for scooter/motor car. He put up the same to Head Clerk Sh. Netra Prakash and he sent the same for approval vide his noting ExPW2/B. Thereafter approval was given by Engineerinchief Sh. Ambani vide his initials ExPW2/C. He put up the intimation letter for signatures vide his endorsement ExPW2/D.
47. He further deposed that page no. 3 of this note sheet shows that accused had not submitted the property returns for the year 1987 to 1991, but the same was not in his handwriting. He has stated that he had seen the property return filed by accused from the date of appointment i.e 09.01.1986 to September 1996(wrongly typed as 1996, infact it is 1986). He stated that the front side of the document shows the movable properties and the reverse side shows the details of immovable properties. The said property return is Ex RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 34 of 134 35 PW2/E and he made the noting ExPW2/A after ExPW2/E was filed by the accused. He further deposed that when this document was filed by the accused the noting at front portion Q2 and on the reverse side at portion Q1 was not mentioned therein. He remained in the department till 1991. During his tenure no interpolation was made at portion Q1 and Q2. The said portion seems to have been written later on after his tenure. He was cross examined by the accused. In his cross examination he stated that it was correct that no specific file inspection was ever filed or marked to this section for inspecting the said returns by the accused. He was also reexamined by Public Prosecutor. In his reexamination he reiterated that it was correct that the movable property at Q2 and immovable property at Q1 were not mentioned in ExPW2/A, because said portion was not there, when he wrote the note. Nothing has come out in his cross examination which was carried out by the accused further after reexamination.
48. Now the counsel for accused has argued that the portion Q1 and Q2 was written by the accused on the same day, as it quite happens during the filling of any form some details are left and since RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 35 of 134 36 the details are left and the forms provided are such that the details have to be squeezed in the available space, the accused had filled up the portion Q1 and Q2 on the same day. In this regard he has also relied upon the testimony of PW15 the handwriting expert, as PW15 in his cross examination has admitted that the possibility of both the writings being written on the same day with different pens cannot be ruled out, further PW15 has only opined about the difference in ink shade ball pen in writing at Q1 and Q2 on one hand and Q3 and Q4 on the other hand. But he has failed to give any opinion whether there was any time lag between the writing Q1 and Q2 as that of Q3 and Q4, which shows that Q1 and Q2 as also Q3 and Q4 had been written on the same day. In this regard he has reiterated that it can be noticed on ExPW2/E that there is a space constraint at portion Q1 and Q2, therefore it was quite natural for someone to squeeze ones handwriting, so as to be fitted in the space available.
49. He has further argued that PW2 had wrongly noted down the details in the note, he had left the portion Q1 and Q2. He has RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 36 of 134 37 further argued that PW2 in his cross examination has admitted that after the returns are being filed by the official, the same were in the safe custody of dealing hand, they are not available for general inspection, in case an individual requires to inspect the return, he will move an application which has to be routed through proper channel, in case application is allowed, the inspection is permitted in their presence. He further admitted that no file inspection was ever marked to the section in case of return ExPW2/E. In these circumstances, he has argued that the chances of portion Q1 and Q2 being inserted later on in the property return are absolutely ruled out.
50. On the other hand, Ld. PP for CBI has argued that from the testimony of PW2 it is clearly established that Q1 and Q2 were inserted later on by the accused to take benefit, when case was registered against him in connivance with the officials of MCD.
51. I have gone through the rival contentions. PW2 is the witness/clerk who had prepared the note ExPW2/A based upon the property return ExPW2/E filed by the accused on 07.10.86. All the details mentioned by the accused in his property return ExPW2/E RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 37 of 134 38 are mentioned in detail in his note, except the portion Q1 and Q2. It is hard to imagine PW2 in the year 1986, when no case was pending against the accused anywhere, as he was a new entrant in the service, it is nowhere the case of the accused that PW2 had any feeling of rancour against him or enmity, then why would PW2 wrongly copy down the details mentioned in the property return Ex PW2/E and he will only not copy that portion which is disputed as Q1 and Q2, as claimed by the prosecution to have been inserted later on. Judicial notice can be taken of this fact that clerks who do the work of copying are generally very good at doing so, why would he leave anything, if it was originally there in the return filed in the year 1986. Further the note sheet attached with ExPW2/A shows that it has been repeatedly written on the note sheets for the year 1991, also 1997, 1998 upto 2001 that the accused was not submitting the property returns after the year 1986 i.e for long period of 15 years. This shows that accused had not been filing property return every year, as was mandatory under CCS Conduct Rules by which accused was also governed. If he would have been doing so then the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 38 of 134 39 discrepancy in the return i.e portion shown in Q1 and Q2 would have been rectified in the property returns of later years i.e every year a note would have been made in a manner prepared by PW2 which is ExPW2/A. If one clerk would have done the mistake once, it was not possible that another clerk or same clerk would do or repeat the said mistake again in the following or subsequent year, the mistake, if any, would have been rectified.
52. Further in ExPW2/E there is a column regarding mode of acquiring as well as present value and if certain things are not in the name of the applicant then in whose name, the said mode to be held has to be mentioned alongwith annual income received therefrom. If the portion Q1 was initially written as claimed by the accused, then he should have mentioned the folio number, distinctive number as well as date of acquisition of shares of Reliance Industries of Rs. 8 lacs and other shares for Rs. 2 lacs. There is no date of acquisition, nor folio number, nor distinctive number has been mentioned, nor the income i.e dividend derived from those shares has been mentioned, the mode of acquiring has also not been mentioned. These RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 39 of 134 40 discrepancies point out that said portion Q1 was hurriedly inserted into the property return ExPW1/E belatedly after accused had been booked by CBI in the present case.
53. Similarly portion Q2 seems to have been inserted in the same manner, there also the details of the agricultural farms, the details of the shares stated to be having value of Rs more than 30 lacs and the agricultural income and the mode of receiving the same has not been mentioned. This also shows that the said portion has been inserted later on belatedly. If the same was written initially, then what stopped the accused from annexing a separate sheet as annexure in which the details of immovable properties i.e Khasra number and the distinctive number as well as folio number, date of acquisition of land as well as shares would have been written.
54. Further the accused could have produced the evidence in this regard by producing broker/sub broker from whom he had purchased the said shares i.e by producing the contract note regarding the purchase of said shares from particular broker/sub broker and also showing the manner of passing of consideration to RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 40 of 134 41 the particular broker and sub broker from whom the shares would have been purchased as claimed in the portion Q1 and Q2.
55. Still further, if the accused was having these shares in the year 1986 itself as claimed then he would have been receiving dividend on the shares of the Reliance Industries Ltd., which was always a profit making company prior to 1986 as well as for the subsequent years on annual basis. The same would have been proved by the accused by producing his bank statement for that particular year or summoning the record from the company itself that he had been receiving dividend for said shares prior to 1986 and thereafter on regular basis from Reliance Industries Ltd. and other companies. Similarly he could have summoned the relevant land record showing that he had been receiving the agricultural income from the land/farm houses on regular basis, but same has not been done. These circumstances clearly goes against the accused and shows that these portions Q1 and Q2 have been inserted later on.
56. Accused in his attempt to ameliorate the problem has examined DW6 in this regard to show that since there was no RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 41 of 134 42 substantial change in the movable and immovable properties owned by the accused. Therefore he did not file property return for the later year, as he simply filed the property return for the subsequent year with the remarks "no change". However, DW6 in his cross examination has admitted that vide letter dated 09.02.2004 Ex DW2/DF, accused was asked to submit his property return for the period ending December, 2003. Accused was also asked by MCD to submit his property returns for the period December, 1986 to December 2002. He also admitted it was correct that accused had not submitted his returns since December 1986 to the Department. It was correct that as per the provisions of CCS Conduct Rules 18, accused had to submit property return for each year in the month of January of the next year. He also admitted it is correct that vide explanation of accused ExDW2/DG, he had intimated that there was no material change since submission of his property return in the year 1986 at that time of his joining. It is not clear why there was no change in the property return of the accused as claimed by him, since every year the accused must have been receiving dividend RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 42 of 134 43 which was the income which should have been reflected in the movable assets held by the accused, merely because the property return remains in the custody of the concerned clerk and there was no application for inspection moved by the accused does not mean that there was no chances of interpolation, since the accused has also not lead any evidence that the said record was kept in lock and key, where no other person or department had access being a secret document. Therefore chances of interpolation cannot be ruled out. In these circumstances, it is evident that the portion Q1 and Q2 was inserted much later on by the accused in connivance with some officials of the MCD.
57. The check period as per the case of prosecution is from 09.01.1986 to 30.06.1996, which was taken as check period for calculating the disproportionate assets, if any, of the accused. It is not disputed that accused is a public servant, as accused was an employee of Municipal Corporation of Delhi (MCD) and was working as Jr. Engineer in the office of Executive Engineer (Building) HQ, Town Hall. It is also not disputed that the wife of accused RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 43 of 134 44 Smt.Pratima was a housewife, as she was not engaged in any vocation or systematic organized business activity. Though, it has been argued that she used to earn money by giving tuitions to children or that she had also filled income tax returns on two occasions to prove this fact.Regarding the remaining ingredients, it would be expedient to discuss the same under various heads as shown in the chargesheet.
58. First of all, Income during the Check period is taken. For eg. the salary of the accused during 09.01.1986 to 30.06.1996 i.e. net take home salary of the accused has been calculated by the prosecution to be Rs.3,36,182.85. It is to be discussed, whether the same has been correctly arrived at by the prosecution or not after considering rival contentions of the parties.
a) Net Salary from 09.01.86 to 10.01.94 and later from 11.10.95 to 30.06.96 paid from office of Ex.Engr.(Bldg) HQ Town Hall Rs. 2,76,230.85
59. The same have been proved by witness PW14 Sh.Mahesh Sikka, who was LDC from MCD Town Hall, Building RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 44 of 134 45 Department. He has brought the relevant salary particulars / pay particulars of the accused for the above period and he has proved the pay particulars running into 14 sheets of the accused, which was marked as Mark PW14/C1 to C14. Ld. counsel for accused, though initially had argued that the said documents were unsigned, it did not bear the signatures of any person who had prepared the same nor they were properly authenticated, so they cannot be relied upon, but during the course of arguments, he has not disputed salary particulars mentioned in the said document. Even otherwise, in the cross examination of this witness, no suggestion was given that the particulars mentioned in documents marked as Mark PW14/C1 to C14 were incorrect.
Arrears of DA, pay fixation etc. Rs. 16,723.00
60. The quantum of arrears of DA / pay fixation were not disputed during the course of arguments nor any falsity was pointed out by Ld. defence counsel in the said documents marked as Mark PW14/C1 to C14 nor any suggestion was put to the witness. Same were correct, as per the official record maintained in the Municipal Corporation of RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 45 of 134 46 Delhi. Therefore, the same can be taken as correct, which is Rs. 2,92,953.85.
b) Net Salary from 11.10.94 to 12.06.95 paid from Office of Ex.Engr(Bldg.) MCD, South Zone, Green Park. Rs. 25,128.00
61. The same was Ex.P1 and was not disputed by Ld. defence counsel during the course of arguments, as the same was admitted by the accused in his statement recorded u/S 294 Cr.P.C on 31.08.06.
c) Net Salary from 12.06.95 to 10.10.95 paid from office of Ex.Engr(Bldg.) MCD Rohini Zone. Rs. 18,101.00
62. The same has been proved by witness PW6 Sh.Mahesh Kumar, who was working as LDC in Building Department, MCD, Rohini Zone, Delhi. He stated that the accused was paid net salary of Rs.18,101/ for the period 11.06.95 to 10.10.95 and the certificate with regard to this was Ex.PW6/A. The same was signed by Executive Engineer (Building). The basic pay and all the allowances payable were mentioned in the details. Nothing has come out in his RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 46 of 134 47 cross examination, therefore the figure of Rs.18,101/ which has been proved by the prosecution with regard to the income of the accused from his salary for the period 12.06.95 to 10.10.95 is proved to be correct. Therefore, the total net salary of the accused from 09.01.86 to 30.06.96 comes to Rs.3,36,182.85.
2. Interest earned in Bank A/cs held (upto June 96) S.no. Bank Name Accounts Name of A/c Holder Amount of interest
a). SBI, Dilshad 5750 Sunny/D.N.Aggarwal Rs.1086 Garden
b). do 6391 D.N.Aggarwal/D.D. Aggarwal/Uma Rani Rs.958
c). do 7033 Rajkali/Kiran/D.N. Aggarwal Rs.1117
d). do 7051 Pratima/Sudhir Kr. Rs.1275
e). do 10319 Nidhi/Ratika UNG/ D.N.Aggarwal Rs.1211 Total Interest earned Rs.5,647/ S.no. Bank Name Accounts Name of A/c Holder Amount of interest
a). SBI, Dilshad 5750 Sunny/D.N.Aggarwal Rs.1086 Garden
63. Regarding this, PW4 has proved the said fact. PW4 is Sh.Vippin Malhotra, Marketing Executive in SBI, Swasthya Vihar, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 47 of 134 48 New Delhi. He has proved the said bank account, which was in the name of Sunny, who is stated to be Bhanja of the accused, under the guardianship of accused. He has proved the account opening form relating to said account as Ex.PW4/D7 and as per Ex.PW4/D1, the amount of interest which has been earned by the accused in the said account is Rs.1086/, which has not been disputed even otherwise by Ld. Defence counsel during the course of arguments, though the first holder of the said account was Sunny, who is stated to be Bhanja of the accused. Since said Sunny was only a minor, the said account was opened under the guardianship of accused, though the prosecution had to prove that Sunny was the benamidar of accused and the money in the account was provided by the accused, but in the present case, since Sunny was only a minor, he was not in a position to enter into any contract including the Contract of Banking with the bank, therefore accused was made guardian of his Bhanja (Sunny). The said account was only operated by D.N.Aggarwal, who was accused and the said minor person could not have been earning anything nor it has been proved to be so and no such like argument RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 48 of 134 49 have been addressed during the course of final arguments, therefore entire amount lying in the said account i.e. Rs.1086/ would be interest income of the accused.
S.no. Bank Name Accounts Name of A/c Holder Amount
of interest
b). SBI, Dilshad 6391 D.N.Aggarwal/D.D.
Garden Aggarwal(brother of
accused)/Uma Rani
(sister of accused) Rs.958
64. Regarding this, the said account opening form has also been proved by PW4 Sh.Vippin Malhotra vide Ex.PW4/DA. The relevant interest details have been proved vide Ex.PW4/D3. As per which the amount of interest earned is Rs.958/. As discussed above, in view of the judgment of Krishnanand Agnihotri (supra), the prosecution has to prove that the amount lying in the said account exclusively belonged to the accused, accused is the beneficiary of the said amount and no other person is beneficiary of the same. No evidence has been lead by the prosecution on this aspect as to the entire amount deposited in the said account was deposited by the accused, his brother and sister were independent entities and they RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 49 of 134 50 were not the family members of accused, as the family members of accused ordinarily would consist of himself, his wife, son and daughter, therefore the accused cannot be granted benefit of entire amount of interest of Rs.958/ in the said account and he at the most could be given benefit of 1/3 of the whole amount i.e. 958/3= Rs.
rd 319.33 paise.
S.no. Bank Name Accounts Name of A/c Holder Amount
of interest
c). SBI, Dilshad 7033 Rajkali (grand mother
Garden of accused)/Kiran(mother)
/D.N.Aggarwal (accused) Rs.1117
65. The said account opening form was again proved by PW4 as Ex.PW4/D11 and the corresponding statement of account has been proved as Ex.PW4/D6. Vide the same analogy as discussed above, the grand mother and mother of accused, being independent entities, therefore the entire amount of interest claimed by the accused of Rs.1117/ from the said account cannot go in favour of the accused and at the most accused can be given benefit rd of 1/3 portion of the same i.e. Rs.1117/3=Rs.372.33 P. S.no. Bank Name Accounts Name of A/c Holder Amount RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 50 of 134 51 of interest
d). SBI, Dilshad 7051 Pratima (wife of accused) Garden /Sudhir Kr.(jija of accused) Rs.1275
66. The said account was proved again by PW4 Sh.Vippin Malhotra vide account opening form Ex.PW4/D9 and the corresponding statement of account Ex.PW4/D4. The said account was in the joint name of wife of accused and Sh.Sudhir Kumar, who is stated to be Jija of the accused. By the same analogy, since his Jija cannot be said to be the family member of accused, his income including the income from interest earned from the said account cannot be apportioned to the accused or to the wife alone. Since no evidence has been lead that his Jija Sudhir Kumar had no beneficial interest in the said account, therefore accused at the most would be entitled to the benefit of half of the same i.e. Rs.1275/2= Rs.636.
S.no. Bank Name Accounts Name of A/c Holder Amount
of interest
e). SBI, Dilshad 10319 Nidhi(daughter)
Garden /Ratika UNG(bhanji)/
D.N.Aggarwal Rs.1211
67. The said account opening form was proved by PW4 as RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 51 of 134 52 Ex.PW4/D10 and the corresponding statement of account has been proved as Ex.PW4/D5. As discussed with regard to the account no. 5750 as above, since both, his daughter and bhanji were minors and they could not have operated the account without or under the guardianship of accused and admittedly they had no income from any source whatsoever, therefore the entire amount earned from the interest with regard to the money lying in the said account i.e. Rs. 1211 has to go to the accused and total interest earned by the accused from above all heads comes to Rs.3624.66 p.
3. Interest earned on PPF Accounts (upto June 96) in SBI Dilshad Garden S.No. PPF A/c Name of A/c Date of opening A/c Interest No. holder earned
a). 339 D.N.Aggarwal 28.10.94 Rs.6,256/
b). 306 Pratima Aggarwal 06.06.94 Rs.13,832/ Total interest earned Rs.20,088/
68. The said PPF accounts have been proved by witness PW4 Sh.Vippin Malhotra vide Ex.PW4/A1. The same has also been admitted by the accused during the course of arguments. Therefore, the benefit of said amount of Rs.20,088/, as the income earned by RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 52 of 134 53 the accused, being the interest component from the PPF account in the name of accused and his wife as mentioned above has to be given to the accused.
4. Reliance Industries Co. Shares sold upto June 1996
a) 120 Shares sold during period 1992 to 1995 Rs.32,870/
b) 100 Shares sold during Jan. 1996 (as selling price unavailable so last selling price available i.e. on 11.11.95 @ Rs.270/ per share taken) Rs.27,000/ Total earning Rs.59,870/
69. The income generated or added in the income of accused by selling the shares with regard to the entries (a) and (b) have not been disputed by Ld. defence counsel during the course of arguments. In any case, the benefit of the same has been given by the prosecution to the accused, therefore said amount of Rs.59,870/ as the income generated in favour of the accused by the sale of shares during the check period have to be accorded to the accused.
5. Dividend on Reliance Industries share upto June 1996 Rs.91,869.56
70. The said dividend has been proved by PW1 Sh. Parveen RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 53 of 134 54 Chaturvedi, who was the witness from M/s Kaarvy Consultants Ltd., which was acting as share transfer agents of M/s Reliance Industries. This witness has proved the dividend earned by accused upto June 1996 with regard to various shares held by the accused vide document Ex.PW1/E amounting to Rs.91,869.56 as per AnnexureA of Ex.PW1/E, same has even otherwise not disputed during the course of arguments by the defence.
6. Shares/Debentures of Co. Torrent Cables Ltd. sold, earned dividend and interest as follows upto June 96.
a) Folio 5296 in respect of Pratima Aggarwal shares sold Rs.4000/
Interest earned Rs.1000/
Dividend earned Rs.149.66
71. The same has been proved by PW20 Devang B.Trivedi, who is the witness from Torrent Cables Ltd. He has stated that he has seen letter Ex.PW16/L1 and as per said letter the information sought by the CBI was sent by them after verifying the same from the records of Torrent Cables Ltd. As per the said letter Ex.PW16/L1 another letter Ex.PW16/L2, which have been proved by Inspr.Alok Kumar, the total amount earned by the wife of accused by selling the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 54 of 134 55 shares / debentures of Torrent Cables Ltd. as per the said document is Rs.4,000/, the interest earned by her with regard to debentures is Rs.1000/ and interest earned on dividend is Rs.149.66.
b) Folio 5298 in respect of D.N. Aggarwal shares sold Rs.2700/
Interest earned Rs.1000/
Dividend earned Rs.149.66
72. The same witness PW20 Devang B.Trivedi has also
proved the amount of income generated by the accused from the sale of shares of Torrent Cables Ltd. as Rs.2700/. The interest earned by the debentures earned as Rs.1000/ and the dividend earned by the said shares as Rs.149.66 and the total earnings from the said shares / debentures including the interest component is Rs. 8999.32.
73. Thus, the total income of accused and his wife, who is a member of his family since she has no other independent source of income( being house wife) from all sources of income during the check period is Rs.5,20,634.39 P. B. EXPENDITURE OF THE ACCUSED AND HIS FAMILY (I) Verifiable Expenditure RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 55 of 134 56
a). School expenses in respect of his children Rajiv and Nidhi Aggarwal upto June 1996 Rs.42,070/
74. In this regard prosecution has examined PW5 N.J.Handu, who is a witness from Bal Bharti Public School, Preet Vihar, Ghaziabad. He has proved the relevant documents i.e. details of the school fees paid for Rajiv Aggarwal (son of accused) and Nidhi Aggarwal (daughter of accused) vide Ex.PW5/A and Ex.PW5/B which statements were stated to have been compiled by the accounts department and he identified the signatures of Principal at point A on Ex.PW5/A and Ex.PW5/B and said documents were forwarded to CBI vide letter Ex.PW5/C, as per the same school expenses of both the children upto June 1996 were stated to be Rs. 42,070/. The said amount has not been disputed in the cross examination of said witness by stating that any amount less than that had been charged by the school towards school fee for both the children of the accused.
b). Investment in UTI Raj Laxmi Bond in Dec. 1992 (encashed in year 2000) in the name of Nidhi Aggarwal D/o Sh.D.N.Aggarwal Rs.20,000/ RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 56 of 134 57
75. The said expenditure of Rs.20,000/ which was invested in UTI Raj Laxmi Bond has been proved by the witness PW18 Smt. Sarita Shrivastava, who was working as Assistant Manager in UTI Mutual Fund, Sector 17, Vashi Navi, Mumbai. She has stated that she had seen letter Ex.PW16/O signed by Sh.Rajendra Kumar the then Assistant Vice President of UTI Mutual Fund Delhi Branch, she also identified his signatures. She further stated that the letter alongwith the photocopy of paid instrument was handed over by her to the CBI officer. She further stated that vide paid instrument photocopy of which is marked PW18/A, an amount of Rs.66,456.73 was paid to Nidhi Aggarwal represented by Dina Nath Aggarwal and the account in which this payment was paid was mentioned on cheque Ex.PW18/A. Therefore, the amount of Rs.20,000/ spent by the accused for investment in UTI Raj Laxmi Bond as Rs.20,000/ has been duly proved by said witness PW18.
c). Investment in LIC Policy premium in Policy no.111672631 in respect of D.N.Aggarwal (accused) upto June 1996 Rs.29,448
76. The said policy and the premium paid thereon has been RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 57 of 134 58 proved by PW8 Sh.B.S.Sharma, who was working as Assistant Administrative Officer, LIC, Jeewan Parkash Building, K.G.Marg, New Delhi. He stated that the above policy was issued in the name of accused, who was residing at 97A, Pocket A, Dilshad Garden, Delhi on 28.04.92 and the half yearly premium of this policy was Rs. 3272 and he had also brought the letter dated 09.09.02 written by the Branch Manager to IO Inspr.Alok Kumar and as per the said letter, seven half yearly premium was paid on the dates as mentioned in the letter. The first survival benefit of Rs.20,000/ vide cheque no.72780 was paid to the accused on 26.05.97. He stated that his amount should have been paid only if all the nine half yearly installments of the insurance had been paid by D.N.Aggarwal (accused). He also identified the signatures of Sh.Sanjay Sinha, Branch Manager on letter dated 09.09.02 Ex.PW8/A.
77. During the course of argument, Ld. defence counsel submitted that the actual premium paid by the accused which was also admitted by the prosecution was Rs.26,176/ and not Rs.29,448, as per the document Ex.PW8/C, as the said witness PW8 also RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 58 of 134 59 stated in his statement that first installment was paid on 27.05.96 as mentioned in the computerized sheet Ex.PW8/C which document was admitted by the accused, therefore the total expenditure against this head would be Rs.26,176/.
4. B.Ed course fees for Smt.Pratima Aggarwal in year 19911992 Rs.3,300/
78. In this regard, prosecution has examined PW13 Sh.O.P.Gogia, who was witness from M.D.University, Rohtak, Haryana. He has proved one letter dated 19.09.02 from the Directorate of Distance Education, M.D.University as Ex.PW13/A. As per the said letter a sum of Rs.3,300/ was received for admitting Pratina Goyal (correct name is Pratima Goyal), d/o Sh. Ram Riksh Pal in B.Ed course. The identity of the said Smt.Pratima Goyal before marriage and after marriage has not been disputed during the course of argument. However, since it will be discussed hereinafter that the wife of accused Smt.Pratima had filed income tax returns for the assessment year 19951996 as well as for assessment year 20022003, where her income was assessed to be Rs.72,200/ and RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 59 of 134 60 Rs.1,41,250/, as per the testimony of DW3. Therefore, it is quite possible that she might have paid the fees for doing the B.Ed course out of the said income. Though, no source of income has been proved, but anyhow, the benefit of the same can be accorded to the accused. Therefore, this amount of Rs.3,300/ has to be deducted from the expenditure head and the benefit of the same has to be given to the accused.
5. Telephone expenses upto June 96 in respect of Tel.No. 2272243 opened since 12.03.94 and Tel.No.2294215 opened since 16.03.91 in respect of D.N.Aggarwal and Rajkali respectively. Rs.10,600/
79. The total amount with regard to the installation of two telephone connections in the house of the accused, one bearing no. 2272243 in the name of accused D.N.Aggarwal and another telephone no.2294215 in the name of Smt.Rajkali, his grandmother have been stated to be Rs.10,600/ as per the testimony of PW9 Sh.S.P.Singh, who was the witness from MTNL department. He has deposed that telephone no. 2272243 was opened in the name of Dina Nath Aggarwal (accused) at the address 97A, Pocket A, Dilshad Garden, Delhi on 12.03.94. He stated that the applicant had RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 60 of 134 61 deposited Rs.1000/ as booking charges, Rs.800/ as installation charges. Similarly, he has stated that telephone no. 2294215 in the name of Smt.Raj Kali was also opened at the said very address on 16.03.91 and a sum of Rs.800/ was paid towards booking charges and Rs.800/ towards installation charges.
80. During the course of arguments, Ld. defence counsel candidly admitted the amount of installation charges pertaining to Smt.Rajkali were Rs.8000/ and not Rs.800/. He further stated that the monthly call details were burnt out, because of fire upto the period 15.10.98 from the date of installation and the witness PW9 had handed over letter Ex.PW9/A to the IO in this regard. In this case the booking charges of Rs.800/ and the installation charges of Rs.8000/ of telephone no. 2294215 in the name of Smt.Raj Kali cannot be added in the expenses of the accused, simply for the reason that no evidence has been lead by the prosecution that the said amount was provided by the accused to his grandmother Rajkali. The prosecution had to lead positive evidence that Smt.Rajkali grandmother of the accused was residing with the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 61 of 134 62 accused and was dependent upon him and she had no money to even book the telephone in her name in view of the judgment of Krishnanand Agnihotri (supra), the amount of Rs.8000 + Rs.800/ = Rs.8800 has to be deducted from the total amount of Rs.10,600/ and only an amount of Rs.1,800/ which was paid by the accused towards booking and installation charges can be said to have been spent by the accused towards installation of telephone connection in his name.
(II) Nonverifiable Expenditure Expenditure like kitchen expenses laundry expenses gas refilling, festivals, gifts travelling entertainment petrol expenses etc. which are non verifiable taken as 1/3rd of the salary of the accused i.e. 3,36,183 Rs.1,12,061 3
81. This is not disputed by Ld. defence counsel during the course of arguments. This is also the position as per settled law.
Thus, the total expenditure of the accused and his family during the check period is Rs.2,02,107/.
C) Assets during the check period The following assets were acquired by D.N.Aggarwal either in his own name or in the name of his family members, during the check period:
RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 62 of 134 63 I. Shares of Reliance Industries
a). 5324 shares cost as per transfer deeds Rs.12,83,195
b). 3320 shares cost @ of Rs.200/ per shares taken as minimum shares price during 1991 to June 1996 (as transfer deeds untraceable/cost unavailable) Rs.6,64,000/ 5324 shares of Reliance Industries Ltd(RIL) in the name of accused or in the name of his family members(valued at Rs. 12,83,195)
82. In this regard prosecution has examined PW1 Praveen Chaturvedi, who is the witness from M/s Kaarvy Consultants Ltd, working as Assistant General Manager, which was a firm who acted as transfer agent of M/s Reliance Industries since 1987. He stated that on the request of CBI he handed over the photocopies of the transfer deeds available with them alongwith other information. He also deposed that vide letter dated 23.12.2002 which bears his signatures which is ExPW1/A, he handed over the copies of the transfer deeds. The attested copy of the same bears his signatures at point A which are collectively marked as ExPW1/A1(117 sheets). He had also produced the originals of these copies which was returned. These transfer deeds were in the name of Pratima Aggarwal i.e wife of the accused and the accused and he also RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 63 of 134 64 prepared the details of the transfer deeds vide annexures ExPW1/A in three sheets which are ExPW1/A2 which also bears his signatures.
83. The said shares have been proved by PW1 pertains to 5321 shares of Reliance Industries which are either in the name of Pratima Aggarwal i.e wife of the accused, accused in his individual name, accused with one Uma Rani, accused, his wife Pratima Aggarwal with Uma Rani; accused alongwith Rajkali; and accused, his wife alongwith Rajkali; accused alongwith one Arun Kumar, accused alongwith one Arun Kumar; accused with his wife and one Arun Kumar; accused alongwith one Sudhir Kumar; wife of the accused with one Sudhir Aggarwal; accused alongwith Rajeev Aggarwal; accused, his wife alongwith Rajeev Aggarwal; and accused alongwith Dinesh Kumar; and his wife alongwith Dinesh Kumar; Accused with his wife alongwith Smt. Usha; accused alongwith his wife and Usha; accused, his wife alongwith Usha; accused alongwith Deen Dayal Aggarwal and Radha; accused alongwith Radha; Accused alongwith Pratima Aggarwal and Radha;
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and accused alongwith Kiran and Radha; his wife alongwith Kiran; and accused alongwith Radha and Rajkali; accused alongwith Dinesh Kumar.
84. The testimony of PW3 with regard to these shares which are mentioned in ExPW1/A and the annexure PW1/A2 were supported by transfer deeds which are collectively exhibited as Ex PW1/A1(running into 117 sheets) which are also brought by PW1 for the perusal of the court and returned after seeing the same. In the said transfer deed consideration amount has also been mentioned, the said transfer deeds are in the joint name of either accused or his wife alongwith relatives. Accused has relied upon the judgment titled as Krishnanand Agnihotri vs. State of M.P., AIR 1977 SC 796:
(1977 Cri LJ 566): (1977) 1 SCC 816. The relevant para of the said judgment is reproduced as under:
17. In that case, it was contended that the amounts lying in fixed deposit in the name of one Shanti Devi was an asset belonging to the appellant and that Shanti Devi was a benamidar of the appellant. The Learned Judge speaking for the Bench has disposed of that contention RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 65 of 134 66 holding that (para 26 of AIR) :
"It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof."
85. He has also relied upon another judgment titled as State of Maharashtra Vs. Pollonji Darabshaw Daruwalla AIR 1988 SC RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 66 of 134 67 88: (1988 Cri LJ 183) held (at page 187, 188 of Cri LJ). The relevant para of the said judgment is reproduced as under:
9. Assumption that depositor whose name appears first was not beneficial owner but was Benamidar is erroneous. Supreme Court in State of Maharashtra V. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88: (1988 Cri LJ 183) held (at page 187, 188 of Cri LJ) : "Equally erroneous is the view of the High Court on the proposition noticed at point (b). The assumption that in all joint deposits, the depositor first name alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous. The matter is principally guided by the terms of the agreement, inter se, between the joint depositors. If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
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There is no such material before the
Court in this case."
86. Relying upon the above judgments, it has been argued on behalf of accused that it is settled law that the burden of showing that a particular transaction was benami and the appellant owner was not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests upon him.
87. Further in the judgment of Pollonji Darabshaw Daruwalla(SUPRA) it has been held that the assumption that in all joint deposits, the depositor first name alone is the beneficial owner and the depositor named second has no such beneficial interest is RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 68 of 134 69 erroneous. The matter is principally guided by the terms of the agreement, inter se, between the joint depositors. If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
88. Relying upon the said judgment, he has argued that the shares which are in the name of the relatives of the accused cannot be said to be belonging to the accused, nor they can be added into the assets of the accused. It is correct that in view of said judgment the onus lies on the prosecution to prove that the other persons mentioned in ExPW1/A and ExPW1/A2 holding the shares of Reliance Industries Ltd., jointly alongwith the accused were not the beneficial owners or that they were the benamidars of the accused or his wife and the money for the same had been provided by the accused lies upon the prosecution.
89. However, from the perusal of transfer deeds which are collectively ExPW1/A1(running into 117 sheets) shows that in all the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 69 of 134 70 transfer deeds the address of 97A, Pocket A, Dilshad Garden which is the residential address of the accused has been mentioned. Though other persons have been shown as also the purchasers alongwith the accused and his wife, but neither their parentage, nor their address has been provided in the transfer deed(s) at any place. Further none of these persons came forward to lay claim on these shares as belonging to them. It appears that they were only paper name(s) and had no real beneficial interest in the shares, as has been mentioned in ExPW1/A and ExPW1/A2 supported by the transfer deeds ExPW1/A1 collectively. Further the documents of the accused himself proves his case, as it is often said that the man may lie, but the circumstances never do. It is the admitted case that accused had filed civil suit bearing no. 420/1996 against M/s Reliance Consultancy Services Ltd., in the court of Sr. Civil Judge, which was the suit for permanent injunction. Same is Ex.PW3/X1. In para 1 & 2 of the plaint it has been mentioned as under:
1. That the plaintiff purchased and was allotted from the defendant, the following shares, which are duly registered in RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 70 of 134 71 the name of the plaintiff in the books of defendant company: Sl. Folio No. No. of shares 1. 46254040 200 2. 46254147 300
3. 46253680 200 Jointly with Sudhir Kumar
4. 46253809 200 Jointly with Dinesh Kumar
5. 58945471 300 Jointly with Din Dayal Aggarwal
6. 46253604 200 Jointly with Kiran 7. 46253922 200
8. 47022444 200 Jointly with Pratima Aggarwal
9. 46253876 200 Jointly with Raj Kali 10.46253973 150 Jointly with Usha 11.47022436 200 Jointly with Uma Rani 12.46254163 200 Jointly with Arun Kumar 13.57306904 167 Jointly with Pratima Aggarwal & Usha 14.46254082 180 15.45094961 713 16.46831756 50 Jointly with Arun Kumar RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 71 of 134 72 17.47266661 250 Jointly with Pratima Aggarwal & Radha 18.47266653 300 Jointly with Radha 19.50928471 1 Jointly with Pratima Aggarwal 20.47266645 200 Jointly with Dindayal Aggarwal and Radha 21.47297052 300 Jointly with Kiran and Radha 22.47266637 250 Jointly with Raj Kali and Radha 23.30370899 12 Jointly with Raj Kali and Radha 24.59358570 150 Jointly with Pratima Aggarwal
2. That the plaintiff alongwith his aforesaid family members are absolute owners of said shares and none else had/his any lien, concern, claim or right therein. The plaintiff or his said family members never transferred, assigned, parted with, pledged or mortgage any of said shares to any one. The aforesaid Share Certificate were kept in the custody of the plaintiff.
90. In the said suit the plaintiff had claimed that certain shares had been lost, but he had received intimation/letter from the defendant that somebody else had lodged transfer deeds in the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 72 of 134 73 name of stranger, therefore defendant be restrained from carrying out the transfer. The said suit had been filed by the accused in his own name in the year 27.09.1996 i.e prior to date of registration of FIR in this case against him. The said suit had not been filed by the plaintiff in representative capacity i.e nowhere in the entire body of the plaint he has claimed that the said suit was being filed on behalf of other joint persons with whom he and his wife were holding the shares, nor anywhere it has been claimed that they were holding any interest in the same. As discussed above, it appears that the said persons were only the paper names, whose names were given just for showing on the record, as neither their parentage, nor their address has been mentioned in the transfer deed, nor in the said suit and para 1 of the plaint the plaintiff has claimed that he had purchased and was allotted from the defendant the shares mentioned in para 1. These documents of the accused itself proves the case of the prosecution. The onus of which though was upon the prosecution, these documents itself goes against the accused. Since the said documents pertain to the period of time before the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 73 of 134 74 registration of FIR, accused would not have visualized at that time that the said suit or the averments mentioned therein would go against him, rather it shows the truth of the transaction in question.
91. Further, there is one more fact which goes against the accused in this regard, as in item no.5 pertaining to income head in the chargesheet, accused has claimed an amount of Rs.91,869.56 as dividend upto June 1996. The said amount is not meagre, considering the amount of dividend, as dividend is generally very small, as it is given on face value of shares. This huge amount of dividend shows that corresponding holding of Reliance shares was very large. The accused on hand is admitting income from selling milk, but at the same breath he is forsaking the cow who gave this milk, without cow there cannot be any milk. This circumstance also goes against him, as said amount has been admitted by accused during arguments without raising any scruple.
92. Once these documents have been produced during the prosecution evidence, the onus shifted upon accused u/S 106 of Evidence Act that accused should have produced the contract notes RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 74 of 134 75 of broker/sub broker, as also the details of the funds / sources of funds with regard to these shares, which would have proved that he paid only for his part of the consideration amount mentioned in the said joint holding pertaining to those shares in joint names and other part of the consideration was paid by the other joint owner. No such evidence has been produced by the accused during the trial, rather PW16 the IO of this case during his cross examination has stated that he cannot say who had provided the consideration amount for the purchase of shares of Reliance amongst the persons shown as owners due to the fact that during the course of investigations accused never provided such details, nor he provided the details of the second joint owners who were the relatives of the accused and no such intimation has been given to his department.
93. It shows that accused during the investigation even did not cooperate, nor gave any details of those persons with whom he claimed joint holding of Reliance Industries to the IO so that this fact could be ascertained that the half consideration was paid by those persons, nor these facts as discussed above were ever intimated to RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 75 of 134 76 the department in any property return at any point of time that the accused was holding joint shares alongwith his family members and these shares have been valued by PW1, as per consideration mentioned in the transfer deeds and its value had been correctly calculated in the charge sheet as 12,83,195/. Therefore they would have to be definitely added in the assets of the plaintiff, since his wife was not earning anything worthwhile, she was admittedly housewife only. Therefore shares being held in the name of his wife and other relatives jointly would definitely be added in the assets of the accused. Therefore Rs. 12,83,195/ would be treated as assets of the accused.
94. However, counsel for accused has argued that total amount has been wrongly calculated / added, in fact it is Rs. 1179725/, as reflected in ExPW1/A2, which assertion on calculation appears to be correct.
95. Out of the said 5324 shares of Reliance Industries Ltd., shares pertaining to transfer deeds no.6687628, 5805727 and 5885136 are the shares sold upto 30.06.1996 i.e. during the check RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 76 of 134 77 period. As per the details, the consideration amount which was realized by the accused by selling these shares comes to Rs. 24,570/. Since the said shares were sold, the said amount cannot be included in the assets of the accused, but has to be considered his income which was also reflected in the document Ex.PW4/A1.
96. Regarding this 3320 shares, Ld. defence counsel has argued that said shares cannot be added to the asset column of accused as firstly, these shares were not recovered from the possession of the accused or any of his family members; secondly, the transfer deeds of the said shares have not seen light of the day and the only witness examined is PW1 Sh.Parveen Chaturvedi, who has proved a letter dated 19.07.03 as Ex.PW1/B vide which he had handed over the attested statements of transfer of shares (13 sheets) Ex.PW1/B1. Ld. defence counsel has argued perusal of letter Ex.PW1/B would reveal that CBI had indulged in fabricating evidence against the accused. The letter mentions that the attested statement Ex.PW1/B1 duly corrected at the office of PW1 was done as per the CBI advice and after fudging the said statement, the same RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 77 of 134 78 was forwarded to CBI as per the desires of the IO.
97. It is also argued by Ld. defence counsel that the said attested statement is the computer generated statement. The documents on the basis of which the said statement has been supposedly made have been either concealed or they did not exist at all. Therefore, the statement Ex.PW1/B1 is not admissible as per law. Even otherwise, it was stated that PW1 in his cross examination had admitted that the calculation in relation to 3320 shares was based on the approximation and does not relate to any transfer deed or other document which was available in the company in relation to these shares.
98. Ld. defence counsel has failed to explain as to how an amount of Rs.91,869.56 has been claimed in the income head towards item no.5 of the income part as the dividend earned from Reliance Industries share(s). The said dividend earned for Rs. 91,869.56 which was the dividend earned on the shares of Reliance Industries upto June 1996 is very pricey amount and the said amount could not have been earned on some paltry share holding. Though, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 78 of 134 79 accused admits that milk belong to him but at the same time he is denying that the cow who gave the said milk does not belong to him. But at the same time the said statement Ex. PW1/B1 being an electronic evidence is not admissible, as no certificate under Section 65B of the Evidence Act for the computer output taken by PW1 has been produced on the record nor the data compiled in the same is backed by any primary document in the shape of transfer deeds / allotment letter etc. and in the absence of the same, the said secondary evidence in the shape of Ex.PW1/B1 is not admissible in evidence, in view of judgment (2014) 10 SCC 473 titled Anvar P.V Vs P.K.Basheer & Ors. The relevant extract of the same is reproduced as under: " New communication system and digital technology have made drastic changes in the way we live. A revolution is occuring in the way people transact business." In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
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Any documentary evidence by way of
electronic record under the Evidence Act, in view of Section 59 and 65A, can be proved in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility he electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithinstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection(2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act.
(i) The electronic record containing the information should have been produced by the computer during the period over RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 80 of 134 81 which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied;
(a) There must be a certificate which
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identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 82 of 134 83 transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 83 of 134 84 to the contrary is adduced. In the United States of America,, under Federal Rule of Evidence, reliability of records normally go to the weight of the evidence and not to admissibility.
Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed Under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law Under Section 63 and 65 has to yield.
In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(1), a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cell phones, it was held at Paragraph150 as follows :
"150. According to Section 63, secondary evidence means and includes, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 84 of 134 85 among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies".
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in Sub section (4) of Section 65B is not filed in the instant case, but that does not mean that RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 85 of 134 86 secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Section 63 and 65." It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed Under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 86 of 134 87 statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits P4,P8,P9,P10,P12,P13.P15,P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
The situation would have been different had the appellant adduced primary evidence, by making available in evidence, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 87 of 134 88 the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in the court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."
99. Therefore, the said amount of Rs.6,64,000/ cannot be RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 88 of 134 89 added into the asset head of the accused. Therefore, the total asset head with regard to 5324 shares of Reliance Industries would be Rs. 11,79,725/.
2. Shares/Debentures seized from house other than of Reliance Industries Co. Rs.42,700/
100. The shares/debentures seized from the accused other than of Reliance Industries Co. have been proved by PW10, 11,12,19 and 20. The seizure memo with regard to same is Ex.P3. Nothing has come out in the cross examination of this witness that these were not seized from the house of the accused or from his possession. Therefore, the total amount of Rs.42,700/ has been duly proved. Even otherwise, the same has also not been disputed during the course of argument by Ld. defence counsel.
3. Bajaj Chetak Scooter No.DL5SC5128 in the name of D.N.Aggarwal purchased on 31.08.92 Rs.18,900/
101. With regard to the same, prosecution has examined PW7 who was the witness from the office of Dy. Commissioner , Enforcement Dept. of Transport, Rajpur Road, Delhi. He has proved RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 89 of 134 90 the relevant documents with regard to the registration of the above scooter in the name of accused. Registration file and the said documents submitted at the time of registration of the said scooter are Ex.PLW7/A and Ex.PW7/B and the sale certificate dated 31.08.92 on the basis of which the vehicle was registered and the insurance receipt of even date are proved as Ex.PW3/D and E. As per the same, the price of the scooter was Rs.18,900/, road tax was Rs.530/ which was paid on 31.08.92 at the time of registration of the said scooter and receipt is Ex.PW7/F. Even otherwise, nothing has come in the cross examination of said witness. The amount of Rs. 18,900/ has been duly proved in the asset head as the same has even otherwise, not been disputed during the course of arguments by Ld. defence counsel.
4. PPF A/cs in SBI having balance as on 30.06.96.
a) D.N.Aggarwal A/c No.339 Rs.96,256/
b) Pratima Aggarwal A/c no.306 Rs.1,64,832/
102. As discussed during the corresponding discussions of the income head with regard to these PPF A/cs, the balance in the PPF account of accused bearing A/c no.339 in SBI and that of his wife RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 90 of 134 91 Smt.Pratima Aggarwal who is housewife in PPF A/c No.306 have been duly proved by witness PW4 and the respective balance has been reflected in Ex.PW4/A. As per statement of account Ex.PW4/A1 the balance in the account of accused as on 30.06.96 was Rs.96,256 and that of his wife Smt.Pratima Aggarwal was Rs. 1,64,832/, which has not been disputed during the course of arguments. However, it is argued by Ld. defence counsel that amount of Rs.1,64,832 ought to be included in the income head of the accused also since wife of the accused had been filing Income tax returns for the assessment year 199596 and also for the assessment year 200203, as per the testimony of DW3 Sh.Kishor Pandey. This part of the argument of Ld. defence counsel shall be dealt herein after as under.
103. Regarding the amount of Rs.164832/, which was item no.4 in the asset head, the amount lying in the PPF account no.306 in SBI which has been proved by witness PW4, as per statement of account Ex.PW4/A1 the balance in the account of wife Smt.Pratima Aggarwal of accused was Rs.1,64,832/. Ld. defence counsel has RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 91 of 134 92 examined DW3 Sh. Kishore Pandey, Inspr. from Income tax department and in his examinationinchief dated 14.05.2011 has admitted that as per record Smt. Pratima Aggarwal (wife of accused) had filed her income tax returns for the assessment year 19951996. He also admitted that as per record, her income was Rs.72,200/ for the assessment year 19951996 and financial year 199495. He also admitted that as per record Smt.Pratima Aggarwal had filed her income tax returns for the assessment year 20022003 and as per record, her assessable income was Rs.1,41,250/.
104. DW3 had deposed these facts before the Court on the basis of income tax record brought by him. Nothing has emerged in the cross examination which could show that said witness was not reliable. In any case, the record was produced by said witness from genuine source i.e official record, maintained during official course, there is no reason to doubt the same, therefore it appears that Smt.Pratima Aggarwal (wife of accused) had shown assessable income of Rs.72,200/ for the assessment year 19951996 and assessable income of Rs.1,41,250/ for the assessment year RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 92 of 134 93 20022003. Therefore, it is quite plausible that she may have deposited out of said income Rs.164832 in her PPF account, therefore the said amount of Rs.164832/ which has been shown as asset in the asset head no.4 i.e. amount lying in the PPF account of Smt.Pratima Aggarwal has also to be added under the income head of the accused, being the income of his wife. Since the same amount has also been added in the asset head, the adding of the same in the income head would negate the two, therefore net resultant would be zero.
105. Thus, the total balance in PPF A/cs is Rs.2,61,088/., which has to be added into the asset head of the accused, but an amount of Rs.1,64,832 is also to be added into the income head as discussed above.
5. Balance in Bank Accounts Bank Name A/c no. A/c Holders Balance State Bank of 5750 Sunny/D.N.Aggarwal/UNG Rs. 1,24,168.17 India Dilshad D.N.Aggarwal Garden 6391 DN Aggarwal/DD Aggarwal/ Uma Rani Rs. 2,120.88 do 7033 Rajkali/Kiran/D N Aggarwal Rs. 2,163.60 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 93 of 134 94 do 7051 Pratima/Sudhir Kr. Rs. 1,235.55 do 10319 Nidhi/Ratika UNG/DN Aggarwal Rs. 914.96 Corporation 3258 D.N.Aggarwal Rs.6,07,785 Bank Dilshad Garden S.no. Bank Branch A/c No. Name of A/c Holder Balance
a). State Bank of 5750 Sunny/D.N.Aggarwal/UNG Rs.1,24,168.17 India Dilshad D.N.Aggarwal Garden
106. The statement of account pertaining to the said account in SBI, Dilshad Garden in the name of bhanja of the accused and under the guardianship of accused D.N.Aggarwal has been proved by PW4 which is Ex.PW4/D1. The account opening form has been proved as Ex.PW4/D7. As discussed while discussing the item no.2 in income head, the said bhanja of the accused, being minor was not competent to enter into any contract with the bank of having a saving account with them and it has not been proved that he had any independent income as he was a minor, therefore the entire amount lying in the said account has to be calculated as the asset of the accused, since he was a guardian of the said minor and the account RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 94 of 134 95 was operated through/by him only. As per the chargesheet, the balance in the said account was Rs.1,24,168.17. However, as per the testimony of PW4 Vipin Malhotra, in his cross examination he has stated that it was correct that the entry balance on 27.06.96 as Rs.1,24,168.17 is incorrect and in fact, balance of that date was Rs. 168.17. In view of the testimony of PW4 in his cross examination that the correct balance in the said account no.5750 was Rs.168.17 and not Rs.124168.17, the asset which can be actually proportioned against the accused pertaining to said account no. 5750 would be Rs.168.17.
S.no. Bank Branch A/c No. Name of A/c Holder Balance
b). SBI, Dilshad 6391 DN Aggarwal/DD Aggarwal/
Garden Uma Rani Rs. 2,120.88
107. The balance has been proved by witness PW4 vide statement of account Ex.PW4/D3. The A/c no.6391, as discussed in the income head is in the name of brother, sister and in the name of accused. The prosecution has failed to prove that his brother, sister were not having any independent income. In the absence of the same, it cannot be said that the entire amount which was deposited RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 95 of 134 96 or was lying in the said account was belonging or provided by the rd accused, therefore at the most, 1/3 of the amount lying in the said account can be attributed to the accused or can be added into his assets. Therefore, the balance avaliable in the account no.6391 of accused is 2120.88/3 =Rs.706.93P S.no. Bank Branch A/c No. Name of A/c Holder Balance
c) SBI, Dilshad 7033 Rajkali/Kiran/D N Aggarwal Rs. 2,163.60 Garden
108. Similarly, The balance has been proved by witness PW4 vide statement of account Ex.PW4/D6 which account was in the name of Rajkali (grandmother), Kiran (mother) as well as in the name rd of accused. Same logic applies and only 1/3 of the amount can be attributed or added into the asset head of the accused i.e. Rs. 2,163.60/3 = Rs.721.
S.no. Bank Branch A/c No. Name of A/c Holder Balance
d) SBI, Dilshad 7051 Pratima/Sudhir Kr. Rs. 1,235.55 Garden
109. The statement of account pertaining to the said account in SBI, Dilshad Garden in the name of wife of the accused and jija of RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 96 of 134 97 accused D.N.Aggarwal has been proved by PW4 which is Ex.PW4/D4. Wife of the accused was admittedly housewife and was not doing any work or job or vocation of business. Though, the entire amount lying in the said account cannot be attributed to the accused, since his wife was not working, as the amount lying in the said account must have been provided by the accused, but regarding the other part, the prosecution has failed to prove that the jija was not earning and he was only a benamidar of the accused or his wife and had no beneficial interest in the same. Therefore, at the most half of the said amount can be attributed to the asset head of the accused i.e. Rs.1,235.55/2 = Rs.617.77P.
S.no. Bank Branch A/c No. Name of A/c Holder Balance
e) SBI, Dilshad 10319 Nidhi/Ratika UNG/DN Aggarwal Rs. 914.96 Garden
110. Regarding the last account no.10319, it was in the name of bhanji and daughter under the guardianship of accused alongwith accused himself. The same has been proved as per statement of account Ex.PW4/D5. Since neither of them were having any RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 97 of 134 98 independent income and were not competent to enter into contract with bank and the account was being operated by the accused, therefore it is apparent that the entire amount should have been provided by the accused, as no evidence has been led that they were having any sort of income or that the amount in the said account was deposited by someone else and not by the accused, so the entire amount of Rs.914.96 has to be added into the asset head of the accused.
S.no. Bank Branch A/c No. Name of A/c Holder Balance
f). Corporation 3258 D.N.Aggarwal Rs.6,07,785 Bank Dilshad Garden
111. Ld. Defence counsel has argued that the balance in the aforesaid bank account in the Corporation Bank was on account of issuance of five cheques bearing nos. 336907, 381570, 813703, 347962 and 367393 from the aforesaid five SBI accounts and the said cheques were given in the name of the accused which were presented in the aforesaid Corporation Bank on 26.06.96. The total of these five cheques amount to Rs.5,98,000/. He has further RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 98 of 134 99 argued that the said amount of Rs.5,98,000/ was actually income to the accused and his family members from the sale of shares, so the cash that could be included in the assets from the said account would be difference of Rs.6,07,785.00 and Rs.5,98,000/, which comes to Rs.9,785/ and only the said amount of Rs.9,785/ could be added into the asset head of the accused.
112. PW16 is the relevant witness with regard to this aspect. PW16 is the IO Inspr. Alok Kumar. He has proved the statement of account pertaining to said account which is Ex.PW16/N3. In his cross examination, he has stated that he had examined K.V.Rao, Manager of Corporation Bank on 14.11.02 and also examined Vipin Malhotra, Astt. Cash and Accounts, SBI on 28.03.03. He has further stated in his cross examination that it was correct that five cheques bearing nos. 336907, 381570, 813703, 347962 and 367393 were issued from five different saving accounts of SBI and it was also correct that Sh.K.V.Rao has stated that these were the same five cheques which were presented in the bank on 26.06.96 for clearing for total amount of Rs.5,98,000/. Similarly, PW4 in his cross RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 99 of 134 100 examination admits the deposit of the following amounts in the five accounts of SBI through the aforesaid cheques.
i. A/c no.5750 Rs.1,23,675/ on 13.05.1996
ii. A/c no.6391 Rs.1,19,925 &
Rs.5,01,327.50 on 01.06.1996
iii. A/c no.7033 Rs.1,89,261;
Rs.1,66,681 &
Rs.2,65,978 on 13.05.1996
iv. A/c no.7051 Rs.35,244 on 13.05.1996
Rs.2,70,070 on 25.05.1996
v. A/c no.10319 Rs.44,550 on 13.05.1996
Rs.30,096 on 24.05.1996
113. It was contended by Ld. defence counsel that PW16 had attempted to deliberately conceal this important piece of evidence in order to falsely implicate the accused in this case, despite knowing that the aforesaid 10 cheques related to the sale of shares within the check period, PW16 deliberately did not include the amount of Rs. 17,46,807.50 as income of the accused. He has argued that PW16 was effectively cross examined in this aspect on 21.07.2008. He had stated that he had not investigated in respect of the cheques credited in the accounts of SBI, Dilshad Garden i.e. A/c nos. 5750, 6391, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 100 of 134 101 7033, 7051 and 10319.
114. He has also stated that nobody was available at the address of Mithu Investments, therefore he did not seize the accounts of Mithu Investments, as there was no reference. He had recorded statement of Sh.Venkatesh Rao, Sr.Manager, Corporation Bank, Dilshad Garden. He had mentioned about taking details of A/c no.327 of M/s Mithu Investment & Finance for the relevant period alongwith vouchers and papers. However, he did not produce the details of current A/c no.327 alongwith the chargesheet, as they were not relied upon. Therefore, cross examination of PW16 IO Inspr.Alok Kumar was deferred and he was directed to produce the statement of account of M/s Mithu Investment & Finance. Thereafter, in his cross examination on 06.08.08, he had stated that he has brought the statement of account of M/s Mithu Investment & Finance Consultants, its current account bearing no.327 with the Corporation Bank, Dilshad Garden, Delhi, it is for the period between 01.04.96 to 31.03.97 and as per the statement of account cheque no. 0348908 was drawn in the name of Sunny, 0348912 in the name of RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 101 of 134 102 Sudhir Kumar, 0348906 in the name of Ratika Aggarwal, 0348907 in the name of Kiran, all drawn on 11.05.96. Cheque no.0348931 in the name Sudhir Kumar, 0348930 in the name of Ratika Aggarwal, 0348925 in the name of Kiran, all relating to date 23.05.96 and 0348935 in the name of Uma Rani, 0348936 in the name of Rajkali and 0348938 in the name of Uma Rani, all drawn on 31.05.96. The said statement of account in relation to Mithu Investment alongwith forwarding letter and the photocopies of the cheques attested by the bank was proved by him as Ex.PW16/DA colly. (running into 22 pages).
115. He also stated that it was correct that all cheques were credited to the joint accounts which these persons were having with D.N.Aggarwal (accused) at SBI, Dilshad Garden bearing nos. 5750, 6391, 7033, 7051 and 10319, but he stated that he could not examine the joint account holders as the accused did not provide him their whereabouts and the address was not available with the bank as the bank accounts were in the care of D.N.Aggarwal (accused). Relying upon the testimony of PW16, Ld. defence counsel has RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 102 of 134 103 argued that the said amount of Rs.5,98,000/ was the share of the accused which was given to him by the above account holders of SBI who were his relatives i.e. mother, grand mother, jija, sister, daughter, nephew and bhanji who had sold the shares which they had purchased jointly with the accused, after selling the said shares through Mithu Investment, the accused was given his share of Rs. 5,98,000/ by way of five cheques and so, this amount of Rs. 5,98,000/ cannot be added in the asset head of the accused, it has to be added in the income head of the accused.
116. In fact, Ld. defence counsel has argued that the entire amount of Rs. 17,46,807.50, which was credited into the said five joint accounts of SBI, Dilshad Garden and from where the amount of Rs.5,98,000/ which was disbursed to the accused as his independent share has to be added, as his income, as also this total amount of Rs. 17,46,807.50 including the amount of Rs.5,98,000/ which was transferred to the accused by way of five cheques as already discussed above.
117. This argument of Ld. defence counsel is totally fallacious.
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Firstly, this income from shares of Rs.5,98,000/ has nowhere being reflected in the Income tax returns or property returns of the relevant years. Secondly, no reason has been given, as to why the relatives would give him such huge amount of money without any corresponding investment being shown. Thirdly, the accused has failed to provide details of the transaction of Rs.5,98,000/ i.e. accused has failed to show what amount of money he had invested in those shares which resulted into the profit of Rs.5,98,000/, since there cannot be any profit without any corresponding investment. The accused has failed to show any investment from his sources i.e. he has not shown how and when these shares were purchased and from which source i.e. his own source either from his salary or the interest income, no corresponding debit entries provided as per bank statement of accused to show that he had invested or purchased the said shares the profit of which was returned to him by his relatives. Lastly, none of his relatives come into the witness box to say that they gave accused the profit of his shares purchased jointly by them alongwith the accused.
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118. Therefore, this amount of Rs.5,98,000/ cannot be added into income head of the accused. Regarding the next leg of the argument of Ld. defence counsel that the entire amount of Rs. 17,46,807.50 which was received by the relatives of the accused with whom the accused or his wife was holding joint accounts in SBI, Dilshad Garden including the amount of Rs.5,98,000/ be added in the income head. The said argument is also without any merits as the said jija, his mother, sister, bhanji, nephew cannot fall into the definition of family members of the accused. Infact, the family members of the accused will include himself, his wife, his son and daughter. Therefore, the remaining amount of approximately Rs.12 Lacs cannot be added into income of the accused or that is to say that same cannot be clubbed into the income of the accused, as all the said persons are separate entities having their own income and expenditure as well as asset and liabilities. The same cannot be clubbed into the income, asset or expenditure of the accused. The same has no nexus with the accused. Infact, PW16 has stated that he was not been provided with the details of the address of the said RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 105 of 134 106 account holders by the accused nor their whereabouts, which fact also goes against the accused. If the IO would have been provided the details of their address and their whereabouts then the IO would have properly investigated into this aspect also which may have been gone in favour of the accused. Therefore, this amount of approximately Rs.12 Lacs which has been received by way of cheques on the record in the joint account of SBI, Dilshad Garden by his relatives cannot be clubbed by any stretch of imagination into the income of the accused. Total asset with regard to the amount lying in Corporation Bank, Dilshad Garden including the amount of Rs. 5,98,000/ in the name of accused would be in fact Rs.6,07,785/ which will be added into the asset head of the accused.
Total amount in bank accounts as on 30.06.96 was Rs.6,10,913.83P.
6. Value of household articles as per inventory (excluding articles/assets after 30.06.1996). Rs.1,03,250/
119. The value of household articles seized from the house of accused vide seizure memo Ex.P4 have not been disputed during the course of arguments by Ld. Defence counsel, which has been RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 106 of 134 107 valued or quantified at Rs.1,03,250/. Even otherwise, no evidence has been lead by the accused to show that the house was in joint possession with other members of any other family including joint family nor any evidence has been led that any of the articles which has been seized vide seizure memo Ex.P4 were purchased by his grand mother Rajkali or any other person was residing with him in the said house at 97A, Pkt.A, DDA MIG Flats, Dilshad Garden, who was in joint possession of the said house alongwith him and who had spent money on the purchase of household articles seized vide seizure memo Ex.P4. There is no evidence that the grandmother Rajkali was living with him nor there is any evidence that she had spent money for household articles. In any case, she must have other family members likeother sons or daughters or grand children to look after or shower money on them. Therefore, the household articles seized from the house of accused vide seizure memo Ex.P4 have been correctly quantified at Rs.1,03,250/.
Total Assets during check period Rs.22,16,576.83 Assets prior to the check period i.e. as on date Rs. 37,000/ of joining service on 09.01.86.
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Thus, assets acquired during the check period by the accused and his wife Rs.21,79576.83
120. Regarding the sanction part prosecution has examined Sh. Y.D.Bankata as PW17 to prove the sanction . He has deposed that he was working as Additional Commissioner Engineering in MCD in the year 2003. He had accorded sanction to prosecute the accused dated 10.12.2003 against the accused D.N.Aggarwal Jr. Engineer Civil. The said sanction order has been proved by him which is ExPW17/A. He has also deposed that as Additional Commissioner MCD he was competent to remove an officer of the rank of JE in MCD. Therefore he was competent to remove the accused. A request was received by him from CBI for grant of sanction for prosecution against the accused through Vigilance Section of MCD. With the request of the CBI the statement of the witnesses recorded by the CBI and the documents collected during the course of investigation were also received and he had accorded sanction after going through the said record and application of his mind.
121. In his cross examination he was asked, whether he had RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 108 of 134 109 gone through the property return filed by the accused at the time of joining of his service in the year 1986, to which he stated that he does not remember, whether he had gone through any such return while granting the sanction. He also stated that the check period must be mentioned in the file. After going through the file he stated that the check period was 09.01.1986 to 30.06.1996.
122. Counsel for accused has challenged the sanction firstly on the ground that the property return ExPW2/E was not looked into by PW17, at the time of according sanction, it was quite probable he would not granted sanction to prosecute the accused, if he had seen the same, in the absence of the same grave injustice and prejudice has been caused to the accused which goes to the root of the matter. In this regard he has relied upon the judgment AIR 1997 SC 3400 Mansukh Lal Vithal Das Chauhan V. State of Gurjarat.
123. However, tt has also been held in judgment (2013) 8 SSC 119 State of Maharashtra Vs Mahesh G.Jain, as under:
16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 109 of 134 110 for handing over TDS certificate in Form 16A of the IncomeTax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hypertechnical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The filmsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial judge as well as that of the learned single judge is wholly incorrect and does not deserve acceptance.
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124. The ratio of said judgment is applicable to the facts of the present case.
125. I have gone through the sanction order. The said sanction order is quite explicit in which the entire income of the accused during the check period, expenditure of the accused as ascertained during check period, all been given in detail and the alleged disproportionate assets alleged to have been acquired by the accused have also been detailed in the said sanction order itself which is ExPW17/A. The witness has also stated that he had gone through the entire material including the statement of witnesses recorded by the CBI and the documents collected during the course of investigation and after going through the same and after applying his mind he had accorded sanction, merely because the sanctioning authority did not go through the property return ExPW2/E submitted by the accused in the year 1986, which as already discussed above suffers from interpolation, which could have only been made at the behest of the accused, as no other person would be interested in doing so, does not cause any prejudice to the case of the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 111 of 134 112 prosecution. Even if the said property return would have been submitted before the sanctioning authority even then it would be safe to say that the sanctioning authority, even then would have accorded sanction, more so in view of the interpolations made in the said property return. Therefore the entire material was considered by the sanctioning authority which was necessary for according the sanction, the sanctioning authority appears to have weighed the pros and cons in according the sanction. After going through the income, expenditure, assets of the accused during the check period only then it gave the necessary sanction, which was supported by the statement of the witnesses and the documents collected during the investigations. Therefore it cannot be said that the sanction suffers from non application of mind. Accordingly sanction has been validly accorded.
126. Regarding the next argument of Ld. defence counsel that the sanction in the present case was accorded by Addl.Commissioner Sh. Y.D.Bankata PW17, whereas in the case of accused, who was working as Assistant Engineer at the relevant RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 112 of 134 113 time, when the sanction was accorded, the competent authority who could have granted sanction was the Commissioner of Municipal Corporation of Delhi. Since, as per the Regulation 7 of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 and the Schedule made thereunder, the Commissioner was the competent authority to remove the employees of Category B and C post and admittedly the accused was holding post which lies either in CategoryB or in CategoryC. Therefore, in the present case, sanction to prosecute the accused under Section 19 of the Act could only have been accorded by the Commissioner and not by Addl.Commissioner PW17. Therefore, the said sanction is no sanction in law. In this regard Ld. defence counsel has relied upon the judgments G.S.Matharaoo V. CBI decided by Hon'ble High Court (supra) and MCD Represented by its Commissioner Vs Dr. Ved Prakash Kanoji & Anr. (supra). Relying upon the said judgments, he argued that the very taking of cognizance in the present case was bad in law as the cognizance has been taken on sanction granted by an incompetent authority. The relevant extract RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 113 of 134 114 of judgment G.S.Matharaoo (supra) is reproduced as under :
19. In terms of Section 59(d), DMC Act, it is clear that the power of the Commissioner for disciplinary action is subject to Regulations that may be made thereunder. By virtue of power to make Regulations under Section 480 of the DMC Act, th the Corporation vide its notification dated 15 December, 1976 notified the Schedule to Regulation 7 which provided that for category A posts, the Corporation was the authority competent to impose penalty. This Regulation 7 and the Schedule thereto have not been rescinded till date despite the amendment under Section 59 of the DMC Act. As a matter of fact, the Additional Commissioner (Establishment) had sent a proposal to bifurcate the posts in Category A and as per the amendments proposed, it was proposed that for officers of the rank of Deputy Commissioner and above, the authority competent to impose the penalty of removal would be the Corporation and for the post below that of Deputy Commissioner, the Commissioner would be the competent authority...........
127. The relevant para(s) of Judgment MCD V. Dr.Ved Prakash Kanoji (supra), are reproduced as under:
20. A perusal of the proposal sent by the Additional RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 114 of 134 115 th Commissioner (Establishment) on 20 September, 2010 itself states that the said amendments in the Regulations was to bring the same in conformity th with the provisions of the act and as per the 4 paragraph it was proposed that the existing schedule framed under Regulation 7 as placed as Annexure A may be substituted by the amended schedule as proposed at Annexure B. However, this proposal was not accepted by the Corporation. Thus, it is clear that the Corporation itself is of the considered opinion that the existing schedule needs to be continued. This is contrary to what has been urged by learned counsel for the CBI that the schedule to the Regulations stood repealed by the amendment Act of 1993. Further Section 59(d) of the DMC Act could not be construed to mean that it repealed the existing Regulations and was only subject to the Regulations which would be made after the amendment Act. A plain reading of the provisions of the Act and the Regulations show that the Corporation is the competent authority to remove the Petitioner from the service and not the Commissioner, MCD.
22. In view of the discussion hereinabove, the only conclusion that can be drawn in the present case is that the authority competent to remove the Petitioner is the Corporation as notified in the th schedule to the Regulations on 15 December, 1976 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 115 of 134 116 which regulations have neither been rescinded nor amended till date. Thus, the Corporation is the competent authority to grant sanction under Section 19 of the P.C.Act and not the Commissioner in the case of the Petitioner, who is a Group 'A' employee.
23. Since the learned Trial Court has taken cognizance on a sanction granted by an incompetent authority, the order taking cognizance is illegal and set aside. The Respondent is, however, at liberty to take sanction for the prosecution of the Petitioner from the competent authority and proceed in accordance with law.
128. On the other hand, Ld. PP for CBI has controverted the argument of Ld. defence counsel and has argued that nowhere in the cross examination of PW17, the Ld. defence counsel has questioned the competency of the Addl. Commissioner to accord sanction, as no question was put in this regard during the cross examination. He has further argued, even otherwise, the competency of the authority itself is no ground to declare the sanction order void and illegal. In support of his contention, he has relied upon the judgment of Hon'ble Supreme Court in case 14 Cri.L.J 2300 State of Bihar Vs Rajmangal Ram, wherein it has RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 116 of 134 117 been held as under:
5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Preventions of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out due discharge of duty and also to enable him to efficiently perform the wide range of duties case on him by virtue of his office. The test, therefore, is always is - whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, illfounded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions h ave been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure, which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 117 of 134 118 sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This how the balance is sought to be struck...................
7. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector vs. T. Venkatesh Murthy wherein it has been inter alia observed that, "14. ................ Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice." 8. The above view also found reiteration in Praksh Singh Badal and Another vs. State of Punjab and Other wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (Supra) it was further held that RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 118 of 134 119 Section 19(1) of the P.C. Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan vs. Central Bureau of Investigation. In fact, a three judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the P.C. Act, interdicting a criminal proceedings mid course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led (para 10 of the Report).
129. In view of the rival contentions made by Ld. Defence counsel and Ld.Public Prosecutor, the relevant extract of Section 19 of Act is reproduced as under:
19. Previous sanction necessary for prosecution. (1) No Court shall take cognizance of an offence RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 119 of 134 120 punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
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(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation. For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
130. Section 19 of the Act, is a sort of gate pass, which is needed by the prosecution before entering into the Court for prosecuting the public servant, without the said gate pass, the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 121 of 134 122 prosecution is not allowed to enter the Court and launch the prosecution against a public servant. The reason obviously is that said Section has been enacted in order to prevent frivolous prosecution(s) against honest and efficient public servants, so that they should not be hounded by unscrupulous elements of the society.
131. However, at the same time, the said provisions has to be construed in the manner so that no part of Section 19 of Act is rendered nugatory or otiose on reading the said Section as a whole and giving harmonious construction to all the provisions of Section 19 and the explanation given thereto. In my respectful view, once it has been provided under Section 19(3) of the P.C Act that even the Appellate Court, which would be the Hon'ble High Court, is barred from interfering with the order passed by Special Judge, in appeal, confirmation or revisional proceedings, on the ground that the sanction is bad on account of error, omission or irregularity in sanction, save and except in cases where the appellate or revisional court finds that 'failure of justice' has been occasioned due to such RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 122 of 134 123 competency or invalidity.
132. It could never have been the intention of the makers of Section 19 of Act that the Special Courts can declare the sanction order as invalid on the ground of incompetency of the authority granting the sanction for prosecution on said grounds. Since the prohibition extends even to the Appellate Court(s), what the appellate court(s) cannot do by way of prohibition contained in Section 19(3), obviously the trial court cannot do at all.
133. The very fact that the explanation given in Section 19 of Act has been added at the end of Section 19, same is all pervasive i.e. the said explanation is explanation to the entire Section 19 of PC Act. It is not an explanation to Section 19(3) or 19(4) of Act. It is an explanation to the entire provision of Section 19 of Act and as per the explanation (a) error includes competency of the authority to grant sanction.
134. As discussed above, the Appellate Court can only set aside sanctioning order on the ground of incompetency of the RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 123 of 134 124 sanctioning authority, if there is a substantial 'failure of justice', which has been caused to the accused, that is to say that great prejudice has been caused to the accused or there has been complete travesty of justice which will be the duty of Ld. Appellate Court to prevent/correct under the facts and circumstances of the case.
135. Applying the said Principle to the facts of the present case, the accused throughout the trial had not questioned the competency of PW17, who had appeared as the sanctioning authority and proved the sanction order, the accused was fully aware that sanction had been accorded by PW17, yet it was not questioned. Though, it is trite knowledge there is no estoppal against law or statute, however it is not that the accused had been ropped in an frivolous court case, wherein there was no material at all against the accused to seek sanction against the accused. There was sufficient material and documents available before the sanctioning authority, which were also placed before the sanctioning authority i.e. PW17 Y.D.Bankata Addl. Commissioner, who after due application of mind accorded sanction to prosecute the accused.
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The accused has failed to disclose any material fact, as to how the Trial of this case has been vitiated, as the sanction was not granted by competent authority or which has occasioned complete 'failure of justice' or has caused great prejudice to him as a whole. The term 'failure of justice' has been defined in judgment (2001) 7 SSC 679 State of M.P. Vs Bhooraji & Ors. , relevant para is reproduced as under:
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka thus : (SCC p.585, para 23) "23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 125 of 134 126 fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
136. The aforesaid judgment is complete answer to the argument of Ld. defence counsel. In the present case, accused has failed to show that there was any 'failure of justice' and it appears that the present argument has been taken by the accused to somehow wriggle out of the present case, wherein sanction has been accorded on the basis of sufficient material in accordance with law.
137. Therefore, the final balance sheet of the income, expenditure and assets of the accused including his wife, who is admittedly housewife, emerging after final discussion goes as under: FINAL COMPUTATION OF DISPROPORTIONATE ASSETS (In Rs.)
1. Net Assets of the accused after above discussion = 21,79,576.83 RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 126 of 134 127
2. Net Income in view of above discussion
a). of accused from all sources = 5,20,634.39 including salary, interest, dividend etc.
b). of wife of accused Smt.Pratima as per I.T returns = 1,64,822.00
c). income from sale of Reliance Industries = 24,570.00 shares Net income of accused from all above sources= 7,10,026.39
3. Net expenditure of accused = 2,02,107.00
4. Likely Savings = Income - Expenditure = 5,07,919.39
5. Disproportion = Assets - Likely Savings = 16,71,657.44 giving benefit of 10% as per judgment of Krishnand Agnihotri (supra) on total income of Rs.7,10,026.39, which amount would be around Rs.71,000/, even then the disproportionate assets of accused would be around 16 Lacs.
6. Percentage of Disproportion = DA X 100 = 235.43% Income RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 127 of 134 128
138. In view of the above discussions, accused could not satisfactorily account or offer plausible explanation as to how he acquired this wealth or pecuniary resources, which are disproportionate to his known source(s) of income. Considering the net probative force of the prosecution evidence as a whole on the scale(s) where probability of happening any event is measured, same is touching almost the point of certainty. There being no diminishing counter probability. Therefore, prosecution has been able to make out case beyond any reasonable doubt against accused under Section 13(1)(e) r/w Section 13(2) of Prevention of Corruption Act, 1988. Accused stands convicted accordingly.
ANNOUNCED IN THE OPEN COURT
ON 19.09.2015 (SANJEEV AGGARWAL)
Special Judge,
CBI03(PC Act)
Delhi/19.09.2015
RC No.1(A)/2001
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IN THE COURT OF SH. SANJEEV AGGARWAL: SPECIAL JUDGE CBI03 (PC ACT): DELHI RC No. : 1(A)/2001 PS : CBI/ACB/ND CC No. : 14/15 Under Section: 13(2) r/w Sec.13(1)(e) of PC Act, 1988 CBI Vs Dina Nath Aggarwal s/o Sh.Daya Ram R/o 97A, DDA MIG Flats, Dilshad Garden, Delhi.
Judgment Delivered on : 19.09.2015 convicted u/S: Sec.13(2) r/w Sec. 13(1)(e) of PC Act, 1988. ORDER ON SENTENCE :
1. Vide judgment dated 19.09.2015, accused Dina Nath Aggarwal was convicted u/S 13(2) r/w Sec.13(1)(e) of the Prevention of Corruption Act, 1988.
2. I have heard Sh.V.K.Ojha, Ld.PP for CBI and Sh.R.A.Bhatt and Sh.Jacob Joseph, Ld counsels for the convict.
3. Ld.PP for CBI submits that convict was a public servant, RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 129 of 134 130 who was working in the Building Department of the Municipal Corporation of Delhi and while in service, he amassed huge amount of wealth which was totally disproportionate to his known source(s) of income by abusing his official position and by fleecing public persons, therefore stringent punishment should be awarded to him to send a strong signal to the society at large.
4. On the other hand, Ld. counsel for the convict Sh.R.A.Bhatt has submitted that convict has no previous history of involvement in any other case, nor he has been convicted in any case previously, he has clear and clean antecedents and has roots in the society, he also belongs to respectable family. It is also submitted that the convict is facing trial since the year 2004. It is also submitted that the wife of the convict Smt.Pratima Aggarwal is constantly under the treatment of Neuro Psychiatrist for the last 10 years, he has also produced the medical prescriptions / documents pertaining to said ailment. It is also submitted that in fact, she was RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 130 of 134 131 hospitalised recently in April, 2015.
It is further submitted that convict is a patient of depressive disorder, and he is also under constant medical supervision and treatment. He is aged around 55 years of age.
5. It is also submitted that both son and daughter of the convict are married, his son and his daughterinlaw are working in Gurgaon and they have to commute daily to their work, therefore, his wife remains alone and there would be nobody to look after her in case, the convict is incarcerated. Therefore, it is prayed that lenient view may be taken against him.
6. I have gone through the rival contentions.
7. It has been held in judgment Roop Chand Vs. State (CBI), reported as 2011 Legal Eagle (DHC) 42 that (8) The circumstances which could be considered in alleviation of punishment can be the minority of the offender, old age of the offender; the condition of the offender, i.e. wife, appretice; and the state of health RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 131 of 134 132 and the sex of the delinquent.
8. Corruption is like cancer which grows silently but ultimately eliminates the human being. All cancer drugs are toxic, through life saving. Cancer causing pathogens of society can only be eradicated by adequate medicine, in shape of deterrent punishment. More so, in the case of municipal corporations which are breeding grounds of corruption, if not checked can spread to epidemic proportions. Any ordinary citizen having experience of dealing with them would know, how they fleece people, no one is spared. It is public knowledge, even small officials of municipal corporations have amassed wealth running into millions, with impunity. It sends wrong message to the society that corruption pays or that courts or the government is doing nothing to check this menace. The hope of ordinary citizen is fading. This hope cannot be allowed to extinguish/dwindle. The municipal corporations should take steps to stop this blatant corruption churning monsters. These masters of corruption should know that sooner or later RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 132 of 134 133 gargantuan teeth of law will crush them with no mercy shown, lest they mend their ways.
9. Though this case warrants that strong and deterrent punishment be awarded to this convict, but at the same time his present medical plight as well as the severe medical condition with which his wife is suffering, as also the fact he is facing the trial for the last 11 years, cannot be glossed over. Therefore, the interest of justice shall be met, if the convict is sentenced to Rigorous Imprisonment for 2 years alongwith the fine of Rs.75,000/, in default of payment of fine, Simple Imprisonment for 6 months u/S 13(2) r/w Sec.13(1)(e) of Prevention of Corruption Act, 1988. Convict shall also be given benefit of Section 428 Cr.P.C for the period already undergone, if any.
10. Prosecution has proved that the convict was in possession of disproportionate assets to the tune of Rs. 16,71,657.44 to his known source(s) of income. In view of the above findings, it is apparent that convict had acquired these RC No.1(A)/2001 CBI Vs Dina Nath Aggarwal 133 of 134 134 assets from ill gotten means. In these circumstances, it is directed that assets of convict equivalent to the value of Rs. 16,71,657.44 are forfeited to the State. Convict is directed not to dispose off all the assets in his name or else, if the prosecution has attached any other assets of the convict, the said amount can be realized from the same.
11. Copy of the judgment and order on sentence be given to the convict free of cost. Thereafter, file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
ON 21.09.2015 (SANJEEV AGGARWAL)
Special Judge,
CBI03(PC Act)
Delhi/21.09.2015
RC No.1(A)/2001
CBI Vs Dina Nath Aggarwal 134 of 134